No. 1-17-0780 Opinion filed on June 21, 2019 Fifth Division _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT _____________________________________________________________________________

JOHN Q. KELLY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) THE VILLAGE OF KENILWORTH, THE ) ILLINOIS STATE POLICE, THE COOK ) No. 16 CH 5192 COUNTY STATE’S ATTORNEY’S OFFICE, ) and THE COOK COUNTY MEDICAL ) Honorable EXAMINER, ) Anna Helen Demacopoulos, Defendants-Appellees. ) Judge, presiding. _____________________________________________________________________________

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hoffman and Hall concurred in the judgment and opinion.

OPINION

¶1 In 1966, 21-year-old Valerie Percy was murdered at her home in the Village of

Kenilworth (Kenilworth). Her murder remains unsolved. As the fiftieth anniversary of her death

approached, plaintiff, John Q. Kelly, filed requests under the Illinois Freedom of Information Act

(FOIA) (5 ILCS 140/1 et seq. (West 2016)) for information concerning the murder investigation.

Specifically, he filed requests with Kenilworth, the Illinois State Police (ISP), the Cook County

State’s Attorney’s Office (CCSAO), the Cook County Medical Examiner (CCME) and the 1-17-0780

Chicago Police Department (CPD). When those public bodies declined to turn over documents,

Kelly filed this action against them in the circuit court, although his claim against the CPD was

later voluntarily dismissed. Following the submission of affidavits, and the court’s in camera

inspection of certain documents in the remaining defendants’ files, the court entered summary

judgment in defendants’ favor, requiring only that CCME turn over a small portion of

documents.

¶2 On appeal, Kelly asserts that defendants did not meet their burden of demonstrating that

all withheld records were exempt from disclosure. According to Kelly, the procedures used

below did not present the court with an adequate factual basis to determine whether an

exemption applied to all withheld records and denied him the opportunity to engage in

adversarial testing. We reverse and remand for further proceedings.

¶3 I. BACKGROUND

¶4 On September 18, 1966, an intruder entered Valerie’s bedroom, inflicted 2 blows to her

head and stabbed her 10 times. At that time, Kenilworth and the surrounding area lacked a major

crimes task force. Kenilworth initially pursued the investigation with help from the surrounding

communities and the ISP. Eleven days after the murder, however, the ISP was placed in charge.

In the first few years of the investigation, the ISP investigated approximately 1190 leads. The

investigation ebbed and flowed over the next decades and the ISP turned over the investigation

to Kenilworth in 2002. In 2014, the North Regional Major Crimes Task Force/Percy Homicide

Task Force was created. 1 Its members include the Kenilworth Police Department, the

Northbrook Police Department, the Wilmette Police Department, the Evanston Police

Department and a special agent from the Federal Bureau of Investigation (FBI).

1 It is not clear from the record whether these are separate task forces. -2- 1-17-0780

¶5 In January 2016, Kelly tendered FOIA requests to defendants, seeking all records

pertaining to the investigation into Valerie’s murder, including investigative reports, witness

interviews, follow-up reports, photos, evidence vouchers, forensic testing results, audio and

video recordings, transcripts, findings, conclusions, summaries of witness testimony, notes,

memos, and correspondence. 2 Kenilworth denied Kelly’s request in its entirety, stating that

“[t]he Specified Records were created in the course of administrative enforcement proceedings,

or for law enforcement purposes, and disclosure would *** obstruct or interfere with an active or

ongoing criminal investigation by the Village,” citing, in pertinent part, the exemption found in

section 7(1)(d)(vii) of FOIA.

§ 7(1)(d)(vii). The CCSAO also denied the request pursuant to

sections 7(1)(d)(i) and 7(1)(d)(vii). Id. § 7(1)(d)(i), (vii). Furthermore, while it initially appeared

that the ISP was prepared to turn over documents, it ultimately denied Kelly’s request after

determining that the case was still open. The ISP determined that the information requested

would interfere with a pending or reasonably contemplated law enforcement proceeding. The

CCME never responded. No defendant cited the exemption found in section 3(g) of FOIA, which

applies to “unduly burdensome” requests. Id. § 3(g).

¶6 In April 2016, Kelly filed the instant complaint against defendants, asserting they

willfully and intentionally violated FOIA by failing to produce records responsive to a request.

Kelly moved for partial summary judgment against Kenilworth, the ISP and the CCSAO,

arguing that those public bodies had the burden of proving the requested records were exempt.

Kelly also argued that the ISP and the CCSAO were not conducting any investigation or

enforcement proceeding and could not rely on Kenilworth’s investigation to claim an exemption.

2 While Kelly first claimed a commercial purpose for the request, he subsequently cited a noncommercial purpose. -3- 1-17-0780

¶7 Kenilworth then filed a cross-motion for summary judgment, asserting that records were

exempt from disclosure under section 7(1)(d)(vii) because releasing them would interfere with

and obstruct the ongoing and active investigation into Valerie’s murder being conducted by

Kenilworth and the North Regional Major Crimes Task Force. In support thereof, Kenilworth

submitted for the circuit court’s in camera review the declaration of the Kenilworth chief of

police, David Miller. Kelly was initially denied access to that declaration. According to Chief

Miller, Kenilworth’s investigative file contained “approximately 20,000 pages of records,

spanning multiple file cabinets and boxes.” Significant portions of the file were stored on DVD

copies of microfilm, which were not easily reviewable with modern software given the age and

quality of the records. The file contained investigative reports, crime scene photographs,

photographs and diagrams of the Percy home, interview notes, witness statements, letters

providing tips and evidence, pathological reports, lead investigation summaries, correspondence

between law enforcement agencies, and other miscellaneous records. 3

¶8 Chief Miller stated that disclosing the information in his declaration or any portion of

Kenilworth’s investigative file would jeopardize the active, ongoing investigation. In his opinion,

the entire file should remain confidential. Kenilworth received new leads every year and

compared them to confidential information to verify or discount them. “It is impossible for us to

predict when these leads will arise, where they will come from, what they will be about, or

whether they will relate to a prior lead or part of the investigation.” Additionally, confidential

information was used to discount numerous confessions. Chief Miller expected an increase in

confessions upon the publicity attending the fiftieth anniversary of the murder. According to

3 Kenilworth alleged that it had tendered to Kelly news stories and other materials that were in the public domain.

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Chief Miller, Kenilworth’s recent investigation was not “limited to the passive receipt of leads

from third parties” either. He provided eight pages of additional details, which were redacted

from the declaration ultimately given to Kelly. Miller later added that as recently as September

2015, he had requested assistance from the CCME to analyze evidence in this case.

¶9 Kenilworth argued that Chief Miller’s declaration showed disclosure would alert targets

to the existence and nature of the investigation, allow prime suspects to tamper with evidence,

discourage individuals from sharing information with investigators, and make it difficult to

assess leads and confessions. Kenilworth’s codefendants should also be permitted to withhold

records because they were assisting in the investigation. Moreover, the entire file should be

withheld. Going through each page of the investigative file “could potentially require hundreds

of hours to review, analyze and redact information.” Kenilworth did not, however, assert that the

undue burden of compliance rendered the documents exempt from disclosure under section 3(g).

Additionally, Kenilworth had not offered Kelly an opportunity to confer with Kenilworth to try

to reduce the request to manageable proportions. See id. At no point has any defendant raised a

section 3(g) exemption in this case.

¶ 10 Kelly responded that Kenilworth could not assert an exemption over other defendants,

could not assert a blanket exemption, and had not shown that the disclosure of any specific

records would interfere with the allegedly ongoing investigation. Furthermore, the burden of

compliance was irrelevant to a section 7(1)(d) exemption. Attached to the response was Kelly’s

own affidavit, which recited his experience as a New York prosecutor and a criminal defense

attorney. For the past 25 years, he had litigated civil cases, including wrongful death cases that

arose from homicides. Kelly disagreed with Chief Miller’s claim that disclosing any portion of

the investigative file would obstruct and interfere with the investigation.

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¶ 11 At a hearing on September 7, 2016, the circuit court ordered Kenilworth to provide Kelly

a redacted copy of Chief Miller’s declaration: “I understand that this may be and result in a

highly redacted affidavit. But nonetheless, the plaintiff is at least entitled to that.” The court then

said it would review in camera the documents referred to in paragraphs 15, 16, and 17 of Chief

Miller’s declaration, paragraphs that would be redacted from the copy given to Kelly. 4

¶ 12 Later that month, the ISP responded to Kelly’s partial summary judgment motion,

claiming exemptions under sections 7(1)(d)(i) and 7(1)(d)(vii). The ISP argued that agencies do

not work in a vacuum and releasing the ISP’s records could interfere with an ongoing criminal

investigation, even if the ISP was not presently leading the investigation. The ISP attached

affidavits from Nancy Easum, the ISP’s legal counsel, and Dana Pitchford, a forensic scientist

with the ISP.

¶ 13 According to Easum, the ISP investigated Valerie’s murder from the 1960s through the

1990s and used FBI resources. The ISP’s current file contained over 2000 pages, including

names and information from confidential sources and files from the Kenilworth Police

Department, the CPD, the FBI, and the CCME. Kenilworth had recently informed the ISP that

the investigation was ongoing. Pitchford added that over the last 16 years, she had conducted a

significant amount of forensic and DNA testing in Valerie’s case. She had also received forensic

testing requests from Kenilworth and members of the ISP. While Pitchford concluded her

affidavit by apparently describing her involvement in the investigation over the last six months,

that paragraph was redacted. The court reviewed in camera Pitchford’s affidavit and the

documents referred to in the final paragraph.

4 Kelly did not request that the court order Kenilworth to create an index (5 ILCS 140/11(e) (West 2016)), and later explained he was waiting for the court to first determine whether a document-by- document inquiry was required or whether a categorical inquiry would suffice.

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¶ 14 The CCSAO responded to Kelly’s motion by arguing that the records were exempt under

section 7(1)(d)(vii) “because the documents at issue are the product of the joint efforts of a

number of law enforcement agencies over a period of time in connection with the investigation

of the Percy homicide and, more importantly, that investigation is ongoing and active.” Attached

was the declaration of Assistant State’s Attorney Thomas Biesty, the CCSAO’s cold case

supervisor. According to Biesty, Kenilworth requested the CCSAO’s assistance in the

investigation in 2002. The CCSAO’s investigation file also contained several thousand pages

provided by Kenilworth or the ISP as part of their investigation. “These documents were

provided with the understanding that they were confidential and not for release publicly, as part

of an ongoing investigation.” Additionally, the number and variety of documents made it

burdensome to categorize every document in the file. Biesty opined that publishing the

documents would compromise the ongoing investigation. The declaration, which contained

several redactions, stated that the documents referred to therein would be submitted to the court

for in camera inspection.

¶ 15 The CCME then responded to Kelly’s motion for partial summary judgment, arguing that

if the court were to grant Kenilworth’s motion for summary judgment, or deny Kelly’s motion

for partial summary judgment as to the ISP and the CCSAO, the court should also deny Kelly’s

motion for partial summary judgment as to the CCME’s records. The court subsequently ordered

the CCME to submit an index of records for in camera inspection.

¶ 16 At a hearing on December 6, 2016, the circuit court issued its opinion. The court found

that (1) Kenilworth’s investigation was active and ongoing and its files were exempt under

section 7(1)(d)(vii); (2) due to cooperation among the public bodies, Kenilworth’s exemptions

flowed to its codefendants; (3) the ISP’s investigation was active and ongoing and its files were

-7- 1-17-0780

exempt under sections 7(1)(d)(i) and 7(1)(d)(vii); (4) the CCSAO’s investigation was active and

ongoing and its files were exempt under section 7(1)(d)(vii); (5) Kenilworth was entitled to

assert an exemption over the CCME files in which it had a substantial interest; and (6) Kelly’s

motion for partial summary judgment as to CCME was granted in part and denied in part. After

examining the filed affidavits and reviewing in camera more than 1000 pages, the court found

that detailed justifications supported each claimed exemption. 5

¶ 17 Citing federal law interpreting the federal FOIA, the court found it was appropriate to

limit its in camera review to certain documents, “[c]onsidering the volume of the Percy murder

investigatory file.”

“Rather than review the tens of thousands of pages of documents individually, the Court

has limited its in camera review to specific documents from each Defendant to keep the

review manageable. Moreover, after reviewing the documents, the Court finds it unlikely

that there is any reasonably segregable non-public portion of the investigatory record that

could conceivably be released.”

¶ 18 The court found Chief Miller’s declaration provided a fact-driven, detailed account of

Kenilworth’s recent investigation. “Not only has Kenilworth met their burden of clear and

convincing evidence, but this Court has no doubt this is an active, ongoing, criminal

investigation.” Kelly’s affidavits did not create a genuine issue of material fact in that regard

because he was not an expert, lacked personal knowledge of the Percy investigation, and relied

on publicly available facts that may be inaccurate. See Ill. S. Ct. R. 191 (eff. Jan. 4, 2013).

5 We note that while the circuit court cited section 7(1)(d)(i), Kenilworth’s summary judgment motion did not rely on that subsection. In addition, the CCSAO asserts on appeal that it too moved for summary judgment. The CCSAO did not, however, directly ask the court to enter summary judgment in its favor. Furthermore, the circuit court did not purport to rule on any cross-motion filed by the CCSAO, notwithstanding the CCSAO’s suggestion to the contrary.

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Furthermore, while section 7(1)(d) provided exemptions based on conduct of the public body

that is “the recipient of the request,” it would be absurd to permit one public body to release

documents that would interfere with another public body that was entitled to an exemption.

Instead, it was sufficient for the recipient of the request to be participating in another public

body’s investigation. Kenilworth had a substantial interest in asserting exemptions over the

documents possessed by the other defendants, and the court would “not discourage agencies

from cooperating for fear that sensitive investigatory work on open cases may be revealed

through FOIA requests.” Even if Kenilworth’s exemption did not flow to its codefendants,

sufficient documentation showed that the ISP and the CCSAO were participating in ongoing

investigations.

¶ 19 The court found Biesty’s declaration, which cited the participation of the 2014 task force,

provided a compelling account of the ongoing criminal investigation. The court had also

reviewed the documents mentioned in paragraphs 14 through 18 of Biesty’s affidavit. “To

disclose anything further would completely abandon the public policy of the exemption.”

Additionally, Pitchford’s affidavit articulated her involvement in the investigation over the

previous six months. With respect to the CCME’s file, however, Kenilworth could not claim the

exemption for documents that originated outside of the coroner’s office, the CCME’s

predecessor, and that were not made by a public body for law enforcement purposes. The court

ordered CCME to release to Kelly the transcript of the coroner’s report and certain exhibits with

redactions. 6

¶ 20 II. ANALYSIS

¶ 21 Illinois public policy dictates that “all persons are entitled to full and complete

information regarding the affairs of government and the official acts and policies of those who 6 Records reviewed by the trial court in camera were filed under seal in the appellate court. -9- 1-17-0780

represent them as public officials and public employees consistent with the terms of this Act.” 5

ILCS 140/1 (West 2016). This access is necessary to allow people to fully and freely discuss

public issues, make informed political judgments and monitor the government. Id. Additionally,

“access by all persons to public records promotes the transparency and accountability of public

bodies at all levels of government.” Id.

¶ 22 Consequently, FOIA’s provisions are to be construed according to the principle that

restraints on access permitted by FOIA are limited exceptions to “full disclosure of information

relating to the decisions, policies, procedures, rules, standards, and other aspects of government

activity that affect the conduct of government and the lives of any or all of the people.” Id. “The

legislature has concluded that the sunshine of public scrutiny is the best antidote to public

corruption, and Illinois courts are duty-bound to enforce that policy.” Better Government Ass’n v.

Blagojevich,

(2008). Conversely, “[r]eliance upon self-determination

by public officials and employees as to what should or should not be disclosed to the public

would frustrate the purposes of [FOIA].” Baudin v. City of Crystal Lake,

(1989). FOIA is not, however, intended to cause unwarranted invasions of personal privacy

or to allow commercial entities to unduly burden public resources. Blagojevich,

. FOIA cannot be used to disrupt a public body’s proper work. Dumke v. City of Chicago,

.

¶ 23 “All records in the custody or possession of a public body are presumed to be open to

inspection or copying” (5 ILCS 140/1.2 (West 2016)), and a public body asserting an exemption

from disclosure has the burden of proving that exemption by clear and convincing evidence (id.

§ 1.2, 11(f)). Similarly, in any action before the court, “[t]he burden shall be on the public body

to establish that its refusal to permit public inspection or copying is in accordance with the

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provisions of this Act.” Id. § 11(f). A public body may meet its burden of proving a statutory

exemption through affidavits, in which case the court need not review the documents at issue in

camera. Illinois Education Ass’n v. Illinois State Board of Education,

(2003). Section 11(f) provides, however, that the circuit court “shall conduct such in camera

examination of the requested records as it finds appropriate to determine if such records or any

part thereof may be withheld under any provision of this Act.” 5 ILCS 140/11(f) (West 2016).

Moreover, our supreme court has found that in camera review is the most effective way for a

public body to objectively show that the claimed exemption applies. Illinois Education Ass’n,

.

¶ 24 To demonstrate that the requested records fall within an exemption, and to assist the court

in making its determination, a public body must provide a detailed explanation for claiming an

exemption, specifically addressing the requested documents in a manner allowing for adequate

adversarial testing. Watkins v. McCarthy,

. “The trial court shall

require the agency to create as full a public record as possible concerning the nature of the

documents and the justification for nondisclosure without compromising the secret nature of the

information.” Baudin,

. Furthermore, a public body can satisfy its burden

only by providing objective indicia that an exemption applies under the circumstances. See

Illinois Education Ass’n,

. Affidavits are insufficient if the public body presents

claims that are conclusory, overly vague or sweeping, or merely recite statutory standards. Day v.

City of Chicago,

(2009).

¶ 25 Discovery pertaining to the public body’s search for records and its claimed exemptions

is not required if the public body’s submissions are adequate on their face. BlueStar Energy

Services, Inc. v. Illinois Commerce Comm’n,

(2007). When this is the

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case, the circuit court can forgo discovery and enter summary judgment based on affidavits.

“FOIA cases should be handled on motions for summary judgment, once the documents at issue

are properly identified.”

While the clear and convincing burden of proof is ordinarily subject

to the manifest weight of the evidence standard of review (Burgess v. Abex Corp.,

(2000)), we review de novo an order granting summary judgment (Better

Government Ass’n v. Village of Rosemont,

).

¶ 26 A. The Recipient of the Request

¶ 27 Here, the public bodies relied on exemptions found in section 7(1)(d):

“(1) When a request is made to inspect or copy a public record that contains

information that is exempt from disclosure under this Section, but also contains

information that is not exempt from disclosure, the public body may elect to redact the

information that is exempt. The public body shall make the remaining information

available for inspection and copying. Subject to this requirement, the following shall be

exempt from inspection and copying:

***

(d) Records in the possession of any public body created in the course of

administrative enforcement proceedings, and any law enforcement or correctional

agency for law enforcement purposes, but only to the extent that disclosure

would:

(i) interfere with pending or actually and reasonably contemplated

law enforcement proceedings conducted by any law enforcement or

correctional agency that is the recipient of the request; [or]

***

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(vii) obstruct an ongoing criminal investigation by the agency that

is the recipient of the request.” 5 ILCS 140/7(1)(d)(i), (vii) (West 2016).

This court has held that police agencies must prove “on a case-by-case basis specifically how a

particular witness could be in danger or how an individual investigation could be compromised if

a document is disclosed in which all identifying information has been redacted.” National Ass’n

of Criminal Defense Lawyers v. Chicago Police Department,

(2010).

¶ 28 Kelly argues that section 7(1)(d)(vii) does not permit Kenilworth to assert an exemption

over the other defendants because the statute only applies where “the recipient of the request” is

conducting an ongoing investigation. According to Kelly, only the recipient of the request may

assert this exemption and only if that recipient is conducting its own investigation. While

Kenilworth’s codefendants received FOIA requests, they were not independently conducting an

investigation. This presents a matter of statutory construction.

¶ 29 We review construction of FOIA de novo. Stern v. Wheaton-Warrenville Community Unit

School District 200,

(2009). Courts liberally construe FOIA toward the full

disclosure of governmental affairs and the ability of the people to monitor the government.

. Conversely, courts must narrowly construe statutory exemptions from disclosure. Illinois

Education Ass’n,

. The statute’s language is the most reliable indicator of the

legislature’s intent and courts give effect to a statute’s plain and ordinary meaning. People v.

Hanna,

(2003). That being said, it is well settled that an interpretation

may accord with a statute’s language but not the legislature’s intention or the spirit of the statute.

. Where a literal reading of a statute would lead to inconvenient, unjust or absurd

results, “the literal reading should yield.” Bank of New York Mellon v. Laskowski,

.

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¶ 30 Kelly correctly notes that “the recipient of the request” was added to the statute effective

January 1, 2010, modifying “an ongoing criminal investigation” to “an ongoing criminal

investigation by the agency that is the recipient of the request.” (Emphasis added.) See Pub. Act

96-542, § 10 (eff. Jan. 1, 2010) (amending 5 ILCS 140/7). Prior to this amendment, the appellate

court had only one occasion to address the interaction between public bodies under FOIA. See

Twin-Cities Broadcasting Corp. v. Reynard,

(1996); see also City of

Chicago v. Janssen Pharmaceuticals, Inc.,

(stating that courts

presume the legislature, in enacting new legislation, acts with the full knowledge of prior judicial

decisions that address the subject of the legislation).

¶ 31 In Twin-Cities Broadcasting Corp., the reviewing court considered whether a public body

possessing information and documents may consent to the disclosure of those documents when

another public body having a substantial interest in the disclosure asserts an exemption. Twin-

Cities Broadcasting Corp.,

. Examining somewhat different procedural

facts from the case before us, the reviewing court held that FOIA implicitly requires the recipient

of a FOIA request to consult with another public body if the recipient (1) denies that the

documents sought are exempt or declines to assert an applicable exemption and (2) knows that

the agency with which the documents originated would choose to assert the exemption.

. In reaching that determination, the reviewing court observed that under section 3(d)(vii)

of FOIA (5 ILCS 140/3(d)(vii) (West 1994)), a public body may extend the time for responding

to a request due to a need to consult with another public body with a substantial interest in the

matter. Twin-Cities Broadcasting Corp.,

. The court stated, the “mere

possession of the documents, standing alone, is not determinative of an agency’s ability to

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release documents pursuant to the FOIA if another governmental entity has a substantial interest

in asserting an exemption.”

.

¶ 32 Kenilworth contends that Twin-Cities Broadcasting Corp. supports its position that it

may assert an exemption over records held by other defendants. Kelly contends that the case

stands only for the principle that an investigating agency has a substantial interest in keeping its

own records secret and that the legislature’s decision to amend the statute after the decision in

Twin-Cities Broadcasting Corp. shows the legislature intended to deviate from that decision.

First, even if Kelly is correct in his interpretation of Twin-Cities Broadcasting Corp., that would

not preclude this court from expanding that decision. Additionally, we find it is not clear that the

legislature intended to depart from Twin-Cities Broadcasting Corp. because the amendment

occurred approximately 14 years after the decision and there is no indication that courts suffered

from any postdecision fallout. The legislative record is silent as to why this language was added.

That being said, Kelly’s interpretation would lead to results that are absurd, inconvenient, and

unjust.

¶ 33 Illinois law and practical necessity require that law enforcement agencies in this state

cooperate with one another to investigate and prosecute crime. See People v. Ringland,

(stating that “[t]he State’s Attorney’s duty to investigate suspected illegal activity

acknowledges that a prosecutor ordinarily relies on police and other agencies for investigation of

criminal acts”); Ware v. Carey,

(1979) (stating that the American Bar

Association’s standards recognize that police effectiveness in addressing crime largely depends

on the effectiveness of other agencies, and that joint effort and cooperation is required for the

system to work); 20 ILCS 2610/16 (West 2016) (requiring the ISP to assist local police forces

with their investigations). Upon the court’s inquiry, Chief Miller, stated that Kenilworth did not

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have its own crime lab and would use the ISP crime lab, the FBI crime lab or the North Eastern

Illinois Regional crime lab to conduct additional forensic testing. The ISP stated, “this case is

unlike any other Illinois courts have faced—involving several different public bodies, working

together for more than fifty years to solve a murder. And while ISP is no longer the primary

agency working on the case, ISP’s resources have assisted Kenilworth as recently as this year.”

The record shows that while Kenilworth may currently be leading the investigation, numerous

public bodies have participated in it. See Hanna,

(finding that “[w]hen viewed

within the real-world activity that [the statute] was intended to regulate,” giving the statute’s

language its plain and ordinary meaning would produce absurd results). We find the circuit court

properly determined that Kenilworth could assert an exemption over the other defendants’

records in this case. Were it otherwise, law enforcement agencies would be discouraged from

cooperating due to the risk of harmful disclosures and the people of Illinois would be denied

effective law enforcement.

¶ 34 B. Ongoing Investigation

¶ 35 We also reject Kelly’s assertion that defendants did not demonstrate that an investigation

was ongoing, as required by section 7(1)(d)(vii). As of 2014, a task force, which included

Kenilworth, was investigating Valerie’s murder. Miller stated that he had requested assistance

from the CCME in this case as recently as September 2015. Pitchford’s affidavit indicated that

the ISP had been involved in the investigation even more recently. The record filed under seal

similarly demonstrates that the investigation is ongoing. Additionally, no one has been

convicted. Cf. Day,

(stating that the public body’s affidavits failed to

explain how the investigation of a murder that occurred 17 years earlier was ongoing where the

plaintiff was convicted of the murder 14 years earlier and there was no suggestion that a specific,

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living perpetrator was at large and under investigation). The passage of 50 years does not change

our determination. See also Africa Fund v. Mosbacher, No. 92 CIV. 289 (JFK),

, at *4 (S.D.N.Y. 1993) (stating that “Documents that would interfere with a lengthy or

delayed investigation that may still lead to a prospective law enforcement proceeding still fall

within the protective ambit of Exemption 7A.”).

¶ 36 Having reviewed the entire record filed under seal, we find the trial court correctly

determined that there is an ongoing investigation. That being said, we find that the method used

by defendants, Kenilworth, the ISP and the CCSAO in particular, to address the voluminous

investigative files did not comport with Illinois law. Defendants failed to demonstrate that a

blanket exemption was warranted.

¶ 37 C. Voluminous Records

¶ 38 Kelly asserts the circuit court erred in determining that defendants were not required to

prove on a document-by-document basis that the section 7(1)(d) exemptions applied. As stated,

the court found defendants had shown exemptions under section 7(1)(d)(i) and section

7(1)(d)(vii). Under those provisions, documents are exempt from disclosure

“only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law

enforcement proceedings conducted by any law enforcement or correctional

agency that is the recipient of the request [or];

***

(vii) obstruct an ongoing criminal investigation by the agency that is the

recipient of the request.” (Emphasis added.) 5 ILCS 140/7(1)(d)(i), (vii) (West

2016).

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Additionally, section 7(1), which states that the public body “shall” make information available

for inspection and copying after all exempt information has been redacted from those documents,

shows that the person requesting the documents is entitled to them, even if the material

remaining after redaction is not useful. Compare Heinrich v. White,

, with Copley Press, Inc. v. City of Springfield,

(1994) (stating,

where the circuit court and reviewing court had both reviewed the entire police file, that the file

could not be meaningfully redacted); Harwood v. McDonough,

(2003)

(finding that where the circuit court performed an in camera review of a report and determined

that no portion of it was nonexempt, the plaintiff was not entitled to a redacted report because the

redaction would leave blank pages, meaningless pronouns, and articles such as “and”).

¶ 39 Defendants have essentially suggested that the disclosure of at least a significant portion

of their investigative files would interfere with law enforcement proceedings or obstruct an

ongoing criminal investigation. Neither Chief Miller, Biesty, nor Easum, however, claimed to

have reviewed defendants’ entire investigative files. Instead, defendants and their affiants have

remarked on the burden of examining and redacting every page. Understandably, defendants

would prefer to claim exemptions over their entire files rather than sift through thousands of

documents to redact exempt matters and disclose whatever is left. Unfortunately for defendants,

section 7(1)(d) itself does not authorize such a generic approach. See National Ass’n of Criminal

Defense Lawyers,

(finding it possible but unlikely “that there are some

investigations in which production of the data could compromise an ongoing investigation, even

with all identifying information redacted”); Baudin,

(stating that “An

agency such as a police department cannot simply take the position that, since it is involved in

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investigatory work and some of its records are exempt from disclosure under the Act, every

document in its possession somehow comes to share in that exemption.”).

¶ 40 To be sure, the legislature has provided a statutory exemption and corresponding

procedure where public bodies anticipate an undue burden. Defendants here, however,

inexplicably failed to cite that exemption or comply with the corresponding statutory procedure.

¶ 41 Section 3(g) provides an exemption where “the request would be unduly burdensome for

the complying public body and there is no way to narrow the request and the burden on the

public body outweighs the public interest in the information.” 7 5 ILCS 140/3(g) (West 2016). “A

request that is overly broad and requires the public body to locate, review, redact and arrange for

inspection a vast quantity of material that is largely unnecessary to the appellants’ purpose

constitutes an undue burden.” National Ass’n of Criminal Defense Lawyers,

; see also Shehadeh v. Madigan,

(finding that the attorney

general’s office, claiming a section 3(g) exemption, was not required to demonstrate the

adequacy of its search where the breadth of the plaintiff’s request, which revealed over 9000

documents, was evident from the face of that request). Yet, for the exemption to apply, there

must be no way for the plaintiff to narrow the FOIA request and the burden on the public body

must outweigh the public’s interest in the information. National Ass’n of Criminal Defense

Lawyers,

. Additionally, the clear and convincing burden of proof applies to

section 3(g) exemptions. Sargent Shriver National Center on Poverty Law, Inc. v. Board of

Education of the City of Chicago,

, ¶ 32. Moreover, in order to assert a 7 We note that the record does not show what interest Kelly has in obtaining these materials other than idle curiosity. See also Castro v. Brown’s Chicken & Pasta, Inc.,

(2000) (stating that in determining whether that the law enforcement investigatory privilege to discovery applies, courts balance the public benefit of keeping the investigation confidential with the civil litigant’s need to obtain the information).

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section 3(g) exemption, a public body must first “extend to the person making the request an

opportunity to confer with it in an attempt to reduce the request to manageable proportions.” 8

See 5 ILCS 140/3(g) (West 2016).

¶ 42 Defendants here did not directly assert an exemption under section 3(g) or provide Kelly

the opportunity to reduce his requests. Instead, they tried to obtain the benefits of section 3(g)

without satisfying its burdens. Without properly raising a section 3(g) exemption in addition to

the section 7(1)(d) exemptions, defendants’ affidavits and documents submitted in camera did

not establish why even the documents they did not sort through are exempt. Moreover, they did

demonstrate why this is the rare case in which nothing is left after redacting all material that is

exempt under section 7(1)(d). Their affidavits were too sweeping for a section 7(1)(d) exemption

standing alone. 9 Furthermore, having examined the documents tendered to the court for in

camera review, we cannot say that even following heavy redactions, not a single sentence would

remain. See Heinrich,

(stating that the person requesting the

documents under section 7(1) is entitled to them, even if the material remaining after redaction is

not useful). Defendants’ approach failed to comply with the letter and spirit of Illinois’s FOIA in

this instance. See Baudin,

(stating that “An agency such as a police

department cannot simply take the position that, since it is involved in investigatory work and

8 Because a plaintiff desiring to test an exemption claimed under section 7 has little information at its disposal, courts have understandably required public bodies to prove exemptions through affidavits or the in camera review of records. Sargent Shriver National Center on Poverty Law, Inc.,

. A plaintiff testing an exemption claimed under section 3(g), however, has more information at its disposal “if the public body has engaged in the good-faith dialogue required by that section.” Id. ¶ 34. When documentation of the parties’ exchange is attached to the pleadings and when the public body has provided detailed justifications, a circuit court may be able to determine from the pleadings whether the public body has satisfied its burden. Id. 9 We further note that Miller’s comment about keeping as much information confidential as possible due to the difficulty of determining what may prove significant later was remarkably similar to a statement rejected as conclusory in Day. See Day,

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some of its records are exempt from disclosure under the Act, every document in its possession

somehow comes to share in that exemption.”).

¶ 43 We recognize that the circuit court relied on federal law in determining how to approach

the voluminous investigation file. Indeed, defendants correctly assert that Illinois courts

frequently consult federal FOIA jurisprudence in resolving questions involving the Illinois

FOIA. State Journal-Register v. University of Illinois Springfield,

. In this instance, however, key differences exist between the two statutes.

¶ 44 First, defendants have not brought to our attention any federal FOIA exemption for

unduly burdensome requests. While that act does provide special provisions for dealing with

voluminous requests, those provisions do not appear to create an exemption like that found in

section 3(g) of Illinois’s FOIA. See

(2018). Second, the federal FOIA’s parallel

exemptions pertaining to law enforcement meaningfully differ. Section 552(a)(8)(A) of the

federal FOIA allows an agency to withhold information only after taking “reasonable steps

necessary to segregate and release nonexempt information.”

§ 552(a)(8)(A)(ii)(II). Similarly,

section 552(b), which governs the exemption for law enforcement purposes, requires that “[a]ny

reasonably segregable portion of a record shall be provided to any person requesting such record

after deletion of the portions which are exempt under this subsection.” (Emphasis added.) Id.

§ 552(b). Section 7 of Illinois’s FOIA, however, contains no parallel language. Cf. Dickerson v.

Department of Justice,

(6th Cir. 1993) (Where the requester

acknowledged the government could withhold documents on a categorical basis under section

7(a), and there was little prospect of finding reasonably segregable materials, the court rejected

the requester’s objection to a blanket exemption for investigatory files.). Furthermore, while the

federal FOIA provides an exemption where disclosure “could” interfere with enforcement

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proceedings (

(b)(7)(A) (2018)), the Illinois FOIA provides an exemption only

where disclosure “would” interfere with enforcement proceedings or obstruct an ongoing

investigation (5 ILCS 140/7(1)(d)(i), (vii) (West 2016)). See Solar Sources, Inc. v. United States,

(7th Cir. 1998) (stating that “[t]he Government need not establish that

release of a particular document would actually interfere with an enforcement proceeding”

(emphasis omitted)).

¶ 45 Moreover, we recognize that the United States Supreme Court in National Labor

Relations Board v. Robbins Tire & Rubber Co.,

(1978), determined that

section 552(b)7 of the federal FOIA contemplates “that certain generic determinations might be

made” with respect to the interference with enforcement proceedings exemption because while

most of the exemptions in that subsection referred to particular cases or persons, the interference

with enforcement proceedings exemption did not. Section 7(d)(i) of Illinois’s FOIA, however,

does refer to a particular party: “the recipient of the request.” 5 ILCS 140/7(1)(d)(i), (vii) (West

2016). 10

¶ 46 The Court in Robbins also stated that “although the segregability provision requires that

nonexempt portions of documents be released, it does not speak to the prior question of what

material is exempt.” Robbins,

. As stated, however, section 3(g) of Illinois’s

FOIA specifically refers to the undue burden defense as an “exemption.” 5 ILCS 140/3(g) (West

2016); cf. Solar Sources, Inc.,

(stating that under federal FOIA, the

government need only show that disclosure of certain kinds of investigatory records in an

ongoing case would interfere with enforcement proceedings and that the government can “justify

its withholdings by reference to generic categories of documents, rather than document-by-

10 While the circuit court and this court have been unable to definitively identify why our legislature added this language to section 7 of Illinois’s FOIA in 2010, its purpose may have been to distance itself from Robbins. - 22 - 1-17-0780

document”). Illinois’s legislature has clearly chosen to handle voluminous records in a different

manner than its federal counterpart.

¶ 47 Because section 7(1)(d) does not itself permit blanket exemptions and because defendants

did not cite or comply with section 3(g), defendants did not demonstrate that the breadth of the

exemption permitted by the circuit court was appropriate here.

¶ 48 We now turn to the remedy for defendants’ failure to assert section 3(g) exemptions in

conjunction with section 7(1)(d) exemptions. At first blush, it may seem appropriate to prohibit

defendants from raising that exemption at this juncture. Indeed, by raising an exemption in this

backdoor manner, defendants denied Kelly meaningful notice that defendants intended to evade

any obligation to attempt to redact the record. Defendants also denied Kelly an opportunity to

narrow his request. We nonetheless find that for several reasons, it is appropriate to permit

defendants to raise the exemption at this late date.

¶ 49 Defendants below reserved the right to raise additional exemptions. In addition, the

interaction between section 3(g) and section 7(1)(d) in this instance presents a case of first

impression. Furthermore, we find it more appropriate to give defendants the opportunity to raise

a section 3(g) exemption in the first instance than to foist additional work upon the circuit court.

If defendants take advantage of this opportunity, Kelly is entitled to narrow his request. If the

parties are unable to reach an agreement in this regard, defendants must establish an exemption

under section 3(g) or be prepared to make the extensive redactions required by section 7(1)(d).

The burden belongs to defendants, not the circuit court.

¶ 50 D. Adversarial Testing

¶ 51 Finally, we briefly observe that Kelly miscomprehends the adversarial testing

contemplated by FOIA. Our supreme court has recognized that public bodies are not expected to

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disclose the substance of exempt documents in their affidavits. See Illinois Education Ass’n,

(stating that an “in camera review affords the benefits of an impartial arbiter

without the risks accompanying public disclosure of the documents”). Permitting Kelly access to

documents during the court’s in camera examination would also defeat the exemptions claimed.

In the context of FOIA, adversarial testing must mean something different.

¶ 52 As stated, a plaintiff is entitled to know which exemption a public body is actually

raising. If a public body is not raising the undue burden exemption, a plaintiff is entitled to hold

the public body to its burden of showing that it is withholding only the portions of the record that

are truly exempt, either through affidavits or through materials tendered to the court for in

camera review. Moreover, on the plaintiff’s motion, before or after in camera inspection, “the

court shall order the public body to provide an index of the records to which access has been

denied.” 5 ILCS 140/11(e) (West 2016). “The trial court shall require the agency to create as full

a public record as possible concerning the nature of the documents and the justification for

nondisclosure without compromising the secret nature of the information.” (Emphasis added.)

Baudin,

. Nothing more is required.

¶ 53 III. CONCLUSION

¶ 54 The items tendered to the court clearly demonstrated that an investigation into Valerie’s

murder is ongoing within the meaning of section 7(1)(d). Kenilworth may assert a section 7(1)(d)

exemption over documents held by other public bodies that participated in the investigation. Yet,

section 7(1)(d) does not alone provide for the categorical assertion of the exemptions therein.

Consequently, defendants have not met their burden of demonstrating that releasing any of the

withheld materials would have interfered with enforcement proceedings or obstructed an

investigation so as to render the entirety of their files exempt. We consequently reverse the

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circuit court’s order granting summary judgment in their favor and remand for further

proceedings consistent with this opinion. On remand, defendants will have the opportunity to

raise a section 3(g) exemption upon complying with the procedures required by that statute.

¶ 55 Reversed and remanded.

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