                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                      Dumke v. City of Chicago, 2013 IL App (1st) 121668




Appellate Court            MICHAEL DUMKE, Plaintiff-Appellant, v. THE CITY OF CHICAGO,
Caption                    a Municipal Corporation, Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-12-1668


Filed                      June 28, 2013


Held                       In an action seeking the disclosure of a consultant’s report prepared for
(Note: This syllabus       defendant city’s police department, the trial court erred in holding that
constitutes no part of     only the superintendent of the police department, not the mayor, could
the opinion of the court   waive the disclosure exemption under section 7(1)(f) of the Freedom of
but has been prepared      Information Act, and the entry of summary judgment for the city was
by the Reporter of         reversed and summary judgment was entered for plaintiff pursuant to
Decisions for the          Supreme Court Rule 366 on the ground that defendant’s mayor waived
convenience of the         the exemption from disclosure by publicly citing and identifying the
reader.)
                           report in a press conference and press release; furthermore, the mayor’s
                           citation to the entire report precluded a need for an in camera review to
                           determine whether any part of the report should be withheld.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CH-13550; the
Review                     Hon. Franklin U. Valderrama, Judge, presiding.



Judgment                   Reversed.
Counsel on                 John S. Elson, of Northwestern University Legal Clinic, of Chicago, for
Appeal                     appellant.

                           Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                           Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant
                           Corporation Counsel, of counsel), for appellee.


Panel                      JUSTICE PIERCE delivered the judgment of the court, with opinion.
                           Presiding Justice Neville and Justice Sterba concurred in the judgment
                           and opinion.


                                             OPINION

¶1          Plaintiff appeals from an order granting defendant City of Chicago’s (the City) motion
        for summary judgment and denying his cross-motion for summary judgment. Plaintiff argues:
        (1) the trial court improperly held that where two public bodies possess a requested public
        record, the head of only one of the public bodies can waive the disclosure exemption under
        section 7(1)(f) of the Freedom of Information Act (FOIA or the Act) (5 ILCS 140/7(1)(f)
        (West 2010)); (2) this court should grant summary judgment on plaintiff’s claim that Mayor
        Richard Daley publicly cited and identified the consultant’s report, thereby waiving the
        exemption from disclosure under section 7(1)(f) of FOIA. For the following reasons, we
        reverse the judgment of the trial court and grant summary judgment in favor of plaintiff.

¶2                                         BACKGROUND
¶3          On August 4, 2010, plaintiff submitted a FOIA request to the Chicago police department
        seeking all records “generated by [t]he 2009 study/assessment of Chicago Police Department
        operations conducted by A.T. Kearney and Civic Consulting Alliance.” Plaintiff’s request
        came as a result of a press conference held by then-Mayor Richard Daley, wherein Daley
        discussed the city’s intent to reassign police officers from administrative duties to patrol
        duty, in the attempt to fight crime on the city’s troubled streets. Mayor Daley explained that
        the reassignments were the result of a management study requested by then-Chicago Police
        Superintendent Weis and conducted by Civil Consulting Alliance and A.T. Kearney. The
        police department responded that the request was unduly burdensome and denied the request.
¶4          Thereafter, on September 21, 2010, plaintiff narrowed his request to only “[a] copy of
        the final report of assessment of Chicago Police Department operations conducted by A.T.
        Kearney and Civic Consulting Alliance” (the report). On September 28, 2010, the police
        department notified plaintiff and the Illinois Attorney General’s Public Access Counselor
        that it intended to deny his request under section 7(1)(f) of FOIA. 5 ILCS 140/7(1)(f) (West
        2010). This decision was later affirmed by the Illinois Attorney General’s Public Access
        Counselor.

                                                 -2-
¶5         On April 11, 2011, plaintiff filed a complaint against the City of Chicago, Mayor Daley
       and two Chicago police department FOIA officers for declaratory and injunctive relief
       seeking the release of various records. Counts I and II of plaintiff’s complaint sought to
       enforce FOIA requests unrelated to the report in this case and were settled by agreement.
       Relevant to this appeal is plaintiff’s count III, wherein he alleged that the city violated FOIA
       by its refusal to produce the report. In addition, plaintiff alleged that his request was not
       exempt from disclosure under section 7(1)(f) because he sought a public record or portions
       thereof which were publicly cited and identified by the mayor and/or because the requested
       report was final with respect to the police department’s operational changes that were based
       on the recommendations of the report.
¶6         Both sides moved for summary judgment. Plaintiff argued that Mayor Daley waived the
       exemption in section 7(1)(f) when he discussed the report at the press conference. In
       opposition, defendant argued that because plaintiff had directed his FOIA request for the
       report to the police department, the police department was responsible for providing the
       report, not the mayor’s office. Therefore, because the superintendent of police is the head of
       the police department he, and not Mayor Daley, was the head of the public body whom FOIA
       exclusively authorized to waive the section 7(1)(f) exemption from disclosure. The city also
       argued that even if Mayor Daley were authorized to waive the exemption, he did not do so
       when he discussed the report at the press conference.
¶7         After considering the parties’ memoranda in support of their cross-motions for summary
       judgment, the trial court granted the city’s motion for summary judgment as to count III of
       the plaintiff’s complaint and denied plaintiff’s cross-motion for summary judgment seeking
       disclosure of the report. The court ruled that even if Mayor Daley publicly cited the report,
       he was not empowered to waive the exemption by publicly citing the report because the
       police superintendent, and not the mayor, was the head of the Chicago police department and
       FOIA’s language allowed only one head of a public body to waive the exemption. Because
       the court found that Mayor Daley was not the “head of the public body” empowered to waive
       the exemption for the report, it did not reach the other contested issue on summary judgment
       of whether the mayor’s statements about the report at the press conference were sufficient
       to be deemed public citation and identification of the report.

¶8                                            ANALYSIS
¶9         Plaintiff argues that this court should grant summary judgment on his claim because
       Mayor Daley publicly cited and identified the report, thereby waiving the exemption from
       disclosure found in section 7(1)(f) of FOIA. The City is foregoing its argument in this court
       that the superintendent of the police department is the “head of the public body” within the
       meaning of section 7(1)(f) and only the superintendent, and not the mayor or any other
       official, could waive the exemption. Despite the fact that plaintiff raises several claims here,
       the City asserts that the sole issue is whether Mayor Daley waived the exemption in section
       7(1)(f) of FOIA. We believe this issue is dispositive.
¶ 10       However, because this issue may arise in the future, we want to address the trial court’s
       finding that because the FOIA request was directed at the police department “only one person


                                                 -3-
may be the ‘head of the public body’ and therefore, have the ability to waive the § 7(1)(f)
exemption.” As later discussed, section 7(1)(f) exempts from disclosure predecisional
records unless they are publicly cited and identified by the “head of the public body.” 5 ILCS
140/7(1)(f) (West 2010). The Act defines “public body,” to include “all legislative,
executive, administrative, or advisory bodies of the State, *** counties, townships, cities,
*** and all other municipal corporations *** [and] any subsidiary bodies of any of the
foregoing.” 5 ILCS 140/2(a) (West 2010). “ ‘Head of the public body’ means the president,
mayor, chairman, presiding officer, director, superintendent, manager, supervisor or
individual otherwise holding primary executive and administrative authority for the public
body, or such person’s duly authorized designee.” 5 ILCS 140/2(e) (West 2010). While we
agree with the trial court that the police department is a public body (Board of Regents of the
Regency University System v. Reynard, 292 Ill. App. 3d 968, 978 (1997) (under FOIA, a
subsidiary public body is itself a public body for purposes of complying with the
requirements of the statute)), that its superintendent is its chief executive officer1 and that
only one person can be the head of a public body, we disagree with the conclusion that only
the police superintendent could waive the applicable exemption for the report. It is
undisputed that the City of Chicago is a public body that was in possession of the report and
that Richard Daley was mayor and chief executive officer2 of the City when he referred to
the report in the press conference. Even though plaintiff directed his FOIA request at the
police department, based on information he received from the city’s website instructing him
to make this FOIA request to that department, the trial court erred when it found that the
superintendent of police was the only public officer that possessed the report and had the
duty to disclose it. The trial court gave too narrow an application of the word
“superintendent” used in section 2(e). Clearly, in enacting the Act the legislature could not
include every title that might exist for the thousands of positions in government subject to
the statute and to accommodate this fact it used the term “or such person’s duly authorized
designee.” 5 ILCS 140/2(e) (West 2010). Because the mayor, as the chief executive officer
of the City of Chicago is, by definition, the head of the public body at issue and he used,
received, and possessed the report, the trial court erred when it found that the mayor could
not waive the exemption from disclosure by citing and identifying the report. 5 ILCS
140/2(c) (West 2010) (Documents that are subject to disclosure under FOIA are those
“having been or being used by, received by, in the possession of, or under the control of any
public body.”). Accordingly, we hold that the trial court erred when it granted summary
judgment in favor of the City on the ground that the mayor was not the head of the public


        1
         “The superintendent of police shall be the chief executive officer of the police department.
He shall be appointed by the mayor upon recommendation of the police board and with the advice
and consent of the city counsel and shall serve at the pleasure of the mayor.” Chicago Municipal
Code § 2-84-040 (amended June 5, 1987).
        2
         “The Mayor of Chicago, the city’s chief executive officer, directs city departments and
appoints department heads, with the advice and consent of the city council.”
http://www.cityofchicago.org/city/en/depts.html.

                                            -4-
       body that was responsible under FOIA for tendering the report.
¶ 11       We now turn to the core of plaintiff’s claim. Plaintiff requests summary judgment in his
       favor finding the report lost its exemption from disclosure based on the statements of the
       mayor during a press conference dealing with police deployment in response to mounting
       violence in certain areas of the City. Not surprisingly, the City opposes this request.
       Summary judgment is appropriate where “the pleadings, depositions, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2010). The parties here filed cross-motions for summary judgment, and agree that no
       genuine issue of material facts exists because the City has abandoned the position it
       advanced in the trial court that only the superintendent of police, as head of the police
       department, could waive the section 7(1)(f) exemption. The parties invite this court to decide
       the issues presented as questions of law. Allen v. Meyer, 14 Ill. 2d 284, 292 (1958). We
       review the trial court’s summary judgment ruling under a de novo standard of review.
       American Service Insurance Co. v. Jones, 401 Ill. App. 3d 504, 520 (2010). This court has
       the authority to grant summary judgment based on the record before us. See Ill. S. Ct. R.
       366(a)(5) (eff. Feb. 1, 1994) (this court has the power to make any further order or grant any
       relief that “the case may require”); Casolari v. Pipkins, 253 Ill. App. 3d 265, 269 (1983).
¶ 12       The purpose of FOIA is “to open governmental records to the light of public scrutiny.”
       Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378
       (1989). FOIA may not be used to violate individual privacy rights or disrupt the proper work
       of a governmental body beyond its responsibilities under the Act. 5 ILCS 140/1 (West 2008).
       Unless a statutory exemption found in section 7 of FOIA applies, a public body must comply
       with a valid request for information. Day v. City of Chicago, 388 Ill. App. 3d 70, 73 (2009).
¶ 13       The City claims that section 7(1)(f) exempts the requested report from disclosure. Section
       7(1)(f) states as follows:
                “(1) *** [T]he following shall be exempt from inspection and copying:
                                                 ***
                    (f) Preliminary drafts, notes, recommendations, memoranda and other records in
                which opinions are expressed, or policies or actions are formulated, except that a
                specific record or relevant portion of a record shall not be exempt when the record
                is publicly cited and identified by the head of the public body.” 5 ILCS140/7(1)(f)
                (West 2010).
¶ 14       The Act was patterned after the federal Freedom of Information Act (5 U.S.C. § 552
       (2000)). Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1012 (1994). Section
       7(1)(f) of the Act is the equivalent of the “deliberative process” exemption found in section
       552(b)(5) of the federal Freedom of Information Act, which exempts from disclosure
       interagency and intra-agency predecisional and deliberative material. See 5 U.S.C.
       § 552(b)(5) (2000). The federal deliberative-process exception:
           “typically does not justify the withholding of purely factual material [citation], nor of
           documents reflecting an agency’s final policy decisions [citation], but it does apply to
           predecisional policy discussions [citation], and to factual matters inextricably intertwined

                                                 -5-
           with such discussions [citation]. Thus, in order to qualify for the privilege, a document
           must be both predecisional in the sense that it is ‘actually [a]ntecedent to the adoption
           of an agency policy,’ and deliberative in the sense that it is ‘actually *** related to the
           process by which policies are formulated.’ ” Enviro Tech International, Inc. v. United
           States Environmental Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004).
¶ 15       In short, the deliberative-process privilege exemption of the federal statute is intended
       to protect the communications process and encourage frank and open discussion among
       agency employees before a final decision is made. National Labor Relations Board v. Sears,
       Roebuck & Co., 421 U.S. 132 (1975). Our supreme court has found that section 7(1)(f)
       mirrors the purpose of the federal deliberative-process exception and has explained, “[t]he
       existence of an FOIA exemption for predecisional materials is evidence of a public policy
       favoring the confidentiality of such communications.” People ex rel. Birkett v. City of
       Chicago, 184 Ill. 2d 521, 528-29 (1998) (refused to recognize such deliberative-process
       privilege, but only after recognizing that the exemption under FOIA did exist). However,
       there is a definite distinction between the deliberative-process privilege exemption of the
       federal statute and our section 7(1)(f). The deliberative-process privilege exemption of the
       federal statute requires disclosure of predecisional material once it has been adopted or
       incorporated by an agency. National Labor Relations Board v. Sears, Roebuck & Co., 421
       U.S. at 161. Illinois has no such limitation dealing with whether the communication was
       incorporated in the final decision. Thus, if the communication, record or portion thereof is
       “publicly cited and identified,” it loses its exemption regardless of whether the
       communication was adopted or incorporated by an agency.
¶ 16       Putting aside whether the exemption has been waived by Mayor Daley’s statements
       during his press conference, the parties agree that the report is exempt under section 7(1)(f)
       and would not be subject to release. The parties do not agree on whether Mayor Daley’s
       comments at the press conference waived the exemption. “Any public body that asserts that
       a record is exempt from disclosure has the burden of proving that it is exempt by clear and
       convincing evidence.” 5 ILCS 140/11(f) (West 2010). “Where, as here, the requesting party
       challenges the public body’s denial of a FOIA request, the public body must demonstrate that
       the records requested fall within the claimed exception.” Stern v. Wheaton-Warrenville
       Community Unit School District 200, 233 Ill. 2d 396, 406 (2009).
¶ 17       Here, plaintiff claims that Mayor Daley waived the exemption found in section 7(1)(f)
       of FOIA because he publicly cited and identified the report. The City argues that even though
       Mayor Daley referenced the report in his press release, this was not public citation and
       identification of the report for purposes of waiving the exemption under section 7(1)(f).
       Rather, the City argues that the mayor only made general and vague references to the report
       that do not fall within the scope of the term “publicly cite and identify.” The parties disagree
       on what conduct constitutes public citation and identification.
¶ 18       Section 7(1)(f) does not provide any guidance on how much or how little needs to be said
       or done to constitute an effective waiver. The parties have not advanced or presented any
       legislative history or citation to any legal authority, nor has our research found any, that
       assists us in determining what minimum conduct amounts to public citation and
       identification. However, the parties provide different definitions and interpretation of the

                                                 -6-
       terms, thereby questioning the clarity of section 7(1)(f).
¶ 19       When we interpret a statute, the primary goal is to ascertain and give effect to the intent
       of the legislature. Illinois Department of Healthcare & Family Services v. Warner, 227 Ill.
       2d 223, 229 (2008).
                “The process of statutory interpretation is firmly established. The goal is to ascertain
           and give effect to the intent of the legislature. The simplest and surest means of
           effectuating this goal is to read the statutory language itself and give the words their plain
           and ordinary meaning. [Citation.] However, it is not sufficient to read a portion of the
           statute in isolation. We must, instead, read the statute in its entirety, keeping in mind the
           subject it addresses and the legislature’s apparent objective in enacting it. [Citation.]
           Where the language of the statute is clear and unambiguous, we must apply it as written,
           without resort to other tools of statutory construction. [Citation.] Generally, the language
           of a statute is considered ambiguous when it is capable of being understood by
           reasonably well-informed persons in two or more different senses.” MD Electrical
           Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 287-88 (2008).
¶ 20       We find no ambiguity in section 7(f)(1). Both “cite” and “identify” have a plain and
       ordinary meaning, as well as a common understanding. “Cite” is defined as, “[t]o mention
       or bring forward as support, illustration, or proof.” American Heritage Dictionary of the
       English Language (4th ed. 2009). “Identify” means to “1 a: to cause to be or become
       identical b: to conceive as united (as in spirit, outlook, or principle) <groups that are
       identified with conservation> 2 a: to establish the identity of b: to determine the taxonomic
       position of (a biological specimen) establish the identity of: show or prove the sameness of.”
       Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/identify
       (last visited June 11, 2013).
¶ 21       Using these definitions are our guide, we must determine whether Mayor Daley’s
       references to the report can be construed as public citation to and identification of the report
       so that it is no longer exempt under section 7(1)(f). During the June 2, 2010, press
       conference, the mayor stated,
                “It’s an everyday fight. But as a city, we’re committed to combat the gang and drug
           thugs who terrorize our communities, use guns to intimidate and murder unfortunately
           our citizens. The Chicago Police Department continues to revise its strategies across the
           city to assure they are–they are best targeting their resources, especially in those
           neighborhoods most at risk of gun and gang violence. That’s why we’ve worked to pull
           out as many officers as possible from behind desks onto street duty.
                Today I want to announce that by mid July, 130 more police officers will be on
           streets keeping our city safe. 44 of these officers will be reassigned from administrative
           duties in the department to help fight crime on some of the most troubled streets. These
           assignments–reassignments are the result of a management study requested by
           Superintendent Weis earlier this year. The report offers many findings and ways that the
           department will improve its management. That is the key.
                The 44 officers being announced today for reassignment include 33 from
           administrative positions. 11 detectives from the department’s–police department’s arson

                                                  -7-
           unit who will go back to work on the criminal investigations in the area level.
               In addition, within the last year, we have brought in the class of 86 police recruits
           who are graduating from the police academy on July 14 beginning patrolling on streets
           and transit system [sic]. Federal economic stimulus funds will pay for these officers for
           3 years. Last July, as a result of a separate review of staffing at the district level, we
           reassigned 168 officers from throughout the department to patrolling our streets.
               The bottom line is that we have an additional 298 more police officers street duty
           [sic] since the last July than were planned. These aren’t huge numbers, but every
           ma–officer matters.
                                                 ***
               The latest officers we–are assigned to some of the most troubled neighborhoods in
           our city and beats, a step that reinforced our commitment to do all we can to our [sic]
           protect our people. These steps are forward-looking ideas that will produce–both protect
           taxpayers because we’re better using existing resources, as well as better protect our
           neighborhoods. It’s the kind of thinking we must employ during these very tough
           financial times. When city revenues remain slow, doing more for less is more important
           than ever.
               The study of police administration staffing began in 2010 and was carried out with
           the pro bono assistance of the Civic Consulting Alliance, Ryan Faye. She’s done a
           tremendous job. The consultant firm is McKinsey and Company. A.T. Kearney also
           helped various parts of the review. And I want to personally thank them. I want to thank
           them for their hard work and their commitment to making Chicago a safer community.
           It cost the city no money. They all volunteered.
               As I said many times before, ending violence must be Chicago’s crusade. Each of us
           must do our part, parents, community, and our schools. The police cannot do it alone. In
           the meantime, we must remain creative and deliver on our commitment to better manage
           government and do more with less and keep our city as safe and secure as it can be. The
           steps I’ve announced today do exactly that. Thank you.”
       The video of the press conference was placed on Mayor Daley’s YouTube page.
       http://www.youtube.com/watch.
¶ 22       In addition, a summary of the press conference was prepared and published in a written
       press release dated June 2, 2010. The written press release gave an abridged version of the
       city’s plan to reassign police officers to better combat street violence. Among other things,
       the press release stated that, “Mayor Richard M. Daley said today that by mid-July 130 more
       Chicago police officers will be assigned to street duty as a result of a management review of
       the Chicago Police Department Administrative operations, more efficient use of resources
       and a newly-graduated class from the Chicago Police Academy.” The press release also
       stated, “[t]he study of administrative staffing began early in 2010 and was carried out with
       the pro-bono assistance of the Civic Consulting Alliance. The consulting firms of McKinsey
       and Company and A.T. Kearney also helped with various parts of the review.”
¶ 23       Statutory construction does not allow for expansive interpretations not contemplated by
       the legislature. In crafting section 7(1)(f), the legislature gave no guidance as to how much

                                                -8-
       or how little citation was sufficient to waive the predecisional exemption. When we liberally
       construe section 7(1)(f) as written, we find the mayor’s repeated references to the report in
       the press conference satisfy both the definition of “cite” and “identify.” In doing so, we note
       that all doubts are resolved in favor of disclosure. Southern Illinoisian v. Illinois Department
       of Public Health, 218 Ill. 2d 390, 416-17 (2006).
¶ 24        The mayor cited and identified the report as a “management study requested by
       Superintendent Weis earlier this year” and its purpose as “the study of police administration
       staffing.” He cited the report and he identified it as support for his reorganization plan.
       Specifically, he stated that Superintendent Weis requested the management study, and as a
       result of the study, 130 more police officers would be on the streets keeping the city safe. Of
       those 130 more officers, 44 would be reassigned from administrative duties and 86 police
       recruits would be graduating from the police academy. The mayor identified the individuals
       and businesses that conducted the study and issued the resulting report. He stated that “the
       study of police administration staffing” began in 2010 and was conducted pro bono by the
       Civic Consulting Alliance with the assistance of Ryan Faye. Mayor Daley also stated that
       A.T. Kearney helped with various parts of the review. Mayor Daley not only identified the
       study and the key players, but personally thanked them. The mayor also indicated that the
       report “offers many findings and ways that the department will improve its management.”
       There is no question that the mayor cited and identified the report in public given that it
       occurred during a press conference that was later available on the mayor’s YouTube page,
       a summary of which was released in printed form. In finding that the report was identified
       within the meaning of FOIA, we note that when plaintiff made his request for the report, the
       City knew exactly which report plaintiff was requesting and, further, in its answer to
       plaintiff’s complaint it described the report as “a final report on the assessment of the
       Chicago Police Department operations conducted by A.T. Kearney, Civic Consulting
       Alliance, and McKinsey and Company is a public record.” Clearly, any notion the report was
       not identified within the meaning of FOIA cannot be seriously entertained.
¶ 25        The City’s reliance on Harwood v. McDonough, 344 Ill. App. 3d 242 (2003), is
       misplaced. In Harwood, the plaintiff made a request under FOIA with the Illinois
       Department of Commerce and Community Affairs (DCCA) for a copy of a report prepared
       by a consulting firm concerning the relocation of the Boeing Company’s headquarters to
       Illinois and copies of all invoices concerning the cost to the state for the report. After plaintiff
       received no response to his request, he sent an appeal letter. In response, the defendants
       produced a copy of a one-page executive summary of the report, claiming that the rest of the
       report was exempt from disclosure under sections 7(1)(f) and (g) of the Act and that the
       DCCA had not yet received an invoice from the consulting firm. Id. at 244.
¶ 26        The plaintiff brought an action in the circuit court seeking an injunction against the
       defendants prohibiting them from withholding the requested public records and seeking an
       order for the production of the records. Id. The defendants answered by again claiming that
       the report was exempt from disclosure under sections 7(1)(f) and (g) of the Act. Following
       cross-motions for summary judgment, the circuit court denied the plaintiff’s motion for
       summary judgment and granted the defendants’ motion for summary judgment. Id. at 244-45.
¶ 27        Among his arguments on appeal, the plaintiff asserted that section 7(1)(f) was

                                                   -9-
       inapplicable to the report because it was “publicly cited and identified” by the director of the
       DCCA and then-Governor George Ryan. Id. at 248. The plaintiff pointed to comments made
       by Governor Ryan in a radio address and by the director of DCCA at public hearings, plus
       materials prepared for those hearings. This court rejected the plaintiff’s argument and found
       that the plaintiff’s request for the report was exempt under section 7(1)(f) of FOIA. Id. We
       reasoned that the director’s and Governor Ryan’s statements did not cite the study itself, but
       cited information contained only in the executive summary, a document that was specifically
       prepared for public release and was provided to the plaintiff. In addition, charts that were
       prepared as part of the director’s presentation recapitulated all of the information contained
       in the executive summary and did not cite the full study. Id. at 249.
¶ 28       Unlike Harwood, there was no separate document created for public release in this case.
       Mayor Daley publicly cited and identified the consultants’ study and resulting report in the
       press conference and press release. He mentioned and brought forward the report as support
       for his reorganization plan. Not only did Mayor Daley cite and identify the report, he
       acknowledged and commended its authors. A video of that press conference was put on the
       mayor’s YouTube site. The legislature has not established a minimum threshold as to what
       conduct satisfies citation or identification for purposes of section 7(1)(f). Absent any
       authority to the contrary and in furtherance of the public policy to open governmental records
       to the light of public scrutiny, we find the public statements made in this case satisfy the
       “publicly cite and identify” threshold necessary to constitute a waiver of the section 7(1)(f)
       exemption. Accordingly, we find that the mayor publicly cited and identified the report in
       the press conference and in the press release, and we hold that he waived the exemption
       under section 7(1)(f) of FOIA.
¶ 29       Lastly, the City argues that should this court find that the section 7(1)(f) exemption has
       been waived, we should remand with instructions to conduct an in camera inspection of the
       requested report to resolve what portions, if any, must be released. Indeed, FOIA provides
       that the circuit court shall review the request for documents de novo and “shall conduct such
       in camera examination of the requested records as it finds appropriate to determine if such
       records or any part thereof may be withheld under any provision of this Act.” 5 ILCS
       140/11(f) (West 2010); Southern Illinoisan v. Illinois Department of Public Health, 218 Ill.
       2d 390, 418 (2006).
¶ 30       However, in camera review is not appropriate in this case because Mayor Daley cited the
       entire report as the basis for the city’s decision to reassign police officers. In short, consistent
       with the public policy underlying FOIA we find that the scope of disclosure should align with
       the scope of public citation so that the entire report is subject to production.
¶ 31       Furthermore, the City is estopped from raising this argument on appeal. In the trial court
       the City argued against an in camera inspection stating that the report could not be produced
       in part as, “the facts contained in the report are so inextricably intertwined with opinions,
       recommendations and conclusions that they simply cannot be segregated.” The doctrine of
       judicial estoppel prohibits a party from assuming a position in a legal proceeding that is
       contrary to a position it held in a prior legal proceeding. Bidani v. Lewis, 285 Ill. App. 3d
       545, 550 (1996). We deny the City’s request to remand to the trial court for an in camera
       inspection of the report.

                                                  -10-
¶ 32                                      CONCLUSION
¶ 33       Based on the foregoing, we reverse the trial court’s ruling granting summary judgment
       in favor of defendant on count III and, pursuant to our authority under Supreme Court Rule
       366(a)(5), grant summary judgment on count III in favor of plaintiff. Ill. S. Ct. R. 366(a)(5)
       (eff. Feb. 1, 1994).

¶ 34      Reversed.




                                               -11-
