CHICAGO — A state appeals panel ruled the public is not entitled to see surveillance video from an incident in which a man pushed another passenger off a subway platform, finding the release could jeopardize police surveillance operations.
After privately reviewing the footage, Cook County Circuit Court Judge Anna Demacopolous granted summary judgment to the Chicago Sun-Times in its Freedom of Information Act lawsuit against the Chicago Transit Authority and Chicago Police Department. But she ordered the video stay under wraps, while the CTA and CPD appealed to the Illinois First District Appellate Court.
First District Appellate Justice Bertina Lampkin wrote the opinion, issued June 24; Justice LeRoy Martin concurred. Justice Robert Gordon partially concurred and also wrote a partial dissent.
Illinois First District Appellate Justice Bertina Lampkin
| Illinoiscourts.gov
The incident in question occurred Aug. 1, 2017, at the Washington Blue Line station on North Dearborn Street. The customer survived, as other passengers helped them back onto the platform. CPD used CTA’s footage to find the assailant, whom it charged with attempted murder on Oct. 11, 2017.
The Sun-Times filed its FOIA request five days later. The CTA denied the request later that month, citing a provision that exempts it from disclosing “security measures that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures.”
Specifically, the CTA said the footage would show where its cameras are installed, their technical capabilities and what areas they record and what they cannot. The Sun-Times also submitted a FOIA request to the CPD, which issued its own denial. On Jan. 30, 2018, the Sun-Times filed a complaint, asking the court to order the release, as well as force the CTA and CPD to pay its legal fees and civil penalties.
The civil action was put on hold due to a protective order governing discovery in the criminal proceedings, which ended in January 2019.
On appeal, the CTA argued Judge Demacopolous erred by requiring it to show evidence the footage would directly jeopardize its security system or cause a criminal act. The Sun-Times said “any blind spots were easily visible through observation at the station already and thus the footage was not exempt,” according to Lampkin.
Lampkin said a key phrase in federal FOIA law is “could reasonably be expected to,” and further noted several federal appellate court opinions acknowledge a lack of certainty in being able to predict harm resulting from data disclosure. Likewise, she continued, “the Illinois FOIA is worded broadly and requires a government agency to demonstrate that release of a document ‘could reasonably be expected to’ jeopardize the effectiveness of its security measures — not that it would jeopardize them.”
The panel reversed Demacopolous’ opinion, entering summary judgment in favor of the CTA and CPD, vacating the order to release the footage and remanding the case for resolution of legal fees and civil penalties.
In his dissent, Gordon said he agreed the summary judgment should be reversed, but reached that decision for different reasons.
“The facts in this case are highly disputed and thus cannot be decided on a motion for summary judgment,” Gordon wrote. With the Sun-Times and CTA offering conflicting expert testimony on the effects of releasing security footage, Gordon said the case should have proceeded to trial. While agreeing the CTA had only a low standard to prove its contention concerning the danger of releasing the video, the presence of contested facts required further proceedings.
“The type of lenses used in the cameras, the aperture setting for the lenses at the time of the recording, the depth of field, the image’s clarity, and whether any software enhancements are used to improve the camera’s visual output are all issues that need to be determined before a court can make a finding that the release of the video could reasonably jeopardize the effectiveness of the CTA’s security system,” Gordon wrote. “As a result, I would deny each party’s motion for summary judgment and remand to the trial court for a trial on the merits. After the factual issues have been decided, it is possible that the court could find that all of the video would be exempt, none of the video would be exempt, or only a portion of the video would be exempt.”
The Sun-Times has been represented in the action by attorneys Joshua Burday, Matthew Topic and Merrick Wayne, of the firm of Loevy & Loevy, of Chicago.
The CTA has been represented by its corporation counsel, including attorneys Karen G. Seimetz, Stephen L. Wood and Irina Y. Dmitrieva.