Lopez v. Fitzgerald

¶1dissenting:

¶2Disclosure of government records is a two-edged sword. While one edge cuts through layers of bureaucracy to expose corruption, incompetence and waste, the other edge inadvertently can cut through innocent private citizens’ legitimate expectations of privacy, exposing the most intimate details of their lives, or, perhaps, exposing them to public scorn due to the recorded, but unfounded, suspicions of one misguided, minor government official. Nonetheless, the importance of an informed citizenry to the assumptions which underlie our constitution and statutes demands that, even in the absence of an express statutory mandate, we undertake the admittedly difficult task of providing the maximum amount of public access to government records which is consistent both with the deference due our coordinate branches of government and with citizens’ legitimate expectations of privacy. Where there is an express statutory mandate, we ought not subvert its intent through unduly restrictive construction of its unambiguous and constitutionally sound language. I find today’s decision wanting in these regards.

¶3The plaintiffs in this case, certain individuals and community organizations, filed a two-count amended complaint in the circuit court of Cook County seeking declaratory and injunctive relief granting them access to inspect and copy reports of building inspections prepared by employees of the Department of Buildings of the city of Chicago pursuant to sections 41 — 6 and 41 — 7 of the Municipal Code of Chicago. Count I was based on an alleged common law right of access to the records of public agencies and count II was based upon section 13 of the Local Records Act (Ill. Rev. Stat. 1975, ch. 116, par. 43.113). The circuit court apparently granted plaintiffs’ motion for summary judgment as to count II, but made no express ruling as to count I.1 The Appellate Court, First District reversed (53 Ill. App. 3d 164; see also 53 Ill. App. 3d 164, 169 (supplemental opinion on denial of rehearing)), reasoning as follows: (1) Plaintiffs had no right to inspect any reports, under either common law or the Local Records Act, until “final action” has been taken by the Department. (See 53 Ill. App. 3d 164, 167-68.) (Significantly, perhaps, the appellate court did not give as an example of “final action” the decision not to prosecute.) (2) After “final action” either “final reports” or “official reports” are to be made available pursuant to the Local Records Act. (See 53 Ill. App. 3d 164, 171 (supplemental opinion on denial of rehearing).) (It is not clear, however, whether, under the appellate court’s reasoning, all reports are “final” or “official” after “final action”). (3) There was no need for a modified injunction providing access to those reports which are available pursuant to the Local Records Act.

¶4The majority of this court now affirms the judgment of the appellate court, reasoning: (1) Section 13 of the Local Records Act creates no independent right of access to any records under any circumstances, but rather, “merely provides for the disclosure of preserved records to which the public is otherwise entitled to access” (76 Ill. 2d at 116); and (2) “[A]t common law” (76 Ill. 2d at 118), the public apparently never is entitled to inspect and copy “investigative reports” except that “[i] f the investigative reports become part of a court record, rules governing public access to such records would govern” (76 Ill. 2d at 122). I disagree on both points.

¶5A brief review of certain provisions of the Local Records Act is in order. Section 2 of the Act provides:

“This Act declares that a program for the efficient and economical management of local records will promote economy and efficiency in the day-by-day record-keeping activities of local governments and will facilitate and expedite governmental operations.” (Ill. Rev. Stat. 1975, ch. 116, par. 43.102.)

¶6I would not exclude private suits to enforce statutory requirements (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 13—15 (authorizes private actions by owners or tenants within 1,200 feet against violations of building code)) or citizen monitoring of government from the category of functions which “facilitate and expedite government operations.” Section 3 of the Act provides:

“Except where the context indicates otherwise, the terms used in this Act are defined as follows:

…

‘Public record’ means any book, paper, map, photograph, or other official documentary material, regardless of physical form or characteristics, made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation by such agency or officer, or any successor thereof, as evidence of the organization, function, policies, decisions, procedures, or other activities thereof, or because of the informational data contained therein.” (Ill. Rev. Stat. 1975, ch. 116, par. 43.103.)

¶7Section 13 of the Act provides:

“In any case where public records have been reproduced by photography or microphotography, or other reproductions on film, in accordance with the provisions of this Act, any person or organization shall be supplied with copies … upon payment of the required fee.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 116, par. 43.113.)

¶8It is undisputed that the reports at issue in count II of plaintiffs’ amended complaint fall within the definition of public records contained in section 3 of the Act, that these reports have been reproduced on microfilm, and that section 13 provides that copies of microfilmed public records “shall be supplied” to the public upon payment of a fee. The court, however, today holds, in effect, that the words “shall be supplied” really mean shall not be supplied unless the public “is otherwise entitled to access” to them.

¶9In reaching this conclusion, the court relies upon the following arguments, none of which persuade me to abandon the strong presumption that the legislature meant precisely what it said (see generally, e.g., Illinois Telephone Association v. Illinois Commerce Com. (1977), 67 Ill. 2d 15, 20-21; Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 133; Droste v. Kerner (1966), 34 Ill. 2d 495, 503, cert. denied and appeal dismissed (1967), 385 U.S. 456, 17 L. Ed. 2d 509, 87 S. Ct. 612; Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 428):

(1) “Because the Local Records Act is concerned with the preservation of records, a cursory provision referring to public access to preserved records found toward the end of the Act cannot be construed to establish a basis for disclosure of specific records preserved.” 76 Ill. 2d at 116.

(2) Because the legislature found it necessary to amend the Act (by adding section 3a (Ill. Rev. Stat. 1973, ch. 116, par. 43.103a)) to provide expressly for public inspection of certain financial records, section 13 must be presumed not previously to have provided for public access to microfilmed documents.

(3) Unlike section 3a of the Act and unlike disclosure statutes from other jurisdictions, “section 13 of the … Act contains no limitations at all on the asserted right of access, an indication that the General Assembly was not addressing disclosure questions” (76 Ill. 2d at 117).

¶10First, I do not find the reference to pub he access in section 13 “cursory.” The legislature need not use exclamation points and exhaustive statements of legislative purpose to make its will known. I find the phrase “any person or organization shall be supplied with copies” (Ill. Rev. St at. 1975, ch. 116, par. 43.113) more than adequate. Nor, as indicated above, is disclosure to the public foreign to the stated purposes of the Act.

¶11Second, as originally enacted, the Local Records Act only provided a right to copies of those public records which had been reproduced on microfilm, etc. Section 3a, however, provides for public inspection of all “reports and records of the obligation, receipt and use of public funds” (Ill. Rev. Stat. 1975, ch. 116, par. 43.103a), regardless of whether such reports and records otherwise fall within the definition of “public records” and regardless of whether they have been reproduced photographically, as our constitution now requires (Ill. Const. 1970, art. VIII, sec. 1(c)).

¶12Third, the absence of internal limitations upon the right of access created by section 13 is no excuse for ignoring the unambiguous language of the statute. That such limitations would have been salutary does not render the statute unconstitutional in their absence, as applied to the facts of this case. (See Paul v. Davis (1976), 424 U.S. 693, 708-09, 47 L. Ed. 2d 405, 418, 96 S. Ct. 1155, 1164.) I therefore cannot concur in the court’s evisceration of the plain language of section 13.

¶13Even if I were to accept the court’s interpretation of the statute, I would find some support in the common law for the right of access claimed here. (See, e.g., People ex rel. Gibson v. Peller (1962), 34 Ill. App. 2d 372, 374.) Although the parties have not directed our attention to a single case in which this court expressly recognized a common law right to public inspection of the records of local government, the facts of this case, including, in particular, the private right of action created by section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11 — 13—15), give rise to such a right, in my opinion. Accordingly, once the city has, expressly or by default, determined whether to prosecute a given alleged violation, I would allow public inspection of the investigator’s report. (If the matter is litigated, our courts are sophisticated enough in their understanding of government to be able to determine when inaction by the city represents a decision not to prosecute.) I would, however, in the interests of fairness, require the plaintiffs to give adequate notice to the owner of the premises inspected, including a reasonable opportunity to supplement the record with evidence of compliance before statements as to alleged noncompliance are made publicly available, as well as an opportunity to object to the release of trade secrets or other intensely personal information.

¶14The problems of fashioning a fair but effective means of assuring the public’s access to the information necessary to control their government are undeniably enormous, but not unworthy of the effort necessary. In the words of Mr. Justice Brandéis:

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” (L. Brandéis, Other People’s Money 62 (1933), quoted in Buckley v. Valeo (1976), 424 U.S. 1, 67, 46 L. Ed. 2d 659, 715, 96 S. Ct. 612, 658.)

¶15If there is a silver lining to the pall cast by the court’s decision, it is that the legislature’s attention almost certainly now will be redirected to these problems.

¶16GOLDENHERSH, C.J., and MORAN, J., join in this dissent.

¶17Supplemental Opinion on Denial of Rehearing

¶18Plaintiffs have filed a timely petition for rehearing which seeks a modification of the disposition in this cause but acquiesces in the basic conclusions reached in the opinion. Plaintiffs’ petition accurately sets forth our holding that once a notice of violation has been sent to a building owner and he has been given an opportunity to respond at a compliance hearing, building inspection reports on which the notice and hearing were based may be open to public access. Plaintiffs argue that our holding entitles plaintiff Central Lakeview Neighbors to records it sought for a building it alleged had been the subject of court proceedings for approximately two years, that plaintiff Lloyd Parker is entitled to records for a building he alleged had been the subject of a compliance hearing, and that the remaining plaintiffs should be provided a hearing on their requests for reports even though they did not allege that the owners of the buildings which were the subject of those reports had received notice and a compliance hearing.

¶19Plaintiffs’ petition for rehearing is denied. However, we modify our disposition as to plaintiffs Central Lake-view 'Neighbors and Lloyd Parker. Central Lakeview Neighbors is entitled to the inspection report it seeks because the defendants admitted it had been at issue in court proceedings. We remand for a hearing to determine whether the owner of the building to whose inspection reports Lloyd Parker sought access had received notice and a compliance hearing concerning those reports. If the owner had received the requisite notice and opportunity to be heard, then, consistent with our opinion, Parker is entitled to examine those inspection reports. The remaining plaintiffs did not allege that the building owners had received a notice and hearing concerning any of the reports to which they sought access. We therefore find no reason to remand for a hearing on their requests for records.

¶20On April 12, 1979, approximately eight weeks after their petition for rehearing was due and filed, plaintiffs filed a motion for leave to file a brief in support of their petition for rehearing. The motion was entered and continued for consideration with plaintiffs’ petition for rehearing. The motion and brief call the court’s attention to an additional authority, not previously cited by either party. The plaintiffs seek to file the supplemental brief for the express dual purpose of supporting the petition for rehearing and attacking the bases of the opinion.

¶21Although plaintiffs’ motion- was filed after their petition for rehearing was due, we shall, in the interest of justice, take judicial notice of the additional authority plaintiffs cite in their motion and supplemental brief. The cited statute provides that “[w]hen the building code department of a municipality … determines a building code violation exists it shall cause a notice of such violation to be posted in a conspicuous place near the main entrance of such building.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. IlllA, par. 3402.) The notice is to be removed by the department as soon as the cause of the violation has been corrected. Ill. Rev. Stat. 1977, ch. lllW, par. 3402.

¶22We read the statute in light of the important constitutional safeguards with which our opinion was concerned and therefore do not consider it inconsistent with our opinion. The statute, although it became effective in 1963, has never been interpreted, and there are no committee comments explaining it. Therefore, plaintiffs concede, it is an unresolved question as to what the statute means by a determination by the building code department that a violation exists. We read the statutory phrase, “determines a building code violation exists” (emphasis added) (Ill. Rev. Stat. 1977, ch. lllW, par. 3402), which is the prerequisite for the posting of a notice of violation, to mean a finding following a notice to the building owner and an opportunity to be heard. That reading takes into account building owners’ due process rights and effects the principle of statutory construction which mandates that, where reasonable, statutes will be construed to avoid an unconstitutional result (Anderson v. Schneider (1977), 67 Ill. 2d 165, 176). Our opinion likewise takes into consideration the important constitutional rights implicated in this case, and we therefore see no need to modify our holding that a building owner must be provided a notice and an opportunity to be heard before a building investigation report may be open to public scrutiny.

¶25dissenting:

¶26I dissent from the denial of plaintiffs’ petition for rehearing. First — I do not agree that the plaintiffs have “acquiesce [d] in the basic conclusions reached in the [original] opinion.” (76 Ill. 2d at 130.) Second, although the court’s supplemental opinion on denial of rehearing takes a step in the right direction, it fails to come to grips with the problem posed by cases in which the Department, for whatever reason, has not issued a notice of violation and held a compliance hearing. The records compiled in such cases could be vital to the revelation of institutional corruption and incompetence, and the logic of the majority’s position compels the release of such records, with appropriate safeguards.

¶27In its original opinion in this cause, the court made the following statement: “To release investigative reports without notice to the owner and an opportunity to be heard would impinge upon the owner’s due process rights. To release initial and unevaluated investigation reports threatens privacy interests. Public disclosure of such reports would also tend to impair the efficiency of day-to-day activities of and investigations by the Department of Buildings. In the absence of factors supporting disclosure other than a general policy of openness in government and the plaintiffs’ interest in the condition of the buildings, and in the face of strong countervailing factors, investigative reports are not open to public access. If the investigative reports become part of a court record, rules governing public access to such records should govern.” (76 Ill. 2d at 121-22.) In its supplemental opinion, however, the court states that “[p] laintiffs’ petition accurately sets forth our holding that once a notice of violation has been sent to a building owner and he has been given an opportunity to respond at a compliance hearing, building inspection reports on which the notice and hearing were based may be open to public access.” (76 Ill. 2d at 130.) The court then goes on to hold that “Central Lakeview Neighbors is entitled to the inspection report it seeks because the defendants admitted it had been at issue in court proceedings,” and that if “the owner of the building to whose inspection reports Lloyd Parker sought access … had received the requisite notice and opportunity to be heard, then, consistent with our opinion, Parker is entitled to examine those inspections reports.” 76 Ill. 2d at 130.

¶28Since the supplemental opinion does not purport to modify the original opinion, the two opinions must be intended to be reconcilable. Such reconciliation leads to the following conclusions: (1) The “strong countervailing factors” which weigh against public disclosure of “investigative reports” all disappear once the owner of the building has “received the requisite notice and opportunity to be heard,” and a compliance hearing before the Department of Buildings satisfies the hearing requirement. (2) “The rules governing public access to [court] records” always mandate release of inspection reports of the Department of Buildings which have been “at issue” in court proceedings, and the circuit court does not have discretion to seal such records.

¶29The question remains however, what about situations in which the city does not issue a notice of violation and hold a compliance hearing, such as, for example, where a building inspector has accepted a bribe in return for not reporting a violation, or where another official of the Department has accepted a bribe in return for squelching an investigation of a reported violation? The majority’s answer apparently is that the records in such cases may go undisclosed, because a hearing before the Department of Buildings is an absolute prerequisite to disclosure, in order to protect the property and privacy interests of building owners. The owners’ rights of privacy and property can be adequately safeguarded, however, without covering up evidence of incompetence and corruption on the part of public officials. All that is necessary is that the owner of the property in question be given notice of the disclosure sought by a given individual or group, and an opportunity to supplement the record before its disclosure. Under the law of defamation, an individual or group which obtained disclosure of such a supplemented record would, at its peril, ignore the owner’s side of the story. See Troman v. Wood (1975), 62 Ill. 2d 184.

¶30Accordingly, I would allow the petition for rehearing, and grant judgment for plaintiffs in accordance with the views expressed in my dissent from the court’s original opinion in this cause.

¶31GOLDENHERSH, C.J., and MORAN, J., join in this dissent.