Sokol v. City Of Chicago et al
Filing
39
MEMORANDUM OPINION AND ORDER Signed by the Honorable Amy J. St. Eve on October 29, 2014. (cdh, )
14-5653.141
October 29, 2014
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WOJCIECH SOKOL,
)
)
Plaintiff,
)
)
v.
)
)
CITY OF CHICAGO, Illinois, a
)
municipal corporation, and
)
Chicago police officers MIKE GREMO )
and NICHOLAS HARRIS,
)
)
Defendants.
)
No. 13 CV 5653
MEMORANDUM OPINION AND ORDER
Before
the
protective order.
court
is
defendants’
motion
for
entry
of
a
The motion is denied for the following reasons.
DISCUSSION
Plaintiff, Wojciech Sokol, filed this § 1983 civil-rights case
alleging excessive force and malicious prosecution arising from his
arrest on December 6, 2011.
The defendants, the City of Chicago
and Chicago police officers Mike Gremo and Nicholas Harris, have
moved for entry of a protective order governing discovery and
submitted a proposed protective order.
Defendants’ proposed order
largely adopts this district’s Model Confidentiality Order, but
adds a paragraph 18, titled “Public Release of Complaint Register
Files,” which is the parties’ point of contention.
reads as follows:
Paragraph 18
Any disciplinary actions, files and attachments to such
files generated by the investigation of deaths in
custody, uses of deadly force, and complaints of
misconduct by Chicago police officers (generally referred
to as “Log Number” files, “Complaint Register” files,
“Universal” files, or “Extraordinary Occurrence” files;
and hereinafter referred to as “CR Files”) shall be
provided preliminary protection pursuant to this Order,
with their review and access limited only to the parties
and their attorneys in this case subject to the
protections of this Order and shall not be released to
any persons not involved in this case, except upon
written notice, 30 days prior, to the officer’s
attorney(s) and to the City of Chicago’s attorney, if
different, to permit such attorneys and parties to
provide a redacted copy of the CR File, which will be
produced without the designation “CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER.”
This second copy will contain
redactions of information prohibited from disclosure by
statute, including but not limited to the Illinois
Freedom of Information Act, 5 ILCS 140/1 et seq., the
Illinois Personnel Record[] Review Act, 820 ILCS 40/.01
et seq., and the Juvenile Court Act, 705 ILCS 405/1-1 et
seq. Disclosure of CR Files and their attachments to any
persons beyond the parties and their attorneys in this
case, or third parties otherwise authorized pursuant to
Section 5 of this Confidentiality Order, may be made only
in the manner consistent with the redacted version of
such CR Files produced by the responding party as set
forth above.
(Defs.’ Mot., Ex. A.)
LEGAL STANDARDS
Federal Rule of Civil Procedure 26 provides that a court “may,
for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.”
Fed. R. Civ. P. 26(c)(1); see also Bond v. Utreras, 585 F.3d 1061,
1067 (7th Cir. 2009). “Rule 26(c) allows a court to shield certain
documents from the public when there is good cause to do so.”
Bond, 585 F.3d at 1074.
The rule “confers broad discretion on the
2
trial court to decide when a protective order is appropriate and
what degree of protection is required.” Gordon v. Countryside
Nursing & Rehab. Ctr., LLC, No. 11 C 2433, 2012 WL 2905607, at *2
(N.D. Ill. July 16, 2012).
The moving party bears the burden of
showing good cause for a protective order.
Cent. States, Se. & Sw.
Areas Pension Fund v. Nat’l Lumber Co., No. 10 C 2881, 2012 WL
2863478, at *2 (N.D. Ill. July 11, 2012) (citing Jepson, Inc. v.
Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994)).
In
determining whether there is good cause for a protective order, the
court must balance the harm to the party seeking the protective
order
against
the
importance
of
public
disclosure.
In
re
Northshore Univ. Healthsystem, 254 F.R.D. 338, 341–42 (N.D. Ill.
2008); Doe v. Marsalis, 202 F.R.D. 233, 237 (N.D. Ill. 2001).
“When making a good cause determination, a district court may
consider 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.”
Rangel v. City of Chicago, No. 10 C 2750, 2010 WL 3699991, at *1
(N.D. Ill. Sept. 13, 2010) (internal quotation marks omitted).
ANALYSIS
In their motion, defendants explain that they “do not seek to
prevent the production of any relevant documents, but rather to
control the dissemination of sensitive information contained in
these often voluminous files that is otherwise protected by statute
3
as set forth in the Model Order,” by using the Model Order plus
“additional
language
particular
information
Information.’”
(Defs.’
regarding
the
within
Mot.
at
CR
protocol
files
1-2.)
for
as
designating
‘Confidential
Defendants
refer
to
“sensitive information” and “sensitive documents,” but they do not
specify exactly what information and documents they propose to
treat as confidential under proposed Paragraph 18, except by
referring to Illinois statutes that, according to defendants,
“provide helpful guidance.” (Defs.’ Mot. at 3.) Defendants state:
For example, Section 7 of the Illinois Freedom of
Information Act (“IFOIA”), by setting forth specific
exemptions to public disclosure within IFOIA, supports
the protection of various portions of CR files from
public dissemination. These include, inter alia, names
of Complainants and third parties, as well as private
information of individuals, including social security
numbers, personal addresses and the like, and information
that needs to be protected for safety and security
reasons. In addition, the Juvenile Court Act . . . and
the Illinois Personnel Records Review Act . . . also
mandate protection under Illinois law. Determining which
particular information is protected by IFOIA or by
provisions of other statutes existing in voluminous CRtype
files
can
only
be
determined
upon
close
investigation in a case-by-case review.
Therefore,
ensuring that redactions are properly made prior to any
public release of such protected information is
essential, and this protective order provides the
framework for that contingency while, at the same time,
facilitating discovery in this matter.
(Defs.’ Mot. at 3-4 (citations omitted).)
Plaintiff objects to paragraph 18 of defendants’ proposed
protective order.
Citing Kalven v. City of Chicago, 7 N.E.3d 741
(Ill. App. Ct. 2014), plaintiff argues that defendants have failed
4
to show good cause for treating the CR files as confidential.
In
Kalven, the Illinois Appellate Court held that sections 7(1)(n) and
7(1)(f)1 of the Illinois Freedom of Information Act (“IFOIA”) do
not exempt CR files from disclosure.
7 N.E.3d at 747-48.
On September 25, 2014, this court entered an order directing
defendants to file a reply brief addressing Kalven.
Defendants
argue in that reply brief that Kalven is inapposite to this case
because defendants do not seek to prevent disclosure of CR files
under either of the grounds discussed in Kalven; rather, they seek
to redact information under two other IFOIA provisions that exempt
the following from inspection and copying:
(b) Private information, unless disclosure is required
by another provision of this Act, a State or federal law
or a court order.
. . .
(c) Personal information contained within public records,
the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy, unless the
disclosure is consented to in writing by the individual
subjects of the information. “Unwarranted invasion of
personal privacy” means the disclosure of information
that is highly personal or objectionable to a reasonable
person and in which the subject’s right to privacy
outweighs any legitimate public interest in obtaining the
information. The disclosure of information that bears on
the public duties of public employees and officials shall
not be considered an invasion of personal privacy.
5 ILCS 140/7(1)(b), (c).
Defendants submit that because they seek
1/
Section 7(1)(n) of IFOIA exempts from disclosure records “relating to
a public body’s adjudication of employee grievances or disciplinary cases” (but
not the final outcome of cases in which discipline is imposed).
5 ILCS
140/7(1)(n). Section 7(1)(f) of IFOIA exempts from disclosure “[p]reliminary
drafts, notes, recommendations, memoranda and other records in which opinions are
expressed, or policies or actions are formulated.” 5 ILCS 140/7(1)(f).
5
to keep certain information confidential under provisions different
from the ones at issue in Kalven, “there appears to be some
disconnect
Plaintiff’s
between
the
response”
language
and
that
of
Paragraph
their
18
proposed
.
.
order
.
and
“simply
ensur[es]” that “before the Plaintiff discloses the CR files to any
person not involved with this litigation, he provide the Defendants
with 30 days written notice so that the CR files can be redacted in
accordance with IFOIA, the Illinois Personnel Records Review Act,
and the Juvenile Court Act.”
Defendants’
reply
(Defs.’ Reply at 6.)
still
lacks
specificity
about
what
information and documents they propose to treat as confidential.
Defendants do state that the purpose of their proposed order is to
“avoid the dissemination of information that is deemed protected by
IFOIA and other state laws, such as witness and victims’ names and
other identifying information, officers’ social security numbers,
birth dates, and employee numbers.”
(Defs.’ Reply at 7.)
The “disconnect” here is between Paragraph 18 and its purpose
as described by defendants.
In other words, paragraph 18 is
overbroad. It treats CR files as presumptively confidential unless
plaintiff gives defendants thirty days’ written notice of a request
for a redacted copy. Defendants have failed to show good cause for
treating entire CR files as confidential by default. Moreover, the
30 days’ notice procedure is an unnecessary step in the discovery
process, especially considering that any relevant statutes likely
6
do not protect from disclosure the majority of the information
contained in the CR files.
If defendants wish to specifically
address the confidential treatment of names of witnesses and
victims
and
other
identifying
information,
officers’
Social
Security numbers, birth dates, and employee numbers, those items
can be included in Paragraph 2 of the proposed order, which defines
“Confidential
Information”
and
already
includes
“information
protected from disclosure by statute.” Paragraph 9 of the proposed
order provides the procedures for the parties to follow should any
disputes
arise
concerning
what
the
defendants
designate
as
confidential in the CR files.
CONCLUSION
For the reasons explained above, the court denies defendants’
motion for entry of a protective order [32].
The parties are
directed to confer and submit by November 7, 2014 an agreed
protective
order
patterned
after
this
district’s
Model
Confidentiality Order (with the additions to Paragraph 2 that are
discussed supra, if desired).
DATE:
October 29, 2014
ENTER:
_____________________________________________
Amy J. St. Eve, United States District Judge
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