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Thursday, July 20, 2017

Updated Law Enforcement Guide to FOIA Released

The Public Access Counselor (PAC) for the Illinois Attorney General recently updated its guidelines for law enforcement agencies in complying with FOIA requests. The updated "FOIA Guide For Law Enforcement" replaces the previous guidelines and includes references and citations to recent cases and PAC opinions involving requests for law enforcement records.

You can access the guide on the Attorney General's website here. That page also includes links to copies of numerous PAC opinions involving requests for law enforcement records, which have been organized by FOIA exemption.

The Guide discusses the following topics, among others:

General Guidelines
  • Presumption of Openness
  • Section 2.15 (Arrest Reports)
  • 9-1-1 Calls
  • Dashboard Camera Video Recordings
  • Section 3(g) (Unduly Burdensome Requests)
  • Costs and Fees under FOIA
  • What is Creation of a New Record?
  • Emails and other Communications on Private Accounts** (see note below)
Section 7 Exemptions
  • 7(1)(a) (prohibited from disclosure by federal or state law, rules or regulations)
  • 7(1)(b) (private information)
  • 7(1)(c) (personal information)
  • 7(1)(d) (law enforcement or administrative enforcement proceedings)
  • 7(1)(e) (security of correctional institutions or detention facilities)
  • 7(1)(f) (predecisional, deliberative communications)
  • 7(1)(n) (adjudication of grievances and disciplinary cases)
  • 7(1)(v) (security plans)
Section 7.5 Exemptions
  • 7.5(k) (Illinois Vehicle Code)
  • 7.5(v) (FOID Act and Concealed Carry Act)
  • 7.5 (bb) (Juvenile Court Act of 1987)
  • 7.5 (cc) (Law Enforcement Officer-Worn Body Camera Act)
This Guide will be helpful for law enforcement agencies (including municipal police departments) in responding to FOIA requests. It could also serve as a resource for general use by public bodies, as many of the topics discussed in the Guide have general applicability beyond law enforcement records. To the extent a public body and/or FOIA Officer has questions about how these guidelines apply to a specific request or situation, they should consult with the public body's attorney for guidance, as is noted on page 1 of the Guide.

**Interestingly, with respect to the topic of electronic communications on private accounts, the PAC concludes that emails/texts pertaining to the transaction of public business are public records even when sent on private accounts. The Guide cites a number of PAC opinions to support that conclusion but does not, however, mention the Champaign v. Madigan case. That case, as you may recall, addressed the appeal of a PAC opinion finding a violation of FOIA when city council texts weren't turned over. Although the court agreed with the PAC that the city violated FOIA, it did so on more limited grounds than relied upon by the PAC. In determining whether electronic communications sent/received by members of a public body on their private devices or accounts are subject to FOIA, the court set out 3 circumstances where those emails/texts on private devices are subject to FOIA, as follows: (1) when forwarded to an official account of the public body; (2) when sent to a majority of the public body; or (3) when sent during a meeting of the public body. 

Shout out to a Deputy Public Access Counselor at the Attorney General's Office for letting us know about the publication of this updated information!

Post Authored by Julie Tappendorf


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