Meaning of "Security Measures" in Section 7(1)(v) of FOIA

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Dear Ms. Mothershead and Mr. Hernandez:

This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, e?ective January |, 2024). For the reasons discussed below, this o<ce concludes that the Chicago Housing Authority (CHA) violated the requirements of FOIA by improperly partially denying Ms. Sasha Mothershead's FOIA request.

BACKGROUND

On March 15, 2024, Ms. Mothershead submitted a FOIA request to the CHA, on behalf of the HOPE Fair Housing Center (HOPE), seeking an Excel Hle of certain information about each CHA Scattered Site property, including "Unit Address" and "Unit Status (ie. occupied request as follows:

CHA's Scattered Site properties consist of nearly 2,800 public housing units scattered individually or in small groups throughout Chicago's 77 communities and diverse housing populations. Scattered site units o?er a variety of housing options including homes in newer construction condominium buildings, single family detached homes, and within market rate rental developments.""!

On March 22, 2024, CHA extended its time to respond by Hve business days pursuant to section 3(e)(vi) of FOIA (5 ILCS 140/3(e)(vi) (West 2022)).> On March 29, 2024, CHA e-mailed Ms. Mothershead to state that it was still working on the request and would respond before the close of business on April 1, 2024. On April 4, 2024, having received no response, Ms. Mothershead e-mailed CHA to check the status.’ On April 5, 2024, CHA responded to the request by providing Ms. Mothershead with a spreadsheet of responsive information. The data, however, included only the second digit in the street number for each vacant unit. In its written response to the request,® CHA asserted that the full street addresses On April 15, 2024, Ms. Mothershead e-mailed CHA seeking reconsideration of the denial of the full street numbers of the vacant units. On April 17, 2024, CHA responded that under section 7(1)(v), CHA "is able to withhold the full street addresses of vacant units as providing this information poses a threat to community safety and makes these buildings the targets of squatters and other illegal activity."'! On April 24, 2024, Ms. Mothershead submitted a Request for Review contesting CHA's denial of the full street addresses for the vacant units.’

On April 26, 2024, the Public Access Bureau sent a copy of the Request for Review to CHA. The Public Access Bureau also sent CHA a letter asking for an unredacted copy of the requested dataset for this o<ce's conHdential review, together with a detailed explanation of the legal and factual bases for the applicability of the section 7(1)(v) exemption.'?

On May 21, 2024, CHA provided this o<ce with those materials.'4 On May 23, 2024, this o<ce forwarded a copy of CHA's answer to Ms. Mothershead and notiHed her of her opportunity to reply.!° On June 3, 2024, Ms. MacKenzie Speer, counsel for HOPE at the Chicago Lawyers' Committee for Civil Rights, submitted a reply."

Section 1 of FOIA (5 ILCS 140/1 (West 2022)) declares that "it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government." Under FOIA, "{a]ll 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 2022). The Illinois Supreme Court has "on several occasions, held that the exceptions to disclosure set forth in the FOIA are to be read narrowly so as not to defeat the FOJA's intended purpose." Southern Illinoisan y. Illinois Department of Public Health, 218 Ill. 2d 390, 416 (2006).

Section 7(1)(v) of FOIA exempts from disclosure:

Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, but only to the extent that disclosure could reasonably be expected to expose the vulnerability or jeopardize the e?ectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, to cybersecurity vulnerabilities, or to tactical operations. (Emphasis added.)

In construing a statute, the primary objective is to ascertain and give e?ect to the intent of the General Assembly. Southern Illinoisan, 218 Ill. 2d at 415. "[T]he surest and most reliable indicator of" legislative intent "is the statutory language itself, given its plain and ordinary meaning.” Board of Education of SpringHeld School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, 24.

By its plain language, section 7(1)(v) applies to records that meet three requirements. First, section 7(1)(v) applies to vulnerability assessments, security measures, and response policies or plans. Second, the vulnerability assessment, security measure, or response policy or plan must be created for the purpose of identifying, preventing, or responding to potential attacks on a community or its infrastructure. Finally, the disclosure of the vulnerability assessment, security measure, or response policy or plan could reasonably be expected to expose the vulnerability or jeopardize the e?ectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public.

Section 7(1)(v) is narrow in scope and limited to speciHc types of records, unlike certain other FOIA exemptions that may apply to a wide variety of records and pieces of a record (or information within a record) must Hrst consist of or depict a vulnerability assessment, a security measure, a response policy, or a response plan. Previous binding opinions of this o<ce have concluded that the numbers of police o<cers assigned to each police district in a city,!® police o<cer attendance records,'? and emergency response times’ were improperly redacted or withheld under section 7(1)(v) because they did not meet the threshold requirement of constituting or containing vulnerability assessments, security measures, or response policies or plans.

In its response to this o<ce, CHA stated that it redacted all but the second digit from each address "as a security measure * * * because the CHA has faced problems with housing activities and others forcibly entering vacant units and squatting in them."*! Here and throughout its response, CHA framed redacting the addresses as taking a security measure, rather than asserting that the addresses themselves constitute or depict a security measure designed to identify, prevent, or respond to potential attacks. For instance, CHA argued:

CHA's redactions of all but the second digit of the vacant housing as a Security measure is reasonable under the circumstances given the security concerns for housing activities taking "self-help" measures, breaking locks and changing locks, and then squatting in CHA's vacant premises. This has happened at least eight times where eviction of the squatters was required. This requires CHA to expend additional resources to evict these squatters and repair the damage they caused. (Emphasis in original.)!??]

v. City of Chicago, 2021 IL App (1st) 192073, demonstrates that it was appropriate to redact the street addresses pursuant to section 7(1)(v).?° In reply, Ms. Speer argued that section 7(1)(v) does not apply by its plain language:

HOPE requested street numbers and addresses, which are designed to identify and locate properties. Addresses and street numbers are not vulnerability assessments, security measures, or response policies and plans. A street number is not and does not include any emergency response planning or infrastructure information that might be redacted or withheld under Section 7(1)(v).?° CHA misconstrues section 7(1)(v) as authorizing public bodies to redact records as a security measure in and of itself. Section 7(1)(v) permits redactions of records that consist of or depict existing vulnerability assessments, security measures, or response policies or plans. The street addresses of vacant Scattered Site public housing units are simply pieces of data in a spreadsheet. They do not meet the threshold requirement of consisting of or depicting vulnerability assessments, security measures, or response policies or plans. The exemption in section 7(1)(v) therefore does not apply.

potential attacks could jeopardize the e?ectiveness of those security measures, does not support its construction of section 7(1)(v). In Chicago Sun-Times, the Illinois Appellate Court upheld the denial of surveillance camera recordings of an altercation on a Chicago Transit Authority (CTA) rail platform pursuant to section 7(1)(v) because (1) CTA proved that its surveillance camera network was a security measure designed to identify and respond to potential attacks on its transit facilities; and (2) the disclosure of the recordings could reasonably be expected to jeopardize the e?ectiveness of the surveillance system. Chicago Sun-Times, 2021 IL App (lst)

192028, J] 48-51. The CTA explained that the surveillance cameras both "record[ed] video that can be retrieved on demand and shared with law enforcement authorities to investigate a crime[,]" and "provid[ed] live feeds to the CTA's security department and local law enforcement, which can be used to direct rescue personnel and provide real-time intelligence to responding law enforcement personnel." Chicago Sun-Times, 2021 IL App (1st) 192028, | 48. Thus, having concluded that the threshold requirement of section 7(1)(v) was satisHed—the records at issue depicted security measures designed to identify, prevent, or respond to potential attacks upon a community's population or system, facilities, or installations—the court in Chicago Sun- Times then proceeded to explain that a public body need not prove that disclosing a record would in fact jeopardize the e?ectiveness of the measures to sustain its burden under section 7(1)(v). Similarly, the record at issue in Lucy Parsons Labs was among the speciHc types of records listed in the exemption—a response plan, described as an "action plan for ‘managing unrest in the case of an acquittal[ ]'" of a police o<cer facing trial in connection with a fatal shooting. Lucy Parsons Labs, 2021 IL App (1st) 192073, 99 3, 14. Again, the street addresses that CHA redacted do not meet this threshold requirement, making discussion of the exemption's other requirements moot. Because the section 7(1)(v) exemption is inapplicable by its plain language, CHA improperly redacted the vacant unit street addresses responsive to Ms. Mothershead's a binding opinion with respect to this matter.

4) On April 26, 2024, the Public Access Bureau sent a copy of the Request for Review to CHA. The Public Access Bureau also sent CHA a letter asking for an unredacted copy of the responsive record for this o<ce's conHdential review, and a detailed explanation of the legal and factual bases for the applicability of the asserted exemption.

5) On May 21, 2024, CHA provided this o<ce with an unredacted copy of the responsive spreadsheet and its written answer.

6) On May 23, 2024, the Public Access Bureau forwarded a copy of CHA's answer to Ms. Mothershead and notiHed her of her opportunity to reply. On June 3, 2024, Ms. MacKenzie Speer, counsel for the HOPE Fair Housing Center at the Chicago Lawyers' Committee for Civil Rights, submitted a reply.

7) Section 7(1)(v) of FOIA exempts from disclosure "[v]ulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, but only to the extent that disclosure could reasonably be expected to expose the vulnerability or jeopardize the e?ectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public." Under the plain language of section 7(1)(v), a record must meet the threshold requirement of consisting of or depicting a vulnerability assessment, security measure, or response policy or plan to qualify for redaction under this section.

8) The street addresses of CHA's Scattered Site properties do not consist of or depict vulnerability assessments, security measures, or response policies or plans that are designed to identify, prevent, or respond to potential attacks. Accordingly, CHA did not demonstrate that the redacted portions of the street addresses fall within the plain language of the section 7(1)(v) exemption.

Therefore, it is the opinion of the Attorney General that the Chicago Housing Authority violated the requirements of FOIA by improperly redacting portions of the street addresses responsive to Ms. Mothershead's Freedom of Information Act request. Accordingly, CHA is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Mothershead and the HOPE Fair Housing Center with the full street addresses responsive to the March 15, 2024, FOIA request.

This opinion shall be considered a Hnal decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by Hling a complaint for administrative review with the Circuit Court of Cook or Sangamon County within Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

Brent D. Stratton Chief Deputy Attorney General Cc: Ms. MacKenzie Speer Program Counsel Chicago Lawyers’ Committee for Civil Rights 100 North LaSalle Street, Suite 600 Chicago, Illinois 60602 cc: Ms. TaSheena Cunningham-Rimmer Senior Assistant General Counsel O<ce of the General Counsel Chicago Housing Authority 60 East Van Buren, 12th Floor Chicago, Illinois 60605 served a copy of the foregoing Binding Opinion (Public Access Opinion 24-008) upon:

Ms. Sasha Mothershead Fair Housing Specialist HOPE Fair Housing Center 202 West Willow Avenue, Suite 203 Wheaton, Illinois 60187 [email protected] Mr. Julio C. Hernandez FOIA O<cer Government and External A?airs Chicago Housing Authority 60 East Van Buren Chicago, Illinois 60605 [email protected] Ms. MacKenzie Speer Program Counsel Chicago Lawyers' Committee for Civil Rights 100 North LaSalle Street, Suite 600 Chicago, Illinois 60602 [email protected] Ms. TaSheena Cunningham-Rimmer Senior Assistant General Counsel O<ce of the General Counsel Chicago Housing Authority 60 East Van Buren, 12th Floor Chicago, Illinois 60605 [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 Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau O<ce of the Attorney General 100 West Randolph Street Chicago, Illinois 60601 (312) 814-6756