Public Body Did Not Act in Bad Faith in FOIA Response
An Illinois Appellate Court determined that a public body did not act in bad faith when it denied a request for postmortem photographs even though the trial court ordered the public body to release the records. Thomas v. County of Cook, 2023 IL App (1st) 211656-U.
While Thomas was serving 75 years in prison for a murder conviction, he filed a FOIA request with the County requesting all postmortem photographs, autopsy photographs, and x-rays of the decedent. The County withheld 35 of the 38 requested records, explaining that the release would constitute an "unwarranted invasion of personal privacy" and the records were exempt from release under section 7(1)(c) of FOIA. The County cited to binding PAC Opinion 10-003 in support of its denial.
Thomas sued the County, claiming its refusal to release the photographs was willful and in bad faith and violated FOIA. The trial court ruled in favor of Thomas, in part, and ordered the County to release the 38 autopsy photographs; however, the court rejected Thomas' argument that the County's denial was in bad faith. Thomas appealed the court's ruling that the County did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith.
The appellate court agreed with the trial court that the County's denial of the request was not in bad faith because the County had relied on a binding PAC opinion that had determined that family members of the decedents have a privacy interest in keeping postmortem photographs from being released to the public.
The appellate court did not address the trial court's substantive ruling that the photographs requested by Thomas were releasable nor did the appellate court distinguish the PAC Opinion that protected those records from release, likely because the County did not appear to appeal the substantive ruling. It is possible the trial and appellate courts may have weighed the interest of Thomas (who was serving time for the murder of the decedent) in receiving the photographs in this case as more significant than the interest of the reporter in the PAC opinion cited by the County.
When relying on the "invasion of personal privacy" exemption of 7(1)(c) of FOIA, public bodies should make sure they balance the interests of the requester in the release of requested records against the privacy interests at stake.
Illinois courts continue to balance the interest of the requester against the privacy interests of the record's subjects. I don't think this is correct. The text of the statute requires a balancing of the "public's interest." It doesn't say anything about the interest of the individual requester. This section was amended in the 2010 rewrite to mirror the language of the federal statute. Under the federal statute, only the public's interest is weighed, not the requester's individual interest. For some reason, Illinois adopted the federal language, but continued to apply the analysis under the old version of the statute.
ReplyDeleteObviously, different requesters will have different interests to weigh, which means that some requesters will be entitled to records while others are not. This is an apparent violation of section 3(a) of FOIA, which prohibits the selective dissemination of records.