Duty to Conduct Reasonable Search for Responsive Records; Duty to Disclose Public Records

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Dear Mr. Stecklow and Mr. Perry:

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 2023 Supp.)). For the reasons discussed below, this oEce concludes that the St. Clair County State's Attorney's OEce ("State's Attorney's OEce" or "SAO") violated the requirements of FOIA by failing to conduct a reasonable search for records responsive to Mr. Sam Stecklow's October 15, 2024, FOIA request, and by improperly denying the request.

BACKGROUND

On October 15, 2024, Mr. Stecklow submitted a FOIA request to the State's Attorney's OEce on behalf of the Invisible Institute seeking "the St. Clair County State's Attorney's policies on police-involved shootings and in-custody deaths and all reports issued and control to the public. We do not answer questions. As stated previously we have no documents responsive to your request."° Still on October 21, 2024, Mr. Stecklow submitted a new FOIA request to the State's Attorney's OEce, this time seeking a copy of "[a]ny records reNecting the Indings of the St. Clair County State's Attorney as to whether to bring charges in the following cases: The police-involved death of Diwone Wallace on 4/2/21[.]"’ Mr. Stecklow provided a link to a news article concerning that matter.’ The wording of this request diTered somewhat from Mr. Stecklow's prior request in using "records" instead of "reports," and speciIcally mentioning "Indings" about "bring[ing] charges." Approximately 20 minutes later, the State's Attorney's OEce denied the request pursuant to section 7(1)(f) of FOIA.’ Mr. Stecklow Iled a Request for Review (2024 PAC 83563) contesting that denial.'!° He argued that the State's Attorney's 15, 2024, request, and disputed that any such records were exempt from disclosure pursuant to section 7(1)(f).!?

On October 22, 2024, in response to correspondence from this oEce concerning Mr. Stecklow's Request for Review, the State's Attorney's OEce disclosed to this oEce and to Mr. Stecklow a copy of the record pertaining to Mr. Wallace's death.'* The record—a one-page letter from Mr. Daniel E. Lewis, First Assistant State's Attorney for the State's Attorney's OEce, to Special Agent Colin Subick of the Illinois State Police (ISP)—brieNy described a review of the evidence and concluded that "there is no basis for a claim of excessive use of force nor is there any basis for criminal charges against any oEcer involved."!* The State's Attorney's OEce's FOIA oEcer stated that he did not discover the record until this oEce contacted him in connection with Mr. Stecklow's Request for Review:

As we were not the investigative body regarding the death of Mr. [Wallace], but rather the State Police, I was not aware of any oEcial Indings by our oEce. Upon receipt of your letter I made further inquiry and was made aware of the following attached letter from our OEce to the Illinois State Police notifying them that we would not be Iling charges.

I hope this puts this matter to rest.!!> further questioned the completeness of the State's Attorney's OEce's response to his October 15, 2024, FOIA request. Mr. Stecklow asked the State's Attorney's OEce:

[T]here is another request that already sought this record, and was met with a no responsive records response. Please conduct a new search for responsive records to my Irst request, or I will be forced to Ile an appeal of that denial based on the fact that records clearly exist, as evidenced by your response today, !!71 Thus, Mr. Stecklow renewed his October 15, 2024, request. On October 22, 2024, the State's Attorney's OEce responded, in relevant part: "Your Irst request was for any documents related to oEce policy regarding the handling of Police shootings. As I responded, we have no written policy regarding oEcer shootings."'* On that same date, Mr. Stecklow replied by highlighting the second half of his October 15, 2024, request, which expressly sought reports issued by the State's Attorney's OEce pertaining to police-involved shootings and in-custody deaths since 2019; Mr. Stecklow stated that he would move forward with a new Request for Review.'? The State's Attorney's OEce invited him to do so.”° On October 24, 2024, Mr. Stecklow submitted via e-mail a Request for Review contesting the completeness of the State's Attorney's OEce's response to his October 15, 2024, request.*! He argued:

The records I am seeking are not easily misplaced or overlooked. They are a serious, integral part of the workings of the SAO — or they should be. The SAO is charged by law with reviewing every fatal police shooting or in-custody death that occurs in its jurisdiction, regardless of the investigative body. Beyond its general responsibilities to review homicides or potential the case review the investigation to "determine [whether] there is [a] basis to prosecute the law enforcement oEcer involved" in [an] "oEcer-involved death." If a decision is made to not prosecute the law enforcement oEcer, "the investigators shall publicly release a report."

Regardless of whoever "the investigators" envisioned in the Inal part of the law are, it is clear that the SAO is responsible under the law for reviewing every fatal police shooting and in- custody death investigation, or, at the very least, designating a special prosecutor.

Here are some more cases that I am independently aware of that are likely responsive to my request, if the SAO did indeed carry out its statutory duties:

e St. Clair County Jail detainees Preston Thomas, Samuel L.

Johnson, and an unnamed third detainee, who died in custody in January and February 2021 !C#torJ e St. Clair County Jail detainee Emil Engelman, who reportedly died by suicide in 2020!t#tion.]

e Kyeiree Myers, who died in Fairmont City after being shot by Washington Park Police oEcers and then hit by two cars [Citation]

Only the SAO knows how many more there are.!?7!

On October 29, 2024, the Public Access Bureau sent a copy of the Request for Review to the State's Attorney's OEce. The Public Access Bureau also sent the State's Attorney's OEce a letter asking for unredacted copies of the records responsive to Mr. Stecklow's October 15, 2024, FOIA request for this oEce's conIdential review, together with a detailed written answer to the allegation that the State's Attorney's OEce improperly withheld responsive records.”*> The inquiry letter asked the State's Attorney's OEce to include in its On that same date, the State's Attorney's OEce provided only a written answer, asserting that it would be unduly burdensome under section 3(g) of FOIA (5 ILCS 140/3(g) (West 2022)) to gather all reports responsive to Mr. Stecklow's request.?> On that same date, this oEce forwarded a copy of the State's Attorney's OEce's answer to Mr. Stecklow and notiIed him of his opportunity to reply.*° On that same date, he submitted a reply disputing that the request was unduly burdensome, noting that an identical request to Madison County yielded only 170 pages of responsive records.”’ Later on that same date, the State's Attorney's OEce submitted an unsolicited response to Mr. Stecklow's reply.”°

ANALYSIS

"It is a fundamental obligation of government to operate openly and provide public records as expediently and eEciently as possible in compliance with" FOIA. 5 ILCS 140/1 (West 2022). The preamble of FOIA further speciIes:

Restraints on access to information, to the extent permitted by this Act, are limited exceptions to the principle that the people of this State have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that aTect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed in accordance with this principle. 5 ILCS 140/1 (West 2022).

A public body "must construe FOIA requests liberally[.]" Better Government Ass'n v. City of Chicago, 2020 IL App (1st) 190038, 9 31; see also State Journal-Register v. University of With respect to the language of Mr. Stecklow’'s request that encompasses deaths in custody, section 1-5 of the Police and Community Relations Improvement Act (50 ILCS 727/1-5 (West 2022)) deInes "oEcer-involved death" to include, in relevant part, "any death of an individual that results directly from an action or directly from an intentional omission, including unreasonable delay involving a person in custody or intentional failure to seek medical attention when the need for treatment is apparent, of a law enforcement oEcer[.]" Mr. Stecklow's Request for Review referenced subsection 1-10(e) of the Police and Community Relations Improvement Act (50 ILCS 727/1-10(e) (West 2023 Supp.)). Subsection 1-10(e) is the Ifth and Inal subsection of section 1-10 of that Act,’? which sets forth certain requirements for the investigation of oEcer-involved deaths. Section 1-10 provides, in relevant part:

(a) Each law enforcement agency shall have a written policy regarding the investigation of oEcer-involved deaths that involve a law enforcement oEcer employed by that law enforcement agency.

(b) Each oEcer-involved death investigation shall be conducted by at least 2 investigators, or an entity or agency comprised of at least 2 investigators, one of whom is the lead investigator. * * * (d) The investigators conducting the investigation shall, in an expeditious manner, provide a complete report to the State's Attorney of the county in which the oEcer-involved death occurred.

(e) If the State's Attorney, or a designated special prosecutor, determines there is no basis to prosecute the law enforcement oEcer involved in the oEcer-involved death, or if the law enforcement oEcer is not otherwise charged or indicted, the investigators shall publicly release a report.

When an Assistant Attorney General in the Public Access Bureau asked Mr. Stecklow for examples of the records the Madison County State's Attorney's OEce provided in response to his request for the same type of records at issue in this matter,°? Mr. Stecklow 2°50 ILCS 727/1-10(a) through 1-1!0(e) (West 2023 Supp.).

Subsection 1-10(d) of the Police and Community Relations Improvement Act expressly requires investigators to provide their own investigatory reports about each oEcer- involved death to the local State's Attorney (or designated special prosecutor, as applicable), who must then determine whether there is a basis to prosecute the oEcer; if there is not, investigators are required to publicly release a report pursuant to section 1-10(e) of the Police and Community Relations Improvement Act. State's Attorney's OEces also may elect to compile reports of their Indings from their reviews under section 1-10(d). As evidenced by the letter the State's Attorney's OEce disclosed in response to Mr. Stecklow's October 21, 2024, request, and by the State's Attorney's OEce's assertion that locating the other responsive records would be unduly burdensome, the State's Attorney's OEce issues such reports in at least some instances.

In its answer to this oEce's inquiry letter, the State's Attorney's OEce stated that for Mr. Stecklow's October 21, 2024, FOIA request, which pertained only to Diwone Wallace, "we were able to locate a letter from our oEce to the Illinois State Police regarding a speciIc fatal Police Shooting, because he had the name of the victim."** In contrast, the State's Attorney's OEce claimed, Mr. Stecklow's October 15, 2024, request seeking all reports since 2019 regarding police-involved shootings and in-custody deaths "would have to be classiIed as unduly burdensome per Section 3(g) of FOIA[.]"** The State's Attorney's OEce's full explanation for asserting that the request is unduly burdensome is that: "[W]e do not maintain those records in a separate or speciIc Ile. Our oEce would be required to review every felony review request in the last Ive years to comply with his request." "With that being said[,]" the State's Attorney's OEce noted, "[i]f Mr. Stecklow would like our oEce to search for records Mr. Stecklow replied that he did "not believe the records will be particularly voluminous. St. Clair County's neighbor, Madison County, which is of a similar size, provided responsive records to an identical request that numbered about 170 pages, not including the response letters."*’ In its unsolicited response to that reply,** the State's Attorney's OEce argued:

Mr. Stecklow's argument that Madison County provided responsive records to an identical request is irrelevant to this matter. The fact that Madison County in Mr. Stecklow's opinion is "of a similar size," has no bearing on how St. Clair County records are stored. That statement makes the unfounded assumption that every similarly situated Public Body stores every category of record the exact same way, and that every similarly situated Public Body has a written policy for a requested category of records.2%!

In a reply to that correspondence, Mr. Stecklow contended:

Where this seems to land is that the SAO claims it has no responsibility to search for and release a select group of records, over a discrete time period, having to do with one of the most vital public integrity functions that it plays in society, because of how the SAO has chosen to maintain its records. I do not believe that this is what FOJA provides for.!*°!

A public body must perform a reasonable search for responsive records under the circumstances of each FOIA request. Better Government Ass'n, 2020 IL App (Ist) 190038, 4 31. "Although a public body is not required to perform an exhaustive search of every possible location, the body must construe FOIA requests liberally and search those places that are ‘reasonably likely to contain responsive records." Better Government Ass'n, 2020 IL App (1st)

Despite this oEce's direct and unambiguous request for an explanation of how the State's Attorney's OEce searched for responsive records, the State's Attorney's OEce provided no such information. Indeed, there is no evidence in the record that the State's Attorney's OEce performed any search at all. To the extent that the State's Attorney's OEce was unclear about what records Mr. Stecklow was seeking, it did not notify Mr. Stecklow that the request was unclear or ask him to clarify his request. In his correspondence to the State's Attorney's OEce after the disclosure of the letter responsive to his October 21, 2024, request, Mr. Stecklow reiterated his October 15, 2024, request to the State's Attorney's OEce and made clear that he was seeking those same kinds of records. In response, the State's Attorney's OEce only stated that it did not have a policy regarding oEcer shootings. It did not address the request for reports issued by the State’s Attorney's OEce pertaining to police-involved shootings and in-custody deaths since 2019 even after Mr. Stecklow expressly stated that he was seeking such records.

The State's Attorney's OEce's answer to this oEce indicates that it believes it was not required to search for responsive reports unless Mr. Stecklow named the subjects. A requester, however, must only identify the records being requested by describing their contents.

See Bocock v. Will County SheriT, 2018 IL App (3d) 170330, § 50 ("PlaintiT identiIed the documents sought based upon a description of their contents. To require a citizen seeking public records to identify those records with any greater speciIcity would be in complete contravention of the public policy underlying FOIA."). Mr. Stecklow's request for reports issued by the State's Attorney's OEce concerning police-involved shootings and in-custody deaths since 2019 reasonably described the discrete records he sought, especially after he restated his request on October 22, 2024. He was not required to name the subjects to adequately identify those records. Although the State's Attorney's OEce stated that it was willing to disclose the reports for the subjects Mr. Stecklow named in his Request for Review, the State's Attorney's OEce should have already done so. Even then, there is no indication that such a measure would account for all records responsive to the full scope of the FOIA request.

As to the State's Attorneys OEce's claim, Irst raised in response to the Request for Review, that Mr. Stecklow’'s request posed an undue burden, section 3(g) of FOIA provides, in pertinent part:

Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request to manageable proportions. If any public body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information.

"Before invoking the section 3(g) exemption, the public body must provide the requester 'an opportunity to confer with it in an attempt to reduce the request to manageable proportions." Shehadeh v. Madigan, 2013 IL App (4th) 120742, ¢ 19 (quoting 5 ILCS 140/3(g) (West 2012)). Further, "a public body asserting a section 3(g) exemption must make a clear and convincing showing that the burden of compliance outweighs public interest in the disclosure of the requested records." Sargent Shriver National Center on Poverty Law, Inc. v. Board of Education, 2018 IL App (lst) 171846, ¢ 38.

The State's Attorney's OEce did not fulIll the procedural requirements for treating the request as unduly burdensome. SpeciIcally, in response to Mr. Stecklow's FOIA request, the State's Attorney's OEce did not assert that the request was unduly burdensome, explain why it would be unduly burdensome or the extent to which the request would burden its operations, or give Mr. Stecklow an opportunity to confer in order to narrow the request to manageable proportions. The State's Attorney's OEce thus forfeited the ability to deny the request on that basis. The State's Attorney's OEce's untimely assertion of the section 3(g) exemption in response to the Request for Review was thus improper. On this basis alone, the State's Attorney's OEce's assertion of section 3(g) necessarily fails.

Moreover, the State's Attorney's OEce's unsupported claim that the request is unduly burdensome because the State's Attorney's OEce would need to examine every felony review Ile from the previous Ive years does not account for much less burdensome alternatives. Police-involved shootings and in-custody deaths are generally uncommon, noteworthy, and memorable events distinguishable from the typical case that is screened for felony charges. As noted above, oEcer-involved deaths must receive a specialized review under section 1-10 of the Police and Community Relations Improvement Act. There are only so many employees of the State's Attorney's OEce who may have authored the kind of report Mr. Stecklow requested, and/or who hold supervisory positions that make them aware of such determinations; these public employees and the State's Attorney could readily be consulted about the existence of responsive reports.

Finally, the State's Attorney's OEce could have devised keyword searches of recordkeeping systems such as e-mail accounts that may have been used to transmit copies of the reports, or at least contain communications that could be used to identify relevant cases and locate the reports. In particular, the State's Attorney's OEce gave no reason why it could not electronically search correspondence with ISP, including to the Special Agent at ISP to whom deaths for criminal charges. Accordingly, the State's Attorney's OEce improperly denied the request.

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 Inds that:

1) On October 15, 2024, Mr. Sam Stecklow submitted a FOJA request to the St. Clair County State's Attorney's OEce on behalf of the Invisible Institute seeking a copy of the State's Attorney's OEce's policy on police-involved shootings and in-custody deaths, and copies of all reports issued from the State's Attorney's oEce regarding those cases since 2019.

2) On October 18, 2024, the State's Attorney's OEce responded that it possessed no responsive records.

3) On October 21, 2024, Mr. Stecklow submitted a follow-up FOIA request to the State's Attorney's OEce for a copy of the report pertaining to the oEcer-involved death of Diwone Wallace.

4) On that same date, the State's Attorney's OEce denied the request pursuant to section 7(1)(f) of FOIA.

5) On that same date, Mr. Stecklow submitted a Request for Review (2024 PAC 83563) disputing that denial.

6) On October 22, 2024, the State's Attorney's OEce disclosed a copy of the responsive report pertaining to Mr. Wallace, resolving Request for Review 2024 PAC 83563.

7) On that same date, Mr. Stecklow asked the State's Attorney's OEce to conduct a new search for the remaining records responsive to his October 15, 2024, request, but the State's Attorney's OEce refused to do so.

8) In an e-mail transmitted to the Public Access Bureau on October 24, 2024, Mr. Stecklow submitted a Request for Review contesting the reasonableness of the State's Attorney's OEce's search for reports responsive to his October 15, 2024, request, and its failure to disclose responsive records other than the belated disclosure of the report pertaining to Mr. Wallace. The Request for Review was timely Iled and otherwise complies with the requirements of section 9) On October 29, 2024, the Public Access Bureau sent a copy of the Request for Review to the State's Attorney's OEce. The Public Access Bureau also sent the State's Attorney's OEce a letter asking for unredacted copies of the records responsive to Mr. Stecklow's October 15, 2024, FOIA request for this oEce's conIdential review, together with a detailed written answer to the allegation that the State's Attorney's OEce improperly withheld responsive records. The inquiry letter also asked the State's Attorney's OEce to explain in detail how it searched for responsive records, specifying which recordkeeping systems it searched, what methods it used to search, who it consulted, and why.

10) On October 29, 2024, the State's Attorney's OEce furnished only a written response in which it asserted that complying with the request would be unduly burdensome under section 3(g) of FOIA.

11) On that same date, Mr. Stecklow submitted a reply.

12) A public body must perform a reasonable search for records responsive to a FOIA request; a public body bears the burden of demonstrating that its search for records was reasonable.

13) The State's Attorney's OEce failed to demonstrate that it performed a reasonable search for responsive records.

14) In order to treat a request as unduly burdensome under section 3(g) of FOIA, a public body must meet certain procedural prerequisites, including Irst extending to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions.

15) The State's Attorney's OEce did not meet the procedural requirements of section 3(g) of FOIA, and did not demonstrate that it otherwise properly denied the request under section 3(g) or for any other reason.

Therefore, it is the opinion of the Attorney General that the St. Clair County State's Attorney's OEce violated the requirements of FOIA by failing to perform a reasonable search for records responsive to Mr. Sam Stecklow's October 15, 2024, Freedom of Information Act request and by improperly denying the request. Accordingly, the State's Attorney's OEce is hereby directed to take immediate and appropriate action to comply with this opinion by (1) performing a new, diligent search tailored to the full scope of Mr. Stecklow's October 15, 2024, FOIA request; (2) providing Mr. Stecklow with copies of any and all responsive records; and (3)

furnishing to Mr. Stecklow a written explanation of the State's Attorney's OEce's supplemental search for responsive records in suEcient detail to assess the adequacy of the State's Attorney's OEce's search measures. If the State's Attorney's OEce redacts any portion of the responsive This opinion shall be considered a Inal 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 Iling 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 2022).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

By: htt 7 Brent D. Stratton Chief Deputy Attorney General served a copy of the foregoing Binding Opinion (Public Access Opinion 24-014) upon:

Mr. Sam Stecklow Reporter, Invisible Institute Experimental Station 6100 South Blackstone Avenue Chicago, Illinois 60637 [email protected] Mr. Don Perry Assistant State's Attorney St. Clair County State's Attorney's OEce 10 Public Square Belleville, Illinois 62220 [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 Chicago, Illinois on December 18, 2024.

Steve Silverman Bureau Chief Steve Silverman Bureau Chief Public Access Bureau OEce of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756