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                                    Appellate Court                          Date: 2018.07.10
                                                                             15:48:37 -05'00'




        Martinez v. Cook County State’s Attorney’s Office, 2018 IL App (1st) 163153



Appellate Court        FREDDY MARTINEZ, Plaintiff-Appellant, v. COOK COUNTY
Caption                STATE’S ATTORNEY’S OFFICE, Defendant-Appellee.



District & No.         First District, First Division
                       Docket No. 1-16-3153



Filed                  March 12, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 15-CH-5943; the
Review                 Hon. Kathleen Kennedy, Judge, presiding.



Judgment               Affirmed.


Counsel on             Matthew Topic and Joshua Hart Burday, of Loevy & Loevy, of
Appeal                 Chicago, for appellant.

                       Kimberly M. Foxx, State’s Attorney, of Chicago (Chaka M. Patterson,
                       Sisavanh B. Baker, and Jayman A. Avery III, Assistant State’s
                       Attorneys, of counsel), for appellee.



Panel                  JUSTICE SIMON delivered the judgment of the court, with opinion.
                       Presiding Justice Pierce and Justice Mikva concurred in the judgment
                       and opinion.
                                             OPINION

¶1       Defendant, Cook County State’s Attorney’s Office, repeatedly denied plaintiff Freddy
     Martinez’s Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) requests
     for disclosure of public records related to defendant’s alleged use of information obtained from
     cell site simulators in criminal prosecutions. Plaintiff filed suit alleging a violation of FOIA,
     and the parties filed cross-motions for summary judgment. The trial court granted summary
     judgment in favor of defendant and against plaintiff, finding each request facially improper or
     exempt from disclosure. We affirm.

¶2                                          BACKGROUND
¶3       On December 31, 2014, plaintiff sent a FOIA request to defendant, seeking disclosure of
     records related to defendant’s use of information obtained from cell site simulators or
     “stingray” devices in criminal prosecutions (First Request):
             “For each instance in which information obtained using a cell site simulator (also
             known as IMSI catcher or commonly known as “stingray” equipment) was used in a
             criminal prosecution, all records showing the case, the information that was used, the
             charges, the outcome of the case, how the information was obtained and by whom, and
             any court orders authorizing the use of the equipment.”
¶4       On January 5, 2015, defendant denied plaintiff’s request for two reasons: (1) FOIA does
     not require defendant to furnish nonexistent records and (2) if responsive records did exist,
     compliance with the request was exempt as unduly burdensome under FOIA. In support of its
     reasoning, defendant consulted with senior attorneys at the “Criminal Prosecutions and
     Narcotics Bureaus” and determined that there was “no way of knowing the identity of criminal
     cases where a cell cite simulator was used to obtain evidence in those cases, if any such cases
     exist.” Defendant concluded that if responsive documents did exist, compliance with
     plaintiff’s request would require an unduly burdensome hand count of “hundreds and
     thousands of criminal cases.”
¶5       On January 5, 2015, plaintiff sent an e-mail in response to the denial:
                 “Send an e-mail to every attorney in the State’s Attorney’s Office [SAO] and ask
             each to identify, based on memory, any cases in which evidence was obtained using a
             stingray.
                 Conduct a server-side centralized search of e-mails (both within Cook County
             State’s Attorney’s Office [CCSAO] and the e-mails stored by the County) for
             ‘stingray,’ ‘IMSI catcher,’ and ‘cell cite simulator’ and produce any non-exempt
             records.”
     Defendant treated plaintiff’s e-mail as a new FOIA request (Second Request). Plaintiff
     maintained that his e-mail proposed ways to narrow the First Request in aid of disclosure.
¶6       On January 6, 2015, defendant denied the Second Request as unduly burdensome. In
     support of its denial, defendant explained that the “over 800” assistant state’s attorneys “who
     tried a case in which some law enforcement officials obtained information from a cell site
     simulator would likely not know whether any evidence in that case was obtained through a
     stingray” unless “an issue arose at trial in which proof needed to be adduced to show the source
     of some particular evidence.” Defendant concluded that the sending of mass e-mails would

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       require assistant state’s attorneys to make phone calls to law enforcement, require follow-up
       contact, and include outreach to those no longer employed.
¶7          Defendant used an analogy to demonstrate how the request for a server-side e-mail search
       would be unduly burdensome: “in 2013, I had occasion to ask the County to conduct a search
       of e-mails for around 20 [SAO] employees looking for e-mails from a two year window and
       using about a half-dozen search terms. That search took several months. Here, you are asking
       the [SAO] and the County to search the e-mails of the entire office over an unspecified time
       period using three search terms. This request would take at least a month or two, if not longer.”
¶8          After denying plaintiff’s Second Request, defendant offered to confer about narrowing the
       “two latest FOIA requests.” Plaintiff accepted the invitation, and the parties agreed to narrow
       the First and Second Requests to “terrorism and narcotics cases” (Narrowed Requests).
¶9          On January 27, 2015, defendant denied the Narrowed Requests. Defendant restated its
       arguments in support of previous denials and raised new grounds for exemption: “[A]lthough I
       have not seen any documents responsive to your FOIA request, such documents would likely
       be exempt from disclosure under the ‘attorney-client, work product, deliberative process’ or
       law enforcement investigatory privileges of FOIA.” Plaintiff responded with a lawsuit.
¶ 10        On April 4, 2015, plaintiff filed a complaint, alleging that defendant’s denials of his
       requests violated FOIA. Defendant filed a motion to dismiss, which was later withdrawn.
       Defendant answered plaintiff’s complaint, pleading four affirmative defenses. The parties filed
       cross-motions for summary judgment and the trial court found as follows:
                    “The Court finds that Plaintiff’s request, as it currently exists, is for all records
               falling within a category of records, which would be unduly burdensome because
               Defendant does not maintain the requested documents in any type of searchable format.
                    Plaintiff’s request, as it currently exists, would require Defendant to conduct a
               file-by-file review to find the requested documents. Narrowing the request failed to
               reduce the burden sufficiently to mandate compliance.
                    Additionally, Plaintiff’s phrasing of his request lends itself to different
               interpretations including a request for a list of all instances in which a cell site simulator
               was used in order to locate the records. Defendant does not maintain such a list, and
               FOIA does not require Defendant to create one.”
¶ 11        The trial court granted defendant’s motion for summary judgment and entered judgment in
       its favor. The trial court denied plaintiff’s motion for summary judgment and plaintiff appeals.

¶ 12                                             ANALYSIS
¶ 13       The issue on appeal is whether plaintiff’s requests for disclosure, on their face, require the
       creation of records or, alternatively, are exempt under FOIA such that judgment as a matter of
       law is warranted. We review the issue de novo. Performance Marketing Ass’n v. Hamer, 2013
       IL 114496, ¶ 12.
¶ 14       As a public body under FOIA, defendant is obligated to make its public records available
       for inspection and copying. Nelson v. Kendall County, 2014 IL 116303, ¶ 27. The purpose of
       FOIA is to open governmental records to the light of public scrutiny. Day v. City of Chicago,
       388 Ill. App. 3d 70, 73 (2009). “Restraints on access to information *** are limited exceptions
       to the principle that the people of this State have a right to full disclosure of information
       relating to the decisions, policies, procedures, rules, standards, and other aspects of

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       government activity that affect the conduct of government and the lives of any or all of the
       people.” 5 ILCS 140/1 (West 2012). Accordingly, “ ‘public records are presumed to be open
       and accessible,’ ” courts are to construe FOIA liberally, and exemptions to disclosure are to be
       interpreted narrowly. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d
       390, 415-16 (2006).
¶ 15       We first address plaintiff’s contention that defendant improperly characterized the Second
       Request as a new FOIA request.
¶ 16       Plaintiff argues that the Second Request was not a new FOIA request, but instead, an
       appropriate “interim step” designed to narrow his First Request. Plaintiff suggests that if
       defendant was unclear as to the character of his request, defendant should have asked for
       clarification or interpreted the request in favor of disclosure. In support of his suggestion,
       plaintiff cites Truitt v. Department of State, 897 F.2d 540, 545 (D.C. Cir. 1990), where the
       court announced that “what is expected of a law-abiding agency is that it admit and correct
       error when error is revealed” in reference to the state department’s finding of additional
       responsive documents in a file after indicating, albeit mistakenly, that its initial search had
       uncovered all documents responsive to a FOIA request.
¶ 17       Defendant counters plaintiff’s argument as waived under Fitzpatrick v. ACF Properties
       Group, Inc., 231 Ill. App. 3d 690 (1992). Fitzpatrick involved a party’s failure to object, at trial
       and in a post-trial motion, to a motion to transfer venue and its inadequate briefing of the issue
       on appeal without citation to authority. Defendant contends that Fitzpatrick is applicable here
       because plaintiff did not support his argument with authority. We hold that plaintiff raised the
       issue before the trial court and properly briefed the issue here. The argument is not waived.
¶ 18       Defendant argues that its characterization of the Second Request was proper because the
       request did not actually function to narrow the First Request. Defendant cites plaintiff’s
       reliance on Truitt as misplaced, having been clear and unmistaken in its decision not to search
       for responsive records and issue a response.
¶ 19       We hold that defendant did not err in its characterization of the Second Request as a new
       FOIA request. Plaintiff’s Second Request refers to e-mails, whereas the First Request does not.
       Moreover, the Second Request was made after having received a denial by defendant in
       writing. Defendant committed no error, let alone that seen in Truitt, which involved a public
       body’s inadequate search for records.
¶ 20       We observe that by extending plaintiff an opportunity to confer after denying the First
       Request and Second Request, defendant may have acted out of step with FOIA procedure.
       FOIA contains a specific requirement for the party seeking to exempt disclosure as unduly
       burdensome: “Before invoking this exemption, the public body shall extend to the person
       making the request an opportunity to confer with it in an attempt to reduce the request to
       manageable proportions.” (Internal quotation marks omitted.) National Ass’n of Criminal
       Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 15 (2010). However,
       because the parties conferred on January 8, 2015, and agreed to narrow the First and Second
       Requests to “terrorism and narcotics cases,” we address the merits of whether the Narrowed
       Requests call for the creation of records, and if not, whether disclosure is exempt under FOIA
       such that judgment as a matter of law is warranted.
¶ 21       Summary judgment is appropriate when there are no genuine issues of material fact and the
       moving party is entitled to judgment as a matter of law. Schweihs v. Chase Home Finance,
       LLC, 2016 IL 120041, ¶ 48. When parties file cross-motions for summary judgment, they

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       agree that only a question of law is involved and invite the court to decide the issues based on
       the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. However, the mere filing of cross-motions
       for summary judgment does not establish that there is no issue of material fact and does not
       obligate a court to render summary judgment. Id. This court may affirm a grant of summary
       judgment on any basis appearing in the record, regardless of whether the lower courts relied
       upon that ground. Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 34.
¶ 22       Plaintiff argues that his requests call for “discrete records: the specific records of cases in
       which information obtained through the use of stingrays was used.” Because the records exist
       in the form requested, plaintiff argues, defendant was required to search for them and
       admittedly, conducted no search at all. Hence, plaintiff concludes, summary judgment is
       unavailable to defendant for want of an adequate search.
¶ 23       Plaintiff attacks the affidavit of defendant’s FOIA compliance officer, Paul A. Castiglione
       (Castiglione Affidavit), filed in support of summary judgment, as mere storytelling. Instead of
       dispelling issues of material fact, plaintiff argues that the Castiglione Affidavit references
       events and conversations with “Bureau Chiefs of the Special Prosecutions Bureau and
       Narcotics Bureau” and avers that “[SAO] does not compile or retain a summary or listing of
       cases that involved evidence obtained by means of cell site simulator.”
¶ 24       Defendant counters, arguing that, in calling for records not yet created, plaintiff’s requests
       are invalid under FOIA. Rather than identifying a public record, defendant argues that
       plaintiff’s requests improperly call for general data, information, and statistics. Defendant
       stresses that it has no duty under FOIA to create records and that the Castiglione Affidavit
       conclusively demonstrates that defendant does not “retain a listing or a database that identifies
       those cases in which any evidence upon which the prosecution relied was obtained via cell site
       simulator.”
¶ 25       We hold that plaintiff’s request “for each instance in which information obtained using a
       cell site simulator (also known as IMSI catcher or commonly known as ‘stingray’ equipment)
       was used in a criminal prosecution” does not reasonably describe a record, but rather generally
       describes “instances,” in which information was “used,” as scattered throughout records. A
       “reasonable description requires the requested record to be reasonably identified as a record
       not as a general request for data, information and statistics to be gleaned generally from
       documents which have not been created and which the agency does not generally create or
       require.” (Internal quotation marks omitted.) Kenyon v. Garrels, 184 Ill. App. 3d 28, 32
       (1989). Plaintiff’s attempt to limit disclosure to “all records showing the case, the charges, the
       outcome of the case and any court orders authorizing the use of the equipment” is not curative
       as his request requires the compilation of each “instance” in which information was “used,”
       once identified by defendant. FOIA does not compel the compilation of data defendant does
       not ordinarily keep. Chicago Tribune Co. v. Department of Financial & Professional
       Regulation, 2014 IL App (4th) 130427, ¶ 34.
¶ 26       Plaintiff’s request about how, and by whom, the information using a cell site simulator was
       obtained and used, in a criminal prosecution, highlights its generality and seeks disclosure of
       information extracted generally from documents which, according to defendant’s FOIA
       compliance officer, have not yet been created: “[SAO] does not retain a listing or a database
       that identifies those cases in which any evidence upon which the prosecution relied was
       obtained via cell site simulator.” The trial court’s grant of summary judgment in favor of


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       defendant as to the First Request was therefore warranted, whether narrowed to “narcotics or
       terrorism cases” or not.
¶ 27       Turning to the Second Request, we hold that plaintiff improperly posed a question that
       FOIA does not require defendant to answer. Plaintiff asks defendant to “[s]end an e-mail to
       every attorney in the [SAO] and ask each to identify, based on memory, any cases in which
       evidence was obtained using a stingray.” FOIA “does not compel the agency to provide
       answers to questions posed by the inquirer.” (Internal quotation marks omitted.) Id. ¶ 33.
¶ 28       In asking defendant to “[c]onduct a server-side centralized search of e-mails (both within
       Cook County State’s Attorney’s Office [CCSAO] and the e-mails stored by the County) for
       ‘stingray,’ ‘IMSI catcher,’ and ‘cell cite simulator,’ ” we hold that plaintiff requested a search,
       not a public record.
¶ 29       At first glance, plaintiff requests an action that FOIA may require defendant to undertake.
       “A database is an aggregation of data, not a discrete document.” (Internal quotation marks
       omitted.) Garlick v. Naperville Township, 2017 IL App (2d) 170025, ¶ 57. In order to
       “reproduce the records in the database, it is necessary to search the database for responsive
       data.” Hites v. Waubonsee Community College, 2016 IL App (2d) 150836, ¶ 72. An electronic
       search that the public body can perform meets the definition of “copying” under FOIA. Id.
       ¶ 73.
¶ 30       However, a search for responsive data contained in a database may, in and of itself,
       constitute action FOIA does not require a public body to undertake: the creation of a new
       record. Hamer v. Lentz, 132 Ill. 2d 49 (1989). A request for a listing or index of a database’s
       contents that seeks information about those contents, as opposed to the contents themselves,
       requests a new record. National Security Counselors v. Central Intelligence Agency, 898 F.
       Supp. 2d 233, 271 (D.D.C. 2012).
¶ 31       Here, plaintiff requested a search. Whether the search itself calls for the creation of new
       records is unknown, and plaintiff’s request to “produce any non-exempt records” does not
       provide an answer. But insofar as plaintiff seeks disclosure of the results of his proposed
       search, his request is one for “general data, information and statistics,” not a public record. See
       Chicago Tribune Co., 2014 IL 130427, ¶ 33.
¶ 32       The trial court’s grant of summary judgment in favor of defendant as to the Second Request
       was therefore warranted, whether narrowed to “narcotics or terrorism cases,” or not. Having
       decided that summary judgment was properly granted in favor of defendant, we need not
       consider whether compliance with plaintiff’s requests was exempt under FOIA and whether
       plaintiff inappropriately sought disclosure of the same records he requested from the Chicago
       Police Department.

¶ 33                                       CONCLUSION
¶ 34       The trial court properly granted summary judgment in favor of defendant and against
       plaintiff.

¶ 35      Affirmed.




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