Chicago Police Department did not violate FOIA by withholding body camera footage under 7(1)(d)

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Dear Ms. Assad and Ms. O'Malley:

the request in its entirety pursuant to sections 7( 1)( a), 7( 1)( c), and 7( 1)( d) of FOIA ( 5 ILCS 140/ 7( 1)( a), ( 1)( c), ( 1)( d) ( West 2018), as amended by Public Act 101- 455, effective August 23, 2019). In connection with section 7( 1)( a), CPD cited section 10- 20( b) of the Law Enforcement Officer -Worn Body Camera Act (Body Camera Act) ( 50 ILCS 706/ 10- 20( b) ( West 2018)). The following day, Ms. Samah submitted a Request for Review ( 2019 PAC 60599) contesting CPD' s denial. She explained that her news station had been reporting on raids of the wrong homes and stated:

In this FOIA, I requested body camera footage from a wrong raid on an innocent family' s home where children were present. The family alleges the officers pointed guns at them, including in the direction of a 3 - month- old baby. While there may have been no arrests, it can be argued that police did in fact use force by pointing guns. 121 In addition, on August 21, 2019, Ms. Assad submitted another FOIA request to CPD seeking body camera footage for a different residence. On November 11, 2019, CPD denied the request, again citing section 7( 1)( a) of FOIA in connection with the Body Camera Act. On November 18, 2019, Ms. Assad submitted a Request for Review ( 2019 PAC 60575)

contesting that denial too. She stated:

In this FOIA, I requested body camera footage from a wrong raid on an innocent woman' s home who was naked and handcuffed. She said officers pointed guns at her. While she may not have been arrested, it can be argued that police did in fact use force by pointing guns at her and handcuffing her— all events the police department has not denied to have occurred. In addition, we are aware the subject of the video has filed a FOIA request as well.[31 On November 21, 2019, this office forwarded a copy of Ms. Assad' s latter Request for Review to CPD and asked it to provide copies of the responsive records for this office' s confidential review, together with a detailed explanation for its denial. On November 22, 2019, CPD provided those materials. On that same date, an Assistant Attorney General in the Public Access Bureau e- mailed CPD asking whether it would be willing to provide Ms. Assad with a copy of the body camera recording if the subject were to provide written consent. CPD responded that it would still deny the request pursuant to sections 7( 1)( d)( i) and 7( 1)( d)( ii) of FOIA ( 5 ILCS 140/ 7( 1)( d)( i), ( 1)( d)( ii) (West 2018), as amended by Public Act 101- 455, effective August 23, 2019). CPD explained:

A] fter conferring with the Civilian Office of Police Accountability COPA"), COPA confirmed that premature disclosure of the recording to the requestor or any other party would interfere with their open and active administrative enforcement proceeding. Regarding the factual basis underlying their denial under the aforementioned FOIA exemptions, COPA asserted that disclosing the recording would interfere with their apprehension of pertinent witnesses and COPA' s attempts to interview said witnesses regarding the recording.) 41 Likewise, although Ms. Assad provided CPD with a release from the subject of the recording in her other Request for Review after CPD issued its response to this office' s inquiry letter, CPD stated that it would still deny a FOIA request containing such a release because of COPA' s active investigation.

On November 25, 2019, this office sent Ms. Assad a copy of CPD' s response in 2019 PAC 60575. She did not submit a reply, but did furnish a copy of written consent from the subject of the recording on January 6, 2020.

DISCUSSION

All 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 2018).

Section 7. 5( cc) of FOIA ( 5 ILCS 140/ 7. 5( cc) ( West 2018), as amended by Public Acts 101- 013, effective June 12, 2019; 101- 027, effective June 25, 2019; 101- 081, effective July 12, 2019; 101- 375, effective' August 16, 2019; 101- 377, effective August 16, 2019) exempts from disclosure "[ r] ecordings made under the Law Enforcement Officer -Worn Body Camera Act, except to the extent authorized under that Act." Section I 0- 20( b)( 2) of the Body Camera Act provides, in relevant part:

b) Recordings made with the use of an officer -worn body camera are not subject to disclosure under the Freedom of Information Act, except that:

1) if the subject of the encounter has a reasonable expectation of privacy, at the time of the recording, any recording which is flagged, due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm, shall be disclosed in accordance with the Freedom of Information Act if:

A) the subject of. the encounter captured on the recording is a victim or witness; and recordings are exempt from disclosure under sections 7( 1)( d)( i) and 7( 1)( d)( ii) of FOIA. If Ms.

Assad resubmits her FOIA requests to CPD with signed releases from the subjects and CPD denies her requests pursuant to those exemptions, the question in any subsequent Request for Review or FOIA lawsuit will be whether CPD proves by clear and convincing evidence that the disclosure of the recordings would interfere with pending or actually and reasonably contemplated law enforcement proceedings or active administrative enforcement proceedings.

The Public Access Counselor has determined that resolution of these matters does not require the issuance of a binding opinion. This letter closes the files. If you have any questions, please contact me at ( 312) 814- 6756.

Very truly yours,

STEVE SILVERMAN

Bureau Chief Public Access Bureau