Illinois State Police improperly required form and fees for body camera footage

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Dear and Ms. Finch:

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 2022), as amended by Public Act 103-069, effective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes that the Illinois State Police (ISP) improperly required to fill out a form to obtain squad camera and body worn camera footage and improperly assessed fees to provide the footage. This office further concludes that ISP did not improperly redact the audio recording provided to On April 7, 2023, submitted a FOIA request to ISP seeking Dashcam, bodycam, and interior of patrol vehicle video which depict me or my vehicle"

After an Assistant Attorney General (AAG) in the Public Access Bureau's efforts to mediate this matter were unsuccessful, on July 12, 2023, this office forwarded a copy of Request for Review to ISP and asked it to provide for our confidential review unredacted copies of the audio recording and the withheld squad camera footage and body worn camera footage, along with a detailed written explanation of the factual and legal bases for redacting and withholding those records. This office also asked ISP to address the factual and legal basis for requiring to fill out a standardized form to obtain the requested squad camera and body worn camera recordings, and for requiring to pay ISP $ 200. 00 before providing the two video recordings. On July 21, 2023, ISP responded. did not reply.

DETERMINATION

It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act." 5 ILCS 140/1 (West 2022). Under section 1.2 of FOIA, 4 "[ a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying." FOIA requires that "[ e]ach public body shall make available to any person for inspection or copying all public records, The Audio Recording contested the redaction of the audio recording that ISP provided to him. In its response, ISP explained that it had redacted one license plate number from the recording pursuant to section 7(1)(b) of FOIA. Section 7(1)(b) of FOIA exempts from disclosure p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order." Section 2(c-5) of FOIA6 defines "private information" as "unique identifiers, including a person' s * * * home address and personal license plates[.]" This office has listened to the audio recording and concludes that the redacted license plate number is exempt under FOIA. Accordingly, ISP did not violate FOIA by redacting the license plate number in the audio clip.

The Squad Camera and Body Worn Camera Footage Section 3(d) of FOIA7 provides that "[ e]ach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section." Section 3(e) of FOIA8 provides that "[ t]he time for response under this Section may be extended by the public body for not more than 5 business days from the original due date" for any of seven enumerated reasons. FOIA permits an extension for more than five business days only if the requester and the public body "agree in writing to" the extension. 5 ILCS 140/3(e) (West 2022). Section 3(f) of FOIA9 further provides:

When additional time is required [ under section 3(e)], the public body shall, within 5 business days after receipt of the request, notify the person making the request of the reasons for the extension and the date by which the response will be forthcoming. Failure to respond within the time permitted for extension shall be considered a denial of the request. A public body that fails to After extending the time to respond to FOIA request, on April 21, 2023, ISP sent correspondence to informing him that it found responsive squad car and body camera video but placed his request for the video recordings on hold because he is on a waitlist. That correspondence neither complied with request for the squad car or body camera video by providing him the responsive records, nor properly denied his request for those records. Instead, the correspondence amounted to an indefinite extension that is not authorized by any provision of FOIA.

ISP's response to this office emphasized that it "receives an average of 550 FOIA requests each month. ISP does not maintain the resources to compile, review, redact and subsequently produce every record responsive to every FOIA request in 10 business days. ISP sends requesters detailed communications to keep them apprised of the status of their request if it is not handled completely within the 10 days" 10 The Public Access Bureau recognizes that responding to large numbers of FOIA requests, especially for records such as recordings that may be lengthy and require careful review for information that is subject to redaction under FOIA, may make substantial demands on a public body's resources. Nevertheless, section 1 of FOIA provides: " The General Assembly declares that providing records in compliance with the requirements of this Act is a primary duty of public bodies to the people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding." More importantly, section 3(f) of FOIA expressly precludes public bodies from assessing copies of fees for records if they fail to provide records within the time permitted for extensions under the Act. Because ISP extended the time to respond to request by five business days but subsequently failed to comply with the request, properly deny the request, or obtain written consent to a longer extension, this office concludes that FOIA does not permit ISP to charge fees for copies of the video recordings.

Even if ISP did issue a timely substantive response to request, FOIA precludes ISP from charging $200.00 for the two video recordings. That charge derives from section 1298. 40(c) of the Administrative Code, 11 which fixes a fee of $100 for each video recording that is more than 160 megabytes. Section 6(a) of FOIA12 provides:

Section 6(b) of FOIA13 provides, in pertinent part:

Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. * * * In calculating its actual cost for reproducing records or for the use of the equipment of the public body to reproduce records, a public body shall not include the costs of any search for and review of the records or other personnel costs associated with reproducing the records, except for commercial requests as provided in subsection ( f) of this Section.

Based upon these provisions, the Illinois Appellate Court held that " FOIA does not allow a fee in excess of the cost of the electronic medium for the reproduction of electronic records unless another statute expressly provides that the fees for producing paper records also apply to electronic copies." ( Emphasis added.) Sage Information Services, 2012 IL App (5th) 110580, ¶ 18. In concluding that fees for an electronic copy of a real property assessment record was limited to cost of the recording medium under section 6(a) of FOIA rather than the substantially greater fees for paper records set forth in the Property Tax Code, the court explained:

https://plus.lexis.com/ https:// https:// https:// See also Sage Information Services v. Suhr, 2014 IL App ( 2d) 130708, ¶ 20 (section 6(a) of FOIA is unambiguous and does not allow exceptions to the cost-only rule for electronic records unless fees fixed by another statute expressly state that they apply to other records).

https://plus.lexis.com/api/document/ Section 6(a) and 6(b) of FOIA plainly state that the fee provisions of FOIA apply to requests for public records unless a different fee is fixed by another statute and the General Assembly expressly states that the fee applies to electronic records. If the General Assembly had intended to authorize State agencies to use administrative rules as well as statutes to establish fees that supersede FOIA, it would have specifically referred to administrative rules as it has in crafting provisions such as section 7(1)(a) of FOIA,18 which exempts from disclosure i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." To the extent that section 2605-15 of the Illinois State Police Law could be construed as conflicting with FOIA, it is a general grant of authority to promulgate rules and regulations that does not contain any reference to fees for public records. In contrast, section 6(b) of FOIA specifically relates to such fees and therefore takes precedence. People v. Villarreal, 152 Ill. 2d 368, 379 (1992) (" It is a fundamental rule of statutory construction that where there exists a general statutory provision and a specific statutory provision, either in the same or another act, which both relate to the same subject, the specific provision controls and should be applied.").

Charging fees in excess of the cost of the recording medium for imaging products pursuant to administrative rules cannot be reconciled with the plain language of FOIA and constitutes a restraint on access to information that contradicts the intent of the Act. This office has consistently determined, and has previously notified ISP, that FOIA does not permit it to charge requesters fees based on a fee schedule in the Administrative Code. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 31244, issued February 21, 2018 (requesting ISP to reimburse a requester the fee paid for a DVD); Ill. Att'y Gen. PAC Req. Rev. Ltr. 39015, issued January 6, 2016 determining that ISP improperly charged a requester for a copy of a CD beyond the cost for the recording medium); Ill. Att'y Gen. PAC Req. Rev. Ltr. 17989, issued February 5, 2014 ( same). Likewise, in the present matter, this office concludes that ISP violated FOIA by improperly charging 200.00 for the two recordings based on fees fixed by its administrative rule.

In addition, section 3(c) of FOIA (5 ILCS 140/3(c) (West 2022)) provides, in part, that "[ a] public body may not require that a request be submitted on a standard form[.]"

In accordance with the conclusions set out above, this office requests that ISP provide with copies of the squad car and body camera videos responsive to his FOIA request, without charging fees or requiring a form to be filled out, subject only to permissible redactions under section 7 of FOIA if it has not done so already. If has already paid ISP for the requested records, this office requests that ISP reimburse for all amounts paid for the recordings. This office also requests that in the future ISP refrain from assessing fees beyond the cost of the recording medium for video recordings requested under FOIA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This file is closed. If you have any questions, please contact me at 312- 814- 5201 or at edie. steinberg@ilag. gov.

Very truly yours, EDIE STEINBERG Senior Assistant Attorney General Public Access Bureau 76612 3c improper 6a improper 71b proper pd sa