author: JUSTICE INGLIS

text:
    MODINE MANUFACTURING COMPANY, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Second District
    No. 2—89—0350
    Opinion filed December 28, 1989.
    Rehearing denied January 29, 1990.

      Roy M. Harsch and William W. Yotis III, both of Gardner, Carton & Douglas, of Chicago (Daniel E O’Connell, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield, and Dorothy M. Gunn and John Marlin, both of Pollution Control Board, of Chicago (Robert J. Ruiz, Solicitor General, and Jan Hughes and Jerald S. Post, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.

      Neil E Hartigan, Attorney General, of Springfield, and Betty Harrop and Joseph R. Podlewski, both of Environmental Protection Agency, of Maywood (Robert J. Ruiz, Solicitor General, and Jan Hughes and Jerald S. Post, Assistant Attorneys General, of Chicago, of counsel), for respondent Environmental Protection Agency.
   JUSTICE INGLIS

delivered the opinion of the court:

Modine Manufacturing Company (Modine) appeals from a final order entered by the Pollution Control Board (Board) dismissing Mo-dine’s permit appeal as a sanction for Modine’s failure to timely file its brief. Modine argues that such a sanction was an abuse of the Board’s discretion and should be reversed. In support of its argument, Modine contends that (1) it filed its brief only five days late; (2) its failure to timely file a brief did not warrant dismissal of its petition; and (3) the sanction imposed was a radical departure from the Board’s policy of allowing late filings. We affirm the Board’s ruling.

Modine owns and operates a manufacturing plant in Ringwood, Illinois, where it fabricates aluminum condensers. Modine applied to the Environmental Protection Agency (Agency) for a permit to operate an infrared oven used in its manufacturing process. The operating permit was denied on the basis that Modine had not demonstrated compliance with certain metal-coating requirements contained in section 215.204 of the Illinois Administrative Code (35 Ill. Adm. Code §215.204 (1985)). On August 13, 1987, Modine timely filed a petition for review of the operating-permit denial. Modine argued that its operations constituted “bonding” rather than “coating” operations and, therefore, were not subject to the coating requirements applied by the Agency.

On August 20, 1987, the Board accepted the matter for hearing. Although a decision was originally due within 120 days, pursuant to section 40 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. llD/z, par. 1040), Modine waived its right to a decision until May 30, 1988. The Agency’s first set of interrogatories and request for production of documents were served on Modine and filed with the Board at the end of August 1987.

On September 21, 1987, the hearing officer issued a scheduling order whereby a hearing was set for December 18, 1987. On September 28, 1987, the Agency wrote to Modine informing it that the Agency had not yet received answers to the interrogatories or the documents requested. On October 7, 1987, Modine wrote to the Agency and informed it that Modine would not be able to comply with the Agency’s discovery request until November 13, 1987, and proposed a new schedule. Modine also filed its first set of interrogatories, document requests, and requests to admit.

On October 12, 1987, the hearing officer, by agreement of the parties, rescheduled the December 18, 1987, hearing for February 10, 1988, and provided that both parties were to respond to each other’s discovery by November 13, 1987. On November 20, 1987, the Agency filed its answers to Modine’s first set of interrogatories and request to admit. On December 9, 1987, the Agency filed a motion to compel Modine to answer the Agency’s first set of interrogatories and produce documents. By agreement of the parties, the hearing officer granted the Agency’s motion to compel and Modine was ordered to comply with the discovery requests by December 18, 1987. On December 18, 1987, Modine filed an unsigned answer to the Agency’s interrogatories, and filed a signed copy on December 29, 1987.

On January 27, 1988, Modine filed a motion to extend pretrial matters and to continue the hearing until April 8, 1988. In its motion, Modine further provided that it waived its right to a decision for an “indefinite period of time.” Over the Agency’s objection, the hearing officer entered an order continuing the hearings until March 9, 1988, and stated that “[t]his order shall not preclude the Respondent from seeking sanctions against Petitioner (if it so chooses) concerning Petitioner’s alleged failure to comply with previous discovery requests.”

At the conclusion of the hearings on March 10, 1988, Modine and the Agency agreed to file briefs in lieu of closing arguments. On March 14, 1988, the hearing officer established a briefing schedule whereby Modine’s brief was due on May 2, 1988," and the Agency’s brief was due on May 23, 1988. Neither brief was filed by the due date. On May 25, 1988, Modine’s counsel wrote the Agency in response to a telephone call from the Agency and said that he would try to work on the brief over the Memorial Day weekend and that he would move for an extension of time.

On July 15, 1988, the Agency wrote to Modine informing it that its brief was 11 weeks overdue and that the Agency would file a motion to dismiss for want of prosecution if the brief was not filed by July 22, 1988, or if by that date Modine did not inform the Agency when its brief would be filed. On July 21, 1988, counsel for Modine wrote a letter to the Agency confirming a July 19, 1988, telephone conversation with the Agency, and stated, “I must admit to having completely forgotten about this brief.” Counsel for Modine stated that the briefing schedule had been misdocketed, and told the Agency, “I am committing to you to have the briefs on your desk by [August 29, 1988.]” No brief was filed by that date. Modine subsequently advised the Agency and the hearing officer that the delay was due to the serious illness of a close relative of the senior attorney in the proceeding, and stated that the brief would be forthcoming.

Because no brief had been filed as of October 6, 1988, the Board on its own motion entered an order noting that it considered the lack of compliance with the hearing officer’s March 14, 1988, briefing schedule “a serious matter.” It further provided that the nature of the issues in the proceeding was such that they needed to be fully briefed. Accordingly, the Board ordered a new briefing schedule, whereby Modine’s brief was due on October 27, 1988, and the Agency’s brief was due on November 17,1988.

Modine again missed the deadline for filing its brief. On November 1, 1988, the Agency filed a motion for sanctions seeking either a judgment by default against Modine and in favor of the Agency, a dismissal of the appeal with prejudice, or an order striking Modine’s brief, in the event it was filed before the Board ruled on the Agency’s motion. On November 2, 1988, Modine filed its brief with a motion for leave to file instanter. In its motion for leave to file instanter, and in its response to the motion for sanctions, Modine stated that its failure to meet the October 27 deadline was due to the press of other business and a word-processing malfunction. Modine argued that it kept the Agency fully apprised of these developments. However, the Agency denied that it received any word from counsel for Modine until after the motion for sanctions was filed with the Board.

On November 17, 1988, the Board issued an order denying Mo-dine’s motion for leave to file its brief instanter, granting the Agency’s motion for sanctions, and dismissing the case with prejudice. The Board said that it imposed the sanction because it believed that Modine had unreasonably failed to comply with the orders of the hearing officer and Board. The Board noted that no motions were filed with the hearing officer, and no contact was made with the Board, during the 22-week period between the original due date of Modine’s brief (May 2, 1988) and the date the Board issued its order resetting the briefing schedule (October 6, 1988). Although the Board acknowledged Modine’s statements regarding the reasons for delay, the Board stated that Modine still should have filed a motion for extension of time. Further, the Board noted:

“The Board has been the object of criticism from many observers for its perceived failure to resolve cases quickly, and has itself recognized the need to tighten its procedures. The Board needs to control its docket, and will not tolerate the delay of a petitioner who files its brief 26V2 weeks after the original due date without ever moving the Board for an extension of time, or even contacting the Board.”

On December 21, 1988, Modine filed a motion to reconsider. On January 6, 1989, the Agency filed a response arguing that the dismissal was proper. Before making its ruling, the Board ordered the hearing officer to respond to claims made by Modine that it had obtained two extensions of time during the summer of 1988 from the hearing officer. In response, the hearing officer informed the Board that, while Modine’s attorney did contact him at various times regarding the brief, he understood the contacts to be a matter of courtesy to explain Modine’s tardiness in the preparation of its brief. The hearing officer explained that none of the conversations with Modine were represented to him or understood by him as being oral motions, and no oral extensions of time were granted by him.

On March 9, 1989, the Board issued an order denying Modine’s motion for reconsideration and upholding its dismissal of the case. In so doing, the Board stated:

“The record contains no written motions for extensions, and the hearing officer states that he did not grant any oral extensions of time. Given the record, offset only by Modine’s claim that it believed that it had received extensions from the hearing officer, the Board finds that there were no formal extensions of the briefing schedule. Thus, as pointed out in the Board’s November 17, 1988 order dismissing this proceeding, Modine’s brief was filed 26V2 weeks late. The Board will not tolerate such delay.”

Modine filed a timely petition for review, contending that the Board’s finding was an abuse of discretion.

We first consider Modine’s contention that the delay to be considered for purposes of sanctions is five days, rather than 26V2 weeks. Modine argues that by entering the October 1988 order revising the briefing schedule, the Board reset the time for determining delay from May 2, 1988, as set by the hearing officers’ March 1988 order, to October 27, 1988. However, this argument takes the sanction of the Board out of context. While it is true that Modine missed the October 27 deadline by less than a week, this does not negate the fact that Modine was repeatedly late in its filings throughout this proceeding. Discovery deadlines were missed; personal commitments made by Modine’s counsel to the Agency were disregarded; the order of the hearing officer was ignored; and, finally, the Board-imposed deadline was not met. In ruling upon Modine’s motion to reconsider, the Board stated, “[t]he sanction imposed upon Modine was based upon the repeated violations, and not solely upon Modine’s failure to file its brief in accordance with the Board-imposed deadline.”

Modine has cited no cases to support its position that only the final act of tardiness may be considered. The Board has cited to Brantley v. Delnor Hospital, Inc. (1970), 120 Ill. App. 2d 185, 192, for the proposition that flagrant and continued infringements of procedures and rules cannot be tolerated. We agree with the Board and find that the repeated nature of Modine’s conduct may be taken into account in determining the type of sanction to impose.

We next address Modine’s contention that its failure to timely file a brief did not warrant dismissal. It is not disputed that the Board has the authority under its rules to dismiss a suit with prejudice where a party unreasonably refuses to comply with a procedural rule or fails to comply with an order. (35 Ill. Adm. Code §107.101(c) (1985).) This court has held that the sanction of dismissal should be invoked only in those cases where the actions of a party show a deliberate, contumacious, or unwarranted disregard of the court’s authority. Unity Ventures v. Pollution Control Board (1985), 132 Ill. App. 3d 421, 434.

Modine argues that the record does not show any contempt or disregard of the Board’s authority. It explains, and attempts to excuse, the delay between the original due date (May 2, 1988) and the date the Board issued its order resetting the briefing schedule (October 6, 1988) as a misunderstanding between it and the hearing officer. Modine further argues that its failure to meet the October 27 deadline was “fully explained” and that “every effort” was made to inform both the Agency and the Board of the delay. We disagree. We believe that Modine should have at least contacted the Board at some point during the 261/2-week period or, preferably, filed a motion with the Board for an extension of time. Modine’s failure to do so constituted an unreasonable and deliberate disregard of the Board’s authority. As such, dismissal was a possible sanction available to the Board.

Modine argues that dismissal was inappropriate as a sanction because the Agency never claimed that it had been prejudiced by Mo-dine’s failure to file a timely brief. Modine cites Tinsey v. Chicago Transit Authority (1986), 140 Ill. App. 3d 546, 548-49, in support of its argument. In Tinsey, the defendant failed to produce certain information to the plaintiff until the pretrial conference. As a sanction, the trial court ordered a new trial. On review, the appellate court found that the order was an abuse of the trial court’s discretion, in part, because the plaintiff failed to show any prejudice resulting from the defendant’s action. Tinsey, 140 Ill. App. 3d at 549.

We believe that Tinsey is inapplicable to the case at bar. While the Agency may not have been prejudiced by the delay, the Board clearly was. The record indicates that at the end of the hearing on March 10, 1988, the parties waived closing arguments in favor of preparing briefs. In its October 6 order, after receiving no briefs for 22 weeks, the Board stated that “the nature of the issues in this proceeding is such that the Board deems it necessary that the issues be fully briefed.” It was the Board, rather than the Agency, that requested the briefs and determined that it could not proceed to make a decision without them. Therefore, the party most likely to be prejudiced by Modine’s failure to timely file a brief is the Board, not the Agency. We must recognize the Board’s authority, and need, to control its docket and tighten its procedures. As such, the absence of a prejudice argument on behalf of the Agency cannot bar the Board from imposing dismissal as a sanction.

Modine further argues that the Board’s action of dismissing the petition with prejudice constituted punishment and was unwarranted as the most severe sanction available. While it is true that the purpose of imposing sanctions is to compel cooperation rather than to punish the noncompliant party, this court has recognized that it is also appropriate to consider the need for using sanctions as a general deterrent to provide a strong incentive for all litigants to fully and accurately comply with procedural rules. Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 323.

In the case at bar, Modine was able to delay the proceeding below for 261/a weeks simply by failing to abide by the orders of the hearing officer and Board. We agree with the Board that such actions are “serious” and should be dealt with accordingly. Modine argues that “[t]he Board could have clearly and forcefully demonstrated its displeasure with Modine by striking its Post-Trial Brief and at the same time making a decision on the merits.” However, this would have provided very little deterrent to anyone, much less Modine. Further, such a sanction would be inappropriate considering that the Board determined that it was necessary to have the briefs in order to make a ruling.

We lastly consider Modine’s contention that the sanction imposed was a radical departure from the Board’s policy of allowing late filing and, therefore, was an abuse of discretion.

An administrative agency may not arbitrarily disregard its prior custom or practice. (Alton Packaging Corp. v. Pollution Control Board (1986), 146 Ill. App. 3d 1090, 1094.) While Modine did offer evidence of the Board’s practice concerning delays in the past, it failed to offer any evidence of prior practice involving delays of the magnitude or circumstances presented here. Indeed, the Board stated that it was unsure whether it had ever even encountered such a delay, much less established a custom or practice with regard to it. Because we find that no prior practice has been established, Modine’s argument that the Board must “warn” of changes in that practice need not be addressed.

The imposition of sanctions rests largely with the discretion of the administrative agency and will not be disturbed on review absent a clear abuse of that discretion. (Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 323; Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, 1047.) The question on review is not whether this court would decide upon a more lenient sanction were it to determine initially what discipline would be appropriate. (Feliciano v. Illinois Racing Board (1982), 110 Ill. App. 3d 997, 1005.) Rather, this court is to determine whether in view of the circumstances presented, the Agency in opting for the particular sanction acted unreasonably or arbitrarily. (Feliciano, 110 Ill. App. 3d at 1005; Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411.) Given that Modine repeatedly violated the hearing officer and Board orders, and was able to delay a decision in the proceedings for 26V2 weeks, we find that dismissing the petition as a sanction was reasonable and appropriate.

Accordingly, we affirm the order of the Board.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID P. GIERE, Defendant-Appellant.
    Second District
    No. 2—88—0784
    Opinion filed December 15, 1989.

      John F. Donahue, of Law Offices of Donahue, Sowa & Bugos, of Lisle, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, David P. Giere, was charged by indictment in the circuit court of Du Page County with one count of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3) and one count of driving while under the influence of alcohol (DUI) (Ill. Rev. Stat., 1986 Supp., ch. 951/2, par. 11 — 501(e)). Following the dismissal of the DUI count prior to trial, defendant was found guilty in a jury trial of reckless homicide and was sentenced to a two-year term of imprisonment.

On appeal, defendant raises four issues: (1) whether the trial court erred in admitting evidence of his blood-alcohol content where he did not consent to having his blood tested; (2) whether the trial court erred in denying defendant’s request for a pretrial hearing as to the admissibility of the blood-alcohol test results; (3) whether the evidence established beyond a reasonable doubt that defendant committed reckless homicide; and (4) whether the trial court abused its discretion in sentencing defendant to two years’ imprisonment.

The following facts were adduced at trial. Defendant’s prosecution stems from an incident on August 17, 1987, in Naperville, Illinois, where the vehicle he was driving collided with a tow truck in which the deceased, Gordon McLelland, was the only occupant. On the night of the incident, defendant had been at the Two Rivers Sports Bar prior to the accident. According to Mary Koch, the bartender who had served defendant, defendant had consumed three beers and a shot of Grand Marnier liqueur while at the bar between 10 p.m. and 1 a.m. She opined that defendant was intoxicated and refused to serve him further. Defendant left shortly after 1 a.m.

Mr. Chris Rials, who was driving north on Washington Street in Naperville after 1 a.m. on August 17, 1987, observed defendant drive his van out of the parking lot of the bar and proceed north on Washington Street, following Rials. Defendant continued to follow Rials until Washington became a four-lane street, at which time defendant passed Rials’ vehicle. According to Rials, defendant’s vehicle previously was two to three car lengths behind his, and defendant had his bright lights on. At the point when defendant passed him, Rials was travelling at approximately 45 miles per hour and defendant was driving 10 to 15 miles per hour faster than Rials. The speed limit is 40 miles per hour at that point in the roadway.

When defendant’s van was approximately 200 yards ahead of Rials’ vehicle, Rials observed it apparently strike something in the roadway. Rials did not see any lights or any objects ahead of the van prior to the collision. Rials observed no skid marks behind the van at the collision site. The road was wet, but visibility was good. An unidentified witness told one of the police officers at the scene that he observed a tow truck sitting in the northbound lane without any lights on and that the van struck it.

Another witness, who resided in a house adjacent to Washington Street, stated that he did not observe the tow truck sitting on Washington Street, but did see defendant’s van driving northbound prior to the accident. After hearing a crash, the witness went to his window and observed the tow truck, with no lights on, rolling and defendant’s van sitting in the street.

Defendant’s van struck the rear of the tow truck, sending it rolling into a nearby townhouse. The tow truck became engulfed in flames and its driver, Gordon McLelland, died as a result of the fire.

According to Dale Cibula, whose vehicle had been towed by McLelland earlier that evening at about 12:45 a.m., McLelland was drinking a can of Miller Lite beer and there were a couple of empty Miller Lite beer cans on the floor of the tow truck as well as two unopened cans. Cibula smelled the odor of alcohol on McLelland and was of the opinion that McLelland was intoxicated. He had driven with McLelland to a Shell station near the accident scene where his car was towed. The headlights on the tow truck were malfunctioning. While he was walking home, Cibula heard the collision. Five Miller Lite beer cans were observed on the roadway at the scene of the accident. The parties stipulated that the postmortem results of McLelland’s blood-alcohol test indicated a blood-alcohol content of .18.

Numerous witnesses, including police officers, an emergency room nurse, and an emergency room physician who treated defendant, testified that defendant was under the influence of alcohol. Defendant had bloodshot, glassy eyes, slurred speech, and the strong odor of alcohol on his breath. Defendant told one of the officers that he had shared a couple bottles of wine with his wife earlier in the evening. Defendant, however, did not testify at trial.

Although defendant refused to consent to the withdrawal of a blood sample when asked by the arresting officer, an emergency room nurse, Mary Ellen Reeder, took two samples from defendant’s left arm at the request of the arresting police officer. Reeder used a non-alcohol solution to disinfect defendant’s arm prior to drawing the blood samples. The samples indicated that defendant’s blood-alcohol content was .21. According to Reeder, there was an intravenous solution (IV) in defendant’s right arm at the time she drew the blood from defendant’s left arm.

Although the evidence is not entirely clear as to which arm was involved, paramedics stated an IV was started oh defendant at the accident scene. There was no evidence offered by defendant to show that the blood test was taken from the same location as the IV. An isopropyl alcohol solution was used to disinfect defendant’s arm prior to starting the IV. According to one of the paramedics who attended to defendant at the scene, isopropyl alcohol evaporates from the skin, and Dr. Phillip Seme testified that isopropyl alcohol has a minimal effect on a test for blood-alcohol content. Apparently blood was also drawn from defendant at the hospital but prior to Reeder’s drawing blood, and it is not known from which arm the blood was drawn or whether an alcohol solution was used prior to drawing the blood or whether the blood was drawn from the same location on both occasions.

While the common-law record and the evidence at trial do not indicate that defendant was initially arrested for DUI, the record of the hearing on the motion to suppress statements does disclose that he was placed under arrest for DUI in the ambulance prior to reaching the hospital. As the State does not dispute that the initial arrest was for DUI, we will accept that as fact even though the parties have not properly supplemented the record with the trial court record of this charge.

Prior to trial, defendant filed a motion in limine seeking to bar admission of the blood-test results based, inter alia, on noncompliance with section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95^2, par. 11 — 501.1) and the rules and regulations of the Department of Public Health and on defendant’s failure to consent to the test. The State moved to strike defendant’s motion, arguing that section 11 — 501.2 and the Department’s rules and regulations are inapplicable to a reckless homicide prosecution and that defendant’s consent is unnecessary for a blood sample in a reckless homicide case. Defendant requested a hearing on his motion in limine which was denied. The trial court, however, stated that it would consider the admissibility of the blood-alcohol tests during trial and under the ordinary rules of admissibility.

We first address the issue of whether it was error to admit evidence of defendant’s blood-alcohol content absent his consent to having his blood tested. Defendant contends that section 11 — 501.1 of the Vehicle Code requires consent before a blood test may be completed and that such requirement applies here, where defendant was arrested for DUI but prosecuted for reckless homicide.

A compulsory blood test, taken without the consent of the donor, does not violate any constitutional right of the donor, and absent a more limiting statutory provision, is admissible as evidence of intoxication. (People v. Todd (1975), 59 Ill. 2d 534, 545, 322 N.E.2d 447; Village of Algonquin v. Ford (1986), 145 Ill. App. 3d 19, 21, 495 N.E.2d 595.) Furthermore, this court has held that there is no statutory requirement of consent before blood-alcohol test results may be admitted in a DUI prosecution since that requirement was abolished by the General Assembly effective January 1, 1982. People v. Brown (1988), 175 Ill. App. 3d 725, 727, 530 N.E.2d 71; Village of Algonquin v. Ford (1986), 145 Ill. App. 3d 19, 22, 495 N.E.2d 595; see also People v. Eaves (1988), 174 Ill. App. 3d 911, 914-15, 529 N.E.2d 277.

In this case, defendant, citing People v. Romano (1985), 139 Ill. App. 3d 999, 487 N.E.2d 785, argues, contrary to People v. Brown and Village of Algonquin v. Ford, decided subsequent to Romano and cited above, that section 11 — 501.1 requires consent before a blood test may be admitted into evidence for a reckless homicide prosecution following an arrest for DUI. There is nothing, however, in either section 11 — 501 or section 11 — 501.1 that requires consent before a blood test may be taken in a DUI or reckless homicide prosecution. To the extent that People v. Romano, relying on People v. Frazier (1984), 123 Ill. App. 3d 563, 463 N.E.2d 165, holds that section 11-501.1(c) requires the consent of the individual before blood tests could be taken (Romano, 139 Ill. App. 3d at 1007, 487 N.E.2d at 791), we do not follow that holding, noting, in addition, that section 11— 501.1(c) was amended in 1985 by Public Act 84 — 272, effective January 1, 1986, which took out the language “none should be given,” relied on by the Frazier court.

Section 11 — 501.1, as currently in effect, is a provision which governs only the implied consent to take a blood-alcohol test of a motor vehicle driver arrested for a DUI violation under section 11 — 501 or a similar provision of a local ordinance and the statutory summary suspension of the privilege to operate a motor vehicle for the refusal to take the test or the disclosure upon testing of a blood-alcohol content of .10 or more. Section 11 — 501.1 is not implicated here as statutory summary suspension is not involved or at issue.

We observe that while another statutory provision, section 11— 501.2 of the Vehicle Code, governs the admissibility of evidence of blood-alcohol tests, by its terms it applies only to a DUI offense under section 11 — 501 or a similar local ordinance and does not apply to a prosecution for reckless homicide, as is the case here. (People v. Murphy (1985), 108 Ill. 2d 228, 232-34, 483 N.E.2d 1288.) The ordinary standards of admissibility apply in reckless homicide prosecutions. (Murphy, 108 Ill. 2d at 234, 483 N.E.2d at 1290.) As defendant does not raise herein any issue of the admissibility of the evidence, but only contends that section 11 — 501.1 requires his consent before a blood test is taken, we hold for the foregoing reasons that section 11 — 501.1 does not require defendant’s consent to a blood test in this case.

Defendant next contends that it was error to deny him a pretrial hearing on his motion in limine contesting the admissibility of the blood-alcohol test results. At the time the motion was made, the DUI charge was still pending against defendant. However, prior to trial, that charge was dismissed.

A trial judge has the discretion to reserve ruling on evidentiary matters until they are presented at trial (People v. Escobar (1988), 168 Ill. App. 3d 30, 43, 522 N.E.2d 191), and it is also within the court’s discretion to determine whether the interests of justice require that the hearing of a preliminary matter be conducted outside the hearing' of the jury. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §104.3, at 33 (4th ed. 1984).) In exercising its discretion, the trial court must weigh the potential for prejudice derived from the jury’s hearing the evidence against such a trial concern as waste of time caused by taking the same testimony twice. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §104.3, at 33 (4th ed. 1984).

Here, the trial court expressed its concern that a hearing would require all of the witnesses to testify at the hearing and again at the trial. The court could, on the other hand, identify little, if any, potential prejudice from the jury hearing the foundational evidence necessary for the introduction of the blood-alcohol test results during the trial. We believe the trial court exercised its discretion properly under these circumstances. After concluding that the blood-alcohol test results in this reckless homicide prosecution need not meet the requirements of either section 11 — 501.1 or section 11 — 501.2 of the Vehicle Code, the court correctly determined that the blood-alcohol test results need only meet the ordinary standards of admissibility. (People v. Emrich (1986), 113 Ill. 2d 343, 351, 498 N.E.2d 1140.) As such, it was a proper exercise of discretion to consider the admissibility of such test results during trial only, particularly where conducting a pretrial hearing on the issue of admissibility would have been duplicative. The record discloses the State presented a proper foundation for admission of this evidence and defendant was provided an adequate opportunity at trial to cross-examine the witnesses to challenge the foundation.

Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt of reckless homicide. The State’s burden of proof in a criminal trial is to prove guilt beyond a reasonable doubt, not beyond any possibility of doubt. (People v. Madej (1985), 106 Ill. 2d 201, 218, 478 N.E.2d 392.) When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant; rather, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Brackett (1987), 117 Ill. 2d 170, 176-77, 510 N.E.2d 877.

A person commits feckless homicide when he unintentionally kills a person while driving* an automobile and the acts which caused death are performed recklessly so as to create the likelihood of death or great bodily harm to some person. (People v. Mikyska (1989), 179 Ill. App. 3d 795, 800, 534 N.E.2d 1348; People v. Sleboda (1988), 166 Ill. App. 3d 42, 55, 519 N.E.2d 512.) Reckless conduct occurs when an individual consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in such a situation. (Sleboda, 166 Ill. App. 3d at 55, 519 N.E.2d at 520.) While evidence of intoxication does not alone establish recklessness (People v. Romano (1985), 139 Ill. App. 3d 999, 1012, 487 N.E.2d 785), it is probative of recklessness, and improperly driving an automobile while intoxicated may constitute reckless conduct (Sleboda, 166 Ill. App. 3d at 55, 519 N.E.2d at 521). The reckless homicide statute now provides that being under the influence of alcohol at the time of the alleged violation “shall be prima facie evidence of a reckless act.” (Ill. Rev. Stat. 1987, ch. 38, par. 9—3(b); People v. Jackson (1987), 118 Ill. 2d 179, 190, 514 N.E.2d 983.) Additionally, although excessive speed, by itself, is not always sufficient to sustain a conviction of reckless homicide, a charge of reckless homicide may be justified by a combination of excessive speed and other circumstances which would indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others, and the circumstances are such that a reasonable person would act differently under the same situation. People v. Evans (1984), 124 Ill. App. 3d 634, 639-40, 464 N.E.2d 1083.

In the present case, the evidence clearly establishes that defendant was intoxicated at the time of the accident. Several witnesses testified that he had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred speech. Numerous witnesses opined that defendant was intoxicated shortly after the accident. The bartender, Mary Koch, testified that defendant consumed three beers and a shot of liqueur shortly before the accident and that she had refused to serve him any more alcoholic beverages due to his intoxication. Defendant admitted to drinking wine earlier in the evening. Moreover, defendant’s blood-alcohol was determined to be .21. According to Dr. Serne, a .21 blood-alcohol content would cause confusion, lack of coordination, improper judgment of distances and obfuscation of the senses.

Furthermore, Chris Rials testified that defendant was travelling 15 to 20 miles per hour over the speed limit at the point he passed him and that defendant continued to increase the distance between his vehicle and that of Rials as they both drove north on Washington Street. This was shortly before defendant’s vehicle collided with that of the deceased. Additionally, the roadway was wet at the time of the accident.

It is clear that defendant, in driving his vehicle 15 to 20 miles per hour in excess of the speed limit, on a wet roadway, while his blood-alcohol content was .21, acted recklessly and that such reckless conduct was likely, under the circumstances, to cause death or great bodily harm to another and did in fact cause the death of another. Based on the evidence, the State proved defendant guilty beyond a reasonable doubt of reckless homicide.

Defendant argues, however, that he did not act recklessly where the tow truck was sitting in his lane with no lights on in a stretch of the road with minimal lighting. In so arguing, defendant relies on People v. LaCombe (1982), 104 Ill. App. 3d 66, 432 N.E.2d 672, People v. Friesen (1978), 58 Ill. App. 3d 180, 374 N.E.2d 15, and People v. Crego (1946), 395 Ill. 451, 70 N.E.2d 578. Each of those cases is distinguishable from the present case, however, in that in those cases there was insufficient evidence to establish recklessness as to the conduct of the particular defendant. Cases of this kind will turn upon the particular facts in the case. (Friesen, 58 Ill. App. 3d at 185, 374 N.E.2d at 19.) In the cases relied on by defendant, unlike the instant case, the defendants testified to the circumstances surrounding the occurrence and the conduct of the victim just prior to the occurrence. Despite evidence that McLelland was intoxicated and his tow truck was sitting in the highway without lights, we conclude that the evidence establishes that defendant’s reckless actions caused the death of McLelland. We are satisfied that, under the evidence here of defendant’s excessive speed under the conditions, his intoxication, and his unobstructed view of the four-lane roadway where McLelland was situated, his recklessness caused the death of the tow truck driver. See People v. Mikyska (1989), 179 Ill. App. 3d 795, 802, 534 N.E.2d 1348.

Defendant’s last contention is that the imposition of a two-year term of imprisonment was an abuse of sentencing discretion. In this regard, defendant argues that the trial judge arbitrarily denied probation because of his feelings about drunk driving cases, did not equally weigh all the necessary factors, and emphasized a factor, the victim’s death, which “the legislature already considered in making the defendant eligible for probation.” Defendant further emphasizes that, but for a DUI arrest in 1985 for which he successfully completed supervision, he has no prior criminal record and has completely abstained from alcohol following hospital treatment and an after care program voluntarily entered into immediately after the accident. Defendant maintains that he should not be sentenced to the penitentiary and the cause should be remanded for a new sentencing hearing.

Contrary to defendant’s assertion, the record does not show that the trial judge arbitrarily denied probation because defendant fell within the trial judge’s category of disfavored offenders, as was the case in People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168, relied on by defendant. Rather, he considered and weighed factors in aggravation and mitigation and concluded that, based on defendant’s prior DUI arrest, his intoxication in this case, and society’s concern with the consumption of alcohol by drivers, a sentence of probation or conditional discharge would deprecate the seriousness of the conduct and be inconsistent with the ends of justice. The record does not reflect that the trial judge imposed a penitentiary sentence because of his personal views about alcohol or arbitrarily denied probation. (See People v. Keyes (1988), 175 Ill. App. 3d 1013, 1018, 530 N.E.2d 708.) Further, there is nothing in the record to support defendant’s statement that the trial judge emphasized a factor which the legislature considered in establishing the penalties.

Finally, we are satisfied that the trial judge weighed all the relevant factors in making his sentencing determination. While the facts that defendant has had a good life prior to this incident and is not likely to repeat his failure are factors to be considered by the trial judge, they are not conclusive. (People v. Waud (1977), 69 Ill. 2d 588, 595-96, 373 N.E.2d 1.) We cannot say that the trial judge abused his discretion in imposing a two-year term of imprisonment, the minimum term of imprisonment for a Class 3 felony, in the present case. See People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE DUNN JUSTICE McLAREN,

text:
    WILLIAM BAUDIN, Plaintiff-Appellant, v. THE CITY OF CRYSTAL LAKE, Defendant-Appellee.
    Second District
    No. 2—89—0240
    Opinion filed December 15, 1989.

      McLAREN, J., concurring.
    W. Randal Baudin, of Madsen, Baudin, Stolfi & Sugden, of Crystal Lake, for appellant.

      John L. Cowlin, of Cowlin, Ungvarsky, Kukla & Curran, of Crystal Lake, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

On June 20, 1988, plaintiff, William Baudin, filed an information request with defendant, City of Crystal Lake (City), regarding the policies and procedures of the Crystal Lake police department in the handling of information and the follow-up of a hit-and-run accident. Defendant denied plaintiff’s request, claiming that the information was exempt from disclosure under Illinois law. After plaintiff unsuccessfully appealed to the City, he then sought disclosure pursuant to the Illinois Freedom of Information Act (Information Act or Act) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.) by filing a complaint for a declaratory judgment and injunctive relief on July 21, 1988. Plaintiff specifically sought a de novo review and an in camera inspection of the disputed material to determine what must be disclosed to him under the Act. Ill. Rev. Stat. 1987, ch. 116, par. 211(e).

On February 8, 1989, the trial court, after hearing the arguments of counsel, denied plaintiff’s request for an in camera inspection and granted defendant’s motion for summary judgment. Plaintiff, an attorney acting pro se, appeals, contending that it was error for the trial court to refuse to inspect the materials in camera and to grant summary judgment to defendant because the trial court could not have made an independent, de novo determination of discloseable matter based only on the conclusory affidavits of defendant. We agree that the affidavits are merely conclusory and that the trial court had an inadequate factual basis for granting summary judgment for defendant. We reverse the judgment of the circuit court and remand the cause with instructions.

Plaintiff originally sought information concerning the policies and procedures of the police department with respect to: (a) handling and receiving information from telephone callers regarding automobile accidents (hit-and-run); (b) receiving information in person concerning an accident; (c) follow-up on information received concerning automobile accidents; and (d) investigation guidelines with respect to automobile accidents, including hit-and-run accidents. Plaintiff also sought excerpts of radio tapes of the City’s police department for June 17, 1988, for the period between 8 p.m. and 8:30 p.m., and for June 18, 1988, from 9:15 a.m. to 9:45 a.m.

In response to plaintiff’s request, defendant, through its freedom of information officer, Martin K. Vanags, sent a letter to plaintiff on June 23, 1988, denying plaintiff’s request and claiming that items (a) through (d) were exempt from disclosure under section 7(w) of the Information Act, which exempts information “related solely to the internal personnel rules and practices of a public body.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(w).) Vanags’ letter also stated that the radio tapes were exempt from disclosure under section 7(e) of the Act, which exempts records of “State and local law enforcement agencies and correctional agencies that are related to the detection and investigation of crime.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(e).) Plaintiff appealed the decision to the city manager, Joseph Misurelli, as head of the public body. Misurelli affirmed the decision to deny disclosure, stating the same reasons for the denial.

Plaintiff sought review in the circuit court. On July 28, 1988, the circuit court entered an agreed order which denied plaintiff’s request for injunctive relief concerning preservation of the tape excerpts, based on the representation and assurance by the City that the tape excerpts and the policies and procedures would be preserved during the pendency of the court proceedings and that they were to be tendered to the court for an in camera inspection as the court or plaintiff requested and as “otherwise provided by law.”

On August 18, 1988, the City filed its answer and sought dismissal of plaintiff’s action. On August 30, 1988, Baudin filed a motion to compel the City to produce the disputed materials for purposes of an in camera inspection by the trial court.

On September 12, 1988, the City filed a motion for summary judgment. Plaintiff filed his motion to strike the City’s motion for summary judgment as well as the supporting affidavits which plaintiff claimed were conclusory; in the alternative, plaintiff moved to deny the defendant’s motion for summary judgment.

The hearing to address these motions was periodically continued, and, on January 13, 1989, an order was entered setting the cause for further arguments on plaintiff’s motion to compel, defendant’s motion for summary judgment, and plaintiff’s motion to strike defendant’s affidavits and motion for summary judgment. Ultimately, the circuit court denied plaintiff’s request for an in camera inspection and granted defendant’s motion for summary judgment.

The central issue to be determined is whether the procedures utilized by the circuit court were sufficient to provide plaintiff an adequate due novo determination of whether the requested information was discloseable under the Act; as a corollary, it must be determined whether the City met its burden of showing that the materials requested were exempted under the Act.

The purpose of the Information Act is to open governmental records to the light of public scrutiny. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) In order to foster governmental accountability and an informed citizenry, the public policy of this State encourages a free flow and disclosure of information between the government and the people; the Information Act is to be liberally construed to achieve this goal, and there is a presumption that public records are open and accessible, subject only to exemptions that are to be read narrowly. Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378, 538 N.E.2d 557.

The restraints on access to information are to be regarded as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of governmental activity that affect the conduct of government and the lives of people. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) If any public record is exempt from disclosure under section 7 of the Act (Ill. Rev. Stat. 1987, ch. 116, par. 207) and it contains material which is not exempt, the public body shall delete the exempted material and make the remaining information available for inspection and copying. Ill. Rev. Stat., 1988 Supp., ch. 116, par. 208.

Under the Information Act, the burden of proof is on the City to establish that the material in question is exempt from disclosure; however, governmental agencies cannot clothe material regarding the affairs of government with an exemption from public disclosure by ipse dixit statements that the material is exempt. (Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 475-76, 511 N.E.2d 759.) Reliance upon self-determination by public officials and employees as to what should or should not be disclosed to the public would frustrate the purposes of the Information Act. 158 Ill. App. 3d at 476.

Section 11(f) of the Act requires the circuit court to consider the matter de novo and requires the court to conduct whatever in camera inspection of the requested records it finds appropriate to determine whether the records or any part of them may be withheld under the Act. (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 211(f).) Whether the material is exempt under the Act is necessarily a factual determination to be made by the court based on its examination of the affidavits and, if required, based on an examination of the documents themselves in camera. Hoffman, 158 Ill. App. 3d at 476-77.

In determining whether matter is exempt under the Act, a case-by-case approach is clearly warranted. (See City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 228, 494 N.E.2d 896; Reinstein v. Police Commissioner (1979), 378 Mass. 281, 290-91, 391 N.E.2d 881, 886.) An agency such as a police department cannot simply take the position that, since it is involved in investigatory work and some of its records are exempt from disclosure under the Act, every document in its possession somehow comes to share in that exemption. (See Bougas v. Chief of Police (1976), 371 Mass. 59, 66, 354 N.E.2d 872, 878.) The classification of information as “law enforcement” or “investigatory” does not necessarily foreclose access unless it can be shown, in a particular case, that disclosure would interfere with law enforcement and would, therefore, not be in the public interest. (McClain v. College Hospital (1985), 99 N.J. 346, 355-57, 492 A.2d 991, 996.) Routine review of governmental functions is not sheltered, but when the inquiry departs from the routine and focuses with special intensity upon a particular party, an investigation is under way. 99 N.J. at 355-57, 492 A.2d at 996.

Based on its particular facts, this case is one of first impression in this court. There is a paucity of Illinois case law dealing "with the exemptions claimed by the City in the present case. We shall attempt to fill this void. Where necessary, we have considered persuasive decisions from other jurisdictions; in particular, we have considered decisions of the Federal courts, where the Illinois Act closely parallels Federal law. Griffith Laboratories U.S.A. v. Metropolitan Sanitary District (1988), 168 Ill. App. 3d 341, 345, 522 N.E.2d 744.

Plaintiff contends that the City failed to meet its burden of showing that it was entitled to the exemptions based on the City’s conclusory affidavits; plaintiff argues that, in the absence of an in camera inspection of the requested materials, the court could not have made an informed decision to grant summary judgment to the City. Summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The trial court is to construe the record before it strictly against the movant. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055, 374 N.E.2d 1302.) Summary judgment is a drastic remedy and, as such, must be granted only when the movant’s right to judgment as a matter of law is clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867; Allstate Insurance Co. v. Tucker (1989), 178 Ill. App. 3d 809, 812, 533 N.E.2d 1004.

The City’s motion for summary judgment alleged that the information requested by plaintiff (items (a) through (d)) was exempt from disclosure under section 7(e) of the Act because the information concerns records of “State and local law enforcement agencies that are related to the detection and investigation of crime or the security and operations of correctional institutions.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(e).) Alternatively, the City’s affidavits allege that the information requested was exempt from disclosure because it concerns matter “related solely to the internal personnel rules and practices of a public body.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(w).) In support of its motion, the City appended the affidavit of Martin K. Yanags. He stated that plaintiff’s request for information (items (a) through (d)) related entirely to the “internal investigative rules and practices of the Crystal Lake Police Department regarding automobile accidents,” because the information “specifically” concerned “the proper use of complaint memo forms and reporting procedures, the procedures for communications and record department personnel, and the proper procedure for preparing departmental reports subsequent to investigations by police personnel.” The radio tapes (item (e)) were characterized as containing “the verbal reports of alleged criminal activity that is or has occurred in the City of Crystal Lake and are used for investigative purposes by the Police Department.” The affidavit of Joseph Misurelli, who affirmed Yanags’ decision to deny disclosure, was essentially a reiteration of Yanags’ affidavit.

We find from our examination of the City’s affidavits that they were entirely conclusory and merely recite or paraphrase the language of the statute without giving any clue as to the discloseability of the requested documents. As such, they provided an insufficient factual basis to permit the trial court to grant summary judgment to the City, particularly in the absence of an in camera inspection of the disputed material. The burden is on the governmental agency to prove that specific documents fit within one of the statutory exemptions. To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing. Antonelli v. Drug Enforcement Administration (7th Cir. 1984), 739 F.2d 302, 303, citing Vaughn v. Rosen (D.C. Cir. 1973), 484 F.2d 820, 826-28 (Vaughn I).

As the Vaughn court explained, it is obvious that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information. (484 F.2d at 823.) Therefore, aside from legal argument,, where the sole support regarding the contents of documents and their exemption is contained in a conclusory affidavit, courts must no longer accept such conclusory or generalized allegations of exemption and must require a relatively detailed analysis of the documents in manageable segments. Vaughn, 484 F.2d at 823, 826.

When an agency meets its burden by means of affidavits, in camera review is not necessary. (Hayden v. National Security Agency (D.C. Cir. 1979), 608 F.2d 1381, 1387.) However, the affidavits will not suffice if the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. 608 F.2d at 1387.

We observe that, in the present case, one of the exemptions claimed by defendant was embodied in a statutory provision which has been amended during the pendency of this case in the trial court, a fact apparently unnoticed by the parties. (Pub. Act 85 — 1357, eff. Jan. 1, 1989 (amending Ill. Rev. Stat. 1987, ch. 116, par. 207(e)).) The case must be disposed of by the reviewing court under the law as it exists at the time its decision is rendered. To the extent that defendant claims an exemption under section 7(e) regarding the “investigation and detection of crime,” defendant’s claim is mooted by the deletion of that language that formerly applied to law enforcement agencies, and that aspect of the former statutory provision is no longer at issue. (See People v. B.D.A. (1984), 102 Ill. 2d 229, 233, 464 N.E.2d 1073, 1075.) If the City is to sustain its burden of showing that it is entitled to an exemption because the material pertains specifically to the detection and investigation of crime, it must undoubtedly do so under one of the specific provisions of section 7(c) of the amended Act (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 207(c)). On remand defendant will have to demonstrate what, if any, provision in that section is applicable. We decline to assume the role of advocate for the government on appeal, and we will act only on the record as it presently exists. See People v. Bartlett (1988), 175 Ill. App. 3d 686, 691, 530 N.E.2d 90.

Though we have determined that the City’s affidavits were conclusory and that the trial court had an insufficient basis to grant summary judgment for defendant, our inquiry is not yet complete. Because the trial court must hold further proceedings consistent with the views expressed in this opinion, we believe that a recurring question will necessarily arise regarding the standard by which the circuit court is to determine the applicability of the remaining exemption claimed by defendant under section 7(w) of the Act, information related solely to the “internal personnel rules and practices of a public body,” in this case, a law enforcement agency.

Defendant contends that the affidavits in support of its motion for summary judgment established that the information requested in items (a) through (d) of plaintiff’s request is related to the internal personnel rules and practices of a public body and that the material involved the detection, investigation, evaluation, and processing of automobile accident complaints filed with the City. Furthermore, defendant argues that the policies and procedures are not written to regulate the public and do not embody any “secret law” of the police department; rather, the withheld information refers to investigative techniques in the form of prescribed rules and practices. Defendant maintains that the documents requested by plaintiff are internal, directional regulations which have no public utility. Defendant’s characterization of the materials as investigative, internal personnel practices is, of course, conclusory. Defendant cites no authority for the proposition that such a characterization, even if valid, automatically confers an absolute exemption on the disclosure.

The Illinois exemption for “internal personnel rules and practices” is similar to the Federal Freedom of Information Act provision commonly known as “Exemption 2.” (5 U.S.C.A. §552(b)(2) (West 1977); see Hardy v. Bureau of Alcohol, Tobacco & Firearms (9th Cir. 1980), 631 F.2d 653, 655.) The Hardy court determined that materials instructing law enforcement agents on how to investigate violations concerned internal personnel practices. 631 F.2d at 656. But see Hawkes v. Internal Revenue Service (6th Cir. 1972), 467 F.2d 787, 796-97 (internal personnel rules and practices refer only to employee-employer relations and working conditions; however, exemption found in other provisions of the Act).

In interpreting the coverage of Exemption 2, the Hardy court held:

“[L]aw enforcement materials, disclosure of which may risk circumvention of agency regulation, are exempt from disclosure. In so ruling we recognize the distinction between ‘law enforcement’ and ‘administrative’ materials. See, e.g., Hawkes v. Internal Revenue Service, 467 F.2d 787, 794-95 (6th Cir. 1972). ‘Law enforcement’ materials involve methods of enforcing the laws, however interpreted, and ‘administrative’ materials involve the definition of the violation and the procedures required to prosecute the offense. All administrative materials, even if included in staff manuals that otherwise concern law enforcement, must be disclosed unless they come under one of the other exemptions of the act. Such materials contain the ‘secret law’ which was the primary target of the act’s broad disclosure provisions.” 631 F.2d at 657.

Finding certain law enforcement materials of the Internal Revenue Service discloseable under section (a)(2)(C) of the Federal Act (5 U.S.C.A. §552(a)(2)(C) (West 1977)), which concerns administrative staff manuals and instructions to staff, the Hawkes court described the law enforcement process and the limits of disclosure in the following terms:

“Law enforcement is the process by which a society secures compliance with its duly adopted rules. Enforcement is adversely affected only when information is made available which allows persons simultaneously to violate the law and to avoid detection. Information which merely enables an individual to conform his actions to an agency’s understanding of the law applied by that agency does not impede law enforcement and is not excluded from compulsory disclosure under (a)(2)(C).
Far from impeding the goals of law enforcement, in fact, the disclosure of information clarifying an agency’s substantive or procedural law serves the very goals of enforcement by encouraging knowledgeable and voluntary compliance with the law. Such clarifying information is found in agency rulings made public; it is also found in many cases in manuals and instructions like those sought here which are addressed specifically to agency personnel. It may be found in the criteria for investigative action; in standards for evaluation and so forth. Materials providing such information are administrative in character and clearly discloseable ***.
The exception for law enforcement materials contained in (a)(2)(C) is, as suggested above, a very narrow one and is to be applied only where the sole effect of disclosure would be to enable law violators to escape detection. Thus, for example, there is reason to exempt from compulsory revelation details of a selective enforcement policy made necessary by a lack of sufficient investigatory personnel. Similarly interrogation techniques or the mechanics of an F.B.I. ‘stakeout’ arrangement properly could be excluded from disclosure ***.” (Emphasis in original.) Hawkes v. Internal Revenue Service, 467 F.2d at 795.

In Hawkes, the United States Court of Appeals for the Sixth Circuit announced a variation of the test for excluding law enforcement materials from mandatory disclosure. The court stated that only “information which, if known to the public, would significantly impede the enforcement process” falls within the exemption in section (a)(2)(C). (Emphasis in original.) 467 F.2d at 795.

In Crooker v. Bureau of Alcohol, Tobacco & Firearms (D.C. Cir. 1981), 670 F.2d 1051, a definitive test has been applied to “Exemption 2” regarding personnel rules and practices of an agency. Crooker traced the evolution and development of the law regarding the disclosure of investigatory and law enforcement materials. The United States Court of Appeals for the District of Columbia Circuit held in Croolcer that certain portions of the Bureau’s agents’ training manual entitled “Surveillance of Premises, Vehicles and Persons — New Agent Training” were exempt from disclosure under the internal personnel rules and practices exemption because they were developed predominantly for internal use and disclosure would significantly risk circumvention of the agency’s regulations or statutes. (670 F.2d at 1075.) In so holding, the court observed that the manual was used for predominantly internal purposes; it was designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques; it involved no “secret law” of the agency; and, it was conceded that public disclosure would risk circumvention of the agency’s regulations.

In formulating a two-pronged test of “predominant internality” and disclosure significantly risking circumvention of an agency’s regulations or statutes, the court relied on the Supreme Court’s language in Department of the Air Force v. Rose (1976), 425 U.S. 352, 364, 369-70, 48 L. Ed. 2d 11, 23, 26, 96 S. Ct. 1592, 1600, 1603, as well as on the expression “predominant internality” used by Judge Leventhal in Jordan v. United States Department of Justice (D.C. Cir. 1978), 591 F.2d 753, 783-84 (en banc) (Leventhal, J., concurring). See also Vaughn v. Rosen (D.C. Cir. 1975), 523 F.2d 1136, 1150-51 (Vaughn II) (Leventhal, J., concurring).

Judge Leventhal stated:

“Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation. That composite presents a matter that involves solely internal personnel rules and internal practices of an agency for purposes of making Exemption 2 applicable.” Jordan, 591 F.2d at 783 (Leventhal, J., concurring).

Judge Leventhal further explained:

“[W]hen what is involved are internal instructions to such officials ***, and revelation would permit circumvention of law and regulations by the regulated and there is no substantial valid external interest, there is the essential quality of predominant internality ***.” 591 F.2d at 783 (Leventhal, J., concurring).

The Crooker test has been adopted by several appellate courts. (See cases cited in Hobart Corp. v. Equal Employment Opportunity Comm’n (S.D. Ohio 1984), 603 F. Supp. 1431, 1450, vacated (1985), 716 F. Supp. 307.) The United States Court of Appeals for the Seventh Circuit has cited the Crooker test with approval, pointing out that it has now been codified at 5 U.S.C. § 552(b)(7)(E) (1988). (Kaganove v. Environmental Protection Agency (7th Cir. 1988), 856 F.2d 884, 889.) We find the Crooker test applicable to the present case and hereby adopt it as the standard to determine whether investigatory or law enforcement materials should be disclosed under section 7(w) of the Illinois Information Act (Ill. Rev. Stat. 1987, ch. 116, par. 207(w)). It is likely that the Crooker test may also be applicable to certain provisions of section 7(c) of the Act (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 207(c)). However, that precise question is not presently before us.

To summarize, we hold that: (1) the City has not met its burden of showing that it was entitled to the claimed exemptions; (2) the City’s affidavits were conclusory and constituted an insufficient basis for the trial court to grant summary judgment for the City; and (3) when a governmental agency such as defendant here believes that materials sought under our Freedom of Information Act are within an exempt category of investigatory or law enforcement materials as described herein, it should submit to the circuit court a detailed affidavit describing how disclosure significantly risks circumvention of the law or of the agency’s regulations. Where “investigatory” or “law enforcement” materials are involved, if the agency claims an exemption under the internal policies and practices provision, the test to determine whether the material is to be disclosed is the Crooker test. If a document for which disclosure is sought meets the test of “predominant internality” and if the disclosure significantly risks circumvention of the agency’s regulations or of statutes, the material is exempt from mandatory disclosure.

Upon remand, the trial court must make a de novo review of the agency’s classification decision, and the burden is on the agency to justify nondisclosure. The trial court shall require the agency to create as full a public record as possible concerning the nature of the documents and the justification for nondisclosure without compromising the secret nature of the information. If the affidavits show with reasonable specificity why the documents fall within the claimed exemption under the test announced here, then summary judgment is appropriate without in camera review. The affidavits must be sufficient to allow adversarial testing. If the agency fails to make a sufficient showing by affidavit to permit a responsible de novo review, the trial court may order in camera review of the documents. In such a case, those portions not covered by affidavit or containing “secret law” may be ordered disclosed. (See Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d at 657.) The circuit court shall order the release of segregable portions of documents that do not fall within the claimed exemption. (See Hayden v. National Security Agency, 608 F.2d at 1384.) The indexing of documents is not required unless the plaintiff brings a motion to that effect under the new provisions found in section 11(e) of the Act (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 211(e)).

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded -with directions.

Reversed and remanded with directions.

UNVERZAGT, RJ., concurs.

JUSTICE McLAREN,

concurring:

I concur in the majority opinion. However, I believe one aspect of the opinion needs greater emphasis. The placement of detailed information in an affidavit is necessary if the trial court is to be sufficiently apprised of the nature and extent of the information contained in the contested documentation. Disclosure of such information in an affidavit may foreseeably result in disclosure of the information sought by the plaintiff. The defendant, in attempting to keep such information from the plaintiff, will find it extremely difficult to prepare affidavits that give the court sufficient information to determine that a privilege exists while simultaneously constricting the information to safeguard nondisclosure via the affidavit.

The trial court should be hesitant in determining a privilege exists based solely on the affidavits submitted by the defendant, for without an in camera review there is no external means to verify the truthfulness of the affidavits submitted by the defendant. I therefore believe that trial courts, except in rare instances, should not determine that a privilege exists without an in camera review of the contested documentation.

“The proof of the pudding is in the tasting.”


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH A. WARD, Defendant-Appellant.
    Second District
    No. 2—88—0442
    Opinion filed December 20, 1989.

      Josette Skelnik and Mary Robinson, both of Robinson & Skelnik, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendant, Joseph A. Ward, was found guilty of the offense of residential burglary and sentenced to serve a term of seven years in the Department of Corrections. Defendant appeals, contending that he was denied a fair trial by the admission into evidence at trial of plea-related discussions he initiated with the police and by remarks by the prosecutor insinuating that the defendant’s alibi witness had been paid to testify.

The testimony at trial revealed the following facts. On June 2, 1987, at approximately 4:17 a.m., a man made an unauthorized entry to the home of Stewart and Karen Gilbert and removed property belonging to John O’Connor, who was living with the Gilberts. Karen Gilbert, who had been asleep on the living room couch and who was awakened by the unauthorized entry, described the intruder as having blond hair to his shoulders, medium build, and wearing blue jeans but no shirt. Earlier in the evening she had observed a man matching that description staring at her from outside her home. As the intruder went through the Gilbert residence, Karen was able to observe the sides of the man’s face for a few seconds. After the man exited the residence, the police were called, and Karen gave them the above description. Karen admitted that right after the incident, she told the police that she had kept her eyes closed when the front door opened.

Defendant was apprehended a short time later and brought to a nearby gas station to be viewed by Mrs. Gilbert. Although she was fairly positive that the defendant was the man she saw in her home, she wanted to wait to be sure. Defendant agreed to be taken to the police station to be photographed and fingerprinted. He was then released.

On June 3, 1987, after viewing a photographic lineup for approximately 15 seconds, Mrs. Gilbert selected the defendant’s photograph as a picture of the individual who had been in her home the early morning hours of June 2, 1987.

On June 20, 1987, defendant was arrested and charged with the residential burglary of the Gilbert residence on June 2, 1987. Defendant was questioned by Detective T.J. Strickland, who advised him of his Miranda rights and explained that he wished to question him about the residential burglary charge. Defendant responded that he had been at the Walnut Tap when the burglary occurred. Strickland asked the defendant how he knew what time the burglary occurred, to which the defendant responded that he assumed it occurred at night and that he had been at the Walnut Tap between the hours of 11 p.m. and 12:30 a.m. Defendant denied being in the area of the Gilbert residence. When Strickland told defendant that Mrs. Gilbert had been sleeping on the couch and had identified him, defendant told Strickland that he knew a lot of narcotics dealers in Elgin and would like “to work this off.” Strickland told the defendant that the police could not make any deals, and the only thing he could do was to tell the State’s Attorney that the defendant had cooperated. Defendant admitted that he made the statement because he wanted to go home.

Defendant’s alibi witness was Glen Negler. According to Negler, he was with the defendant at Wiese’s Boulevard Tap until approximately 4:30 a.m. on June 2, 1987. The bar was only open till 4 a.m. but it took them a while to get out of the parking lot. After leaving the bar, Negler dropped the defendant off by a baseball field.

On cross-examination, Negler was asked when he was first approached about being a witness for the defendant and by whom. He explained that he had first been contacted by Rick Stahl, an investigator for the public defender’s office on March 3, 1988, a few days prior to trial. On that same day, Negler also spoke with the prosecutor and Detective Strickland. Negler could not remember being asked how he happened to remember the events of June 1, 1987, or telling the prosecutor and Strickland that Rick Stahl had told him about the events of that night. After he testified that no one had contacted him about the case prior to March 3, 1988, the prosecutor asked, “Mr. Negler, how much are you getting paid to testify?” The trial court sustained an objection to the question, and the parties went into chambers for a conference regarding the matter.

During the conference, the prosecutor indicated that during her interview with Negler, he had told Detective Strickland and her that he was getting paid for testifying and asked them how he was supposed to be paid. The prosecutor contended that those comments showed a bias or interest on the part of the witness in favor of the defendant.

The parties returned to the courtroom, and the trial judge ordered the prior question of the prosecutor stricken, and the jury was instructed to disregard it. Negler was then further cross-examined by the prosecutor as follows:

“Q. Mr. Negler, isn’t it a fact that on March 3 of 1988 at approximately 5:40 p. m. while Detective Strickland and I were interviewing you, you asked us how you were supposed to get paid for testifying?
A. No.
Q. You never asked how you were getting paid?
A. No.
Q. Did you — .
A. I figured on my own from what I know from a subpoena you would get an amount of money for showing up from the court, but I did not ask you that question.
Q. Didn’t you ask or didn’t you tell Detective Strickland and me that you were told that you would get paid $15 to come and testify today?
A. I knew that on my own. I don’t know the exact amount, but I know myself how much you get, somewhere in that range.
Q. Did you tell Detective Strickland and me something along the lines of getting paid for testifying for coming to save Joe's hide, or words to that effect?
A. No, not that I recall.
Q. Mr. Negler, you just said no, not that I recall. Does that mean you didn’t say it or does that mean you didn’t recall saying it?
A. No, no, no.
THE COURT: All right. Which, sir? You don’t recall or you didn’t say it?
THE WITNESS: No, nothing. I didn’t say nothing.
THE COURT: I’m still not sure of your answer. Is your answer that you did not say that or you don’t recall saying that?
THE WITNESS: I don’t recall saying that to her.
THE COURT: All right. Thank you.
Q. [By Ms. Gavins, assistant State’s Attorney]: So you may have said it?
A. No. I don’t recall saying that to you personally.
Q. Do you recall saying anything at all to Detective Strickland and me about getting paid as a witness?
A. No.
Q. Does that mean you don’t recall or you didn’t say that?
A. I don’t recall saying that to you.
Q. So you might have said it?
A. No. I don’t recall saying it to you.
Q. Does that mean you didn’t say it?
THE COURT: It means if he did say it, he doesn’t recall.”

According to the defendant, he had been at the Elgin boat launch with friends, Laura Lombardo and Bill Craft, when he decided to buy more beer. He got a ride to a liquor store from Glen Negler whom he saw driving by in his van. Due to the lateness of the hour, all the liquor stores were closed, so defendant and Negler went to Wiese’s Boulevard Tap, which was open until 4 a.m. They stayed there until closing, after which Glen dropped him off at the road leading to the boat launch. As he walked toward where his friends were, he saw a police officer talking to Laura and Bill. He was just standing in the weeds listening to the conversation when he made a noise. The officer saw him and yelled at him, at which point defendant ran. Defendant explained that he ran because he had some marijuana in his pocket. He was apprehended and taken to the gas station to be viewed by Karen Gilbert. Defendant denied entering the Gilbert residence on the morning of June 2,1987.

On rebuttal, Detective Strickland testified that at the end of the interview on March 3, 1988, Negler asked him when he would get his money. Negler stated that he expected to get $15 and told Strickland that he had been given that figure from Rick at the public defender’s office. In addition, however, Negler also told Strickland that “Joe Ward better pay him for saving his ass this time.” Strickland acknowledged that witnesses who are subpoenaed to court do receive compensation of approximately $15 for the time spent in court.

On surrebuttal, Rick Stahl testified that on March 2 or 3, 1988, he served Glen Negler with a subpoena, advising him that he was needed to testify on behalf of the defendant. Negler told him that if his court appearance necessitated that he miss work, he would have to be paid for testifying. Stahl told Negler that he would receive approximately $15 in transportation fees but that the public defender’s office could not pay a witness to testify.

During the State’s closing argument, the prosecutor stated as follows:

“And when Detective Strickland, after talking for a while, finally says Karen Gilbert wasn’t asleep, she saw you as you walked by that couch, she identified you, what does he do? What does he do? He slumps, the head goes down. He says let’s make a deal. Let me work this through. I know drug dealers. Let’s make a deal, ladies and gentlemen. Make a deal for what? His instinctive reaction when he knew he was caught was to try and make a deal.”

Later, in rebuttal argument, the prosecutor stated:

“I submit, ladies and gentlemen, if you didn’t commit the offense, you would not jump at the point where you’ve been told you were identified and say, hey, let’s make a deal. No. You’d say she’s wrong, something along those lines, but not let’s make a deal, let me work this off, I know some drug dealers.
Ladies and gentlemen, I’m going to ask you again when you retire to return a verdict of guilty and tell Joseph Ward no deals.”

The jury returned a verdict finding the defendant guilty of residential burglary, and the trial court sentenced him to seven years in the Department of Corrections. This appeal followed.

Defendant contends, first, that he was deprived of a fair trial by the admission of Detective Strickland’s testimony that after defendant had been informed that he had been identified by Karen Gilbert, he told Strickland that he knew quite a few narcotics dealers in the Elgin area and he would like to “work this off.” Defendant argues that his statement constituted a plea-related discussion and is thus protected by Supreme Court Rule 402(f) (107 Ill. 2d R. 402(f)), which prohibits the admission into evidence of plea-related discussions. Supreme Court Rule 402(f) provides in pertinent part as follows:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (107 Ill. 2d R. 402(f).)

The purpose of this rule is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussions at his peril. (People v. Friedman (1980), 79 Ill. 2d 341, 351.) A determination as to whether a statement is plea related and thus inadmissible under Supreme Court Rule 402(f) must be made on a case-by-case basis. People v. Friedman (1980), 79 Ill. 2d 341, 351-52.

In determining whether or not a statement is plea related, our supreme court has found the applicable analysis to be as follows: first, whether the accused exhibited any subjective expectation to negotiate a plea, and second, whether this expectation was reasonable under the totality of the objective circumstances. (Friedman, 79 Ill. 2d at 352-53.) Keeping in mind that the facts peculiar to each case determined whether the statements therein were plea related, we will examine the cases relied on by the parties.

In Friedman, the defendant was charged with theft by deception. A month after his indictment, he spoke by telephone with Stan Kaiser, an investigator for the office of the Attorney General. At defendant’s trial, Kaiser testified that defendant inquired about making a deal and that he would rather go to a Federal prison than a State prison. Kaiser informed the defendant that he had no control over that. In holding that defendant’s statement to Kaiser was an inadmissible plea-related statement, our supreme court stated:

“In the present case, defendant’s unsolicited statement was an offer to enter negotiation, stating generally the terms upon which defendant would be willing to bargain. We cannot agree with the State that an essential element of a plea discussion is the requirement that the statement sought to be excluded be made ‘as an integral part of a bona fide negotiation’ with the appropriate parties in attendance. The fact that the party to whom this statement was made did not have the actual authority to enter negotiations is not, standing by itself, sufficient to render the statement admissible. [Citation.] Defendant could have reasonably assumed that Kaiser was an appropriate party to whom he could convey his offer to bargain. [Citation.]
Nor can we agree that the parties must be seated at the negotiating table before our rule applies. A statement made as an offer to enter negotiation is indistinguishable from a statement made at an advanced stage of the negotiation process in terms of its impact upon a jury. Statements related to either stage of this process are equally devastating in the trial of the accused. In determining whether a statement is plea related, we do not require ‘a preamble explicitly demarcating the beginning of plea discussions.’ [Citation.] But where a preamble is delivered, such as defendant’s inquiry related to ‘making a deal’ in the present case, it cannot be ignored. [Citation.] This is a clear indication of the defendant’s intent to pursue plea negotiations.” (79 Ill. 2d at 352.)

The supreme court did agree with the State that there is a distinction between a statement made in furtherance of a plea discussion and an otherwise independent admission, stating as follows:

“Where a defendant’s subjective expectations are not explicit, the objective circumstances surrounding defendant’s statement take precedence in evaluating defendant’s subsequent claim that the statement was plea related. Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.” Friedman, 79 Ill. 2d at 353.

However, not all statements made in hopes of some concessions are necessarily plea discussions. (People v. Victory (1981), 94 Ill. App. 3d 719, 722.) In Victory, Officer Geiseman testified that after defendant was arrested for armed robbery and armed violence, he was transported to the Du Page County jail. While en route to the jail, the defendant stated to him that he realized he was charged with a Class X felony for which he could get a maximum of 30 years. Defendant further stated that he could not “afford to take an armed robbery charge, and that he would [be willing to] accept 10 years, and would the State’s Attorney be willing to plea bargain.” (Victory, 94 Ill. App. 3d at 721.) Officer Geiseman advised him that he did not know and that the defendant should contact the State’s Attorney. Officer DeVires, the other officer transporting the defendant to jail, testified that the defendant said something to the effect that it was a Class X felony, and he wondered “what type of arrangement could be made with the State’s Attorney’s Office.”

In determining that the defendant’s statements were not plea related and, therefore, properly admitted, this court, addressing the first part of the test set forth in Friedman, whether the accused exhibited a subjective expectation to negotiate a plea, stated as follows:

“The testimony at trial was that defendant’s statement at issue was made to arresting officers within hours after the crime en route to the jail and subsequent to his having made a substantially exculpatory statement to those officers and having been apprehended by them in possession of the victim’s property after a chase. His statement, in part, ‘would the State’s Attorney be willing to plea bargain,’ indicates to us that he knew the State’s Attorney was the one who had authority to negotiate. He did not ask the officers to make contact with the State’s Attorney for him, to convey to the State’s Attorney any offer to plea bargain nor did he testify at trial what his expectations were. We characterize the defendant’s comment to these officers, in this context, as a question expressing his concern about the length of time of possible incarceration designed to elicit their opinion on that rather than to initiate plea negotiations. In this sense, the defendant was not asking these officers to plea bargain or convey any plea offer to the State’s Attorney, but was determining if the State’s Attorney did plea bargain to soothe his anxiety over the possible sentence he might serve. Coupled with his statement that he could ‘get a maximum of 30 years’ and ‘he would accept 10 years,’ his failure to pursue plea discussions with the officers and the absence of a request to convey anything to the State’s Attorney, lends support that this is an admission showing guilty knowledge rather than a subjective expectation or attempt to enter plea discussions.” 94 Ill. App. 3d at 723-24.

In Victory, this court distinguished People v. Friedman on the basis that in Friedman, the defendant made a specific offer to an investigator with whom the defendant had prior conversations about the case against the defendant, whereas in Victory, it is apparent from the defendant’s own statement that he knew the officers had no authority to negotiate with him. Moreover, nothing the officers said or did could be interpreted as initiating plea discussions, and the defendant never asked the officers to communicate with the State’s Attorney on his behalf. Therefore, we found that the defendant did not have a reasonable expectation that he was either negotiating a bargain or initiating plea discussions to be conveyed to the State’s Attorney. Victory, 94 Ill. App. 3d at 724.

In People v. Tennin (1984), 123 Ill. App. 3d 894, this court was again asked to determine whether a defendant’s statement was plea related and, therefore, improperly admitted. Detective Steven Anderson testified that while he was interrogating the defendant just after his arrest, he talked to the defendant about a person named “Pena Boy,” who was suspected of an unrelated crime. Anderson stated:

“ ‘After I gave him the statement and we were bringing him back to the cell, he stated did I know Pena Boy and I said yes. I said, “Where is he at?” He said, “I want to make a deal.” I said, “I don’t make deals.” ’ ” 123 Ill. App. 3d at 896.

After examining several decisions, including People v. Friedman (1980), 79 Ill. 2d 341, this court, in determining that the defendant’s statement, “I want to make a deal,” was not plea related and therefore not violative of Supreme Court Rule 402(f), stated as follows:

“Defendant’s subjective expectations in the case at hand are not explicit when we look to his sole statement in the record concerning negotiation, i.e., T want to make a deal.’ After Detective Anderson testified to this statement, defendant did not seek to explain outside the presence of the jury what his state of mind was in making this statement. Although an accused’s subsequent account of his prior subjective mental impression cannot be the sole determinative factor [citation], it is a factor that can be considered in determining his subjective intent. Since defendant’s subjective expectations are not explicit, we must focus on the objective circumstances surrounding defendant’s statement to determine if it is plea-related.
*** Defendant here has not made manifest any indication to plead guilty or what the terms are under which he would be willing to bargain. We cannot assume that every statement by a defendant to the effect of ‘making a deal’ is plea-related. There are other possible explanations underlying a motivation to make a ‘deal,’ such as a defendant negotiating for his release without a cash bond or on a low bond, or the dropping of charges against him in return for information he might supply. Not all statements made in the hopes of some concession are necessarily plea discussions. [Citation.] On this record, the defendant has not demonstrated a subjective expectation to negotiate a plea and we find no error in admission of his statement.” 123 Ill. App. 3d at 897-98.

Based upon the record before us, we are convinced that the defendant has not demonstrated a subjective expectation to negotiate a plea. The fact that defendant did not use the words “I want to make a deal” is not determinative either way. (See Tennin, 123 Ill. App. 3d at 898.) However, although defendant indicated that he had information about narcotics dealers, the record is unclear as to the purpose he was offering the information. Defendant never stated or otherwise indicated that he was willing to plead guilty to the charge against him. (See Friedman, 79 Ill. 2d at 353.) The defendant argues that his statement that he would like to “work this off” indicated that he was not seeking to have the charges dropped in exchange for the information but rather was seeking an alternative to a jail sentence. Defendant never explained what “work this off” meant. Rather, defendant admitted that he had made the statement so that he could go home.

As we have previously stated, not all statements made in the hopes of some concessions are plea related. Defendant’s use of the ambiguous phrase “work this off” does not sufficiently demonstrate that he was initiating plea discussions. Rather, it is just as compelling to conclude from the record that he was attempting to trade information about narcotics dealers for the dropping of the charge against him (Tennin, 123 Ill. App. 3d at 898) or that he just wanted to go home, as defendant himself admitted.

Both the State and the defendant in this case have been granted leave by this court to cite additional authority. The defendant has cited People v. Connolly (1989), 186 Ill. App. 3d 429, and the State has cited People v. Burns (1989), 188 Ill. App. 3d 716. In Connolly, the Appellate Court for the Fourth District in relying on People v. Friedman (1980), 79 Ill. 2d 341, determined that the defendant's inquiry as to whether deals could be made in Mason County was plea related and, therefore, not admissible. Neither Tennin nor Victory was discussed or cited in Connolly. In Burns, the same panel in the fourth district, citing Friedman and People v. Tennin, determined that defendant’s statement to the arresting officer that “ ‘he could help out,’ that he could ‘do someone in Wisconsin’ as long as he were not ‘thrown in jail’ ” could not be characterized as plea negotiations and was admissible. Burns, 188 Ill. App. 3d at 719.

One district of the appellate court is not in all instances bound to follow the decisions of other districts of the appellate court. However, there are compelling reasons to do so unless a district has made a determination of its own contrary to that of another district, or there is a split of authority among the districts. (In re K.E. (1987), 151 Ill. App. 3d 1055, 1057, rev’d on other grounds (1988), 118 Ill. 2d 544.) We are mindful of the dictate of People v. Friedman that such cases must be decided on their own facts. (Friedman, 79 Ill. 2d at 351-52.) Given that this court has previously determined that similar statements are not plea related, we are not obligated to follow People v. Connolly. See People v. Burns (1989), 188 Ill. App. 3d 716; People v. Tennin (1984), 123 Ill. App. 3d 894; People v. Victory (1981), 94 Ill. App. 3d 719.

We conclude, therefore, that the defendant’s statement was not plea related and was properly admitted.

Defendant also contends that insinuations by the prosecutor that Glen Negler, defendant’s alibi witness, had been paid by the defense to testify denied him a fair trial.

The record reflects that this line of questioning by the prosecutor was for the most part not objected to by the defendant, nor was it raised in defendant’s post-trial motion. Nevertheless, the defendant maintains that this court should consider this issue as “plain error” (107 Ill. 2d R. 615(a)), relying on People v. Starks (1983), 116 Ill. App. 3d 384. In that case, on appeal, the defendant raised issues relating to the State’s cross-examination of witnesses and its closing argument, although much of what was raised on appeal had not been objected to at trial. The reviewing court elected to invoke the “plain error doctrine” because the record showed the commission of errors which deprived the defendant of a fair trial. 116 Ill. App. 3d at 389.

After reviewing the record in this case, we find no error in the cross-examination of Negler as conducted by the prosecutor in this case. Defendant asserts that when Negler testified that he expected to be paid for testifying, it was clear that he was referring to the $15 witness fee that he was to receive. However, on rebuttal, Detective Strickland testified that, in addition, Negler told him that he expected the defendant to pay him for “saving his ass.” What the prosecutor was attempting to show was that in addition to the $15 witness fee Negler was to receive, he had also stated in the presence of the prosecutor and Detective Strickland that he also expected to be paid by the defendant. When Negler did not recall that part of the conversation, Detective Strickland was called to testify on rebuttal to that part of the conversation. Viewing the record as a whole, we find no evidence or insinuation by the prosecutor that the public defender’s office had offered to pay Negler to testify.

In the cases relied on by the defendant (People v. Emerson (1983), 97 Ill. 2d 487, and People v. Beringer (1987), 151 Ill. App. 3d 558), the prosecutor offered no evidence to support statements in his closing argument that the defense had fabricated a defense theory (Emerson, 97 Ill. 2d 487) or to substantiate the State’s cross-examination of a defense witness as to whether the witness had been coached to say what the defense wanted and as to whether he had told the prosecutors he would say whatever they wanted in exchange for money (Beringer, 151 Ill. App. 3d 558). In the case before us, the testimony of Detective Strickland substantiated the State’s allegation that Negler had sought money in exchange for his testimony separate and apart from the $15 witness fee he knew he would be receiving from the public defender’s office.

The latitude permitted on cross-examination to establish bias is within the trial court’s discretion. (People v. Testa (1984), 125 Ill. App. 3d 1039, 1046.) Moreover, a prosecutor has a duty to discuss the witnesses and their credibility. (People v. Burba (1985), 134 Ill. App. 3d 228, 236.) Since Negler was providing the defendant with an alibi, the prosecutor here would have been remiss if she had not sought to establish that Negler had a monetary motive for his testimony. Since no error occurred, the “plain error doctrine” is not applicable. 107 Ill. 2d R. 615(a).

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.