Martinez et al

Filing 98

MEMORANDUM OPINION Signed by the Honorable John F. Grady on 5/10/2012. Mailed notice(cdh, )

09-5938.121-RSK

May 10, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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)
)
)
)
)
)
)
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ALBERTO MARTINEZ, et al.,
Plaintiffs,
v.
CITY OF CHICAGO, et al.,
Defendants.

No. 09 C 5938

MEMORANDUM OPINION
Before the court are the parties’ motions for entry of a
protective order.

For the reasons explained below, we deny the

City of Chicago’s motion and grant the plaintiffs’ motion.
BACKGROUND
The plaintiffs have filed multiple federal and state law
claims against the defendants arising from the plaintiffs’ arrests
on September 23, 2008. The plaintiffs and the City have each moved
the court to enter a protective order governing discovery in this
case.

The parties’ main point of contention is the treatment of

documents contained in Complaint Register files (“CR files”).
Under the City’s proposed order, CR files would be designated
“confidential,”

thereby

disclose

information

Proposed

“Qualified

limiting

contained
HIPAA

and

in

the

plaintiffs’

those

files.

Confidential

Matter

rights
(See

to

Def.’s

Protective

Order,” attached to the City’s Mot. for Entry of Protective Order,

- 2 -

at ¶¶ A.6, C.1.) The plaintiffs’ proposed order would protect only
personal information in the CR files (addresses, telephone numbers,
etc.).

(See Pls.’s Proposed “Protective Order,” attached as Ex. A

to Pls.’ Mot. for a Protective Order, at ¶¶ 1.f, 3.a.)
A.

Legal Standard
Fed. R. Civ. P. 26(c)(1) provides that we “may, for good

cause,

issue

an

order

to

protect

a

party

from

annoyance,

embarrassment, oppression, or undue burden or expense . . . .”
Absent such an order, “parties to a lawsuit may disseminate
materials obtained during discovery as they see fit.” Jepson, Inc.
v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994); see
also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)
(recognizing

a

limited

First

Amendment

right

to

disseminate

materials obtained in discovery). “In deciding whether good cause
exists, the district court must balance the interests involved: the
harm to the party seeking the protective order and the importance
of disclosure to the public.”
229 (N.D. Ill. 1997).

Wiggins v. Burge, 173 F.R.D. 226,

“Some factors to consider in making this

determination are privacy interests, whether the information is
important to public health and safety and whether the party
benefitting from the confidentiality of the protective order is a
public official.”

Id.

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B.

Illinois Freedom of Information Act (“IFOIA”)
“IFOIA does not control this court’s determination of whether

‘good cause’ has been shown to protect the” CR files.

Calhoun v.

City of Chicago, 273 F.R.D. 421, 423 (N.D. Ill. 2011) (citing
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991, *2 (N.D.
Ill. Sept. 13, 2010)).1

Nevertheless, district courts have looked

to

when

IFOIA

for

guidance

determining

whether

a

demonstrated good cause to issue a protective order.

party

has

See, e.g.,

Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749, *3 (N.D. Ill.
Aug. 23, 2011) (Although IFOIA is not controlling, it can “provide
guidance as to whether good cause exists for a proposed protective
order, as well as guidance as to the nature of the public’s
interest.”); Johnson v. Kemps, No. 09 CV 4857, 2011 WL 2550507, *2
(N.D. Ill. June 20, 2011) (“[T]o the extent that IFOIA suggests
that the defendants have a privacy interest in the CR files under
Illinois

law,

defendants

have

IFOIA
shown

is

helpful

good

cause

in
for

determining
this

whether

provision

of

the
the

protective order.”). Prior to recent IFOIA amendments, a number of
courts in this district (including this court) cited Gekas v.

1/
IFOIA controls the question of whether a governmental unit should be
required to turn over information in response to a citizen’s IFOIA request.
Here, the City has not raised IFOIA as a defense to turning over the CR files in
discovery in this case. Cf. Santiago v. City of Chicago, No. 09 C 3137, 2010 WL
1257780, *5 (N.D. Ill. Mar. 26, 2010). Instead, it seeks an order limiting the
plaintiffs’ rights to further disseminate those materials pursuant to Rule 26(c).
IFOIA’s relevance to that issue is simply that it deals with the question of
confidentiality, and that, in turn, relates not only to the initial production
of material, but equally to the question of whether the recipient should be
permitted to share it with others.

- 4 -

Williamson, 912 N.E.2d 347, 356 (Ill. App. Ct. 2009) in support of
the proposition that there was not “good cause” to treat CR files
as confidential.

See, e.g., Goldhamer v. Nagode, No. 07 C 5286,

2009 WL 3680201, *2 (N.D. Ill. Nov. 2, 2009).

Gekas involved an

IFOIA request for citizen complaints against a deputy sheriff in
the Sangamon County sheriff’s office.

Gekas, 912 N.E.2d at 574.

The sheriff refused the request, citing IFOIA’s exemption for
“[i]nformation that, if disclosed, would constitute a clearly
unwarranted

invasion

of

140/7(1)(b)

(effective

personal
until

privacy

Jan.

1,

.

.

2010).

.

.”

That

5

ILCS

provision

included a nonexclusive list of such private information, including
“personnel files and personal information maintained with respect
to employees, appointees or elected officials of any public body or
applicants for those positions.”
same

time,

the

statute

Id. at 140/7(1)(b)(ii).

specified

that

“[t]he

At the

disclosure

of

information that bears on the public duties of public employees
shall not be considered an invasion of personal privacy.”
140/7(1)(b).

The

Gekas

court

concluded

that

the

Id. at

requested

complaint files did not fall under IFOIA’s privacy exemption:
Unlike a performance evaluation, the [internal affairs
branch of the sheriff’s office]’s records are not
generated for [the sheriff’s] personal use, and they do
not concern his personal affairs. What he does in his
capacity as a deputy sheriff is not his private business.
Whether he used excessive force or otherwise committed
misconduct during an investigation or arrest is not his
private business. Internal-affairs files that scrutinize
what a police officer did by the authority of his or her
badge do not have the personal connotations of an

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employment application, a tax form, or a request for
medical leave. Not every scrap of paper that enters a
personnel file necessarily is personal information.
Gekas, 912 N.E.2d at 356. In Goldhamer, we relied on this language
in concluding that the defendants had not shown good cause to
designate entire CR files confidential.
3680201, *2.

See Goldhamer, 2009 WL

In this case, the plaintiffs ask us to enter a

protective order comparable to the order we entered in Goldhamer.
(See Pls.’ Mot. at 1.)
The City argues that we should abandon our reasoning in
Goldhamer in light of recent amendments to IFOIA.

The amended

statute retains the “personal privacy” exemption in amended form,
see 5 ILCS 140/7(1)(c), but then separately exempts “[r]ecords
relating to a public body’s adjudication of employee grievances or
disciplinary cases; however, this exemption shall not extend to the
final outcome of cases in which discipline is imposed.”
140/7(n).

Id. at

Judges in this district disagree about the amendment’s

implications, both as it applies to IFOIA itself and to the “good
cause” analysis under Rule 26(c).

Some judges have held that §

7(n) applies to CR files, and on that basis have found good cause
to limit their disclosure under Rule 26(c).

See Brown v. City of

Chicago, No. 09 C 6506, 2011 WL 222840, *2 (N.D. Ill. Jan. 24,
2011) (Shadur, J.); Order, Clark v. City of Chicago, 10 C 1803, at
2 (N.D. Ill. Oct. 13, 2010) (Der-Yeghiayan, J.) (attached as Ex. F
to Defs.’ Mem.); Order, Livingston v. McDevitt, 09 C 7725, at 3

- 6 -

(N.D. Ill. May 10, 2010) (St. Eve., J.) (attached as Ex. E to
Defs.’ Mot.); Order, Pierce v. City of Chicago, 09 C 1462, at 4
(N.D. Ill. Apr. 10, 2010) (Dow, J.) (attached as Ex. B to Defs.’
Mot.); Bell v. City of Chicago, No. 09 C 0754, 2010 WL 753297, *3
(N.D. Ill. Feb. 26, 2010) (Keys, J.).

Other judges have held, or

else suggested in dicta, that § 7(n) does not apply to CR files.
See Rangel, 2010 WL 3699991, at *2 (rejecting the defendants’
argument

that

the

amendment

materially

changed

the

relevant

exemptions) (Lefkow, J.); Order, Fuller v. City of Chicago, 09 C
1672, at 1 (N.D. Ill. Nov. 10, 2009) (DKT #67) (Hibbler, J.)
(similar);2 see also Order, Macias v. City of Chicago, 09 C 1240,
at 2-3 (N.D. Ill. Mar. 10, 2010) (DKT #62) (Valdez, J.) (reasoning
that

the

contents

of

CR

files

are

generated

during

the

investigation (not "adjudication") of citizen complaints).

2/

The courts in Rangel and Fuller point out that former § 7(1)(u)
exempted “[i]nformation concerning a university’s adjudication of student or
employee grievance or disciplinary cases, to the extent that disclosure would
reveal the identity of the student or employee and information concerning any
public body’s adjudication of student or employee grievances or disciplinary
cases, except for the final outcome of the cases.” 5 ILCS 140/7(u) (effective
until Jan. 1, 2010).
The highlighted language is “nearly identical” to the
amended § 7(1)(n). Rangel, 2010 WL 3699991, *3. The fact that the amended
statute merely restates an existing exemption in slightly different language
tends to undercut the inference that the Illinois General Assembly was responding
to Gekas. Cf. Order, Pierce v. City of Chicago, 09 C 1462, at 4 (concluding that
the “timing and language” of the amendment supported the inference that the
General Assembly was overruling Gekas). Moreover, there does not appear to be
any specific evidence that the General Assembly intended to repudiate Gekas. See
Rangel, 2010 WL 3699991, *3 (“[T]here is no basis to conclude that this
amendment, enacted approximately one month after Gekas was decided, was an effort
to broaden the scope of the adjudication exemption for public employees, and
certainly not to exempt CR register documents.”). In any event, we need not
decide this question to rule on the parties’ motions. (See infra n.2.)

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We agree with the courts that have concluded that IFOIA
question is really a side show.

See Henry, 2011 WL 3796749, *4

(declining to rule on the exemption’s scope and evaluating the
“good cause” question independent of IFOIA exemption); Rangel, 2010
WL 3699991, *4 (concluding that the “real issue” is “whether
defendants have demonstrated good cause for confidentiality of CR
files”).3

Gekas was relevant to our decision in Goldhamer because

the existence (or non-existence) of a privacy interest in the CR
files is relevant to the question of “good cause” under Rule 26(c).
See Henry, 2011 WL 3796749, *5 n.7 (citing Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 35 n.21 (1984)).

Whereas, even if we

assume that § 7(n) exempts CR files from disclosure under IFOIA, it
is not clear what interest that exemption serves.

As Henry points

out, the amended § 7(n) is separate and independent from the
“privacy” exemption, see Henry, 2011 WL 3796749, *5 n.7, and that
exemption still provides that “[t]he disclosure of information that
bears on the public duties of public employees and officials shall
not be considered an invasion of personal privacy.”
140/7(c).

3/

5 ILCS

In Goldhammer, we found persuasive the Gekas court’s

We therefore decline to decide whether § 7(n) applies to CR files. See
Henry, 2011 WL 3796749, *4 (“If this was a case brought under IFOIA, it would be
incumbent upon this court to determine whether CR files fall within the §
140/7(n) exemption. Because IFOIA does not control the question before the court,
however, the court need not reach this difficult question of law. The court
simply finds that, given the disagreement over what § 140/7(n) actually covers,
that section’s guidance as to whether good cause exists for a protective order
is not very helpful, and is certainly insufficient to resolve the question before
the court.”).

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conclusion that police officers do not have a privacy interest in
the

performance

persuasive.

of

their

public

duties.

We

still

find

it

See Henry, 2011 WL 3796749, *5 n. 6 (concluding that

even if IFOIA now exempts CR files, it does not “undermine the
soundness” of Gekas’s conclusion that public officials do not have
a privacy interest in the performance of their public duties).
Although we find that there is no legitimate privacy interest
at

stake

here,

we

acknowledge

that

there

is

some

risk

of

“embarrassment” in the public disclosure of “investigations into
charges that may or may not have merit.”

See O’Malley v. Village

of Oak Brook, No. 07 C 1679, 2008 WL 345607, *2 (N.D. Ill. Feb. 6,
2008).

But we agree with the courts in Henry and Rangel that this

risk weighs less heavily in the balance than the plaintiffs’ First
Amendment rights.

See Henry, 2011 WL 3796749, *6 (“[T]he court

finds that [the plaintiff’s First Amendment right to disseminate
discovery material] outweighs any privacy interest the defendant
officers may have in the CR files, insofar as the files contain
information relating only to their public duties.”); see also
Rangel,

2008

employees,

WL

paid

345607,
by

the

*4

(“[P]olice

taxpayers.

The

officers
public’s

are

public

interest

in

transparency outweighs the officers’ privacy interest.”); Gekas,
912 N.E.2d at 357-58 (the public has an interest in the substance
of a citizen’s complaint, as well as the investigation of that
complaint).

In sum, we do not believe that the changes to IFOIA

require us to abandon our reasoning in Goldhamer.

Consistent with

- 9 -

that decision, we find that the defendants have not established
good cause to designate as confidential entire CR files.

We agree

with the parties, however, that there is good cause to limit the
disclosure of personal identifying information in those files.

In

that connection, we find that the plaintiffs’ proposed order is
sufficient to protect such information from disclosure. (See Pls.’
Proposed Order, attached as Ex. A to Pls.’ Mot., ¶ 1.f.)
CONCLUSION
The plaintiffs’ motion for entry of a protective order [88] is
granted. The City’s motion for entry of a protective order [85] is
denied.

DATE:

May 10, 2012

ENTER:

___________________________________________
John F. Grady, United States District Judge