Basis for Withholding Records Related to the Resignation or Termination of a Public Employee

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Dear Mr. Lott and Mr. Co<ey:

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 o@ce concludes that the City of Chester Police Department (Department) improperly denied Mr. Travis Lott's January 28, 2025, FOJA request.

BACKGROUND

On that date, Mr. Lott, on behalf of the County Journal, submitted a FOIA request to the Department seeking "copies of resignation and/or termination paperwork for any Chester police o@cers from the months of December 2024 and January 2025[,]" as well as the the requested payroll history but denied Mr. Lott's request for resignation or termination paperwork pursuant to sections 7(1)(d)(i), 711 )(d)Gi), 7(1)(d) (iii), and 7(1)(d-6) of FOIA (5 ILCS 140/7(1)(d)q), (1)(d) i), (1)(d) iii), (1)(d-6) (West 2023 Supp.), as amended by Public Acts 103- 605, e<ective July 1, 2024; 103-865, e<ective January 1, 2025).? On February 3, 2025, Mr. Lott sent this o@ce a copy of the Department's response attached to an e-mail disputing the Department's denial of resignation or termination paperwork.’ On February 7, 2025, Mr. Lott completed his submission by e-mailing this o@ce a copy of the underlying FOIA request.* On February 13, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting unredacted copies of any withheld records for this o@ce's conFdential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions.’ On February 18, 2025, the Department furnished those materials, including a complete version of its answer for this o@ce's conFdential review and a redacted copy for forwarding to Mr. Lott.° On that same date, this o@ce forwarded a copy of the Department's redacted answer to Mr. Lott’ and notiFed him of his opportunity to reply in writing.’ Mr. Lott did not reply. On February 24, 2025, this o@ce received from the Department additional correspondence with two attachments; most of those materials were provided conFdentially.”

It is the public policy of the State of Illinois that "all persons are entitled to full and complete information regarding the a<airs of government." 5 ILCS 140/1 (West 2022). 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 public body satisFes its burden when it provides a detailed justiFcation for the claimed exemption which addresses the speciFc documents requested and allows for adequate adversarial testing." Turner v. Joliet Police Department, 2019 IL App (3d)

170819, § 10.

Sections 7(1)(d)(i) and 7(1)(d)(ii) of FOIA Sections 7(1)(d)(i) and 7(1)(d)(ii) of FOIA exempt from disclosure:

(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; [or]

(ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request[.] (Emphasis added.)

"The classiFcation of information as 'law enforcement' or 'investigatory' does not necessarily foreclose access unless it can be shown, in a particular case, that disclosure would interfere with law enforcement and would, therefore, not be in the public interest." Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 536 (1989). Conclusory statements that the disclosure of records would obstruct a law enforcement proceeding are insu@cient to support the assertion of the pending law enforcement proceeding exemption. Day v. City of Chicago, 388 Ill. App. 3d 70, 76 (2009) ("Simply saying there is an ‘ongoing criminal investigation because the case has not been cleared,' with little additional explanation, is not ‘objective indicia’ su@cient to show the ongoing investigation exemption applies."); see also Ill. Att'y Gen. Pub. Acc. Op. No. 24- 006, issued April 1, 2024, at 8-9 (explaining that a law enforcement agency must demonstrate with a detailed factual basis, rather than conclusory statements, how disclosure of all information in a police report would interfere with a law enforcement investigation to sustain its burden of proving the report is exempt from disclosure in its entirety pursuant to the section 7(1)(d)(i) exemption). Likewise, to fall within the scope of the section 7(1)(d)(ii) exemption, a public body In its response to this o@ce, the Department identiFed one record, labeled Exhibit A, that it withheld pursuant to sections 7(1)(d)(i), 7(1)(d)(ii), and 7(1)(d)(iii) of FOIA.!° The Department's redacted response, provided to Mr. Lott, did not disclose the Department's basis for withholding the record pursuant to these exemptions. The conFdential portions of the Department's response provided only a few details about the withheld record and the circumstances underlying the record. Those details fall short of demonstrating how or why disclosure of the record would result in the harms contemplated by the section 7(1)(d)(@) and 7(1)(d)(ii) exemptions. The Department did not explain with any speciFcity how disclosure of the record would interfere with any pending, actual or reasonably contemplated law enforcement or administrative proceeding. Moreover, the Department did not establish the existence of an active administrative enforcement proceeding. Even if an active administrative enforcement proceeding does exist, it is apparent from this o@ce's conFdential review of the record in question that it is a pre-existing document which was not created in the course of an administrative enforcement proceeding. Accordingly, the Department did not meet its burden of proving that the record is exempt from disclosure pursuant to sections 7(1)(d)(i) and 7(1)(d)(i1) of FOIA.

Section 7(1)(d)(iii) of FOIA Section 7(1)(d)(iil) of FOIA exempts from disclosure:

(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:

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 proceedings." Washington Post Co. v. U.S. Department of Justice, 863 F.2d 96, 102 (D.C. Cir.

1988); see also Chiquita Brands Int'l Inc. v. S.E.C., 805 F.3d 289, 298 (D.C. Cir. 2015) (the exemption applies "when the release of documents would likely deprive a party of a fair trial[.]").

As discussed above, the Department provided only a few details concerning the record in Exhibit A and a conclusory statement that disclosure of the record would interfere with law enforcement or administrative enforcement proceedings. Neither the existence of a pending investigation or proceeding nor the mere possibility that criminal charges will be Fled is su@cient to establish that a trial is "pending or truly imminent." Because the Department's response lacks facts to show that a trial or adjudication is truly imminent and that it is more probable than not that disclosure of any information within the record would interfere with a fair trial or impartial hearing, the Department did not meet its burden of proving that the record is exempt from disclosure pursuant to section 7(1)(d)(iii).

Section 7(1)(d-6) of FOIA and Section 9.2 of the Illinois Police Training Act Section 7(1)(d-6) of FOIA exempts from disclosure, in relevant part, "[rJecords contained in the O@cer Professional Conduct Database under Section 9.2 of the Illinois Police Training Act except to the extent authorized under that Section." Section 9.2(a) of the Illinois Police Training Act (Act) (50 ILCS 705/9.2(a) (West 2022)) provides that "[a]ll law enforcement agencies and the IIlinois State Police shall notify the [Illinois Law Enforcement Training and Standards] Board of any Fnal determination of a willful violation of department, agency, or the Illinois State Police policy, o@cial misconduct, or violation of law within 10 days" when certain other conditions enumerated in that provision are applicable.

Section 9.2(c) of the Act (50 ILCS 705/9.2(c) (West 2022)) establishes an O@cer Professional Conduct Database. SpeciFcally, the provision states that "[t]he Board shall maintain a database readily available to any chief administrative o@cer, or the o@cer's designee, of a law enforcement agency and the Illinois State Police" which contains certain information, including "each sustained instance of departmental misconduct that lead to a suspension at least 10 days * * * or any other reported violation, the nature of the violation, the reason for the Fnal decision of discharge or dismissal, and any statement provided by the o@cer{.]"!?_ Other than providing exceptions for (1) chief administrative o@cers of law enforcement agencies or their Database:

The database, documents, materials, or other information in the possession or control of the Board that are obtained by or disclosed to the Board under this subsection shall be conFdential by law and privileged, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action when sought from the Board.

* * * The Board shall not disclose the database or make such documents, materials, or other information it has obtained or that has been disclosed to it to the public. (Emphasis added.)

The Department argued that it properly withheld the record discussed above and four additional records, labeled Exhibits B, C, D, and E, pursuant to section 7(1)(d-6).'* The Department provided a largely conFdential explanation for the applicability of the exemption.' This o@ce's conFdential review of the records found that Exhibits C, D, and E, did not originate with the Department and do not document the resignation or termination of a police o@cer. Because these three records are not responsive to Mr. Lott's request for "copies of resignation and/or termination paperwork," this o@ce's review will be limited to the two remaining records, Exhibits A and B.

The two remaining records were originally created by the Department. In its response to this o@ce, the Department argued that it properly withheld the records pursuant to section 7(1)(d-6) because "'data provided * * * is conFdential and not public information.'"!® The Department designated as conFdential additional correspondence concerning the applicability of section 7(1)(d-6).

3gee 50 ILCS 705/9.2(c)(1) (West 2022).

Nothing in this Section shall exempt a law enforcement agency from which the Board has obtained data, documents, materials, or other information or that has disclosed data, documents, materials, or other information to the Board from disclosing public records in accordance with the Freedom of Information Act. (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 v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). "[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 SpringFeld School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, § 24. Further, it is a fundamental principle of statutory construction that di<erent sections of the same statute should be read together and construed harmoniously. Collinsville Community Unit School District No. 10 v. Regional Board of School Trustees of St. Clair County, 218 Ill. 2d 175, 185-86 (2006).

Section 7(1)(d-6) of FOIA exempts records in the database "except to the extent authorized" by section 9.2 of the Act. Under the plain language of section 9.2(g) of the Act, the conFdentiality provisions of section 9.2(c) do not prohibit law enforcement agencies that provided information to the Board from disclosing their own public records in accordance with FOIA. It is clear that the General Assembly intended these provisions to restrict access to the database maintained by the Board and exempt from disclosure records in the possession or control of the Board that were obtained from a law enforcement agency, while permitting a law enforcement agency to disclose its own records in accordance with FOIA.

Even if the Board obtained copies of the two contested records and is prohibited from disclosing them under section 9.2(c) of the Act, those records are nonetheless public records of the Department subject to disclosure pursuant to FOIA. Accordingly, the Department did not sustain its burden of proving that the two contested records are exempt from disclosure under section 7(1)(d-6) of FOIA.

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 Fnds that:

2) On February 3, 2025, the Department denied that portion of Mr. Lott's FOIA request pursuant to sections 7(1)(d)(i), 7(1)(d)(ii), 7(1)(d) (iii), and 7(1)(d-6) of FOIA.

3) On February 7, 2025, Mr. Lott's completed the submission of his Request for Review contesting the Department's denial. The Request for Review was timely Fled and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)). Accordingly, the Attorney General may issue a binding opinion with respect to this matter.

4) On February 13, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department and asked it to provide unredacted copies of the withheld records for this o@ce's conFdential review. This o@ce also asked the Department to provide a detailed explanation of the factual and legal bases for its denial of Mr. Lott's request.

5) On February 18, 2025, the Department furnished the requested materials to this o@ce, including a complete version of its answer for this o@ce's conFdential review and a redacted copy to forward to Mr. Lott.

6) On that same date, the Public Access Bureau forwarded a copy of the Department's written answer to Mr. Lott and notiFed him of his right to reply; he did not reply to that answer.

7) Section 7(1)(d)(i) of FOIA exempts from disclosure records in the possession of a law enforcement agency for law enforcement purposes only to the extent that their disclosure would "interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]" Section 7(1)(d)(ii) of FOIA exempts from disclosure records created in the course of administrative enforcement proceedings only to the extent that their disclosure would "interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request[.]"

8) The Department stated that it withheld one record (labeled Exhibit A) pursuant to sections 7(1)(d)(i) and 7(1)(d)(ii). The Department did not explain with any speciFcity how disclosure of the record would interfere with any pending or contemplated law enforcement proceeding. The Department also did not identify an active administrative enforcement proceeding or demonstrate how disclosure of the record would interfere with such a proceeding.

Further, the record was not created in the course of an administrative enforcement proceeding. Accordingly, the Department has not proven by clear and convincing evidence that the record is exempt from disclosure under sections 7(1)(d)(i) or 7(1)(d)(ii) of FOIA.

10) The Department did not demonstrate that a trial or adjudication related to the record identiFed as Exhibit A was imminent at the time of Mr. Lott's request, and the Department did not explain how or why disclosure of the record would deprive anyone of a fair trial or impartial hearing. Accordingly, the Department has not sustained its burden of demonstrating that the record is exempt from disclosure under section 7(1)(d)(iii) of FOIA.

11) Section 7(1)(d-6) of FOIA exempts from disclosure "[r]ecords contained in the O@cer Professional Conduct Database under Section 9.2 of the Illinois Police Training Act except to the extent authorized under that Section."

12) Section 9.2(c) of the Illinois Police Training Act provides that "[t]he database, documents, materials, or other information in the possession or control of the Board that are obtained by or disclosed to the Board under this subsection shall be conFdential by law and privileged[.]"

13) Section 9.2(g) of the Illinois Police Training Act provides that "[nJothing in this Section shall exempt a law enforcement agency from which the Board has obtained data, documents, materials, or other information or that has disclosed data, documents, materials, or other information to the Board from disclosing public records in accordance with the Freedom of Information Act."

14) The plain language of section 9.2(g) of the Illinois Police Training Act provides that the conFdentiality provisions in section 9.2(c) do not exempt a law enforcement agency that provided records to the Board from disclosing its own public records in accordance with FOIA.

15) The Department withheld two records (labeled Exhibits A and B) responsive to Mr. Lott's request for resignation or termination paperwork pursuant to section 7(1)(d-6) of FOIA.

16) Because those two records are the Department's own public records rather than records in the possession or control of the Board, section 9.2(g) of the Illinois Police Training Act provides that they are not subject to the conFdentiality provisions of section 9.2(c) of the Act. Accordingly, the Department has not sustained its burden of demonstrating that the records are exempt from disclosure under section 7(1)(d-6) of FOIA.

Therefore, it is the opinion of the Attorney General that the City of Chester Police Department improperly withheld two records in response to Mr. Travis Lott's January 28, 2025, Freedom of Information Act request for resignation or termination paperwork for police o@cers. Accordingly, the Department is hereby directed to take immediate and appropriate action to This opinion shall be considered a Fnal 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 Fling 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. Travis Lott as defendants. See 5 ILCS 140/11.5 (West 2022).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

By: an \L dh ina on a Brent D. Stratton ' Chief Deputy Attorney General that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-002)

upon:

Mr. Travis Lott County Journal 1101 East Pine Street Percy, Illinois 62272 [email protected] Mr. Jason E. Co<ey City Attorney City of Chester 600 State Street Chester, Illinois 62233 [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 March 28, 2025.

iS ore shua M. Jones Bureau Chief