NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department

2019 IL App (1st) 181426No. 1-18-1426
Opinion filed September 5, 2019
Fourth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
NBC SUBSIDIARY (WMAQ-TV) LLC, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 17 CH 09589
)
THE CHICAGO POLICE DEPARTMENT, ) Honorable
) Neil H. Cohen,
Defendant-Appellant. ) Judge, presiding.
)
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Chicago-based NBC Subsidiary (WMAQ-TV) LLC (WMAQ), sued defendant,
the Chicago Police Department (CPD), seeking disclosure under the Freedom of Information Act
(FOIA) (5 ILCS 140/1 et seq. (West 2016)) of records related to the 2014 fatal shooting of 16-
year-old W.R. by police officers.
¶2 The circuit court granted WMAQ’s partial summary judgment motion but denied CPD’s
cross-motion for summary judgment. The court ruled that the records concerning the
No. 1-18-1426
investigation of W.R. for a criminal offense were exempt from disclosure under FOIA due to
confidentiality provisions applicable to the law enforcement records of minors pursuant to the
Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2016)). However, the court
ordered CPD to produce the records of the investigation of the police shooting of W.R., which
were not exempt from disclosure.
¶3 The CPD appealed, arguing that (1) the confidentiality provisions of the Act extended to
cover the police shooting investigation because the shooting victim was a minor and (2) WMAQ
failed to obtain, in compliance with the Act, an order from the juvenile court authorizing the
disclosure of the police shooting investigation records.
¶4 For the reasons that follow, we affirm the judgment of the circuit court. 1 We hold that
FOIA’s disclosure exemption for information prohibited from disclosure by state law did not
apply to a request for records related to the investigation of police officers who fatally shot a
minor because those police investigation records did not “relate to a minor who has been
investigated” within the meaning of the confidentiality provisions of the Act.
¶5 I. BACKGROUND
¶6 On July 5, 2014, Chicago police officers fatally shot 16-year-old W.R. Shortly thereafter,
the superintendent of the CPD gave a statement about the shooting, disclosing that it involved a
16-year-old young man who had a number of arrests in his past and was armed with a .380
caliber automatic firearm with six live rounds. The young man was pursued for “quite some
time” and eventually hid under a vehicle. He pointed the firearm at officers on numerous
occasions, was shot by the officers, and subsequently expired. The incident was observed by four
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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civilian witnesses, one of whom photographed the young man standing on the corner with the
firearm and sent the photo to the police afterwards. Also, the independent police review board
released W.R.’s name, the date and time of the incident, and the type of incident.
¶7 In January 2016, WMAQ filed a FOIA request with CPD, asking for “all police reports,
case reports, case incident reports and supplemental reports filed in the police shooting” of W.R.
But CPD denied the request on the grounds that the Act barred the disclosure of these records to
unauthorized parties. WMAQ sought review by the public access counselor of the Illinois
Attorney General’s office pursuant to section 9.5 of FOIA (5 ILCS 140/9.5 (West 2016)).
¶8 In February 2016, the public access counselor issued a nonbinding determination letter
that concluded CPD violated the requirements of FOIA by withholding all of the records
concerning an investigation into the police shooting death of W.R., a minor. The requested
information was categorized under two separate case numbers: No. HX332686, which contained
reports that labeled W.R. as the possible suspect and investigated whether he committed a
criminal offense, and No. HX348081, which contained reports that listed W.R. as the victim and
investigated whether his fatal shooting by police officers was a justifiable homicide. The public
access counselor concluded that the former case, which concerned an alleged offense by a minor,
was subject to the confidentiality provisions of the Act, which prohibited disclosure to an
unauthorized party, and thus the CPD did not violate FOIA by withholding those reports. The
latter case, however, concerned the conduct of police officers, and CPD did not meet its burden
of demonstrating by clear and convincing evidence that these reports were exempt from
disclosure. The public access counselor requested CPD to disclose the nonexempt reports,
subject only to the redaction of certain specified private or personal information.
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¶9 CPD did not produce the records concerning the investigation of the police shooting, so
in July 2017, WMAQ sued CPD, seeking disclosure under FOIA of all reports filed in the police
shooting of W.R. on or around July 5, 2014. Thereafter, WMAQ filed a motion for partial
summary judgment and CPD filed a cross-motion for summary judgment.
¶ 10 In February 2018, the circuit court granted WMAQ’s motion for partial summary
judgment and denied CPD’s cross-motion. The court ruled that the Act’s prohibitions against
disclosure to an unauthorized party of the law enforcement records related to the investigation,
arrest or custody of minors did not apply to the records of the investigation of the conduct of the
police officers involved in the shooting of a minor. The court concluded that W.R.’s status as a
minor did not transform WMAQ’s request for information about the police shooting
investigation into a request for the minor’s exempt confidential records. The court ordered CPD
to produce all records responsive to WMAQ’s FOIA request subject to redaction of any
information directly related to any criminal investigation, arrest or custody of W.R.
¶ 11 In March 2018, the circuit court denied CPD’s motion for reconsideration but granted
CPD’s motion for leave to file the records under seal so the court could conduct an in camera
review. The court required CPD to file under seal two versions of the records, one redacted in
accordance with FOIA and the other unredacted. After conducting an in camera review, the
court, in May 2018, ruled that (1) the records concerning the criminal investigation of W.R. were
not at issue in this case and would not be produced and (2) the redactions made to the records
concerning the investigation of the police shooting of W.R. were proper, except that CPD must
disclose the minor’s name and gang affiliation.
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¶ 12 In June 2018, the circuit court entered an agreed order, stating that (1) partial summary
judgment was granted for WMAQ, (2) the parties agreed to stay production of the records
pending the outcome of the appeal, and (3) all other issues between the parties were resolved and
this order and the February 2018 order were final and appealable.
¶ 13 CPD timely appealed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, CPD argues that the circuit court’s judgment should be reversed because the
plain language of the Act prohibits the disclosure to unauthorized parties of all law enforcement
records that relate to minors who have been investigated, arrested, or taken into custody before
their eighteenth birthday unless the juvenile court issues an order allowing the disclosure and
WMAQ never obtained such an order. CPD contends that its records concerning the
investigation of the conduct of the police in the fatal shooting of W.R., who was a minor and was
investigated as a suspect for committing a criminal offense, are protected by the confidentiality
provisions of the Act because the victim of the fatal police shooting was a minor.
¶ 16 CPD argues that its literal reading of the Act significantly advances the Act’s goal to
protect the privacy of juveniles by effectively eliminating the possibility that a municipal official
might erroneously disclose those records due to either ignorance of the Act’s requirements or a
mistaken belief that the records fell within one of the Act’s exceptions. CPD believes that this
bright-line rule prohibiting the disclosure of all records involving juveniles who have some
history of delinquency unless the juvenile court orders the disclosure ensures that municipal
officials responding to FOIA requests will not be forced to choose between either risking
criminal prosecution by mistakenly granting a disclosure request or exposing their employers to
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substantial liability in attorney fees, costs and fines in a FOIA lawsuit by mistakenly denying a
FOIA request. CPD contends that the bright-line rule allows officials to simply base their
decision on whether the juvenile court has authorized the requested disclosure—granting the
request if it has and denying the request if it has not.
¶ 17 Summary judgment is proper only if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016).
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 review de novo an order granting a motion for summary judgment. Better
Government Ass’n v. Village of Rosemont, 2017 IL App (1st) 161957, ¶ 17. Furthermore, CPD’s
claim that the police conduct investigation records concerning the shooting of W.R. are exempt
from disclosure under section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2016)) is a matter of
statutory construction and thus also subject to de novo review. Stern v. Wheaton-Warrenville
Community Unit School District 200, 233 Ill. 2d 396, 404 (2009).
¶ 18 “The cardinal rule of statutory construction, to which all other rules are subordinate, is to
ascertain and give effect to the legislature’s intent.” People v. Hanna, 207 Ill. 2d 486, 497
(2003). The intent of FOIA is to support the public policy 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 2016).
Moreover, government has the fundamental obligation to operate openly and provide public
records as expediently and efficiently as possible in compliance with FOIA. Id. “All records in
the custody or possession of a public body are presumed to be open to inspection or copying.
Any public body that asserts that a record is exempt from disclosure has the burden of proving
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by clear and convincing evidence that it is exempt.” Id. § 1.2. A public body may elect to redact
exempt information when a FOIA request is made for a record that contains information that is
exempt and not exempt from disclosure. Id. § 7(1).
¶ 19 “Information specifically prohibited from disclosure by federal or State law or rules and
regulations implementing federal or State law” are exempt from disclosure under FOIA. Id.
§ 7(1)(a). FOIA further provides that “[i]nformation which is or was prohibited from disclosure
by the Juvenile Court Act of 1987” shall be exempt from disclosure. Id. § 7.5(bb). However, in
furtherance of FOIA’s purpose to open public records to public scrutiny, FOIA is construed
liberally while exemptions to its disclosure obligations are construed narrowly. Kelly v. Village
of Kenilworth, 2019 IL App (1st) 170780, ¶ 29; Rushton v. Department of Corrections, 2019 IL
App (4th) 180206, ¶ 25.
¶ 20 By comparison, the Act governs how the justice system handles minors. The overarching
purpose of the Act “is to ensure that the best interests of the minor, the minor’s family, and the
community are served.” In re C.N., 196 Ill. 2d 181, 209 (2001). The purpose and policy of the
Act is to provide for the protection, guidance, care, custody, and guardianship of minors who are
abused, neglected, dependent, in need of authoritative intervention, addicted, or delinquent in a
manner that serves the welfare of the minors and the best interests of the community. 705 ILCS
405/1-2 (West 2016). Article 5 of the Act pertains specifically to minors who have violated or
attempted to violate the law. It is intended to promote a juvenile justice system to deal with the
problem of juvenile delinquency that will protect the community, impose accountability on
juveniles for violations of the law, and equip them to live responsibly and productively. Id. § 5-
101(1). To effectuate this intent, its important purposes include protecting citizens from crime,
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holding juvenile offenders accountable for their actions, individually assessing the juveniles to
prevent further delinquent behavior, and providing due process. Id.
¶ 21 In support of its claimed exemption, CPD argues that sections 1-7 and 5-905 of the Act
(id. §§ 1-7, 5-905) prohibit the disclosure to an unauthorized party of all law enforcement
records involving juveniles with some history of delinquency or alleged criminal conduct unless
the party obtains an order from the juvenile court. Subsections 1-7(A) and (C) of the Act state in
relevant part:
“(A) Inspection and copying of law enforcement records maintained by
law enforcement agencies that relate to a minor who has been investigated,
arrested, or taken into custody before his or her 18th birthday shall be restricted
to [enumerated classes of persons, including law enforcement officers,
prosecutors, probation officers, social workers, prisoner review boards, authorized
military personnel, persons engaged in bona fide research with the permission of
the presiding judge of the juvenile court, child protection investigators of the
Department of Children and Family Services, and appropriate school officials,
when necessary for performing their responsibilities or discharging their official
duties.]
***
(C) The records of law enforcement officers, or of an independent agency
created by ordinance and charged by a unit of local government with the duty of
investigating the conduct of law enforcement officers, concerning all minors
under 18 years of age must be maintained separate from the records of arrests and
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may not be open to public inspection or their contents disclosed to the public
except by order of the court presiding over matters pursuant to this Act or when
the institution of criminal proceedings has been permitted or required under
Section 5-805 or such a person has been convicted of a crime and is the subject of
pre-sentence investigation or proceedings on an application for probation or when
provided by law. For purposes of obtaining documents pursuant to this Section, a
civil subpoena is not an order of the court.
***
(3) In determining whether the records should be available for
inspection, the court shall consider the minor’s interest in confidentiality
and rehabilitation over the moving party’s interest in obtaining the
information.” (Emphases added.) Id. § 1-7(A), (C)(3).
¶ 22 Article 5 of the Act, which pertains specifically to delinquent minors, contains similar
confidentiality provisions. Subsections 5-905(1) and (5) of the Act state in relevant part:
“(1) Law Enforcement Records. Inspection and copying of law
enforcement records maintained by law enforcement agencies that relate to a
minor who has been investigated, arrested, or taken into custody before his or her
18th birthday shall be restricted to [enumerated classes of persons similar to those
listed in subsection 1-7(A), when necessary for the discharge of their official
duties.]
***
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(5) The records of law enforcement officers, or of an independent agency
created by ordinance and charged by a unit of local government with the duty of
investigating the conduct of law enforcement officers, concerning all minors
under 18 years of age must be maintained separate from the records of adults and
may not be open to public inspection or their contents disclosed to the public
except by order of the court or when the institution of criminal proceedings has
been permitted under Section 5-130 or 5-805 or required under Section 5-130 or
5-805 or such a person has been convicted of a crime and is the subject of pre-
sentence investigation or when provided by law.” (Emphases added.) Id. § 5-
905(1), (5).
¶ 23 The best indicator of the legislature’s intent “is found in the language of the statute itself
[citation] and that language should be given its plain, ordinary and popularly understood
meaning [citation].” Hanna, 207 Ill. 2d at 497-98. When the language of a statute is clear and
unambiguous, it should be applied as written without resort to extrinsic aids of construction.
Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 113907, ¶ 47. Courts should construe
words and phrases in light of other relevant statutory provisions (In re C.P., 2018 IL App (4th)
180310, ¶ 18) and “may consider not only the language used, but also the reason and necessity
for the law, the evils sought to be remedied, and the purposes to be achieved” (Prazen v. Shoop,
2013 IL 115035, ¶ 21).
¶ 24 However, if a plain or literal reading of a statute produces absurd results, then the literal
reading should yield. Hanna, 207 Ill. 2d at 498. An interpretation may be within the letter of the
statute but contrary to its spirit or the intention of the legislature. Id. When the literal
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construction of a statute would lead to consequences the legislature could not have contemplated,
the courts are not bound to that construction but rather must construe the statute in a manner that
avoids absurd or unjust results. Id. “The process of statutory interpretation should not be
divorced from a consideration of the ‘real-world activity’ [citation] that the statute is intended to
regulate.” Id. at 502. “[I]n seeking legislative intent, ‘the court will always have regard to
existing circumstances, contemporaneous conditions, the object sought to be attained by the
statute and the necessity or want of necessity for its adoption.’ ” (Emphasis in original.) Id.(quoting Smith v. County of Logan, 284 Ill. 163, 165 (1918)).
¶ 25 If a statute is ambiguous, then a court may consider extrinsic aids of construction to
determine the legislature’s intent. Young America’s Foundation v. Doris A. Pistole Revocable
Living Trust, 2013 IL App (2d) 121122, ¶ 25. A statute is ambiguous when reasonably well-
informed persons could interpret the statute in different ways. Sangamon County Sheriff’s
Department v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 136 (2009).
¶ 26 When the trial court issued in February and June 2018 the decisions upon which this
appeal is based, the Act did not define a juvenile law enforcement record. However, Public Act
100-1162, which became effective December 20, 2018, added section 1-3(8.2) to the Act,
defining a juvenile law enforcement record to include:
“records of arrest, station adjustments, fingerprints, probation adjustments, the
issuance of a notice to appear, or any other records or documents maintained by
any law enforcement agency relating to a minor suspected of committing an
offense, and records maintained by a law enforcement agency that identifies a
juvenile as a suspect in committing an offense, but does not include records
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identifying a juvenile as a victim, witness, or missing juvenile and any records
created, maintained, or used for purposes of referral to programs relating to
diversion as defined in subsection (6) of Section 5-105.” (Emphasis added.) Pub.
Act 100-1162 (eff. Dec. 20, 2018) (adding 705 ILCS 405/1-3(8.2)).
¶ 27 Public Act 100-1162 also amended section 1-7(A) of the Act, which currently states:
“(A) All juvenile law enforcement records which have not been expunged
are confidential and may never be disclosed to the general public or otherwise
made widely available. Juvenile law enforcement records may be obtained only
under this Section and Section 1-8 and Part 9 of Article V of this Act, when their
use is needed for good cause and with an order from the juvenile court, as
required by those not authorized to retain them. Inspection, copying, and
disclosure of juvenile law enforcement records maintained by law enforcement
agencies or records of municipal ordinance violations maintained by any State,
local, or municipal agency that relate to a minor who has been investigated,
arrested, or taken into custody before his or her 18th birthday shall be restricted to
the following:
[Enumerated classes of persons authorized to obtain juvenile law
enforcement records.]” Id. (amending 705 ILCS 405/1-7(A)).
¶ 28 The plain and unambiguous language of section 1-3(8.2) limits juvenile law enforcement
records to records that relate to juveniles who have committed or are suspected of committing an
offense. And the current version of section 1-7(A) clarifies the confidentiality requirements for
juvenile law enforcement records. Section 1-3(8.2) and the current version of section 1-7(A)
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refute CPD’s assertion that the confidentiality provisions of sections 1-7 and 5-905 of the Act
should be read so expansively to require unauthorized persons to obtain orders from the juvenile
court for the disclosure of any law enforcement records that involve in any manner juveniles who
have committed or been suspected of committing an offense. The interpretation urged by CPD
would not further FOIA’s goals of expediently and efficiently disclosing to the public full and
complete information regarding the official acts and policies of public officials and employees.
Furthermore, the addition of section 1-3(8.2) to the Act and amendment to section 1-7(A) clarify
the scope of the information that may not be disclosed absent a juvenile court order and, thus,
should alleviate CPD’s concerns about the consequences of erroneously denying or granting a
FOIA request.
¶ 29 However, under Illinois’s retroactivity jurisprudence, section 1-3(8.2) and the current
version of section 1-7(A) would not apply to the instant case because the legislature did not
clearly prescribe the temporal reach of these sections and the changes made by these sections,
which clarify the scope of information that is accessible, are substantive rather than procedural.
See Perry v. Department of Financial & Professional Regulation, 2018 IL 122349, ¶¶ 66-71.
¶ 30 Nevertheless, when viewed within the purpose of the Act and the real-world activity that
the confidentiality provisions of sections 1-7 and 5-905 of the Act were intended to regulate,
CPD’s interpretation—that all law enforcement records that involve in any manner a minor who
has been investigated, arrested, or taken into custody may not be disclosed to unauthorized
parties absent an order from the juvenile court—would produce absurd results. In the case at bar,
the minor was the victim of a fatal shooting by the police, and the records sought by WMAQ
concern the investigation of whether that shooting was justified. Under CPD’s overly broad
interpretation of the scope of the Act’s confidentiality provisions, records involving instances of
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alleged police misconduct toward alleged or adjudicated juvenile offenders would be shielded
from public view even though those confidentiality provisions are intended to serve the best
interests of minors. Clearly, the confidentiality provisions of the Act are intended, not to shield
possible police misconduct toward minors but rather, to protect the privacy of minors and allow
them to lead responsible and productive lives unencumbered by public records of their criminal
conduct. When the real-world context is taken into account, CPD’s literal reading of sections 1-7
and 5-905 of the Act is clearly untenable and must be rejected.
¶ 31 Courts must view all provisions of a statutory enactment as a whole, construing words
and phrases not in isolation but in light of other relevant provisions so that effect is given to the
entire statutory scheme. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d
390, 415 (2006). Moreover, the exceptions to disclosure set forth in FOIA are to be read
narrowly so as not to defeat FOIA’s intended purpose. Id. at 416. Based on the Act’s purpose to
protect the minor’s interests in rehabilitation and confidentiality, we conclude that the plain
language of sections 1-7 and 5-905 of the Act in effect prior to the December 20, 2018,
amendments governs the confidentiality of law enforcement records that focus on a minor as the
subject of an investigation, arrest, or custodial detention rather than reports created to assess the
conduct of public employees or officials. Because the records WMAQ seeks concerning the
investigation of the police shooting of W.R. do not relate to the investigation, arrest or custodial
detention of a minor within the meaning of the Act’s confidentiality requirements, WMAQ was
not required to obtain an order from the juvenile court allowing disclosure of the sought records.
¶ 32 CPD also cites subsections 1-7(C) and 5-905(5) of the Act (705 ILCS 405/1-7(C), 5-
905(5) (West 2016)), which exempt from public disclosure the records “of an independent
agency created by ordinance and charged by a unit of local government with the duty of
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investigating the conduct of law enforcement officers” to the extent those records concern a
minor under 18 years of age. According to CPD, this language shows that the legislature
intended to protect the confidentiality of all law enforcement records regarding minors, and this
protection was not limited to records about the investigations of possible criminal conduct by
minors but rather applied with full force to all investigation records whenever a minor is
involved in a matter.
¶ 33 CPD’s argument is not persuasive because the cited language was added when the Act
was amended to include those independent agencies investigating police conduct among the
enumerated classes of persons authorized to obtain law enforcement records related to minors
who have been investigated, arrested, or detained in custody. See Pub. Act 96-419 (eff. Aug. 13,
2009) (amending 705 ILCS 405/1-7, 5-905).
¶ 34 III. CONCLUSION
¶ 35 For the foregoing reasons, we conclude that the investigation records of the police
shooting of W.R. do not relate to or concern the law enforcement records of a minor who has
been investigated, arrested, or taken into custody within the meaning of sections 1-7 and 5-905
of the Act. Accordingly, the investigation records of the police shooting of W.R. are not exempt
from disclosure under FOIA, and the trial court properly ordered CPD to release them to
WMAQ. Accordingly, we affirm the judgment of the circuit court.
¶ 36 Affirmed.
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No. 1-18-1426
Cite as: NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police
Department, 2019 IL App (1st) 181426Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-
09589; the Hon. Neil H. Cohen, Judge, presiding.
Attorneys Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
for Solomon, Myriam Zreczny Kasper, and Jonathon D. Byrer,
Appellant: Assistant Corporation Counsel, of counsel), for appellant.
Attorneys Matthew Topic, Joshua Burday, and Merrick Wayne, of Loevy
for & Loevy, of Chicago, for appellee.
Appellee:
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