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Wednesday, March 20, 2019

City Did Not Waive Claim to Cite Additional Exemptions in FOIA Lawsuit

It is rare that we see a FOIA challenge go to court in Illinois - most challenges or appeals of a FOIA decision by a public body make their way to the Attorney General's Public Access Counselor's office (PAC).  Recently, an Illinois Appellate Court issued an opinion in a FOIA challenge and ruled in favor of the public body. Hosey v. City of Joliet

A reporter filed a FOIA request with the City requesting copies of videotaped police interviews of several individuals. The City denied the request, citing various FOIA exemptions including personal privacy, interference with law enforcement proceedings and disclosure of confidential source or information. The reporter filed an appeal with the PAC office, and the PAC determined that the requester was entitled to the videotapes. When the City did not turn over those tapes, the requester filed a lawsuit, asking the circuit court to order the City to turn over the tapes and seeking civil penalties and attorney fees.

The circuit court ruled in favor of the City, and held that the tapes were not subject to disclosure. The court did not base its decision on the exemptions cited by the City in its denial, but instead held that the tapes were not subject to public inspection because the Illinois Criminal Code prohibits disclosure of the records relating to persons who are criminally accused. 

The reporter appealed, arguing that the Criminal Code provision did not apply in this situation and that the City waived or forfeited this argument because it did not cite this exemption in its denial letter.  The appellate court upheld the ruling in favor of the City and rejected the reporter's arguments. First, the appellate court determined that the City did not waive or forfeit the ability to raise additional exemptions to support its denial of the FOIA request. The appellate court cited two other appellate court decisions holding that a public body does not waive its claim to raise additional exemptions to support a denial in a FOIA challenge. Second, the appellate court agreed that the Criminal Code does apply to the requested records and prohibits release of electronic recordings of any statement made by an accused during a custodial investigation, even after the individual is no longer accused.


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