Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » Illinois » 5th District Appellate » 2001 » Carter v. Meek
Carter v. Meek
State: Illinois
Court: 5th District Appellate
Docket No: 5-98-0329 Rel
Case Date: 05/22/2001

Rule 23 order filed
April 17, 2001;
Motion to publish granted
May 22, 2001.

NO. 5-98-0329

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


MICHAEL D. CARTER, JR.,

          Petitioner-Appellant,

v.

RONALD J. MEEK, Sheriff of Effingham
County,

          Respondent-Appellee.

)
)
)
)
)
)
)
)
)
)
Appeal from the
Circuit Court of
Effingham County.

No. 98-CH-4


Honorable
James R. Harvey,
Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court:

Michael D. Carter, Jr. (petitioner), appeals the judgment of the circuit court ofEffingham County. The trial court denied petitioner's request for the disclosure of materialsfrom Ronald J. Meek, Effingham County sheriff (respondent). Petitioner presents four issuesfor review: (1) whether the trial court was biased towards the sheriff's department, thusdenying petitioner a fair hearing, (2) whether the government met its burden of proving thatthe materials fit into the statutory exemption, (3) whether an in camera review is sufficientadversarial testing to hold material exempt from disclosure, and (4) whether the decision totreat the documents as a whole, as opposed to disclosing portions of the materials, was inerror. We affirm in part and reverse in part and remand.

I. FACTS

On December 8, 1997, petitioner, pursuant to Illinois's Freedom of Information Act(Act) (5 ILCS 140/1 et seq. (West 1996)), requested a copy of the Effingham County SpecialOperations Group Special Services Team Policy and Procedural Manual (SOG Manual) anda copy of any policy directive issued by the sheriff's department dated between December1, 1997, and December 8, 1997, with a reference to petitioner (memorandum). Respondentdenied petitioner's request. Petitioner appealed the decision to the head of the public bodypursuant to section 10(a) of the Act (5 ILCS 140/10(a) (West 1996)). The appeal was denied. Petitioner filed suit for injunctive relief in the circuit court pursuant to section 11 of the Act(5 ILCS 140/11 (West 1996)).

On April 28, 1998, the trial court granted respondent's request for a continuance overpetitioner's objection and demand for a hearing on the merits. The next scheduled hearingwas on May 19, 1998. At this hearing, respondent filed a motion for summary judgment. However, respondent did not comply with Fourth Judicial Circuit Rule 5-1(e) (4th JudicialCir. Ct. R. 5-1(e) (eff. November 16, 1984)), requiring 10 days' written notice on motions forsummary judgment. Petitioner objected to the failure to comply with Rule 5-1(e), and thetrial court offered petitioner a choice between (1) granting another continuance to allowproper notice and (2) proceeding on the motion for summary judgment. While noting hisobjection, petitioner agreed to a continuance until May 28, 1998.

At the May 28, 1998, hearing, petitioner objected to respondent not giving therequired 10 days' written notice for a motion for summary judgment. The trial courtdismissed the objection because at the May 19, 1998, hearing, petitioner knew of thesummary judgment motion and, since May 28 was only nine days after May 19, it wasimpossible for respondent to conform with Rule 5-1(e). The trial court reasoned that eventhough the notice was technically defective, petitioner had sufficient notice to maintainfairness in the proceeding. Next, the trial court proceeded with the summary judgmenthearing. The court granted respondent's motion for summary judgment, holding that theSOG Manual was exempt pursuant to sections 7(w) and 7(z) of the Act (5 ILCS 140/7(w),(z) (West 1996)) and that any memorandum was exempt pursuant to section 7(w) of the Act. Petitioner timely appealed.

II. ANALYSIS

The purpose of the Act is to give citizens the right to open and accessible informationconcerning the affairs of government. 5 ILCS 140/1 (West 1996); Lieber v. Board ofTrustees of Southern Illinois University, 176 Ill. 2d 401, 407, 680 N.E.2d 374, 377 (1997);American Federation of State County & Municipal Employees (AFSCME), AFL-CIO v.County of Cook, 136 Ill. 2d 334, 341, 555 N.E.2d 361, 363 (1990); Bowie v. EvanstonCommunity Consolidated School District No. 65, 128 Ill. 2d 373, 378, 538 N.E.2d 557, 559(1989); Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 534-35, 548 N.E.2d 1110, 1113(1989); Hoffman v. Illinois Department of Corrections, 158 Ill. App. 3d 473, 475, 511N.E.2d 759, 760 (1987). The presumption is that requested information should be releasedunless the information falls within one of the exemptions outlined in section 7 of the Act (5ILCS 140/7 (West 1996)). See Lieber, 176 Ill. 2d at 407, 680 N.E.2d at 377; Bowie, 128 Ill.2d at 378, 538 N.E.2d at 559; Baudin, 192 Ill. App. 3d at 534-35, 548 N.E.2d at 1113. Inorder for a government agency to deny a request, it must bear the burden of proving that theinformation in question falls within a narrowly construed exemption. See Lieber, 176 Ill. 2dat 407-08, 680 N.E.2d at 377; County of Cook, 136 Ill. 2d at 343-44, 555 N.E.2d at 365;Baudin, 192 Ill. App. 3d at 535, 548 N.E.2d at 1113; Hoffman, 158 Ill. App. 3d at 476, 511N.E.2d at 761.

In this case, petitioner requested the SOG Manual and any memoranda fromDecember 1, 1997, to December 8, 1997, that mentioned petitioner. The trial court, after anin camera inspection, granted respondent's motion for summary judgment. The SOGManual and any memoranda were held exempt under section 7(w), which exemptsinformation relating solely to the internal personnel rules and practices of a public body. Thecourt held that the SOG Manual also fell under section 7(z)'s exemption of manuals thatrelate to the collection of liability for state tax or that relate to investigations to determine anyviolations of the criminal law.

A reviewing court shall conduct a de novo review of the evidence in all casesinvolving a summary judgment. See Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d342, 349, 701 N.E.2d 493, 496 (1998); Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333,662 N.E.2d 397, 402 (1996). In this case, the Effingham County sheriff's department is apublic body and an investigatory body and, therefore, is the type of government agency towhich the exemptions apply. However, the trial court erred in its interpretation of the lawapplicable to this case and, therefore, in applying it to the materials at issue.

Petitioner argues that Lieber and County of Cook state the applicable law in this case,not the Baudin case, which relied on a federal case, Crooker v. Bureau of Alcohol, Tobacco& Firearms, 670 F.2d 1051 (D.C. Cir. 1981). We agree with petitioner's argument. Thesupreme court, as stated in Lieber and County of Cook, noted that Illinois's act is differentthan the federal act and subject to a different interpretation. Accordingly, Baudin, with itsreliance on Crooker, is not applicable to this set of circumstances. As noted in County ofCook and Lieber, the statute is to be liberally construed in favor of disclosure, and theexemptions noted, including the exemptions relied upon by respondent-sections 7(w) and7(z)-are to be strictly construed. See also Carbondale Convention Center, Inc. v. City ofCarbondale, 245 Ill. App. 3d 474, 614 N.E.2d 539 (1993).

This matter comes before the court in an appeal of a summary judgment in favor ofrespondent on both of petitioner's requests for disclosure. It is basic law that in order for acourt to appropriately grant a summary judgment, there must be no genuine issue as tomaterial fact and the movant must be entitled to a judgment as a matter of law. It is alsobasic law that the motion is to be construed strictly against the movant. See Purtill v. Hess,111 Ill. 2d 229, 489 N.E.2d 867 (1986). We conclude that the trial court erred in determiningthat there was no genuine issue of material fact and in determining that the movant wasentitled to a judgment as a matter of law on both requests.

Considering first the sheriff's department manual, the court was correct in determiningthat it is a document the nature of which would come under the exemption noted in section7(w) (5 ILCS 140/7(w) (West 1996)). However, nothing in the record indicates that thedocument is not capable of a redaction of those contents which come under the exemptionof section 7(w). Such a manual would contain information relating to a public body'sinvestigatory procedures and other procedures designed to discharge its duties and for theenforcement of the law. Clearly, personnel information such as telephone numbers,addresses, cellular phone numbers, and sensitive material as to tactical reactions would fallunder the exemptions the legislature intended in section 7(w) of the Act. The record doesnot clearly show that the entire document, in every page and every sentence, containsmaterial that would properly fall under the exemption. Accordingly, while the trial court wascorrect in its basic categorization of the manual, the trial court erred in not redacting thoseportions of the manual that fall under the exemption and ordering respondent to disclose theremainder.

No such exemption, neither section 7(w) nor section 7(z), would apply to thememorandum concerning people, specifically attorneys, at the jail. This memorandumappeared to be aimed at petitioner. There is nothing in the record justifying thismemorandum being withheld after a request under the Act. Nothing in the record indicatesto this court, or is the basis for a trial court's finding, that a memorandum in the sheriff'sdepartment aimed at controlling access of attorneys, specifically petitioner, to clients in thecounty jail would fall under the exemption. We note that petitioner is a licensed attorneyand, therefore, an officer of the court. Therefore, we will assume, unless the record showsotherwise, that he poses no danger to the proper functioning of a law enforcement agencysuch that a memorandum concerning his activities in meeting clients in a county jail wouldcome under any of the narrowly construed exemptions the legislature has included in the Act.

The court has reviewed the memorandum and manual as a part of our de novo reviewand concludes the following concerning disclosure:

1. The memorandum consisting of three sheets dealing with petitioner is notexempt from disclosure.

2. The following sections of the manual are exempt from disclosure: section I,paragraphs B and C; section IV, paragraphs A and B; section V; section XI;SOG call-out sheets; SST call-out sheets; SST signals; and SST warrantoperations.

Accordingly, we hold that the trial court was correct in determining that the manualgenerally came under the exemption of section 7(w), but the court erred in failing to reviewthe manual with the purpose of redacting those exempt parts and ordering the disclosure ofthe remainder. We, therefore, affirm in part and remand with directions to order a redactionof the sections noted in the preceding paragraph and order a disclosure of the remainder ofthe manual instanter. We further hold that the trial court erred in determining that thememorandum of the sheriff's department was exempt under either section 7(w) or 7(z), andwe reverse and remand with directions to order the disclosure of the memorandum instanter.

Affirmed in part and reversed in part; cause remanded with directions.

CHAPMAN, P.J., and MAAG, J., concur.

Illinois Law

Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
    > Minimum Wage in Illinois
Illinois Agencies
    > Illinois DMV

Comments

Tips