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Tuesday, December 21, 2021

Public Body Did Not Waive FOIA Exemptions

In 2017, a law firm submitted a FOIA request to a Police Department seeking certain 2017 motor vehicle traffic accident reports. After the Department produced redacted accident reports to the requester, the requester sued the Department alleging that the Department improperly redacted non-exempt information under FOIA, and alternatively, even if the Department’s redactions were proper, the Department waived its ability to assert FOIA exemptions because the Department had previously provided unredacted accident reports to a third party vendor, LexisNexis. 

We previously reported on the First District Appellate Court’s decision upholding the Department’s redactions as proper and finding the Department did not waive its right to redact accident reports in response to a FOIA request, because even though the Department previously provided unredacted copies of the same reports to a third-party vendor (LexisNexis), the vendor was acting as the Department’s agent under a contract in order to comply with the Department's mandatory reporting obligations under section 408 of the Vehicle Code, which requires the Department to file motor vehicle accident reports with the Secretary of State and the Department of Transportation

On appeal to the Illinois Supreme Court, the requester solely argued that the Department should be precluded from asserting applicable FOIA exemptions because they previously voluntarily disclosed unredacted reports to its third party vendor. In a recently issued decision, the Illinois Supreme Court rejected the requester's waiver argument and upheld the validity of the Department’s redactions finding that a public body does not waive an individual's interest in his or her own personal or private information, despite the public body having previously provided a state-approved vendor unredacted copies of the same reports to comply with its mandatory reporting obligations under state law.

Post Authored by Eugene Bolotnikov, Ancel Glink


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