Return Date: No return date scheduled Hearing Date: 3/11/2020 9:30 AM - 9:30 AM Courtroom Number: 2502 Location: District 1 Court Cook County, IL FILED DATE: 11/12/2019 11:56 AM 2019CH13097 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION BETTER GOVERNMENT ASSOCIATION, Plaintiff, v. CHICAGO POLICE DEPARTMENT, Defendant. ) ) ) ) ) ) ) ) ) FILED 11/12/2019 11:56 AM DOROTHY BROWN CIRCUIT CLERK COOK COUNTY, IL 2019CH13097 7326135 2019CH13097 COMPLAINT NOW COMES Plaintiff, BETTER GOVERNMENT ASSOCIATION, by the undersigned attorneys, LOEVY & LOEVY, and brings this suit to overturn Defendant CHICAGO POLICE DEPARTMENT’s refusal, in willful violation of the Illinois Freedom of Information Act, to comply with BGA’s request for records pertaining to the police encounter with Superintendent Eddie Johnson from October 17, 2019, near the 3400 block of South Aberdeen Street. In support of this Complaint, BETTER GOVERNMENT ASSOCIATION states as follows: INTRODUCTION 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of the Illinois Freedom of Information Act (“FOIA”). 5 ILCS 140/1. 2. Restraints on access to information, to the extent permitted by FOIA, are limited exceptions to the principle that the people of this state have a right to full disclosure of FILED DATE: 11/12/2019 11:56 AM 2019CH13097 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 the people. 5 ILCS 140/1. 3. Under FOIA Section 1.2, “[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.” 4. Under FOIA Section 11(h), “except as to causes the court considers to be of greater importance, proceedings arising under [FOIA] shall take precedence on the docket over all other causes and be assigned for hearing and trial at the earliest practicable date and expedited in every way.” 5 ILCS 140/11(h). PARTIES 5. Plaintiff BETTER GOVERNMENT ASSOCIATION (“BGA”) is the FOIA requester in this case. BGA is a non-partisan, non-profit corporation located in Cook County, Illinois. BGA’s mission is to promote integrity, transparency, and accountability in government by exposing waste, fraud, and corruption; to advocate for effective public policy; and to inform and engage the community. 6. Defendant CHICAGO POLICE DEPARTMENT (“CPD”) is a public body located in Cook County, Illinois. OCTOBER 30, 2019, FOIA REQUEST 7. On October 30, 2019, BGA submitted a FOIA request to CPD for “all reports, dash camera videos, body camera videos, and other records related to the police encounter with Superintendent Eddie Johnson on October 17, 2019 near the 3400 block of South Aberdeen Street.” Exhibit A. -2- FILED DATE: 11/12/2019 11:56 AM 2019CH13097 8. On November 4, 2019, CPD assigned the FOIA number P536774 to the matter. In the same letter, CPD denied the request in its entirety pursuant to Section 7(1)(d)(i) and 7(1)(d)(ii). CPD based the denial on an investigation conducted by an entity other than CPD. Exhibit B. 9. CPD has not proven that the requested records are exempt under FOIA. 10. The requested records are not exempt. COUNT I – FAILURE TO PRODUCE RECORDS 11. The above paragraphs are incorporated by reference. 12. CPD is a public body under FOIA. 13. The records sought in the FOIA request are non-exempt public records of CPD. 14. CPD has violated FOIA by failing to provide Plaintiff with the records it requested. COUNT II – FAILURE TO PERFORM AN ADEQUATE SEARCH 15. The above paragraphs are incorporated by reference. 16. CPD is a public body under FOIA. 17. CPD bears the burden of proving beyond material doubt that it performed an adequate search for responsive records. 18. CPD has failed to come forward with sufficient evidence to carry this burden. 19. CPD has violated FOIA by failing to adequately search for responsive records. COUNT III – WILLFUL VIOLATION OF FOIA 20. The above paragraphs are incorporated by reference. 21. CPD is a public body under FOIA. 22. The records sought in the FOIA request are non-exempt public records of CPD. -3- FILED DATE: 11/12/2019 11:56 AM 2019CH13097 23. CPD has willfully and intentionally or otherwise in bad faith violated FOIA. WHEREFORE, BGA asks that the Court: i. in accordance with FOIA Section 11(f), afford this case precedence on the Court’s docket except as to causes the Court considers to be of greater importance, assign this case for hearing and trial at the earliest practicable date, and expedite this case in every way; ii. declare that CPD has violated FOIA; iii. order CPD to produce the requested records; iv. enjoin CPD from withholding non-exempt public records under FOIA; v. order CPD to pay civil penalties; vi. award Plaintiff reasonable attorneys’ fees and costs; vii. award such other relief the Court considers appropriate. RESPECTFULLY SUBMITTED, /s/ Matthew V. Topic Attorneys for Plaintiff BETTER GOVERNMENT ASSOCIATION Matthew Topic Joshua Burday Merrick Wayne LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com Atty. No. 41295 -4- FILED DATE: 11/12/2019 11:56 AM 2019CH13097 ________________________________________ From: Jared Rutecki Sent: Wednesday, October 30, 2019 11:03 AM To: FOIA Subject: FOIA request Dear FOIA officer, This is Jared Rutecki with the Better Government Association with a request for records under the Illinois Freedom of Information Act. I am requesting all reports, dash camera videos, body camera videos, and other records related to the police encounter with Superintendent Eddie Johnson on October 17, 2019 near the 3400 block of South Aberdeen Street. I ask these records to be made available for inspection within five business days as required by law, and be provided electronically where possible. This request is for a possible news story. I ask that you waive fees as the law allows, and make records available electronically where possible. If you have any questions please call me. Thank you, Jared Rutecki Investigative Reporter Better Government Association Exhibit A 223 W Jackson Blvd Ste 300 Chicago, IL 60606 FILED DATE: 11/12/2019 11:56 AM 2019CH13097 312-821-9032 ** EXTERNAL EMAIL WARNING ** This email originated outside of the Chicago Police Department. **NEVER CLICK, DOWNLOAD, or OPEN** unexpected links or attachments. **NEVER** provide User ID (PC Number) or Password or other sensitive information. If this email seems suspicious, contact the City of Chicago Help Desk at 312-744-DATA (312-744-3282) or follow instructions on THE WIRE to report Junk Email or SPAM. ________________________________ This e-mail, and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail (or the person responsible for delivering this document to the intended recipient), you are hereby notified that any dissemination, distribution, printing or copying of this e-mail, and any attachment thereto, is strictly prohibited. If you have received this e-mail in error, please respond to the individual sending the message, and permanently delete the original and any copy of any e-mail and printout thereof. -Jared Rutecki Investigative Reporter Better Government Association 312-821-9032 FILED DATE: 11/12/2019 11:56 AM 2019CH13097 Lori E. Lightfoot Mayor Department of Police · City of Chicago 3510 S. Michigan Avenue · Chicago, Illinois 60653 Eddie T. Johnson Superintendent of Police November 4, 2019 Via Email: Jared Rutecki Better Government Association jrutecki@bettergov.org RE: NOTICE OF RESPONSE TO FOIA REQUEST FOIA FILE NO.: P536774 Dear Mr. Rutecki: The Chicago Police Department (CPD) is in receipt of your Freedom of Information Act (FOIA) request, received October 30, 2019 for the following: “I am requesting all reports, dash camera videos, body camera videos, and other records related to the police encounter with Superintendent Eddie Johnson on October 17, 2019 near the 3400 block of South Aberdeen Street." Your request was reviewed by the undersigned in collaboration with the Department’s Field Services Section and Bureau of Internal Affairs and in consultation with the City's Office of Inspector General. It was determined that your request is denied. Please be advised that the requested records directly relate to an ongoing investigation with the City's Office of Inspector General. It was determined that any records pertaining to this case are exempt pursuant to FOIA under exemption 7(1)(d)(i) of FOIA (5 ILCS 140/7(1)(d)(i) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97- 385, effective August 15, 2011; 97-452, effective August 19, 2011), which allows a public body to withhold records that would 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 and 7(1)(d)(ii), which permits the withholding of documents that would interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request. In order to ascertain whether your request would interfere with the ongoing investigation, the matter was forwarded to the City's Office of Inspector General (OIG). After conducting a reasonably diligent search for records responsive to your request and consulting with OIG, OIG has determined that disclosing the responsive records would interfere or obstruct the integrity of the active investigation for future administrative and/or criminal charging. Release of such records would divulge information that would affect witness testimony, thereby challenging the integrity and jeopardizing the progress of the Emergency and TTY: 9-1-1 · Non Emergency and TTY: (within city limits) 3-1-1 · Non Emergency and TTY: (outside city limits) (312) 746-6000 E-mail: police@cityofchicago.org · Website: www.cityofchicago.org/police Exhibit B FILED DATE: 11/12/2019 11:56 AM 2019CH13097 active investigation. Therefore, in order to protect the integrity of the investigation, it was determined that these records must be withheld pursuant to 7(1)(d)(i) and (ii). If I can be of further assistance, please contact me at the following address: Chicago Police Department Attention: Freedom of Information Office of Legal Affairs, Unit 114 3510 S. Michigan Avenue Chicago, IL 60653 foia@chicagopolice.org You have a right of review by the Illinois Attorney General’s Public Access Counselor, who can be contacted at 500 S. Second St., Springfield, IL 62706 or by telephone at 877-299-3642. You may also seek judicial review under 5 ILCS 140/11. Sincerely, H. Aden Freedom of Information Act Officer Chicago Police Department Office of Legal Affairs, Unit 114 3510 S. Michigan Ave. Chicago, IL 60653