Sherrod v. The City of Kankakee

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190374-UOrder filed July 29, 2020
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2020
ANTONIO SHERROD, ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Plaintiff-Appellant, ) Kankakee County, Illinois.
)
v. )
)
THE CITY OF KANKAKEE, KANKAKEE )
POLICE DEPARTMENT, THE KANKAKEE ) Appeal No. 3-19-0374
STATE’S ATTORNEY OFFICE, and THE ) Circuit No. 18-MR-302
KANKAKEE COUNTY DETENTION )
CENTER, )
)
Defendants )
)
(The City of Kankakee, )
) Honorable Ronald J. Gerts,
Defendant-Appellee). ) Judge, Presiding.
____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court.
Justices Carter and McDade concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err when it granted defendant’s motion to dismiss
plaintiff’s complaint for declaratory relief.
¶2 Plaintiff, Antonio Sherrod, filed a complaint for declaratory relief against defendant, the
City of Kankakee (City). He alleged that the City failed to comply with his Freedom of Information
Act (FOIA) requests. He appeals the circuit court’s granting of defendant’s motion to dismiss. 1 He
contends: (1) an issue of material fact exists as the adequacy of the City’s search for records
pursuant to his FOIA request; (2) the City failed to comply with his FOIA request by providing
him with a video in DVD format rather than VHS; (3) the City failed to provide him with enhanced
video created by the FBI; and (4) the City failed to respond to one of his many FOIA requests. We
affirm.
¶3 I. BACKGROUND
¶4 A federal jury found plaintiff guilty of several offenses in the murder of Steven
Prendergast. Plaintiff received two consecutive life sentences in the Federal Bureau of Prisons.
United States v. Sherrod, 445 F.3d 980 (7th Cir. 2006). Plaintiff murdered Prendergast at a
Kankakee gas station, which a surveillance camera recorded.
¶5 On July 25, 2016, while incarcerated, plaintiff filed a FOIA request with the City for
records regarding the murder of Prendergast. The request sought the following documents:
“(A) A copy of the VHS video surveillance tapes that
captured the carjacking on 3-16-2003.
(B) Any, and all video enhancements of the VHS tapes done
by Quantico FBI specialist, George Skoluba, at the request of KPD
Detective Kenneth Lowman on 3-21-2003.
1
The court dismissed the complaint against the other defendants for different reasons. Those
defendants are not parties to this appeal.
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(C) Any, and all reports concerning the yellow Calico lighter
located inside the Carhartt jacket that was found.
(D) Any, and all files listed under [plaintiff’s] name as a
Confidential Informant.
(E) Any, and all reports, memos, or data from Officer
Charles E. Johnston, or Officer Willie Hunt concerning their
encounter with [plaintiff] when they transferred [plaintiff] from St.
Mary’s Hospital to Kankakee County Jail on 8-1-2003.
(F) Any, and all reports as to why Detective Patrick Kane
became the lead case agent in the murder investigation on 8-1-
2003.”
¶6 Kristine Schmitz, the City’s FOIA officer, received the request and forwarded it to
Kankakee Police Department Deputy Chief Robin Passwater. Passwater reviewed the
department’s electronic database and police file. These systems were the most likely to contain the
responsive records. Passwater found information responsive to plaintiff’s request items A, C, and
E. Specifically, Passwater found the surveillance video from the night of the murder, the evidence
reports regarding the yellow lighter, and a report from two transportation officers.
¶7 As to the video, the City informed plaintiff that it would attempt to find a business that
could copy the VHS recording to a DVD format. The City sent plaintiff a letter stating that his
FOIA request produced one DVD and included an invoice for $5. Plaintiff responded by requesting
that the VHS be copied to a new VHS rather than a DVD. Nevertheless, plaintiff sent the City $5
for the DVD and informed the City that he would be executing a power of attorney so that the
VHS tapes and DVD could be sent to his appointed person, and that he would be in touch soon.
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¶8 The City provided plaintiff with the responsive documents to his requested items C and E
(the yellow lighter evidence reports and a report from the transportation officers). The City denied
plaintiff’s requests as to items B, D, and F. As to item B (the video enhancements performed by
the FBI), the City explained that it did not possess the videos, which were in possession of the FBI.
As to items D (files listing plaintiff as a confidential informant) and F (reports as to why Detective
Kane became the lead investigator), the City informed plaintiff that no such documents existed.
¶9 Subsequently, plaintiff sent the City an amended FOIA request clarifying his request for
items D and F. The City denied the request by informing plaintiff that it had already responded to
plaintiff’s request by informing him no such records existed.
¶ 10 On October 27, 2016, plaintiff appealed the City’s response to his FOIA request to the
Illinois Attorney General’s Office, Public Access Bureau (PAC), seeking item A in a VHS format
rather than a DVD. The City responded that it was still waiting for plaintiff’s attorney-in-fact to
pick up the DVD as it had previously communicated to plaintiff. The City also stated that it did
not have the equipment to copy the video to VHS format.
¶ 11 The PAC issued a nonbinding letter on February 27, 2017. The PAC requested the City
provide plaintiff with the video in a VHS copy rather than a DVD.
¶ 12 On April 9, 2017, plaintiff sent the City a letter informing the City that he would not be
using an attorney-in-fact, but that his prison counselor would receive the videos on his behalf. The
City then sent the DVD to plaintiff’s prison counselor.
¶ 13 On June 2, 2017, plaintiff sent the City another FOIA request seeking the entire Prendergast
murder file, the video surveillance in VHS format, and various police records, including the names
of the detective supervisor, case notes, and e-mails during the time period of August 1, 2003, to
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December 2003. The City denied plaintiff’s request, explaining that plaintiff’s request for
documents had been responded to in the prior FOIA request.
¶ 14 Plaintiff appealed to the PAC again. The PAC declined to review the City’s denial, finding
that “no further inquiry is warranted.”
¶ 15 On August 24, 2018, plaintiff filed a complaint against the City for declaratory relief.
Plaintiff alleged that the City failed to properly respond to his FOIA requests. He contended the
City failed to adequately search for documents responding to his request. He argued that the City
possessed more documents than it tendered to him in response to his FOIA requests. He also argued
that the City failed to properly respond to his request for a copy of the video by providing it to him
in DVD format rather than VHS. He also alleged that the City possessed the video enhancements
created by the FBI, but the City failed to tender the videos to plaintiff.
¶ 16 The City filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-619 (West 2018)). The City contended that it complied with
plaintiff’s FOIA requests and that it performed a reasonable search for the requested records. The
City also contended that plaintiff’s claim that the City failed to provide him with the video
recording was moot because it had previously tendered the DVD to plaintiff. The City argued that
it did not have the technology to provide defendant with a copy of the video in VHS format. Last,
the City argued that it did not possess the enhanced video created by the FBI.
¶ 17 To support its motion, the City attached the affidavits of Schmitz and Passwater. The City
also attached correspondence between the City, plaintiff, and the PAC, as well as the documents
it produced in response to plaintiff’s FOIA request.
¶ 18 As to the reasonableness of its search, the City explained the efforts it used to find the
information plaintiff requested. Passwater averred that, “[he] reviewed the Police Departments
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[sic] electronic database and located the Police Department file, which was numbered 2003-1038.”
In the file, the City found all the information plaintiff requested in requested items A, C, and E.
The City also explained:
“a review of the Kankakee Police file 2003-1038 and the electronic
database failed to locate any reports or files which responded to
[plaintiff’s] requests ‘D’ and ‘F’. There were no files that listed
[plaintiff] as a Confidential Informant, and any reports regarding
Det. Kane’s assignment to [plaintiff’s] case. There were no other
locations to search within the Kankakee Police Department that
would have revealed records responsive to [plaintiff’s] request.”
¶ 19 As to plaintiff’s request for a copy of the video in VHS format rather than DVD, Passwater
averred:
“The video, which was [plaintiff’s] request ‘A’, was taken of him
on the evening of March 23, 2003, the night of the murder. The
video was in VHS form and was found in the police file. Technology
has changed in 13 years. In 2016, when the request was made, the
police department did not have the capability to copy this to VHS.
We searched for and found an outside company which also did not
have the capability to copy this to VHS. The company could only
copy the video to DVD format. So that is how we proceeded.”
¶ 20 With respect to the video enhancements performed by the FBI, the City explained that it
did not have the material. According to Passwater:
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“There was no enhanced video in the files I reviewed as requested
by [plaintiff] in ‘B’. The case was prosecuted by the United State’s
Attorney and the FBI enhanced the video, not the Kankakee Police
Department.”
¶ 21 Plaintiff responded to the City’s motion to dismiss, but he did not attach any counter-
affidavits to rebut the evidence contained in the City’s motion.
¶ 22 Ultimately, the circuit court granted the City’s motion to dismiss. The court found that the
City tendered all records, videos, and other documents to plaintiff pursuant to his FOIA request.
The circuit court also concluded that the City conducted an adequate search pursuant to FOIA for
the requested information not tendered in response.
¶ 23 II. ANALYSIS
¶ 24 On appeal, plaintiff contends that the circuit court erred in granting defendant’s motion to
dismiss. Section 2-619(a)(9) of the Code provides for involuntary dismissal of a claim, based on
“affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9)
(West 2016). A section 2-619 motion to dismiss accepts as true all well-pleaded facts and raises
questions of law. Nettleton v. Stogsdill, 387 Ill. App. 3d 743, 759 (2008). Our review is de novo.
Id. at 759.
¶ 25 Plaintiff raises several arguments as to why the trial court erred when it dismissed his
complaint. He contends: (1) there is an issue of fact as to the adequacy of the City’s search for
responsive records; (2) the City should have provided him with a VHS copy of the video recording
rather than in DVD format; (3) the City failed to produce the enhanced videos created by the FBI;
and (4) the City failed to respond to his August 15, 2018, FOIA request. We discuss each argument
in turn.
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¶ 26 First, plaintiff contends that there exists an issue of fact as to the adequacy of the City’s
search for records. Plaintiff speculates that more records existed in the City’s possession than it
provided to him in response to his FOIA requests. Accepting the City’s evidence in support of its
motion to dismiss, we find that it performed an adequate search for the records plaintiff requested.
Therefore, the trial court did not err when it determined that the City performed an adequate search
for the requested records.
¶ 27 When a plaintiff questions the adequacy of the search an agency made in order to satisfy a
FOIA request, the factual question raised is whether the search was reasonably calculated to
discover the requested documents, not whether it actually uncovered every document extant.
Meeropol v. Meese, 790 F.2d 942, 950-51; Weisberg v. U.S. Department of Justice, 705 F.2d 1344,
1357 (1983). Mere speculation that uncovered documents may exist does not undermine the
finding that the agency conducted a reasonable search for them. Weisberg, 705 F.2d at 1351-52;
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (1981).
¶ 28 Here, defendant submitted the affidavit of Passwater detailing his search for records
responsive to plaintiff’s requests. The affidavit satisfied the City’s responsibilities under FOIA.
Passwater’s affidavit stated that he reviewed the department’s electronic database and located the
case file which would contain the responsive material. The City then produced the responsive
material it found to plaintiff, and explained that for part of his request, there were no responsive
records. Passwater’s affidavit also affirmatively stated that there “were no other locations to search
within the Kankakee Police Department that would have revealed records responsive to
[plaintiff’s] request.”
¶ 29 In response to the City’s motion to dismiss, plaintiff needed to submit a counteraffidavit to
rebut the City’s affidavits. “Agency affidavits are accorded a presumption of good faith, which
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cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’ ” SafeCard Services, Inc. v. Securities & Exchange Comm’n, 926 F.2d 1197, 1200
(1991) (quoting Ground Saucer Watch, Inc., 692 F.2d at 771). “In order to refute evidentiary facts
contained in the defendant’s supporting affidavits, the plaintiff must provide a counteraffidavit.
[Citation.] If the plaintiff fails to provide a counteraffidavit to challenge the facts alleged in the
defendant’s supporting affidavits, the facts of defendant’s affidavits are deemed admitted.”
Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287, 291 (2010). Plaintiff failed to submit
a counteraffidavit. To the contrary, plaintiff only offered speculative arguments that additional
documents may exist. Plaintiff’s unsupported allegations are insufficient to rebut the City’s
uncontroverted affidavits of its exhaustive search for responsive documents. Thus, there is no issue
of fact as to the adequacy of the City’s search for documents responding to plaintiff’s FOIA
requests.
¶ 30 Next, plaintiff contends that the City failed to comply with FOIA when it provided him
with a DVD copy of the VHS recording. According to plaintiff, the City should have provided him
with a copy of the video in VHS format. As the only method of copying the video available to the
City was to use a DVD, we find that the City properly responded to plaintiff’s FOIA request.
Therefore, we find plaintiff’s argument that the City failed to provide him with a proper copy of
the video is moot.
¶ 31 FOIA requires public bodies to make public records available to any person for inspection
or copying. 5 ILCS 140/3 (West 2016). “Copying” is defined as “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.” (Emphasis added.) Id. § 2(d).
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¶ 32 Here, the City demonstrated it lacked the capability to copy the video to VHS. The City
took possession of the video in VHS form in 2003. Plaintiff then waited 13 years to request a copy
of the VHS. As with the passage of time, new technology made it unfeasible for the police
department to copy it in VHS format. The City found an outside company that could copy the VHS
to DVD, but it did not have the capability of copying it to VHS. Plaintiff failed to file a
counteraffidavit to rebut the City’s claim. Moreover, plaintiff did not allege the existence of any
alternative option for the City to use to copy the video to a VHS. Thus, the City satisfied the
requirements of FOIA by providing plaintiff with a copy of the recording in the format available
to it.
¶ 33 As a result, plaintiff’s claim that the City failed to provide him with a copy of the VHS
recording is moot. “A claim is moot when no actual controversy exists or events occur which make
it impossible for a court to grant effectual relief.” Duncan Publishing, Inc. v. City of Chicago, 304
Ill. App. 3d 778, 782 (1999). Where the plaintiff has received what he sought, his action should be
dismissed as moot. Id. The mootness doctrine is applied to FOIA claims once the requested records
have been produced. Roxana Community Unit School District No. 1 v. Environmental Protection
Agency, 2013 IL App (4th) 120825, ¶ 42. Here, the City provided plaintiff with the requested video
and his claim is now moot.
¶ 34 Next, plaintiff contends that the City failed to provide him with the enhanced videos created
by the FBI in 2003. There is no evidence that the City possessed such videos. In fact, Passwater’s
affidavit stated the department did not have any enhanced videos in its possession. As plaintiff
failed to file a counteraffidavit to rebut Passwater’s affidavit, we find the City did not violate FOIA
by denying plaintiff’s request for items it did not possess.
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¶ 35 Finally, plaintiff contends that the City failed to respond to a FOIA request he sent to the
City on August 15, 2018. This claim is not properly before this court. Plaintiff did not raise this
argument in the trial court. Issues not raised in the trial court are waived and may not be raised for
the first time on appeal. Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 58.
Therefore, we will not address this argument. Accordingly, we find the circuit court did not err
when it dismissed plaintiff’s complaint.
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee County.
¶ 38 Affirmed.
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