Shehadeh v. City of Taylorville

1

2024 IL App (5th) 220829-U

JAMAL SHEHADEH, Plaintiff-Appellant, v. THE CITY OF TAYLORVILLE, Defendant-Appellee.

No. 5-22-0829

Court of Appeals of Illinois, Fifth District

March 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 Christian County. No. 22-MR-34 Honorable Douglas C. Gruenke, Judge, presiding.

JUSTICE BOIE delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

BOIE JUSTICE

¶ 1 Held: The trial court properly dismissed the plaintiff's complaint under the Freedom of Information Act (5 ILCS 140/1 et seq. (West 2020)) because his categorical request for all communications between two police chiefs on any topic was unduly burdensome (id. § 3(g)) where the public body provided an affidavit attesting that most or all of these communications would be exempt from disclosure and where the plaintiff either would not or could not articulate a more focused request. Because the request amounted to a fishing expedition, the public body's burden of compliance outweighed any public interest in disclosure.

¶ 2 The plaintiff, Jamal Shehadeh, filed a complaint against the defendant, the City of Taylorville (City), under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)), alleging that the City violated FOIA when it denied his request for copies of all the communications between the Taylorville chief of police and the chief of police for the Village of Kinkaid after January 1, 2022. The trial court dismissed the complaint with prejudice. The plaintiff appeals pro se, arguing that (1) communications between the two police chiefs are public records subject to disclosure under FOIA; (2) the exemption for requests that are unduly burdensome (id. § 3(g)) does not apply; (3) the City was required to redact any information that was exempt and provide the remaining information to the plaintiff (id. § 7(1)); (4) the trial court erred in failing to conduct an in camera review of the requested records to determine which were exempt and which were subject to disclosure (id. § 11(f)); and (5) civil penalties were warranted (id. § 11(j)). We affirm.

¶ 3 I. BACKGROUND

¶ 4 On March 1, 2022, the plaintiff sent the FOIA request at issue in this appeal to the city clerk of Taylorville. The record indicates the request was received on March 8, 2022. In it, the plaintiff requested paper copies of "all communications to and all communications from Dwayne Wheeler and D.J. Mathon since" January 1, 2022. Wheeler is the Taylorville chief of police and Mathon is the chief of police of the Village of Kincaid. In his request, the plaintiff stated that under the Illinois Attorney General's Public Access Opinion Number 16-006, issued in an unrelated case involving other parties on August 9, 2016, the City was required to search Wheeler's work and personal phones email accounts, and social media accounts for communications that were responsive to his FOIA request. He requested that such a search be performed.

¶ 5 On April 5, 2022, the City's FOIA officer sent the plaintiff a letter denying that request. She explained that (1) communications sent to or from Wheeler are not "public records" within the statutory definition under FOIA (see 5 ILCS 140/2(c) (West 2020)); (2) such communications are exempt from disclosure under several provisions (see id. § 7(1)(b), (1)(d)(i) (1)(d)(iv), (1)(d)(v), (1)(d)(vi), (1)(d)(vii), (1)(e)); (3) the plaintiffs request was unduly burdensome because the plaintiff failed to identify which specific communications he sought that were not covered by his previous FOIA requests and because conducting the requested search would require the City's police department to expend time and resources to review "numerous" communications, a burden that outweighed "any public interest for such information" (see id. § 3(g)); and (4) complying with the request would require the creation of a new record not ordinarily kept by the City (see Hites v. Waubonsee Community College, 2016 IL App (2d) 150836, ¶ 75). The FOIA officer further noted that the Public Access Opinion letter cited by the plaintiff involved different parties in another case and was not binding on the City in this case. See Thomas v. County of Cook, 2023 IL App (1st) 211656, ¶ 18.

¶ 6 On May 2, 2022, the plaintiff filed a pro se motion for leave to file a FOIA complaint.^[1]The court granted that motion on May 12, and the plaintiff's complaint was filed that day. In it, he asserted that (1) none of the City's claimed exemptions were applicable; (2) the City failed to redact any exempt material pursuant to statute (see 5 ILCS 140/7(1) (West 2020)); and (3) the City did not provide a detailed legal and factual basis for its denial of his request (see id. § 9(a), (b)). He requested (1) a declaration that the City's withholding of the requested information was unlawful, willful, intentional, and in bad faith (see id. § 11(a)); (2) an order directing immediate production of the requested documents (see id.); (3) costs (see id. § 11(i)); and (4) civil penalties (see id. § 11(j)).

¶ 7 On June 15, 2022, the City filed a motion to dismiss, arguing that the requested communications were not public records and were exempt from disclosure under the various exemptions listed in the FOIA officer's letter. The City further argued that FOIA does not create an obligation for a public body to create records it does not ordinarily keep.

¶ 8 Attached to the City's motion was the affidavit of Wheeler. In it, he attested that the City does not maintain or store communications between himself and Mathon sent to or from his personal devices other than any such communications that appear on the City's website. He stated as follows:

"Upon information and belief, Jamal Shehadeh is attempting to retrieve private *** communications from my private or work issued devices to acquire information concerning suspected or pending criminal investigations and prosecutions of persons *** and to obtain the identity of all informants and complainants that [are] used by the City's Police Department or by Kincaid's Police Department to identify, monitor, and investigate actual or potential criminal persons or activities."

Wheeler stated that releasing this type of information to jail inmates awaiting prosecution jeopardizes security in the Christian County Correctional Center. He explained that providing this information to inmates would disclose to them the identification, investigation, and observation procedures related to such inmates or the identities of informants or complainants providing information about them, thereby "perpetuating the risk of retaliation by inmates." He further explained that releasing such information to any individual under criminal investigation or facing prosecution would enable the suspect to anticipate police response times and otherwise reveal to the suspect information concerning the police department's investigation, identification, and observation procedures.

¶ 9 Wheeler went on to state that releasing information about individuals who serve as informants or complainants to third parties would increase the risk of harm to those individuals as well as the employees of both police departments who receive information from informants and complaints. Finally, Wheeler noted that the plaintiff had submitted FOIA requests to the City regularly since his incarceration began in March 2021 and that both Wheeler and Mathon were involved in the investigation and criminal prosecution of the plaintiff. He stated that disclosing their communications "could obstruct or interfere with" a pending federal prosecution of the plaintiff.

¶ 10 On December 16, 2022, the court held a motion hearing. In support of its motion to dismiss, the City first argued that communications between the two police chiefs were not public records that were ordinarily kept by the City. Counsel explained that FOIA does not require public bodies to create documents with information sought by a requestor; it only requires the disclosure of existing documents. Second, the City argued that the records were exempt from disclosure under section 7(e) (5 ILCS 140/7(e) (West 2020)) for security reasons.

¶ 11 The City's attorney then called the court's attention to Shehadeh v. Downey, 2020 IL App (3d) 170158-U (Downey) as persuasive authority in support of the City's second argument. That case involved multiple FOIA requests made by the plaintiff in this case while he was an inmate in Kankakee County, including copies of all text messages sent to or from the sheriff's personal or work cell phones, paper copies of all emails concerning the plaintiff that were sent to or from certain corrections officials, and copies of all emails or other correspondence between Kankakee County Sheriff's Department employees concerning the plaintiff. Id. ¶ 8. The court ultimately affirmed a decision of the trial court dismissing his FOIA complaint because the requested records were exempt from disclosure under various provisions of FOIA. Id. ¶¶ 51-53. Counsel for the City in this case argued that the unpublished decision in Downey was the law of the case and that it could be cited as persuasive authority under Illinois Supreme Court Rule 23(e)(1) after July 1, 2021. See Ill. S.Ct. R. 23(e)(1) (eff. Feb. 1, 2023).^[2]

¶ 12 The plaintiff argued that the content of the requested documents, rather than their format, was controlling. He stated, "The public body cannot escape its obligation to have transparent business by using private phones and devices." The plaintiff went on to argue that the statements in Wheeler's affidavit concerning the...