Chicago Sun-Times v. Chicago Transit Authority ( 2021 )

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Appellate Court Date: 2022.12.13
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Chicago Sun-Times v. Chicago Transit Authority, 2021 IL App (1st) 192028Appellate Court CHICAGO SUN-TIMES, Plaintiff-Appellee, v. THE CHICAGO
Caption TRANSIT AUTHORITY and THE CHICAGO POLICE
DEPARTMENT, Defendants (The Chicago Transit Authority,
Defendant-Appellant).
District & No. First District, Fourth Division
No. 1-19-2028
Filed June 24, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 18-CH-1234; the
Review Hon. Anna Helen Demacopoulos, Judge, presiding.
Judgment Reversed in part and vacated in part; cause remanded.
Counsel on Karen G. Seimetz, Stephen L. Wood, and Irina Y. Dmitrieva, of
Appeal Chicago Transit Authority, of Chicago, for appellant.
Joshua Burday, Matthew Topic, and Merrick Wayne, of Loevy &
Loevy, of Chicago, for appellee.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Justice Martin concurred in the judgment and opinion.
Presiding Justice Gordon concurred in part and dissented in part.
OPINION
¶1 The plaintiff, the Chicago Sun-Times (Sun-Times), sued the defendants, the Chicago
Transit Authority (CTA) and the Chicago Police Department (CPD), seeking disclosure under
Illinois’s Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)) of
surveillance video of a subway platform that showed one customer pushing another customer
off the platform. The parties filed cross-motions for summary judgment, and the circuit court,
after conducting an in camera review of the video, granted summary judgment in favor of the
Sun-Times and against the CTA and CPD and ordered defendants to produce the video. The
circuit court stayed enforcement of this order pending this appeal.
¶2 On appeal, the CTA argues that the security-sensitive video footage was exempt from
disclosure under the provision concerning security measures in section 7(1)(v) of FOIA (id.
§ 7(1)(v)) because disclosure could reasonably be expected to jeopardize the effectiveness of
the CTA’s surveillance system.
¶3 For the reasons that follow, we reverse the circuit court’s grant of summary judgment in
favor of the Sun-Times and against the CTA and CPD; enter summary judgment in favor of
the CTA and CPD and against the Sun-Times; vacate the order requiring the disclosure of the
surveillance video footage; and remand this matter to the circuit court on the remaining issue
of attorney fees, costs, and civil penalties.
¶4 I. BACKGROUND
¶5 Shortly before midnight on August 1, 2017, an assailant pushed a CTA customer waiting
for a train off the platform and onto the tracks at the Washington Blue Line subway station.
With the help of other passengers, the customer climbed back onto the platform, and the
assailant ran off. Most of the incident was caught on three of the surveillance cameras installed
at that station’s rail platform. The CPD used the CTA’s surveillance footage to identify and
apprehend the assailant, who, on October 11, 2017, was charged with attempted murder.
¶6 On October 16, 2017, the Sun-Times filed a FOIA request with the CTA for “video
surveillance footage from the Blue Line platform at 19 N. Dearborn Aug. 1 at around 11:30
p.m. to 1 a.m., showing a passenger being pushed from the platform by another man, and falling
onto the tracks.”
¶7 On October 24, 2017, the CTA denied the request based on the security measures provision
of section 7(1)(v) of FOIA, which exempts from disclosure
“security measures *** that are designed to identify, prevent, or respond to potential
attacks upon a community’s population or systems, facilities, or installations, the
destruction or contamination of which would constitute a clear and present danger to
the health or safety of the community, but only to the extent that disclosure could
reasonably be expected to jeopardize the effectiveness of the measures.” Id.
The CTA explained that its rail station cameras are a security measure designed to identify and
respond to potential attacks on the CTA’s rail system and the “disclosure of this video footage
would reveal the position of the cameras installed in the CTA’s train station, the capabilities
of the cameras, the area captured by the cameras and the areas where the view of the cameras
cannot reach.” The CTA further explained that public disclosure of this information could
jeopardize the effectiveness of its security cameras because “individuals who are planning
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criminal activity will know exactly what areas they need to avoid in order to escape detection
by these cameras, and even more concerning, what areas are unmonitored and most vulnerable
to attacks.”
¶8 A few days later, the Sun-Times submitted a FOIA request to the CPD, seeking the same
surveillance video from the rail platform it sought from the CTA. On December 22, 2017, the
CPD denied the request, citing several FOIA exemptions, including section 7(1)(v).
¶9 On January 30, 2018, the Sun-Times filed its complaint for declaratory and injunctive relief
under FOIA against the CTA and CPD. Counts I and II of the complaint asserted claims for
willful violation of FOIA against the CTA and the CPD, respectively. In addition to the video
records, the Sun-Times also sought attorney fees and costs, as well as civil penalties against
both defendants.
¶ 10 Meanwhile, the State instituted criminal proceedings against the assailant. On June 8, 2018,
the criminal court entered a protective order governing discovery in that case. The protective
order enjoined the CTA and CPD from disclosing “any and all materials that may be relevant
to the defense or prosecution” of the assailant, including “all surveillance footage of the
Chicago Blue Line tracks located at 19 N. Dearborn, Chicago, Illinois on August 1, 2017 and
August 2, 2017.”
¶ 11 The parties brought the June 8, 2018, protective order to the attention of the circuit court
judge presiding over this FOIA action, which was then essentially put on hold while the State
pursued its criminal case. In January 2019—after the criminal proceedings were over and the
criminal court vacated its protective order—the proceedings in this FOIA action resumed.
¶ 12 The parties filed cross-motions for summary judgment. The CTA maintained that
surveillance video from its rail platforms was exempt from disclosure under FOIA’s section
7(1)(v) as “security measures,” the effectiveness of which could be jeopardized by public
disclosure. The CTA stated that, unlike cameras on board its trains and buses, the rail platform
cameras “are funded by the Department of Homeland Security specifically to prevent terrorism
on the mass transit system.” The rail platform cameras also could be used by law enforcement
personnel to view a live feed of events happening in real time. Accordingly, if an incident were
to occur on a subway platform, the Office of Emergency Management and Communications
and CTA security could be notified immediately to begin to view the video live and direct first
responders to that incident. However, if someone knew beforehand where to hide to avoid
being seen on these cameras, that person would be in the perfect position to attack the first
responders. Moreover, a well-known terrorist tactic involves luring first responders to the
scene of an emergency and then committing an attack on them. The CTA explained that, due
to these security concerns, it followed a uniform policy to not publicly disclose videos from
the cameras inside its rail stations.
¶ 13 In support of its motion, the CTA submitted three affidavits—the affidavits of its two FOIA
officers, Ashley Neuhauser and Brigett Bevan, and of a homeland security expert, Michael
Fagel, Ph.D.
¶ 14 In her affidavit, Neuhauser averred that the video footage at issue here came from three
separate CTA surveillance cameras located on the Washington Blue Line platform. The
footage showed “only paid, secure areas of the CTA platform and [did] not include any views
of a public right of way.”
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¶ 15 In her affidavit, Bevan averred that, due to security concerns, the CTA does not authorize
the public release of video footage from CTA’s rail facility cameras in the interior of its
stations, including the platform area.
¶ 16 Fagel, who works for a national consortium that trains state and local emergency
responders, averred that, in preparing his affidavit, he rode the CTA, viewed the surveillance
features on the platforms, and met with the CTA’s security department to discuss its
surveillance camera network. He also viewed the video footage at issue in this case. Based on
his expertise and additional research into terrorism on mass transit systems, Fagel stated that
terrorist organizations, including al Qaeda and the Islamic State, were willing to target mass
transit systems to achieve mass casualties. This included the strategy of derailing trains and
planting bombs in locations with little or no surveillance, no security perimeters to penetrate,
and few, if any, armed guards to respond. Fagel stated that, while surveillance cameras “have
some deterrent value when it comes to preventing terrorist attacks” on mass transit systems,
they play “an important role” in “identify[ing] attackers” and in “responding to terrorist plots.”
¶ 17 With respect to the CTA’s rail platform cameras, Fagel stated that they were designed as a
security measure to preserve critical infrastructure, and are used by CTA security personnel
and local law enforcement to identify and respond to attacks. Fagel stated that releasing the
videos would publicize currently unknown security information such as the cameras’
individual and collective fields of view and blind spots. He also stated that public disclosure
of this information “would minimize or bypass the benefits provided by the surveillance
cameras” by enabling potential attackers “to evade these security devices when targeting
passengers, planning attacks, or evading capture by law enforcement.”
¶ 18 In opposing the CTA’s arguments, the Sun-Times claimed that the CTA failed to prove by
clear and convincing evidence that its rail platform videos were exempt from public disclosure
under section 7(1)(v) of FOIA. In support of its motion, the Sun-Times submitted the affidavits
of Patrick Eddington, a Cato Institute research fellow, and David Bradford, a former police
officer and a director of Northwestern University’s public safety center. Neither Eddington nor
Bradford stated that they viewed the videos at issue in this case or ever visited the CTA’s
Washington Blue Line platform where the surveillance cameras were located.
¶ 19 In his affidavit, Eddington challenged Fagel’s assertion that video surveillance cameras in
mass transit systems provided any preventive or predictive security against any kind of assault
or attack. Eddington stated that viewing the camera videos was not the only way to identify
the cameras’ field of view and blind spots. Eddington stated that any member of the public
who can see surveillance cameras at CTA stations “can already determine with a reasonable
degree of certainty whether any CCTV camera blind spots exist and the extent and location of
those blind spots.” Additionally, Eddington stated that whether or not an individual camera has
blind spots could be determined by analyzing
“the camera’s field of view under factory settings; the placement of a given camera;
the kind of lense(s) on the camera (wide angle, fish eye, etc.); whether software
enhancement is used to improve the camera’s field of view, resolution, etc.; and
whether the camera in question is the sole source of video at the building or facility at
which it has been place[d].”
Eddington also contended that revealing the cameras’ blind spots would not endanger CTA
security because there was “no evidence of any terrorist plot stopped in advance through video
surveillance of a mass transit system.”
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¶ 20 Bradford also opined that viewing the video footage was not the only means to identify the
field of view and blind spots. Specifically, mathematical formulas would reveal the camera’s
field of view. Also, there was “the rule of thumb” that “if you cannot see the camera, the camera
cannot see you.” Bradford opined that the easiest way to commit a crime without being detected
would be to visit the facility and observe the location of the cameras and determine any blind
spots. Bradford also stated that viewing the video footage might not reveal the total maximum
area view available to the camera because that area view could be modified by the aperture
setting for the lens. Bradford opined that releasing the camera footage “would in no way
endanger CTA security” because, according to the CTA’s press releases, the CTA’s system
was saturated with cameras that recorded criminal activity no matter where it occurred.
¶ 21 In replying to the Sun-Times’ arguments, the CTA stated that the Sun-Times sought to hold
it to a higher standard of proof than the standard set forth in section 7(1)(v). In particular, the
CTA pointed out that section 7(1)(v) did not require it to show that its security measures could
actually prevent a terrorist attack—only that they were “designed to identify, prevent, or
respond to potential attacks.” The CTA also argued that section 7(1)(v) did not require it to
show that disclosure of the videos would actually threaten public safety but only that it could
reasonably be expected to jeopardize the effectiveness of the CTA’s safety measures.
¶ 22 On August 7, 2019, the court held a hearing on the parties’ cross-motions for summary
judgment. At the hearing, the CTA’s counsel stated that informing the public about
surveillance cameras on the CTA system served as a deterrent and people felt safer on the
system. But the CTA did not “go around saying well there are blind spots and here is where
they are” due to security concerns. Counsel further stated that the video revealed that the victim
of the attack was standing in a blind spot of all three cameras and could not be seen for a
significant amount of time. Accordingly, counsel argued that anybody who watched the video
would be able to immediately identify a hole in the CTA’s security network.
¶ 23 The CTA’s counsel also stated that the CTA’s concern went beyond the facts of this
particular case and was about the implications of the court’s ruling on future FOIA requests.
Specifically, if the court found that revealing the cameras’ blind spots was not a sufficient basis
to invoke section 7(1)(v), the CTA would not be able to deny similar FOIA requests in the
future, and “somebody who does wish to seek to attack a mass transit system *** can certainly
take advantage of that in planning their attacks or an attack on first responders.”
¶ 24 Although the court acknowledged the strength of the CTA’s argument regarding terrorist
groups accessing the surveillance video of mass transit systems, the court stated that the CTA
could not point to specific evidence that any terrorist attack was “a direct result of [surveillance
camera footage] being published.”
¶ 25 On August 14, 2019, the circuit court, after conducting an in camera review of the videos,
entered a written order denying the CTA’s and CPD’s summary judgment motions, granting
the Sun-Times’ summary judgment motion, and ordering the videos produced, with the faces
of the involved individuals blurred or redacted, within 14 days. The order also stated that this
ruling was specific to the facts of this case and was not binding on future FOIA requests to the
CTA and CPD.
¶ 26 According to the transcript of this proceeding, the court stated that although Fagel’s
affidavit generally stated that disclosure of the video footage would reveal the location of the
cameras and the blind spots that could subject the mass transit system to potential terrorist
attacks, his affidavit failed to specifically state that the disclosure was detrimental to such a
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degree that it jeopardized the effectiveness of the surveillance camera system. The court stated
that the location of the cameras was not easily detected from viewing the video footage at issue
here and anyone on the station platform could determine the location of the blind spots. The
court also stated that if the defendant in the criminal case had not pled guilty then the video
footage would have been played in open court. Accordingly, the court, applying the clear and
convincing evidence standard, concluded that the disclosure of the video footage “does not”
and “would not in any way jeopardize the effectiveness of the [security] measures or the safety
of the personnel who implement them or the public.”
¶ 27 On September 13, 2019, the circuit court entered an order pursuant to Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016), finding that there was no just reason to delay appeal of
the August 14, 2019, order and staying its enforcement. The CTA timely appealed.
¶ 28 II. ANALYSIS
¶ 29 This case arises from the disposition of cross-motions for summary judgment. Summary
judgment is proper when the pleadings, depositions, admissions, and affidavits show that there
is no genuine issue of material fact and that the moving party is entitled to judgment as a matter
of law. 735 ILCS 5/2-1005(c) (West 2016). Where the parties have filed cross-motions for
summary judgment, they have conceded that there are no genuine issues of material fact and
have agreed that only questions of law are involved. Nationwide Financial, LP v. Pobuda,
2014 IL 116717, ¶ 24. In such a situation, the parties request that the court decide the issues as
a matter of law. Id. We review de novo the trial court’s judgment on cross-motions for
summary judgment. Id.; see also Thomas v. Weatherguard Construction Co., 2015 IL App
(1st) 142785, ¶ 63 (under de novo review, the reviewing court performs the same analysis the
trial court would perform).
¶ 30 The CTA argues that it was entitled to summary judgment because it met its burden under
the plain language of FOIA’s section 7(1)(v) to show by clear and convincing evidence that
the surveillance camera footage at issue here was exempt from disclosure since its disclosure
could reasonably be expected to jeopardize the effectiveness of the CTA’s video surveillance
network by disclosing its vulnerabilities. Specifically, the footage revealed the areas captured
by the cameras, the clarity and resolution of the images, and most importantly the areas that
were beyond the cameras’ collective reach—their blind spots. The CTA argues that, in the
wrong hands, this security-compromising information could be used to plant explosive devices
and potentially result in mass casualties, jeopardize rescue personnel, and help criminals evade
detection and capture following a crime.
¶ 31 The CTA argues that the circuit court misconstrued and misapplied the law by requiring
the CTA to show by clear and convincing evidence that revealing the view of the three different
camera angles in this particular case would jeopardize the effectiveness of the surveillance
system and would result in a terrorist attack or other criminal act. The CTA argues that in the
aftermath of the September 11, 2001, terrorist attacks, the General Assembly crafted a much
more flexible standard, which imposed a relatively low burden on a government agency to
invoke the section 7(1)(v) exemption. The CTA contends that all an agency has to show is that
disclosure could reasonably be expected to jeopardize the effectiveness of its security
measures, i.e., a reasonable expectation that disclosing a record could risk undermining the
effectiveness of its security measures. According to the CTA, when the General Assembly
adopted the broad statutory language of section 7(1)(v), it made the policy choice that the need
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to ensure public safety and avoid mass casualties took precedence over the public’s right of
access to government records when releasing those records created a risk of making critical
infrastructure more vulnerable to potential attacks.
¶ 32 The Sun-Times argues that the circuit court conducted a careful review of the record and
an in camera review of the footage and properly concluded that any blind spots were easily
visible through observation at the station already and thus the footage was not exempt under
FOIA section 7(1)(v). The Sun-Times also argues that the expert evidence supported the circuit
court’s decision.
¶ 33 The central issue of this case is the interpretation of the exemption in section 7(1)(v) of
FOIA regarding the disclosure of security measures. Although the CTA also argues on appeal
that the trial court erroneously made a factual finding regarding the disclosure of blind spots
in the footage that was not supported by the evidence, we do not address that issue. As
discussed above, by raising cross-motions for summary judgment, the parties concede that
there is no genuine issue of material fact and agree that only questions of law are involved.
Moreover, our review of the trial court’s ruling is de novo, and the footage was available for
this court’s in camera review.
¶ 34 Contrary to the dissent’s analysis, there is no genuine issue of material fact precluding
summary judgment. As set forth in the parties’ evidence in support of their summary judgment
motions and the trial court’s in camera review, there is no dispute that a person on the subway
platform can see the locations of the security cameras and thereby get a general sense of the
cameras’ ability to record various areas. Regarding public disclosure of the video footage, the
CTA argues that a viewer would gain information regarding the quality and resolution of the
cameras, including more precise information regarding their blind spots. The Sun-Times
concedes that the footage reveals information regarding the cameras’ quality, clarity, and blind
spots but argues that this same information can be obtained from mathematical calculations or
information about the cameras’ factory settings. The trial court agreed that the footage revealed
information about the cameras’ locations and blind spots but thought that this information was
not easily discernable from the footage as compared to being very apparent to someone
standing on the subway platform.
¶ 35 When interpreting a statute, we must ascertain and give effect to the legislature’s
intent. Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 24. The best indication
of that intent is the language employed in the statute, given its plain and ordinary
meaning. Id. When the statute’s language is unambiguous, we may not depart from that
language by reading into it exceptions, limitations, or conditions unexpressed by the
legislature; likewise, we may not add provisions under the guise of interpretation. Id.Moreover, when the statute is unambiguous, we apply the statute without resort to other aids
of statutory construction. Palm v. Holocker, 2018 IL 123152, ¶ 21. If, however, the meaning
of the statute is unclear, we may consider the purpose behind the law and the evils the law was
intended to remedy. Id. We have an obligation to construe statutes in a manner that avoids
absurd, unreasonable, or unjust results that the legislature could not have intended. Id.¶ 36 The Illinois Supreme Court has stated that:
“FOIA expressly declares its underlying public policy and legislative intent.
Section 1 provides 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
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this Act. [Citation.] Section 1 explains 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. [Citation.] Consequently, 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. [Citation.]
Based on this clear expression of legislative intent, this court has held that public
records are presumed to be open and accessible. [Citation.] FOIA is to be liberally
construed to achieve the goal of providing the public with easy access to government
information. [Citation.] Consequently, FOIA’s exceptions to disclosure are to be
construed narrowly so as not to defeat the intended statutory purpose. [Citation.] Thus,
when a public body receives a proper request for information, it must comply with that
request unless one of FOIA’s narrow statutory exemptions applies.” (Internal quotation
marks omitted.) In re Appointment of Special Prosecutor, 2019 IL 122949, ¶¶ 24-25.
If a public body invokes a FOIA exemption, it “has the burden of proving that [the record] is
exempt by clear and convincing evidence.” 5 ILCS 140/11(f) (West 2016).
¶ 37 Section 7(1)(v) of FOIA provides that the following shall be exempt from inspection and
copying:
“(v) Vulnerability assessments, security measures, and response policies or plans
that are designed to identify, prevent, or respond to potential attacks upon a
community’s population or systems, facilities, or installations, the destruction or
contamination of which would constitute a clear and present danger to the health or
safety of the community, but only to the extent that disclosure could reasonably be
expected to jeopardize the effectiveness of the measures or the safety of the personnel
who implement them or the public. Information exempt under this item may include
such things as details pertaining to the mobilization or deployment of personnel or
equipment, to the operation of communication systems or protocols, or to tactical
operations.” (Emphasis added.) Id. § 7(1)(v).
Our research indicates that Illinois courts have not construed the language in section 7(1)(v) at
issue in this case. 1 However, the “General Assembly patterned FOIA after the federal FOIA”
and, thus, “Illinois courts often look to federal case law construing the federal FOIA for
guidance in construing FOIA.” In re Appointment of Special Prosecutor, 2019 IL 122949,
¶¶ 54-55.
¶ 38 The phrase “could reasonably be expected to” appears several times in section 7 of the
federal FOIA, which exempts from disclosure records compiled for law enforcement purposes
if their disclosure (1) “could reasonably be expected to interfere with enforcement
proceedings,” (2) “could reasonably be expected to constitute an unwarranted invasion of
personal privacy,” (3) “could reasonably be expected to disclose the identity of a confidential
1
In Lucy Parsons LABS v. City of Chicago Mayor’s Office, 2021 IL App (1st) 192073, ¶¶ 15-21,
where the city established that some parts of its requested action plan were exempt under the FOIA
exception applying to response plans, this court construed the phrase “but only to the extent that” in
section 7(1)(v) to require the city to redact the exempt information and produce the nonexempt
information even if the redactions left the requestor with nothing useful. This court’s construction in
Lucy of the “but only to the extent that” phrase is not pertinent to the issue raised in this case.
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source,” (4) would disclose techniques and procedures or guidelines “for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law,” or (5) “could reasonably be expected to endanger the life or
physical safety of any individual.” (Emphases added.) 5 U.S.C. § 552(b)(7) (2018). The phrase
“could reasonably be expected to” replaced the words “would” in section 7 of the federal FOIA
as a result of a legislative amendment in 1986. Freedom of Information Reform Act of 1986,
Pub. L. No. 99-570, § 1802, 100 Stat. 3207-48 (1986). Since then, federal courts consistently
construed this phrase as significantly easing the government’s burden to invoke the federal
FOIA exemptions.
¶ 39 In United States Department of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749, 771 (1989), the United States Supreme Court ruled that an FBI rap sheet was
exempt from disclosure as a law enforcement record that “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” (Emphasis and internal quotation
marks omitted.) The Court pointed out that the phrase “could reasonably be expected to
constitute” was “the product of a specific amendment” that established a “more flexible
standard.” Id. at 756, 756 n.9. Quoting legislative history, the Court stressed that “the move
from the ‘would constitute’ standard to the ‘could reasonably be expected to constitute’
standard represent[ed] a considered congressional effort ‘to ease considerably a Federal law
enforcement agency’s burden in invoking [Exemption 7].’ ” Id. at 756 n.9 (quoting 132 Cong.
Rec. 31424 (1986)).
¶ 40 Federal appellate courts have explained that the new standard “takes into account the ‘lack
of certainty in attempting to predict harm.’ ” Spannaus v. U.S. Department of Justice, 813 F.2d
1285, 1288 (4th Cir. 1987) (quoting S. Rep. No. 98-221, at 24 (1983)). Therefore, to invoke
section 7 exemptions, government agencies no longer needed to establish that release of a
particular document would actually result in tangible harm. See Solar Sources, Inc. v. United
States, 142 F.3d 1033, 1037 (7th Cir. 1998) (agency “need not establish that release of a
particular document would actually interfere with an enforcement proceeding” (emphasis
omitted)). Rather, an agency’s showing was “measured by a standard of reasonableness.”
Spannaus, 813 F.2d at 1288.
¶ 41 In Mayer Brown LLP v. Internal Revenue Service, 562 F.3d 1190 (D.C. Cir. 2009), the
court ruled that the settlement strategies of the Internal Revenue Service (IRS) were exempt as
law enforcement records, the disclosure of which “ ‘could reasonably be expected to risk
circumvention of the law.’ ” Id. at 1193 (citing 5 U.S.C. § 552(b)(7)(E)). The court
acknowledged that FOIA exemptions were construed narrowly, but stressed that “broad
language—even when construed narrowly—is still broad language.” Id. at 1194. The court
noted that the legislature had phrased the exemption in such broad terms that showing the
“[r]isk of circumvention [was] not required—only an expectation of such a risk. Moreover,
this expectation of a risk *** need not be undeniable or universal; the risk need only be
‘reasonably’ expected.” Furthermore, “the exemption [did] not force the IRS to show this
reasonably expected risk with certainty—only that disclosure ‘could reasonably be expected’
to create such a risk.” (Emphasis in original). Id. at 1193; accord Blackwell v. Federal Bureau
of Investigation, 646 F.3d 37, 42 (D.C. Cir. 2011) (amended language set a relatively low bar
for the agency to justify withholding; instead of meeting the highly specific burden to show
how the law would be circumvented, the agency only had to demonstrate logically how the
release of the requested information might create a risk of circumvention of the law).
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¶ 42 In Public Employees for Environmental Responsibility v. United States Section,
International Boundary & Water Comm’n, 740 F.3d 195 (D.C. Cir. 2014), the court ruled that
the government’s inundation maps were exempt as law enforcement records, the disclosure of
which “ ‘could reasonably be expected to endanger the life or physical safety of any
individual.’ ” Id. (quoting 5 U.S.C. § 552(b)(7)(F)). The court explained that information in
the maps could be used in planning potential terrorist attacks on two dams at the United
States/Mexico border. Id. at 206. In construing the very broad language of this exemption, the
court stated that it did
“not require concrete evidence in every case. The terms ‘could’ and ‘expected’ in
Exemption 7(F) evince congressional understanding of the many potential threats
posed by the release of sensitive agency information. An agency therefore need only
demonstrate that it reasonably estimated that sensitive information could be misused
for nefarious ends.” Id.
¶ 43 Like exemption 7 of the federal FOIA, exemption 7(1)(v) of the Illinois FOIA is worded
broadly and requires a government agency to demonstrate that release of a document “could
reasonably be expected to” jeopardize the effectiveness of its security measures—not that it
would jeopardize them. 5 ILCS 140/7(1)(v) (West 2016). The General Assembly knew the
difference between the use of the term could instead of would; it had used the word “would”
in other FOIA exemptions. See, e.g., id. § 7(1)(c), (d), (k), (u). Moreover, the General
Assembly adopted exemption 7(1)(v) in 2003, which was 17 years after Congress had replaced
the word “would” with the phrase “could reasonably be expected to” in section 7 of the federal
FOIA. Therefore, it is reasonable to assume that the General Assembly was aware that federal
courts consistently construed this amendment to provide for a more flexible, less onerous
standard to invoke a FOIA exemption.
¶ 44 Accordingly, we conclude that the very broad language of section 7(1)(v) of FOIA does
not require an agency to prove, by clear and convincing evidence, that releasing a particular
record would in fact diminish the effectiveness of its security measures. Rather, the agency
must meet the lesser burden to show that it could reasonably be expected that the release of the
record could jeopardize the effectiveness of the agency’s security measures. By making this
showing, the agency establishes by clear and convincing evidence that the particular record is
exempt from disclosure.
¶ 45 Our de novo review of the record indicates that the CTA met that burden. Section 7(1)(v)
did not require the CTA to prove with certainty that the disclosure of information regarding
the cameras’ blind spots would actually jeopardize its security measures. Rather, all that the
CTA had to show was that it reasonably estimated that making this information public could
risk making its security measures less effective.
¶ 46 The parties do not dispute that the CTA’s facilities are a part of the state’s critical
transportation infrastructure and their destruction or contamination would constitute a clear
and present danger to the health or safety of the riding public. Fagel, the CTA’s homeland
security expert, cited in his affidavit examples of terrorist attacks on mass transit systems, all
of which resulted in casualties within the community attacked. Specifically, Fagel cited (1) the
March 11, 2004, train bombing in Madrid, Spain, resulting in 191 fatalities and over 1500
injuries; (2) the July 7, 2005, train bombing in London, United Kingdom, resulting in 39
fatalities and 1000 injuries; (3) the 2010 Metro bombings in Moscow, Russia, resulting in 40
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fatalities and 102 injuries; and (4) the March 22, 2016, bombings at the Maalbeek metro station
in Brussels, Belgium, resulting in 16 fatalities and more than 100 injuries.
¶ 47 Although the Sun-Times’ experts asserted that there was no evidence that a mass transit
system’s video surveillance ever prevented any terrorist plot or any kind of assault or attack,
that was not the CTA’s burden under section 7(1)(v), which also applies to security measures
designed to identify or respond to potential attacks. Moreover, the plain language of section
7(1)(v) refers to “potential attacks,” not actual attacks.
¶ 48 The CTA showed that the surveillance camera network inside its rail stations was
“designed to identify, prevent, or respond to potential attacks” on its transit facilities.
Specifically, the CTA explained that it began installing surveillance cameras inside its rail
stations in 2002, in the aftermath of the September 11, 2001, terrorist attacks. The project was
funded in part by the Department of Homeland Security through a grant program that was set
up to help protect the public and the nation’s critical transportation infrastructure against acts
of terrorism and other large-scale events. The CTA also explained that the surveillance cameras
inside its rail stations performed the dual functions of (1) recording video that can be retrieved
on demand and shared with law enforcement authorities to investigate a crime and
(2) providing live feeds to the CTA’s security department and local law enforcement, which
can be used to direct rescue personnel and provide real-time intelligence to responding law
enforcement personnel.
¶ 49 The CTA sufficiently demonstrated that disclosure of its surveillance camera footage from
the rail platform could reasonably be expected to jeopardize the effectiveness of its security
measures. The CTA’s expert, Fagel, who trains emergency responders, visited the CTA
stations, viewed the surveillance features on the platforms, and reviewed the videos at issue in
this case. He averred that the videos contained security information that was not currently
public. Specifically, the videos revealed the quality, resolution, field of view, and blind spots
of the CTA’s surveillance cameras, and that information could enable individuals to evade
these security devices when targeting passengers, planning attacks, or evading capture by law
enforcement.
¶ 50 Although the Sun-Times’ experts claimed that the easiest way to identify the cameras’
blind spots was to visit the rail platform and observe the location of the cameras, they did not
dispute the fact that viewing the cameras’ footage disclosed information regarding blind spots
and the quality of the recording. Moreover, the undisputed evidence established that simply
locating the cameras on the platform would not provide the public with information about the
type of lenses in these cameras or the aperture setting for the lenses at the time of recording,
which could be different from the factory settings. Moreover, observing the cameras from afar
would not provide information about their depth of field and the image’s clarity or whether
any software enhancements are used to improve the cameras’ visual output. The easiest way
to know precisely what areas the cameras capture, and at what resolution, would be to watch
the cameras’ visual output.
¶ 51 We conclude that the CTA met its burden under section 7(1)(v) to show that disclosing the
surveillance footage could reasonably be expected to jeopardize the effectiveness of its camera
surveillance system. Thus, the CTA established by clear and convincing evidence that the
surveillance footage was exempt from disclosure under FOIA.
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¶ 52 III. CONCLUSION
¶ 53 For the foregoing reasons, we reverse the circuit court’s judgment in favor of the Sun-
Times and against the CTA and CPD on the parties’ cross-motions for summary judgment;
enter summary judgment in favor of the CTA and CPD and against the Sun-Times; vacate the
order requiring the disclosure of the surveillance video footage; and remand this matter to the
circuit court on the remaining issue of attorney fees, costs, and civil penalties.
¶ 54 Reversed in part and vacated in part; cause remanded.
¶ 55 PRESIDING JUSTICE GORDON, concurring in part and dissenting in part:
¶ 56 I agree with the majority that the summary judgment order entered in favor of the plaintiff
Chicago Sun-Times must be reversed; however, my reasons differ from that of the majority,
so I must write separately. In this case, the trial judge made an in camera investigation of the
video that is the subject matter of this appeal and made factual determinations that a court
cannot do in deciding a case based on a summary judgment. The facts in this case are highly
disputed and thus cannot be decided on a motion for summary judgment. The majority instead
finds summary judgment in favor of defendant CTA, where again there are factual issues that
can only be decided by a trial on the merits.
¶ 57 Section 2-1005 of the Code of Civil Procedure (Code) permits a trial court to grant
summary judgment only “if 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.” 735 ILCS
5/2-1005(c) (West 2016). Summary judgment is a drastic measure that should be granted only
if the movant’s right to judgment, as a matter of law, is clear and free from doubt. A.M. Realty
Western L.L.C. v. MSMC Realty, L.L.C., 2016 IL App (1st) 151087, ¶ 85; Pekin Insurance Co.
v. Roszak/ADC, LLC, 402 Ill. App. 3d 1055, 1059 (2010); see also 735 ILCS 5/2-1005(c) (West
2016) (summary judgment may be granted only if “the moving party is entitled to a judgment
as a matter of law”). In making this determination, the court must view the relevant documents
in the light most favorable to the nonmoving party. A.M. Realty, 2016 IL App (1st) 151087,
¶ 85; Pekin Insurance, 402 Ill. App. 3d at 1058-59.
¶ 58 A party moving for summary judgment bears the initial burden of proof. A.M. Realty, 2016
IL App (1st) 151087, ¶ 86; Erie Insurance Exchange v. Compeve Corp., 2015 IL App (1st)
142508, ¶ 15. The movant may meet its burden of proof either by affirmatively showing that
some element of the case must be resolved in its favor or by establishing the absence of
evidence to support the nonmovant’s case. A.M. Realty, 2016 IL App (1st) 151087, ¶ 86; Erie
Insurance, 2015 IL App (1st) 142508, ¶ 15. As for the nonmovant who is trying to withstand
a summary judgment motion, that party “ ‘ “need not prove [its] case at this preliminary stage
but must present some factual basis that would support [its] claim.” ’ ” A.M. Realty, 2016 IL
App (1st) 151087, ¶ 86 (quoting Schrager v. North Community Bank, 328 Ill. App. 3d 696,
708 (2002), quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)); see JPMorgan Chase Bank,
National Ass’n v. Jones, 2019 IL App (1st) 181909, ¶ 21.
¶ 59 On appeal, the CTA argues that the video is security-sensitive information exempt from
disclosure under the provision concerning security measures in section 7(1)(v) of FOIA (5
ILCS 140/7(1)(v) (West 2016)) because disclosure could reasonably be expected to jeopardize
the effectiveness of the CTA’s surveillance system. In support of its argument, the CTA
provided three affidavits, the most important affidavit came from a homeland security expert,
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Michael Fagel, Ph.D., who works for a national consortium that trains state and local
emergency responders who averred that releasing the videos would publicize currently
unknown security information such as the cameras’ individual and collective fields of view
and blind spots, which would enable potential attackers “to evade these security devices when
targeting passengers, planning attacks, or evading capture by law enforcement.”
¶ 60 In response to the CTA’s arguments, the Sun-Times submitted affidavits from Patrick
Eddington, a Cato Institute research fellow, and David Bradford, a former police officer and a
director of Northwestern University’s public safety center.
¶ 61 In his affidavit, Eddington challenged Fagel’s assertion that video surveillance cameras in
mass transit systems provide preventive or predictive security against any kind of assault or
attack. Eddington averred that viewing the camera videos was not the only way to identify the
cameras’ field of view and blind spots. Eddington averred that any member of the public who
can view surveillance cameras at CTA stations “can already determine with a reasonable
degree of certainty whether any CCTV camera blind spots exist and the extent and location of
those blind spots.” Additionally, Eddington averred that whether or not an individual camera
has blind spots could be determined by analyzing
“the camera’s field of view under factory settings; the placement of a given camera;
the kind of lense(s) on the camera (wide angle, fish eye, etc.); whether software
enhancement is used to improve the camera’s field of view, resolution, etc.; and
whether the camera in question is the sole source of video at the building or facility at
which it has been place[d].”
Eddington also contended that revealing the cameras’ blind spots would not endanger CTA
security because there was “no evidence of any terrorist plot stopped in advance through video
surveillance of a mass transit system.”
¶ 62 Bradford also opined that viewing the video footage was not the only means to identify the
field of view and blind spots. Specifically, mathematical formulas would reveal the camera’s
field of view. Also, there was “the rule of thumb” that “if you cannot see the camera, the camera
cannot see you.” Bradford opined that the easiest way to commit a crime without being detected
would be to visit the facility and observe the location of the cameras and determine any blind
spots. Bradford also opined that viewing the video footage might not reveal the total maximum
area view available to the camera because that area view could be modified by the aperture
setting for the lens. Bradford opined that releasing the camera footage “would in no way
endanger CTA security” because, according to the CTA’s press releases, the CTA’s system
was saturated with cameras that recorded criminal activity no matter where it occurred.
¶ 63 The trial court in the case at bar stated that the locations of the cameras were not easily
detected from viewing the video footage at issue here and anyone on the station platform could
determine the location of the blind spots. This was a determination of a factual issue that was
material in this case. The court also stated that if the defendant in the criminal case had not
pled guilty then the video footage would have been played in open court. Accordingly, the
court, applying the clear and convincing evidence standard, concluded that the disclosure of
the video footage “does not” and “would not in any way jeopardize the effectiveness of the
[security] measures or the safety of the personnel who implement them or the public.” As I
have stated, a factual determination that can only be made after a trial on the merits, not on a
motion for summary judgment.
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¶ 64 I agree with the majority that the very broad language of section 7(1)(v) of FOIA illustrates
that the CTA is required to prove, by clear and convincing evidence, that the release of the
video could reasonably be expected to jeopardize the effectiveness of the CTA’s security
measures in order for the video to be exempt from disclosure. Although the words “could
reasonably be expected to jeopardize” is a low standard, it cannot be met when there are
contested facts.
¶ 65 I find that one of the major issues for the trier of fact to determine in the case at bar is
whether someone on the station platform of the CTA can determine the location of the blind
spots that the cameras cannot view. This issue cannot be determined on a motion for summary
judgment because the affidavits show that a factual determination of this issue can only be
made from a trial on the merits. In addition, the type of lenses used in the cameras, the aperture
setting for the lenses at the time of the recording, the depth of field, the image’s clarity, and
whether any software enhancements are used to improve the camera’s visual output are all
issues that need to be determined before a court can make a finding that the release of the video
could reasonably jeopardize the effectiveness of the CTA’s security system.
¶ 66 As a result, I would deny each party’s motion for summary judgment and remand to the
trial court for a trial on the merits. After the factual issues have been decided, it is possible that
the court could find that all of the video would be exempt, none of the video would be exempt,
or only a portion of the video would be exempt.
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