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Kelly v. Village of Kenilworth

Court of Appeals of Illinois, First District, Fifth Division

June 21, 2019

JOHN Q. KELLY, Plaintiff-Appellant,

          Appeal from the Circuit Court of Cook County. No. 16 CH 5192 Honorable Anna Helen Demacopoulos, Judge, presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hoffman and Hall concurred in the judgment and opinion.



         ¶ 1 In 1966, 21-year-old Valerie Percy was murdered at her home in the Village of Kenilworth (Kenilworth). Her murder remains unsolved. As the fiftieth anniversary of her death approached, plaintiff, John Q. Kelly, filed requests under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)) for information concerning the murder investigation. Specifically, he filed requests with Kenilworth, the Illinois State Police (ISP), the Cook County State's Attorney's Office (CCSAO), the Cook County Medical Examiner (CCME) and the Chicago Police Department (CPD). When those public bodies declined to turn over documents, Kelly filed this action against them in the circuit court, although his claim against the CPD was later voluntarily dismissed. Following the submission of affidavits, and the court's in camera inspection of certain documents in the remaining defendants' files, the court entered summary judgment in defendants' favor, requiring only that CCME turn over a small portion of documents.

         ¶ 2 On appeal, Kelly asserts that defendants did not meet their burden of demonstrating that all withheld records were exempt from disclosure. According to Kelly, the procedures used below did not present the court with an adequate factual basis to determine whether an exemption applied to all withheld records and denied him the opportunity to engage in adversarial testing. We reverse and remand for further proceedings.

         ¶ 3 I. BACKGROUND

         ¶ 4 On September 18, 1966, an intruder entered Valerie's bedroom, inflicted 2 blows to her head and stabbed her 10 times. At that time, Kenilworth and the surrounding area lacked a major crimes task force. Kenilworth initially pursued the investigation with help from the surrounding communities and the ISP. Eleven days after the murder, however, the ISP was placed in charge. In the first few years of the investigation, the ISP investigated approximately 1190 leads. The investigation ebbed and flowed over the next decades and the ISP turned over the investigation to Kenilworth in 2002. In 2014, the North Regional Major Crimes Task Force/Percy Homicide Task Force was created.[1] Its members include the Kenilworth Police Department, the Northbrook Police Department, the Wilmette Police Department, the Evanston Police Department and a special agent from the Federal Bureau of Investigation (FBI).

         ¶ 5 In January 2016, Kelly tendered FOIA requests to defendants, seeking all records pertaining to the investigation into Valerie's murder, including investigative reports, witness interviews, follow-up reports, photos, evidence vouchers, forensic testing results, audio and video recordings, transcripts, findings, conclusions, summaries of witness testimony, notes, memos, and correspondence.[2] Kenilworth denied Kelly's request in its entirety, stating that "[t]he Specified Records were created in the course of administrative enforcement proceedings, or for law enforcement purposes, and disclosure would *** obstruct or interfere with an active or ongoing criminal investigation by the Village," citing, in pertinent part, the exemption found in section 7(1)(d)(vii) of FOIA. Id. § 7(1)(d)(vii). The CCSAO also denied the request pursuant to sections 7(1)(d)(i) and 7(1)(d)(vii). Id. § 7(1)(d)(i), (vii). Furthermore, while it initially appeared that the ISP was prepared to turn over documents, it ultimately denied Kelly's request after determining that the case was still open. The ISP determined that the information requested would interfere with a pending or reasonably contemplated law enforcement proceeding. The CCME never responded. No defendant cited the exemption found in section 3(g) of FOIA, which applies to "unduly burdensome" requests. Id. § 3(g).

         ¶ 6 In April 2016, Kelly filed the instant complaint against defendants, asserting they willfully and intentionally violated FOIA by failing to produce records responsive to a request. Kelly moved for partial summary judgment against Kenilworth, the ISP and the CCSAO, arguing that those public bodies had the burden of proving the requested records were exempt. Kelly also argued that the ISP and the CCSAO were not conducting any investigation or enforcement proceeding and could not rely on Kenilworth's investigation to claim an exemption.

         ¶ 7 Kenilworth then filed a cross-motion for summary judgment, asserting that records were exempt from disclosure under section 7(1)(d)(vii) because releasing them would interfere with and obstruct the ongoing and active investigation into Valerie's murder being conducted by Kenilworth and the North Regional Major Crimes Task Force. In support thereof, Kenilworth submitted for the circuit court's in camera review the declaration of the Kenilworth chief of police, David Miller. Kelly was initially denied access to that declaration. According to Chief Miller, Kenilworth's investigative file contained "approximately 20, 000 pages of records, spanning multiple file cabinets and boxes." Significant portions of the file were stored on DVD copies of microfilm, which were not easily reviewable with modern software given the age and quality of the records. The file contained investigative reports, crime scene photographs, photographs and diagrams of the Percy home, interview notes, witness statements, letters providing tips and evidence, pathological reports, lead investigation summaries, correspondence between law enforcement agencies, and other miscellaneous records.[3]

         ¶ 8 Chief Miller stated that disclosing the information in his declaration or any portion of Kenilworth's investigative file would jeopardize the active, ongoing investigation. In his opinion, the entire file should remain confidential. Kenilworth received new leads every year and compared them to confidential information to verify or discount them. "It is impossible for us to predict when these leads will arise, where they will come from, what they will be about, or whether they will relate to a prior lead or part of the investigation." Additionally, confidential information was used to discount numerous confessions. Chief Miller expected an increase in confessions upon the publicity attending the fiftieth anniversary of the murder. According to Chief Miller, Kenilworth's recent investigation was not "limited to the passive receipt of leads from third parties" either. He provided eight pages of additional details, which were redacted from the declaration ultimately given to Kelly. Miller later added that as recently as September 2015, he had requested assistance from the CCME to analyze evidence in this case.

         ¶ 9 Kenilworth argued that Chief Miller's declaration showed disclosure would alert targets to the existence and nature of the investigation, allow prime suspects to tamper with evidence, discourage individuals from sharing information with investigators, and make it difficult to assess leads and confessions. Kenilworth's codefendants should also be permitted to withhold records because they were assisting in the investigation. Moreover, the entire file should be withheld. Going through each page of the investigative file "could potentially require hundreds of hours to review, analyze and redact information." Kenilworth did not, however, assert that the undue burden of compliance rendered the documents exempt from disclosure under section 3(g). Additionally, Kenilworth had not offered Kelly an opportunity to confer with Kenilworth to try to reduce the request to manageable proportions. See id. At no point has any defendant raised a section 3(g) exemption in this case.

         ¶ 10 Kelly responded that Kenilworth could not assert an exemption over other defendants, could not assert a blanket exemption, and had not shown that the disclosure of any specific records would interfere with the allegedly ongoing investigation. Furthermore, the burden of compliance was irrelevant to a section 7(1)(d) exemption. Attached to the response was Kelly's own affidavit, which recited his experience as a New York prosecutor and a criminal defense attorney. For the past 25 years, he had litigated civil cases, including wrongful death cases that arose from homicides. Kelly disagreed with Chief Miller's claim that disclosing any portion of the investigative file would obstruct and interfere with the investigation.

         ¶ 11 At a hearing on September 7, 2016, the circuit court ordered Kenilworth to provide Kelly a redacted copy of Chief Miller's declaration: "I understand that this may be and result in a highly redacted affidavit. But nonetheless, the plaintiff is at least entitled to that." The court then said it would review in camera the documents referred to in paragraphs 15, 16, and 17 of Chief Miller's declaration, paragraphs that would be redacted from the copy given to Kelly.[4]

         ¶ 12 Later that month, the ISP responded to Kelly's partial summary judgment motion, claiming exemptions under sections 7(1)(d)(i) and 7(1)(d)(vii). The ISP argued that agencies do not work in a vacuum and releasing the ISP's records could interfere with an ongoing criminal investigation, even if the ISP was not presently leading the investigation. The ISP attached affidavits from Nancy Easum, the ISP's legal counsel, and Dana Pitchford, a forensic scientist with the ISP.

         ¶ 13 According to Easum, the ISP investigated Valerie's murder from the 1960s through the 1990s and used FBI resources. The ISP's current file contained over 2000 pages, including names and information from confidential sources and files from the Kenilworth Police Department, the CPD, the FBI, and the CCME. Kenilworth had recently informed the ISP that the investigation was ongoing. Pitchford added that over the last 16 years, she had conducted a significant amount of forensic and DNA testing in Valerie's case. She had also received forensic testing requests from Kenilworth and members of the ISP. While Pitchford concluded her affidavit by apparently describing her involvement in the investigation over the last six months, that paragraph was redacted. The court reviewed in camera Pitchford's affidavit and the documents referred to in the final paragraph.

         ¶ 14 The CCSAO responded to Kelly's motion by arguing that the records were exempt under section 7(1)(d)(vii) "because the documents at issue are the product of the joint efforts of a number of law enforcement agencies over a period of time in connection with the investigation of the Percy homicide and, more importantly, that investigation is ongoing and active." Attached was the declaration of Assistant State's Attorney Thomas Biesty, the CCSAO's cold case supervisor. According to Biesty, Kenilworth requested the CCSAO's assistance in the investigation in 2002. The CCSAO's investigation file also contained several thousand pages provided by Kenilworth or the ISP as part of their investigation. "These documents were provided with the understanding that they were confidential and not for release publicly, as part of an ongoing investigation." Additionally, the number and variety of documents made it burdensome to categorize every document in the file. Biesty opined that publishing the documents would compromise the ongoing investigation. The declaration, which contained several redactions, stated that the documents referred to therein would be submitted to the court for in camera inspection.

         ¶ 15 The CCME then responded to Kelly's motion for partial summary judgment, arguing that if the court were to grant Kenilworth's motion for summary judgment, or deny Kelly's motion for partial summary judgment as to the ISP and the CCSAO, the court should also deny Kelly's motion for partial summary judgment as to the CCME's records. The court subsequently ordered the CCME to submit an index of records for in camera inspection.

         ¶ 16 At a hearing on December 6, 2016, the circuit court issued its opinion. The court found that (1) Kenilworth's investigation was active and ongoing and its files were exempt under section 7(1)(d)(vii); (2) due to cooperation among the public bodies, Kenilworth's exemptions flowed to its codefendants; (3) the ISP's investigation was active and ongoing and its files were exempt under sections 7(1)(d)(i) and 7(1)(d)(vii); (4) the CCSAO's investigation was active and ongoing and its files were exempt under section 7(1)(d)(vii); (5) Kenilworth was entitled to assert an exemption over the CCME files in which it had a substantial interest; and (6) Kelly's motion for partial summary judgment as to CCME was granted in part and denied in part. After examining the filed affidavits and reviewing in camera more than 1000 pages, the court found that detailed justifications supported each claimed exemption.[5]

         ¶ 17 Citing federal law interpreting the federal FOIA, the court found it was appropriate to limit its in camera review to certain documents, "[c]onsidering the volume of the Percy murder investigatory file."

"Rather than review the tens of thousands of pages of documents individually, the Court has limited its in camera review to specific documents from each Defendant to keep the review manageable. Moreover, after reviewing the documents, the Court finds it unlikely that there is any reasonably segregable non-public portion of the investigatory record that could conceivably be released."

         ¶ 18 The court found Chief Miller's declaration provided a fact-driven, detailed account of Kenilworth's recent investigation. "Not only has Kenilworth met their burden of clear and convincing evidence, but this Court has no doubt this is an active, ongoing, criminal investigation." Kelly's affidavits did not create a genuine issue of material fact in that regard because he was not an expert, lacked personal knowledge of the Percy investigation, and relied on publicly available facts that may be inaccurate. See Ill. S.Ct. R. 191 (eff. Jan. 4, 2013). Furthermore, while section 7(1)(d) provided exemptions based on conduct of the public body that is "the recipient of the request," it would be absurd to permit one public body to release documents that would interfere with another public body that was entitled to an exemption. Instead, it was sufficient for the recipient of the request to be participating in another public body's investigation. Kenilworth had a substantial interest in asserting exemptions over the documents possessed by the other defendants, and the court would "not discourage agencies from cooperating for fear that sensitive investigatory work on open cases may be revealed through FOIA requests." Even if Kenilworth's exemption did not flow to its codefendants, sufficient documentation showed that the ISP and the CCSAO were participating in ongoing investigations.

         ¶ 19 The court found Biesty's declaration, which cited the participation of the 2014 task force, provided a compelling account of the ongoing criminal investigation. The court had also reviewed the documents mentioned in paragraphs 14 through 18 of Biesty's affidavit. "To disclose anything further would completely abandon the public policy of the exemption." Additionally, Pitchford's affidavit articulated her involvement in the investigation over the previous six months. With respect to the CCME's file, however, Kenilworth could not claim the exemption for documents that originated outside of the coroner's office, the CCME's predecessor, and that were not ...

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