Ortiz Eye Associates, P.C. v. Cincinnati Insurance, Inc , 2022 IL App (1st) 211312-U ( 2022 )


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    2022 IL App (1st) 211194-U
    Order filed: June 9, 2022
    FIRST DISTRICT
    FOURTH DIVISION
    No. 1-21-1194
    NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
    limited circumstances allowed under Rule 23(e)(1).
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST JUDICIAL DISTRICT
    ______________________________________________________________________________
    JOHN KRAFT, EDGAR COUNTY WATCHDOGS,             )        Appeal from the
    SHREYAS GANDLUR and ANDY THAYER,                )        Circuit Court of
    )        Cook County.
    Plaintiffs-Appellants,                    )
    )        No. 20 CH 5792
    v.                                              )
    )        Honorable
    THE CHICAGO POLICE DEPARTMENT,                  )        Raymond W. Mitchell,
    )        Judge, presiding.
    Defendant-Appellee.                       )
    ______________________________________________________________________________
    JUSTICE ROCHFORD delivered the judgment of the court.
    Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
    ORDER
    ¶1     Held: Circuit court properly granted summary judgment in favor of police department in
    this FOIA proceeding, where police department established that responding to
    plaintiffs’ record requests would be unduly burdensome.
    ¶2     Plaintiffs-appellants, John Kraft, Edgar County Watchdogs (ECW), Shreyas Gandlur, and
    Andy Thayer, brought two lawsuits against defendant-appellant, the Chicago Police Department
    (CPD), seeking the disclosure of certain records related to a 2020 officer-involved shooting,
    pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)).
    ¶3     Plaintiffs’ lawsuits were consolidated, and the parties filed cross-motions for summary
    judgment. The circuit court denied plaintiffs’ motion and granted CPD’s motion, ruling that the
    No. 1-21-1194
    records sought by plaintiffs were exempt from disclosure under FOIA. Plaintiffs have appealed,
    and for the following reasons we affirm.
    ¶4     At approximately 2:30 p.m. on August 9, 2020, CPD officers were involved in the non-
    fatal, officer-involved shooting of Latrell Allen. Shortly thereafter, CPD issued public statements
    about the shooting through its superintendent. In addition, two press releases regarding the
    shooting were issued the following day by the Civilian Office of Police Accountability (COPA).
    Therein, COPA indicated that preliminary information indicated that the officers opened fire after
    Allen discharged a firearm at the officers. Allen was shot and was transported to a hospital in stable
    condition. Noting that the officers involved were not equipped with body-worn cameras and that
    its investigation was ongoing, each press release asked anyone with further information or relevant
    video evidence of the shooting to contact COPA.
    ¶5     Less than 24 hours after the shooting, Gandlur submitted a FOIA request to CPD seeking
    “all video or audio footage related to the police-involved shooting in Englewood on August 9,
    2020[,] around 2:30 PM, including, but not limited to, body-worn camera footage and audio,
    dashcam footage and audio, footage from [Police Observation Devices], police radio traffic, 911
    calls, or any other video or audio footage.” CPD acknowledged receipt of the request the next day,
    and in a letter issued August 11, 2020, CPD extended the time to respond by five business days
    under section 3(e) of FOIA. 5 ILCS 140/3(e) (West 2020).
    ¶6     In that letter, CPD acknowledged its obligation under FOIA to respond to the request within
    no more than 10 business days. However, CPD went on to explain that due to the COVID-19
    pandemic, some of CPD’s FOIA officers were unable to report to work or were working from
    home, and some had been deployed to the field for public safety. As such, CPD informed Gandlur
    as follows:
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    No. 1-21-1194
    “Please keep in mind that FOIA allows CPD and the requester to come to a
    mutually agreeable response period to comply with a FOIA request. Members of the
    public and media are asked to keep these considerations in mind and are strongly
    encouraged to work with public bodies to agree on reasonable and appropriate response
    times in light of the public health concerns we all face. Given that the length of the
    pandemic remains unknown and that staffing levels have been reduced, during this
    statewide emergency declaration, CPD may treat a FOIA request as unduly burdensome,
    in the event that it is not feasible for CPD to comply with or deny a request for public
    records within 5 business days after its receipt of the request or the time for response was
    properly extended under 5 ILCS 140/3(e) because it would unduly burden CPD's
    operations during the COVID-19 pandemic.”
    ¶7     CPD thereafter denied Gandlur’s request in a letter issued on August 24, 2020. Therein,
    CPD explained that no body-worn camera footage of the shooting itself existed because the
    officers involved were part of a new unit not yet equipped with such cameras. Other responsive
    video footage did exist, from in-car and body-worn cameras capturing events after the shooting.
    However, CPD asserted that these responsive records were exempt under sections 7(1)(d)(i), (ii)
    and (vii) of FOIA (5 ILCS 140/7(1)(d)(i), (ii), (vii) (West 2020)), because CPD and COPA had
    pending investigations into the shooting, and any release of the records would therefore interfere
    with those pending law enforcement and administrative enforcement proceedings and obstruct an
    ongoing criminal investigation.
    ¶8     CPD also denied Gandlur’s request under section 3(g) of FOIA (5 ILCS 140/3(g) (West
    2020), because processing it would be unduly burdensome in light of the short response time
    required by FOIA and the volume of material involved. A search for responsive video returned 71
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    No. 1-21-1194
    hours of footage which, based upon prior experience, would each require 3 hours of review totaling
    at least 213 hours. For these reasons, CPD concluded:
    “These facts, paired with the short response time allowed by FOIA, make the task
    of identifying, collecting, and reviewing potentially responsive records in a timely
    manner unduly burdensome upon CPD. As a result, CPD has determined that compliance
    with your request is unduly burdensome and that CPD’s burden to process your request
    outweighs the public’s interest.
    At this time, your request is unduly burdensome as currently written.
    However, to the extent that you narrow your FOIA request, it was determined that
    the release of any body-worn camera video and in-car camera video records at this
    time must be denied pursuant to 7(1)(d)(i), (ii), and (vii) as explained above.”
    ¶9     Two days after the shooting, on August 11, 2020, Thayer submitted his own FOIA request
    seeking “all motion picture / video footage of the police shooting of Latrell Allen on Sunday,
    August 9th, including the events leading up to the shooting and police / community interactions in
    the vicinity of the shooting for three hours afterwards,” including “that from police ‘body cams,’
    and all other footage by private and public individuals and institutions obtained by [CPD].” Thayer
    also sought “emails and memos related to this shooting, from August 9th thru []August 11th, with
    the suggested search terms ‘Latrell Allen,’ ‘Allen,’ ‘Englewood,’ and ‘shooting.’ ” CPD
    acknowledged receipt of the request the same day and, in a letter issued August 11, 2020, CPD
    extended the time to respond by five business days under section 3(e) of FOIA. That letter
    contained the same information regarding COVID-19 and CPD’s ability to timely respond to FOIA
    requests discussed above.
    ¶ 10   CPD denied Thayer’s request on August 25, 2020, explaining in its letter that no body-
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    No. 1-21-1194
    worn camera footage of the shooting existed but responsive videos from after the shooting did
    exist. However, CPD contended that these responsive records were exempt under FOIA for the
    same reasons it had denied Gandlur’s request. CPD also determined that compliance with Thayer’s
    request for emails as written would also be unduly burdensome because a search using his
    proposed search terms and time-period returned approximately 30,000 potentially responsive
    emails, each of which based upon prior experience could be comprised of a single page to well
    over 1,000 pages including attachments. CPD estimated based on prior experience that a review
    of those emails would take 1,000 hours at a minimum. The letter concluded as follows:
    “At this time, your request is unduly burdensome as currently written. Pursuant to
    Section 3(g) of FOIA, we would like to extend to you an opportunity to modify your request
    to make it more manageable. CPD encourages you to review your request to ascertain the
    specific details to your query. Unless and until a new FOIA request is submitted that
    specifies what records you are seeking, CPD will be unable to provide further records.
    Once this is determined, a new FOIA request can be submitted to CPD, specifying the
    records you would like CPD to provide. However, as explained above, it was determined
    that the release of any records specifically relating to the referenced officer-involved
    shooting must be denied at this time pursuant to 7(1)(d)(i), (ii), and (vii).
    ¶ 11   Kraft, on behalf of ECW, also submitted a FOIA request on August 11, 2020, seeking “all
    audio, video, reports, emails, texts, and other records regarding or referencing the police involved
    shooting, resulting in injury on August 9, 2020, in or near Englewood” involving Latrell Allen.
    CPD acknowledged receipt of the request the next day and, in a letter issued August 12, 2020,
    CPD extended the time to respond by five business days under section 3(e) of FOIA. That letter
    once again contained the same information regarding COVID-19 and CPD’s ability to timely
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    No. 1-21-1194
    respond to FOIA requests discussed above.
    ¶ 12   On August 26, 2020, CPD provided Kraft and ECW with redacted copies of the arrest
    report and original case incident report but otherwise denied their request. However, in a letter
    issued that day CPD again noted the lack of body-camera footage of the shooting and further
    asserted that responsive records were otherwise exempt under sections 7(1)(d)(i), (ii), and (vii) of
    FOIA. CPD also contended that compliance with the request for other video records would be
    unduly burdensome under section 3(g), and Kraft’s request for “all emails” regarding the shooting
    was also unduly burdensome because he did not provide any email addresses, employee names,
    specific search terms, or a time frame for the search. CPD extended an opportunity to narrow the
    request in the exact same manner as it had with respect to Thayer’s request, but once again
    maintained that a narrowed request for records relating specifically to the officer-involved
    shooting must also be denied at that time under sections 7(1)(d)(i), (ii), and (vii) of FOIA.
    ¶ 13   On September 9, 2020, Gandlur and Thayer filed a joint complaint in the circuit court, each
    raising counts asserting that CPD improperly withheld the requested records, failed to conduct an
    adequate search for responsive records, and willfully and intentionally violated FOIA with respect
    to their respective FOIA requests. Kraft and ECW filed a three-count complaint the same day
    containing identical allegations with respect to the FOIA request filed by Kraft. The two
    complaints were later consolidated without objection.
    ¶ 14   On January 21, 2021, plaintiffs filed a motion for partial summary judgment and for “CPD
    to produce an index of each redacted or withheld record at the same time as CPD’s response to
    this motion,” pursuant to section 11(e) of FOIA. 5 ILCS 140/11(e) (West 2020) (“On motion of
    the plaintiff, prior to or after in camera inspection, the court shall order the public body to provide
    an index of the records to which access has been denied.”). CPD responded with a cross-motion
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    No. 1-21-1194
    for summary judgment. In support of its motion, CPD submitted affidavits from FOIA Officer
    Andrew Marlan, who handled all three FOIA requests, Commander Kevin Bruno from the Bureau
    of Detectives’ Investigative Response Team, and Vaughn Ganiyu, an attorney in CPD’s Legal
    Affairs Division who corresponded with COPA about its pending investigation. Marlan attested
    that he contacted Bruno (and several other CPD personnel) after receiving the FOIA requests to
    determine what responsive records existed and whether they could be produced. Those affidavits
    further generally contained information and assertions supporting the truthfulness and accuracy of
    the justifications contained in CPD’s written responses to plaintiffs’ FOIA requests. Plaintiffs did
    not submit any affidavits to the circuit court.
    ¶ 15   On June 30, 2021, the circuit court entered a written order granting CPD’s motion for
    summary judgment and denying plaintiffs’ motion for partial summary judgment. The circuit court
    held that CPD established by clear and convincing evidence that the requested records would
    interfere with an ongoing investigation, and thus were exempt, and emphasized that the incident
    occurred only one day before the first FOIA request was submitted. The court further determined
    that providing initial information about the shooting in the press releases had no bearing on
    whether release of records would influence witness testimony and it was “absurd to suggest that
    the existence of a press release ipso facto defeats the claimed exemption.”
    ¶ 16   The court also concluded that CPD conducted a sufficient search and did not willfully
    violate FOIA. Because it determined the records were exempt under section 7(1)(d), the circuit
    court declined to rule on whether the requests were also properly denied as being unduly
    burdensome under section 3(g). However, the circuit court did grant plaintiffs partial relief by
    ordering CPD to “produce an index of each redacted or withheld record pursuant to FOIA Section
    11(e).” Plaintiffs timely appealed.
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    No. 1-21-1194
    ¶ 17   Summary judgment may be entered where “the pleadings, depositions, and admissions on
    file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
    and that the moving party is entitled to judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
    2020). “Although the filing of cross-motions for summary judgment does not necessarily establish
    the lack of an issue of material fact or obligate a court to render summary judgment, it does indicate
    that the parties agree that the case involves a question of law and that they invite the court to decide
    the issues based on the record.” Shared Imaging, LLC v. Hamer, 
    2017 IL App (1st) 152817
    , ¶ 13.
    We conduct a de novo review of a ruling on a motion for summary judgment. Bank of New York
    Mellon v. Wojcik, 
    2019 IL App (1st) 180845
    , ¶ 19. We may affirm a ruling on a motion for
    summary judgment on any basis found in the record. Rosestone Investments, LLC v. Garner, 
    2013 IL App (1st) 123422
    , ¶ 23.
    ¶ 18   The parties’ contentions regarding the relevant provisions of FOIA present a question of
    statutory interpretation, which we also review de novo. Millennium Park Joint Venture, LLC v.
    Houlihan, 
    241 Ill. 2d 281
    , 294 (2010). The rules applicable to this task are well-established and
    were summarized in Hendricks v. Board of Trustees of the Police Pension Fund, 
    2015 IL App (3d) 140858
    , ¶ 14:
    “The fundamental rule of statutory interpretation is to ascertain and give effect to the intent
    of the legislature. [Citation.] The most reliable indicator of that intent is the language of
    the statute itself. [Citation.] In determining the plain meaning of statutory language, a court
    will consider the statute in its entirety, the subject the statute addresses, and the apparent
    intent of the legislature in enacting the statute. [Citations.] If the statutory language is clear
    and unambiguous, it must be applied as written, without resorting to further aids of
    statutory interpretation. [Citation.] A court may not depart from the plain language of the
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    No. 1-21-1194
    statute and read into it exceptions, limitations, or conditions that are not consistent with the
    express legislative intent.”
    ¶ 19    Here, FOIA itself expressly declares the statute’s public policy and the legislature’s intent.
    Section 1 provides that “it is declared to be the public policy of the State of Illinois that all persons
    are entitled to full and complete information regarding the affairs of government and the official
    acts and policies of those who represent them as public officials and public employees consistent
    with the terms of this Act.” 5 ILCS 140/1 (West 2020). Section 1 goes on to explain that “[s]uch
    access is necessary to enable the people to fulfill their duties of discussing public issues fully and
    freely, making informed political judgments and monitoring government to ensure that it is being
    conducted in the public interest.” 
    Id.
     As such, section 1 provides that “[i]t is a fundamental
    obligation of government to operate openly and provide public records as expediently and
    efficiently as possible in compliance with this Act.” 
    Id.
     Indeed, section 1.2 of FOIA provides that
    “[a]ll records in the custody or possession of a public body are presumed to be open to inspection
    or copying. Any public body that asserts that a record is exempt from disclosure has the burden of
    proving by clear and convincing evidence that it is exempt.” 
    Id.
     § 1.2.
    ¶ 20    Specific exemptions from this required disclosure are provided in section 7 of FOIA. Id.
    § 7; see also id. § 3(a) (“Each public body shall make available to any person for inspection or
    copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.”).
    However,
    “[r]estraints on access to information, to the extent permitted by this Act, are limited
    exceptions to the principle that the people of this State have a right to full disclosure of
    information relating to the decisions, policies, procedures, rules, standards, and other
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    No. 1-21-1194
    aspects of government activity that affect the conduct of government and the lives of any
    or all of the people.” Id. § 1.
    Based upon the legislature’s clear expression of public policy and intent, our supreme court has
    held that FOIA is to be generally accorded liberal construction, while its exemptions are to be
    construed narrowly. Southern Illinoisan v. Illinois Department of Public Health, 
    218 Ill. 2d 390
    ,
    416 (2006). Therefore, “ ‘when a public body receives a proper request for information, it must
    comply with that request unless one of the narrow statutory exemptions set forth in *** the Act
    applies.’ ” 
    Id. at 417
     (quoting Illinois Education Ass’n v. Illinois State Board of Education, 
    204 Ill. 2d 456
    , 463 (2003)).
    ¶ 21   As relevant here, FOIA exempts from disclosure:
    “Records in the possession of any public body created in the course of
    administrative enforcement proceedings, and any law enforcement or correctional agency
    for law enforcement purposes, but only to the extent that disclosure would:
    (i) interfere with pending or actually and reasonably contemplated law
    enforcement proceedings conducted by any law enforcement or correctional agency that
    is the recipient of the request;
    (ii) interfere with active administrative enforcement proceedings conducted by the
    public body that is the recipient of the request; [or]
    ***
    (vii) obstruct an ongoing criminal investigation by the agency that is the recipient
    of the request.” 5 ILCS 140/7(1)(d)(i), (ii), (vii) (West 2020).
    FOIA also exempts records from disclosure under the following conditions:
    “Requests calling for all records falling within a category shall be complied with
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    No. 1-21-1194
    unless compliance with the request would be unduly burdensome for the complying public
    body and there is no way to narrow the request and the burden on the public body outweighs
    the public interest in the information. Before invoking this exemption, the public body shall
    extend to the person making the request an opportunity to confer with it in an attempt to
    reduce the request to manageable proportions. If any public body responds to a categorical
    request by stating that compliance would unduly burden its operation and the conditions
    described above are met, it shall do so in writing, specifying the reasons why it would be
    unduly burdensome and the extent to which compliance will so burden the operations of
    the public body. Such a response shall be treated as a denial of the request for information.”
    5 ILCS 140/3(g) (West 2020).
    ¶ 22   An individual who has been denied access to records may file an action in the circuit court
    for injunctive or declaratory relief. Chicago Tribune Co. v. Department of Financial &
    Professional Regulation, 
    2014 IL App (4th) 130427
    , ¶ 23 (citing 5 ILCS 140/11(a) (West 2010)).
    The public body then has the burden to prove, by clear and convincing evidence, that the requested
    records fall within an exemption. 5 ILCS 140/11(f) (West 2020). This burden is only met when
    the public agency “ ‘provide[s] a detailed justification for its claim of exemption, addressing the
    requested documents specifically and in a manner allowing for adequate adversary testing.’ ”
    (Emphasis omitted.) Illinois Education Ass’n, 
    204 Ill. 2d at 464
     (quoting Baudin v. City of Crystal
    Lake, 
    192 Ill. App. 3d 530
    , 537 (1989)). Section 11(f) of FOIA (5 ILCS 140/11(f) (West 2020))
    requires the circuit court to review the request for documents de novo and conduct an in camera
    examination of the requested records as it finds appropriate to determine if the records, or any part
    thereof, may be withheld under any provision of the Act. Southern Illinoisan, 
    218 Ill. 2d at 418
    .
    However, an in camera inspection is not necessary “where the public body meets its burden of
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    No. 1-21-1194
    showing that the statutory exemption applies by means of affidavits.” Illinois Education Ass’n,
    
    204 Ill. 2d at
    469 (citing Williams v. Klincar, 
    237 Ill. App. 3d 569
    , 572-73 (1992)). “[A]ffidavits
    will not suffice if the public body’s claims are conclusory, merely recite statutory standards, or are
    too vague or sweeping.” 
    Id.
    ¶ 23   Before continuing further, we make three preliminary points. First, plaintiffs’ complaints
    included counts asserting that CPD improperly withheld the requested records, failed to conduct
    an adequate search for responsive records, and willfully and intentionally violated FOIA with
    respect to their respective FOIA requests. In addition, plaintiffs’ motion for partial summary
    judgment specifically asked the circuit court to order CPD to produce an index of each redacted or
    withheld record at the same time as CPD filed its response to that motion, pursuant to section 11(e)
    of FOIA. However, the circuit court only ordered CPD to do so after the cross-motions for
    summary judgment were fully briefed, in the same final order disposing of this matter and granting
    summary judgment in favor of CPD.
    ¶ 24   On appeal, however, plaintiffs only challenge the circuit court’s grant of summary
    judgment in favor of CPD on plaintiffs’ claim that CPD improperly withheld the requested records.
    We will therefore limit our analysis to that issue, as the other two claims have been forfeited. Ill.
    S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in
    the reply brief, in oral argument, or on petition for rehearing.”).
    ¶ 25   Second, the shooting of Allen took place on August 9, 2020. Each of the three FOIA
    requests at issue here were filed within two days thereafter, with the first request being filed less
    than 24 hours after the shooting. Pursuant to FOIA, CPD had no more than 10 business days to
    respond to each of these requests (5 ILCS 140/3(d), (f) (West 2020)), and it is undisputed that CPD
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    No. 1-21-1194
    did in fact timely respond to each of the three FOIA requests by August 26, 2020. 1 As such, CPD
    was required to and did in fact respond to each of plaintiffs’ FOIA requests within 17 days of the
    shooting. This compressed timeline and the fact that these requests were made at the very
    beginning of the investigations into the shootings will guide our discussion, as “the propriety of a
    response must be judged at the time the decision denying the FOIA request was made.” (Emphasis
    in original.) Green v. Chicago Police Dep't, 
    2021 IL App (1st) 200574
    , ¶ 23, appeal allowed, No.
    127229 (Sept. 29, 2021).
    ¶ 26    Third, the circuit court resolved this matter based on the section 7(1)(d) exemptions
    claimed by CPD and therefore declined to rule on the exemption CPD claimed under section 3(g)
    of FOIA. We find that the State’s exemption claim under section 3(g) should have been evaluated
    first under the circumstances here, however, where CPD never claimed to have reviewed each of
    the records responsive to plaintiffs’ requests before asserting exemptions over all the potentially
    responsive videos and emails under both sections 7(1)(d) and 3(g). This court has previously
    concluded that “section 7(1)(d) does not itself permit blanket exemptions,” and that in situations
    such as those presented here, “defendants must establish an exemption under section 3(g) or be
    prepared to make the extensive redactions required by section 7(1)(d).” Kelly v. Vill. of Kenilworth,
    
    2019 IL App (1st) 170780
    , ¶¶ 47-49.
    ¶ 27    More specifically, in Kelly, 
    2019 IL App (1st) 170780
    , ¶ 1, this court addressed a FOIA
    request for information regarding an unsolved murder. Those requests were denied under section
    1
    As will be discussed more fully below, the only exception is contained in section 3(e) of FOIA,
    which provides: “The person making a request and the public body may agree in writing to extend the time
    for compliance for a period to be determined by the parties. If the requester and the public body agree to
    extend the period for compliance, a failure by the public body to comply with any previous deadlines shall
    not be treated as a denial of the request for the records.” 5 ILCS 140/3(e) (West 2020).
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    No. 1-21-1194
    7(1)(d) of FOIA based on a claim that investigations into the murder were ongoing, and the
    plaintiff then filed a FOIA lawsuit in the circuit court. 
    Id.
     Notably, one of the defendant police
    departments contended in the circuit court that “the entire file should be withheld. Going through
    each page of the investigative file ‘could potentially require hundreds of hours to review, analyze
    and redact information.’ ” 
    Id. ¶ 9
    . However, none of the defendants in that case ever raised a claim
    that the undue burden of compliance rendered the documents exempt from disclosure under section
    3(g) of FOIA. 
    Id.
     The circuit court concluded that the requests were properly denied under section
    7(1)(d), after reviewing the defendant’s affidavits and a representative portion of the more than
    20,000 pages of responsive records in camera. 
    Id. ¶¶ 7, 16
    .
    ¶ 28   On appeal, this court affirmed in part and reversed in part, after concluding that the
    defendants “failed to demonstrate that a blanket exception was warranted.” 
    Id. ¶ 36
    . We noted that
    the defendants had not “claimed to have reviewed defendants' entire investigative files. Instead,
    defendants and their affiants [had] remarked on the burden of examining and redacting every
    page.” 
    Id. ¶ 39
    . We found this improper, reasoning as follows:
    “Defendants here did not directly assert an exemption under section 3(g) or provide
    Kelly the opportunity to reduce his requests. Instead, they tried to obtain the benefits of
    section 3(g) without satisfying its burdens. Without properly raising a section 3(g)
    exemption in addition to the section 7(1)(d) exemptions, defendants' affidavits and
    documents submitted in camera did not establish why even the documents they did not sort
    through are exempt. Moreover, they did [not] demonstrate why this is the rare case in which
    nothing is left after redacting all material that is exempt under section 7(1)(d). Their
    affidavits were too sweeping for a section 7(1)(d) exemption standing alone. ***
    Defendants' approach failed to comply with the letter and spirit of Illinois's FOIA in this
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    No. 1-21-1194
    instance.” 
    Id. ¶ 41
    .
    This court therefore ultimately concluded:
    “The items tendered to the court clearly demonstrated that an investigation into
    [the] murder is ongoing within the meaning of section 7(1)(d). *** Yet, section 7(1)(d)
    does not alone provide for the categorical assertion of the exemptions therein.
    Consequently, defendants have not met their burden of demonstrating that releasing any of
    the withheld materials would have interfered with enforcement proceedings or obstructed
    an investigation so as to render the entirety of their files exempt. We consequently reverse
    the circuit court's order granting summary judgment in their favor and remand for further
    proceedings consistent with this opinion. On remand, defendants will have the opportunity
    to raise a section 3(g) exemption upon complying with the procedures required by that
    statute.” 
    Id. ¶ 54
    .
    ¶ 29   Obviously, the situation here is not precisely analogous to the circumstances presented in
    Kelly, as here CPD did explicitly claim an exemption under section 3(g). Just as in Kelly, however,
    here CPD never claimed to have reviewed each of the records responsive to plaintiffs’ requests
    before asserting exemptions over all potentially responsive videos and emails under both sections
    7(1)(d) and 3(g), and the circuit court here granted CPD a blanket exemption solely under section
    7(1)(d) with respect to videos and emails CPD had never actually individually reviewed. This
    result runs counter to Kelly’s instruction that in such circumstances “section 7(1)(d) does not itself
    permit blanket exemptions” and therefore “defendants must establish an exemption under section
    3(g) or be prepared to make the extensive redactions required by section 7(1)(d).” 
    Id. ¶¶ 47-49
    .
    ¶ 30   Nevertheless, we reiterate that we may affirm a ruling on a motion for summary judgment
    on any basis found in the record. Garner, 
    2013 IL App (1st) 123422
    , ¶ 23. For the following
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    No. 1-21-1194
    reasons, we conclude that CPD properly established that the records at issue were exempt under
    section 3(g), and it is on that basis that we therefore affirm the circuit court's grant of summary
    judgment in CPD’s favor.
    ¶ 31   As a threshold matter, section 3(g) requires that before a public body invokes section 3(g)
    it must extend to the person making the request an opportunity to confer with it in an attempt to
    narrow the request. Hites v. Waubonsee Cmty. Coll., 
    2018 IL App (2d) 170617
    , ¶ 55; 5 ILCS
    140/3(g) (West 2020). This court has recognized that a defendant may establish that it met the
    burdens required by section 3(g) of FOIA via both its pre-suit written communications with the
    requester of information and any affidavits provided in response to a FOIA lawsuit. Shehadeh v.
    Madigan, 
    2013 IL App (4th) 120742
    , ¶¶ 32-33; Sargent Shriver Nat'l Ctr. on Poverty Law, Inc. v.
    Bd. of Educ. of City of Chicago, 
    2018 IL App (1st) 171846
    , ¶¶ 28, 38.
    ¶ 32   On appeal, plaintiffs contend that CPD did not comply with this requirement in “good-
    faith,” as it did not extend a “meaningful opportunity to confer” where in the final response letters
    to their FOIA requests “CPD explicitly told Plaintiffs that even if they were to narrow their
    requests, any records related to the shooting of Mr. Allen would not be produced” due to the section
    7(1)(d) exemptions claimed by CPD. We disagree.
    ¶ 33   Here, in each of the three letters extending the time to respond to plaintiffs’ FOIA
    requests—issued before CPD’s final response letters—CPD explicitly informed plaintiffs that it
    was experiencing strain in timely responding to FOIA requests due to the COVID-19 pandemic
    and that FOIA allows CPD and the requester to come to a mutually agreeable response period to
    comply with a FOIA request. Those letters also encouraged plaintiffs to work with CPD to agree
    on reasonable and appropriate response times in light of these concerns and informed plaintiffs
    that in the absence of such an agreement CPD may treat plaintiffs’ requests as being unduly
    - 16 -
    No. 1-21-1194
    burdensome under section 3(g). Furthermore, in his affidavit Marlan specifically averred:
    “Although I offered to confer with Plaintiffs to narrow the scope of their requests, they failed to
    do so.” Plaintiffs did not file any affidavits below, and for “purposes of the summary judgment
    motion, facts contained in an affidavit are admitted as true if not contradicted by a counteraffidavit
    or other evidentiary material.” Vill. of Arlington Heights v. Anderson, 
    2011 IL App (1st) 110748
    ,
    ¶ 10.
    ¶ 34    Furthermore, even in CPD’s final response letters CPD indicated that it was only claiming
    that plaintiffs’ requests were exempt under section 7(1)(d) and 3(g) “at this time” and again
    encouraged plaintiffs to review and limit their requests and to file another, more limited FOIA
    request for consideration. On these facts, we conclude that CPD established that it complied with
    section 3(g)’s threshold requirement to extend to plaintiffs an opportunity to confer in an attempt
    to narrow the requests. Shehadeh, 
    2013 IL App (4th) 120742
    , ¶ 32 (noting that nothing in FOIA
    precludes a public body from continuing to assert the unduly burdensome exemption after a
    plaintiff refuses to narrow a FOIA request).
    ¶ 35    Turning now to the elements of CPD’s claimed exemption under section 3(g), we note
    again that section 3(g) of the FOIA exempts records from disclosure where a request for all records
    falling within a category: (1) would be unduly burdensome for the complying public body, (2)
    there is no way to narrow the request, and (3) the burden on the public body outweighs the public
    interest in the information. 5 ILCS 140/3(g) (West 2020). Here, it is undisputed that plaintiffs made
    a categorical request, where they sought all the videos and emails related to the shooting. In
    addition, on appeal plaintiffs do not challenge whether CPD established the second element. We
    will therefore focus our analysis on the first and third elements of this test. Ill. S. Ct. R. 341(h)(7)
    (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in the reply brief, in
    - 17 -
    No. 1-21-1194
    oral argument, or on petition for rehearing.”); Sargent Shriver, 
    2018 IL App (1st) 171846
    , ¶ 28
    (focusing solely on the section 3(g) elements discussed by the parties on appeal).
    ¶ 36    As to the first element, a request that is “overly broad and requires the public body to locate,
    review, redact and arrange for inspection a vast quantity of material that is largely unnecessary to
    the [requestor's] purpose constitutes an undue burden.” National Ass'n of Criminal Defense
    Lawyers v. Chicago Police Department, 
    399 Ill. App. 3d 1
    , 17 (2010). And again, the propriety of
    a response must be judged at the time the decision denying the FOIA request was made and CPD
    could establish that it met this element via both its pre-suit written communications with plaintiffs
    and the affidavits provided in response to these FOIA lawsuits. Supra ¶¶ 25, 31.
    ¶ 37    Here, CPD explicitly informed plaintiffs in writing that it was experiencing strain in timely
    responding to FOIA requests due to the COVID-19 pandemic and encouraged coming to an
    agreement to further extend the time for a response. Then, in its response letters, CPD explained
    that processing plaintiffs’ requests would be unduly burdensome considering the short response
    time required by FOIA and the volume of material involved. A search for responsive video
    returned 71 hours of footage which would require at least 213 hours of review and 30,000
    potentially responsive emails review of which would take 1,000 hours at a minimum. In the
    affidavits CPD provided in the circuit court, Marlan affirmed the amount of material potentially
    responsive to plaintiffs’ requests and that plaintiffs did not seek to limit its requests. On this record,
    we conclude that CPD established by clear and convincing evidence that at the time it issued its
    final response letters it would be unduly burdensome to response to plaintiffs’ FOIA requests. See,
    e.g. Shehadeh, 
    2013 IL App (4th) 120742
    , ¶ 35 (review of 9,200 records deemed undue burden);
    Sargent Shriver, 
    2018 IL App (1st) 171846
    , ¶ 35 (review of 600 reports requiring hundreds of
    hours deemed undue burden).
    - 18 -
    No. 1-21-1194
    35      As to the third element, we conclude that CPD showed that the burden on it outweighed
    the public interest in the information requested at the time CPD denied plaintiffs’ requests. 5 ILCS
    140/3(g) (West 2020). We have no doubt that the public has a significant interest in information
    related to this or any officer-involved shooting. However, we reject plaintiffs’ contention that CPD
    failed to show that this interest was outweighed by its burden to respond where CPD established:
    (1) CPD had no more than 10 business days to respond to the request and plaintiffs did not respond
    to offers to extend that time further, (2) a response would require reviewing over 30,000 records
    requiring more than 1,200 hours of work and plaintiffs did not respond to efforts to confer about
    the scope of their requests, and (3) CPD did not foreclose the possibility of providing some of this
    records in the future in response to modified or limited requests, but only denied plaintiffs requests
    “at this time.”
    36      Ultimately, considering the compressed timeline and the specific facts of this case, we
    conclude that CPD met its burden to prove that the requested records fell within the exemptions
    contained in section 3(g) of FOIA at the time it responded to plaintiffs’ requests a mere 17 days
    after the shooting. The uncontradicted correspondence and affidavits provided below were not
    conclusory, vague, or sweeping, nor were they comprised of a mere recitation of statutory
    standards. Rather, the circuit court was provided uncontradicted documents and affidavits
    providing reasonably sufficient detail to allow for adequate adversary testing, and those affidavits
    provided “some objective indicia that the exemption is applicable under the circumstances.”
    (Emphasis in original.) Illinois Education Ass’n, 
    204 Ill. 2d at 470-71
    . As such, summary judgment
    was appropriate because the affidavits showed with reasonable specificity why the records fell
    within the claimed exemptions. 
    Id.
    37      For the foregoing reasons, the judgment of the circuit court is affirmed.
    - 19 -
    No. 1-21-1194
    38    Affirmed.
    - 20 -
    

Document Info

Docket Number: 1-21-1312

Citation Numbers: 2022 IL App (1st) 211312-U

Filed Date: 6/9/2022

Precedential Status: Non-Precedential

Modified Date: 6/9/2022