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O'neal Johnson v. Officer Kemps

June 20, 2011

O'NEAL JOHNSON, PLAINTIFF,
v.
OFFICER KEMPS, A.D. (BADGE # 16145),
OFFICER CAHILL, B.J. (BADGE # 19478), OFFICER KERR, L.W. (BADGE # 4871), OFFICER ALONSO, J. (BADGE # 18523), AND UNKNOWN POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

O'Neal Johnson brought this suit against several Chicago police officers complaining of false arrest, malicious prosecution, unlawful search, conspiracy, and intentional infliction of emotional distress. Before the court is the defendants' motion for entry of a protective order. Johnson has raised three objections to the defendants' proposed protective order. First, Johnson argues that Complaint Register files ("CR files") regarding cases in which discipline was imposed should not be subject to a provision that: (a) prevents their public disclosure for at least 30 days while the producing party reviews them to ensure that they have been properly redacted and are suitable for release, and (b) requires any disputes to be resolved via an in camera review by the court before the CR files can be released. Second, Johnson argues that he should be allowed to retain a copy of all documents filed with the court, including documents filed under seal. Third, Johnson argues that the producing party should bear the burden of filing a motion to maintain its confidentiality designation when the parties cannot agree whether a certain document is confidential.

I. LEGAL STANDARD

"Absent a protective order, parties to a law suit may disseminate materials obtained during discovery as they see fit." Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (citing Okla. Hosp. Ass'n v. Okla. Pub. Co., 748 F.2d 1421, 1424 (10th Cir. 1984)); but cf. Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009) ("Generally speaking, the public has no constitutional, statutory (rule-based), or common-law right of access to unfiled discovery."). "Given the 'extensive intrusion into the affairs of both litigants and third parties' that is both permissible and common in modern discovery, the rules provide for the use of protective orders, entered 'for good cause,' to protect litigants and third parties from the 'annoyance, embarrassment, oppression, or undue burden or expense' that may attend the discovery process." Bond, 585 F.3d at 1067 (citing Fed. R. Civ. P. 26(c)(1) and Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 (1984)). "To determine whether a party has shown good cause, the district court must balance the parties' interests, taking into account the importance of disclosure to the non-movant and the potential harm to the party seeking the protective order." Calhoun v. City of Chi., No. 10 C 0658, --- F.R.D. ----, 2011 WL 1364028, at *1 (N.D. Ill. Apr. 8, 2011) (citing Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997)).

II. ANALYSIS

I. Whether CR files regarding cases in which discipline was imposed should be subject to a provision that: (a) prevents their public disclosure for at least 30 days while the producing party reviews them to ensure that they have been properly redacted and are suitable for release, and (b) requires any disputes to be resolved via an in camera review by the court before the CR files can be released.

The parties each rely in part on the Illinois Freedom of Information Act ("IFOIA") in disputing whether the defendants have good cause for imposing restrictions on Johnson's use of CR files regarding cases in which discipline was imposed. IFOIA sets forth Illinois' policy that the public should have access to information regarding the acts of public officials and employees. 5 ILL. COMP. STAT. 140/1 (2011) (effective January 1, 2010). However, Section 7(1)(n) of IFOIA exempts from public disclosure "[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases," but notes that "this exemption shall not extend to the final outcome of cases in which discipline is imposed." 5 ILL. COMP. STAT. 140/7(1)(n) (2011) (effective March 1, 2010). Johnson contends that: (1) per Section 7(1)(n) of the IFOIA, CR files regarding cases in which discipline has been imposed are public records, and

(2) the 30-day delay and the possibility that the producing party may ultimately withhold the CR files as unsuitable for disclosure, leading the opposing party to request that the court perform an in camera review, burdens him and the court. Johnson points out that he may want to use these CR files as evidence for a summary judgment motion; these restrictions on his access to these CR files are inconvenient and may require extra work for him and the court.

For their part, the defendants argue that under IFOIA, only the final outcome of a case in which discipline was imposed is a public record; the rest of the CR file is exempted from public disclosure. The defendants also point out that releasing the CR files to the public could subject the defendants and third parties to harm since the files might include information about confidential ongoing law enforcement investigations, pending criminal investigations, the identity of witnesses, the identity of individuals complaining about police officers (some of whom might be minors), and documents protected by law enforcement or deliberative process privileges.

As an initial matter, "IFOIA does not control this court's determination of whether 'good cause' has been shown to protect the CR[ files]." Calhoun, 2011 WL 1364028, at *2 (citing Rangel v. City of Chi., No. 10 C 2750, 2010 WL 3699991, at *2 (N.D. Ill. Sept. 13, 2010)). However, to the extent that IFOIA suggests that the defendants have a privacy interest in the CR files under Illinois law, IFOIA is helpful in determining whether the defendants have shown good cause for this provision of the protective order. The court notes that the parties agree that the protective order should define CR files as "records relating to a public body's adjudication of employee grievances or disciplinary cases." (Defs.' Mot. for Entry of Protective Order Ex. A at 2; Pl.'s Resp. Ex. 1 at 2.) However, whether CR files necessarily relate to an adjudication, making IFOIA's Section 7(1)(n) applicable, is an unsettled question. See Calhoun, 2011 WL 1364028, at *2 (noting that courts in this district have differed on the question). For purposes of resolving this motion, the court will assume without deciding that the CR files relate to an adjudication.

Turning to the parties' quarrel over the breadth of IFOIA's Section 7(1)(n) exception, the defendants correctly point out that Section 7(1)(n) of IFOIA clearly states that the provision exempting from public disclosure records relating to a public body's adjudication of employee grievances or disciplinary cases "shall not extend to the final outcome of cases in which discipline is imposed." 5 ILL. COMP. STAT. 140/7(1)(n) (2011) (effective March 1, 2010) (emphasis added). Johnson would have this court rewrite IFOIA so that it states something to the effect of "this exemption [from public disclosure] shall not extend to records relating to a public body's adjudication of employee grievances or disciplinary cases where discipline has been imposed." However, this court is not at liberty to rewrite state legislation. It is clear that only the final outcome of a disciplinary case or employee grievance, and not all records relating to a case in which there is a final outcome, is excepted from the exemption from public disclosure set forth by IFOIA's Section 7(1)(n).

Given the foregoing and the harms that could result from public disclosure of CR files, the court finds that the defendants have good cause for the provision restricting Johnson's use of the CR files. However, as the court has noted before, a 30-day period in which the producing party can review the CR files to make sure that they have been properly redacted and are suitable for disclosure is too long and would unduly prejudice Johnson, who may want to, for example, submit the CR files as evidence in support of a motion. See Calhoun, 2011 WL 1364028, at *1 ("The provision seems reasonable to the court, although 30 days seems like more time than is required for defendants to review the records. The court will overrule Calhoun's objection to this provision, but defendants should modify the order to provide 7 days for reviewing any proposed public release of CRs."). Accordingly, the parties shall revise this provision of the protective order to provide for a 7-day period of review. Except as to the time for review, Johnson's objection to this provision of the protective order is overruled.

Lastly, "[i]f a need should arise to share the CR[ files] with specific individuals for the purpose of this litigation, the court would certainly consider making exceptions to the protective order." Calhoun, 2011 WL 1364028, at *3. In addition, "the court would obviously have to reassess the balance of interests should [the] defendants seek to protect the CR[ files] during a trial, when the proceedings would be presumptively public." Id.

II. Whether Johnson should be allowed to retain a copy of all documents filed with the court, including ...


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