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07/15/87 Charles Hoffman, v. the Department of

July 15, 1987

CHARLES HOFFMAN, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

511 N.E.2d 759, 158 Ill. App. 3d 473, 110 Ill. Dec. 582 1987.IL.991

Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE and FREEMAN,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff, Charles Hoffman, filed a complaint for injunctive relief under the Illinois Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). Plaintiff seeks from defendant, Illinois Department of Corrections (Department), disclosure of information relating to the implementation of the Illinois death penalty statute. (Ill. Rev. Stat. 1985, ch. 38, par. 119-5.) Following a hearing, and an in camera inspection of material tendered by the Department, the trial court entered an order requiring the Department to disclose portions of the material reviewed in camera, and exempting the remaining portions from disclosure. The Department appeals, contending that it is not required to disclose any of the material. We affirm, and remand with directions.

Plaintiff seeks information as to what drugs are to be used by the Department to execute people pursuant to the Illinois death penalty statute. Plaintiff also seeks information as to "the dosage and rate of administration of those drugs, and whether provision had been made for FDA approval of the manner and methods of the procedure, etc." The Department contends that all of the material that it has relating to plaintiff's request is exempt from disclosure under the FOIA because it is preliminary material as a matter of law. The Department relies upon section 7(f) of the FOIA, which provides that "[preliminary] drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated" are exempt from public disclosure. Ill. Rev. Stat. 1985, ch. 116, par. 207(f).

The Department contends that all of the material involved in this case is preliminary material as a matter of law on the basis of two affidavits filed by the Department. One of the affidavits was executed on May 22, 1985, by Leo Meyer, a Deputy Director of the Department. In his affidavit, Meyer states that pursuant to the "recent statutory amendments" which require executions to be made by lethal injection, he directed his staff to prepare a draft for procedures to govern such executions. According to Meyer, the draft which he received from his staff "has remained at all times a preliminary draft which has not yet received approval from the Director of this agency." The other affidavit was executed on June 27, 1985, by the Department's Director, Michael Lane. The affidavit provides that Lane has never authorized or approved any procedures for executions by lethal injection.

The main purpose of the FOIA is to ensure that the public be given full and complete information regarding the affairs of government. *fn1 (See Ill. Rev. Stat. 1985, ch. 116, par. 201.) Governmental agencies cannot clothe material regarding the affairs of government with an exemption from public disclosure by ipse dixit statements that the material is part of a preliminary draft. If it appears that governmental material is de facto part of a final document, rather than a preliminary draft, it is subject to public disclosure under the FOIA regardless of protestations by the governmental agency. A reliance upon self-determination by public officials and public employees as to what should and what should not be disclosed to the public would frustrate the purpose of the FOIA. Compare Dudman Communications Corp. v. Department of Air Force (D.C. Cir. 1987), 815 F.2d 1565, 1569 (referring to the Federal Freedom of Information Act: "If a person requests particular factual material- e.g., material relating to an investigation of a war crime-an agency cannot withhold the material merely by stating that it is in a draft document.").

Moreover, section 11(e) of the FOIA allows a court to conduct an in camera examination of requested records to determine if such records, or any part, may be withheld from examination under any provision of the FOIA. (Ill. Rev. Stat. 1985, ch. 116, par. 211(e).) It follows that whether any requested material is a preliminary draft within the meaning of the statute is a question of fact to be determined by the trial court, rather than by officials of the Department. We therefore conclude that the affidavits filed by the Department do not render the material exempt from public disclosure as a matter of law.

In deciding whether the material produced by the Department was preliminary or final, the trial court examined the material in camera. After making its in camera examination, the trial court stated:

"It looked to me like it was a final draft.

All I had was an affidavit of a party that said that this was a preliminary draft, and the draft itself did not indicate it was preliminary, but indicated it was final, to the Court it was final.

Let the record show on the material that was submitted it did not appear to this Court it was a preliminary memorandum. It appeared to ...


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