                                           2018 IL App (3d) 170726

                                   Opinion filed June 19, 2018
       _____________________________________________________________________________

                                                    IN THE


                                     APPELLATE COURT OF ILLINOIS


                                              THIRD DISTRICT


                                                     2018 


       MACEO JOHNSON,                                   )      Appeal from the Circuit Court
                                                        )      of the 12th Judicial Circuit,
              Plaintiff-Appellant,                      )      Will County, Illinois,
                                                        )
              v. 	                                      )      Appeal No. 3-17-0726
                                                        )      Circuit No. 17-MR-0673
                                                        )
       THE JOLIET POLICE DEPARTMENT, 	                  )      Honorable

                                                        )      Arkadiusz Z. Smigielski,

              Defendant-Appellee.                       )      Judge, Presiding.

       _____________________________________________________________________________

             JUSTICE O’BRIEN delivered the judgment of the court, with opinion. 

             Presiding Justice Carter and Justice Wright concurred in the judgment and opinion. 

       _____________________________________________________________________________

                                                  OPINION

¶1            Plaintiff, Maceo Johnson, filed a lawsuit seeking injunctive relief after defendant, the

       Joliet Police Department, denied a request made under the Freedom of Information Act (FOIA)

       (5 ILCS 140/1 et seq. (West 2016)). The Will County circuit court dismissed the complaint. On

       appeal, plaintiff argues that he was entitled to the requested records under FOIA. We affirm.

¶ 2	                                                FACTS

¶3            On January 27, 2017, plaintiff delivered a FOIA request to defendant seeking

       “[d]isciplinary history for employee Don McKinney.” In a responsive letter, defendant wrote: “It

       is unclear what you mean by ‘disciplinary history’, but we took this to mean discipline imposed
     from citizen complaints.” Defendant also cited in its letter section 8 of the Personnel Record

     Review Act (Review Act) (820 ILCS 40/8 (West 2016)), which provides that an employer shall

     delete “records of disciplinary action which are more than 4 years old” before turning such

     records over to a third party. Defendant also wrote that “Donald McKinney does not have any

     citizen complaint[s] filed against him.”

¶4           Plaintiff, in turn, wrote a letter to defendant, arguing that the Review Act had been

     construed to not apply to requests made under FOIA. He also clarified his request, stating: “I am

     requesting any records related to discipline concerning employee McKinney: disciplinary

     reports, complaints made by anyone (not just public citizens), letters of reprimand or any other

     records of disciplinary action.” In a second responsive letter, defendant explained that it

     possessed no records of the type described by plaintiff within the last four years.

¶5           Plaintiff subsequently filed suit in the circuit court, arguing that the Review Act did not

     apply to FOIA requests. In the suit, plaintiff sought injunctive relief compelling defendant to

     provide the requested records. He also prayed for a civil penalty against defendant for the

     improper denial of his request. Defendant filed a motion to dismiss, asserting that the Review

     Act prevented it from delivering any of the records requested. 1 The circuit court granted

     defendant’s motion and dismissed the complaint with prejudice.

¶6                                                ANALYSIS

¶7           On appeal, plaintiff continues to argue that the Review Act does not exempt the records

     in question and thus maintains that the circuit court erred in dismissing his complaint. Defendant

     concedes on appeal that it does have “disciplinary records” for McKinney relating to two

     incidents occurring in 2010 and 2012. Those records do not, however, include any citizen

             1
               Defendant also argued that the matter should be dismissed because “the Joliet Police Department
     is not a suable entity.” Defendant has abandoned this argument on appeal.
                                                        2

       complaints. Defendant argues that the Review Act dictates that those records from outside the

       four-year window may not be disclosed pursuant to a FOIA request.

¶8            Section 1.2 of FOIA provides that “[a]ll records in the custody or possession of a public

       body are presumed to be open to inspection or copying. Any public body that asserts that a

       record is exempt from disclosure has the burden of proving by clear and convincing evidence

       that it is exempt.” 5 ILCS 140/1.2 (West 2016). Section 7(1)(a) of FOIA states: “[T]he following

       shall be exempt from inspection and copying: (a) Information specifically prohibited from

       disclosure by federal or State law or rules and regulations implementing federal or State law.” Id.

       § 7(1)(a). Finally, section 7.5 of FOIA reads: “Statutory exemptions. To the extent provided for

       by the statutes referenced below, the following shall be exempt from inspection and copying:

       *** (q) Information prohibited from being disclosed by the Personnel Records Review Act.” Id.

       § 7.5(q).

¶9            Section 8 of the Review Act provides that “An employer shall review a personnel record

       before releasing information to a third party and, except when the release is ordered to a party in

       a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of

       disciplinary action which are more than 4 years old.” 820 ILCS 40/8 (West 2016). The Review

       Act also dictates that “This Act shall not be construed to diminish a right of access to records

       already otherwise provided by law, provided that disclosure of performance evaluations under

       the [FOIA] shall be prohibited.” Id. § 11.

¶ 10          Initially, we find that the records presently in question are the types of disciplinary

       records contemplated by section 8 of the Review Act. While plaintiff also requested records of

       complaints made against McKinney, defendant explicitly responded that no such complaints

       existed, without reference to the four-year time span. The remainder of plaintiff’s request, the


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       portion at issue in this appeal, concerned “disciplinary reports, letters of reprimand, or other

       records of disciplinary action” 2 regarding McKinney. As plaintiff’s request perfectly tracked the

       language of section 8 of the Review Act, there can be no dispute that any records in question

       would fall under the ambit of that section.

¶ 11          Putting aside momentarily section 11 of the Review Act, it is also clear that section 7.5(q)

       of FOIA and section 8 of the Review Act would serve to render the records in question exempt

       from disclosure. Section 8 of the Review Act dictates that disciplinary records more than four

       years old may not be turned over to a third party. Section 7.5(q) of FOIA holds that the

       prohibitions found in the Review Act are applicable to FOIA requests. Thus, absent section 11 of

       the Review Act, disciplinary records more than four years old would be exempt from disclosure

       under FOIA.

¶ 12          However, this appeal calls on us to determine how section 11 of the Review Act impacts

       that chain of logic. Section 11 of the Review Act, again, dictates that the Review Act should “not

       be construed to diminish a right of access to records already otherwise provided by law.” Id.

       Plaintiff maintains that this clause stands for the proposition that the right of access provided by

       FOIA may not be abridged by any restrictions in the Review Act. Defendant contends that

       section 7.5(q) of FOIA and section 8 of the Review Act must be given effect.

¶ 13          The question to be decided on this appeal regarding the interplay between FOIA and the

       Review Act is an issue of statutory construction. Our primary aim in such an endeavor is to

       ascertain and give effect to the legislature’s intent. Flynn v. Industrial Comm’n, 211 Ill. 2d 546,

       555 (2004). “Statutes relating to the same subject must be compared and construed with

       reference to each other so that effect may be given to all of the provisions to the extent possible,

              2
               For reference purposes, we will describe the requested records simply as “disciplinary records.”


                                                          4

       even where an apparent conflict exists.” Id. “A statute should be construed so that no word or

       phrase is rendered superfluous or meaningless.” Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).

       Specific language in a statute must take precedence over more general language on the same

       topic. See id.

¶ 14           FOIA lists the Review Act, by name, as a statute whose prohibitions create exemptions

       under FOIA. See 5 ILCS 140/7.5(q) (West 2016). If section 11 of the Review Act is construed as

       rendering the Review Act inapplicable to FOIA, then section 7.5(q) of FOIA would be

       superfluous and meaningless. On the other hand, even if section 11 of the Review Act is

       inapplicable to FOIA, it is still applicable to the numerous other laws that provide a right of

       access to records. See, e.g., 5 ILCS 160/4 (West 2016) (right of access to public records under

       the State Records Act); 705 ILCS 105/16 (West 2016) (right of access to court records under the

       Clerks of Courts Act); 55 ILCS 5/3-5036 (West 2016) (right of access to various records under

       the Counties Code).

¶ 15           Accordingly, based on these familiar tenets of statutory construction, plaintiff’s position

       is untenable. When possible, a court must give effect to all of the provisions of a statute such that

       none are rendered superfluous. Here then, to avoid rendering section 7.5(q) of FOIA wholly

       meaningless, we find that the prohibition on disclosure of disciplinary records more than four

       years old, found in section 8 of the Review Act, is applicable to FOIA requests and that such

       records are thus exempt from FOIA. The specific language of FOIA, which references the

       Review Act by name, must take precedence over the general construction guidance found in

       section 11 of the Review Act.

¶ 16           In reaching this conclusion, we reject plaintiff’s argument that this case is factually

       identical to the First District cases of Fraternal Order of Police, Chicago Lodge No. 7 v. City of


                                                        5

       Chicago, 2016 IL App (1st) 143884, and Watkins v. McCarthy, 2012 IL App (1st) 100632.

       Notably, each of those cases concerned the disclosure of citizen complaint registers (CRs), rather

       than of disciplinary records. See Fraternal Order of Police, 2016 IL App (1st) 143884, ¶ 36;

       Watkins, 2012 IL App (1st) 100632, ¶ 41. In Kalven v. City of Chicago, 2014 IL App (1st)

       121846, ¶ 20, the First District rejected the notion that CRs could be considered disciplinary

       records, stating:

                      “The CRs are created to investigate reports of police misconduct, and any

                      disciplinary adjudication that may take place as a result of the CRs comes later.

                      While information obtained during the investigation may potentially be

                      introduced during adjudication of a disciplinary case, a CR does not initiate that

                      adjudication, nor can CRs themselves be considered disciplinary. Indeed, if a

                      complaint is unsubstantiated, then no disciplinary adjudication ever occurs ***.”

¶ 17          The court in Fraternal Order of Police relied directly on the holding in Kalven when it

       rejected the claim that CRs should be exempt from FOIA under section 8 of the Review Act.

       Fraternal Order of Police, 2016 IL App (1st) 143884, ¶¶ 51-53. In other words, because CRs did

       not constitute the type of disciplinary reports contemplated by the Review Act, there would be no

       basis for finding the CRs exempt from FOIA. Id. ¶ 53. Defendant in this case presumably had

       that result in mind when it explicitly responded to plaintiff’s FOIA request by stating that

       McKinney had no complaints filed against him, in any time period. Defendant did not and does

       not now assert that any such complaints would be exempt if they existed.

¶ 18          Finally, we recognize that the court in Fraternal Order of Police noted that section 11 of

       the Review Act dictated that the type of disciplinary records contemplated by section 8 of the

       Review Act were nevertheless subject to disclosure under FOIA. Id. ¶ 46. That finding was


                                                       6

       necessarily dicta, as the conclusion that the CRs in question did not even trigger section 8 of the

       Review Act would obviate the need for any further Review Act analysis. Within that dicta, the

       Fraternal Order of Police court cited to Watkins, where—prior to its decision in Kalven—the

       court stated: “pursuant to section 11, the Personnel Record Review Act is not a state law which

       would prohibit the disclosure of information contained in the CR files, to the extent such

       information may fall within the scope of the Personnel Record Review Act, but was required to

       be disclosed under the FOIA.” Watkins, 2012 IL App (1st) 100632, ¶ 42. In Watkins, however,

       the court did not consider the specific invocation of the Review Act in section 7.5(q) of FOIA,

       instead only addressing the general clause of section 7(1)(a). Id. ¶ 40; see supra ¶ 8. In any

       event, insofar as either Watkins or Fraternal Order of Police can be read as standing for the

       proposition that section 11 of the Review Act negates the applicability of section 8 of the Review

       Act to FOIA, we disagree for the reasons listed above. See supra ¶¶ 12-15.

¶ 19                                            CONCLUSION

¶ 20          The judgment of the circuit court of Will County is affirmed.

¶ 21          Affirmed.




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