                                          2019 IL App (3d) 180118

                                Opinion filed March 6, 2019
     _______________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                       2019

     JOSEPH HOSEY,                                       )      Appeal from the Circuit Court
                                                         )      of the 12th Judicial Circuit,
            Plaintiff-Appellant,                         )      Will County, Illinois.
                                                         )
            v.                                           )      Appeal No. 3-18-0118
                                                         )      Circuit No. 17-MR-1334
     THE CITY OF JOLIET,                                 )
                                                         )      The Honorable
            Defendant-Appellee.                          )      John C. Anderson,
                                                         )      Judge, presiding.
     ________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Justices Lytton and Wright concurred in the judgment and opinion.

     ________________________________________________________________________

                                                  OPINION

¶1          Plaintiff, Joseph Hosey, submitted four Freedom of Information Act (FOIA) (5

     ILCS 140/1 et seq. (West 2016)) requests to obtain videotaped police interviews of

     several individuals; defendant, City of Joliet (City), denied the requests. The Illinois

     Attorney General was asked to review the denials and determined that plaintiff was

     entitled to the videotapes. When the City still failed to process his requests, plaintiff filed

     a complaint for injunctive relief in the circuit court. Thereafter, both parties filed motions

     for summary judgment. The trial court granted summary judgment in favor of Joliet and

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     against Hosey, finding that (1) section 103-2.1(g) of the Code of Criminal Procedure of

     1963 (Criminal Code) (725 ILCS 5/103-2.1(g) (West 2016)) prohibits disclosure by the

     City in this case and (2) the City failed to establish its defenses under FOIA that (a) the

     disclosure constituted an invasion of personal privacy and (b) the disclosure was unduly

     burdensome. Plaintiff appealed. We affirm.

¶2                                                FACTS

¶3          On January 4, 2016, plaintiff Hosey, a reporter for the Joliet Patch, submitted four

     FOIA requests to obtain the 2013 videotaped police interviews of murder suspects Alisa

     Massaro, Adam Landerman, Bethany McKee, and Joshua Miner. Since the requests were

     made, this court has filed decisions in People v. Miner, 2017 IL App (3d) 140897-U,

     People v. McKee, 2017 IL App (3d) 140881, and People v. Landerman, 2018 IL App (3d)

     150684. Defendant City denied Hosey’s request pursuant to section 7(1)(c), (d)(i), and

     (d)(iv) of FOIA (5 ILCS 140/7(1)(c), (d)(i), (d)(iv) (West 2016)), claiming unwarranted

     invasion of personal privacy, interference with actual or pending law enforcement

     proceedings, and disclosure of confidential source or information, respectively.

¶4          Hosey sought review by the Illinois Attorney General of the denials. That office

     determined that Hosey was entitled to the videotapes listed in the FOIA request because

     the City, in violation of section 9.5(c) of the FOIA (id. § 9.5(c)), failed to comply with

     the Attorney General’s request for a copy of the recordings and a written explanation for

     asserting the exemptions in denying Hosey’s FOIA request. The City never provided

     Hosey with the videotaped police interviews.

¶5          Subsequently, Hosey filed a complaint for injunctive relief, attorney fees, and a

     civil penalty for the denial of his FOIA request. The City filed an answer and affirmative


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     defenses, arguing that (1) responding to the request would be unduly burdensome to the

     City and outweighs public interest in the records and (2) the disclosure would be an

     “unwarranted invasion of personal privacy.” Thereafter, the parties filed cross motions

     for summary judgment. The City argued that Hosey’s claims should be dismissed based

     on the two affirmative defenses it had raised in its answer and also asserted for the first

     time that it was exempted under section 7(1)(a) of the FOIA (id. § 7(1)(a)) from

     disclosing the videotapes because their disclosure was prohibited by section 103-2.1(g) of

     the Criminal Code (725 ILCS 5/103-2.1(g) (West 2016)). In Hosey’s motion for

     summary judgment, he alleged that (1) the City could not prove by clear and convincing

     evidence that his request should be denied in accordance with the FOIA, (2) his request

     does not constitute an invasion of personal privacy, and (3) the production of the

     videotapes would not be unduly burdensome because the videotapes were previously

     produced during the suspects’ trial and the videotapes do not require “extensive searching

     or reproduction.”

¶6          The trial court granted summary judgment in favor of the City and against Hosey,

     determining that (1) the City failed to show how disclosing the videotapes constituted an

     invasion of personal privacy; (2) the City failed to establish that disclosing the videotapes

     would be an undue burden; and (3) although there are contextual and policy arguments

     that support Hosey’s rationale for disclosure, the plain language of section 103-2.1(g) of

     the Criminal Code indicates that the word “accused” is not situational and that the

     videotapes are exempt from public inspection because the defendants depicted in the

     videotapes were “accused” at the time of the interrogation. Hosey appealed.

¶7                                              ANALYSIS


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¶8          On appeal, Hosey challenges the trial court’s grant of the City’s summary

     judgment motion on the basis that the requested videotapes were exempt under the

     Criminal Code from inspection and production. Summary judgment should be granted if

     there is no genuine issue as to any material fact and the moving party is entitled to a

     judgment as a matter of law. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001). Summary

     judgment can aid in the expeditious disposition of a lawsuit, but it is a drastic measure

     and should be allowed only when the right of the moving party is clear and free from

     doubt. Id. If the plaintiff fails to establish any element of his claim, summary judgment is

     appropriate. Id. The standard of review for a motion for summary judgment is de novo.

     Id.

¶9          Under the FOIA, public records are presumed to be open and accessible. Southern

     Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). “Based

     upon the legislature’s clear expression of public policy and intent set forth in section 1 of

     the FOIA that the purpose of that Act is to provide the public with easy access to

     government information, *** the FOIA is to be accorded liberal construction to achieve

     this goal.” (Internal quotation marks omitted.) Id. at 416. “[T]he exceptions to disclosure

     set forth in the FOIA are to be read narrowly so as not to defeat the FOIA’s intended

     purpose.” Id. “[W]hen a public body receives a proper request for information, it must

     comply with that request unless one of the narrow statutory exemptions set forth in

     section 7 of the [FOIA (5 ILCS 140/7 (West 1998))] applies.” (Internal quotation marks

     omitted.) Id. at 417. If the denial is challenged in court, the public body has the burden of

     proving that the records in question fall within the exemption it has claimed. Lieber v.

     Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408 (1997). This court


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       reviews de novo whether the denial is proper under the FOIA. Chicago Tribune Co. v.

       Department of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶¶ 25-

       26.

¶ 10          First, Hosey argues that section 103-2.1(g) does not apply in this case because the

       word “accused” within section 103-2.1(g) is defined as “one charged with an offense”

       and the defendants were no longer “accused” when the FOIA request was made. Hosey

       claims that this interpretation of section 103-2.1(g) is supported by the language in

       section 103-2.1(c) of the Criminal Code (725 ILCS 5/103-2.1(c) (West 2016)) which

       states, “Every electronic recording made under this Section must be preserved until such

       time as the defendant’s conviction for any offense relating to the statement is final and all

       direct and habeas corpus appeals are exhausted, or the prosecution of such offenses is

       barred by law.” Hosey claims that if this court were to accept the City’s interpretation of

       section 103-2.1(g), it would cause an absurd and unjust result because all recordings of

       custodial interrogations would be exempt from public inspection. Citing Lieber, 176 Ill.

       2d at 408, Hosey asserts that the City was required to give a written notice specifying the

       basis for the denial and he concludes that the City has forfeited this issue because it did

       not include the specific exemption on which it now relies in the denial letter.

¶ 11          The City responds that, under Chicago Tribune Co., 2014 IL App (4th) 130427,

       ¶ 26, a public body does not waive exemptions that are not claimed in the initial denial

       letter. Furthermore, the City claims that the purpose of the Criminal Code to protect the

       rights of the accused does not end once the defendant is convicted. Therefore, the City

       asserts that because the videotapes were made during the custodial interrogations of

       persons who were criminally accused at the time of their making, the plain language of


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       section 103-2.1(g) exempts their disclosure. The City alleges that if this court adopts

       Hosey’s interpretation, it would be reading an exception into the statute that the

       legislature did not express. Also, the City alleges that Hosey’s argument that the

       defendants are no longer “accused” fails because one of the defendants, Landerman, still

       had a case pending before this court that might have been remanded for a new trial.

¶ 12          As a preliminary matter, we address Hosey’s waiver argument. In Chicago

       Tribune Co., the Fourth District held that the defendant did not waive its claim that the

       trial court erred in granting summary judgment when the defendant failed to assert all of

       its grounds in the initial FOIA denial letter. Id. The court in that case relied on the ruling

       in Kopchar v. City of Chicago, 395 Ill. App. 3d 762, 770 (2009), in which the First

       District held that the defendant’s reliance on additional exemptions in its summary

       judgment motion that were not referenced in the FOIA denial letter were not waived. The

       ruling in Lieber that a party is required to list the bases for its denial in a written letter

       does not contradict this established principle. Therefore, we find that the City’s reliance

       on section 103-2.1(g) is not waived.

¶ 13          Turning to the parties’ arguments concerning the interpretation of section 103-

       2.1(g) and its insulation from disclosure under the FOIA, we are guided by the principles

       of statutory construction. Southern Illinoisan, 218 Ill. 2d at 415. The primary objective of

       this court when construing the meaning of a statute is to ascertain and give effect to the

       intent of the legislature. Id. In determining legislative intent, our inquiry begins with the

       plain language of the statute, which is the most reliable indication of the legislature’s

       objectives in enacting a particular law. Id. A fundamental principle of statutory

       construction is to view all provisions of a statutory enactment as a whole. Id. In


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       construing a statute, we presume that the legislature, in its enactment of legislation, did

       not intend absurdity, inconvenience, or injustice. Id. A court may not depart from the

       plain language of the statute and read into it exceptions, limitations, or conditions that are

       not consistent with the express legislative intent. Hendricks v. Board of Trustees of the

       Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14.

¶ 14          Section 7(1)(a) states that a request is exempt from inspection and copying when

       the information is specifically prohibited from disclosure by federal and state law or rules

       and regulations implementing federal and state law. 5 ILCS 140/7(1)(a) (West 2016).

       Section 103-2.1(g) states:

                      “Any electronic recording of any statement made by an

                      accused during a custodial interrogation that is compiled by

                      any law enforcement agency as required by this Section for

                      the purposes of fulfilling the requirements of this Section

                      shall be confidential and exempt from public inspection and

                      copying, as provided under Section 7 of the Freedom of

                      Information Act, and the information shall not be

                      transmitted to anyone except as needed to comply with this

                      Section.” 725 ILCS 5/103-2.1(g) (West 2016).

¶ 15          Based on the clear language of section 103-2.1(g), the Criminal Code prohibits

       the transmission of any electronic recording of any statement made by an accused during

       a custodial interrogation that is compiled by any law enforcement. See id. Here, the

       defendants, who were accused at the time the police conducted a custodial interrogation,

       made videotaped statements to the police that were compiled by the Joliet Police


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       Department. To accept Hosey’s interpretation that section 103-2.1(g) is no longer

       applicable when the defendants are no longer accused would read into it an element that

       the legislature did not include—specifically that the videotape loses its confidential and

       exempt status upon conviction or exoneration of the accused. This leaves open the

       troubling possibility of the public disclosure of sensitive or embarrassing personal

       information, particularly that of an innocent person, that would not have been revealed

       but for the threat of prosecution of a crime. The right to so modify a statute belongs to the

       legislature, not the courts. In addition, the City’s interpretation of the word “accused”

       conforms to the Criminal Code’s purpose to “[p]rovide for the just determination of every

       criminal proceeding by a fair and impartial trial and an adequate review.” (Emphases

       added.) Id. § 101-1(d). The appeal of at least one of the defendants was still pending

       before this court at the time this appeal was filed, and we have no knowledge that any of

       the defendants have exhausted their rights to appeal. For both of these reasons, we find

       that the subjects of Hosey’s requests are confidential under section 103-2.1(g) and,

       therefore, exempt from disclosure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a)

       (West 2016)).

¶ 16          The City continues to argue in this appeal that the videotapes are exempt from

       disclosure because they constitute a “clearly unwarranted invasion of personal privacy”

       under section 7(1)(c) of the FOIA (id. § 7(1)(c)) and that their production was excused as

       unduly burdensome under section 3(g) of the FOIA (id. § 3(g)). The trial court ruled in

       favor of Hosey on both of these claims. We decline to address either claimed exemption

       because our finding on the Criminal Code’s prohibition against production of the




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       videotaped statements is dispositive of this case. See Woodard v. Krans, 234 Ill. App. 3d

       690, 699 (1992) (a reviewing court may affirm on any basis appearing in the record).

¶ 17          Finally, the City generally claims that the FOIA request is also exempt under

       sections 7(1)(b), (d)(iii), (d)(iv), and (d)(v). 5 ILCS 140/7(1)(b), (d)(iii)-(v) (West 2016).

       However, the City alleges that “[i]n order to determine to what extent these exemptions

       are applicable to any portion of the videotaped interrogation, the City’s staff would have

       to review 88 hours of video and redact the exempt portions.” We reject the City’s

       argument as it is not fully developed and the City failed to provide evidence to support its

       argument. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (“The appellant’s brief shall contain

       *** Argument, which shall contain the contentions of the appellant and the reasons

       therefor, with citation of the authorities and the pages of the record relied on.”).

¶ 18                                             CONCLUSION

¶ 19          The judgment of the circuit court of Will County finding that the videotaped

       statements at issue in this appeal were exempted by section 103-2.1(g) of the Criminal

       Code (725 ILCS 5/103-2.1(g) (West 2016)) from public disclosure pursuant to a FOIA

       request is affirmed.

¶ 20          Affirmed.




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