Dumke v. The City of Chicago ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Dumke v. City of Chicago, 2013 IL App (1st) 121668Appellate Court MICHAEL DUMKE, Plaintiff-Appellant, v. THE CITY OF CHICAGO,
Caption a Municipal Corporation, Defendant-Appellee.
District & No. First District, Third Division
Docket No. 1-12-1668
Filed June 28, 2013
Held In an action seeking the disclosure of a consultant’s report prepared for
(Note: This syllabus defendant city’s police department, the trial court erred in holding that
constitutes no part of only the superintendent of the police department, not the mayor, could
the opinion of the court waive the disclosure exemption under section 7(1)(f) of the Freedom of
but has been prepared Information Act, and the entry of summary judgment for the city was
by the Reporter of reversed and summary judgment was entered for plaintiff pursuant to
Decisions for the Supreme Court Rule 366 on the ground that defendant’s mayor waived
convenience of the the exemption from disclosure by publicly citing and identifying the
reader.)
report in a press conference and press release; furthermore, the mayor’s
citation to the entire report precluded a need for an in camera review to
determine whether any part of the report should be withheld.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CH-13550; the
Review Hon. Franklin U. Valderrama, Judge, presiding.
Judgment Reversed.
Counsel on John S. Elson, of Northwestern University Legal Clinic, of Chicago, for
Appeal appellant.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant
Corporation Counsel, of counsel), for appellee.
Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Neville and Justice Sterba concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff appeals from an order granting defendant City of Chicago’s (the City) motion
for summary judgment and denying his cross-motion for summary judgment. Plaintiff argues:
(1) the trial court improperly held that where two public bodies possess a requested public
record, the head of only one of the public bodies can waive the disclosure exemption under
section 7(1)(f) of the Freedom of Information Act (FOIA or the Act) (5 ILCS 140/7(1)(f)
(West 2010)); (2) this court should grant summary judgment on plaintiff’s claim that Mayor
Richard Daley publicly cited and identified the consultant’s report, thereby waiving the
exemption from disclosure under section 7(1)(f) of FOIA. For the following reasons, we
reverse the judgment of the trial court and grant summary judgment in favor of plaintiff.
¶2 BACKGROUND
¶3 On August 4, 2010, plaintiff submitted a FOIA request to the Chicago police department
seeking all records “generated by [t]he 2009 study/assessment of Chicago Police Department
operations conducted by A.T. Kearney and Civic Consulting Alliance.” Plaintiff’s request
came as a result of a press conference held by then-Mayor Richard Daley, wherein Daley
discussed the city’s intent to reassign police officers from administrative duties to patrol
duty, in the attempt to fight crime on the city’s troubled streets. Mayor Daley explained that
the reassignments were the result of a management study requested by then-Chicago Police
Superintendent Weis and conducted by Civil Consulting Alliance and A.T. Kearney. The
police department responded that the request was unduly burdensome and denied the request.
¶4 Thereafter, on September 21, 2010, plaintiff narrowed his request to only “[a] copy of
the final report of assessment of Chicago Police Department operations conducted by A.T.
Kearney and Civic Consulting Alliance” (the report). On September 28, 2010, the police
department notified plaintiff and the Illinois Attorney General’s Public Access Counselor
that it intended to deny his request under section 7(1)(f) of FOIA. 5 ILCS 140/7(1)(f) (West
2010). This decision was later affirmed by the Illinois Attorney General’s Public Access
Counselor.
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¶5 On April 11, 2011, plaintiff filed a complaint against the City of Chicago, Mayor Daley
and two Chicago police department FOIA officers for declaratory and injunctive relief
seeking the release of various records. Counts I and II of plaintiff’s complaint sought to
enforce FOIA requests unrelated to the report in this case and were settled by agreement.
Relevant to this appeal is plaintiff’s count III, wherein he alleged that the city violated FOIA
by its refusal to produce the report. In addition, plaintiff alleged that his request was not
exempt from disclosure under section 7(1)(f) because he sought a public record or portions
thereof which were publicly cited and identified by the mayor and/or because the requested
report was final with respect to the police department’s operational changes that were based
on the recommendations of the report.
¶6 Both sides moved for summary judgment. Plaintiff argued that Mayor Daley waived the
exemption in section 7(1)(f) when he discussed the report at the press conference. In
opposition, defendant argued that because plaintiff had directed his FOIA request for the
report to the police department, the police department was responsible for providing the
report, not the mayor’s office. Therefore, because the superintendent of police is the head of
the police department he, and not Mayor Daley, was the head of the public body whom FOIA
exclusively authorized to waive the section 7(1)(f) exemption from disclosure. The city also
argued that even if Mayor Daley were authorized to waive the exemption, he did not do so
when he discussed the report at the press conference.
¶7 After considering the parties’ memoranda in support of their cross-motions for summary
judgment, the trial court granted the city’s motion for summary judgment as to count III of
the plaintiff’s complaint and denied plaintiff’s cross-motion for summary judgment seeking
disclosure of the report. The court ruled that even if Mayor Daley publicly cited the report,
he was not empowered to waive the exemption by publicly citing the report because the
police superintendent, and not the mayor, was the head of the Chicago police department and
FOIA’s language allowed only one head of a public body to waive the exemption. Because
the court found that Mayor Daley was not the “head of the public body” empowered to waive
the exemption for the report, it did not reach the other contested issue on summary judgment
of whether the mayor’s statements about the report at the press conference were sufficient
to be deemed public citation and identification of the report.
¶8 ANALYSIS
¶9 Plaintiff argues that this court should grant summary judgment on his claim because
Mayor Daley publicly cited and identified the report, thereby waiving the exemption from
disclosure found in section 7(1)(f) of FOIA. The City is foregoing its argument in this court
that the superintendent of the police department is the “head of the public body” within the
meaning of section 7(1)(f) and only the superintendent, and not the mayor or any other
official, could waive the exemption. Despite the fact that plaintiff raises several claims here,
the City asserts that the sole issue is whether Mayor Daley waived the exemption in section
7(1)(f) of FOIA. We believe this issue is dispositive.
¶ 10 However, because this issue may arise in the future, we want to address the trial court’s
finding that because the FOIA request was directed at the police department “only one person
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may be the ‘head of the public body’ and therefore, have the ability to waive the § 7(1)(f)
exemption.” As later discussed, section 7(1)(f) exempts from disclosure predecisional
records unless they are publicly cited and identified by the “head of the public body.” 5 ILCS
140/7(1)(f) (West 2010). The Act defines “public body,” to include “all legislative,
executive, administrative, or advisory bodies of the State, *** counties, townships, cities,
*** and all other municipal corporations *** [and] any subsidiary bodies of any of the
foregoing.” 5 ILCS 140/2(a) (West 2010). “ ‘Head of the public body’ means the president,
mayor, chairman, presiding officer, director, superintendent, manager, supervisor or
individual otherwise holding primary executive and administrative authority for the public
body, or such person’s duly authorized designee.” 5 ILCS 140/2(e) (West 2010). While we
agree with the trial court that the police department is a public body (Board of Regents of the
Regency University System v. Reynard, 292 Ill. App. 3d 968, 978 (1997) (under FOIA, a
subsidiary public body is itself a public body for purposes of complying with the
requirements of the statute)), that its superintendent is its chief executive officer1 and that
only one person can be the head of a public body, we disagree with the conclusion that only
the police superintendent could waive the applicable exemption for the report. It is
undisputed that the City of Chicago is a public body that was in possession of the report and
that Richard Daley was mayor and chief executive officer2 of the City when he referred to
the report in the press conference. Even though plaintiff directed his FOIA request at the
police department, based on information he received from the city’s website instructing him
to make this FOIA request to that department, the trial court erred when it found that the
superintendent of police was the only public officer that possessed the report and had the
duty to disclose it. The trial court gave too narrow an application of the word
“superintendent” used in section 2(e). Clearly, in enacting the Act the legislature could not
include every title that might exist for the thousands of positions in government subject to
the statute and to accommodate this fact it used the term “or such person’s duly authorized
designee.” 5 ILCS 140/2(e) (West 2010). Because the mayor, as the chief executive officer
of the City of Chicago is, by definition, the head of the public body at issue and he used,
received, and possessed the report, the trial court erred when it found that the mayor could
not waive the exemption from disclosure by citing and identifying the report. 5 ILCS
140/2(c) (West 2010) (Documents that are subject to disclosure under FOIA are those
“having been or being used by, received by, in the possession of, or under the control of any
public body.”). Accordingly, we hold that the trial court erred when it granted summary
judgment in favor of the City on the ground that the mayor was not the head of the public
1
“The superintendent of police shall be the chief executive officer of the police department.
He shall be appointed by the mayor upon recommendation of the police board and with the advice
and consent of the city counsel and shall serve at the pleasure of the mayor.” Chicago Municipal
Code § 2-84-040 (amended June 5, 1987).
2
“The Mayor of Chicago, the city’s chief executive officer, directs city departments and
appoints department heads, with the advice and consent of the city council.”
http://www.cityofchicago.org/city/en/depts.html.
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body that was responsible under FOIA for tendering the report.
¶ 11 We now turn to the core of plaintiff’s claim. Plaintiff requests summary judgment in his
favor finding the report lost its exemption from disclosure based on the statements of the
mayor during a press conference dealing with police deployment in response to mounting
violence in certain areas of the City. Not surprisingly, the City opposes this request.
Summary judgment is appropriate 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 a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2010). The parties here filed cross-motions for summary judgment, and agree that no
genuine issue of material facts exists because the City has abandoned the position it
advanced in the trial court that only the superintendent of police, as head of the police
department, could waive the section 7(1)(f) exemption. The parties invite this court to decide
the issues presented as questions of law. Allen v. Meyer, 14 Ill. 2d 284, 292 (1958). We
review the trial court’s summary judgment ruling under a de novo standard of review.
American Service Insurance Co. v. Jones, 401 Ill. App. 3d 504, 520 (2010). This court has
the authority to grant summary judgment based on the record before us. See Ill. S. Ct. R.
366(a)(5) (eff. Feb. 1, 1994) (this court has the power to make any further order or grant any
relief that “the case may require”); Casolari v. Pipkins, 253 Ill. App. 3d 265, 269 (1983).
¶ 12 The purpose of FOIA is “to open governmental records to the light of public scrutiny.”
Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378
(1989). FOIA may not be used to violate individual privacy rights or disrupt the proper work
of a governmental body beyond its responsibilities under the Act. 5 ILCS 140/1 (West 2008).
Unless a statutory exemption found in section 7 of FOIA applies, a public body must comply
with a valid request for information. Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009).
¶ 13 The City claims that section 7(1)(f) exempts the requested report from disclosure. Section
7(1)(f) states as follows:
“(1) *** [T]he following shall be exempt from inspection and copying:
***
(f) Preliminary drafts, notes, recommendations, memoranda and other records in
which opinions are expressed, or policies or actions are formulated, except that a
specific record or relevant portion of a record shall not be exempt when the record
is publicly cited and identified by the head of the public body.” 5 ILCS140/7(1)(f)
(West 2010).
¶ 14 The Act was patterned after the federal Freedom of Information Act (5 U.S.C. § 552(2000)). Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1012 (1994). Section
7(1)(f) of the Act is the equivalent of the “deliberative process” exemption found in section
552(b)(5) of the federal Freedom of Information Act, which exempts from disclosure
interagency and intra-agency predecisional and deliberative material. See 5 U.S.C.
§ 552(b)(5) (2000). The federal deliberative-process exception:
“typically does not justify the withholding of purely factual material [citation], nor of
documents reflecting an agency’s final policy decisions [citation], but it does apply to
predecisional policy discussions [citation], and to factual matters inextricably intertwined
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with such discussions [citation]. Thus, in order to qualify for the privilege, a document
must be both predecisional in the sense that it is ‘actually [a]ntecedent to the adoption
of an agency policy,’ and deliberative in the sense that it is ‘actually *** related to the
process by which policies are formulated.’ ” Enviro Tech International, Inc. v. United
States Environmental Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004).
¶ 15 In short, the deliberative-process privilege exemption of the federal statute is intended
to protect the communications process and encourage frank and open discussion among
agency employees before a final decision is made. National Labor Relations Board v. Sears,
Roebuck & Co., 421 U.S. 132 (1975). Our supreme court has found that section 7(1)(f)
mirrors the purpose of the federal deliberative-process exception and has explained, “[t]he
existence of an FOIA exemption for predecisional materials is evidence of a public policy
favoring the confidentiality of such communications.” People ex rel. Birkett v. City of
Chicago, 184 Ill. 2d 521, 528-29 (1998) (refused to recognize such deliberative-process
privilege, but only after recognizing that the exemption under FOIA did exist). However,
there is a definite distinction between the deliberative-process privilege exemption of the
federal statute and our section 7(1)(f). The deliberative-process privilege exemption of the
federal statute requires disclosure of predecisional material once it has been adopted or
incorporated by an agency. National Labor Relations Board v. Sears, Roebuck & Co., 421
U.S. at 161. Illinois has no such limitation dealing with whether the communication was
incorporated in the final decision. Thus, if the communication, record or portion thereof is
“publicly cited and identified,” it loses its exemption regardless of whether the
communication was adopted or incorporated by an agency.
¶ 16 Putting aside whether the exemption has been waived by Mayor Daley’s statements
during his press conference, the parties agree that the report is exempt under section 7(1)(f)
and would not be subject to release. The parties do not agree on whether Mayor Daley’s
comments at the press conference waived the exemption. “Any public body that asserts that
a record is exempt from disclosure has the burden of proving that it is exempt by clear and
convincing evidence.” 5 ILCS 140/11(f) (West 2010). “Where, as here, the requesting party
challenges the public body’s denial of a FOIA request, the public body must demonstrate that
the records requested fall within the claimed exception.” Stern v. Wheaton-Warrenville
Community Unit School District 200, 233 Ill. 2d 396, 406 (2009).
¶ 17 Here, plaintiff claims that Mayor Daley waived the exemption found in section 7(1)(f)
of FOIA because he publicly cited and identified the report. The City argues that even though
Mayor Daley referenced the report in his press release, this was not public citation and
identification of the report for purposes of waiving the exemption under section 7(1)(f).
Rather, the City argues that the mayor only made general and vague references to the report
that do not fall within the scope of the term “publicly cite and identify.” The parties disagree
on what conduct constitutes public citation and identification.
¶ 18 Section 7(1)(f) does not provide any guidance on how much or how little needs to be said
or done to constitute an effective waiver. The parties have not advanced or presented any
legislative history or citation to any legal authority, nor has our research found any, that
assists us in determining what minimum conduct amounts to public citation and
identification. However, the parties provide different definitions and interpretation of the
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terms, thereby questioning the clarity of section 7(1)(f).
¶ 19 When we interpret a statute, the primary goal is to ascertain and give effect to the intent
of the legislature. Illinois Department of Healthcare & Family Services v. Warner, 227 Ill.
2d 223, 229 (2008).
“The process of statutory interpretation is firmly established. The goal is to ascertain
and give effect to the intent of the legislature. The simplest and surest means of
effectuating this goal is to read the statutory language itself and give the words their plain
and ordinary meaning. [Citation.] However, it is not sufficient to read a portion of the
statute in isolation. We must, instead, read the statute in its entirety, keeping in mind the
subject it addresses and the legislature’s apparent objective in enacting it. [Citation.]
Where the language of the statute is clear and unambiguous, we must apply it as written,
without resort to other tools of statutory construction. [Citation.] Generally, the language
of a statute is considered ambiguous when it is capable of being understood by
reasonably well-informed persons in two or more different senses.” MD Electrical
Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 287-88 (2008).
¶ 20 We find no ambiguity in section 7(f)(1). Both “cite” and “identify” have a plain and
ordinary meaning, as well as a common understanding. “Cite” is defined as, “[t]o mention
or bring forward as support, illustration, or proof.” American Heritage Dictionary of the
English Language (4th ed. 2009). “Identify” means to “1 a: to cause to be or become
identical b: to conceive as united (as in spirit, outlook, or principle) 2 a: to establish the identity of b: to determine the taxonomic
position of (a biological specimen) establish the identity of: show or prove the sameness of.”
Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/identify
(last visited June 11, 2013).
¶ 21 Using these definitions are our guide, we must determine whether Mayor Daley’s
references to the report can be construed as public citation to and identification of the report
so that it is no longer exempt under section 7(1)(f). During the June 2, 2010, press
conference, the mayor stated,
“It’s an everyday fight. But as a city, we’re committed to combat the gang and drug
thugs who terrorize our communities, use guns to intimidate and murder unfortunately
our citizens. The Chicago Police Department continues to revise its strategies across the
city to assure they are–they are best targeting their resources, especially in those
neighborhoods most at risk of gun and gang violence. That’s why we’ve worked to pull
out as many officers as possible from behind desks onto street duty.
Today I want to announce that by mid July, 130 more police officers will be on
streets keeping our city safe. 44 of these officers will be reassigned from administrative
duties in the department to help fight crime on some of the most troubled streets. These
assignments–reassignments are the result of a management study requested by
Superintendent Weis earlier this year. The report offers many findings and ways that the
department will improve its management. That is the key.
The 44 officers being announced today for reassignment include 33 from
administrative positions. 11 detectives from the department’s–police department’s arson
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unit who will go back to work on the criminal investigations in the area level.
In addition, within the last year, we have brought in the class of 86 police recruits
who are graduating from the police academy on July 14 beginning patrolling on streets
and transit system [sic]. Federal economic stimulus funds will pay for these officers for
3 years. Last July, as a result of a separate review of staffing at the district level, we
reassigned 168 officers from throughout the department to patrolling our streets.
The bottom line is that we have an additional 298 more police officers street duty
[sic] since the last July than were planned. These aren’t huge numbers, but every
ma–officer matters.
***
The latest officers we–are assigned to some of the most troubled neighborhoods in
our city and beats, a step that reinforced our commitment to do all we can to our [sic]
protect our people. These steps are forward-looking ideas that will produce–both protect
taxpayers because we’re better using existing resources, as well as better protect our
neighborhoods. It’s the kind of thinking we must employ during these very tough
financial times. When city revenues remain slow, doing more for less is more important
than ever.
The study of police administration staffing began in 2010 and was carried out with
the pro bono assistance of the Civic Consulting Alliance, Ryan Faye. She’s done a
tremendous job. The consultant firm is McKinsey and Company. A.T. Kearney also
helped various parts of the review. And I want to personally thank them. I want to thank
them for their hard work and their commitment to making Chicago a safer community.
It cost the city no money. They all volunteered.
As I said many times before, ending violence must be Chicago’s crusade. Each of us
must do our part, parents, community, and our schools. The police cannot do it alone. In
the meantime, we must remain creative and deliver on our commitment to better manage
government and do more with less and keep our city as safe and secure as it can be. The
steps I’ve announced today do exactly that. Thank you.”
The video of the press conference was placed on Mayor Daley’s YouTube page.
http://www.youtube.com/watch.
¶ 22 In addition, a summary of the press conference was prepared and published in a written
press release dated June 2, 2010. The written press release gave an abridged version of the
city’s plan to reassign police officers to better combat street violence. Among other things,
the press release stated that, “Mayor Richard M. Daley said today that by mid-July 130 more
Chicago police officers will be assigned to street duty as a result of a management review of
the Chicago Police Department Administrative operations, more efficient use of resources
and a newly-graduated class from the Chicago Police Academy.” The press release also
stated, “[t]he study of administrative staffing began early in 2010 and was carried out with
the pro-bono assistance of the Civic Consulting Alliance. The consulting firms of McKinsey
and Company and A.T. Kearney also helped with various parts of the review.”
¶ 23 Statutory construction does not allow for expansive interpretations not contemplated by
the legislature. In crafting section 7(1)(f), the legislature gave no guidance as to how much
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or how little citation was sufficient to waive the predecisional exemption. When we liberally
construe section 7(1)(f) as written, we find the mayor’s repeated references to the report in
the press conference satisfy both the definition of “cite” and “identify.” In doing so, we note
that all doubts are resolved in favor of disclosure. Southern Illinoisian v. Illinois Department
of Public Health, 218 Ill. 2d 390, 416-17 (2006).
¶ 24 The mayor cited and identified the report as a “management study requested by
Superintendent Weis earlier this year” and its purpose as “the study of police administration
staffing.” He cited the report and he identified it as support for his reorganization plan.
Specifically, he stated that Superintendent Weis requested the management study, and as a
result of the study, 130 more police officers would be on the streets keeping the city safe. Of
those 130 more officers, 44 would be reassigned from administrative duties and 86 police
recruits would be graduating from the police academy. The mayor identified the individuals
and businesses that conducted the study and issued the resulting report. He stated that “the
study of police administration staffing” began in 2010 and was conducted pro bono by the
Civic Consulting Alliance with the assistance of Ryan Faye. Mayor Daley also stated that
A.T. Kearney helped with various parts of the review. Mayor Daley not only identified the
study and the key players, but personally thanked them. The mayor also indicated that the
report “offers many findings and ways that the department will improve its management.”
There is no question that the mayor cited and identified the report in public given that it
occurred during a press conference that was later available on the mayor’s YouTube page,
a summary of which was released in printed form. In finding that the report was identified
within the meaning of FOIA, we note that when plaintiff made his request for the report, the
City knew exactly which report plaintiff was requesting and, further, in its answer to
plaintiff’s complaint it described the report as “a final report on the assessment of the
Chicago Police Department operations conducted by A.T. Kearney, Civic Consulting
Alliance, and McKinsey and Company is a public record.” Clearly, any notion the report was
not identified within the meaning of FOIA cannot be seriously entertained.
¶ 25 The City’s reliance on Harwood v. McDonough, 344 Ill. App. 3d 242 (2003), is
misplaced. In Harwood, the plaintiff made a request under FOIA with the Illinois
Department of Commerce and Community Affairs (DCCA) for a copy of a report prepared
by a consulting firm concerning the relocation of the Boeing Company’s headquarters to
Illinois and copies of all invoices concerning the cost to the state for the report. After plaintiff
received no response to his request, he sent an appeal letter. In response, the defendants
produced a copy of a one-page executive summary of the report, claiming that the rest of the
report was exempt from disclosure under sections 7(1)(f) and (g) of the Act and that the
DCCA had not yet received an invoice from the consulting firm. Id. at 244.
¶ 26 The plaintiff brought an action in the circuit court seeking an injunction against the
defendants prohibiting them from withholding the requested public records and seeking an
order for the production of the records. Id. The defendants answered by again claiming that
the report was exempt from disclosure under sections 7(1)(f) and (g) of the Act. Following
cross-motions for summary judgment, the circuit court denied the plaintiff’s motion for
summary judgment and granted the defendants’ motion for summary judgment. Id. at 244-45.
¶ 27 Among his arguments on appeal, the plaintiff asserted that section 7(1)(f) was
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inapplicable to the report because it was “publicly cited and identified” by the director of the
DCCA and then-Governor George Ryan. Id. at 248. The plaintiff pointed to comments made
by Governor Ryan in a radio address and by the director of DCCA at public hearings, plus
materials prepared for those hearings. This court rejected the plaintiff’s argument and found
that the plaintiff’s request for the report was exempt under section 7(1)(f) of FOIA. Id. We
reasoned that the director’s and Governor Ryan’s statements did not cite the study itself, but
cited information contained only in the executive summary, a document that was specifically
prepared for public release and was provided to the plaintiff. In addition, charts that were
prepared as part of the director’s presentation recapitulated all of the information contained
in the executive summary and did not cite the full study. Id. at 249.
¶ 28 Unlike Harwood, there was no separate document created for public release in this case.
Mayor Daley publicly cited and identified the consultants’ study and resulting report in the
press conference and press release. He mentioned and brought forward the report as support
for his reorganization plan. Not only did Mayor Daley cite and identify the report, he
acknowledged and commended its authors. A video of that press conference was put on the
mayor’s YouTube site. The legislature has not established a minimum threshold as to what
conduct satisfies citation or identification for purposes of section 7(1)(f). Absent any
authority to the contrary and in furtherance of the public policy to open governmental records
to the light of public scrutiny, we find the public statements made in this case satisfy the
“publicly cite and identify” threshold necessary to constitute a waiver of the section 7(1)(f)
exemption. Accordingly, we find that the mayor publicly cited and identified the report in
the press conference and in the press release, and we hold that he waived the exemption
under section 7(1)(f) of FOIA.
¶ 29 Lastly, the City argues that should this court find that the section 7(1)(f) exemption has
been waived, we should remand with instructions to conduct an in camera inspection of the
requested report to resolve what portions, if any, must be released. Indeed, FOIA provides
that the circuit court shall review the request for documents de novo and “shall conduct such
in camera examination of the requested records as it finds appropriate to determine if such
records or any part thereof may be withheld under any provision of this Act.” 5 ILCS
140/11(f) (West 2010); Southern Illinoisan v. Illinois Department of Public Health, 218 Ill.
2d 390, 418 (2006).
¶ 30 However, in camera review is not appropriate in this case because Mayor Daley cited the
entire report as the basis for the city’s decision to reassign police officers. In short, consistent
with the public policy underlying FOIA we find that the scope of disclosure should align with
the scope of public citation so that the entire report is subject to production.
¶ 31 Furthermore, the City is estopped from raising this argument on appeal. In the trial court
the City argued against an in camera inspection stating that the report could not be produced
in part as, “the facts contained in the report are so inextricably intertwined with opinions,
recommendations and conclusions that they simply cannot be segregated.” The doctrine of
judicial estoppel prohibits a party from assuming a position in a legal proceeding that is
contrary to a position it held in a prior legal proceeding. Bidani v. Lewis, 285 Ill. App. 3d
545, 550 (1996). We deny the City’s request to remand to the trial court for an in camera
inspection of the report.
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¶ 32 CONCLUSION
¶ 33 Based on the foregoing, we reverse the trial court’s ruling granting summary judgment
in favor of defendant on count III and, pursuant to our authority under Supreme Court Rule
366(a)(5), grant summary judgment on count III in favor of plaintiff. Ill. S. Ct. R. 366(a)(5)
(eff. Feb. 1, 1994).
¶ 34 Reversed.
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