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Friday, January 3, 2020

Summary of PAC Binding Opinions of 2019 (FOIA opinions)

Today, we summarize the 2019 Public Access Counselor binding opinions relating to FOIA complaints.

PAC Op. 19-001 (body camera recordings must be released)
In PAC Op. 19-001, the PAC found the Chicago Police Department in violation of FOIA for denying a request for body camera recordings. The PAC rejected the CPD’s argment that the Body Camera Act prohibited release of body camera recordings unless the recording had been previously "flagged." Specifically, the PAC noted that the Body Camera Act allows disclosure of recordings under FOIA in certain limited circumstances.  First, a recording can be released if it is "flagged" because of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or body harm. Second, a recording can be released to the subject, the subject's attorney, the officer, or the officer's representative. The PAC rejected CPD's argument that the latter exception also required prior "flagging," finding that the statute did not include that language when allowing release to certain individuals.

PAC Op. 19-003 (failure to respond)
In PAC Op. 19-003, the PAC found a public body in violation for FOIA for failing to respond to a FOIA request. As we have learned from a number of similar binding opinions, it is a violation of FOIA to not respond to a FOIA request within the statutory time-frame (5 business days unless the request is for commercial purposes).
PAC Op. 19-005 (calendars)
In PAC Op. 19-005, the PAC found a Police Department in violation of FOIA for denying a request for release of "extradition calendars." CPD personnel who work in the field services section on prisoner extradition matters put together a working schedule calendar containing various assignments to assist the officers and their supervisors in keeping track of court dates and related activities in the department. In response to a FOIA request for a copy of the calendar, the CPD denied the request, citing 7(1)(f), which exempts draft or predecisional documents from release.  The CPD argued that the calendar was created by the officers, not the CPD itself, and that the calendar was constantly updated based on evolving schedules. The requester filed an appeal with the PAC, which rejected the CPD's basis for denial, finding the extradition calendar to be releasable under FOIA. Specifically, the PAC stated that because the calendar was purely factual in nature, it did not fall under the "deliberative process" exemption under 7(1)(f).

PAC Op. 19-006 (failure to respond)
In PAC Op. 19-006, the PAC issued an opinion finding a municipality in violation of FOIA for failing to respond to a union's FOIA request for various records pertaining to a bargaining unit and finances of the municipality. Not only did the municipality fail to respond to the FOIA request, it also did not respond to the PAC's request for review.

PAC Op. 19-007 (proprietary business records)
In PAC Opinion 19-007, the PAC found a public body in violation of FOIA when it refused to hand over manganese reports of a business entity in response to a FOIA request. The city had denied the request, claiming that the reports contain sensitive business information that fell under section 7(1)(g) of FOIA’s exemption for proprietary commercial information. The PAC rejected the city’s argument arguing that the city failed to provide any evidence that the disclosure of the information would cause competitive harm to the private business entity. The PAC reasoned that no substantive business insights would result from the disclosure of the reports, which contain, among other things, how the materials are transported in and out of the facility, its density and percentage of manganese, and the amounts shipped, received, and stored. Because the city failed to articulate specific facts demonstrating the competitive harm to the private entity that would result from disclosing the limited information reports, the PAC ordered the city to comply immediately with the FOIA request for the manganese reports.

PAC Op. 19-08 (police reports)
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, but 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 PAC rejected the PD’s arguments, finding it did not meet its burden to justify use of these exemptions. 
PAC Op. 19-010 (body camera recordings)
In PAC Op. 19-010, the PAC found a city in violation of FOIA for denying a request for body camera recordings. relating to an attempted arrest. The city cited the Law Enforcement Officer-Worn Body Camera Although the city and states attorney provided detailed reasons why release of the recordings would interfere in the ongoing criminal investigation, the PAC determined that the city's burden to justify withholding the records was not satisfied. The PAC also rejected the city's reliance on the exemption set forth in the Law Enforcement Officer-Worn Body Camera Act and ordered release of the recording.

PAC Op. 19-011 (failure to respond)
In PAC Op. 19-011, the PAC found a county assessor's office in violation of FOIA for failing to respond to a FOIA request for permit applications relating to five properties. The county failed to respond to the request or to the PAC's request for review. 


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