Hosey v. The City of Joliet , 2019 IL App (3d) 180118 ( 2019 )

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Hosey v. City of Joliet, 2019 IL App (3d) 180118Appellate Court JOSEPH HOSEY, Plaintiff-Appellant, v. THE CITY OF JOLIET,
Caption Defendant-Appellee.
District & No. Third District
Docket No. 3-18-0118
Filed March 6, 2019
Decision Under Appeal from the Circuit Court of Will County, No. 17-MR-1334; the
Review Hon. John C. Anderson, Judge, presiding.
Judgment Affirmed.
Counsel on John V. Schrock, of Plainfield, for appellant.
Appeal
James W. Glasgow, State’s Attorney, of Joliet (Marie Quinlivan
Czech, Assistant State’s Attorney, of counsel), for appellee.
Panel JUSTICE McDADE delivered the judgment of the court, with
opinion.
Justices Lytton and Wright concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Joseph Hosey, submitted four Freedom of Information Act (FOIA) (5 ILCS 140/1
et seq. (West 2016)) requests to obtain videotaped police interviews of several individuals;
defendant, City of Joliet (City), denied the requests. The Illinois Attorney General was asked to
review the denials and determined that plaintiff was entitled to the videotapes. When the City
still failed to process his requests, plaintiff filed a complaint for injunctive relief in the circuit
court. Thereafter, both parties filed motions for summary judgment. The trial court granted
summary judgment in favor of the City and against Hosey, finding that (1) section 103-2.1(g)
of the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/103-2.1(g) (West
2016)) prohibits disclosure by the City in this case and (2) the City failed to establish its
defenses under FOIA that (a) the disclosure constituted an invasion of personal privacy and
(b) the disclosure was unduly burdensome. Plaintiff appealed. We affirm.
¶2 FACTS
¶3 On January 4, 2016, plaintiff Hosey, a reporter for the Joliet Patch, submitted four FOIA
requests to obtain the 2013 videotaped police interviews of murder suspects Alisa Massaro,
Adam Landerman, Bethany McKee, and Joshua Miner. Since the requests were made, this
court has filed decisions in People v. Miner, 2017 IL App (3d) 140897-U, People v. McKee,
2017 IL App (3d) 140881, and People v. Landerman, 2018 IL App (3d) 150684. Defendant
City denied Hosey’s request pursuant to section 7(1)(c), (1)(d)(i), and (1)(d)(iv) of FOIA (5
ILCS 140/7(1)(c), (1)(d)(i), (1)(d)(iv) (West 2016)), claiming unwarranted invasion of
personal privacy, interference with actual or pending law enforcement proceedings, and
disclosure of confidential source or information, respectively.
¶4 Hosey sought review by the Illinois Attorney General of the denials. That office
determined that Hosey was entitled to the videotapes listed in the FOIA request because the
City, in violation of section 9.5(c) of the FOIA (id. § 9.5(c)), failed to comply with the
Attorney General’s request for a copy of the recordings and a written explanation for asserting
the exemptions in denying Hosey’s FOIA request. The City never provided Hosey with the
videotaped police interviews.
¶5 Subsequently, Hosey filed a complaint for injunctive relief, attorney fees, and a civil
penalty for the denial of his FOIA request. The City filed an answer and affirmative defenses,
arguing that (1) responding to the request would be unduly burdensome to the City and
outweighs public interest in the records and (2) the disclosure would be an “unwarranted
invasion of personal privacy.” Thereafter, the parties filed cross motions for summary
judgment. The City argued that Hosey’s claims should be dismissed based on the two
affirmative defenses it had raised in its answer and also asserted for the first time that it was
exempted under section 7(1)(a) of the FOIA (id. § 7(1)(a)) from disclosing the videotapes
because their disclosure was prohibited by section 103-2.1(g) of the Criminal Code (725 ILCS
5/103-2.1(g) (West 2016)). In Hosey’s motion for summary judgment, he alleged that (1) the
City could not prove by clear and convincing evidence that his request should be denied in
accordance with the FOIA, (2) his request does not constitute an invasion of personal privacy,
and (3) the production of the videotapes would not be unduly burdensome because the
videotapes were previously produced during the suspects’ trial and the videotapes do not
require “extensive searching or reproduction.”
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¶6 The trial court granted summary judgment in favor of the City and against Hosey,
determining that (1) the City failed to show how disclosing the videotapes constituted an
invasion of personal privacy; (2) the City failed to establish that disclosing the videotapes
would be an undue burden; and (3) although there are contextual and policy arguments that
support Hosey’s rationale for disclosure, the plain language of section 103-2.1(g) of the
Criminal Code indicates that the word “accused” is not situational and that the videotapes are
exempt from public inspection because the defendants depicted in the videotapes were
“accused” at the time of the interrogation. Hosey appealed.
¶7 ANALYSIS
¶8 On appeal, Hosey challenges the trial court’s grant of the City’s summary judgment motion
on the basis that the requested videotapes were exempt under the Criminal Code from
inspection and production. Summary judgment should be granted if there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter of law. Morris v.
Margulis, 197 Ill. 2d 28, 35 (2001). Summary judgment can aid in the expeditious disposition
of a lawsuit, but it is a drastic measure and should be allowed only when the right of the
moving party is clear and free from doubt. Id. If the plaintiff fails to establish any element of
his claim, summary judgment is appropriate. Id. The standard of review for a motion for
summary judgment is de novo. Id.¶9 Under the FOIA, public records are presumed to be open and accessible. Southern
Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). “Based upon the
legislature’s clear expression of public policy and intent set forth in section 1 of the FOIA that
the purpose of that Act is to provide the public with easy access to government information,
*** the FOIA is to be accorded liberal construction to achieve this goal.” (Internal quotation
marks omitted.) Id. at 416. “[T]he exceptions to disclosure set forth in the FOIA are to be read
narrowly so as not to defeat the FOIA’s intended purpose.” Id. “[W]hen 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 section 7 of the [FOIA (5 ILCS 140/7 (West 1998))] applies.”
(Internal quotation marks omitted.) Id. at 417. If the denial is challenged in court, the public
body has the burden of proving that the records in question fall within the exemption it has
claimed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408
(1997). This court reviews de novo whether the denial is proper under the FOIA. Chicago
Tribune Co. v. Department of Financial & Professional Regulation, 2014 IL App (4th)
130427, ¶¶ 25-26.
¶ 10 First, Hosey argues that section 103-2.1(g) does not apply in this case because the word
“accused” within section 103-2.1(g) is defined as “one charged with an offense” and the
defendants were no longer “accused” when the FOIA request was made. Hosey claims that this
interpretation of section 103-2.1(g) is supported by the language in section 103-2.1(c) of the
Criminal Code (725 ILCS 5/103-2.1(c) (West 2016)) which states, “Every electronic recording
made under this Section must be preserved until such time as the defendant’s conviction for
any offense relating to the statement is final and all direct and habeas corpus appeals are
exhausted, or the prosecution of such offenses is barred by law.” Hosey claims that if this court
were to accept the City’s interpretation of section 103-2.1(g), it would cause an absurd and
unjust result because all recordings of custodial interrogations would be exempt from public
inspection. Citing Lieber, 176 Ill. 2d at 408, Hosey asserts that the City was required to give a
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written notice specifying the basis for the denial, and he concludes that the City has forfeited
this issue because it did not include the specific exemption on which it now relies in the denial
letter.
¶ 11 The City responds that, under Chicago Tribune Co., 2014 IL App (4th) 130427, ¶ 26, a
public body does not waive exemptions that are not claimed in the initial denial letter.
Furthermore, the City claims that the purpose of the Criminal Code to protect the rights of the
accused does not end once the defendant is convicted. Therefore, the City asserts that because
the videotapes were made during the custodial interrogations of persons who were criminally
accused at the time of their making, the plain language of section 103-2.1(g) exempts their
disclosure. The City alleges that if this court adopts Hosey’s interpretation, it would be reading
an exception into the statute that the legislature did not express. Also, the City alleges that
Hosey’s argument that the defendants are no longer “accused” fails because one of the
defendants, Landerman, still had a case pending before this court that might have been
remanded for a new trial.
¶ 12 As a preliminary matter, we address Hosey’s waiver argument. In Chicago Tribune Co.,
the Fourth District held that the defendant did not waive its claim that the trial court erred in
granting summary judgment when the defendant failed to assert all of its grounds in the initial
FOIA denial letter. Id. The court in that case relied on the ruling in Kopchar v. City of Chicago,
395 Ill. App. 3d 762, 770 (2009), in which the First District held that the defendant’s reliance
on additional exemptions in its summary judgment motion that were not referenced in the
FOIA denial letter were not waived. The ruling in Lieber that a party is required to list the
bases for its denial in a written letter does not contradict this established principle. Therefore,
we find that the City’s reliance on section 103-2.1(g) is not waived.
¶ 13 Turning to the parties’ arguments concerning the interpretation of section 103-2.1(g) and
its insulation from disclosure under the FOIA, we are guided by the principles of statutory
construction. Southern Illinoisan, 218 Ill. 2d at 415. The primary objective of this court when
construing the meaning of a statute is to ascertain and give effect to the intent of the legislature.
Id. In determining legislative intent, our inquiry begins with the plain language of the statute,
which is the most reliable indication of the legislature’s objectives in enacting a particular law.
Id. A fundamental principle of statutory construction is to view all provisions of a statutory
enactment as a whole. Id. In construing a statute, we presume that the legislature, in its
enactment of legislation, did not intend absurdity, inconvenience, or injustice. Id. A court may
not depart from the plain language of the statute and read into it exceptions, limitations, or
conditions that are not consistent with the express legislative intent. Hendricks v. Board of
Trustees of the Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14.
¶ 14 Section 7(1)(a) states that a request is exempt from inspection and copying when the
information is specifically prohibited from disclosure by federal and state law or rules and
regulations implementing federal and state law. 5 ILCS 140/7(1)(a) (West 2016). Section
103-2.1(g) states:
“Any electronic recording of any statement made by an accused during a custodial
interrogation that is compiled by any law enforcement agency as required by this
Section for the purposes of fulfilling the requirements of this Section shall be
confidential and exempt from public inspection and copying, as provided under
Section 7 of the Freedom of Information Act, and the information shall not be
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transmitted to anyone except as needed to comply with this Section.” 725 ILCS
5/103-2.1(g) (West 2016).
¶ 15 Based on the clear language of section 103-2.1(g), the Criminal Code prohibits the
transmission of any electronic recording of any statement made by an accused during a
custodial interrogation that is compiled by any law enforcement. See id. Here, the defendants,
who were accused at the time the police conducted a custodial interrogation, made videotaped
statements to the police that were compiled by the Joliet Police Department. To accept Hosey’s
interpretation that section 103-2.1(g) is no longer applicable when the defendants are no longer
accused would read into it an element that the legislature did not include—specifically that the
videotape loses its confidential and exempt status upon conviction or exoneration of the
accused. This leaves open the troubling possibility of the public disclosure of sensitive or
embarrassing personal information, particularly that of an innocent person, that would not
have been revealed but for the threat of prosecution of a crime. The right to so modify a statute
belongs to the legislature, not the courts. In addition, the City’s interpretation of the word
“accused” conforms to the Criminal Code’s purpose to “[p]rovide for the just determination of
every criminal proceeding by a fair and impartial trial and an adequate review.” (Emphases
added.) Id. § 101-1(d). The appeal of at least one of the defendants was still pending before this
court at the time this appeal was filed, and we have no knowledge that any of the defendants
have exhausted their rights to appeal. For both of these reasons, we find that the subjects of
Hosey’s requests are confidential under section 103-2.1(g) and, therefore, exempt from
disclosure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 2016)).
¶ 16 The City continues to argue in this appeal that the videotapes are exempt from disclosure
because they constitute a “clearly unwarranted invasion of personal privacy” under section
7(1)(c) of the FOIA (id. § 7(1)(c)) and that their production was excused as unduly
burdensome under section 3(g) of the FOIA (id. § 3(g)). The trial court ruled in favor of Hosey
on both of these claims. We decline to address either claimed exemption because our finding
on the Criminal Code’s prohibition against production of the videotaped statements is
dispositive of this case. See Woodard v. Krans, 234 Ill. App. 3d 690, 699 (1992) (a reviewing
court may affirm on any basis appearing in the record).
¶ 17 Finally, the City generally claims that the FOIA request is also exempt under section
7(1)(b), (1)(d)(iii), (1)(d)(iv), and (1)(d)(v). 5 ILCS 140/7(1)(b), (1)(d)(iii)-(v) (West 2016).
However, the City alleges that “[i]n order to determine to what extent these exemptions are
applicable to any portion of the videotaped interrogation, the City’s staff would have to review
88 hours of video and redact the exempt portions.” We reject the City’s argument as it is not
fully developed and the City failed to provide evidence to support its argument. Ill. S. Ct. R.
341(h)(7) (eff. Nov. 1, 2017) (“The appellant’s brief shall contain *** Argument, which shall
contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on.”).
¶ 18 CONCLUSION
¶ 19 The judgment of the circuit court of Will County finding that the videotaped statements at
issue in this appeal were exempted by section 103-2.1(g) of the Criminal Code (725 ILCS
5/103-2.1(g) (West 2016)) from public disclosure pursuant to a FOIA request is affirmed.
¶ 20 Affirmed.
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