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Better Government Association v. Zaruba

Court of Appeals of Illinois, Second District

November 6, 2014

BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellant,
v.
JOHN E. ZARUBA, as Sheriff of Du Page County, Defendant-Appellee

Appeal from the Circuit Court of Du Page County. No. 13-MR-958. Honorable Terence M. Sheen, Judge, Presiding.

Affirmed.

SYLLABUS

The trial court properly dismissed the complaint of the Better Government Association under the Freedom of Information Act seeking the production of records disclosing the vehicles and persons subjected to Law Enforcement Agencies Data System (LEADS) inquiries by the teenage son of defendant sheriff, pursuant to a course the son took through the Illinois Department of State Police's Learning Management System entitled " LEADS Less Than Full Access" that led to the son being certified as a LEADS operator certified and authorized to access LEADS through a certain date, since plaintiff is not a proper body to investigate an alleged improper use of LEADS but, rather, that task is left to the Illinois Department of State Police in view of the sensitive information involved.

Paul T. Fox, Gregory E. Ostfeld, Greenberg Traurig, LLP, of Chicago, for Appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman, Lisa A. Smith, Assistant State's Attorneys, of counsel), for Appellee.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and opinion.

OPINION

Page 517

ZENOFF, JUSTICE

[¶1] Plaintiff, Better Government Association (BGA), appeals from the dismissal of its complaint seeking production of certain records from defendant, John E. Zaruba, as sheriff of Du Page County (the sheriff), pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)). Specifically, BGA requested records disclosing the vehicles and persons who were the subjects of Law Enforcement Agencies Data System (LEADS) inquiries conducted by Patrick Zaruba, the sheriff's teenage son. The trial court concluded that this information was exempt from disclosure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 2012)) and that a FOIA response to BGA's inquiries was not possible. For the reasons that follow, we affirm.

[¶2] I. BACKGROUND

[¶3] On June 28, 2012, BGA filed in the circuit court of Cook County its verified complaint for declaratory and injunctive relief against the sheriff. The case was subsequently transferred to the circuit court of Du Page County on the sheriff's motion.

[¶4] BGA alleged that on May 29, 2012, it submitted FOIA requests to the sheriff, seeking the following:

" 1) Copies of any and all documents relating to Patrick Zaruba's access to LEADS or other law enforcement databases.

Page 518

(Examples of such documents are Patrick Zaruba's LEADS application and other supporting materials.)
2) Copies of documents sufficient to show the names of any and all persons who because of their affiliation with the Du Page County Sheriff's office have become certified to use LEADS even though they're not sheriff's office employees, from Jan. 1, 2010, to present. (Examples of such persons are interns, Explorer scouts and ride-along participants.)
3) Copies of documents sufficient to show any and all written communication between the Illinois State Police and the Du Page County Sheriff's office relating to LEADS and/or Patrick Zaruba, from May 21, 2012, to present. (Examples of such communication include emails and letters.)"

On May 31, 2012, BGA submitted another FOIA request for " [c]opies of documents sufficient to show the vehicles and persons that were the subjects of LEADS inquiries conducted by Patrick Zaruba, from November 2010 to present."

[¶5] On June 4, 2012, the sheriff responded as follows to BGA's requests:

" I am unable to supply any information that is responsive to your Freedom of Information request. LEADS is a system controlled by [the] Illinois State Police. You would need to contact them for information/confirmation of any certified user. You will also need to contact ISP for documentation of what persons/vehicles were the subjects of inquires [ sic ] made by any certified user. As for written communication between ISP and the Du Page County Sheriff's Office related to LEADS and or Patrick Zaruba from 5/21/12 to 5/29/12, I do not have information responsive to that request."

[¶6] According to the complaint, in violation of section 9 of the FOIA (5 ILCS 140/9 (West 2012)), the sheriff's response failed to state any statutory basis for denying the first, second, and fourth categories of requests; identify any FOIA exemption; include a detailed factual basis for the application of any exemption; or inform BGA of its rights to judicial review and review by the Public Access Counselor. BGA alleged that it contacted the sheriff's FOIA officer regarding these purported deficiencies in the sheriff's response, but was told that the sheriff declined to revisit his position. In count I, BGA sought a declaration of its right to the requested documents, a declaration that the sheriff's actions were willful, intentional, and done in bad faith, and an award of civil penalties. BGA sought injunctive relief in count II.

[¶7] On October 2, 2013, the sheriff filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)). The sheriff argued that he was " not able to legally comply" with BGA's requests, invoking section 7(1)(a) of the FOIA, which exempts public bodies from producing " [i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." 5 ILCS 140/7(1)(a) (West 2012). The sheriff represented that, in addition to his June 4, 2012, response to BGA's requests, on July 19, 2012, an assistant State's Attorney had forwarded to BGA copies of (1) an agreement dated March 3, 2008, between the Illinois Department of State Police (Department) and the Du Page County sheriff's office regarding LEADS access (the Agreement) and (2) ...


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