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Monday, September 30, 2019

PAC Issues 8th Binding Opinion of 2019 Finding Police Department in Violation of FOIA

After a relatively quiet summer, the Public Access Counselor (PAC) in the Office of the Illinois Attorney General issued its 8th binding opinion this year. In PAC Op. 19-008, the PAC found a police department in violation of FOIA when it redacted portions of its police reports.

A news reporter submitted a FOIA request to a city police department (“PD”) seeking police reports concerning the arrests of two individuals. The PD subsequently provided him copies of the records, which consisted of two case reports and six officer supplement reports related to two different case numbers. The PD had redacted certain information from those records pursuant to Sections 7(1)(b) (private information), 7(1)(c) (unwarranted invasion of personal privacy), 7(1)(d)(iii) (deprivation of fair trial or impartial hearing), and 7(1)(d)(iv) (disclosure of confidential sources or witnesses) under FOIA. 

The requester submitted a Request for Review contesting the PD’s redactions of the narrative sections in each of the police reports. In response to the Request for Review, the PD supplemented its exemptions by also citing 7(1)(a) (disclosure prohibited by other law), alleging some of the information was exempt under Illinois Supreme Court Rule 415(c). Rule 415(c) provides:

“[a]ny materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.”

The PD asserted that the request sought information used in criminal cases in the Will County Circuit Court, and that the Will County State’s Attorney’s Office objected to release of this information . The PD also asserted that disclosure of the information would interfere with discovery in pending cases in Will County.

On September 24, 2019, the PAC issued its binding opinion making findings on each of the PD's cited exemptions for the redactions, as follows:

7(1)(a): The PD failed to meet its burden in claiming this exemption. The PAC found that there was no legal precedence to support withholding records under Supreme Court Rule 415(c). Further, there is no provision of FOIA that renders records exempt from disclosure on the basis of another public body objecting to their disclosure.

In a footnote, the PAC did state that the PD could redact any information present in the records that is contained in the Law Enforcement Agencies Data System (LEADS) since the Illinois Administrative Code expressly precludes the public from viewing or possessing such information.

7(1)(b): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD properly redacted several types of “unique identifiers” in the narrative sections of the police reports, including home or personal telephone numbers, a motor vehicle license number, and a home address. But, the PD improperly redacted the rest of the narrative sections in the police reports as the rest of the information did not fall within the plain language of this FOIA provision.

7(1)(c): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD improperly redacted information based on "invasion of personal privacy" because (1) it failed to provide an adequate factual basis for withholding the information, and (2) the legitimate public interest in inspecting the information concerning the investigations and arrests outweighed the arrestees’ privacy rights.

The PAC did state, however, that the PD could redact: (1) birth dates, and (2) information identifying a suspect of a crime who has not been arrested or charged in the police reports.

7(1)(d)(iii): The PD failed to meet its burden in claiming this exemption. The PAC found that the PD failed to set forth specific facts to show that the disclosure of the information would create a substantial likelihood that the arrestees would be deprived of a fair trial or an impartial hearing.

The PAC discounted the PD’s assertion of Section 7(1)(d)(iii) because the requested records concerned individuals who were arrested just days before the FOIA request was submitted. At the time of the FOIA request, there was no indication that a trial or adjudication was pending or truly imminent at that time.

7(1)(d)(iv): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD failed to articulate facts to support the redaction of all the information in the narratives relating to the actual witness statements. The redactions were, in part, improper because (1) some of the withheld information did not fall within the scope of Section 7(1)(d)(iv), and (2) this Section does not encompass information provided by criminal suspects under questioning by law enforcement.

The PAC did allow the PD to redact (1) the names of two witnesses under Section 7(1)(d)(iv), and (2) information that would identify any undercover officers pursuant to Section 7(1)(d)(vi).

Post Authored by Ashton Tunk & Julie Tappendorf


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