McBroom v. The Logan Cnty. Sheriff's Office

1

2024 IL App (4th) 240377-U

BENJAMIN McBROOM, Plaintiff-Appellant, v. THE LOGAN COUNTY SHERIFF'S OFFICE, Defendant-Appellee.

No. 4-24-0377

Court of Appeals of Illinois, Fourth District

November 22, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Logan County No. 24MR1 Honorable William G. Workman, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Cavanagh and Justice Knecht concurred in the judgment.

ORDER

DeARMOND JUSTICE

¶ 1 Held: The trial court properly dismissed plaintiff's complaint under the Illinois Freedom of Information Act (FOIA) because most of the information sought by plaintiff was not a "public record" kept by the public body, and the uncontroverted affidavit of defendant's FOIA officer established all applicable public records were provided.

¶ 2 In January 2024, plaintiff, Benjamin McBroom, who was then a pretrial detainee at the Logan County jail, filed a complaint alleging defendant, the Logan County Sheriff's Office, violated the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2022)), by failing to comply with his "Request for Preservation" of documents related to nutritional information regarding food served at the jail. In particular plaintiff sought recipes, portioning guidelines, and information about the calculation of nutritional values for dishes prepared by detainees and staff. Defendant produced 10 weekly menus with handwritten caloric information for each menu item. Plaintiff alleged the production was untimely and insufficient to meet his FOIA request.

¶ 3 The trial court granted defendant's motion dismiss, finding (1) plaintiff did not seek "public records" as defined by FOIA and instead sought the preservation of certain items and preparation of data, which was improper under FOIA, (2) defendant did not deny plaintiff's request and tendered the records in its possession, (3) tendering records did not waive defendant's argument there was never a valid FOIA request, and (4) even if defendant's response was untimely, there was (a) no relief the court could provide and (b) no willful or intentional lack of compliance by defendant. On appeal, plaintiff argues the court wrongly dismissed his complaint. We affirm.

¶ 4 I. BACKGROUND

¶ 5 In a document dated January 15, 2023, plaintiff submitted a "Logan County

Sheriff's Dept. Inmate Request/Grievance Form," stating he was "requesting to talk with: FOIA/Legal/Dietary" regarding a "Request for Preservation." On the form, plaintiff wrote:

"Pursuant to Federal law, you are hereby instructed to preserve certain items of evidence relevant to forthcoming litigation before the Central District U.S. Court of Illinois. Your failure to preserve such evidence against spoliation-including by routine or inadvertent deletion or unavailability-will entitle me to a favorable presumption by the finder-of-fact that any evidence so despoiled had a tendency to prove the claims asserted. This applies to the specific items requested, and collateral evidence related to the same claims, and all future Requests for Preservation in this or any other potential suits."

¶ 6 The record indicates plaintiff also attached a list of items sought, including recipes and portioning guidelines for all food prepared by detainees and staff, including any calculation of nutritional value "that has or will be produced," the date the calculation was made, the person responsible for the calculation, any nutritional requirements relied on, and anyone approving or overseeing the calculation. Plaintiff also sought actual menus reflecting food served to detainees for the past two years.

¶ 7 On February 7, 2023, a FOIA officer responded and referred plaintiff to "County Jail Standards, 20 IL Admin Code CH 1, 701.110(f)(a)(1) for caloric information" and attached 10 weekly menus with handwritten calories for each menu item included. At the bottom of each was written "menu subject to change." In some instances, dessert on the menu was listed as "cook's choice." The County Jail Standards do not include a subsection (f), but subsection (a)(1) provides food must be of sufficient nutritional value and provide a minimum of 1800 to 2000 calories for adults per day. 20 IL Adm. Code 701.110(a)(1) (eff. Oct. 1, 2014). The response indicated the request was received by the FOIA officer on February 1, 2023.

¶ 8 On January 8, 2024, plaintiff filed a complaint for injunctive and declaratory relief, requesting the trial court require defendant to make a full disclosure of the records requested. Plaintiff alleged the menus provided smelled of "fresh Sharpie" and were newly created in response to the request. He also alleged the response failed to disclose (1) any sources of information relied on in making the nutritional calculations, (2) recipes or portioning guidelines, (3) information pertaining to dessert items, and (4) alternate breakfast items. He requested the court require defendant to provide (1) all recipes and portioning guidelines for meals, (2) all United States Department of Agriculture (USDA) nutritional information available on food packaging used in the preparation of meals, and (3) any "sub-calculations" used in arriving at the caloric values provided. In the alternative, to the extent the court determined the items sought did not exist, he sought a declaratory judgment stating that fact.

¶ 9 On February 16, 2024, defendant moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2022)), alleging (1) plaintiff did not make a FOIA request for public records when he sought preservation of documents, (2) plaintiff's request was not denied, and defendant was not required to create records that did not exist, and (3) the trial court was not authorized to rule that certain documents did not exist.

¶ 10 Defendant also separately moved to dismiss under section 2-619 of the Code (735 ILCS 5/2-619 (West 2022)), alleging it provided plaintiff with all records in its possession. Defendant attached an affidavit from its FOIA officer, averring she received the request on February 1, 2023, and, on February 7, 2023, provided plaintiff with the menus. She averred defendant had no additional records relevant to the request. Defendant alleged the FOIA officer's affidavit refuted plaintiff's claims. Defendant failed to verify the motion to dismiss. On February 23, 2024, defendant filed an identical new motion to dismiss that was verified.

¶ 11 Plaintiff filed a motion to strike, alleging he received the first motion to dismiss without proof of service or a notice of appearance by defendant's counsel. He also argued the motion lacked merit and the FOIA officer's affidavit was insufficient to warrant a dismissal.

¶ 12 On February 26, 2024, the trial court held a hearing on the matter. The record shows the hearing was recorded but had no court reporter. There is no transcript of the hearing in the record. After the appeal was filed, defendant moved to submit a proposed substitute report of proceedings, noting plaintiff had failed to provide one. That report provided the basic procedural history of the case, but it did not include specific details of the evidence or arguments presented at the hearing. There is no order approving the report in the record, but a docket entry states the parties agreed to it, and it was filed with this court.

¶ 13 On February 28, 2024, the trial court entered a written order denying the motion to strike and dismissing the complaint. The court wrote plaintiff acknowledged in court he was in receipt of defendant's motion to dismiss and prepared to argue the motion. The court stated plaintiff did not request a continuance and thus suffered no prejudice. As to the merits of the motion to dismiss, the court found (1) plaintiff did not seek "public records" as defined by FOIA and instead sought the preservation of certain items and preparation of data, which was improper under FOIA, (2) defendant did not deny plaintiff's request and tendered the records in its possession, (3) tendering records did not waive defendant's argument there was never a valid FOIA request, and (4) even if defendant's response was untimely, there was no relief the court could provide, and there was no willful or intentional lack of compliance by defendant.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, plaintiff contends the trial court erred in dismissing his complaint. He argues (1) he submitted a valid FOIA request, (2) the FOIA officer's response waived or forfeited any argument the request was invalid, (3) the request did not require the creation of new records, (4) the request was improperly denied by an untimely response and failure to provide all responsive documents, (5) he sought "public records," (6) the FOIA officer's affidavit was insufficient, and (7) the failure to produce items was willful and intentional. Plaintiff also sought civil penalties.

¶ 17 A motion to dismiss pursuant to section 2-615 attacks the sufficiency of the complaint and raises the question of whether the complaint states a claim upon which relief can be granted. Burton v. Airborne Express, Inc., 367 Ill.App.3d 1026, 1029, 857 N.E.2d 707, 711 (2006). A section 2-619 motion to dismiss admits the legal sufficiency of the plaintiff's complaint but raises defects, defenses, or other affirmative matters that appear on the face of the complaint or that are established by external submissions acting to defeat the complaint's allegations. Burton, 367 Ill.App.3d at 1029. The resolution of either motion involves only a question of law, and therefore ...