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Thursday, July 9, 2020

PAC Issues Binding Opinion Interpreting FOIA Exemption Regarding Fair Trial or Impartial Hearing

The PAC recently issued a binding opinion finding a public body in violation of FOIA for denying various records pertaining to a fatal car accident. The PAC rejected the public body's reliance on the FOIA exemption contained in section 7(1)(d)(iii) which allows a public body to withhold information that creates a substantial likelihood of depriving a person of a fair trial or impartial hearing. PAC Op. 2020-05.

In its opinion, the PAC concluded that a Sheriff’s Office improperly used FOIA 7(1)(d)(iii) to withhold squad car footage, emergency dispatch audio recordings, and other written crash and incident reports requested by a reporter regarding a police chase that resulted in a fatal crash. The Sheriff’s Office had defended its denial of te request by arguing that disclosing the requested records would deprive the Sheriff’s Office of its right to a fair trial or an impartial hearing in a wrongful death lawsuit brought against the Sheriff's Office and individual employees, because releasing the videos would make it more difficult to select a fair and impartial jury in the trial.

To demonstrate that records are exempt under FOIA section 7(1)(d)(iii), the Sheriff’s Office was required to show that (1) a trial or adjudication is pending or truly imminent and (2) that disclosing the requested materials would more likely than not seriously interfere with the fairness of those proceedings. Relying on prior Illinois cases and PAC decisions, as well as cases from other States and federal cases interpreting a similar exemption in the Federal FOIA statute, the PAC stated that the Sheriff’s Office failed to specifically explain how or why disclosing the requested records would deprive the Sheriff’s Office of a fair trial or impartial hearing or prejudice the jury. The PAC rejected the Sheriff’s Office speculation that the effects of potential publicity from disclosing the videos could taint the jury pool for the future trial was conclusory and failed to satisfy the level of proof required to exempt the requested public records by FOIA. The PAC also noted that the Sheriff’s Office failed to specifically demonstrate how disclosing the records would substantially deprive a person of a fair trial or impartial hearing in this particular trial, since most plaintiffs in pending lawsuits involving automobile fatalities request jury trials.

Post Authored by Eugene Bolotnikov, Ancel Glink


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