Disclosure of Police Dashboard Camera Video, Dispatch Audio, and Written Critique

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| Mr. Jeff Kolkey ! Staff Writer ! Rockford Register Star | 99 East State Street Rockford, Illinois 61104

| Mr. Matk Karner Deputy Chief ) Winnebago County Shetiff's Ofifice 650 West State Street | Rockford, Illinois 61102 |

| | Dear Mr. Kolkey and Mr. Kamer:

| 7 | [a] copy of any squad car camera footage before, during and after the Feb, 8, 2016, police chase and fatal crash that killed [a named | individual], emergency dispatch audio concerning that chase, crash ) ! ' and incident, and| any written critique, review or report concerning | the attempted traffic stop and fatal crash. i.

| On March 16, 2020, the Sheriffs Office acknowledged receipt of the FOIA request and requested an extension of five days.’ On March 23, 2020, the Sheriff's Office denied the request pur suant|to section 7(1)(€) (ii) of FOIA (5 ILCS 140/7(1)(d)Gii) (West 2018), as amended by — Public Acts 101-434, effective January 1, 2020; 101-452, effective January 1, 2020; 101-455, effective! August 23, 2019)? ‘The Sheriff's Office asserted that "disclosure would deprive both the County of Winnebago’ and Sheriff's Deputy Christopher Moski of their rights to a fair trial or an impartial adjudication, The trial jis pending in 2016-L-239, Lambert v. Winnebago County[. "4 The Sheriff's Office further asserted that release of the requested records "would seriously interfere with the fairness of the proceedings since a jury trial is demanded and disclosure of the documents sought could prejudice the pool of potential jurors who would adjudicate the case."° | Mr. Kolkey subline a Request for Review to the Public Access Bureau on March 23, 2020, contesting the denial of his request.° Mr. Kolkey noted that the requested records were the subject of an earlier Request for Review, file No. 2016 PAC 40205, where the Sheriff's Office had denied a request for the same records citing section 7(1)(d)(iii), among other.

bases.’ In a non- binding determination, the Public Access Counselor concluded that the Sherriff's Office had improperly denied Mr. Kolkey's request. Ill. Att'y Gen. Req. Rev. Ltr. 40205, issued December 27, 2019. Mr. Kolkey asserted that the second denial by the Sheriff's Office "{a]ppears to cite the same discredited ‘fair trial' grounds as [the response to] the original FOIA request, but instead uses a wrongful death civil trial as the basis of the denial instead of a criminal trial."® !

| On April 3, 2020, the Public Access Bureau sent a copy of the Request for Review to the Sheriff's Office and asked it to provide copies of the withheld dashboard video, dispatch audio, and written critique for this office's confidential review.? The April 3, 2020, letter also asked the Shetiff's Offfice to provide a detailed explanation of the factual and legal - bases for the applicability of section 7) Gi) to those records.!° On April 14, 2020, the Sheriff's Office e-mailed this office copies of its written answer dated April 13, 2020, the second amended complaint in Lambert} v. Winnebago County Sheriff's Office, Case No. 16-L-239 (Circuit Court, Winnebago County), and the written critique of the incident.!! The Sheriffs Office submitted copies of the remaining requested materials via the United States Postal . Service.!?- On April 15, 2020, the Public Access Bureau forwarded a copy of the Sheriff's Office's written response to Mr. Kolkey;!* he did not reply.

‘ !

| on 9.5(f) of FOIA, on May 15, 2020, this office properly | Pursuant to sectic extended the time within which to issue a binding opinion by 30 business days, to July 7, 2020.'4 | |

ANALYSIS

| "All records in th e 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 2018). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018), as amended by Public Act 101-081, effective July 12, 2019) 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. 515] of this Act." The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2018)) are to be construed narrowly. See Lieber v. Board of Trustees of Southern Illinois University, 176 Il. 2d 401, 407 (1997).

| , Section 7(1)(d)(iii) of FOIA i) of FOIA exempts from disclosure:

Section 7(1)(d) (iii (d) Records in the possession of any public body created in| the course of adn linistrative enforcement proceedings, and any law — j enforcement orc orrectional agency for law enforcement purposes, but only to the extent that disclosure would:

| Federal FOIA (5 U.S.C. A. § 552(b)(7)(B) (2018)),'° an agency must establish: "'(1) that a trial or adjudication is pending or truly imminent; and (2) that it is more probable than not that ° disclosure of the material sought would seriously interfere with the fairness of those o proceedings." "" Chiquita’ Brands International Inc. v. S.E.C., 805 F.3d 289, 294 (D.C. Cir. 2015)

(quoting Washington Post Co. v, U.S. Dep't of Justice, 863 F.2d 96, 102 (D.C. Cir. 1988)). ) "(Speculation about potential publicity and its effect on a future jury * * * does not satisfy the level of certainty required by [Federal] FOIA Exemption 7(B). * * * Exemption 7(B) expressly requires that disclosure 'would' compromise the fairness of a proceeding." Chiquita Brands International y. United States Securities and Exchange Commission, 10 F. Supp. 3d 1 (D.D.C. 2013), aff'd sub nom. Chiquita Brands International Inc. v. S.E.C., 805 F.3d 289.

| ~ In binding opinion No. 19-008, issued September 24, 2019, this office considered, among other things, whether a police department properly redacted certain portions of police report narratives pursuant to section 7(1)(d)(iii) of FOIA. The opinion determined that the police department. failed to "explain how or why disclosure of the information it redacted from the particular narratives at issue would deprive the specific defendants of fair trials or impartial hearings! " (Emphases in original. ) Ill. Att'y Gen. Pub. Acc. Op. No. 19-008, at 8. Because the police department: did not present facts to demonstrate that disclosure of the redacted information would cteate a substantial. likelihood that defendants would be deprived of a fair trial under the circumstances at issue, the opinion concluded that the police department did not meet its burden of demonstrating that the redacted information was exempt from disclosure pursuant to section 71)(@) Gti). Ill. Att'y Gen. Pub.jAcc. Op. No. 19-008, at 8.

| 703, 717, 671 N.W.2d 101, 109 (Mich. Ct. App. 2003) (remanding case for award of punitive damages for improper denial where "defendant consistently failed to articulate any specific reasons why disclosure of the tape would deprive the minor ofa fair trial, other than that the tape would receive extensive media attention.").

i i The Sheriff's Office’ s answer to this office maintained that disclosure of the records would deprive the defendants, specifically the Sheriff's Office, Sheriff Gary Caruana, and Sheriff's Deputy Moski "of their rights to a fair trial or an impartial adjudication" in Lambert v. Winnébago County. 7 In particular, the Sheriff's Office stated that a pending civil lawsuit related to the fatal traffic accident had been filed and that the plaintiff had requested a jury trial.'® The Sheriff's Office provided this office with a copy of the most recent amended complaint for that lawsuit. 19 Directing this office to the complaint, the Sheriff's Office asserted that many of the plaintiff's claims "go, to occurrences before, during and after" the fatal traffic accident and that "[t]here can be no doubt that the documents requested by Mr. Kolkey will be presented to the jury for. deliberation. "20 The Sheriff's Office contended:

The disc sure to anyone of the documents requested by Mr. Kolkey could taint the jury pool for the trial in the pending civil lawsuit involving the fatal accident..Mr. Kolkey' s [sic] status as a newspaper reporter, however, simply increases the likelihood | that the information will be more widely circulated in a manner | that would be seen by potential jurors and could bias their views | making it difficult to select a fair and impartial jury." (Emphasis in original.)

! This office has reviewed the records at issue and considered the written response of the Sheriff's Office asito why| disclosure of the records would deprive the defendants of a fair

| '7Letter from Mark Karner, Deputy Chief and FOIA Officer, Office of the Winnebago County Sheriff, to;Teresa Lim, Assistant Attorney General (April 13, 2020), at 1.

| 7 '8Letter from Mark Karner, Deputy Chief and FOIA Officer, Office of the Winnebago County — Sheriff, ff, to|Teresa Lim, ‘Assistant Attorney General (April 13, 2020), at 1.

| | '°Second Amended Complaint, Lambert v. Winnebago County Sheriff's Office, et al, 2016-L- 0000239, 17th Judicial Circuit Court, Winnebago County (June 6, 2017).

. : | | trial. The Sheriff's Office § arguments emphasize the pending lawsuit related to the fatal traffic accident and the plaintiff's request for a jury trial in that matter. That generic explanation applies to records concerning most pending lawsuits involving automobile fatalities. However, "{t]o meet its burden ** , the public body must provide a detailed justification for its claim of exemption, addressing the requested records specifically and in a manner allowing for adequate adversarial testing.” Rockford olice Benevolent & Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 150 (2d Dist. 2010).

| iP The Sheriff's Office has neither demonstrated that a trial or adjudication is © pending | ‘or truly imminent, nor explained with specificity how disclosure of the records at issue would create a substantial likelihood that any person would be deprived of a fair trial. Although the lawsuit pertains to the fatal traffic accident that is the general subject matter of the records, the Sheriff's Office did not provide facts illustrating how the details in the records, if disclosed, would seriously interfere with the fairness of those proceedings. The written critique does not include highly detailed information such as a narrative of the incident or witness statements, and most of the videos do not depict the fatal traffic accident. The one video that does include footage of the accident was recorded from a considerable distance. The Sheriff's Office's claim - that release of the records coulditaint the jury pool is conclusory—the possibility that the.records may be disseminated to the public by Mr. Kolkey and viewed by possible jurors is insufficient to demonstrate the applicability of|the section 7(1)(d)(iii) exemption. See, e.g., Dow Jones Co. v. FIE.R.C), 219 F.R.D. 167, 175 (C.D. Cal. 2003) (finding that the "defendant has failed to demonstrate that disclosure of the appendix would generate pretrial publicity that could deprive the companies or any of their employees of their right to a fair trial" under the corresponding Exemption 7(B) of Federal FOIA); Playboy Enterprises, Inc. v. U.S. Dep't of Justice, 516 F. Supp. 233, 246 (D.D.C. 1981), aff'd iin part, modified in part sub nom. Playboy Enterprises, Inc. v. Dep't of Justice, 677 F.2d 931 (D.C. Cir. 1982) (finding "the degree of publicity that might come about as a result of the disclosure of [a task force report] is speculative at best" with regard to defendant’ s claims concerning the applicability of Exemption 7(B) to the report). Because the Sheriff's| Office did not set forth/clear and convincing evidence that disclosure of the records at issue would create a substantial likelihood that any person would be deprived of a fair trial under .

| car video, dispatch audio, and written critique of an attempted traffic stop and fatal traffic accident that occurred on February 8, 2016.

2) On March 23! 2020, the Sheriff's Office denied the request in its entirety pursuant to section TC )(a) Gait) of FOIA. | .

| ; 3) On March 23} 2020, Mr. Kolkey submitted a Request for Review to the Public Access Bureau contesting the denial by the Sheriff's Office of his request. 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 2018)).

| 4) On April 3, 2020, the Public Access Bureau sent a copy of the Request for Review to the Sheriff's Office and asked it to provide copies of the responsive squad car video, dispatch|audio, and written critique for this office's confidential review. This office also asked the Sheriff's Office to provide a'detailed explanation of the factual and legal bases for withholding those records. | } | .

FOIA. Accordingly, the, Sheriff's Office is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Kolkey copies of the responsive records.

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 201 8), An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Jeff Kolkey as defendants. See 5ILCS 140/ 11!5 (West 2018).

Very truly yours,

KWAME RAOUL

ATTORNEY GENERAL

Brent D. Stratton | Chief Deputy Attorney General )pinion (Public Access Opinion 20-005) upon:

copy of the foregoing Binding C Mr. Jeff Kolkey St aff Writer Rockford Register Star 99 East State Street Rockford, Illinois 61104 [email protected] Mr. Mark Karner Deputy Chief Winnebago County Sheriff's Office 650 West State Street — . Rockford, Illinois 61102 K arnerM@WCSO-ILus ) be sent electronically to the addresses as listed above and by | by causing a true copy thereof t