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Kilroy Watkins v. Garry F. Mccarthy

November 5, 2012

KILROY WATKINS,
PLAINTIFF-APPELLANT,
v.
GARRY F. MCCARTHY, AS SUPERINTENDENT OF THE CITY OF CHICAGO POLICE DEPARTMENT,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 09 CH 9105 Honorable Dorothy Kirie Kinnaird, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Kilroy Watkins, an inmate at Lawrence Correctional Center, appeals the dismissal of his complaint against defendant, Garry McCarthy, superintendent of the Chicago Police Department (Department), seeking to compel disclosure, under the state Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2008)), of documents relating to complaints of misconduct made against two police officers. Plaintiff alleged that these officers coerced him into making a confession that led to his first-degree murder and armed robbery convictions. In an order entered January 5, 2012, we initially dismissed this appeal for lack of jurisdiction (Watkins v. McCarthy, 2012 IL App (1st) 100632-U). Pursuant to a supervisory order (Watkins v. McCarthy, No. 114063 (Ill. May 30, 2012) (supervisory order)), our supreme court on, May 30, 2012, directed that we vacate our order and consider the matter on its merits. Having vacated our prior order, and upon consideration of the merits of this appeal, we reverse the order granting defendant's motion to dismiss and remand this cause to the circuit court for an in camera inspection of the documents requested by plaintiff pursuant to section 11(f) of the FOIA. 5 ILCS 140/11(f) (West 2008).

¶ 2 BACKGROUND

¶ 3 In a letter dated July 26, 2008, addressed to the mayor's office of inquiry and information, plaintiff submitted a FOIA request for:

"[A]ll records, including personnel files between 1990 to present, relating to disciplinary actions taken against [Chicago police officers John Halloran and Kenneth Boudreau], as well as records relating to investigations of complaints made against the officers regarding their actions as police officers. Those records would include citizens' complaints, and FBI investigations regarding the officers' conduct." (Emphasis added.)

The Department denied plaintiff's request, claiming the documents were exempt from disclosure under sections 7(1)(b), (1)(c)(ii), (c)(iii), and (c)(i)(v) of the FOIA. 5 ILCS 140/7(1)(b), (1)(c)(ii),

(c)(iii), (c)(i)(v) (West 2008). Plaintiff appealed administratively, seeking "all records, including personnel files between 1990 to 1994 relating to disciplinary actions taken against the above noted officers as well as records relating to investigations of complaints made against the officers." (Emphasis added.)

¶ 4 After his unsuccessful administrative appeal, plaintiff filed the subject complaint against defendant, seeking a declaratory judgment that he was entitled to the requested documents under the FOIA, and an order directing defendant to produce them. Alternatively, plaintiff requested an in camera inspection of the requested documents to determine whether they may be appropriately withheld under any FOIA exemptions. Plaintiff's complaint referred to "records between 1990 and 1994."

¶ 5 On October 9, 2009, defendant filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Code). 735 ILCS 5/2-619(a)(9) (West 2008). Defendant argued the requested documents, maintained by the Department in its complaint register (CR) files, were exempt because: (1) disclosure would deprive the officers of a fair trial or an impartial hearing (5 ILCS 140/7(1)(c)(iii) (West 2008)); (2) the documents contained the formulation and expression of the Department's opinions regarding officer discipline (5 ILCS 140/7(1)(f) (West 2008)); (3) disclosure would constitute a clearly unwarranted invasion of personal privacy (5 ILCS 140/7(1)(b) (West 2008)), and reveal the identity of persons who file complaints or provide information to law enforcement (5 ILCS 140/7(1)(b)(v) (West 2008)); and (4) the records constitute personnel files or personal information of the Department's employees (5 ILCS 140/7(1)(b)(ii) (West 2008)). In support of dismissal, defendant submitted, inter alia, an amended complaint filed in federal district court where the same officers had been included as defendants for their involvement in procuring the wrongful conviction of Harold Hill (Hill v. City of Chicago, No. 06 C 6772 (Hill suit)), a protective order entered in the Hill suit that maintained the confidentiality of documents produced during discovery, and the affidavit of Sergeant Phyllis Muzupappa, commanding officer of the records section of the Department's internal affairs division (IAD).

¶ 6 In her seven-page affidavit, Sergeant Muzupappa explained that it is the responsibility of IAD to investigate complaints of misconduct made against officers and to create and maintain CR files containing the complaints and all records relating to the investigations of and any resulting disciplinary actions as to those complaints. During the relevant period of 1990 through 1994, the Department had an " 'open' CR complaint system and thus registered, processed and investigated all complaints, even if the complaint was false or frivolous or if the officer had acted lawfully." Furthermore, under this system, a CR file would be created even if the allegation of misconduct related to an officer's off-duty or private conduct. Sergeant Muzupappa stated that she reviewed the CR files of Detectives Boudreau and Halloran from 1990 through 1994, and set forth in detail what those specific files contained.

¶ 7 On October 22, 2010, the circuit court entered a written order granting defendant's motion to dismiss with prejudice, finding the requested documents exempt from disclosure under sections 7(1)(b), (1)(c)(iii), and (1)(f) of the FOIA. 5 ILCS 140/7(1)(b), (1)(c)(iii), (1)(f) (West 2008). The court found section 7(1)(c)(iii) applied because both officers were involved in ongoing civil proceedings in the federal district court and, thus, disclosure of complaints of misconduct, particularly complaints found to be frivolous, "would undoubtedly lead to them being disseminated to the public at large, and would taint the jury pool in advance of the trials of those cases." The court also found the section 7(1)(f) exemption applicable because the requested documents "would necessarily be used to form and express an opinion as to whether the officer should be disciplined." The court found the CR files were exempt both under section 7(1)(b)(ii) as personnel records and under section 7(1)(b)(v), which protects the identity of persons who file complaints with law enforcement entities. Finally, the court stated that it had only considered plaintiff's request for records relating to the 1990 to 1994 time period.

¶ 8 On appeal, plaintiff argues the circuit court erred in finding that the requested records were exempted from disclosure and in failing to conduct an in camera review of those records under section 11(f) of the FOIA. 5 ILCS 140/11(f) (West 2008). Plaintiff further argues that the affidavit of Sergeant Muzupappa was conclusory and inadequate to sustain defendant's burden to show the requested documents were exempt. Plaintiff asks that we reverse the order of dismissal and remand this cause to the circuit court for an in camera inspection of the requested documents. Alternatively, in his reply brief, plaintiff asks this court to remand this cause with instructions to order the disclosure of the CR files from 1990 to the present, with redactions of certain identifying information. Defendant argues that the complaint was properly dismissed as the requested records were exempted from disclosure under several provisions of section 7 of the FOIA.

¶ 9 DISCUSSION

¶ 10 Section 2-619(a)(9) of the Code allows involuntary dismissal of a claim that is "barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2008). " 'Affirmative matter' " is something " 'in the nature of a defense that negates the cause of action completely.' " Jackson v. Randle, 2011 IL App (4th) 100790, ¶ 12 (quoting Glisson v. City of Marion, 188 Ill. 2d 211, 220 (1999)). " 'Our review of a section 2-619(a)(9) motion to dismiss "is limited to consideration of the legal questions presented by the pleadings, but such review is independent and need not defer to the trial court's reasoning." [Citation.] Accordingly, we apply a de novo standard of review.' " Carlson v. Glueckert Funeral Home, Ltd. 407 Ill. App. 3d 257, 260 (2011) (quoting Frydman v. Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 857-58 (1997)).

¶ 11 Initially, we note the parties are in agreement that although plaintiff requested all records, including personnel files relating to complaints of misconduct against Detectives Halloran and Boudreau, it is the CR files of these officers which are at issue. The parties, however, disagree as to whether our review encompasses the CR files from 1990 to the present, as indicated in plaintiff's FOIA request, or from 1990 to 1994, as indicated in plaintiff's administrative appeal and complaint for declaratory judgment. Because the trial court's decision granting defendant's motion to dismiss was limited to the well-pled allegations of the complaint, our review of that decision is, likewise, limited to those same allegations regarding the CR files from 1990 to 1994. See generally Turner v. Memorial Medical Center, 233 Ill. 2d 494, 503-04 (2009).

ΒΆ 12 Additionally, in our discussion, unless otherwise noted, we will refer to the version of the FOIA as it existed in 2009, when plaintiff filed the underlying declaratory judgment action against defendant. The FOIA has been amended in the years since this litigation began. ...


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