morning your honor he may please the court this case is about the public's right to know how the city of chicago and the chicago police department addressed complaints of police misconduct mr kalvin to seeking two types of records complaint registry files or c r s which detail the investigations into citizen complaints and repeater lists which are a list of the officers who received the most misconduct plates in the city i will be addressing the issues the statue itself though it could be in that it's been changed since two thousand tennessee yes and it could be changed to maui that's right or could be even taken away i mean who knows what the legislature will do so when we need a ruling what's the law that we to the case so the defendants have argued that because foyle liability operates prospectively that therefore the court must apply the law at the time that the decision rendered they argue that this is prospective in a changing society and one of the points the city makes seems to be and i don't want to put words in their mouth but it seems to be these records were getting released you'd be several judges doing this in the legislature to specifically intended this change to stop them from being released and doesn't the legislature here have the the right to say we made a mistake we didn't mean for this kind of thing to go out and therefore we're going to fine tune it refine the statute the illinois supreme court has adopted that test but it's its counsel that there's never any need for courts of illinois to reach the second step that test the first step is legislative intent and it's always clear either on the face of the statute itself or in the amendments or i'm sorry in the statute on statutes all they've also argued that because there's a provision in two thousand and ten voyages attorneys fees language that specifies that that applies prospectively that this means that the rest of the statute applies retroactively but there's a much better reason that the legislature included that way in which and that's because attorneys these provisions are usually considered procedural by default and therefore they would have by retroactively under the statute on statutes so the legislature used explicit language to override that at all and that argument is exactly what the u s supreme court rejected in the the bottom line is that applying the twenty ten version of foil what reward the defendants for refusing to produce the records at the time that clear unambiguous precedent from this court required them to do so and just to quickly address the two thousand and nine percent of oil subsidy way this court has repeatedly helped c r s must be produced under that version of oil in case first williamson this court noted that because complaints of misconduct bear on officers public duties certainly no distinction on whether the personal privacy exemption applies to police misconduct complaints that's right and and the court has made clear that even when complaints are unsustained these are not exempt because the way that the city made an investigation is done by either internal affairs or the or the independent police review authority they make a factual investigation and a factual finding as to whether can play the sustained runs of stay and then at that point the letter to the superintendent of police ain't so this officer did just this in the other things that improperly or beat me up or did some other horrible things or without any thought about disciplinary action footrest venting discern the public policy interests behind disclosing things on the one hand of not disclosing things on the other doesn't they had run the risk of putting people maybe some kind of retaliatory danger if the officer who c requests just like anybody else gets all these nasty letters that people write about him or her and then can retaliate against those people for reporting him to the chief when they thought it was going to be anonymous so your honor certainly the basically everything that we're still going to have to ask the judge below to review these things in camera to take on things like social security numbers home phone numbers all the things when i pick this local government well for twenty years i have my black this case i think the request was for many more severe reports rather police officers initially than it was it got down to five is that right that's right the even identify we know the volume of those documents correct while the the defendants have produced attempted to give it one truly broad beating of the term relating to arguing that records of investigations must relate to adjudication even in the vast majority of cases in which no adjudication serves this ignores the fundamental line between investigations and adjudications it's been recognised by the general assembly by the illinois attorney general's office of the public access counsellor and by a number of federal district courts that are viewed this issue it also ignores the mandate to read exemptions narrow exceptions to the general right the public to government records as justice scalia has noted the term relating to him he has no fixed meaning independent of its context because anything can potentially relate to anything else and there is a clear line between investigations and adjudications the general assembly itself recognised this line when it rejected a proposed amendment seven one hand that would have added the word investigations to the exception there would've been no reason to propose or rejects about it if seventy one already covered already covered investigations and what's of the history of that adjudication so after the superintendent files a charging document that triggers an adjudication anything that comes after that relates to an adjudication that includes the charging document itself transcript of hearing any motions before the police board or deliberations of the police for the city doesn't really disagree with you i don't believe so but the investigations are an entirely separate art as as the public access counsellor and number of federal courts not g but there's nothing about police in this exchange there's nothing about overruling the get this case which happened shortly before these indictments were were printed were passed and again the general assembly knows the difference between makes less sense here because the entire educative process in chicago is already public under chicago ordinance every aspect of the police board of education has its public the public and attend these hearings the recordings are public the decisions are posted publicly on the web the decisions contain the name of the officer the reasons for the in the summary of the evidence the defendant's sole basis for arguing sure your honor first as a first point this is entirely new artist first i'm hearing of this i'm not entirely up to speed on that aspect of it my response would be that regardless of whether the you the education itself is open to the public that doesn't change what process but it started at a pro and i think it's right idea actually the first step of this process the ones with an issue to investigation are the ones who talk to everyone and find out and make a recommendation as of whether or not there is something sustainable there and it's based on that investigation and recommendation gap there couldn't someone have made a request during that time and it would have had to have been honored and the only reason we're here to be we're five years later i mean this is been percolating through the courts forever and ever but  i've got a platform when the law vested a right in this report right for these records and the city did not respond within the normal before your time but instead decided you know to take a different we mean i believe me right i understand that it's really feels not always right right but let's say for the super committee it's there how do you distinguish it well in was it ever subject to further review down state to no i'm not aware of any further review or history of it they may have nothing to do with an education does the city contend before us today that those kinds of communications are exempt under this provision of fire or i believe that that often those it you know this person to give a report whatever it is so that not happen i don't know if i can see why we would take the position that a document that comes in doesn't begin what we say is the first step in the issue to process and necessarily relates to the adjudication of police there are many complaints that come in and do not go to education but that doesn't and rightfully so perhaps that best amount we can't resist i mean there's a presumption that there is something wrong with that process but that the issue is really did the general assembly in ten regardless of whether there's that comes out of these investigations in almost all cases in which the investigator makes a final recommendation as to whether the allegations are unfounded not sustained exonerated or sustained and based on that recommendation it goes up the review and i want to i'm going to call you talked about perhaps three dak thing elder withdrawing from disclosure things relating to off duty conduct but isn't it perfectly possible and doesn't happen that chicago police officers are disciplined for things that they do off duty such as criminal acts certainly there are certain why would we do something else from disclosure if somebody said hey this this particular officer while he was off duty in ohio that would be why if we in the first instance decide that there is something that in our mock judgment should be does not relieve the public duties that if we were back that were say that it's exempt that hidden camera view would then be necessary in order to allow for a neutral determination of whether or complaint the officer's name and each complaint for the doctor during the time period the category of the complaint so let's have a complaint it was the preliminary finding that was issued by the investigator and any discipline that ultimately resulted those are that's what summarize for each of these offers on the more or less we i think we can all agree that for you does not require any government official to create a new document that's true oh wasn't the document already created as the result of the federal litigation and therefore that existed in the files of the because it was obsolete of some sort or did the church collins order intervene or was it preserved because it was involved in litigation there's nothing in the record that o these are not trade secrets in their traditional sense but it is confidential information that was given to a government entity about these businesses pursuance of essentially regulatory litigation for that reason this shouldn't be available for that is the same type of concern that i think runs to the stars is that type of how do you have confidentiality confidential proceedings involving the government if everything is foil where you say i'm sorry council that's how you get around well i mean but then you have an issue of whether an agent who has materials in possession the government as you know it the government is still held to the agent's version of those which is a you know a different more complicated issue but it's certainly still an issue i counsel thank you you documents are plainly public records second no foyer exemption applies to these documents third the circuit court did not abuse discretion in holding the defendants waive their argument exemptions have been one and defendants are we cataloged defendants arguments and in the reply of a it not only did not raise the issue but did not dispute our interpretation of what arguments they were making as the list they first raised this issue in their motion to reconsider after the court had already rejected reconsider or raising a new argument on an appeal i mean i would invite the way i want to address the issue though you were discussing earlier about whether or not these documents are public records i would note that the foyer definition of public  they prepared to possess and the control these documents there's no work climate but these documents be prepared or possessed in the ordinary course of business and there is no exception for documents produced pursuant to a protective order in fact the seventh circuit noted that the protective order does not interfere with mr calvin's ability to try to obtain the documents he seeks the rectory from the city under the illinois for as it continued nothing in the protective order here prohibits the city from disclosing any of its police department records to the public upon request counsel is there any reason to consider why the lists were prepared as a result of discovery for example if  produce that they were forced to produce a document would take any of that in consideration you know for a few reasons your honor first there's that if that language does not exist in foyer where it makes no requirement that a dock document be produced for a particular reason and from your file cabinet the query functionally works as someone who would go and get the documents from file cabinet but i would know that yes absolutely on our our primary argument is that it does not matter why these less were produced in fact that's why protective order doesn't make any determination about whether the document would need to be produced under fire in this case again the seventh circuit was clear that the protective order has no bearing but but again there m star defendants noted that the court says that the documents at issue don't fall within the traditional understanding of trade secrets and it's true that the court has that the opinion contained thought language over the court also says that they clearly fall exemption so what the court is knowing noting is that perhaps why has a quirky definition of treaty critz but the documents at issue fall squarely within that exemption it wasn't because of the protective order that they weren't disclosed it was because of the many people the face of the government and about how the city handles repeated complaints of abuse against this office its officers these documents are a public record to which no exemption applies they must be disclosed we've we've already discussed waiver but i'd like to also note that on the merits exemptions have been one and does not exempt these lists from disclosure however they don't contain any information that is itself exempt as defendants noted they contain the name the list of complaints some beats and the factual result the final factual result of investigation and then the discipline that was actually imposed if any discipline was imposed further belying the notion that these would be exempt based on the age of your exemption is the fact that about point two percent of these lead to to disappointing meaningful discipline and they don't reveal anything about the to give process they don't reveal the charges that are filed with the police board and it's actually the charging document that kicks off the education not the investigation the superintendent files the charging document as opposed hearings before the police for all the information in the repeater lists is otherwise public information it might be used in and in adjudication but as my co counsel noted relating to must be interpreted in context and simply using public information education does not make otherwise public information exempt there's lots of public information that might be used in an adjudication for example a public records record of the weather report might be relevant to a complaint the crime statistics of the relevant neighborhood might potentially be relevant to a complaint but just putting those materials into the mix of facts considered in an injured occasion does not make them exempt this is completely parallel to the fact that simply placing public information in a personnel file is not exempt we would be entitled to a few years on any claims on which we prevail so certainly if this on ruling would change the outcome we would be entitled to all fees on whatever portions we prevail on the petition the court rules on the reason yes yes that's  has a significant interest in monitoring the conduct of its police officers and our right to know how allegations of misconduct are being investigated and handled that such information the public would be unable to supervise the individuals and institutions that isn't trusted with the extraordinary authority to arrest and detain persons against their will with so much at stake defendants simply cannot be permitted to operate in secrecy