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Monday, June 24, 2019

"Ongoing Investigation" Does Not Provide Blanket Exemption to FOIA Request

The Illinois appellate courts don't often decide FOIA cases, so it's always an interesting read when they do (most of our FOIA posts deal with PAC opinions). 

In Kelly v. Village of Kenilworth, et al., 2019 IL App (1st) 170780, an appellate court considered the appeal of a denial of a FOIA request for records relating to a 50 year old investigation into the murder of a 21 year old in her Kenilworth home. Kelly had filed various FOIA requests with the Village, the state police, the Cook County states attorneys office, among other government entities seeking all records pertaining to the murder investigation. The Village and other public bodies denied the request on the basis that the records were for law enforcement purposes and disclosure would interfere with an active or ongoing criminal investigation. 

Subsequently, Kelly filed a lawsuit against the Village and other defendants. After the trial court reviewed some of the requested records "in camera," the court ruled in favor of the Village and other defendants, finding that disclosure could interfere with an ongoing investigation.

On appeal, the appellate court first held that the Village could assert a FOIA exception over records held by the other defendants, including Cook County and the state police. Second, the appellate court held that trial court correctly determined that there was an ongoing investigation into the murder for purposes of the FOIA exemptions contained in 7(1)(d).  

However, the appellate court expressed concerns about the trial court's application of a blanket exemption over the requested records relating to the ongoing investigation. The appellate court determined that section 7(1)(d) requires a public body to redact and release that portion of the investigative records where release would not interfere with an ongoing investigation or obstruct an ongoing criminal investigation. The appellate court did, however, acknowledge that the scope of the requested records was extensive, and that the Village and other defendants may have properly asserted the "unduly burdensome" exception in response to the FOIA request. Although that exception had not been raised in the initial denial, the appellate court remanded the case to provide the defendants with the opportunity to raise that exemption, and work with Kelly to narrow his request to a more manageable proportion, as allowed by the FOIA statute.

Although the appellate court did not preclude the defendants from asserting the "unduly burdensome" exception on remand, this case is still a reminder of the importance of asserting any potential exception at the outset, in the initial response. 


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