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Monday, December 2, 2013

PAC Finds No "Discovery Exemption" under FOIA

The PAC issued its 17th opinion for 2013 recently, ruling against the public body in PAC Op. 13-017
The City of Berwyn denied a FOIA request for a police report, citing 7(1)(d) of FOIA that exempts law enforcement records.  The City argued that release would interfere with ongoing law enforcement proceedings and deprive a person of a fair trial.  The requester appealed to the PAC, and the City filed a response with additional support for its denial, including that the document should have been requested through discovery by the requester's attorney.  Although not clear in the PAC opinion, it appears that the requester was the subject of the requested police record.
The PAC concluded that the City did not meet its burden of showing by clear and convincing evidence that FOIA prohibited disclosure because the City failed to provide enough detail about the ongoing investigation and how the disclosure of the records would deprive a person of a fair trial. 
The PAC also rejected the City's argument that the requester should obtain the records through discovery, citing two cases from the Court of Appeals for the Fifth Circuit and Federal Circuit as support.  The PAC stated that just because records might not be available through discovery does not mean that they should not be accessible through FOIA.  FOIA contains no discovery or litigation exemption that would protect these records from release. 
In Illinois, it has been an open question whether a party to a lawsuit should be allowed to circumvent the court-approved discovery process just because the opposing party happens to be a public body.  There is certainly an argument that this would grant an unfair advantage to the non-public body party over the public body, since the timeframe for response under FOIA is shorter and there is no restriction on relevancy of documents requested.  There is no Illinois case on point on this issue, as evidenced by the PAC's use of cases from other circuits to support its opinion. 
Although this ruling is binding only on the parties to this opinion, it does provide some guidance to public bodies on the PAC's position on the use of FOIA rather than discovery to obtain documents.
Post Authored by Julie Tappendorf, Ancel Glink


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