Chicago Recycling Coalition v. City of Chicago Department of Streets & Sanitation

2023 IL App (1st) 220154

SIXTH DIVISION
August 11, 2023

No. 1-22-0154

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

CHICAGO RECYCLING COALITION, )
Appeal from the
)
Circuit Court of
Plaintiff-Appellant, )
Cook County
)
v. )
No. 19 CH 10848
)
THE CITY OF CHICAGO DEPARTMENT OF )
The Honorable
STREETS AND SANITATION, )
Caroline K. Moreland,
)
Judge, presiding.
Defendant-Appellee. )

JUSTICE TAILOR delivered the judgment of the court, with opinion.
Justices C.A. Walker and Oden Johnson concurred in the judgment and opinion.
Justice C.A. Walker, also specially concurred, with opinion, joined by Justice Oden
Johnson.

OPINION

¶1 Plaintiff, Chicago Recycling Coalition (CRC), appeals from the circuit court’s grant of

summary judgment in favor of defendant, City of Chicago Department of Streets and Sanitation

(Department), on CRC’s complaint alleging violations of the Freedom of Information Act (FOIA)

(5 ILCS 140/1 et seq. (West 2018)) in relation to certain City of Chicago (City) recycling program

records. We affirm the circuit court.
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¶2 I. BACKGROUND

¶3 The City is divided into six recycling zones, comprising single-family homes and buildings

with four or less dwelling units. See Chicago Municipal Code § 11-4-1860 (amended Dec. 11,

1991); Chicago Municipal Code § 11-5-010 et seq. (added July 20, 2016)) (Recycling Ordinance).

The Department contracts with Lakeshore Recycling Services (Lakeshore) and Waste

Management to collect recycling material from four of the six recycling zones, and the Department

collects recycling material from the remaining two recycling zones. In addition, pursuant to

sections 11-5-030 and 4-6-130 of the Chicago Municipal Code (Chicago Municipal Code § 11-5-

030 (amended Nov. 16, 2016); Chicago Municipal Code § 4-6-130 (amended at Chi. City Clerk J.

Proc. 75,051 (Apr. 18, 2018))), the Department authorizes other licensed private entities and

individuals, who we will refer to here as the third-party private haulers, to collect recycling

materials from buildings with five or more dwelling units and commercial buildings.

¶4 On April 1, 2019, Carter O’Brien, vice president of CRC, sent the Department a FOIA

request for three sets of records related to the City’s recycling program. First, CRC requested “all

2018 records covered under section 11-5-220 *** in the Chicago Recycling Ordinance including

third-party private hauler reports to DSS, records pertaining to recycling and waste handled by the

Department of Streets and Sanitation, and the aggregated information provided in previous years.”

Second, CRC requested residual rate and other contamination data representing the percentage of

non-recyclable material collected from receptacles where recycling materials are placed

(commonly known as Blue Carts) by the Department, Lakeshore, and Waste Management. Third,

CRC requested total monthly mileage travelled by the Department’s garbage and Blue Cart trucks.

This appeal only concerns CRC’s first two requests.

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¶5 On April 30, 2019, the Department produced via e-mail “[third-party private] hauler reports

responsive to [CRC’s] requests” and notified CRC that it was still searching for responsive

documents for the remaining requests. On May 9, 2019, the Department sent a final response

informing CRC that it had now attached all responsive records other than those records pertaining

to miles travelled, which the Department stated it did not maintain.

¶6 On September 19, 2019, CRC filed a three-count complaint alleging that the Department

failed to produce nonexempt public records (count I), failed to perform an adequate search for

responsive records (count II), and willfully violated FOIA (count III).

¶7 A. Cross-Motions for Summary Judgment

¶8 CRC moved for partial summary judgment on counts I and II of its complaint on the bases

that the records produced by the Department were incomplete and the Department had not met its

burden to show that it conducted an adequate search for records. CRC argued that section 11-5-

220(a) of the Recycling Ordinance (Chicago Municipal Code § 11-5-220(a) (added July 20, 2016))

requires all third-party private haulers to submit an annual report to the Department, that the

Department only produced reports from 43 of the 115 licensed third-party private haulers, and that

the Department provided no explanation or invoked any exemption under FOIA for not producing

the reports of the remaining 72 third-party private haulers. CRC argued that it was the

Department’s burden to show by clear and convincing evidence that the Department had complied

with its obligations under FOIA.

¶9 The Department cross-moved for summary judgment. With respect to CRC’s request for

third-party private hauler reports, the Department argued that it does not create such reports and

that it had provided CRC with all the reports that had been submitted to the Department by the

third-party private haulers. The Department stated that, each year, it (1) requests that third-party

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private haulers submit the reports via e-mail, (2) provides the template for the reports to the third-

party private hauler, and (3) organizes and stores the reports it receives as alphabetically arranged

PDF documents in a shared folder on the Department’s internal network servers. The Department

stated that at the time of CRC’s request, the Department had received annual reports from only 43

third-party private haulers and produced those 43 reports to CRC.

¶ 10 As to the second request seeking residual rate and contamination data, the Department

stated that it provided all the records it had in its possession at the time of the request. The

Department argued that it did not violate FOIA and that there was no evidence to support a finding

that there was a willful violation or intentional failure to comply.

¶ 11 The Department’s cross-motion for summary judgment was ultimately supported by two

affidavits from Chris Sauve, the Department’s deputy commissioner. In the first affidavit, Sauve

averred that the Department relies on third-party private haulers to submit annual reports and can

only provide a report if it receives one. Regarding residual rate and other contamination data,

vendors provide that information to the Department monthly. The Department produced all the

contamination rate data that it had in its possession to CRC.

¶ 12 In its combined reply in support of its motion for summary judgment and response to the

Department’s cross-motion for summary judgment, CRC argued that the Department failed to meet

its burden of proving that its search for responsive records was adequate. According to CRC, if

third-party private haulers had not submitted annual reports, then the Department was obligated to

retrieve the report from those haulers and provide the reports to CRC “because the [third-party]

private haulers are performing a governmental function.” As for contamination data, CRC asserted

that although the Department produced residual and contamination rate data for Waste

Management and Lakeshore, the Department failed to produce data for the two recycling zones it

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services. Moreover, the Department did not attest to whether it had produced any data related to

the recycling zones it services nor did it address if or how it searched for the requested data. Finally,

CRC contended that if the public body takes a position without legal justification, then the violation

is willful.

¶ 13 The Department argued in its reply that the contamination data it produced for Lakeshore

and Waste Management was provided by Lakeshore and Waste Management and that it does not

produce similar reports for its own recycling collections. Further, the Department argued that

Sauve’s affidavit established that the Department provided all responsive records in its possession,

and CRC presented no evidence to show that third-party private haulers perform a governmental

function on the Department’s behalf. Attached to its reply was Sauve’s second affidavit, in which

he averred, in relevant part, that third-party private haulers “are licensed to do business and to

contract with private parties within the City, however, they are not contracting with working [sic]

for [the Department].” He further averred that while the Department collects recyclable materials,

it “does not compile and keep residual rate and contamination data for the recycling material

collected by [the Department.]”

¶ 14 On October 2, 2020, the circuit court entered a written order on the cross-motions for

summary judgment. The circuit court found that the Department was entitled to summary judgment

on the first part of CRC’s FOIA request for third-party private hauler reports because “[by]

searching the appropriate folders, and producing all hauler documents in its possession at the time

of [CRC’s] request, [the Department] had conducted an adequate search for records and met its

burden.” The circuit court also found that the Department had a plausible justification for not

producing the alleged missing records because it asserted that it produced everything in its

possession. However, the circuit court entered summary judgment in favor of CRC with respect to

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its request for residual rate and contamination data, finding that the Department had not:

(1) produced its own data, (2) “clarif[ied] if and how [the Department’s] records were searched for

the missing data,” or (3) invoked any exemption under FOIA.

¶ 15 B. Motions to Reconsider

¶ 16 Both parties filed timely motions to reconsider. In its motion, the Department first argued

that Sauve’s affidavits established that the Department had provided all responsive records and

that the Department does not compile residual and contamination reports like the ones prepared

and submitted by Waste Management and Lakeshore to the Department. Second, the Department

argued that it did not violate FOIA where Sauve’s affidavits were uncontradicted. The Department

requested that the circuit court reconsider the portion of its order finding that the Department

violated FOIA. In response, CRC argued the circuit court correctly found that the Department

violated FOIA because CRC requested underlying data, not necessarily reports generated by the

Department, and the Department failed to meet its burden to provide any justification for not

producing the data. CRC also argued it did not have an opportunity to contradict Sauve’s second

affidavit, which was attached to the Department’s reply brief.

¶ 17 In its motion to reconsider, CRC first argued that the circuit court erred in finding that the

Department complied with FOIA when it only produced the third-party private hauler reports in

its possession because FOIA does not limit public records to documents in the possession of a

public body. CRC argued that all 115 reports are in the control of the Department because section

11-5-220 of the Chicago Municipal Code requires third-party private haulers to prepare and submit

reports to the Department. Second, CRC claimed that because the third-party private hauler reports

are prepared for and are under the control of the Department, the Department has an obligation to

obtain and disclose all such reports even if the Department does not possess the reports. Third,

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CRC pointed to the enforcement mechanism in the Recycling Ordinance, which allows the

Department to fine any third-party private hauler who does not comply with the reporting

requirements. Notably, CRC attached a report from the City of Chicago Office of Inspector

General (OIG), which stated that the Department “does not ensure that [third-party private haulers]

submit complete, accurate, and timely annual reports detailing *** the amount and type of

materials hauled[ ],” and it “does not review the adequacy of the hauler reports or cite haulers for

failure to submit timely and complete reports.” In response, the Department argued that the circuit

court correctly found that compliance with FOIA is determined by the records that are in existence

and in its possession at the time of the request and that potential fines that may be imposed on

third-party private haulers under the City’s Recycling Ordinance are irrelevant for purposes of the

Department’s obligations under FOIA.

¶ 18 On September 20, 2021, the circuit court denied CRC’s motion to reconsider, but granted

CRC leave to file a surresponse to the Department’s motion for summary judgment regarding

CRC’s request for residual rate and contamination data. CRC filed a surresponse supported by an

affidavit from O’Brien, who averred that data generated by private entities was still within the

Department’s control and thus subject to FOIA disclosure. O’Brien also asserted that the City

contracts with private recycling sorting facilities that maintain residual rate data, and the

Department could have obtained that data by requesting it from the sorting facilities. CRC argued

that while the Department may not sort its own recycling or possess reports pertaining to the sorting

of recycling, it does contract with sorting facilities that collect data pertaining to non-recyclable

material removed during the sorting process. CRC asserted that the Department had not presented

any evidence that it searched for any responsive data but instead assumed that the data did not

exist.

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¶ 19 On January 19, 2022, the circuit court granted the Department’s motion to reconsider and

entered summary judgment in favor of the Department, finding that it complied with its obligations

related to CRC’s FOIA request for residual rate and contamination data. The circuit court found

that Sauve’s affidavits established that the Department did not maintain the requested records and,

as a result, the Department did not violate FOIA. Additionally, the circuit court found that while

the Department ordinarily collects and maintains third-party private hauler reports, it does not have

control over them until it receives them from the third-party private haulers. The circuit court

memorialized its ruling in a written order entered on January 20, 2022. CRC filed a timely notice

of appeal from the circuit court’s summary judgment order and orders disposing of the motions to

reconsider.

¶ 20 II. ANALYSIS

¶ 21 A. Summary Judgment Standard

¶ 22 We review summary judgment orders and questions involving the interpretation of FOIA

de novo. Green v. Chicago Police Department, 2022 IL 127229, ¶ 35. Summary judgment is

appropriate “only where the pleadings, depositions, admissions and affidavits ***, *** viewed in

the light most favorable to the nonmoving party, show that there is no genuine issue as to any

material fact and that the moving party is clearly entitled to judgment as a matter of law.” Pielet v.

Pielet, 2012 IL 112064, ¶ 29. “When parties file cross-motions for summary judgment, they

mutually agree that there are no genuine issues of material fact and that only a question of law is

involved.” (Internal quotation marks omitted.) Green, 2022 IL 127229, ¶ 35. However, “the mere

filing of cross-motions for summary judgment does not establish that there is no issue of material

fact, nor does it obligate a court to render summary judgment.” Pielet, 2012 IL 112064, ¶ 28.

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Summary judgment should not be granted unless the right to judgment is clear and free from doubt.

Id. ¶ 53.

¶ 23 B. Missing Third-Party Private Hauler Reports

¶ 24 CRC advances two arguments to support its position that the circuit court erred in entering

summary judgment in favor of the Department on its request for the subject third-party private

hauler reports. First, it argues that reports that are not in the Department’s possession are

nevertheless public records subject to FOIA under sections 2(c) and 7(2) of FOIA (5 ILCS

140/2(c), 7(2) (West 2018)), because section 11-5-220 of the Recycling Ordinance (Chicago

Municipal Code § 11-5-220 (added July 20, 2016)), requires third-party private haulers to submit

such reports to the Department annually. Second, it argues the Department did not perform an

adequate search because it never sought the subject reports from the third-party private haulers.

¶ 25 The Department does not take a position on whether third-party private hauler reports not

in its possession qualify as public records. Therefore, we assume, without deciding, that such

reports are public records and the only issue before us is whether the Department conducted an

adequate search for the “missing” reports. The Department argues that it performed an adequate

search to satisfy its obligation under FOIA because it submitted a sufficiently detailed affidavit

demonstrating that it had searched its files and records and turned over all the reports in its

possession. Because it performed an adequate search, the Department argues that the burden shifts

to CRC to provide evidence that the unproduced third-party private haulers reports actually exist.

In response, CRC asserts that the Department’s search was inadequate because the Department’s

“affidavits unequivocally establish that it never attempted to obtain the missing reports from the

haulers.” Furthermore, CRC argues that the Department has not shown that it is “powerless” to

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obtain the reports and, in fact, could compel delinquent third-party private haulers to submit their

reports by levying fines on them as authorized under the Recycling Ordinance.

¶ 26 To prevail on a motion for summary judgment in a FOIA case, the defending agency has

the burden of showing that its search was adequate. BlueStar Energy Services, Inc. v. Illinois

Commerce Comm’n, 374 Ill. App. 3d 990, 996 (2007). The adequacy of the search is “judged by

a standard of reasonableness and depends upon the facts of each case.” (Internal quotation marks

omitted.) Better Government Ass’n v. City of Chicago Office of Mayor, 2020 IL App (1st) 190038,

¶ 31. Illinois courts may look to federal cases interpreting the federal FOIA statute for guidance

when construing similar provisions under the Illinois FOIA. In re Appointment of Special

Prosecutor, 2019 IL 122949, ¶ 35. A reasonable search “does not have to be exhaustive.” Miller

v. United States Department of State, 779 F.2d 1378, 1383 (8th Cir. 1985). However, the public

body must “search all locations that are reasonably likely to contain responsive records.” Judicial

Watch, Inc. v. United States Department of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019). Once

the public body satisfies its burden, we examine whether the requester has made “a showing of

bad faith on the part of the agency sufficient to impugn the agency’s affidavits or declarations, or

provide some tangible evidence that *** summary judgment is otherwise improper.” BlueStar

Energy Services, Inc., 374 Ill. App. 3d at 997. “[M]ere speculation that as yet uncovered documents

might exist[ ] does not undermine the determination that the agency conducted an adequate search

for the requested records.” Wilbur v. Central Intelligence Agency, 355 F.3d 675, 678 (D.C. Cir.

2004).

¶ 27 We agree with the circuit court that the Sauve affidavits establish that the Department’s

search for the third-party private hauler reports was adequate and consistent with FOIA. Sauve

asserted that the Department does not prepare third-party private hauler reports and relies on the

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third-party private haulers to submit such reports to the Department on an annual basis. Each year,

the Department notifies third-party private haulers of their obligation to submit the reports under

the Recycling Ordinance. To facilitate the submission of the data, the Department sends them a

sample form. The Department directs third-party private haulers to send the completed report to a

specified e-mail address. Once received, the Department then organizes the reports alphabetically

in a folder on the Department’s servers. To respond to CRC’s request for third-party private hauler

reports, the Department searched within and produced all the reports in the designated folder. The

affidavit clearly establishes a systematic method of organizing and storing the third-party private

hauler reports that the Department receives and that a search of the specific folder is reasonably

likely to contain all the submitted hauler reports.

¶ 28 CRC urges us to find that the Department’s search was inadequate because it failed to

inquire about and obtain the missing reports from the third-party private haulers who failed to

submit their reports to the Department. First, it argues that a reasonable search under the facts of

this case necessitates that the Department contact all delinquent third-party private haulers and

instruct them to submit their reports. In support of this argument, CRC argues that the hauler

reports are public records under Chicago Municipal Code sections 11-5-220(a) and 11-5-220(d),

that section 11-5-250 requires that third-party private haulers submit the reports to the Department,

and that there exists an enforcement mechanism. See Chicago Municipal Code § 11-5-220(a), (d)

(added July 20, 2016) (requiring that third-party private haulers submit reports annually on a

Department form); id. § 11-5-250 (giving the Department the authority to penalize third-party

private haulers for failure to comply with the requirements of the Recycling Ordinance). Put

differently, because third-party private haulers are legally obligated to submit reports and the

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Department has legal authority to ensure compliance, a search for the records that does not include

a request to the delinquent third-party private haulers to submit their reports is unreasonable.

¶ 29 We disagree. We find that, here, an adequate search was performed when the Department

searched its records for the third-party private hauler reports and turned over every such report in

its possession. FOIA does not impose an obligation on the Department to make a demand on a

third-party private hauler who is delinquent or otherwise noncompliant with its obligation to

submit its report to the Department. We note that CRC has not been entirely clear in its position

before this court. In its opening brief, CRC argued that the circuit court “should have ordered [the

Department] to obtain and produce the missing hauler reports by asking the hauler to produce them

to [the Department] and taking any available steps to obtain them if the haulers refused.”

(Emphasis added.) This argument suggests that the “missing” third party private hauler reports

exist and that the Department is obligated to retrieve them and turn them over to CRC. At

argument, however, CRC took a more nuanced stance, stating that it was simply advocating that

the Department “just ask” the third-party private haulers if they have their missing reports and that

“[a]t no point has CRC argued that [the Department] create new records or that it must force the

[third-party] private haulers to create the reports.” Either way, CRC’s position fails because there

is no evidence in the record that any of the “missing” third-party private hauler reports actually

exist. Rather, CRC’s argument is based entirely on conjecture and speculation that they do.

Moreover, it strains logic to assume that the delinquent third-party private haulers have in fact

prepared reports but then not submitted them to the Department. Rather, the more logical

conclusion is that they have simply failed to create the reports because the City apparently has not

enforced the reporting requirements under the Recycling Ordinance.

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¶ 30 The OIG report found that the Department has failed to enforce the requirement that third-

party private haulers submit reports. With over 70 missing reports, there would appear to be

systemic noncompliance by third-party private haulers in contravention of sections 11-5-220(a)

and 11-5-220(d) of the Recycling Ordinance. We do not know if the Department has used its

enforcement authority under section 11-5-220(e) (id. § 11-5-220(e) (“If the Commissioner notifies

the Department of Business Affairs and Consumer Protection that the annual recycling report ***

has not been filed ***, no private scavenger license *** shall be renewed by the Department of

Business Affairs and Consumer Protection ***.”)) and section 11-5-250 (id. § 11-5-250 (“[A]ny

person who violates this [article] *** shall be subject to a fine ***.”)). Through its FOIA request,

however, CRC seeks to compel the Department to use its enforcement authority to force the

delinquent third-party private haulers to comply with their reporting obligations under the

Recycling Ordinance. But in so doing, CRC seeks to impermissibly expand the portfolio of FOIA

beyond its expressed and intended purpose.

¶ 31 CRC relies on Better Government Ass’n, 2020 IL App (1st) 190038, ¶ 4, where the Better

Government Association (BGA) alleged that the City violated FOIA because it “fail[ed] to inquire

whether the personal text messages and e-mails of the officials named in the requests contained

responsive records.” The City argued that it was not required to search its officials’ personal text

messages and e-mails because they were not public records. Id. ¶ 15. After determining that the

requested records qualify as public records, we found that the City did not perform an adequate

search because, by its own admission, it had not searched the officials’ personal text messages and

e-mails. Then the City argued—like the Department does here—that it is not obligated to search

personal e-mail and text accounts because BGA had not shown “that the accounts were likely to

contain responsive records.” Id. ¶ 34. However, we found that the City did not meet its burden to

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show that it conducted a reasonable search and, thus, the burden did not shift to BGA to provide

evidence. Id. Further, we reasoned that even if the burden shifted to BGA to produce evidence

showing the search was inadequate, BGA produced sufficient evidence to suggest that “some of

the named officials have communicated about public business via text messages.” Id. Additionally,

the evidence presented was “sufficient to require defendants to at least ask its officials whether

they used their personal accounts for public business.” Id.

¶ 32 Relying on Better Government Ass’n, CRC argues that the Department’s search was

inadequate because it never conducted a search with the delinquent third-party private haulers.

We, however, agree, with the Department that Better Government Ass’n is distinguishable because

the search there was inadequate and the requester presented evidence that the records could be

found in the officials’ private e-mails and text messages, whereas here the CRC presented no

evidence to suggest that the delinquent third-party private haulers, despite not having submitted

reports to the City, have in fact created the reports.

¶ 33 Here, the Department does not dispute that reports that exist are public records. Rather, it

contends that it searched its records and produced all hauler reports it had in its possession. Again,

there is no evidence that the delinquent third-party private haulers have in fact prepared hauler

reports but failed to submit them to the Department. We observe that, typically, the evidence

offered by the requester suggests that the record sought actually exists. See, e.g., id. ¶ 33 (requester

“presented some initial evidence that the officials in question used their personal accounts for

public business”); see also New Orleans Workers’ Center for Racial Justice v. United States

Immigration & Customs Enforcement, 373 F. Supp. 3d 16, 37 (D.D.C. 2019) (requester “identified

evidence demonstrating that the defendant ‘ha[d] reason to know’ that at least six other offices

may possess responsive documents” (quoting Valencia-Lucena v. United States Coast Guard, 180

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F.3d 321, 327 (D.C. Cir. 1999)). Here, instead of offering facts to suggest that the delinquent third-

party private haulers have prepared the legally mandated reports but failed to submit them, CRC

merely points to the legal mandate that a third-party private hauler submit a report on an annual

basis to support its position that the Department’s search was inadequate.

¶ 34 We find that neither sections 11-5-220(a) and 11-5-220(d), which mandate the creation and

submission of the report to the Department, nor section 11-5-250, which establishes a fine for a

failure to comply, amount to evidence sufficient to overcome the reasonableness of the

Department’s search. The legal mandate in the Recycling Ordinance is just that; it does not in any

way evidence that the “missing” or delinquent reports have in fact been created. Moreover, the

OIG report indicates that third-party private haulers have not complied with the Recycling

Ordinance and that the Department has not generally used its enforcement power to compel the

third-party private haulers to comply with their reporting obligations under the Recycling

Ordinance. Given that it appears that the Department has not traditionally enforced the Recycling

Ordinance, it is highly probable that the delinquent third-party private haulers likely failed to create

the “missing” reports because they have not been subject to any adverse consequences for

noncompliance. In any case, FOIA is not a mechanism through which other statutes or ordinances

are enforced nor can a violation of another statute or ordinance—like the Recycling Ordinance

here—form the basis for redefining a public body’s obligation under FOIA. FOIA does not

obligate a public body to create a new record. Hamer v. Lentz, 132 Ill. 2d 49, 54 (1989). It stands

to reason then that FOIA does not obligate a public body to compel a nonpublic, third-party entity

to create and submit a record, even if the submission of such record is mandated by law.

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¶ 35 C. Residual Rate and Contamination Data

¶ 36 CRC argues that the circuit court improperly limited the scope of its second request to only

reports and compilations of data as opposed to raw data. CRC’s request specifically asks for

“residual rates and any other contamination data for the Blue Carts, broken down by service

providers.” The Department produced responsive documents for the recycling zones serviced by

Waste Management and Lakeshore. At issue is whether the Department violated FOIA by failing

to produce records of residual rate and contamination data for the zones it services.

¶ 37 The Department relies on the Sauve affidavits. The first affidavit by Sauve stated that

“residual rates and contamination data *** are provided by the vendors to [the Department],” and

the “rates for both Waste Management & [Lakeshore] had been provided.” Sauve further avers

that “[the Department] had provided the responsive documents in its possession concerning the

residual rates and contamination records.” In his second affidavit, Sauve averred that the

Department “does not compile and keep residual rate and contamination data for the recycling

materials collected by [the Department] *** [and] [u]nlike [the Department]’s contractors, [the

Department] does not submit data to itself pursuant to any contracts.” Moreover, Sauve averred

that the Department “does not have a process to produce a comparable residual rate report as

provided by the contractors.”

¶ 38 Because the Department attached the second Sauve affidavit to its reply in support of its

cross-motion for summary judgment, on CRC’s motion to reconsider, the trial court allowed CRC

to file a surreply. CRC attached an affidavit from O’Brien to its surreply, who averred that he is

“aware that the City contracts with other facilities to do the sorting for the blue cart pickups.” He

further averred that he is “aware that the sorting facilities are required to maintain the residual

rate.” Finally, O’Brien averred that given his “experience with researching recycling and residual

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rates in Chicago, all the Department would need to do to obtain the requested data is to call the

sorting facilities and simply ask.” The Department moved to strike O’Brien’s affidavit arguing that

it was not based on personal knowledge and therefore did not comply with Illinois Supreme Court

Rule 191(a) (eff. Jan. 4, 2013). The record does not indicate whether the circuit court ruled on the

City’s motion to strike.

¶ 39 CRC’s argument in its opening brief primarily addresses whether the requested data is a

public record. The Department takes no position on whether the contamination data is a public

record. Assuming that the data qualifies as a public record, the Department contends that Sauve’s

affidavits establish that it does not keep this type of data for the recycling zones it services and that

CRC has not presented any evidence to the contrary. In its reply on appeal, CRC argues, for the

first time, that the O’Brien affidavit proves that the Department can acquire the data from the third

parties it contracts with to sort its recycling.

¶ 40 “[A]n agency cannot improperly withhold records that it does not maintain, and that where

the Government’s declarations establish that a search would be futile, the reasonable search

required by FOIA may be no search at all.” (Internal quotation marks omitted.) Whitaker v.

Department of Commerce, 970 F.3d 200, 207 (2nd Cir. 2020) (citing MacLeod v. United States

Department of Homeland Security, No. 15-cv-1792, 2017 WL 4220398, at *11 (D.D.C. Sept. 21,

2017)). We find that the Department’s affidavits establish that it “does not compile or keep residual

rate and contamination data” for recycling materials it collects from the two zones its services.

(Emphasis added.) Therefore, the Department is neither required to conduct a search nor is it

required to produce additional records. Additionally, we find that CRC forfeited any argument

based on the O’Brien affidavit because it did not raise it in its opening brief. “Points not argued

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are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for

rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 41 Forfeiture aside, we note that O’Brien’s affidavit does not refute Sauve’s assertion that the

Department “does not compile or keep residual rate and contamination data.” Second, CRC failed

to offer a foundation for O’Brien’s statement in his affidavit that the Department could obtain such

information by simply asking the sorting facilities. O’Brien did not point to any contracts,

contractual obligation, or any specific research he may have conducted to come to his conclusion

that the Department could obtain the data by simply asking for it. More importantly, O’Brien did

not explain the basis for his knowledge that sorting facilities are required to determine their

residual rates. Accordingly, the Sauve affidavits stand unrebutted, and the circuit court property

granted summary judgment to the City relating to the residual rate and contamination data.

¶ 42 III. CONCLUSION

¶ 43 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 44 Affirmed.

¶ 45 JUSTICE C.A. WALKER, specially concurring:

¶ 46 I concur with the majority’s conclusion that the City of Chicago Department of Streets and

Sanitation (Department) met its burden under the Freedom of Information Act (FOIA) and that

summary judgment was proper. The Department has conducted an adequate search pursuant to

FOIA by providing the records in its possession. I write separately because, though not required

under FOIA, the Department “ought” to have requested that all third-party private haulers produce

the annual reports. The City of Chicago has the power to regulate public health. Ill. Const. 1970,

art. VII, § 6(a); see also City of Collinsville v. Seiber, 82 Ill. App. 3d 719, 723 (1980). The city

ordinance requires haulers to create and submit reports to the Department. Not only does the city

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ordinance require the haulers to create and submit the reports, but the Department also has the

power to issue fines to any hauler that fails to submit the annual reports. Chicago Municipal Code

§ 11-5-250 (added July 20, 2016).

¶ 47 Here, as related to part one of its FOIA request, the Chicago Recycling Coalition (CRC)

sought reports of the 115 licensed third-party private haulers. The Department only produced

reports from 43 haulers and provided no explanation or invoked any exemption under FOIA for

not producing the reports of the remaining 72 haulers. CRC has suggested that the Department

“just ask” the remaining 72 haulers to send in their annual reports. The Department’s affidavit and

its admission during oral arguments establish that it never attempted to obtain the missing reports

from the haulers.

¶ 48 The adequacy of the public body’s search for public records requested pursuant to FOIA

is judged by a standard of reasonableness and depends upon the facts of each case. The crucial

issue is not whether relevant documents may exist but whether the agency’s search was reasonably

calculated to discover the requested records. Although a public body is not required to perform an

exhaustive search of every possible location, the body must construe FOIA requests liberally and

search those places that are reasonably likely to contain responsive records. Whether a particular

search was reasonable depends on the specific facts and must be judged on a case-by-case basis.

Better Government Ass’n v. City of Chicago Office of Mayor, 2020 IL App (1st) 190038, ¶ 31. The

Department has met its duty pursuant to the FOIA by supplying all the available reports.

¶ 49 While the Department met its legal obligation in conducting a reasonable search, I find it

troubling that more than 63% of city-contracted haulers failed to produce the required reports. It

is also concerning that the Department did not go above its legal duty and simply ask those haulers

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to comply. In the interest of full disclosure, the Department “ought” to have asked the

noncomplying haulers for the relevant information.

¶ 50 JUSTICE ODEN JOHNSON joins in this special concurrence.

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Chicago Recycling Coalition v. City of Chicago Department of Streets & Sanitation,
2023 IL App (1st) 220154

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CH-10848;
the Hon. Caroline K. Moreland, Judge, presiding.

Attorneys Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley
for Geiszler, of Loevy & Loevy, of Chicago, for appellant.
Appellant:

Attorneys Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny
for Kasper, Suzanne M. Loose, and Stephen G. Collins, Assistant
Appellee: Corporation Counsel, of counsel), for appellee.

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