Disclosure of Complaints Against Public Employees

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Dear Mr. Stecklow and Ms. Shields- Wright:

. 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 2016)). For the reasons discussed below, this office concludes that the Metropolitan Water Reclamation District of Greater Chicago's (District) partial denial of Mr. Sam Stecklow's September 19, 2018, FOIA request violated the requirements of FOIA.

BACKGROUND

. On September 19, 2018, Mr. Stecklow, on behalf of South Side Weekly, submitted a FOIA request to the District seeking records concerning complaints of misconduct against a former, named District police officer.' By letter dated September 26, 2018, the District extended the time for responding to the request by five business days pursuant to sections 3(e)(iii), 3(e)(iv), 3(e)(v), and 3(e)(vi) of FOIA (5 ILCS 140/3(e)(iii), (iv), (v), (vi) (West 2016)).° On October 1, 2018, the District provided copies of disciplinary notices with employee identification numbers redacted under section 7(1)(b) of FOIA (5 ILCS. 140/7(1)(b) (5 ILCS 140/7(1)(b) (West 2017 Supp.), as amended by Public Act 100-732, effective August 3, 2018).? The District denied access to two complaints and final investigatory reports pursuant to section 7(1)(n) of FOIA (5 ILCS 140/7(1)(n) (West 2017 Supp.), as amended by Public Act 100-732, effective August 3, - 2018), which exempts from disclosure certain records relating to the adjudication of employee grievances or discipline.* On October 2, 2018, Mr. Stecklow submitted a Request for Review disputing the denial of records under section 7(1)(n) of FOIA.

On October 9, 2018, the Public Access Bureau sent a copy of the Request for Review to the District and asked it to provide for this office's confidential review copies of the records it withheld pursuant to section 7(1)(n), together with a detailed explanation of the factual and legal bases for the applicability of that exemption.® The District did not respond. On November 19, 2018, the Public Access Bureau sent a second copy of the Request for Review to the District, and asked it to respond to this office's prior correspondence concerning the response to Mr. Stecklow’s FOIA request.’

On November 29, 2018, the District provided this office with copies of the requested records and its written answer. The District's answer acknowledged that there had been no adjudication of either of the complaints because "after thorough investigation, both complaints were considered to be unfounded and without merit."® As a result, the District withdrew its assertion of section 7(1)(n) as the basis for withholding the records. Instead, the District asserted that the records are exempt from disclosure pursuant to section.7(1)(c) of FOIA (5S ILCS 140/7(1)(c) (West 2017 Supp.), as amended by Public Act 100-732, effective August 3, 2018) because disclosure would be an unwarranted invasion of personal privacy.’ On the same date, the District separately e-mailed a copy of its written answer to Mr. Stecklow,!° who replied later that day that the "Illinois Appellate Court's decision in FOP v. Chicago specifically found that investigations into allegations of misconduct against law enforcement offices are not subject to exemption under 7(1)(c)[.]"'' On November 30, 2018, as required under the law, the Public Access Bureau forwarded a copy of the District's answer to Mr. Stecklow and offered him an opportunity to provide additional comment;!* he did not reply further. On November 30, 2018, this office also sent a letter to the District's FOIA officer and Mr. Stecklow extending the time in which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA.”

_ 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 2016). "All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2016). Section 3{a) of FOIA (5 ILCS 140/3(a) (West 2016)) further provides that "[e]ach 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." The exemptions from disclosure contained in section 7 of FOIA are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).

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, unless 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.)

The District's answer to-this office stated that the records that were withheld consist of two reports concerning complaints against. the named police officer.'4 The-answer . stated that one of the. complaints was made by an employee and there was "no evidence to substantiate the allegation[,]" while the other complaint was: made by a member of the public, and it was determined that the officer's actions had "been appropriate and reasonable."!> The “Letter from Helen Shields-Wright, Head Assistant Attorney, FOIA Offi cer, Metropolitan Water Reclamation District of Greater Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau (November 29, 2018), at 3. . . , re District asserted that "[u]nfounded accusations against an individual undoubtedly would be objectionable, and constitute an absolute invasion of privacy to a reasonable person if disclosed to any requestor. * * * Releasing reports of unfounded allegations to any requestor would be embarrassing to [the police officer] and besmirch an otherwise unblemished career."'© In his reply, Mr. Stecklow argued that "allegations of misconduct against a law enforcement officer - cannot be considered exempt on their face."!”

In Gekas v. Williamson, 393 Ill. App. 3d 573, 574 (4th Dist. 2009), the Illinois Appellate Court considered whether citizen complaints and records related to citizen complaints against a deputy sheriff were exempt from disclosure under a prior version of section 7(1)(c), which also expressly excluded from its scope information that bears on the public duties of public employees.'® The trial court ruled that files concerning unfounded complaints could be withheld "in order to protect the deputy's privacy." Gekas, 393 Ill. App. 3d at 578. The appellate court reversed , holding that records concerning alleged wrongdoing in the course of the deputy's public duties were subject to disclosure regardless of whether the underlying allegations had merit: - Complaints, founded or unfounded, that he committed misconduct in his capacity as a deputy sheriff are "information that bears on [his] public duties," and the “isclosure of such information “shall 6Letter from Helen Shields- -Wright, Head Assistant Attomey, FOIA Officer, Metropolitan Water Reclamation District of. Greater Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau (November 29, 2018), at 3.

not be considered an invasion of personal privacy.” [Citation.] Insomuch as these materials, true or false, founded or unfounded, bear on his duties as a police officer, the disclosure of these ~~ materials would not invade his personal privacy, and, thus, we do not reach the question of whether their disclosure would bea "clearly unwarranted invasion of [his] personal privacy.” [Citation.] Gekas, 393 Ill. App. 3d at 586.

See also Watkins v. McCarthy, 2012 IL App (1st) 100632, 925, 980 N.E.2d 733, 741 (2012) ("files requested by plaintiff pertaining to complaints against the officers here, which were found | to be without merit, would not be exempt under" a prior version of section 7(1)(c) (5 ILCS 140/7(1)(b)Gii) (West 2008)) that is identical to the version interpreted by the court in Gekas).

As described above, the records that the District withheld under section 7(1){c)

consist of two reports that document complaints against a police officer and summarize investigations of the complaints. Both of the complaints concern the officer's actions while he was performing his public duties as a District police officer. As a result, the records unequivocally bear on the officer's public duties. In accordance with the appellate courts’ conclusions in Gekas and Watkins, disclosure of these reports would not constitute an unwarranted invasion of the police officer's personal privacy. This is the case even when, as happened here, the investigations found that one complaint was unsubstantiated and the other complaint involved conduct by the officer that was appropriate. Consequently, the reports are not exempt from disclosure pursuant to section 7(1)(c) of FOIA.

However, names and other discrete information in the reports that identify the complainants are exempt from disclosure pursuant to section 7(1)(c). Information identifying individuals who made complaints of this nature against public employees is highly personal; the subjects’ privacy rights outweigh any legitimate public interest in disclosure of their identities. See Coleman v. F.B.L, 13 F. Supp. 2d 75, 80 (D.D.C. 1998) (interpreting the provision of Federal FOIA that corresponds to section 7(1)(c) and concluding that disclosure of FBI documents would constitute an unwarranted invasion of personal privacy because "it is evident that release of any portion would reveal the identities of innocent third parties, witnesses or victims.").!?

FINDINGS.AND CONCLUSIONS After full examination and giving due consideration to the available information, | the Public Access Counselor's review, and the applicable law, the Attorney General finds that:

1) On September 19, 2018, Mr. Sam Stecklow, on behalf of South Side Weekly, submitted a FOIA request to the Metropolitan Water Reclamation District of Greater Chicago seeking records concerning complaints of misconduct against a former, named police officer.

2) On September 26, 2018, the District sent a letter to Mr. Stecklow extending the time for its response by five business days under section 3(e) of FOIA.

| 3) Ina letter dated October 1, 2018, the District provided Mr. Stecklow with copies of two disciplinary notices with employee identification numbers redacted pursuant to section 7(1)(b) of FOIA, but withheld two complaints and related documentation, citing section 701 )(n) of FOTA.. - 4) On October 2, 2018, this office received Mr. Stecklow's Request for Review disputing the denial of his request for records under section 7(1)(n) of FOIA. The Request for Review was timely filed.and otherwise complies with section 9.5(a) of FOIA.

5) On October 9, 2018, the Public Access Bureau sent a copy of the Request for Review to the District and asked it to provide for this office's confidential review copies of the records it withheld pursuant to section 7(1)(n), together with a detailed explanation of the factual and legal bases for the applicability of that exemption.

6) On November 19, 2018, this office sent the District. an additional copy of the Request for Review and this office's October 9, 2018, letter, along with a letter noting the lack of a response from the District and asking the District to provide the requested materials.

7) On November 29, 2018, the District provided this office with copies of the withheld records and a written answer in which it withdrew its assertion of. section 7(1)(n) as the basis for withholding the records at issue, but asserted that the records are exempt from disclosure pursuant to section 7(1)(c) of FOIA. The District also e-mailed. its written answer directly to Mr. Stecklow, who replied to the District and to this office later that day. On November 30, 2018, this office forwarded a copy of the District's answer to Mr. Stecklow for any further comment; he did not reply. .

8) Also on November 30, 201 8, this office extended the time in which ‘to issue a binding opinion by 30 business days pursuant to section 9. 5) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

9) Section 7(1}(c) of FOIA exempts from disclosure "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual - subjects of the information." The exemption defines "[uJnwarranted 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." The exemption further provides that "[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

10) The records at issue concern two complaints against a named police officer alleging improper conduct while on duty. The District's investigations determined that "there is no evidence to substantiate the employee complaint" and that in the other incident the officer's actions were "appropriate and reasonable.” Nevertheless, these records directly bear on the police officer's public duties. Accordingly, the records are not exempt from disclosure pursuant to section 7(1)(c) of FOIA. However, the complainants’ identifying information may be redacted pursuant to section 7(1)(c) because disclosure of that information would constitute a clearly unwarranted invasion of the complainants’ personal privacy.

For the reasons stated above, it is the opinion of the Attorney General that the District's-partial denial of Mr. Stecklow's Freedom of Information Act request violated the requirements of FOIA. Accordingly, the District is directed to take immediate and appropriate action to comply with this binding opinion by providing Mr. Stecklow with copies of the records that were withheld, subject to the permissible redaction of the complainants’ identifying information pursuant to section 7(1)(c). ) | 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 seq. (West 2016). 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. Sam Stecklow as defendants. See 5 ILCS 140/11.5 (West 2016).

Very truly yours,

LISA MADIGAN ATTORNEY GENERAL

; | By: yao | Michael J. Luke | Counsel to the Attorney General copy of the foregoing Binding Opinion (Public Access Opinion 18-018) upon:

Mr. Sam Stecklow Managing Editor South Side Weekly Experimental Station 6100 Blackstone Avenue Chicago, Illinois 60637 [email protected] Ms. Helen Shields-Wright Head Assistant Attorney Metropolitan Water Reclamation District of Greater Chicago 100 East Erie Street Chicago, Illinois 60611-3154 [email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on December 31, 2018.

Sn A AM A Wat SARAH L. PRATT Public Access Counselor