As we reported yesterday, the Public Access Counselor (PAC) issued two binding opinions in November. The second, PAC Opinion 16-009, addressed five FOIA requests from reporters to the Village of Downers Grove, which each sought police records and reports related to former State Representative Ronald Sandack, who lives and works in the Village. As some of you may recall, Sandack resigned from the Illinois House of Representatives in 2016 after allegations of an extortion scandal and evidence of inappropriate online activities. This opinion, while lengthy, is worth a read since it provides some good guidance to public bodies on how the personal privacy exemption works, particularly when the records relate to public officials.
In response to each request, the Village responded with a copy of the incident report but redacted most of the information in the report under Sections 7(1)(b) (private information), 7(1)(c) (personal privacy), and 7(1)(d)(vii) (pending law enforcement proceedings) of FOIA. The responses also denied evidentiary documents under the personal privacy and law enforcement proceedings exemptions. The requesters all submitted requests for review with the PAC to challenge the Village's redaction of the documents.
The Village responded to the PAC's request for unredacted copies for review, and also submitted Supplemental Responses in which it disclosed some portions of the records that had been denied and provided additional records. The Supplemental Responses continued to redact and withhold other portions of the records under the three exemptions it previously cited. The PAC found that some of the allegations were resolved by the additional information that was disclosed in the Supplemental Responses.
As for the redactions under the "private information" exemption, the Village argued that “home address and personal telephone number, Facebook account names, numbers, and URLs, Skype usernames, and account transaction numbers,” were properly redacted based on the private information exemption in 7(1)(b). While the PAC agreed that most of this information fell within the 7(1)(b) private information exemption, it found that the Facebook and Skype account names (which were in Sandack's name) did not. The PAC reasoned that although names are specific to an individual, they are not unique or confidential. Further, the definition of “private information” in FOIA does not exclude names. As such, the PAC found that the Village improperly redacted the Facebook and Skype account names.
The PAC then evaluated the redactions under section 7(1)(c) of FOIA, which exempts “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy…” The Village argued that certain redactions, including Sandack’s statement and birth date were exempt under 7(1)(c). Further, the Village also redacted information relating to the identities of suspects and withheld records that Sandack provided to the police when he reported the crime.
First, the PAC agreed that Sandack’s birth date was exempt from disclosure under 7(1)(c).
Second, in evaluating whether Sandack’s statement and the records he provided to police should be released, the PAC found that Sandack has a diminished right to privacy as a public official. The PAC then balanced the public interest in disclosure of this information versus Sandacks’ interest in privacy.
The PAC determined that interest in disclosure of this interest was strong because Sandack was a public figure who voluntarily engaged in social media use and the information relates to allegations of a crime committed against a public official, particularly where it serves as a factor in the official’s decision to resign. The PAC also noted that there were no alternative means for the requesters to obtain the records.
Nevertheless, in a surprising decision in favor of the Village, the PAC ultimately determined that disclosure of most of the remaining redacted documents would constitute an invasion of Sasndack’s personal privacy. The PAC noted that the records contained personal and specific information about how Sandack became involved with the extortion scheme. The PAC found no legitimate public interest that would outweigh Sandeck’s right to privacy. As such, the PAC found that he Village sustained its burden in proving that this information was exempt under 7(1)(c).
The PAC then evaluated the redactions related to the identities of suspects. The PAC again concluded that the Village properly redacted this information under 7(1)(c) as Sandack was a victim, rather than the target of the investigation. The PAC found that as the suspects had not been arrested or charged with a crime, their right to privacy outweighed any public interest in disclosure of this information.
The PAC found that the Village did not, however, sustain its burden in showing that the e-mails and documents obtained from Western Union and MoneyGram were exempt under Section 7(1)(d)(v) of FOIA. The PAC found that the information reflected routine investigative steps, and not specialized investigative techniques. Further, the PAC found that release of this information would not cause harm to the Police Department. However, the Village did prove that disclosure of the remaining records concerning Facebook, Yahoo, and Skype would cause harm to the Police Department by revealing insights into specialized investigative techniques. The PAC found that information redacted from records regarding a suspect’s online profile and communications with the FBI were specialized investigative techniques that were exempt from disclosure under 7(1)(d)(v).
The PAC further found the Village’s reliance on the privacy rights in the Illinois Constitution of 1970 to be misplaced as Sandack was not a victim of violent crime.
In sum, Opinion 16-009 is interesting in that it found a right to privacy for a public official, despite the diminished privacy rights of elected officials.
Post Authored by Erin Baker, Ancel Glink