Juvenile Court Act of 1987 Does Not Prohibit Disclosure of Police Records Where a Minor is a Victim

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Dear Mr. Horowitz and Ms. Becker:

BACKGROUND

On or about September 1, 2020, Mr. Horowitz, on behalf of Horowitz Law, submitted a FOIA request to the Sheriff's Office seeking a copy of a police report from July 2013, which involved the alleged sexual assault of a named minor.! Mr. Horowitz's FOIA request indicated that he sought the records on behalf of his client, the father of the minor named in the police report, for a civil matter.?, On September 3, 2020, the Sheriff's Office denied the request in.its entirety pursuant to section.7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (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) stating it was prohibited from "disclosing juvenile reports. "3 On September 4, 2020, Mr. Horowitz submitted a Request for Review disputing the denial.‘ This office construed the denial by the Sheriff's Office as asserting that the Juvenile Court Act of 1987 (J CA) (705 ILCS 405/1-1 et seg. (West 2018)) prohibited disclosure of the police report that Mr. Horowitz requested. On September 15, 2020, an Assistant Attorney General (AAG) in the Public Access Bureau contacted the Sheriff's Office by e-mail and provided a copy of a non- binding determination letter in which this' office concluded that the JCA did not prohibit the disclosure of records concerning crimes committed by adults against minors (Ill. Att'y Gen. PAC Req. Rev. Ltr. 26360, issued March 19, 2015, at 4).> The AAG asked the Sheriff's Office if the determination would change its position on the disclosure of the requested records.® The Sheriff's Office did not respond.

On Septembér 17, 2020, the Public Access Bureau forwarded a copy of the Request for Review to the Sheriff's Office and asked it to provide copies of the withheld police { ;

records for this office's confidential review.’ The September 17, 2020, letter also asked the Sheriff's Office to provide a detailed explanation of the factual and legal bases of the applicability of section 7(1)(a) of FOIA to those records.® On October 6, 2020, the Public Access Bureau received the Sheriff's Office's written answer but the submission did not include the withheld police records as requested by this office in its September 17, 2020, letter of inquiry.” Later that day, an AAG contacted the Sheriff's Office by e-mail and requested that the Sheriff's Office furnish the withheld records.'!? On October 7, 2020, this office forwarded a copy of the Sheriff's Office's answer to Mr. Horowitz.!! The Sheriff's Office provided a copy of the responsive police records to the Public Access Bureau on October 13, 2020.!2 The records consist of three related reports under the same incident number.

f j During a telephone conversation with an AAG on October 21, 2020, Mr. Horowitz's paralegal indicated Mr. Horowitz would not submit a written reply but stood by his contention that the records are subject to disclosure because he is seeking them on behalf of the father of the minor named in the police report. 13 On November 5, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to December 22, 2020, pursuant to section 9.5(f) of FOIA.'4 I I . ANALYSIS | All public records in the possession or custody of a public body "are presumed to be open to inspection and copying" and any public body that denies a public record "has the burden of proving by clear and convincing evidence" that the record is exempt from disclosure.

5S ILCS 140/1.2 (West 2018); see also Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). 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 8.5 of this Act.". The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (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) are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois District, 176 Ill. 2d 401, 407 (1997).

cite the JCA or any other F ederal or State law as its basis for withholding the reports in their entireties.'> Instead, the Sheriff's Office's S answer simply asserted:

' [T]he police report in question regarding this case is entirely ' juvenile related. The juvenile was abused by an adult, however the report we have on file pertains to the questioning of the juvenile and what happened to him, Therefore I am prohibited from disclosing this juvenile report. !"¢1 ' The Illinois Appellate Court has emphasized that bare assertions without a detailed rationale do not satisfy a public body’ s burden of demonstrating that records are exempt from disclosure under FOIA. See Rockford Police Benevolent & Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 151 (2d Dist. 2010) (citing Mlinois Education Ass'n vy. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003)). Rather, the court stated, "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." (Emphasis added.) Rockford, 398 lil. App. 3d at 150. .

' | | | involved, it appears that the Sheriff's Office relied on the JCA as its basis for withholding the responsive police reports. Although the Sheriff’s Office cited the more general section 7(1)(a) in support of its denial, section 7.5(bb) of FOIA" is the provision of FOIA that expressly exempts from disclosure, "information which is or was prohibited from disclosure by the Juvenile Court Act of 1987."

Section 1-7(A) of the JCA'(705 ILCS 405/1-7(A) (West 2018)), titled “Confidentiality of juvenile law enforcement and municipal ordinance violation records[,]"

provides: | { { | | All juvenile law enforcement records which have not _ been expunged are confidential and may never be disclosed to the general public or otherwise made widely available. Juvenile law enforcement records may be obtained only under this Section and Section 1-8 and Part 9 of Article V of this Act, when their use is needed for good cause arid with an order from the juvenile court, as required by those not authorized to retain them. Inspection, copying, and disclosure of juvenile law enforcement records maintained by law enforcement agencies or records of municipal ordinance violations maintained by any State, local, or municipal agency that relate to a minor who has been investigated, arrested, or taken into custody before his or her 18th birthday shall be | restricted to the following[.] (Emphasis added.)

Section 1-7(A) of the JCA then enumerates the classes of persons who are permitted access to those records.*? The minor who is the subject of the investigation, arrest, or custodial detention along with that minor's parents, and any of those individuals’ legal representative are among the authorized parties. 705 ILCS 405/1-7(A)(0.05) (West 2018).

i i The term "juvenile law enforcement record" is defined in section 1 -3(8.2) of the JCA (705 ILCS 405/1-3(8.2) (West 2018)) as:

[R]ecords of arrest, station adjustments, fingerprints, probation ,; adjustments, the issuance of a notice to appear, or any other records or documents maintained by any law enforcement agency ' relating to a minor suspected of committing an offense, and records maintained by a law enforcement agency that identifies a juvenile as a suspect in' committing an offense, but does not include records identifying a juvenile as a victim, witness, or _ Mnissing juvenile and any records created, maintained, or used for _ purposes of referral to programs relating to diversion as defined in Subsection (6) of Section 5-105. (Emphasis added.)

' In its answer to this office, ‘the Sheriff's Office acknowledged that the requested police reports concern the investigation of an alleged crime committed by an adult against a minor.”! Because the records at issue here involve a juvenile as a victim, the plain language of the statute clearly indicates the records are not "juvenile law enforcement records." The Sherriff's Office, however, appears to assert that the JCA applies to all law enforcement records that reference the police interviewing a juvenile in any context.

"The most reliable indicator of legislative intent is the statutory language, given its plain and ordinary meaning." Gaffney v. Board of Trustees of Orland Fire Protection District, 2012 IL 110012, 956, 969 N.E.2d 359, 372 (2012). Where the language of a statute is clear and unambiguous, a reviewing body "may not depart from the plain language by reading into the statute exceptions, limitations, or conditions that the legislature did not express." Hayashi vy. Mlinois Dep't of Financial and Professional Regulation, 2014 IL 116023, 916, 25 N.E.3d 570, 576 (2014).

The plain and unambiguous language of section 1-3(8.2) [of the JCA] limits juvenile law enforcement records to records that relate to juveniles who have committed or are suspected of ; committing an offense.

| Clearly, the confi dentiality provisions of the Act are intended, not to shield possible police misconduct toward minors but rather, to protect the privacy of minors and allow them to lead responsible | and productive lives unencumbered by public records of their _ criminal conduct. NBC Subsidiary (WMAQ-TV), 2019 IL App | (1st) 181426, {428, 30, 145 N.E.3d at 78-79 (1st Dist. 2019).

} As oreviously noted, the definition of juvenile law enforcement records in section 1-3(8.2) of the JCA specifically excludes records identifying a minor who was the victim of an offense. Consequently, the JCA does not prohibit disclosure of police reports concerning a minor who is an alleged. victim, unless the suspect or perpetrator is also a juvenile. See NBC Subsidiary (WMAQ-TV), 2019 IL App (Ist) 181426, 931, 145 N.E.3d at 79 (1st Dist. 2019) (deciding the JCA "governs the confidentiality of law enforcement records that focus on a minor as the subj ect of an investigation, arrest, or custodial detention."). Based on this office's confidential review of the reports in question, the minor named in the responsive police reports was an alleged victim, not a suspect. Therefore, the confidentiality provisions of the JCA are inapplicable to the police reports requested by Mr. Horowitz.

| 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:

Public Access Counselor 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 September 17, 2020, the Public Access Bureau forwarded a copy of Mr. Horowitz's Request for Review to the Sheriff's Office and asked it to provide copies of the withheld police reports 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 the assertion that section 7(1)(a) specifically prohibits the disclosure of those records.

5) On October 6, 2020, the Public Access Bureau received the Sheriff's Office's written answer, which argued that it was prohibited from disclosing the requested reports because they referenced interviews with a juvenile. The Sheriff's Office provided copies of the withheld police reports to the Public Access Bureau on October 13, 2020.

\ \ | 6) On October 7, 2020, this office forwarded a copy of the Sheriff's Office's answer to Mr. Horowitz; he did not submit a written reply to the response.

7) On November 5, 2020, this office extended the time within which to issue a binding opinion by 30 business days, to December 22, 2020, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

8) Although the Sheriff's Office cited the exemption in section 7(1)(a) of FOIA which generally exempts records prohibited from being disclosed by State or Federal laws or rules and regulations implementing such laws, it did not cite any laws, rules, or regulations that prohibit disclosure of the police reports Mr. Horowitz requested.

9) The Public Access Bureau construed the Sheriff's Office's response to the request and answer to this office as asserting that the JCA prohibits disclosure of the police reports. Section 7.5(bb) of FOIA specifically exempts from disclosure "information which is or was prohibited from disclosure by the Juvenile Court Act of 1987."

12) The requested police reports concern a minor who was the victim of an alleged crime involving an adult suspect. The minor was not suspected of committing an offense. Therefore, the police reports aré not "juvenile law enforcement records" under the plain language of the definition of that term in section 1-3(8.2) of the JCA. Accordingly, the police reports are not exemipt from disclosure under sections 7(1)(a) or 7.5(bb) of FOTIA.

Therefore, it is the opinion of the Attorney General that the denial of Mr. Horowitz" 's Freedom of Information Act request by the Sherriff’'s Office violated the requirements of FOIA. Accordingly, the Sheriff's Office is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. Horowitz copies of the police reports responsive to his request. :

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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 2018). An aggrieved party: may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35,days of the date of this decision naming the Attorney General of Illinois and Mr. Adam Horowitz,as defendants. See 5 ILCS 140/11.5 (West 2018).

copy of the foregoing Binding Opinion (Public Access Opinion 20-008) upon:

Mr. Adam Horowitz Horowitz Law 110 East Broward Boulevard, Suite 1850 , Fort Lauderdale, Florida 33301 [email protected] i Ms. Mindy: Becker | Administrative Secretary - Ogle County Sheriff's Office 202 South 1st Street _ Oregon, Illinois 61061 | [email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by i | causing to be mailed.a true copy thereof in correctly addressed, prepaid envelopes to be