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07/09/97 WESLEY J. BRAZAS v. KENNETH R. RAMSEY

July 9, 1997

WESLEY J. BRAZAS, JR., PLAINTIFF-APPELLANT,
v.
KENNETH R. RAMSEY, SHERIFF OF THE KANE COUNTY SHERIFF'S DEPARTMENT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 95--MR--256. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication August 8, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and McLAREN, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Wesley Brazas, Jr., appeals from the August 8, 1996, order of the circuit court of Kane County denying his motion for attorney fees pursuant to the Illinois Freedom of Information Act (the Act) (5 ILCS 140/11(i) (West 1994)). The plaintiff filed the motion after he prevailed on his complaint to obtain copies of recorded telephone conversations involving members of the Kane County sheriff's department (the Sheriff's Department). The trial court denied the motion, finding that the plaintiff was not entitled to attorney fees because the Sheriff's Department had not acted in bad faith in withholding the requested tapes. We affirm.

On May 15, 1995, the plaintiff made a written request, pursuant to section 3 of the Act (5 ILCS 140/3 (West 1994)), to obtain copies of certain taped telephone calls made into and out of the Sheriff's Department on April 30, 1995. Specifically, the plaintiff requested copies of the following recorded calls: (1) a "911" call made by the plaintifff's former wife to the Sheriff's Department at 2:00 a.m.; (2) a call made by the Sheriff's Department to the plaintiff's father at 2:15 a.m.; (3) a call made by the plaintiff to the Sheriff's Department at 3:00 a.m.; and (4) a call made by the Sheriff's Department to the plaintiff at 3:30 a.m.

On June 1, 1995, the Sheriff's Department sent a letter to the plaintiff denying his request. The letter explained that the recordings were exempt from disclosure under the Act because their release "would constitute a clearly unwarranted invasion of personal privacy." The letter also explained that the recordings could not be released because they contained "information revealing the identity of persons who filed complaints with or provided information to investigative, law enforcement or penal agencies." On June 13, 1995, the plaintiff sent a written appeal of this denial to Kenneth Ramsey, the sheriff of Kane County. The plaintiff never received a response to his written appeal.

On July 24, 1995, the plaintiff filed a pro se complaint to obtain the tape recordings pursuant to section 11(a) of the Act (5 ILCS 140/11(a) (West 1994)). The complaint named Ramsey as the defendant. On May 28, 1996, the plaintiff filed a motion for summary judgment arguing that the Sheriff's Department had no valid basis for withholding the taped recordings. The plaintiff requested that the Sheriff's Department be compelled to release the tape recordings and that he be reimbursed for his attorney fees in prosecuting the action.

In response to the motion, the defendant argued that the requested recordings were exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c)(vii) of the Act (5 ILCS 140/7(1)(b), 7(1) (c) (vii) (West 1994)). These provisions provide that disclosure is not required in those instances where such disclosure will result in an unwarranted invasion of personal privacy (5 ILCS 140/7(1)(b) (West 1994)) or will endanger the life or physical safety of any person (5 ILCS 140/7(1)(c)(vii) (West 1994)). The defendant argued that the relationship between the plaintiff and his former wife was tense and hostile and that the disclosure of the recordings might escalate the situation and endanger someone's physical safety. In support of this position, the defendant submitted the affidavit of Commander John Marszalek, an officer with the Sheriff's Department.

On August 8, 1996, the trial court conducted a hearing on the plaintiff's motion for summary judgment. At the hearing, the defendant's attorney indicated that the Sheriff's Department was willing to release the requested recordings to the plaintiff. The recordings were then tendered to the plaintiff in open court. At this time, the plaintiff renewed his motion for attorney fees pursuant to section 11(i) of the Act (5 ILCS 140/11(i) (West 1994)). The trial court denied the motion, finding that the Sheriff's Department had acted in good faith in withholding the tapes. The trial court explained its ruling as follows:

"I find that the Sheriff acted in good faith, and that the reasons presented [for denying the request] were reasonable, and that upon the matter being brought before the Court, the Sheriff responded promptly.

There was a reasonable concern for the safety of others. Frankly, I see that just in your demeanor before me, Mr. Brazas, you are sitting here as a time bomb ready to explode. That's why you have security in this courtroom."

The trial court proceeded to enter an order granting the plaintiff's motion for summary judgment as to the disclosure of the recordings and denying the motion as to the request for attorney fees. The plaintiff filed a timely pro se notice of appeal.

Prior to reaching the merits of the plaintiff's arguments on appeal, we must initially address two motions which have been taken with the case. The plaintiff has filed a motion seeking to strike the statement of facts in the defendant's brief. The plaintiff argues that the defendant has not stated the facts accurately and has also failed to support his statements with citations to the record. See 155 Ill. 2d R. 341(e)(6). The defendant has also filed a motion to strike, ...


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