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Cebertowicz v. The Illinois Department of Corrections

Court of Appeals of Illinois, Fourth District

September 30, 2016

KENNETH CEBERTOWICZ, Plaintiff-Appellant,

         Appeal from Circuit Court of Sangamon County No. 14MR1438 Honorable Leslie J. Graves, Judge Presiding.

          JUSTICE POPE delivered the judgment of the court, with opinion. Justices Steigmann and Appleton concurred in the judgment and opinion.


          POPE JUSTICE

         ¶ 1 In November 2015, the trial court granted a motion by defendant, the Illinois Department of Corrections (DOC), to dismiss plaintiff, Kenneth Cebertowizc's, first amended complaint, which alleged violations of the Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5 (West 2014)). Plaintiff, proceeding pro se, appeals, arguing the trial court erred in granting DOC's motion to dismiss. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Plaintiff is serving a 50-year sentence for first degree murder and a concurrent 4- year sentence for aggravated discharge of a firearm. At the time he filed his complaint, plaintiff was housed at Lawrence Correctional Center (Lawrence).

         ¶ 4 In November 2014, plaintiff filed a FOIA request with DOC. Plaintiff sought copies of four of Lawrence's institutional directives and DOC's "Administrative Directives that pertain to vocational wait list priority and interstate compact transfers and any other documents/policy on interstate compact transfers." DOC's FOIA officer, Lisa Weitekamp, responded by letter, providing copies of two of the institutional directives requested and advising the other two did not exist. DOC denied the remainder of plaintiff's request, stating section 7(1)(e-5) of FOIA (5 ILCS 140/7(1)(e-5) (West 2014)) "exempts the release of '[r]ecords requested by persons committed to [DOC] if those materials are available in the library of the correctional facility where the inmate is confined' " and advising those requested documents were maintained in Lawrence's law library.

         ¶ 5 In December 2014, plaintiff filed a FOIA complaint in the trial court, naming Weitekamp as the sole defendant. Plaintiff alleged he was "illegally denied" the documents he requested pursuant to FOIA because, when he requested copies of the documents, the law librarian at Lawrence advised him "it was policy that Administrative Directives cannot be copied *** because [FOIA] states that copies 'may' be made." Plaintiff argued section 3(a) of FOIA states, "Each public body shall make available to any person for inspection or copying all public records." 5 ILCS 140/3(a) (West 2014). He maintained the legislature's use of the word "shall" indicated a mandatory requirement and, therefore, DOC had "no discretion" and "[i]f a person requests copies, the public body is required to provide them." In April 2015, DOC filed a motion to dismiss, alleging Weitekamp was not a "public body" and, therefore, not a proper party to a suit filed pursuant to section 11 of FOIA (5 ILCS 140/11(a), (b), (d) (West 2014)). In July 2015, the court entered an order dismissing the complaint and allowing plaintiff 30 days to replead.

         ¶ 6 In August 2015, plaintiff filed a two-count first amended FOIA complaint, naming DOC as defendant. The first count repeated the allegations in his original complaint regarding his FOIA request, DOC's response, and his inability to procure copies of the requested documents from Lawrence's law library. The second count related to plaintiff's FOIA request regarding the "FY2016 Master Menu, " which DOC denied on the basis the material was available in Lawrence's law library. Plaintiff stated the law library in turn refused to provide him with copies under its policy not to provide copies of material exempted by section 7(1)(e-5) of FOIA (5 ILCS 140/7(1)(e-5) (West 2014)). Plaintiff requested (1) DOC provide him the FOIA records he requested, (2) DOC train all institutional law library staff and FOIA officers in FOIA procedures, (3) the trial court order payment of costs, and (4) the court order any further relief the court deemed just and proper.

         ¶ 7 In September 2015, plaintiff filed a motion for leave to file a second amended FOIA complaint and attached the second amended FOIA complaint, which included two additional counts. Later that month, plaintiff filed a motion to strike the second amended complaint. (The record is devoid of any order regarding plaintiff's second amended complaint or the motion to strike it. However, after dismissing the first amended complaint, the trial court ordered the case closed and terminated the proceedings.)

         ¶ 8 In September 2015, DOC filed a motion and memorandum seeking dismissal of plaintiff's first amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)). DOC argued plaintiff failed to state a claim for relief because (1) the materials requested fell under the exemption set forth in section 7(1)(e-5) of FOIA (5 ILCS 140/7(1)(e-5) (West 2014)), (2) the documents he requested were available for inspection in Lawrence's law library, (3) he never claimed the documents were unavailable for inspection at the law library, and (4) as such, those materials remain available to him pursuant to FOIA.

         ¶ 9 In October 2015, plaintiff filed a response to DOC's motion to dismiss, contending DOC was attempting to "change the rules of grammar in an effort to mislead the court as to what [FOIA] requires a public body to disclose and how to disclose it." Plaintiff argues whether the materials are inspected or copied is "the choice of the requestor, not the public body" and "[t]he public body must comply with the requestor's choice."

         ¶ 10 In November 2015, plaintiff moved to supplement his response to the motion to dismiss, arguing, in addition to his rights under FOIA, he also had a common-law right to the public records.

         ¶ 11 On November 17, 2015, the trial court held a hearing by telephone. The court granted DOC's motion to dismiss, finding "plaintiff fail[ed] to state a claim for relief as documents are available for his ...

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