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October 17, 1997


Appeal from the Circuit Court of Du Page County. No. 95--CH--0748. Honorable Bonnie M. Wheaton, Judge, Presiding.

Released for Publication November 18, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Defendant, the City of Chicago (the City), appeals from the trial court's order holding it in contempt for refusing to produce to plaintiffs, the People of the State of Illinois by State's Attorney Joseph E. Birkett; the County of Du Page; the Village of Bensenville; the City of Elmhurst; and the City of Wood Dale, documents that the City alleges were protected from disclosure by the governmental "deliberative process privilege." The City also appeals from the court's order authorizing counsel for plaintiffs to view the documents that the City claims are privileged.

The pleadings allege the following facts. The communities of Bensenville, Elmhurst, and Wood Dale, as well as portions of Du Page County not incorporated within any municipality are located in close physical proximity to O'Hare International Airport (O'Hare), which the City of Chicago owns and controls. Flights to and from the airport create severe noise, air pollution, and safety concerns among plaintiffs' citizens.

In their amended complaint, plaintiffs asserted that the City had constructed and planned to build several hundred million dollars of construction projects at O'Hare without obtaining a certificate of approval from the Illinois Department of Transportation as required under section 47 of the Illinois Aeronautics Act (620 ILCS 5/47 (West 1994)). Plaintiffs further asserted that the intended purpose of the construction at O'Hare was to expand incrementally the capacity of the airport to allow more flight operations to land and take off at O'Hare thereby causing communities under the flight paths to suffer greater frequency and intensity of noise and air pollution. Plaintiffs sought an order prohibiting the City from continued construction of current and proposed elements of the City's piecemeal expansion program until the City obtained the required certificate of approval from the Illinois Department of Transportation.

On February 2, 1996, plaintiffs requested the City to produce all documents relating to plans or discussions of past, present, and proposed alterations, modifications, and construction at O'Hare. The City objected to plaintiffs' requests citing, inter alia, a deliberative process privilege. Plaintiffs filed a motion to compel, asserting that the City had failed to identify in its objections which documents were allegedly covered by the privilege. Plaintiffs claimed that they had offered to agree to the entry of a protective order to protect any documents as to which a deliberative process privilege was properly invoked and to refrain from disclosing the documents for any purpose outside the litigation, but the City had declined the offer.

In its response to plaintiffs' motion to compel, the City stated that plaintiffs' offer to enter into a protective order overlooked the total irrelevance of the documents sought. Also, such an order would effectively undermine the ability of city officials to engage in discussions and deliberations in a direct, candid, and confidential manner, free from outside intrusions. The City asserted that it was not claiming the deliberative process privilege with regard to any final actions for any past or present construction projects but only as to those documents which related to discussions, plans, opinions, or forecasts for the future.

Plaintiffs replied to the City's response, pointing out that no Illinois court had yet recognized the deliberative process privilege and that, even if recognized in Illinois, the City had not properly raised the privilege. Also, plaintiffs stated, the City sought to withhold broad categories of documents, none of which had been identified.

Following a hearing conducted on May 20, 1996, the trial court granted plaintiffs' motion to compel. The court ordered the City to produce promptly the documents sought in plaintiffs' request. In so ruling, the court expressed its reluctance to find that a deliberative process privilege existed in this particular case, "if indeed one exists at all," as the documents requested appeared to have been disclosed to third parties. The court ordered that if the City wished to withhold any documents, which had not been disclosed to anyone who was not a city employee, those documents could be produced to court in camera with a privilege log, asserting recognized privileges.

On June 28, 1996, the City filed a motion for clarification and reconsideration of the court's May 20 order. The City interpreted the court's order as allowing it to assert the deliberative process privilege. Plaintiffs interpreted the order as not recognizing the privilege and that the City must produce all documents requested by plaintiffs except those protected by some other recognized privilege. The City requested the court to enter a protective order providing that the City may designate certain documents it produces as "Confidential" and limit their use and disclosure to the litigation.

On July 2, 1996, the trial court denied the City's motion to reconsider, finding the deliberative process privilege is not recognized in Illinois. Additionally, the court ordered the City to produce documents previously withheld from plaintiffs under the claimed deliberative process privilege. The court granted the City leave to file logs listing all documents marked "Deliberative Process Privilege" along with the corresponding documents. These documents would be kept under seal by the court. The court also ordered the parties to submit to a protective order relating to all documents marked "Confidential" and limiting the disclosure of these documents.

On July 30, 1996, the court entered the protective order contemplated by its July 2 ruling. The order provided that the alleged deliberative process documents as well as documents containing commercial airlines' confidential business information were to be used solely for purposes of the litigation. These documents would be disclosed to only one representative of each plaintiff, to plaintiffs' attorneys, and to persons retained by plaintiffs or their counsel to assist in the litigation, such as experts. During the hearing at which the court entered the protective order, the City informed the court that it intended to withhold the alleged deliberative process documents from ...

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