Illinois State Police improperly withheld investigation records under 7(1)(d)(iii)

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Dear and Mr. Sutton:

This determination letter is issued pursuant to section 9. 5( f) of the Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)). For the reasons that follow, the Public Access Bureau concludes that the response by the Illinois State Police ( ISP) to February 13, 2018, request violated the requirements of FOIA.

On that date, submitted a FOIA request to ISP seeking copies of any and all records involving the investigation of specific individuals within the New Lenox Police Department concerning an August 2016 incident. On February 20, 2018, ISP extended its time for response by five business days. On March 7, 2018, ISP denied the request in its entirety The information requested could create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing if the information were made public, as this case has not yet been adjudicated. The entirety of the evidence in this case is related to statements made by law enforcement officers against another law enforcement officer. The Appellate Prosecutor is currently reviewing this case for possible charges against the accused. With the recent rash of news stories presenting law enforcement officials in a bad light, release of this information at this time would serve to taint a jury pool, thus preventing the accused officer from receiving a fair trial. l' 1 On March 16, 2018, submitted this Request for Review contesting ISP' s denial.

On April 11, 2018, this office sent a copy of the Request for Review to ISP and asked it to furnish this office with unredacted copies of the requested records for this office' s confidential review, together with a detailed written explanation of the factual and legal bases for the applicability' of the asserted exemption. On April 18, 2018, ISP provided the requested

DETERMINATION

FOIA provides that "[ a] ll records in the custody or possession of a public body are presumed to be open to inspection or copying." 5 ILCS 140/ 1. 2 ( West 2016); see also Southern Illinoisan v. Illinois Department ofPublic Health, 218 111. 2d 390, 415 ( 2006). A public body " has the burden of proving by clear and convincing evidence" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2 ( West 2016).

Section 7( 1)( d)( iii) 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:

iii) create a substantial likelihood that a person will be deprived of a fair trial or impartial hearing[.]

To demonstrate that records are exempt from disclosure under the corresponding provision in Federal FOIA ( 5 U. S. C. § 552 et seq. ( 1982 and Supp. 1988)), 3 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 proceedings." Washington Post Co. v. U.S. Dep' t ofJustice, 863 F. 2d 96, 102 ( D. C. Cir. 1988). In accordance with Illinois judicial precedent, the Attorney General has issued a binding opinion to ISP concluding that the mere existence of an ongoing investigation that could result in criminal charges does not constitute clear and convincing evidence that any records are exempt from disclosure. Ill. Att'y Gen. Pub. Acc. Op. No. 17- 001, issued March 14, 2017, at 5.

ISP' s assertion of section 7( 1)( d)( iii) is largely conclusory. ISP' s response to this office merely stated that the Appellate Prosecutor' s office was in the process of reviewing the requested records to determine the next steps, ifany. ISP has neither demonstrated that a trial or adjudication is pending or truly imminent, nor explained how the release of any specific records— much less all of the records— would create a substantial likelihood that a person would be deprived of a fair trial. Because ISP has not set forth facts demonstrating how the disclosure of the withheld records would create a substantial likelihood that a person would be deprived of a fair trial or an impartial hearing, this office concludes that ISP has not met its burden of demonstrating by clear and convincing evidence that the requested records are exempt from disclosure in their entireties under section 7( 1)( d)( iii) of FOIA.

Although ISP did not raise any other exemptions in its response to FOIA request, this office notes that certain discrete portions of the responsive records that bear on the rights of third parties contain information that may be properly redacted. In particular, private information may be redacted under section 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2017 Supp.)).' In addition, dates of birth may be properly redacted under section 7( 1)( c) ofFOIA5 ( 5 ILCS 140/ 7( 1)( c) ( West 2017 Supp.)) and information identifying witnesses who provided information may are exempt from disclosure pursuant to section 7( 1)( d)( iv) ( West 2017 Supp.)). See 11. Att' y Gen. Req. Rev. Ltr. 12887, issued July 20, 2011 exempting names of public employees who provide information during the course of an administrative investigation of another employee).

In accordance with the conclusions expressed in this letter, this office requests that ISP provide with copies of the requested records, subject only to permissible redactions of the records pursuant to section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017).

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter serves to close this matter. If you have any questions, please contact me at the Springfield address on the first page of this letter.

Very truly ours RIS i ' HER R. BOGGS Assistant Attorney General Public Access Bureau 52348 f 7ldiii improper pd sa