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Thursday, August 18, 2022

PD Properly Used Ongoing Criminal Investigation Exemption to Partially Deny FOIA Request

A reporter submitted a FOIA request to a police department (PD) seeking certain records relating to a 2018 homicide. In response, the PD disclosed certain redacted records but withheld other records, on the basis that release of certain exempt records would obstruct the PD’s ongoing criminal investigation into the homicide. The reporter then sued the PD claiming the response violated FOIA. The trial court ruled in favor of the PD, finding that it had demonstrated that disclosing the records it had withheld would interfere with its ongoing investigation. 

On appeal, the Appellate Court in Ballew v. Chicago Police Department upheld the ruling in favor of the PD, finding that the PD had properly demonstrated that the records were exempt under FOIA’s ongoing investigation exemption. The Appellate Court relied on an affidavit of a PD lieutenant who was overseeing the homicide investigation that stated that because the PD's investigation of the homicide was still open and ongoing, prematurely releasing the withheld records would materially impede that investigation because:

  1. investigators were still attempting to identify additional witnesses, collect additional evidence, and apprehend the suspect, who is at large;
  2. premature release would make it difficult to determine the veracity of witness statements because the significant media attention coverage brought to the case could increase the possibility of obstructive behavior that would misguide investigative efforts;
  3. the outcome of the investigation could be jeopardized if details of the investigation, investigative technique, and evidence were to be released; and
  4. releasing the information could place witnesses in danger or deter witness cooperation since the homicide underlying the FOIA request is potentially linked with another (unsolved) violent homicide.

The Appellate Court also rejected the reporter’s argument that the PD had used FOIA’s law enforcement exemptions to assert a “blanket” exemption over investigative records, explaining that nothing in the record supports any claim that the PD refused to review all responsive records before asserting the applicable exemptions over the withheld records. Instead, the Court found that the PD had produced the original case incident report and provided a detailed explanation in the affidavit as to why other responsive documents were exempt. The Court also rejected the reporter’s argument that FOIA required the PD to provide a granular document-by-document explanation regarding its claimed exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink


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