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Wednesday, January 26, 2022

Appellate Court Reverses Order Requiring Release of Records Subject to Protective Order

In 2019, the Chicago Sun-Times submitted a FOIA request to a police department (CPD) seeking records regarding the death of a named individual. After the CPD denied the request on the basis that the department had previously provided the newspaper with all available non-exempt records responsive to the requestor’s prior 18 FOIA requests to CPD, the newspaper filed a lawsuit alleging various FOIA violations against CPD. CPD argued that certain responsive records were exempt from disclosure because protective orders from 2012 and 2014 prohibited the disclosure of grand jury investigative records. In August of 2020, the circuit court rejected CPD's arguments and ordered CPD to disclose the responsive records. 

On appeal, the appellate court in Chicago Sun-Times v. Chicago Police Department reversed the trial court's ruling finding that requiring CPD to comply with the August 2020 court order rather than the 2012 and 2014 protective orders would put CPD in a Catch-22 of having to decide which of the conflicting court orders the CPD was required to follow. The appellate court also held that the trial court erred in ordering CPD to release the records in full based on CPD’s failure to plead affirmative defenses because the trial court should have first conducted an "in camera" review of the responsive records determine which records, if any, were protected from disclosure by the 2012 and 2014 protective orders.

On remand, the appellate court instructed the circuit court to require CPD to prepare an index of withheld records and prepare all records responsive to the newspaper's FOIA request for in camera review by the circuit court. 

Post Authored by Eugene Bolotnikov, Ancel Glink


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