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Barner v. Fairburn

Court of Appeals of Illinois, Third District

July 30, 2019

CHADWICK N. BARNER, Plaintiff-Appellant,
v.
RICHARD FAIRBURN and THE CANTON POLICE DEPARTMENT, Defendants-Appellees.

          Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois, Circuit No. 18-CH-59 Honorable Thomas B. Ewing, Judge, Presiding.

          Attorneys for Appellant: Chadwick N. Barner, of Joliet, appellant pro se.

          Attorneys for Appellee: Jane M. May and Brian M. Funk, of O'Halloran Kosoff Geitner & Cook, LLC, of Northbrook, for appellees.

          JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.

          OPINION

          WRIGHT JUSTICE

         ¶ 1 Plaintiff, Chadwick N. Barner, filed a complaint for declaratory or injunctive relief against defendants, Richard Fairburn and the Canton Police Department, alleging defendants violated the Freedom of Information Act. The trial court granted defendants' motion to dismiss plaintiffs complaint with prejudice. Plaintiff was not present for the hearing but received proper notice. Plaintiff appeals.

         ¶ 2 I. BACKGROUND

         ¶ 3 On March 13, 2018, plaintiff sent a Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)) request to the Canton Police Department. Plaintiff requested a copy of the dispatch transcripts from the Canton Police Department for May 12, 2015, between 2 p.m. and 2:30 p.m., a copy of all police reports, witness statements, traffic tickets issued to plaintiff on May 12 to13, 2015, and any other additional evidence. On March 19, 2018, Barbara Bryant, the FOIA officer for the Canton Police Department, responded in writing to plaintiffs request. Bryant informed plaintiff that his request would be "granted in part and denied in part for the following reasons:

Enclosed you will find the incident report from Canton Police Dispatch center. The actual Dispatch radio communication is no longer available as the system only keeps the information for a few months per the 911 Board. However, you might contact the Canton Park District Office and the Fulton County Sheriffs office at the addresses as follows for further information ***."

         ¶ 4 On May 29, 2018, plaintiff, citing section 9 of FOIA, filed a complaint for declaratory or injunctive relief (the complaint) in the circuit court of Will County alleging the Canton Police Department and public safety director, Richard Fairburn (collectively defendants), violated FOIA because "[t]he public body did not provide plaintiff with specified documents or even acknowledged [sic] all the information on the plaintiffs [sic] request." See 5 ILCS 140/9 (West 2018). Plaintiff alleged defendants failed to provide specific reasons for the denial of his request as required under FOIA. Plaintiff requested an order compelling the production of the requested records and prayed for monetary damages.

         ¶ 5 On August 29, 2018, defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2018)). The motion argued the nonexistence of the requested records constituted a cognizable affirmative defense to plaintiffs claim. In support of its motion to dismiss, defendants submitted Bryant's written response to plaintiffs FOIA request as well as an affidavit from Bryant. Bryant's affidavit averred:

"Upon receipt of [plaintiffs] FOIA request, I searched for all responsive records. I provided him with a copy of the Incident Report which was the only record that the City had with respect to this incident. I searched the 911 database for any communications relating to the incident referenced in the FOIA request, but no record of those communications existed at the time of [plaintiffs] request because 911 communications are only retained for a few months in conjunction with a policy set by the 911 Board. I also referred [plaintiff] to the Canton Park District and the Fulton County Sheriffs Department because those agencies were also involved in the incident referenced in [plaintiffs] FOIA request."

         ¶ 6 On September 14, 2018, the case was transferred to Fulton County. On October 24, 2018, plaintiff responded to defendants' motion to dismiss and argued the motion should be denied because defendants failed to comply with plaintiffs FOIA request. Plaintiff also filed a motion for an order of habeas corpus, requesting the trial court to issue an order of habeas corpus so that plaintiff could be present during the hearing on defendants' motion to dismiss. Plaintiff contended his presence "in court [was] required due to his personal knowledge of the facts in this cause of action."

         ¶ 7 On November 29, 2018, the trial court conducted a hearing on defendants' motion to dismiss. The trial court, "having considered the briefs filed by the parties and the oral argument of Defendants' [sic] counsel," granted defendants' motion to dismiss with prejudice. Plaintiff was not present at the hearing but had notice of the hearing. Plaintiff ...


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