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Tuesday, August 20, 2019

7th Circuit Addresses Privacy Exemption Under Federal FOIA

This week, the 7th Circuit delivered a victory for the federal government in Higgs v. United States Park Police, a case that involved balancing privacy interests against public disclosure under the federal FOIA statute.

Higgs was convicted and sentenced to death for participating in kidnapping and murdering three women with his two friends in 1996 in a federal park located in Maryland. Higgs, while on death row, insisted for several years that the federal government failed to turn over exculpatory evidence as required by law. In 2012, Higgs filed a FOIA request with the United States Park Police seeking “a complete copy of everything pertaining to the homicide convictions.” The Park Police notified Higgs that it would not release any documents because they were exempt under various exemptions, including the “privacy exemption.”  Higgs then filed a lawsuit to challenge the FOIA denial. The Park Police subsequently released some responsive documents to Higgs.

Higgs argued that the government’s response to Higgs’ FOIA request was inadequate on several grounds. The district court agreed in part, ruling that Higgs was entitled to certain records because (1) he demonstrated a sufficient public interest in trying to uncover government misconduct and (2) the government failed to identify what privacy interests would be impaired and to the extent they would be negatively impaired

On appeal, the government argued that: (1) the district court clearly erred in evaluating the individual privacy interests and (2) Higgs did not advance a sufficient public interest that warranted the disclosure of the subject records.  Higgs responded that the public interest he advanced was sufficient to warrant disclosure as he sought to reveal government misconduct and educate the public about how the Department of Justice carries out its law enforcement duties.

The 7th Circuit concluded that Higgs did not advance a sufficient interest under the FOIA privacy exemptions’ “balancing test.” The Court rejected Higgs’ government misconduct argument. The Court also found Higgs’ argument of an educational benefit a “vague interest” that did not meet the threshold burden to justify disclosure. 

Although this case strictly dealt with federal FOIA law, the rationale in this case is helpful in understanding how an Illinois court might analyze the “personal privacy” exemption and apply that exemption’s balancing test. Local governments, especially their police departments, should always review records based on sensitive or tragic events through the lens of both 7(1)(c) and 7(1)(d) of the Illinois FOIA statute to bolster their reasoning for withholding documents for privacy concerns.

Post Authored by Ashton Tunk and Julie Tappendorf, Ancel Glink


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