                                          2019 IL App (3d) 180742

                                 Opinion filed July 30, 2019
     _____________________________________________________________________________

                                                   IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2019

     CHADWICK N. BARNER,                               )       Appeal from the Circuit Court
                                                       )       of the 9th Judicial Circuit,
             Plaintiff-Appellant,                      )       Fulton County, Illinois,
                                                       )
             v.                                        )       Appeal No. 3-18-0742
                                                       )       Circuit No. 18-CH-59
     RICHARD FAIRBURN and THE CANTON                   )
     POLICE DEPARTMENT,                                )       Honorable
                                                       )       Thomas B. Ewing,
             Defendants-Appellees.                     )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices Carter and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1           Plaintiff, Chadwick N. Barner, filed a complaint for declaratory or injunctive relief

     against defendants, Richard Fairburn and the Canton Police Department, alleging defendants

     violated the Freedom of Information Act. The trial court granted defendants’ motion to dismiss

     plaintiff’s complaint with prejudice. Plaintiff was not present for the hearing but received proper

     notice. Plaintiff appeals.

¶2                                           I. BACKGROUND

¶3           On March 13, 2018, plaintiff sent a Freedom of Information Act (FOIA) (5 ILCS 140/1

     et seq. (West 2018)) request to the Canton Police Department. Plaintiff requested a copy of the
     dispatch transcripts from the Canton Police Department for May 12, 2015, between 2 p.m. and

     2:30 p.m., a copy of all police reports, witness statements, traffic tickets issued to plaintiff on

     May 12 to13, 2015, and any other additional evidence. On March 19, 2018, Barbara Bryant, the

     FOIA officer for the Canton Police Department, responded in writing to plaintiff’s request.

     Bryant informed plaintiff that his request would be “granted in part and denied in part for the

     following reasons:

                    Enclosed you will find the incident report from Canton Police Dispatch center.

            The actual Dispatch radio communication is no longer available as the system only keeps

            the information for a few months per the 911 Board. However, you might contact the

            Canton Park District Office and the Fulton County Sheriff’s office at the addresses as

            follows for further information ***.”

¶4          On May 29, 2018, plaintiff, citing section 9 of FOIA, filed a complaint for declaratory or

     injunctive relief (the complaint) in the circuit court of Will County alleging the Canton Police

     Department and public safety director, Richard Fairburn (collectively defendants), violated FOIA

     because “[t]he public body did not provide plaintiff with specified documents or even

     acknowledged [sic] all the information on the plaintiffs [sic] request.” See 5 ILCS 140/9 (West

     2018). Plaintiff alleged defendants failed to provide specific reasons for the denial of his request

     as required under FOIA. Plaintiff requested an order compelling the production of the requested

     records and prayed for monetary damages.

¶5          On August 29, 2018, defendants filed a motion to dismiss the complaint pursuant to

     section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2018)). The

     motion argued the nonexistence of the requested records constituted a cognizable affirmative

     defense to plaintiff’s claim. In support of its motion to dismiss, defendants submitted Bryant’s




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     written response to plaintiff’s FOIA request as well as an affidavit from Bryant. Bryant’s

     affidavit averred:

                    “Upon receipt of [plaintiff’s] FOIA request, I searched for all responsive records.

            I provided him with a copy of the Incident Report which was the only record that the City

            had with respect to this incident. I searched the 911 database for any communications

            relating to the incident referenced in the FOIA request, but no record of those

            communications existed at the time of [plaintiff’s] request because 911 communications

            are only retained for a few months in conjunction with a policy set by the 911 Board. I

            also referred [plaintiff] to the Canton Park District and the Fulton County Sheriff’s

            Department because those agencies were also involved in the incident referenced in

            [plaintiff’s] FOIA request.”

¶6          On September 14, 2018, the case was transferred to Fulton County. On October 24, 2018,

     plaintiff responded to defendants’ motion to dismiss and argued the motion should be denied

     because defendants failed to comply with plaintiff’s FOIA request. Plaintiff also filed a motion

     for an order of habeas corpus, requesting the trial court to issue an order of habeas corpus so

     that plaintiff could be present during the hearing on defendants’ motion to dismiss. Plaintiff

     contended his presence “in court [was] required due to his personal knowledge of the facts in this

     cause of action.”

¶7          On November 29, 2018, the trial court conducted a hearing on defendants’ motion to

     dismiss. The trial court, “having considered the briefs filed by the parties and the oral argument

     of Defendants’ [sic] counsel,” granted defendants’ motion to dismiss with prejudice. Plaintiff

     was not present at the hearing but had notice of the hearing. Plaintiff appeals the trial court’s

     decision granting defendants’ motion to dismiss with prejudice.




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¶8                                                II. ANALYSIS

¶9            On appeal, plaintiff contends the trial court erred by granting defendants’ section 2-619

       motion to dismiss with prejudice because the initial answer to plaintiff’s FOIA request failed to

       address several of plaintiff’s requests and failed to reference a specific legal reason for the denial

       of the request, thus violating FOIA. Plaintiff additionally contends the trial court erred by failing

       to issue an order of habeas corpus requiring plaintiff to be present during the hearing on

       defendants’ motion to dismiss. In response, defendants argue the nonexistence of the requested

       documents constitutes a cognizable affirmative defense warranting dismissal of the complaint

       and that plaintiff’s presence at the hearing on the motion to dismiss was unnecessary.

¶ 10          A motion to dismiss pursuant to section 2-619 necessarily admits the sufficiency of the

       complaint but asserts a defense outside the complaint that defeats it. See 735 ILCS 5/2-619

       (West 2018). Courts may consider affidavits when ruling on motions to dismiss. Id. § 2-619(c).

       We review the trial court’s grant of a section 2-619 motion to dismiss de novo. SK Partners I, LP

       v. Metro Consultants, Inc., 408 Ill. App. 3d 127, 129 (2011).

¶ 11          Here, defendants requested the dismissal of the complaint pursuant to section 2-619(a)(9)

       of the Code, which provides for dismissal where an affirmative matter avoids the legal effect of

       or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2018). Specifically, defendants argued in the

       trial court, and now on appeal, that when the defendants have tendered to the plaintiff all that

       plaintiff is entitled to, the case is properly dismissed as moot. See Yu v. International Business

       Machines Corp., 314 Ill. App. 3d 892, 897-98 (2000). We agree.

¶ 12          FOIA provides for the inspection and copying of public records in the custody or

       possession of a public body. See 5 ILCS 140/3 (West 2018). However, FOIA does not compel

       public bodies to turn over information the public bodies do not normally retain. Chicago Tribune




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       Co. v. Department of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 34

       (citing Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989)). “The nonexistence of requested

       documents is a cognizable affirmative defense to a complaint grounded in FOIA.” Bocock v. Will

       County Sheriff, 2018 IL App (3d) 170330, ¶ 52; see Hites v. Waubonsee Community College,

       2016 IL App (2d) 150836.

¶ 13          Here, Bryant’s affidavit asserted that she searched for all requested records and found

       nothing in relation to plaintiff’s request other than the incident report. Bryant provided the

       incident report to plaintiff. Bryant’s affidavit additionally explained that she was unable to

       provide plaintiff with the requested 911 communications because “no record of those

       communications existed at the time of [plaintiff’s] request because 911 communications are only

       retained for a few months in conjunction with a policy set by the 911 Board.” The records

       requested by plaintiff either did not exist or were not in defendants’ possession. Based on these

       facts, defendants could not have violated FOIA by failing to turn such documents over to

       plaintiff. Therefore, the trial court properly granted defendants’ section 2-619 motion to dismiss

       the complaint with prejudice.

¶ 14          Plaintiff’s second argument that defendants violated FOIA because defendants’ response

       to plaintiff’s request failed to reference a specific reason for the partial denial is unpersuasive.

       Section 9 of FOIA provides that “[e]ach public body denying a request for public records shall

       notify the requester in writing of the decision to deny the request[ and] the reasons for the denial,

       including a detailed factual basis for the application of any exemption claimed ***.” 5 ILCS

       140/9(a) (West 2018).

¶ 15          The plain language of section 9 of FOIA does not require a “detailed factual basis” of a

       denial where the public body is not claiming an exemption, as is the case here. Id. § 9.




                                                        -5-
       Exempting records from disclosure under FOIA necessarily implies the records exist, and

       Bryant’s affidavit definitively established that the records in question either never existed or are

       no longer in existence. Furthermore, Bryant notified plaintiff in writing of the decision to

       partially deny plaintiff’s request and gave a reason for the partial denial in compliance with

       section 9 of FOIA. Id. Defendants’ response to plaintiff’s request was compliant with section 9

       of FOIA. Id.

¶ 16          Lastly, plaintiff argues he was unfairly denied the opportunity to appear at the

       November 29, 2018, hearing to present his argument in opposition to defendants’ motion to

       dismiss. Section 10-135 of the Code affords the trial court the authority to bring prisoners before

       the court to testify when necessary. 735 ILCS 5/10-135 (West 2018). “The decision whether to

       grant a prisoner reprieve from his imprisonment and allow him to personally appear in a civil

       proceeding is within the trial court’s discretion.” Beahringer v. Roberts, 334 Ill. App. 3d 622,

       629 (2002). An order for habeas corpus is properly refused where the prisoner’s testimony will

       not affect the result of the proceeding. People v. Adams, 4 Ill. 2d 453, 458-59 (1954). We review

       a trial court’s decision to refuse plaintiff’s request for an order of habeas corpus under the abuse

       of discretion standard. Beahringer, 334 Ill. App. 3d at 629. “A trial court abuses its discretion

       only where no reasonable person would take the view adopted by the trial court.” In re Marriage

       of Schneider, 214 Ill. 2d 152, 173 (2005).

¶ 17          Both parties agree plaintiff was absent from the November 29, 2018, hearing. The record

       does include plaintiff’s motion for the issuance of an order of habeas corpus. However, the

       record submitted for our review does not contain a report of proceedings of the motion hearing.

       Thus, we necessarily assume plaintiff’s absence at the hearing was involuntary and was due to




                                                       -6-
       the trial court’s denial of his request. Accordingly, the relevant inquiry becomes whether

       plaintiff’s presence at the hearing was necessary.

¶ 18          In this case, plaintiff’s presence was unnecessary. The complaint and response to

       defendants’ section 2-619 motion to dismiss succinctly laid out plaintiff’s FOIA arguments to the

       court. However, the documentation provided by defendants in support of their motion to dismiss

       spoke for itself and affirmatively refuted plaintiff’s arguments. For these reasons, we cannot say

       the trial court’s decision to deny plaintiff’s request for an order of habeas corpus was an abuse of

       discretion.

¶ 19          To conclude, the trial court properly dismissed the complaint with prejudice and did not

       abuse its discretion by denying plaintiff’s request to be present at the hearing on defendants’

       motion to dismiss. The trial court’s rulings are affirmed.

¶ 20                                            CONCLUSION

¶ 21          The judgment of the circuit court of Fulton County is affirmed.

¶ 22          Affirmed.




                                                       -7-
                                  No. 3-18-0742


Cite as:                 Barner v. Fairburn, 2019 IL App (3d) 180742


Decision Under Review:   Appeal from the Circuit Court of Fulton County, No. 18-CH-59;
                         the Hon. Thomas B. Ewing, Judge, presiding.



Attorneys                Chadwick N. Barner, of Joliet, appellant pro se.
for
Appellant:


Attorneys                Jane M. May and Brian M. Funk, of O’Halloran Kosoff Geitner
for                      & Cook, LLC, of Northbrook, for appellees.
Appellee:




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