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McGee v. Kelley

Court of Appeals of Illinois, Third District

December 14, 2017

DERRICK McGEE, Plaintiff-Appellant,
v.
MIKE KELLEY, Defendant-Appellee.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, No. 15-CH-725 Illinois, Honorable Bennett J. Braun, Judge, Presiding.

          PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices McDade and Wright concurred in the judgment and opinion.

          OPINION

          HOLDRIDGE PRESIDING JUSTICE

         ¶ 1 The plaintiff, Derrick McGee, filed a complaint for injunctive or declaratory relief against the defendant, Will County sheriff Mike Kelley, seeking the disclosure of records pursuant to Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)). The circuit court found in favor of the defendant, holding that the requested records were exempt from FOIA disclosure. The plaintiff appeals, arguing that the court's findings were made in error.

         ¶ 2 FACTS

         ¶ 3 On January 25, 2013, the plaintiff submitted a FOIA request to the Will County sheriffs office, requesting any and all documents prepared in connection with his indictment that led to his conviction of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1998)) and aggravated battery (720 ILCS 5/12-4(a) (West 1998)). See People v. McGee, 326 Ill.App.3d 165, 166 (2001). On February 4, 2013, the Will County sheriff's office denied the plaintiff's FOIA request, stating that his case was under appeal and was considered an open investigation (5 ILCS 140/7(1)(d)(i), (iii), (iv) (West 2012)).

         ¶ 4 On February 28, 2013, the plaintiff requested that a Public Access Counselor (PAC) review the denial of his FOIA request. The plaintiff argued that he was entitled to the requested records and his criminal case was not on direct appeal when he filed his FOIA request, but rather, his case was on appeal for the denial of his section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2012)). See People v. McGee, 2014 IL App (3d) 120291-U.

         ¶ 5 On March 13, 2013, the PAC notified the Will County sheriff's office that further inquiry was warranted and requested a detailed factual basis for its denial with unredacted copies of the withheld records (2013 PAC 23641).

         ¶ 6 On August 28, 2013, the State responded to the PAC's request on behalf of the defendant. The State explained that the sheriff's office's February 2013 response to the plaintiff's FOIA request was erroneous because the plaintiff's criminal case was not considered open as it was only on collateral review for the dismissal of his 2-1401 petition. The State also asserted that the plaintiff made the same records request in 2010 and after his request was denied, he requested a PAC to review the denial (2010 PAC 7401).

         ¶ 7 The State attached its response from the 2010 PAC case and adopted its reasons for denying the FOIA request, which included (1) the plaintiff received redacted records in 2009 and never challenged the redactions; (2) the information was specifically prohibited from disclosure (5 ILCS 140/7(1)(a), (b)(v) (West 2008)) as Illinois Supreme Court Rule 412(j)(ii) (eff. Mar. 1, 2001) provides the informants' privilege that states criminal defendants are not to receive the names of the people providing information against them; (3) the disclosure would constitute an unwarranted invasion of the victim's personal privacy (5 ILCS 140/7(1)(b) (West 2008)) because the reports detail the sexual assault the plaintiff was charged with, where he used a stun gun on the victim and brutally sexually assaulted her; and (4) other redacted portions disclosed unique or specialized investigative techniques (5 ILCS 140/7(1)(c)(v) (West 2008)).

         ¶ 8 On March 16, 2015, the plaintiff filed a complaint for injunctive or declaratory relief (5 ILCS 140/11 (West 2014)) against the Will County sheriff Paul J. Kaupas for the denial of his FOIA request. The plaintiff requested that the circuit court conduct an in camera examination of the requested records to determine whether disclosure was warranted. On June 2, 2015, the plaintiff filed an amended complaint, naming Will County sheriff Mike Kelley as the defendant (who replaced Kaupas as Will County sheriff).

         ¶ 9 On May 13, 2016, after conducting an in camera examination of the requested records, the court found in favor of the defendant. The court found that (1) no portion of the unredacted records should be disclosed under FOIA, (2) the plaintiff made similar requests and was collaterally estopped from proceeding with his case, (3) the exemptions in sections 7(1)(a) and (b) applied, (4) disclosure would result in an unwarranted invasion of personal privacy of the victim of the sexual assault, (5) section 7(1)(c) exemption did not apply, and (6) the order was final and appealable. The plaintiff appeals.

         ¶ 10 ANALYSIS

         ¶ 11 On appeal, the plaintiff argues that the circuit court erred when it found that he was not entitled to the requested records because (1) it misapplied the FOIA exemptions, (2) the information in the requested records has already been made public, and (3) ...


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