In a decision that a prevailing lawyer called “historic,” a state appeals court has ruled that the public should be able to access Chicago Police Department records of officer misconduct.
A 1st District Appellate Court panel determined that it will apply current Illinois Freedom of Information Act language in disputes over public records request exemptions, even when a case arose from an earlier version of the law.
In November 2009, freelance journalist Jamie Kalven filed FOIA requests with CPD for lists that identify officers who have received multiple complaints of misconduct as well as complaint register files that document misconduct complaints against specific officers charged with repeated abuse.
After CPD denied his requests, Kalven filed a lawsuit in Cook County Circuit Court against the city of Chicago and CPD on Dec. 22, 2009. Ten days later, a new version of the Freedom of Information Act took effect.
Associate Judge Neil H. Cohen ruled the so-called repeater lists were not exempt under FOIA but that complaint registers were exempt since they were records related to adjudication of disciplinary cases.
Both Kalven and the city appealed the ruling. Before the appellate court determined how FOIA applied to the different types of files, it had to determine which version of FOIA it would apply.
An older version of the law used the phrase “related to” in referring to rules that exempt certain public documents from adjudication. A 2010 amendment to that law, however, changed those words to “information concerning” those records.
Kalven argued the panel should use the earlier law, as it was in effect when CPD denied the FOIA request. The city argued for the current version of the law.
In a 17-page opinion written by Justice Maureen E. Connors, the majority examined the particular type of relief granted by courts in FOIA disputes.
“Injunctive and declaratory relief are prospective forms of relief because they are concerned with restraining or requiring future actions rather than remedying past harms,” Connors wrote. “When claims are prospective, a court must apply the law that is in effect at the time of its decision.”
The court must apply the current version of the statute to determine if Kalven is entitled to the documents, Connors wrote.
Even a seemingly minute change in wording, the ruling says, indicates an intentional alteration of a law by the legislature.
In applying the merits of the case under the current law, the panel disagreed with Cohen’s ruling that complaint registers were exempt, because the exemption only applies to documents linked to formal legal proceedings.
“The CRs are created to investigate reports of police misconduct, and any disciplinary adjudication that may take place as a result of the CRs comes later,” Connors wrote. “While information obtained during the investigation may potentially be introduced during adjudication of a disciplinary case, a CR does not initiate that adjudication, nor can CRs themselves be considered disciplinary.”
During oral arguments, the city conceded that complaint registers would be exempt from the old version of FOIA but not from the current one, she wrote.
Kalven was represented by Craig Benson Futterman, a clinical professor at the University of Chicago Law School’s Edwin F. Mandel Legal Aid Clinic and Jon Loevy and Samantha A. Liskow of Loevy & Loevy. Oral arguments before the appellate court were handled by third-year University of Chicago law students F. Italia Patti and Saul D. Cohen.
Loevy called the decision an important, historic victory.
“Police officers are public servants,” he said. “If there’s a complaint about misconduct, the public has a substantial interest.”
Futterman said the decision will hopefully force CPD to improve its practices and build more trust with the citizens it serves.
“The police department has fought tooth and nail for years to prevent information about its practices (from being known),” he said. “The city’s continued position here and before, refusing to look and address those patterns, has been a fundamental barrier to accountability and public trust.”
Futterman said while his client disagrees with the court’s ruling that FOIA disputes will be reviewed under the current law, the end result is no different.
“The records belong to the public under either version of the law,” he said.
Justice Joy V. Cunningham concurred with Connors’ opinion that was released Monday.
In a two-page special concurrence, Justice Mathias W. Delort agreed with the exemption aspect of the ruling but took issue with the majority’s decision to apply current FOIA law.
The new FOIA law is less generous to requestors than the old one, and applying the current statue could create new tactics for governments.
“To hold otherwise would encourage governmental bodies to stall FOIA responses until some future time when the legislature might amend the statute in a favorable manner, or to actively lobby for an amendment which shields particular or embarrassing records from disclosure,” Delort wrote.
Attorney Donald M. Craven, owner of Donald M. Craven P.C. in Springfield, represents journalists, media outlets and media trade groups, including the Illinois Press Association, on matters of government access and transparency.
He said that attempts to change FOIA rules are constant inside the Illinois Capitol.
“Every legislative session, there are a handful … of bills brought by governmental bodies to amend the exemptions to FOIA or the Open Meetings Act,” he said.
But he’s never linked those efforts to directly outmaneuvering pending FOIA requests, he said. Craven also noted that groups hoping to gain access could as easily lobby to open current restrictions.
“It cuts both ways,” he said.
In a written statement, city spokeswoman Shannon Breymaier said the city plans to appeal the case.
The case is Jamie Kalven v. The City of Chicago, et al., 2014 IL App (1st) 121846.