City of Kankakee improperly withheld surveillance video under FOIA exemptions 7(1)(d)(i) and (iii)

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 and Ms. Gifford:

This determination 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 City of Kankakee ( City) improperly denied March 18, 2024, FOIA request.

On that date, submitted a FOIA request to the City seeking surveillance video from a specified incident involving a shooting that occurred on or about April 29, 2023. On March 19, 2024, the City denied the request in its entirety pursuant to section 7(1)(d)(iii) of FOIA. 1 The City's response stated that "[ t]he information pertaining to [ the]

On April 9, 2024, this office sent a copy of the Request for Review to the City and asked it to provide unredacted copies of the responsive records for our confidential review, together with a detailed explanation of the factual and legal bases for its denial. On May 1, 2024, this office received the City's response. One May 2, 2024, this office forwarded a copy of the City's response to he replied on May 7, 2024, maintaining that the City failed to demonstrate that the footage falls within the section 7(1)(d)(i) or 7(1)(d)(iii) exemptions.

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 2022). 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 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).

Section 7(1)(d) 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:

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]

In its response to this office, the City again cited section 7(1)(d)(iii) and reiterated the explanation it provided in its denial letter:

7(1)(d)(iii): Allows a public body to withhold records to the extent disclosure would create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing. that would interfere with pending or actually or reasonably contemplated law enforcement proceedings conducted by the law enforcement agency that received the FOIA request. 5 ILCS 140/7(1)(d)(iii) West 2010). There are reasonably contemplated law enforcement proceedings that will be conducted that would be interfered with if said records were released.[ 4] ( Emphasis in original.)

The City did not provide further information regarding any law enforcement proceedings, a trial or a hearing related to the matter underlying the contested records, but argued in part that it could not provide the video because he did not provide an explanation as to his involvement in the incident.

Under section 7(1)(d)(i), "[t]he classification 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 insufficient to support the assertion of the pending law enforcement proceeding exemption. Day v. City of Chicago, 388 Ill. App. 3d 70, 74-77 (2009). "Simply saying there is an 'ongoing criminal investigation because the case has not been cleared,' with little additional explanation, is not 'objective indicia' sufficient to show the ongoing investigation exemption applies." Day, 388 Ill. App. 3d at 76; see also Ill. Att'y Gen. Pub. Acc. Op. No. 17-001, issued March 14, 2017 ( the mere commencement of an investigation or prosecution does not constitute clear and convincing evidence that any records are exempt from disclosure).

Section 7(1)(d)(iii) of FOIA corresponds with a provision of Federal FOIA ( 5 U.S.C. 552(b)(7)(B) (2018)) that exempts records compiled for law enforcement purposes to the extent that disclosure would " deprive a person of a right to a fair trial or an impartial adjudication." In order to demonstrate that records are exempt pursuant to section 7(1)(d)(iii), a The City's response to this office is conclusory. The City did not provide objective indicia or articulate with specific facts how or why the disclosure of the contested records would interfere with any law enforcement proceedings. The City's response did not indicate that that a trial was in progress or imminent at the time of the request, or illustrate how the release of these records would create a substantial likelihood that any individual would be deprived of a fair trial. Based on this office' s confidential review of the records, it is also unclear how connection to the records or underlying incident would support either justification for the City's denial. Because the City did not provide clear and convincing evidence demonstrating that disclosure would interfere with law enforcement proceedings or create a substantial likelihood that a person would be deprived of a fair trial, the City improperly withheld the records under sections 7(1)(d)(i) and 7(1)(d)(iii) of FOIA.

In accordance with the conclusions expressed above, this office requests that the City provide with copies of the responsive records.

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 benjamin. silver@ilag. gov or (773) 590- 7878.

Very truly yours, BENJAMIN J. SILVER Assistant Attorney General Public Access Bureau 80655 f 71di improper 71diii improper pd