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                                                                                 Date: 2018.08.15
                                      Appellate Court                            16:39:34 -05'00'




                  Johnson v. Joliet Police Department, 2018 IL App (3d) 170726



Appellate Court           MACEO JOHNSON, Plaintiff-Appellant, v. THE JOLIET POLICE
Caption                   DEPARTMENT, Defendant-Appellee.



District & No.            Third District
                          Docket No. 3-17-0726



Filed                     June 19, 2018



Decision Under            Appeal from the Circuit Court of Will County, No. 17-MR-0673; the
Review                    Hon. Arkadiusz Z. Smigielski, Judge, presiding.



Judgment                  Affirmed.


Counsel on                Maceo Johnson, of Joliet, appellant pro se.
Appeal
                          Michael D. Bersani and Yordana Wysocki, of Hervas, Condon &
                          Bersani, P.C., of Itasca, for appellee.



Panel                     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 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

        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.

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       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 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, 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.

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

                                                    -3-
¶ 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 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
       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 Watkins, where—prior to its decision in

                                                  -4-
       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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