Who can waive a FOIA exemption from disclosure—A mayor or police superintendent?

Plaintiff, Michael Dumke, a Chicago journalist, submitted a FOIA request in August 2010 to the superintendent of the Chicago Police Department seeking all records from a 2009 pro bono assessment of police operations by A.T. Kearney and the Civil Consulting Alliance.

The FOIA request followed a press conference by then Mayor Richard M. Daley, who discussed reassignment of police officers from administrative duties to patrol duty in the attempt to fight street crimes. Mayor Daley discussed the study and identified the consultants.

After the objection from the Police Superintendent who claimed the request was “unduly burdensome,” plaintiff narrowed the request to the final report of the consultants. The Police Superintendent again denied the request under section 7(1)(f) of FOIA (5 ILCS 140/7(1)(f)). Section 7(1)(f) exempts from public disclosure preliminary drafts, notes and recommendations or policies or actions formulated by a public body except where the record is cited or identified by the head of the public body.

Plaintiff filed suit in the Circuit Court of Cook County to contest denial of his FOIA request. The Circuit Court granted the City’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment. On appeal, the Appellate Court was required to determine whether the Mayor waived the exemption from disclosure under section 7(1)(f) by discussing the study in detail at his press conference.

The City abandoned the argument on appeal that only the Police Superintendent and not the Mayor could waive the exemption under FOIA. The Appellate Court found that issue to be worth addressing because the issue may arise in the future.

The Appellate Court determined that the “head of the public body” in City of Chicago government is the Mayor as Chief Executive of City government. The Police Superintendent is appointed by the Mayor. The Appellate Court also concluded that the Circuit Court erred in granting summary judgment when it found that only the Police Superintendent could waive a FOIA exemption when the FOIA request was made for a document involving police operations.

The Appellate Court focused its opinion on whether the consultant’s report was exempt under section 7(1)(f) where it was publicly cited and identified by the “head of the public body.” The Court found the report, once publicly cited and identified, was not exempt even if the report was never adopted by the public body.

The Appellate Court went into detail to determine what constitutes public citation and identification. There was no legislative history or authority to determine what amounts to public citation and identification. The Court quoted at length portions of the Mayor’s press conference and subsequent press release in finding that the public statements were sufficient to constitute a waiver of exemption under section 7(1)(f). The Court even noted that the video of the press conference was put on the Mayor’s You Tube site.

Lastly, the City argued even if the section 7(1)(f) exemption was waived the case should be remanded to the Circuit Court for an in camera inspection of what should be produced. The Appellate Court rejected the argument because the City argued against in camera inspection in the Circuit Court. Judicial estoppel bars taking a position on appeal that is contrary to a party’s position in the trial court. The Court reversed the trial court’s grant of summary judgment in favor of the City and, instead, granted summary judgment in favor of the plaintiff. Michael Dumke v. City of Chicago 2013 IL App (1st) 121668. ■

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January 2014Volume 15Number 2PDF icon PDF version (for best printing)