People Ex Rel. Birkett v. City of Chicago

JUSTICE BILANDIC, dissenting:

I hasten to add my vigorous dissent to the majority opinion which refuses to recognize a deliberative process privilege.

The Burnham Plan of 1909, sponsored by The Commercial Club of Chicago, is regarded as the model for regional planning which turns visions into reality. “Make no little plans; they have no magic to stir men’s blood and probably themselves will not be realized. Make big plans; aim high in hope and work, remembering that a noble, logical diagram once recorded will never die, but long after we are gone will be a living thing, asserting itself with ever-growing insistency. Remember that our sons and grandsons are going to do things that would stagger us. Let your watchword be order and your beacon beautyE,]” proclaimed Daniel H. Burnham about this historic event. Respectfully Quoted, A Dictionary of Quotations Requested from the Congressional Research Service 256 (S. Platt ed. 1989).

As we embark into the new millennium, The Commercial Club of Chicago released a sequel to the 1909 Burnham Plan for the Metropolitan Chicago area. “The Plan of 1999 focuses principally on an area of 3,749 square miles of real estate covering six counties and supporting about 7.7 million people and 4.1 million jobs. The six counties are Cook, Du Page, Kane, Lake, McHenry, and Will.” Chicago Metropolis 2020, The Commercial Club of Chicago, at 1 n.l (October 30, 1998).

By refusing to recognize a deliberative process privilege, the majority has unwittingly driven a stake through the heart of executive creativity which emerges from the deliberative process. “And today, as in the past, we must ask ourselves what are the strengths on which we must build, what are the new opportunities that we must exploit, and what are the serious obstacles that we must overcome. Only as we answer these questions and turn those answers into actionable programs will we prove worthy of our heritage and approximate the economic and social goals to which we aspire.” Chicago Metropolis 2020, The Commercial Club of Chicago, at 5 (October 30, 1998).

The executive branch, from the Governor of our state to the lowest rank of executive in government, should not be inhibited by the shackles with which the majority seeks to bind them.

The deliberative process privilege protects from discovery predecisional documents that reflect opinions, recommendations and deliberations generated in the course of the decisionmaking process of a governmental agency. See National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150 , 44 L. Ed. 2d 29, 47 , 95 S. Ct. 1504, 1516 (1975); United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). The privilege has been recognized by the United States Supreme Court, the Seventh Circuit Court of Appeals and other federal and state courts. See Sears, 421 U.S. 132 , 44 L. Ed. 2d 29 , 95 S. Ct. 1504 ; Farley, 11 F.3d 1385 (7th Cir. 1993); First Eastern Corp. v. Mainwaring, 21 F.3d 465 (D.C. Cir. 1994); Ostoin v. Waterford Township Police Department, 189 Mich. App. 334 , 471 N.W.2d 666 (1991); Doe v. Alaska Superior Court, Third Judicial District, 721 P.2d 617 (Alaska 1986); Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980). This court should likewise recognize the deliberative process privilege.

The need to recognize a deliberative process privilege is readily apparent. The realities of governmental decisionmaking create a need for preserving the confidentiality of intragovernmental documents reflecting the mental processes of decisionmakers. Good government requires sound decisionmaking. Sound decisionmaking depends on research, planning, and the consideration of the full array of contrasting views on a particular subject. Those responsible for providing assessments or detailing the potential pitfalls of policy options necessarily depend on an expectation of confidentiality, if their advice is to be candid and uninhibited. In my view, it is of paramount importance that government officials be able to engage in open and candid discussions without a concern for appearances. Such an atmosphere is conducive to good quality governmental decisions and policies, which result from unvarnished advice. Policymakers should not have to fear that every warning or dissent received from staff members could one day become public, and staff members should be free to dissent from recommendations without fear that their dissent will become public. The consequence of not recognizing the deliberative process privilege could be severe. The ability to obtain routine disclosure of predecisional deliberative documents would enable opponents of government action to embarrass government decisionmakers with their own unpolished thoughts.

It is important to emphasize that the privilege is not absolute. Rather, it is a qualified privilege because it can be overcome if the party seeking discovery shows a sufficient need for the privileged documents. In showing a sufficient need, the party must establish that the documents are relevant, and that the party has a particularized need for the documents which outweighs the government’s interest in maintaining confidentiality. See Farley, 11 F.3d at 1389-90 . The privilege attempts to accommodate the competing interests of a just resolution in legal disputes with the need to protect certain confidential government documents. In light of its qualified nature, the privilege will not interfere with the truth-seeking function of legal proceedings since a government entity will not be able to hide relevant and necessary documents.

In addition to the realities of government decision-making, section 7(l)(f) of the Illinois Freedom of Information Act (5 ILCS 140/7(1)(f) (West 1994)), which exempts predecisional governmental materials from disclosure to the public, supports recognition of the deliberative process privilege in the context of litigation. Although the exemption in section 7(l)(f) involves disclosure to the public in general and not in response to discovery in litigation, it nevertheless evinces a general public policy of protecting predecisional governmental deliberative materials from disclosure.

The context of this case further underscores the need for recognition of the deliberative process privilege. This case centers around a political fight between the plaintiffs, which are municipalities located in close proximity to O’Hare International Airport, and the City of Chicago, which owns and operates O’Hare, concerning the possible expansion of O’Hare. According to the Chicago Metropolis 2020 report, O’Hare is presently unable to accommodate the ever-growing demand on its facilities, and the loss of operations will have significant adverse economic repercussions for the region. Chicago Metropolis 2020, The Commercial Club of Chicago, at 40 (October 30, 1998). The report recommends expanding capacity at O’Hare to maintain the region’s preeminence as a domestic air transportation hub and to build on its potential as an international gateway. Chicago Metropolis 2020, The Commercial Club of Chicago, at 89 (October 30, 1998). Likewise, a study commissioned by the Chicago-land Chamber of Commerce warns of a $10 billion annual loss to the region’s economy, with $7 to $8 billion being borne by the O’Hare vicinity suburbs, if capacity is not dramatically increased at O’Hare to meet demand. Chicago Aviation Policy, Chicagoland Chamber of Commerce, at 2 (November 12, 1998). The heart of the dispute in this case concerns the plaintiffs’ opposition to any such expansion at O’Hare. The plaintiffs contend that the City has plans to proceed with future expansion of O’Hare without obtaining the required certificate of approval from the Illinois Department of Transportation. The plaintiffs seek to use the documents at issue in their attempt to halt any future expansion plans at O’Hare. This strategy is evident given the nature of the documents.

The types of documents sought by the plaintiffs should be protected from disclosure. The affidavits in the record reveal the planning process from which these documents were generated. According to affidavits submitted by various deputy commissioners of the City’s department of aviation, the documents requested by the plaintiffs reflect preliminary and predecisional planning deliberations concerning development options and alternatives at O’Hare. Included in these deliberations are opinions expressed during meetings and recommendations by City personnel and hired consultants. The affidavits further state that the documents contain confidential advice given to municipal policymakers evaluating policy options. Such planning documents go to the heart of the City officials’ ability to engage in open and honest discussions relating to future planning. I believe that these officials should be able to discuss all pertinent policy options without fear that their candid assessments of each option’s strengths and weaknesses will be disclosed to the airport’s opponents. The affidavits of the deputy commissioners establish the importance of protecting these airport planning deliberations from disclosure in order to maintain the candid evaluation of proposals within that process. I would therefore hold that any documents relating to opinions, discussions, forecasts, recommendations and other predecisional matters concerning O’Hare and arising in the course of government decisionmaking are protected by the deliberative process privilege.

For the foregoing reasons, I would reverse the judgments of the appellate and circuit courts and recognize a deliberative process privilege. I would also remand to the circuit court and direct it to conduct an in camera review of the City’s documents filed under seal to determine which documents are covered by this privilege and to determine whether the plaintiffs have shown a particularized need for any privileged documents.