PAC Finds Police Department in Violation of FOIA in Withholding Resignation and Termination Records
In response to a FOIA request seeking copies of resignation/termination records and payroll records for city law enforcement officers, a city police department (Department) disclosed the payroll records, but withheld resignation/termination records citing various exemptions under FOIA. After the requestor appealed to the Public Access Counselor of the Attorney General's Office (PAC), the PAC issued binding opinion PAC Op. 25-002 finding that the Department improperly withheld its responsive termination/resignation records.
First, the PAC determined that the Department did not provide detailed factual basis demonstrating how and why disclosing its withheld termination/resignation records would interfere with either (1) a pending or actually and reasonably contemplated law enforcement proceeding or (2) an active administrative enforcement proceeding. Even if the Department had established the existence of an active administrative enforcement proceeding, the PAC opined that the Department improperly withheld its records under a cited exemption because they were not created in the course of that proceeding.
The PAC also rejected the Department’s argument that disclosing the withheld records would create a substantial likelihood of depriving people of a fair trial or an impartial hearing, because the Department did not demonstrate that (1) a trial or adjudication was pending or imminent, and (2) that is was more probable than not that disclosing the records would interfere with a fair trial of impartial hearing. Notably, the PAC stated that the existence of a pending investigation/proceeding or the possibility of criminal charges being filed is not sufficient to establish that a trial is “pending or imminent” for purposes of Section 7(1)(d)(iii) of FOIA.
The PAC also rejected the Department’s argument that the resignation/termination records were confidential and not subject to disclosure under Section 7(1)(d-6) of FOIA, which exempts:
Records contained in the Officer Professional Conduct Database (Database) under Section 9.2 of the Illinois Police Training Act (Act), except to the extent authorized under Section 9.2 of the Act.
Although Section 9.2(c) of the Act generally requires the Illinois Law Enforcement Training and Standards Board (Board) to maintain the confidentiality of certain local law enforcement records that are obtained by or disclosed to the Board, these confidentiality restrictions prohibit the Board, not local law enforcement entities, from disclosing public records shared with the Board. Because the Act expressly states that local law enforcement agencies are not exempt from disclosing public records subject to FOIA, the PAC reasoned that the Department was authorized to disclose its responsive termination/resignation records, even if those records had been shared with the Board.
Post Authored by Eugene Bolotnikov, Ancel Glink