FOIA: Muhammad Shooting to City Law Department

Below is CJP’s FOIA in the Sgt. Khalil Muhammad case to the City of Chicago Law Department in his unjustified shooting, and subsequent murder, of Ricardo “Ricky” Hayes in the Chicago’s Morgan Park Neighborhood back in August of 2017.

This is part of a series of FOIAs that the Chicago Justice Project is filing to shed light on the highly questionable mediation of his pending termination case in front of the Chicago Police Board that resulted in a plea agreement of a 180 day suspension rather than termination. As we file the subsequent FOIAs we will be posting links. Also we will be posting responses we get from the agencies. You can find links to all of our FOIAs in in this case here.

Below is the content of our FOIA we filed with the City of Chicago Law Department on 2/18/2020.

In accordance with Definitions and Instructions below and the Illinois Freedom of Information Act, 5 ILCS 140, I request that your office provide the following public records: 

1. All video and audio recordings of any kind of Sgt. Khalil Muhammad’s Aug. 13, 2017 off-duty shooting of unarmed teenager Ricardo “Ricky” Hayes in the Morgan Park neighborhood of Chicago (the “Incident”) –Board Case # 19 PB 2956.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a. Electronic recordings from cell phones

b. Electronic recordings from nearby security cameras collected by Police as evidence or otherwise

c. Bodycam footage from Muhammad.

d. Surveillance video showing Muhammad driving past Hayes without stopping.

e. Video of the Incident reviewed by any members of the Board.

f. Video of the Incident reviewed by any hearing officers employed by the Board.

2. All documents regarding the “Incident”.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a. Police reports regarding the Incident.

b. Statements regarding the Incident.

c. Evidence reviewed or considered by members of the Board regarding the Incident.

d. Evidence reviewed or considered by any hearing officers employed by the Board regarding the Incident.

e. Evidence in the Record of Proceedings before the Board.

f. The “stipulation” filed by the City with the Board in October, 2019, including all 11 exhibits to same.

3. Any documents or motions field by the City with the Board regarding the Incident.

4. Any charges filed by the City with the Board regarding the Incident.

5. Any final decisions handed down by the Board regarding the Incident. All documents regarding the “Plea Agreement”.

6. All documents regarding the Board’s decision not to fire Muhammad.

7. All documents regarding the Board’s decision that Muhammad’s use of deadly force was unjustified.

8. The transcript and/or any notes or recordings (or documents reflecting) Muhammad’s statement(s) about the Incident.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a. Muhammad’s statement(s) to the Police.

b. Muhammad’s statement(s) to COPA.

9. COPA’s summary and findings about the Incident.

10. All documents (including electronic documents and communications) referring, regarding or relating to Hayes, the Incident, the Plea Agreement, negotiation of the Plea Agreement, COPAs decision or analysis of the Incident, and/or the Board’s decision or analysis of the Incident, including drafts thereof.

11. Communications, including but limited to electronic communications and summaries of same (email, text, instant messaging of any kind, voicemail, etc.) to or from the Police Board or any member of the Police Board regarding the Incident, the Plea Agreement, the Board’s decision not to fire Muhammad, and/or the Board’s decision that Muhammad’s use of deadly force was unjustified.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a. electronic communications to or from COPA regarding the topics included above;

b. electronic communications to or from the Mayor’s Office or anyone from the Mayor’s Office or offices regarding the topics included above;

c. electronic communications to or from the CPD regarding the topics included above;

d. electronic communications to or from amongst Police Board members regarding the topics included above; and/or

e. communications of any kind to or from anyone related to the bad publicity the Board’s decision received after it was made public.

10. All policies, procedures, regulations, guidelines, rules, protocols, legislation, ordinances, or laws (official or unofficial, binding or non-binding) that guide, authorize, explain or detail the Board’s practices related to whether and when to accept a settlement agreement between the City of Chicago or any of its departments and police officers who are currently or reasonably believe they will be subject to review by the Board in current or future proceedings.

DEFINITIONS
“Document” and/or “Documents” means any documents or electronically stored information of any kind—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.

The “Incident” means Sgt. Khalil Muhammad’s Aug. 13, 2017 off-duty shooting of unarmed teenager Ricardo “Ricky” Hayes in the Morgan Park neighborhood of Chicago. The Incident is the basis for Chicago Police Board Case # 19 PB 2956.

“Muhammad” means Police Sgt. Khalil Muhammad.

Hayes means Ricardo “Ricky” Hayes

The “Analysis” means the analysis of Muhammad’s statement and the Incident by the Civilian Office of Police Accountability.

“COPA” means the Civilian Office of Police Accountability.

“Johnson” means ex-Superintendent of Police Eddie Johnson.

The “Plea Agreement” means Muhammad’s plea agreement with the State’s Attorney’s Office in which, according to news reports, Muhammad admitted that the 2017 shooting was “without lawful justification” in exchange for a 180-day suspension.

Emanuel means ex-Mayor Rahm Emanuel.

Lightfoot means Mayor Lightfoot.

The “Board” means the Police Board. This includes, individually and collectively, President Ghian Foreman and Vice President Paula Wolff as well as Matthew C. Crowl, Eva-Dina Delgado, Steve Flores, John P. O’Malley Jr., Andrea L. Zopp, Rev. Michael Eaddy and Rhoda D. Sweeney.

INSTRUCTIONS
If the agency withholds any document or information pertinent to the requests made herein, please identify the document or information in as much detail as is possible, and detail in specific language why each document or piece of information is being withheld.

If any information requested herein is withheld on the basis of a claim of privilege or other protection as material prepared in anticipation of litigation or trial, then that claim shall be made expressly in a writing that describes the nature of the Documents, Communications, or Things not produced or disclosed in a manner that will enable us to assess the applicability of the privilege or protection. With regard to each claim of privilege or protection, the following information should be provided in the response or the objection:

(a) the type of Document, e.g., letter or memorandum;

(b) general subject matter of the Document;

(c) the date of the Document;

(d) such other information as is sufficient to identify the Document for a subpoena duces tecum, including, where appropriate, the author, addressee, and any other recipient of the Document, and, where not apparent, the relationship of the author, addressee, and any other recipient to each other; and

(e) the nature of the privilege or protection;

(f) if applicable, the litigation or trial of which he document was created in anticipation.

If any Document identified herein has been lost, discarded, or destroyed, each such Document should be identified as completely as possible, including as to each such Document, its date, general nature (e.g., letter, memorandum, telegram, telex, photograph, computer printout), subject matter, each author or originator, each person indicated as an addressee or copy recipient, and its former custodian(s). In addition, as to each such Document, the following information shall be supplied:

(a) date of disposal, loss, or destruction;

(b) manner of disposal, loss, or destruction;

(c) reason for disposal or destruction, or any explanation of loss;

(d) persons authorizing the disposal or destruction;

(e) persons having knowledge of the disposal, destruction, or loss; and

(f) persons who destroyed, lost, or disposed or the Document or Thing.

I look forward to hearing from you in writing within five working days, as required by the Act 5 ILCS 140(3).  Please direct all questions or responses to this FOIA request to this email address by responding to this email. 

Updates to Law Department FOIA

4/3 – I see four issues that need to be addressed. Here is our response.

Issue:  Additionally, many of the records responsive to your request are available on COPA’s case portal at https://www.chicagocopa.org/data-cases/case-portal/.

Response: Under the law each city department is required to abide by their responsibilities under FOIA independent of the actions of other city departments The fact that some of the records may or may not be available on a different department’s website in no way limits your department’s responsibility to release the record if they maintain it. In fact, the 2010 FOIA law specifically added a passage that details the requirements for public bodies to release public records they maintain even if the public records are owned by other public bodies as long as those public records would be open to FOIA from the public body that owns the records. Please release any public records that are responsive to our request.   

Issue:  We have also withheld records covered under a protective order in the Police Board case.

Response:  The proceedings of the Chicago Police Board regarding this case have terminated and so has any protective order that was issued responsive to the ongoing proceedings. The release of these records cannot in any way interfere with any foreseeable investigation or criminal justice proceeding as all possible avenues for those proceedings were foreclosed upon via the Chicago Police Board approving the agreement between Sgt. Muhammad and the Superintendent of the Chicago Police Department.  Please release the records that are response to our request. 

Issue:  First, in order to effectively run an email search, the Law Department needs the following search parameters: (1) the e-mail address(es) or employee name(s) of the account(s) you wish searched; (2) key words you wish to search for; and (3) the timeframe to be searched.  Without search parameters, the Law Department would need to review all department emails to determine whether any are responsive to your request.  Such an undertaking would pose an immense burden on the department. 

Response:  Parameters:  

  • Time:  8/12/17 – 2/18/20
  • All employees of the Law Department 
  • Keywords:
    • Chicago Police Department + Muhammad
    • Chicago Police Officer + Muhammad
    • Chicago Police + Muhammad
    • Officer + Muhammad
    • Sgt. Khalil Muhammad
    • Sergeant Khalil Muhammad
    • Sgt. Muhammad
    • Sergeant Muhammad
    • Muhammad + Shooting
    • 19 PB 2956
    • Shooting + Muhammad
    • Chicago Police Board + Muhammad
    • Ricardo “Ricky” Hayes
    • Ricard Hayes
    • Ricky Hayes

Issue:  Second, there are other records from this Police Board matter besides the stipulation and exhibits that we are providing right now.  These other records are numerous and add to the burden the request places on the Law Department’s time and resources.  However, in addition the email search as discussed below, the Law Department can assist you in drafting a FOIA request that is not unduly burdensome and provides reasonable access to these records.

Response:  Please details the types of records that were withheld and the the number of each type. We will then be in a position to specifically target records we would like released.  Also, if you want to offer us a new version of our FOIA request that will result in you releasing the records we are seeking we would be happy to receive it.

Tracy

3/4 – March 4, 2020

Tracy Siska

Chicago Justice Project

Via email at tsiska@chicagojustice.org

Dear Mr. Siska,

On behalf of the City of Chicago Department of Law, I am responding to your Freedom of Information Act (“FOIA”) request which was dated February 18, 2020 and received in our office on the same day.  The Law Department took a 5-day extension to your request on February 25, 2020.  You requested:

Requesting All video and audio recordings of any kind of Sgt. Khalil Muhammad’s Aug. 13, 2017 off-duty shooting of unarmed teenager Ricardo “Ricky” Hayes in the Morgan Park neighborhood of Chicago (the “Incident”) –Board Case # 19 PB 2956.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a.Electronic recordings from cell phones b.Electronic recordings from nearby security cameras collected by Police as evidence or otherwise c.Bodycam footage from Muhammad. d.     Surveillance video showing Muhammad driving past Hayes without stopping. e. Video of the Incident reviewed by any members of the Board. f. Video of the Incident reviewed by any hearing officers employed by the Board.

2.     All documents regarding the “Incident”.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a.Police reports regarding the Incident. b. Statements regarding the Incident. c. Evidence reviewed or considered by members of the Board regarding the Incident. d. Evidence reviewed or considered by any hearing officers employed by the Board regarding the Incident. e. Evidence in the Record of Proceedings before the Board. f. The “stipulation” filed by the City with the Board in October, 2019, including all 11 exhibits to same. g. Any documents or motions field by the City with the Board regarding the Incident.  h. Any charges filed by the City with the Board regarding the Incident. i. Any final decisions handed down by the Board regarding the Incident.

3.     All documents regarding the “Plea Agreement”.

4.     All documents regarding the Board’s decision not to fire Muhammad.

5.     All documents regarding the Board’s decision that Muhammad’s use of deadly force was unjustified.

6.     The transcript and/or any notes or recordings (or documents reflecting) Muhammad’s statement(s) about the Incident.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a.     Muhammad’s statement(s) to the Police.

b.     Muhammad’s statement(s) to COPA.

7.     COPA’s summary and findings about the Incident.

8.     All documents (including electronic documents and communications) referring, regarding or relating to Hayes, the Incident, the Plea Agreement, negotiation of the Plea Agreement, COPAs decision or analysis of the Incident, and/or the Board’s decision or analysis of the Incident, including drafts thereof.

9.     Communications, including but limited to electronic communications and summaries of same (email, text, instant messaging of any kind, voicemail, etc.) to or from the Police Board or any member of the Police Board regarding the Incident, the Plea Agreement, the Board’s decision not to fire Muhammad, and/or the Board’s decision that Muhammad’s use of deadly force was unjustified.  Without limiting the scope of this FOIA request in any way, the response to this request should include at a minimum all of the following:

a. electronic communications to or from COPA regarding the topics included above; b. electronic communications to or from the Mayor’s Office or anyone from the Mayor’s Office or offices regarding the topics included above; c. electronic communications to or from the CPD regarding the topics included above; d. electronic communications to or from amongst Police Board members regarding the topics included above; and/or e. communications of any kind to or from anyone related to the bad publicity the Board’s decision received after it was made public.

10.  All policies, procedures, regulations, guidelines, rules, protocols, legislation, ordinances, or laws (official or unofficial, binding or non-binding) that guide, authorize, explain or detail the Board’s practices related to whether and when to accept a settlement agreement between the City of Chicago or any of its departments and police officers who are currently or reasonably believe they will be subject to review by the Board in current or future proceedings.

Please find the attached records responsive to your request.  Additionally, many of the records responsive to your request are available on COPA’s case portal at https://www.chicagocopa.org/data-cases/case-portal/.

We have redacted and withheld certain material pursuant to Section 7(1)(b) of FOIA.  That section exempts “private information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.”  5 ILCS 140/7(1)(b).  Section 2(c-5) defines “private information” as:

unique identifiers, including a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person.

5 ILCS 140/2(c-5).  The material we have redacted and withheld under this section is employee numbers and health records.  Because these items are specifically exempted under Section 7(1)(b), they have been properly redacted and withheld.

We have also withheld records covered under a protective order in the Police Board case.  Under 5 ILCS 140/7(1)(a), a public body may withhold “information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.”  The Illinois Supreme Court recently held that it is proper under the Illinois FOIA for a public body to withhold records that are subject to a judicial protective order. In Re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 66 (citing GTE Sylvania Inc. v. Consumer Union of the United States, Inc., 445 U.S. 375)(1980)).  Therefore, the Law Department has properly withheld these records.

We have redacted certain material pursuant to Section 7(1)(c) of FOIA.  That section exempts:

[p]ersonal 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 in which the subject’s right of 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.

Dates of birth are personal information that is exempt under 5 ILCS 140/7(1)(c). The Public Access Bureau has determined that disclosure of a person’s date of birth constitutes an unwarranted invasion of personal privacy, and that a person’s “right to privacy outweighs any legitimate public interest in disclosure of his or her date of birth.” 2012 PAC 19290 (Ill. Att’y Gen. PAC Req. Rev. Ltr., issued November 2, 2012, at 3), citing 2011 PAC 15360 (Ill. Att’y Gen. PAC Pre-Auth. Ltr., issued July 15, 2011).  Therefore, the Law Department has properly redacted dates of birth.

However, the remainder of your request is unduly burdensome under Section 3(g) of FOIA.  Section 3(g) of FOIA provides that “requests for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.” 

First, in order to effectively run an email search, the Law Department needs the following search parameters: (1) the e-mail address(es) or employee name(s) of the account(s) you wish searched; (2) key words you wish to search for; and (3) the timeframe to be searched.  Without search parameters, the Law Department would need to review all department emails to determine whether any are responsive to your request.  Such an undertaking would pose an immense burden on the department.

Second, there are other records from this Police Board matter besides the stipulation and exhibits that we are providing right now.  These other records are numerous and add to the burden the request places on the Law Department’s time and resources.  However, in addition the email search as discussed below, the Law Department can assist you in drafting a FOIA request that is not unduly burdensome and provides reasonable access to these records.

It is necessary that your FOIA request be narrowed and clarified.  If you would like assistance in narrowing your request, please contact me, and I will assist you.  I can assist you with drafting an email search or with other elements of your request.  Otherwise, for the reasons provided above, the Law Department is unable to respond to your FOIA request as currently drafted.

If you agree to narrow your request, you must submit a revised written request to my attention. The Law Department will take no further action or send you any further correspondence unless and until your current request is narrowed in writing.  If we do not receive your narrowed request within fourteen calendar days of the date of this letter, your current request will be denied.

In the event that we do not receive a narrowed request and your current FOIA request is therefore denied, you have the right to have a denial reviewed by the Public Access Counselor (PAC) at the Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois 62706, (877) 299-3642. You also have the right to seek judicial review of your denial by filing a lawsuit in Cook County Circuit Court.

Sincerely,

Tom Skelton

FOIA Officer – Department of Law

2/25 – The City’s Law Department replied with a request for an extention citing the following:

“(xx) there is need for consultation, which shall be conducted with all practicable speed, with another public body or among two or more components of a public body having a substantial interest in the determination or in the subject matter of the request.”

Materials Received on 3/4 from Law Department:

Muhammad Stipulation – 10162019

Sergeant Muhammad Stipulation Exhibit A

Sergeant Muhammad Stipulation Exhibit B

Sergeant Muhammad Stipulation Exhibit C

Sergeant Muhammad Stipulation Exhibit D

Sergeant Muhammad Stipulation Exhibit F

Sergeant Muhammad Stipulation Exhibit G

Sergeant Muhammad Stipulation Exhibit I

Sergeant Muhammad Stipulation Exhibit J

Sergeant Muhammad Stipulation Group Exhibit K

SISKA RESPONSE 3420

CJP’s official response to the Law Department is forthcoming. Obviously if you look only at the exhibit lettering there are some things they have held back.

Author: Tracy Siska

Tracy Siska is the Founder and Executive Director of the Chicago Justice Project.

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