Lake County Sheriff's Office properly denied body camera footage under 7(1)(a)

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Dear and Ms. Berkquist:

On May 1, 2018, this office sent the Sheriffs Office a copy of the Request for Review and requested copies of the withheld footage for our confidential review, as well as a detailed explanation of the factual and legal bases for the asserted exemption. The Public Access Bureau received a letter from The Honorable Jay W. Ukena, Chief Judge, Circuit Court, Nineteenth Judicial Circuit, dated May 7, 2018, asserting that the body camera videos were property of the judicial branch and not subject to FOIA, or, alternatively, were exempt from disclosure pursuant to section 7( 1)( a) of FOIA. On May 16, 2018, the Sheriffs Office responded by adopting the letter from Judge Ukena as its response to Request for Review. On May 16, 2018, this office forwarded copies of Judge Ukena's letter and the Sheriff's Office's answer to he did not reply.

DETERMINATION

All 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 Ill. 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). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 407 ( 1997).

In its answer to this office, the Sheriff's Office asserted that disclosure of the footage sought by is limited by Illinois Supreme Court Rule 63. In particular, the Sheriffs Office asserted that footage captured inside the Lake County Circuit Clerk' s Office Circuit Clerk's Office) by Sheriff's Office deputies assigned to the Court Security Unit "are not public records but are records of the judicial branch and not subject to FOIA[. J' 2 Illinois Supreme Court's rules " have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bright v. Dicke, 166 Ill. 2d 204, 210 1995). The Illinois Supreme Court has explained:

Illinois Supreme Court Rule 63, titled "A Judge Should Perform the Duties of Judicial Office Impartially and Diligently[,]" is one of the canons of the Judicial Code of Conduct? The Appendix to Rule 63 provides, in pertinent part:

All recordings from security cameras monitoring court facilities are the property of the local circuit courts and are deemed to be in the possession of the local circuit courts notwithstanding actual possession by another party. ( Emphasis added.) Ill. S. Ct. R. 63, Appendix ( last amended February 2, 2017).

On the other hand, section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2016)) provides that all public records " in the custody or possession of a public body are presumed to be open to inspection or copying." FOIA broadly defines " public records" as:

all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body. 5 LCS 140/ 2( c) ( West 2016).

To the extent Supreme Court Rule 63 conflicts with these provisions of FOIA by designating footage from security cameras monitoring court facilities as property of the circuit courts, even if the footage is in the physical custody of a public body such as the Sheriff's Office, the Rule takes precedence: " It is well settled in Illinois that where a supreme court rule conflicts with a statute on the same subject, ' the rule will prevail."' Dalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper & Kramer, Inc., 372 III. App. 3d 362, 370 ( 1st Dist. 2007) quoting O'Connell v. St. Francis Hospital, 112 III. 2d 273, 281 ( 1986)).

The Illinois Supreme Court has held that " clerks of the circuit courts in this State are nonjudicial members of the judicial branch of State government" Drury v. McLean County, 89 I11. 2d 417, 420 ( 1982). Thus, the Circuit Clerk' s Office within the Lake County Courthouse ( Courthouse) is a " court facility" as that term is used in the Appendix to Rule 63.

Based on its plain language, the clear intent of the Illinois Supreme Court in adopting the Appendix to Rule 63 was to designate recordings captured for security purposes from inside the Courthouse as Circuit Court property. 4 In this matter, the footage was captured by members of the Court Security Unit, who are assigned to the Courthouse to "maintain the security of the courthouse." 55 ILCS 5/ 3- 6023 ( West 2016). The Circuit Court denied the Sheriffs Office request to release the footage at issue.5 Because the requested footage is Circuit Court property despite being in the physical custody of the Sheriffs Office, and because the Circuit Court directed the Sheriff's Office not to release the footage, this office concludes that there is no basis on which to find that the Sheriff' s Office violated FOIA by withholding the footage.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. Please contact me at ( 217) 782- 9054, mhartman@atg. state. il.us, or the Springfield address at the bottom of the first page if you have questions. This letter serves to close this file.

Very truly yours, MATT HARTMAN Assistant Attorney General Public Access Bureau