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Illinois Attorney General FOIA Guide for Law Enforcement

Illinois Attorney General FOIA Guide for Law Enforcement

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Published by Marc MkKoy
This is a publication issued by the Illinois Attorney General Public Access Counselor for law enforcement to understand and apply the Illinois Freedom of Information Act. It addresses specific exemptions often claimed and opinions and case law on how the courts and Attorney General have held these exemptions to be relevant to the type of record requested.
This is a publication issued by the Illinois Attorney General Public Access Counselor for law enforcement to understand and apply the Illinois Freedom of Information Act. It addresses specific exemptions often claimed and opinions and case law on how the courts and Attorney General have held these exemptions to be relevant to the type of record requested.

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Published by: Marc MkKoy on Apr 07, 2013
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FOIA Guide for Law Enforcement
This guide is intended to assist law enforcement agencies in responding to Freedom of Information Act (FOIA) requests by outlining issues common to law enforcement and byproviding references to statutes and determinations issued by the Attorney General's Public Access Counselor on those subjects. Please note that these are general guidelines only, andeach request for review is evaluated on its own facts. You are strongly encouraged to discussthe application of a particular guideline with your unit of local government's legal counsel.Under FOIA, "[a]ll records in the custody or possession of a public body are presumedto be open to inspection or copying. Any public body that asserts that a record is exempt fromdisclosure has the burden of proving by clear and convincing evidence that it is exempt." 5ILCS 140/1.2 (West 2010).Section 7 of FOIA provides that if a public record contains information that is exemptfrom disclosure, but also contains information that is not exempt from disclosure, the publicbody may elect to redact the exempt information. The remaining information must be madeavailable for inspection and copying. 5 ILCS 140/7(1)(West 2010), as amended by Public Acts97-333, effective August 12, 2011; 97-385 effective August 15, 2011.
SECTION 7 EXEMPTIONSEXEMPTION 7(1)(a)Information Prohibited from Disclosure by Federal or State Law,Rules or Regulations
Exemption 7(1)(a) allows a public body to withhold "[i]nformation specifically prohibitedfrom disclosure by federal or State law or rules and regulations implementing federal or Statelaw," (5 ILCS 140/7(1)(a) (West 2010), as amended by Public Acts 97-333, effective August12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011).
Juvenile Court Act of 1987 (JCA) (705 ILCS 405/1) (West 2010)
 The Juvenile Court Act mandates that reports in which a minor was arrested, charged or investigated
be withheld in full.
2010 PAC 8941 (Ill. Att'y Gen. PAC Req. Rev.Ltr. 8941, issued October 22, 2010, at 2) and 2010 PAC 9077 (Ill. Att'y Gen. PAC Req.Rev. Ltr. 9077, issued February 9, 2011, at 2).
Reports in which minors are the victims of sex crimes or are incidentally mentioned arenot exempt in full, but the names of the minors may be redacted. Under the JuvenileCourt Act, a public body is
to withhold information identifying an alleged minor victim of a sex crime. 705 ILCS 405/5-905(2) (West 2010);
2010 PAC 8955 (Ill. Att'y Gen. PAC Req. Rev. Ltr. 8955, issued November 17, 2010, at 2-3).
Illinois Supreme Court Rule 415
Illinois Supreme Court Rule 415 regulates discovery in criminal cases. Rule 415(c)provides that any materials furnished to an attorney pursuant to these rules "shallremain in his exclusive custody and be used only for the purposes of conducting hisside of the case, and shall be subject to such other terms and conditions as the courtmay provide."
Rule 415(c) does not preclude a defendant in a criminal proceeding from obtainingmaterials through FOIA that would ordinarily be subject to discovery. The documents,however, would be subject to any applicable FOIA exemptions, including the redactionof information under section 7(1)(c) and section 7(1)(d)(iv).
2010 PAC 9540 (Ill. Att'y Gen. PAC Req. Rev. Ltr. 9540, issued October 26, 2010, at 3).Rule 415(c)
apply to a FOIA request to the Public Defender’s Office where an
individual, who was or is presently represented by the Public Defender, was seekingrecords relating to his own case.
2010 PAC 11715 (Ill. Att'y Gen. PAC Req. Rev.Ltr. 11715, issued January 21, 2011, at 2).
Illinois Supreme Court Rule of Professional Conduct 3.6
The disclosure of documents pursuant to a FOIA request does not constitute an"extrajudicial statement" under rule 3.6. Prosecutors cannot withhold a document that isresponsive to a FOIA request by arguing that Rule 3.6 precludes disclosure and, as aresult, the exemption in section 7(1)(a) of FOIA applies.
2010 PAC 7553 (Ill. Att'yGen. PAC Req. Rev. Ltr. 7553, issued July 12, 2010, at 3).The comments to Rule 3.6 provide important guidance in approaching these issues.These comments provide:It is difficult to strike a balance between protecting theright to a fair trial and safeguarding the right of free expression.Preserving the right to a fair trial necessarily entails somecurtailment of information that may be disseminated about a partyprior to trial, particularly where trial by jury is involved. If there wereno such limits, the result would be the practical nullification of theprotective effect of the rules of forensic decorum and theexclusionary rules of evidence. On the other hand, there are vital
social interests served by the free dissemination of informationabout events having legal consequences and about legalproceedings themselves. The public has a right to know aboutthreats to its safety and measures aimed at assuring its security. Italso has a legitimate interest in the conduct of judicial proceedings,particularly in matters of general public concern. Furthermore, thesubject matter of legal proceedings is often of direct significance indebate and deliberation over questions of public policy. 233 Ill. 2dR. Prof. Conduct 3.6, Comment 1.
The Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-212(f) (West 2010))
Section 11-212(f) of the Vehicle Code states "[a]ny law enforcement officer identification information or driver identification information that is compiled by any lawenforcement agency or the Illinois Department of Transportation pursuant to this Act for the purposes of * * * [compiling the traffic stop statistical study] of this Section shall beconfidential and exempt from public inspection and copying, as provided under Section7 of the Freedom of Information Act, and the information shall not be transmitted toanyone except as needed to comply with this Section
This Section shall not exempt those materials that, prior to the effective date of this amendatory Act of the 93rd General Assembly, were available under the Freedom of Information Act.
625 ILCS5/11-212(f) (West 2010) (emphasis added).Section 11-212(f) of the Vehicle Code permits the disclosure of identifying informationthat would otherwise be subject to disclosure under FOIA. Accordingly, FOIAsupersedes the confidentiality requirements of section 5/11-212(f) for law enforcementrecords.
2011 PAC 13661 (Ill. Att'y Gen. PAC Req. Rev. Ltr. 13661, issued June 6,2011, at 3).
The Illinois Code of Criminal Procedure of 1963
Records under court seal that were obtained through court ordered overhearsspecifically, audiotapes, transcripts of the audiotapes, and records that reflect thecontents of the overhears, are prohibited from disclosure pursuant to section 108A-7 of the Code. (725 ILCS 5/108A-2, 7 (West 2010))
2011 PAC 18365 (Ill. Att'y Gen.PAC Req. Rev. Ltr. 13661, issued May 16, 2012, at 5).
Section 112-6(b) of the Code (725 ILCS 5/112-6(b) (West 2010)) provides that grand jury matters "other than the deliberations and vote of any grand juror shall not bedisclosed by the State's Attorney[.]"
2011 PAC 13173 (Ill. Att'y Gen. PAC Req. Rev.Ltr. 13173, issued April 6, 2011).

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