Edgar County Watchdogs v. Will County Sheriff's Office

2022 IL App (3d) 210058Opinion filed November 30, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
EDGAR COUNTY WATCHDOGS, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellee, ) Will County, Illinois.
)
v. ) Appeal No. 3-21-0058
) Circuit No. 19-CH-1583
THE WILL COUNTY SHERIFF’S OFFICE, )
) Honorable John C. Anderson,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court, with opinion.
Justice McDade specially concurred in part and dissented in part, with opinion.
Justice Daugherity specially concurred in part and dissented in part, with opinion.
____________________________________________________________________________
OPINION
¶1 Plaintiff, Edgar County Watchdogs (ECW), brought a complaint against defendant, Will
County Sheriff’s Office (Sheriff’s Office), seeking equitable relief under the Freedom of
Information Act (FOIA or Act) (5 ILCS 140/1 et seq. (West 2018)). The parties filed cross-motions
for summary judgment. In relevant part, the court entered summary judgment in favor of ECW as
to its requests for disclosure of certain 911 recordings. The Sheriff’s Office appeals. It argues that
the trial court erred when it found that the 911 recordings were not exempt from disclosure.
Alternatively, the Sheriff’s Office contends that the trial court erred when it required the Sheriff’s
Office to either produce the records using computer software to mask the caller’s voice or create
a transcript of the calls. We affirm in part and reverse in part.
¶2 I. BACKGROUND
¶3 ECW filed two separate FOIA requests to the Sheriff’s Office, which are the subject of
this appeal. On August 7, 2019, ECW made its first request. ECW made its second request on
August 8, 2019. ECW ultimately filed a complaint in the circuit court challenging the Sheriff’s
Office’s response to its requests.
¶4 A. August 7, 2019, Request
¶5 On August 7, 2019, ECW submitted a FOIA request to the Sheriff’s Office requesting:
“1.Copy of any 911 calls or any call made for help/assistance from an
officer or police presence for wellness checks, disturbance or theft, at the
Wesley Rivals Township Park for June 1 through June 30, 2019 ***.
2. Copy of any 911 calls or any other call made for help/assistance
relating to anything at Rivals Park on August 6, 2019.
3. Copy of any reports, notes, statements, etc. relating to anything at
Wesley Township and/or Rivals Park for/on August 6, 2019.”
¶6 On August 13, 2019, the Sheriff’s Office granted the request in part and denied it in part.
The Sheriff’s Office provided activity reports and a police report. The Sheriff’s Office redacted
the majority of the victim statement in the police report. The Sheriff’s Office denied the request
for all 911 calls relating to anything at Wesley Rivals Township Park on August 6, 2019.
¶7 On August 13, 2019, ECW sent a letter to the Sheriff’s Office, narrowing its request to
only those 911 calls relating to seven specific incidents. Five of those incidents occurred in June
2019 and two occurred in August 2019. The Sheriff’s Office also denied that request.
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¶8 B. August 8, 2019, Request
¶9 On August 8, 2019, ECW submitted a separate request to the Sheriff’s Office seeking 911
calls or other calls, as well as reports, notes, and statements for the park or Wesley Township.
¶ 10 The Sheriff’s Office provided ECW with an “Address Activity Report” and a copy of the
incident report. The report included a redaction of the majority of the narrative section of the report.
The Sheriff’s Office denied ECW’s request for 911 calls in its entirety.
¶ 11 C. ECW Files Its Complaint
¶ 12 ECW filed a six-count complaint against the Sheriff’s Office, claiming it wrongfully denied
ECW’s requests for documents pursuant to the FOIA. ECW challenged the Sheriff’s Office’s
denial of its requests to produce the 911 calls and sought unredacted copies of the statements
included in the police reports produced by the Sheriff’s Office. The complaint included claims that
the Sheriff’s Office failed to conduct an adequate search and willfully and intentionally violated
the FOIA request. The complaint also sought attorney fees and costs.
¶ 13 The parties filed cross-motions for summary judgment. In relevant part, the Sheriff’s Office
argued that disclosure of the 911 audio recordings was exempt under the confidentiality provisions
of section 7(1)(d)(iv) of the FOIA (id. § 7(1)(d)(iv)). Specifically, the Sheriff’s Office claimed the
recordings were confidential statements made by individuals who file complaints with or provide
information to law enforcement. The calls could not be altered or redacted to protect the speaker’s
identity. According to the Sheriff’s Office, the content of the statement and the tonal qualities of
the speaker’s voice would reveal his or her identity. The Sheriff’s Office attached the affidavit of
Shannon Wahl, the Sheriff’s Office’s FOIA administrator. Wahl reviewed the requested records
and determined that the records were exempt because the recordings revealed the identity of the
callers. Wahl based her opinion on the fact that Wesley Township had a small population. The
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Sheriff’s Office also attached the affidavit of an employee of its information technology
department. The employee averred that the Sheriff’s Office did not have computer software
capable of masking the caller’s voice in the 911 recordings at the time of ECW’s request. However,
the Sheriff’s Office now had software capable of making the requested changes to the recordings.
¶ 14 The court performed an in camera review of the recordings. It entered a written order in
which it found “the substantive content of the material does not fall under FOIA exemptions for
material that is personal, private, or confidential.” However, the court accepted the Sheriff’s
Office’s argument that “the voice qualities are exempt” and determined that ECW was entitled to
either an altered audio recording (to hide the caller’s identity) or transcripts of the 911 calls. The
court also granted ECW’s motion for summary judgment and required the Sheriff’s Office to
provide ECW with unredacted versions of the victim statements contained in the written police
reports corresponding to the 911 calls. The Sheriff’s Office does not challenge that decision in this
appeal. The court, however, granted summary judgment in favor of the Sheriff’s Office as to the
claims of failure to conduct an adequate search and willful and intentional violation of the FOIA.
The court did not resolve ECW’s request for attorney fees, but it did allow ECW to file a petition
for fees.
¶ 15 The Sheriff’s Office appeals.
¶ 16 II. ANALYSIS
¶ 17 At the outset, we must consider our jurisdiction to consider this appeal. At oral arguments,
counsel for ECW noted that the order appealed from may not be final in light of the fact that its
request for attorney fees remains pending in the trial court. We find that we have jurisdiction
pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). The order appealed from
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compels the Sheriff’s Office to provide ECW with the requested 911 calls. The order is in the form
of an injunction and may be appealed under Rule 307(a)(1).
¶ 18 Turning to the merits, the Sheriff’s Office contends that the trial court erred in granting
summary judgment in favor of ECW as to the disclosure of the 911 recordings. Summary judgment
is appropriate when there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 48.
Normally, when parties file cross-motions for summary judgment, they agree that only a question
of law is involved and invite the court to decide the issues based on the record. Pielet v. Pielet,
2012 IL 112064, ¶ 28. We usually review de novo an order granting summary judgment. State
Farm Mutual Automobile Insurance Co. v. Progressive Northern Insurance Co., 2015 IL App (1st)
140447, ¶ 63. However, the circumstances here are unique in that the trial court performed an in
camera inspection of the recordings in question, considered the Sheriff’s Office’s affidavits, and
made a factual determination as to whether the recordings were exempt. Where the trial court
conducts an evidentiary hearing (like the in camera inspection here) and makes factual findings,
we review whether the trial court’s factual findings were against the manifest weight of the
evidence, while still reviewing questions of law de novo. See Hites v. Waubonsee Community
College, 2018 IL App (2d) 170617, ¶ 51. Therefore, we apply a mixed standard of review.
¶ 19 The Sheriff’s Office raises two alternative arguments on appeal. First, the Sheriff’s Office
contends that the 911 recordings (in any form) should be exempt from disclosure because the
content of the call reveals the caller’s identity. Alternatively, it argues that masking the audio or
creating a transcript of the recording constitutes the creation of a new record, which it is not
required to do under the Act. We discuss each argument in turn.
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¶ 20 The purpose of the Act is:
“that all persons are entitled to full and complete information regarding the
affairs of government and the official acts and policies of those who
represent them as public officials and public employees consistent with the
terms of this Act. Such 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.” 5 ILCS 140/1 (West 2018).
An individual who has been denied access to records may file an action in the circuit court for
injunctive or declaratory relief. Chicago Tribune Co. v. Department of Financial & Professional
Regulation, 2014 IL App (4th) 130427, ¶ 23 (citing 5 ILCS 140/11(a) (West 2010)). The public
body has the burden to prove, by clear and convincing evidence, that the requested records fall
within an exemption. 5 ILCS 140/11(f) (West 2018). This burden is met when the public agency
“ ‘provide[s] a detailed justification for its claim of exemption, addressing the requested
documents specifically and in a manner allowing for adequate adversary testing.’ ” (Emphasis
omitted.) Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003)
(quoting Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537 (1989)). Section 11(f) of the
Act (5 ILCS 140/11(f) (West 2018)) requires the circuit court to review the request for documents
de novo and conduct an in camera examination of the requested records as it finds appropriate to
determine if the records, or any part thereof, may be withheld under any provision of the Act.
Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 418 (2006).
¶ 21 Public records are presumed to be open and accessible under the Act, and section 3(a) of
the Act provides that a public body must comply with a request for such records unless one of the
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Act’s exemptions applies. Chicago Journeymen Plumbers’ Local Union 130, U.A. v. Department
of Public Health, 327 Ill. App. 3d 192, 195 (2001); 5 ILCS 140/3(a) (West 2018). “The exemptions
are set forth in section 7 of the Act [citation].” Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill. 2d 401, 408 (1997). If a public body denies a request and the requesting party
challenges the denial in the circuit court, “the public body has the burden of proving that the
records in question fall within the exemption it has claimed.” Id.¶ 22 In this case, the Sheriff’s Office claimed the 911 recordings were exempt under section
7(1)(d)(iv) of the Act. This section provides that records of the public body are exempt from FOIA
requests where they “unavoidably disclose the identity of *** persons who file complaints with or
provide information to administrative, investigative, law enforcement, or penal agencies.” 5 ILCS
140/7(1)(d)(iv) (West 2018). There is no question that the 911 calls in this case qualify as records
of persons who file complaints with or provide information to law enforcement agencies. However,
such records are exempt from disclosure only to the extent that disclosure would unavoidably
disclose the identity of the person who filed the complaint or provided the information to the
agency. The agency is required to disclose any record or part thereof that does not “unavoidably
disclose the identity” of the person who files complaints with or provides information to law
enforcement agencies. Id. The Act plainly attempts to strike a balance between disclosing “full and
complete information regarding the affairs of government” with protecting the privacy and identity
of the victims and witnesses who report crimes or other events to law enforcement. Id. § 1.
¶ 23 The trial court exercised its authority and performed an in camera inspection of the 911
recordings to determine whether disclosure was statutorily barred. The Act authorizes the trial
court to conduct an “in camera examination of the requested records *** to determine if such
records or any part thereof may be withheld under any provision of this Act.” (Emphasis added.)
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See id. § 11(f). An “in camera review is the most effective way for the public body to objectively
demonstrate that the exemption claimed does, in fact, apply.” National Ass’n of Criminal Defense
Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 (2010). Following its review, the
court concluded that the tonal qualities of the speaker were exempt given that the sound of the
caller’s voice may reveal their identity. However, the court concluded “the substantive content of
the material does not fall under FOIA exemptions for material that is personal, private, or
confidential.”
¶ 24 We cannot say the trial court’s decision was against the manifest weight of the evidence.
The 911 calls, which the trial court reviewed in camera, are not included in the record on appeal.
As a result, our ability to review the issue is rendered impossible, as we are unable to determine
whether the trial court’s finding that the recordings would not unavoidably disclose the caller’s
identity was against the manifest weight of the evidence. The appellant could have—but did not—
include the recordings in the record on appeal. An incomplete record must be construed against
the appellant where the lack of record hinders our review. Foutch v. O’Bryant, 99 Ill. 2d 389, 394
(1984). Consequently, we must defer to the trial court’s factual findings. Therefore, we cannot find
the trial court erred when it determined that the Sheriff’s Office failed to meet its burden in
establishing that the recordings were exempt from disclosure.
¶ 25 To the extent that the Sheriff’s Office suggests that this court should adopt a blanket rule
and find that all 911 recordings should be exempt regardless of the substantive content of the calls,
we disagree. 911 recordings are not automatically exempt from disclosure in their entirety. Those
calls are only exempt to the extent that the recordings would unavoidably disclose the identity of
the caller. 5 ILCS 140/7(1)(d)(iv) (West 2018). Not every statement in a 911 recording would
unavoidably disclose the caller’s identity. For example, date, time, and location of reported
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incidents are not exempted under section 7(1)(d)(iv). This information is not inherently unique. In
addition, the Sheriff’s Office attached an affidavit to its motion for summary judgment in which
the Sheriff’s Office averred that it possessed the technology needed to mask the tonal qualities of
the speaker’s voice to avoid disclosure of the caller’s identity. Therefore, we decline the Sheriff’s
Office’s invitation to adopt a blanket rule exempting all 911 recordings from disclosure under the
Act.
¶ 26 Next, the Sheriff’s Office contends that the trial court erred when it ordered the Sheriff’s
Office to provide ECW with either an altered recording disguising the caller’s voice or to produce
a transcript of the recordings. The Sheriff’s Office contends that this constitutes the creation of a
new record, which it is not required to do under the FOIA. This is a question of law, which we
review de novo. Nelson v. Kendall County, 2014 IL 116303, ¶ 22.
¶ 27 FOIA does not require a public body to create a new record. However, deleting information
from a record does not create a new record, even if all but one or two items of information have
been deleted. Family Life League v. Department of Public Aid, 112 Ill. 2d 449, 457-58 (1986).
Similarly, scrambling a record does not lead to the creation of a new record. Bowie v. Evanston
Community Consolidated School District No. 65, 128 Ill. 2d 373, 382 (1989).
¶ 28 We find that the Sheriff’s Office is not being asked to prepare a new record by using
computer software to mask the voice of the caller in the recordings. The Sheriff’s Office is only
being asked to modify the original record in its possession. This is no different than requiring a
public body to remove exempt material from a written document. No new content is created, the
existing document is simply altered to remove exempt information. The Sheriff’s Office conceded
that it now has software capable of masking the audio recording. Therefore, the trial court did not
err in requiring the Sheriff’s Office to use computer software to alter the recordings.
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¶ 29 Conversely, we find that producing a transcript of the recordings constitutes the creation
of a new record. Preparing transcripts is not an alteration or redaction of the original document in
the Sheriff’s Office’s possession. The Sheriff’s Office does not maintain transcripts of the 911
calls in the ordinary course of business. Thus, producing a transcript would require preparing a
record that does not already exist. Consequently, the trial court erred when it required the Sheriff’s
Office to create a transcript of the 911 recording as an alternative to altering the audio recordings
itself. 1
¶ 30 Finally, the problem with dissenting positions is that each position ignores the plain and
unambiguous language of the Act. As to the dissent’s position that all 911 calls should be exempt,
section 7(1)(d)(iv) of the Act plainly exempts the contents of 911 recordings only where it would
“unavoidably disclose” the identity of the caller. 5 ILCS 140/7(1)(d)(iv) (West 2018). The trial
court made a specific finding of fact that the recordings would not disclose the identity of the
callers. Therefore, the dissent would rewrite the exemption section of section 7(1)(d)(iv) to adopt
a blanket exemption without exceptions. Additionally, as to the partial dissent’s position that the
Sheriff’s Office should provide transcripts of the recordings, the Act “is not intended to create an
obligation on the part of any public body to maintain or prepare any public record which was not
maintained or prepared by such public body.” Id. § 1. Hiring an individual to listen to the 911
recordings (which often requires judgment calls on what is said in the recording) and then type a
written transcript is clearly “preparing” a new record that does not already exist. If hiring someone
to transcribe 911 recordings does not constitute the preparation of a new record, then what does?
Both dissenting positions set forth policies that one may argue would improve the Act. However,
We note that a government agency may voluntarily prepare transcripts in response to FOIA
1
requests if they so choose, but are not required to do so by statute.
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implementing such policies is in contradiction to the plain language of the Act, and is not the role
of the judiciary. “[W]hether a statute is wise and whether it is the best means to achieve the desired
result are matters for the legislature, not the courts.” Moline School District No. 40 Board of
Education v. Quinn, 2016 IL 119704, ¶ 28.
¶ 31 In sum, we affirm the trial court’s finding that the 911 calls in this case are not exempt
from disclosure. We also affirm the trial court’s order requiring the Sheriff’s Office to provide the
911 calls using audio masking software. However, we reverse the trial court’s order requiring the
Sheriff’s Office to provide transcripts of the 911 recordings.
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, we affirm in part and reverse in part the judgment of the circuit
court of Will County.
¶ 34 Affirmed in part and reversed in part.
¶ 35 JUSTICE McDADE, specially concurring in part and dissenting in part:
¶ 36 The issue before us is whether the contents of seven identified 911 calls are exempted
from disclosure under the Act. ECW initially filed two requests under the Act, seeking
recordings of 911 calls for assistance at the Wesley Rivals Township Park held in the possession
of the Sheriff’s Office. The request was later modified to seek only the calls presently at issue.
After conducting in camera inspections of the requested calls, the circuit court found section
7(1)(d)(iv) of the Act did not exempt the calls and ordered the Sheriff’s Office to produce the
recordings with voice alterations or, if alterations were unduly burdensome or not feasible, to
provide ECW with transcripts of the calls. I concur with the author’s holding that the recordings
are not exempt and that the Sheriff’s Office should produce them. However, I write separately to
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express (1) my concerns regarding our exercise of jurisdiction in this case and (2) my
disagreement with the author’s conclusion that transcripts of the 911 calls need not be produced.
¶ 37 A. Appellate Jurisdiction
¶ 38 The Sheriff’s Office, as appellant, asserted jurisdiction under Illinois Supreme Court Rule
301 (eff. Feb. 1, 1994). Jurisdiction is proper under Rule 301 as a matter of right for “[e]very
final judgment of a circuit court in a civil case.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). Both
parties, however, agree that the order before us was not a final judgment, and the Sheriff’s Office
has offered no amendment to its original jurisdictional statement to assert and support
jurisdiction on any other basis. Acting sua sponte and finding that the order is an injunction, a
majority of the panel concludes that the order “may be appealed under Rule 307(a)(1).” Supra
¶ 17. I am not confident that that conclusion is correct.
¶ 39 As a motion remains pending in the circuit court, I accept, as did the author, the parties’
agreed conclusion that the challenged order is not final for purposes of appeal, that the Sheriff’s
Office has presented an inapplicable and erroneous basis for this court’s jurisdiction, 2 and that
we do not have jurisdiction on the basis asserted in the jurisdictional statement in the opening
brief of the Sheriff’s Office. For the reasons that follow, it is not clear to me that we can properly
exercise jurisdiction to consider the parties’ arguments and render a decision in this case.
¶ 40 First, I am doubtful of the propriety of exercising appellate jurisdiction under an
unasserted supreme court rule when the Sheriff’s Office has neither made a procedurally proper
invocation in its jurisdictional statement nor complied with any of the requirements of the rule
2
The only case I could find in which the supreme court addresses erroneous assertion of a
jurisdictional rule is O’Banner v. McDonald’s Corp., 173 Ill. 2d 208, 210-11 (1996). However, the
discussion of this issue appears to be dicta and it relates to the notice of appeal, which the court notes
does not require citation to a rule and not, as here, to the jurisdictional statement, which clearly states
precisely that requirement.
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under which this panel now exercises jurisdiction. Illinois Supreme Court Rule 341(h)(4)(ii) (eff.
Nov. 1, 2017) requires a jurisdictional statement which presents:
“a brief, but precise statement or explanation under the heading
‘Jurisdiction’ of the basis for appeal including the supreme court rule or
other law which confers jurisdiction upon the reviewing court; the facts of
the case which bring it within this rule or other law; and the date that the
order being appealed was entered and any other facts which are necessary
to demonstrate that the appeal is timely.”
The Sheriff’s Office, as appellant, has not provided us with any of the requisite information in
support of interlocutory jurisdiction as of right in this case. Rule 307(a) provides:
“(a) Orders Appealable; Time. An appeal may be taken to the
Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to
dissolve or modify an injunction;
***
Except as provided in paragraphs (b) and (d), the appeal must be perfected
within 30 days from the entry of the interlocutory order by filing a notice
of appeal designated ‘Notice of Interlocutory Appeal’ conforming
substantially to the notice of appeal in other cases. A Rule 328 supporting
record must be filed in the Appellate Court within the same 30 days unless
the time for filing the Rule 328 supporting record is extended by the
Appellate Court or any judge thereof.” (Emphasis added.) Ill. S. Ct. R.
307(a) (eff. Nov. 1, 2017)
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The Sheriff’s Office’s notice of appeal and jurisdictional statement include none of that
information. Nor have the parties complied with the expedited briefing schedule for interlocutory
appeals set out in Illinois Supreme Court Rule 307(c) (eff. Nov. 1, 2017).
¶ 41 Second, I would note that the procedure the author apparently adopts in this case shifts
the burden of asserting and supporting jurisdiction from the appellant, where the supreme court
signals in Rules 341(h)(4) and 307(a) it properly belongs, to this appellate panel. Certainly,
accepting such a shifting of responsibility is not the usual practice in this court. Typically, if we
find jurisdiction has not been properly asserted, we dismiss the appeal; we do not comb the
record in search of the information necessary to determine whether jurisdiction can be exercised
on another basis.
¶ 42 Third, and finally, supreme court rules establish procedures for carrying out the functions
of the courts—presumably for a reason. Regardless of whether we like it or not, our
jurisprudence is rife with circumstances where even the most fundamental of constitutional or
legislative rights can be waived or forfeited for failure to comply with the appropriate
procedures. 3 Finding we cannot exercise jurisdiction in this case because the appellant failed to
comply with the procedures necessary to invoke it would merely be another instance, and by far
not the most egregious, of procedural default.
¶ 43 B. Form and Nature of Disclosure
¶ 44 In the instant case, the circuit court ordered the Sheriff’s Office to produce the recordings
with voice alterations or to provide ECW with transcripts of the calls. The Sheriff’s Office
3
For example, in Shinn v. Ramirez, 596 U.S. ___, 142 S. Ct. 1718 (2022), the United States
Supreme Court held that a death row inmate’s demonstrable claim of actual innocence of the crime for
which he is scheduled to die cannot be reviewed if the court is technically procedurally barred from
considering it.
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argues that compliance with either of these options would require creating new documents. The
author concludes that the recordings should be produced with voice alterations but that the
Sheriff’s Office need not produce transcripts of the recordings. The dissent would, in essence,
amend the Act and hold that 911 calls “(in any form)” are exempt from disclosure under section
7(1)(d)(iv) because (1) the calls do not relate “to governmental affairs,” (2) disclosure “would
have a chilling effect” on sources of information, and (3) the specificity of the requests before us
creates “a greater likelihood” of identification without appropriate judicial review. As I read the
statute, the dissent is incorrect.
¶ 45 First, the legislature intended that all public records be accessible unless a statutory
exemption applies. Mancini Law Group, P.C. v. Schaumburg Police Department, 2021 IL
126675, ¶ 16. The recordings were prepared for and held in the possession of the Sheriff’s
Office, and neither it nor the dissent contends that the Sheriff’s Office is not a public body.
Public records include any “recordings” that were “prepared by or for” any public body or are
“in the possession of” a public body. 5 ILCS 140/2(c) (West 2018). Second, the public is already
aware that 911 recordings are routinely made available to the press and to parties in legal
proceedings. Thus, any additional chilling effect resulting from our decision in this case is
negligible. Moreover, the legislature is surely aware of any potential chilling effect and it has not
removed 911 recordings from the class of public records accessible under the Act, choosing only
to exempt communications to law enforcement agencies, not where personal identification is of a
“greater likelihood” (as the dissent fears) but rather where it is “unavoidably disclose[d].” Id.§ 7(1)(d)(iv). Finally, as noted, the circuit court conducted an in camera inspection of the
recordings to determine whether their disclosure was statutorily barred and concluded “ ‘the
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substantive content of the material does not fall under FOIA exemptions for material that is
personal, private, or confidential.’ ” See supra ¶¶ 14, 23.
¶ 46 Therefore, I concur with the author that the statute obligates the Sheriff’s Office to
produce the recordings with voice alterations. However, I believe that the Act also requires the
production of transcripts of the recordings, and I disagree with the author’s contrary finding.
¶ 47 The author suggests my position is a result of failing to read and heed the plain and
unambiguous language of the statute. It is, however, that language that drives my conclusion.
The statute opens by announcing the public policy and governmental obligations as follows: “[I]t
is declared to be the public policy of the State of Illinois that all persons are entitled to full and
complete information regarding the affairs of government and the official acts and policies of
those who represent them as public officials and public employees.” 5 ILCS 140/1 (West 2018).
Further, “[i]t is a fundamental obligation of government to operate openly and provide public
records as expediently and efficiently as possible.” Id. It is not, however, the intent “to create an
obligation on the part of any public body to maintain or prepare any public record which was not
maintained or prepared by such public body at the time when this Act becomes effective.” Id.
Nonetheless, any restraints on access are limited exceptions to the
“principle that the people of this State have a right to full disclosure of
information relating to the decisions, policies, procedures, rules, standards,
and other aspects of government activity that affect the conduct of
government and the lives of any or all of the people. The provisions of this
Act shall be construed in accordance with this principle.” Id.
And finally:
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“The General Assembly recognizes that this Act imposes fiscal
obligations on public bodies to provide adequate staff and equipment to
comply with its requirements. The General Assembly declares that
providing records in compliance with the requirements of this Act is a
primary duty of public bodies to the people of this State, and this Act
should be construed to this end, fiscal obligations notwithstanding.” Id.
¶ 48 Moving from the general provisions stating the legislative purpose and intent to more
specific requirements of the statute, section 1.2 states the Act’s “Presumption” as “All records in
the custody or possession of a public body are presumed to be open to inspection or copying.” Id.
§ 1.2. The Act provides two definitions directly pertinent to this presumption and to the specific
issues in this case. Section 2(c) defines “public records” as “all records *** tapes, recordings ***
and all other documentary materials pertaining to the transaction of public business, regardless
of physical form or characteristics, having been prepared by or for, or having been or being used
by, received by, in the possession of, or under the control of any public body.” (Emphasis
added.) Id. § 2(c). This definition makes clear that a public record is not simply a tangible object;
it is the content “pertaining to the transaction of public business.” Id. In section 2(d), “the
reproduction of any public record by means of any photographic, electronic, mechanical or other
process, device or means now known or hereafter developed and available to the public body” is
the definition of “copying,” not of creating a new record. (Emphasis added.) Id. § 2(d).
¶ 49 We have already determined that the substance of the recordings is not protected by an
exemption. Therefore, under the plain and unambiguous language of the statute, construed to
(1) provide full and complete information regarding the affairs of the Sheriff’s Office and
(2) fulfill the fundamental obligation of the Sheriff’s Office to operate openly and provide public
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records expediently and efficiently, we presume the recordings of the seven 911 calls are “open
to inspection and copying.” “Copying,” as defined in section 2(d), would include reproduction in
the form of a transcript. While this could be accomplished by simply making the recording
available to ECW so that group can create a transcript, the concern of the Sheriff’s Office that
some private information could be disclosed would suggest that the office itself should reduce
the recordings to transcript form and make the appropriate redactions, “fiscal obligations
notwithstanding.” Id. § 1.
¶ 50 Case law strongly suggests that the distinction between a “public record” and a
“document” has not been lost on other courts. In Family Life League, the court explained that
production of records requiring only the deletion of exempt information does not amount to
creating new records. Family Life League, 112 Ill. 2d at 457-58. The court expanded the
reasoning of Family Life League in Bowie, 128 Ill. 2d 373, and in Hamer v. Lentz, 132 Ill. 2d 49(1989).
¶ 51 In Bowie, the plaintiff sought to obtain demographics and test scores on students from
certain years. Bowie, 128 Ill. 2d at 376. The demographic request sought race and grade level of
the students, but not their names or sex. Id. However, the defendants maintained the records with
students sorted under a single-digit code capturing a particular student’s race and sex. Id. at 380.
For example, a white male was coded as “1,” a white female as “2,” and so forth through the
spectrum of race and, in some cases, national origin. The defendants argued that to produce the
record with only race (without sex) would require recoding the entries to reflect the change, thus
requiring the creation of new records. Id. at 381. The Illinois Supreme Court disagreed. Id. at
382. It reasoned that the disclosure was similar to “only being required to delete the exempt
matter.” Id. “Deleting information from a record does not create a ‘new’ record, even if all but
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one or two items of information have been deleted.” Id. In Hamer, the court held that compiling
or scrambling information, although requiring additional steps, does not constitute creating new
records. Hamer, 132 Ill. 2d at 56-57. In both cases, making the modifications authorized by the
court would presumably require producing new paper documents, but the supreme court did not
reject that possibility as “creating a new record.” Relying in part on Hamer, the First District
recently explained that “[a] request for a listing or index of a database’s contents that seeks
information about those contents, as opposed to the contents themselves, requests a new record.”
Martinez v. Cook County State’s Attorney’s Office, 2018 IL App (1st) 163153, ¶ 30. These
precedents strongly support finding that so long as the modification does not involve the creation
of new content not previously maintained by the agency, it does not create a new record.
¶ 52 The Sheriff’s Office contends that creating transcripts requires “discerning the meaning”
of the recorded statements. I cannot agree with that argument. Producing transcripts of the 911
recordings only reproduces their exact content. In a courtroom where proceedings are captured
on an electronic recording device, the later reduction of the recording to paper does not create a
new record, it merely changes the form in which the original record is presented. The recordings
would be reduced to paper verbatim, requiring—indeed, allowing—neither editing nor
discernment of meaning. This task imposes no function on the Sheriff’s Office different from
that performed by a court reporter. Moreover, unlike the recordings, the transcripts would avoid
all concerns about voice recognition and could easily be redacted to exclude any legitimately
exempt information without requiring additional technology or significant cost.
¶ 53 The author also notes that the Sheriff’s Office “does not maintain transcripts of the 911
calls in the ordinary course of business.” Supra ¶ 29. It, thus, concludes “that producing a
transcript of the recordings constitutes the creation of a new record.” Supra ¶ 29. I disagree. The
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recordings and their contents are accessible to the Sheriff’s Office. As previously noted, the
Bowie court held modifying the existing content of recorded demographic information to satisfy
the Act’s disclosure requirements did not constitute creating new records. Bowie, 128 Ill. 2d at
382. So long as the transcripts contain nothing more than a verbatim rendition of the recordings
and do not add information not included in the recorded dialogs, no new record would be
created. The author’s conclusion is tenable only upon reading the Act narrowly and limiting the
statutory term “public records” to the forms and formats in which the records are held. The Act
does not make such a distinction. Nor does it countenance such a construction of its terms.
¶ 54 For the foregoing reasons, I concur in part, specially concur in part, and respectfully dissent
in part.
¶ 55 JUSTICE DAUGHERITY, specially concurring in part and dissenting in part:
¶ 56 I concur that the order appealed from is in the form of an injunction and may be appealed
under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017).
¶ 57 I concur in the conclusion reversing that part of the order requiring the Sheriff’s Office to
produce transcripts of the 911 calls but do so for the reason I would hold the content of the calls
exempt under section 7(1)(d)(iv) of the FOIA. 5 ILCS 140/7(1)(d)(iv) (West 2018).
¶ 58 For the following reasons, I respectfully dissent from the holding of the majority that the
records are not exempt.
¶ 59 In this case, the Sheriff’s Office claimed the 911 recordings were exempt under section
7(1)(d)(iv) of the FOIA. This section provides that records of the public body are exempt from
FOIA requests where it “unavoidably disclose the identity of *** persons who file complaints with
or provide information to administrative, investigative, law enforcement.” Id. I would find
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disclosure of the 911 calls (in any form) must be exempt under section 7(1)(d)(iv) and respectfully
dissent from the majority holding they are not exempt.
¶ 60 Whether an exemption applies to a request under FOIA is generally a matter of statutory
construction and reviewed de novo. Chicago Public Media v. Cook County Office of the President,
2021 IL App (1st) 200888, ¶ 22; Hites, 2018 IL App (2d) 170617, ¶ 50.
¶ 61 Disclosure of communications of private individuals is contrary to the purpose of the
FOIA. The purpose of the FOIA is:
“that all persons are entitled to full and complete information regarding the affairs
of government and the official acts and policies of those who represent them as
public officials and public employees consistent with the terms of this Act. Such
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.” 5 ILCS
140/1 (West 2018).
The key is that individuals are entitled to information regarding the affairs of governmental
officials. The FOIA “is not intended to cause an unwarranted invasion of personal privacy.” Id.In other words, the FOIA’s purpose is to guarantee “that the Government’s activities be opened
to the sharp eye of public scrutiny, not that information about private citizens that happens to be
in the warehouse of the Government be so disclosed.” (Emphases in original.) United States
Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 774
(1989).
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¶ 62 Here, ECW’s request for recordings of the 911 calls only relate to communications made
by private citizens. Nothing in the request sought information relating to governmental affairs.
Consequently, disclosure of these private communications is contrary to the purpose of the FOIA.
¶ 63 Second, I believe that disclosure of these communications would have a chilling effect on
members of the public seeking assistance from law enforcement. Individuals making complaints
with or providing information to law enforcement may very well wish to keep those
communications private. An individual may fear retaliation when he knows that his
communications may be accessed by the public. Even witnesses who make statements about a
crime they have observed may be reluctant to have their name associated with the incident. In light
of this, I believe that disclosure of 911 calls made by private citizens would have the effect of
discouraging the public from providing important information to law enforcement about crimes in
their communities.
¶ 64 Moreover, ECW made a request for 911 calls that occurred on a specific date relating to
specific incidents at a specific location. These 911 calls could be easily used to discover the identity
of the caller. A specific request, like in this case, necessarily limits the universe of potential
individuals involved. Accordingly, there is a greater likelihood that the individual will be identified
by the content of his or her statement.
¶ 65 Accordingly, I respectfully dissent.
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