Disclosure of Post-mortem Photographs to the Executor of the Decedent's Estate

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to the Executor of the Decedent's Estate

Mr. Larry Young 804 Newton Avenue Johnston City, [Minois 62951 Master Sergeant Kerry Sutton Legal Counsel Iinois State Police 801 South Seventh Street, Suite 1000-S Springfield, [linois 62703 Dear Mr. Young and Master Sergeant Sutton:

This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Illinois State Police (SP) violated FOIA by improperly withholding post-mortem photographs requested by the decedent's father and executor of her estate.

BACKGROUND

On August 12, 2015, Mr. Larry Young submitted a FOIA request to ISP seeking records pertaining to the death of his daughter, Molly Young. Among other things, the FOIA request sought "{a]li crime scene photographs, autopsy photographs, images and trajectory diagram{s].”"

On September 30, 2015, ISP responded to Mr. Young's August 12, 2015, FOIA request by providing certain information, but redacted or withheld portions of the responsive records pursuant to sections TOY\(by and 7(1)(c) of FOIA (5 ILCS 140/71 )cb), (1)(c) (West 2014), as amended by Public Act 99-298, effective August 6, 2015)7 ISP withheld the autopsy photographs and crime scene photographs in their entireties.* On October 26, 2015, Mr. Young submitted a Request for Review to the Public Access Bureau asserting, in part, that “[a]s father and executor of Molly's estate [he is] the only requestor that has the legal right to all the crime scene photos/videos and autopsy photos/videos including the graphic photos." On November 4, 2015, the Public Access Bureau forwarded a copy of the Request for Review to ISP and asked ISP to provide a detailed explanation of its legal and factual bases for withholding those records.® ISP did not receive this office's ’November 4, 2015, correspondence, and a copy of the letter was forwarded to ISP on November 18, 2015.7 On November 36, 2015, ISP responded and stated, in pertinent part:

18) * * * Graphic photos of the crime scene and autopsy are exempt per the AG's opinions found in the Law Enforcement FOIA guide provided by the Public Access Counselor's office. Those opinions state:

* Graphic photographs and descriptions of alleged offenses, such as sex crimes, may frequently be withheld under 7(i\Mc). See 2010 PAC 7791 (IL. Att'y Gen. PAC Pre- Auth. al7791, issued June 29, 2010, at 2) and 2010 PAC 9091 and 9164 (IL Att'y Gen, PAC Pre-Auth. al9091, 9164 issued August 23, 2010, at 2)

o Graphic photographs of the deceased's body during an autopsy may be withheld under section 7(1)(c). See 2010 PAC 8890 and 9217 (IIL. Att'y Gen Pub. Acc. Op. No. 10-003, issued October 22, 2010, at 1.

Additionally, please see United States Supreme court case "National Archives and Records Administration v. Favish et al., $41 US 157 (2004)."8)

On December 4, 2015, this office forwarded a copy of ISP's response to Mr. Young.” On December 14, 2015, Mr. Young replied by citing this office's previous determination, in an earlier Request for Review, that ISP had improperly withheld the crime scene and autopsy photographs from him.'° By telephone on February 3, 2016, Mr. Young informed the Public Access Bureau that he wished to narrow the scope of this Request for Review to ISP's denial of the crime scene photographs and autopsy photographs.

On December 28, 2015, this office properly extended the time in which to issue a binding opinion by 30 business days, to February 10, 2016, pursuant to section 9.5() of FOIA. 2

ANALYSIS

"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA]." 5 ILCS 140/1 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) provides that "{eJach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act." A public body “has the burden of proving by clear and convincing evidence” that a record is exempt from disclosure. 5 ILCS 140/1.2 (West 2014).

Section 7(1}{c) of FOIA exempts from disclosure:

Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, uniess the disclosure is consented to in writing by the individual subjects of the information.

"Unwarranted invasion of personal privacy” means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. (Emphasis added.)

A public body's assertion that the release of information would constitute an unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago Journeymen ; Plumbers' Local Union 130, U_A. v. Department of Public Health, 327 Ul. App. 3d 192, 196 (1st Dist. 2001). The phrase “clearly unwarranted invasion of personal privacy” evinces a strict standard to claim the exemption, and the burden is on the public body having charge of the records to prove that standard has been met. Schessler v. Department of Conservation, 256 II. App. 3d 198, 202 (4th Dist. 1994).

Because an individual's personal privacy interest ceases to exist upon death, Ms. Young does not have a privacy interest in the withheld photographs. See Ill. Att'y Gen. Pub.

Acc. Op. No. 12-012, issued August 14, 2012, at 9. The binding opinion ISP cited in its response to this office, however, concluded “that a decedent's surviving family members do possess a separate personal privacy interest in ‘their close relative's death-scene images’ and similar records." HL Att'y Gen. Pub. Acc. Op. No. 10-003, issued October 22, 2010, at 5-6 (citing National Archives and Records Administration v. Favish, 541 U.S. 187,170, 1248.Ct.

1571, 1579 (2004)).

In National Archives, the United States Supreme Court analyzed whether the Federal FOIA's personal privacy exemption”? permitted a public body to withhold from a non- family member the death scene images of President Clinton's deputy counsel, Mr. Vincent Foster, who was officially determined to have committed suicide. Mr. Foster's surviving family members objected to disclosure of the photographs. National Archives, 541 U.S. at 160-61, 166 124 S. Ct. at 1574, 1577-78. The Court noted:

The family does not invoke Exemption 7(C) on behalf of Vincent Foster in its capacity as his next friend for fear that the pictures may reveal private information about Foster to the detriment of his own posthumous reputation or some other interest personal to him. If that were the case, a different set of considerations would control. Foster's relatives instead invoke their own right and interest to personal privacy. They seek to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased. National Archives, 541 U.S. at 166, 124 S. Ct. at 1877.

In light of the applicable precedents, the Court "conclude[d] from Congress‘ use of the term ‘personal privacy’ that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions." National Archives, 541 U.S. at 167, 124 S. Ct. at 1578. Thus, the Court held "that FOIA recognizes surviving family members’ right to personal privacy with respect to their close relative's death-scene images." National Archives, 541 U.S. at 170, 124 S. Ct. at 1579. Because the requester did not demonstrate that the public interest in disclosure of the photographs outweighed the objecting family members’ privacy interests, the Court held that providing him with the responsive photographs would constitute an unwarranted invasion of the objecting family members’ personal privacy. National Archives, 541 U.S. at 174-75, 124 S. Ct. at 1581-82.

Similarly, in IH. Att'y Gen. Pub. Acc. Op. No. 10-003, at 1-2, the requesters who sought autopsy and other post-mortem images were not related to the decedents. Further, the surviving family members in the matters addressed by the binding opinion also strongly objected to disclosure of the post-mortem photographs of the decedents.'* Based on those objections, the Attorney General concluded that the public body "sustained its burden of demonstrating that the release of the post-mortem photographs of the bodies of [the decedents] would constitute a clearly unwarranted invasion of the surviving family members’ personal privacy.” [lL Att'y Gen Pub. Acc. Op. No. 10-003, issued October 22, 2010, at ins in contrast, Mr. Young has expressly requested copies of the photographs of his daughter. Ms. Young was not married, and Mr. Young has been appointed as the executor of her estate.'° The circumstances here are therefore distinctly different from those addressed in National Archives and IU. Att'y Gen. Pub. Ace. Op. No. 10-003, both of which concerned requests by non-family members. Clearly, an individual may consent to the disclosure of information in which he or she has a personal privacy interest. ISP has not articulated a legal rationale that justifies withholding personal information concerning Ms. Young from her father, including her death-scene and autopsy photographs. Accordingly, this office concludes that ISP has not sustained its burden of demonstrating by clear and convincing evidence that the responsive photographs are exempt from disclosure to Mr. Young.”

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that:

1) On August 12, 2015, Mr. Larry Young submitted a FOIA request to the Illinois State Police seeking records relating to the death of his daughter, Molly Young. Among other things, the request sought “fa]ll crime scene photographs, [and] autopsy photographs”

relating to Ms. Young's death.

2) On September 30, 2015, ISP denied the request for those photographs, citing section 7(1)(c) of FOIA, which exempts from disclosure "[pJersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy|.]" Section 7(1)(c) defines "unwarranted invasion of personal privacy" as "the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information."

3) On October 29, 2015, the Public Access Bureau received Mr. Young's October 26, 2015, Request for Review letter in which he disputed the denial of his request for those photographs. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5{a) (West 2014).

4) On November 4, 2015, and November 18, 2015, the Public Access Bureau sent a copy of Mr. Young's Request for Review to ISP and asked it to provide a detailed explanation of the legal and factual bases for withholding those photographs. On November 30, 2015, the ISP responded to this office.

5) This office forwarded a copy of ISP's response to Mr. Young on December 4, 2015. On December 18, 2015, by a letter dated December 14, 2015, this office received Mr. Young's reply to ISP's response.

6) On December 28, 2015, this office properly extended the time in which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOLA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

7) ISP has failed to demonstrate by clear and convincing evidence that the photographs in question are exempt from disclosure to Mr. Young pursuant to section 7(1)(c) of FOIA. In these circumstances, Mr. Young, as the father of the decedent and the executor of her estate, has consented through his FOLA request to the disclosure to him of personal information concerning his daughter. He has therefore waived his personal privacy interest in withholding the photographs from dissemination to him. ISP has not articulated a legal rationale that would justify withholding personal information concerning Molly Young from her father, including her death-scene and autopsy photographs.

Therefore, it is the opinion of the Attorney General that ISP improperly denied Mr. Young's Freedom of Information Act request for crime scene photographs and autopsy photographs in violation of the requirements of the Act. Accordingly, ISP is directed to take immediate and appropriate action to comply with this opinion by providing Mr. Young with copies of those photographs.

This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Larry Young as defendants. See 5 [LCS 140/11.5 (West 2014).

Sincerely,

LISA MADIGAN ATTORNEY GENERAL

Michael J. Luke Counsel to the Attorney General