Lee County Sheriff's Office violated FOIA by withholding ALPR camera locations

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Dear-and Sheriff Whelan:

This determination letter is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(£) (West 2024), as amended by Public Act 104-438, effective January 1, 2026). For the reasons that follow, the Public Access Bureau concludes that the Lee County Sheriffs Office (Sheriffs Office) violated the requirements of FOIA by improperly withholding records responsive to October 18, 2024, FOIA request.

BACKGROUND

On that date, submitted an e-mail to the Sheriffs Office with an attached FOIA request seeking copies ofrecords concerning the "[ c Jost of and lease time period of the 14 Flock License Plate Camera[s] being used by Lee County Illinois[ ]" and the "[s]pecific On November 7, 2024, the Public Access Bureau sent a copy of the Request for Review to the Sheriffs Office. The Public Access Bureau also sent the Sheriffs Office a letter asking for unredacted copies of the requested records for this office's confidential review, together with a detailed explanation of the legal and factual bases for the applicability of the asserted exemptions.

On November 12, 2024, the Sheriffs Office provided this office with unredacted copies of the requested records and its written answer. Later that same day, this office forwarded a copy of the Sheriffs Office's answer to-and notified him of his opportunity to reply. On November 13, 2024,_ submitted a reply and, later that same morning, supplemented his reply. Having been copied o`replies to this office, the Sheriffs Office submitted another response shortly thereafter. Later that same day, -replied to the Sheriffs Office's supplemental response.

On January 22, 2025, the Sheriffs Office sent an additional e-mail to this office stating that an ALPR camera had been vandalized and that disclosing the locations of the cameras could lead to further vandalism and damage.

DETERMINATION

Section 1 of FOIA (5 ILCS 140/1 (West 2024)) "declares that it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government." Under FOIA, "[ a ]11 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 2024). The Illinois Supreme Court has "on several occasions, held that the exceptions to disclosure set forth in the FOIA are to be read narrowly so as not to defeat the FOIA's intended purpose." Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390,416 (2006).

The records at issue in this matter concern Automated License Plate Readers (ALPRs) used by the Sheriffs Office. Through the enactment of Public Act 103-540, effective January 1, 2024, the General Assembly recently amended FOIA to add the section 7(1)(d-7) exemption that applies to "[i]nformation gathered or records created from the use of automatic license plate readers in connection with Section 2-130 of the Illinois Vehicle Code." (Emphasis added.) Section 2-130(a) of the Illinois Vehicle Code (625 ILCS 5/2-130(a) (West 2024)) defines "Automated license plate reader" or "ALPR" as:

an electronic device that is mounted on a law enforcement vehicle or positioned in a stationary location and that is capable of recording data on or taking a photograph of a vehicle or its license plate and comparing the collected data and photographs to existing law enforcement databases for investigative purposes. "ALPR" includes a device that is owned or operated by a person or an entity other than a law enforcement agency to the extent that data collected by the reader is shared with a law enforcement agency.

Pursuant to section 2-130(a) of the Code, "information gathered by an ALPR or created from the analysis of data generated by an ALPR," is defined as "ALPR information." Sections 2-130(b) through 2-130( d) of the Code restrict access to and sharing of ALPR information.

In its written answer to this office, the Sheriffs Office asserted that Public Act 103-540 requires ALPR information to "be held confidentially to the fullest extent permitted by law. "2 In his reply,-contended that the Sheriffs Office improperly relied on Public Act 103-540, stating:

When read in its entirety the section regarding ALPR is referencing the DAT A the ALPR collects and not the physical location of the ALPR. The data is uploaded to a central server and is not maintained on the camera itself. So knowledge of the location of the camera in no way compromises or puts the data at risk. [3l (Emphasis in original.)

statute defines the very terms it uses, those terms must be construed according to the definitions contained in the statute." People v. Chenoweth, 2015 IL 116898, ,i 21.

The plain language of section 7(1)(d-7) ofFOIA exempts from disclosure "[i]nformation gathered or records created from the use of'' ALPRs "in connection with Section 2-130 of the Illinois Vehicle Code." The Illinois Vehicle Code limits dissemination only of "ALPR information," which it similarly defines as (1) information gathered by ALPRs or (2) information created from the analysis of data generated by ALPRs. Records identifying the locations of ALP Rs are neither form of information. The Sheriff's Office's expansive reading of section 7(1 )( d-7) as authorizing public bodies to also withhold the locations of ALPRs is contrary to the plain language of the exemption. Because records identifying the locations of ALPRs were neither gathered nor created from the use of the ALPRs, the Sheriff's Office has not sustained its burden of demonstrating that those records are exempt from disclosure pursuant to section 7(1)(d-7) ofFOIA.4 Section 7(1)(v) of FOIA Section 7(1)(v) ofFOIA exempts from disclosure:

Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, but only to the By its plain language, section 7(1)(v) applies to records that meet three requirements. First, section 7(1)(v) applies to vulnerability assessments, security measures, and response policies or plans. Second, the vulnerability assessment, security measure, or response policy or plan must be created for the purpose of identifying, preventing, or responding to potential attacks on a community or its infrastructure. Finally, the disclosure of the vulnerability assessment, security measure, or response policy or plan could reasonably be expected to expose the vulnerability or jeopardize the effectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public. Ill. Att'y Gen. Pub. Acc. Op. No. 24-008, issued June 21, 2024, at 4.

In its response to this office, the Sheriffs Office asserted that it withheld the requested ALPR locations "due to vulnerability assessment information under 5 ILCS 140/7(1)(v) that could jeopardize the publication of ALPR locations on travel apps such as Waze. The confirmation of these locations does nothing but hinder law enforcement efforts to keep the lawful citizens safe when a violent crime occurs."5 FOIA does not define "vulnerability assessment." "Vulnerable" is defined as "[s]usceptible to physical injury." The American Heritage Dictionary 1356 (2d coll. ed. 1985). "Assessment" is defined as a "[ d]etermination of the rate or amount of something." Black's Law Dictionary 144 (11th ed. 2019). The Public Access Bureau has previously determined that a vulnerability assessment for purposes of section 7(1 )(v) is an analysis that identifies safety risks or weaknesses such as those that can be exploited by bad actors. Ill. Att'y Gen. PAC Req. Rev. Ltr. 53388, issued November 26, 2018, at 2-3 (concluding that a police department's "after action report/improvement plan" concerning active shooter drills at public schools was exempt from disclosure under section 7(1)(v) because it identified specific areas for improvement and provided recommendations). The location of ALPRs is strictly factual information, and the Sheriffs Office has not shown that it uses ALPRs to assess any vulnerability in Lee County. Therefore, records reflecting the locations of ALPRs do not constitute vulnerability assessments within the scope of section 7(1)(v) ofFOIA.

By its plain language, section 7(1)(v) applies only to vulnerability assessments, security measures, or response plans or policies that have a particular purpose. If "a statute lists several classes of persons or things but provides that the list is not exhaustive, the class of unarticulated persons or things will be interpreted as those 'others such like' the named persons or things." Board of Trustees of Southern Illinois University v. Illinois Department of Human Rights, 159 Ill. 2d 206,211 (1994). In other words, the listed terms are examples of what the General Assembly intended the statute to cover. See Duffy v. Illinois Department of Human Rights, 354 Ill. App. 3d 236, 239 (2004).

Section 7(1)(v) lists "details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, to cybersecurity vulnerabilities, or to tactical operations[]" as examples of the type of information encompassed by the exemption. Such details are distinguishable from the locations of ALPRs used for routine law enforcement activities. Moreover, the legislative history behind section 7(1)(v) demonstrates that the exemption was intended to apply to measures such as counterterrorism. Representative James H. Meyer, one of the House sponsors of the bill that added the exemption, stated during legislative debate that the bill "exempts documents prepared for emergency and security procedures from being disclosed from homeland security where that would be compromised." Remarks of Rep. Meyer, May 31, 2003, House Debate on House Bill No. 954 (which as Public Act 93-422, effective August 5, 2003, created the section 7(1)(v) exemption), at 107.

Even if ALPRs constitute "security measures," the Sheriffs Office has not provided any information indicating that it uses ALPRs for measures such as counterterrorism that are designed to prevent or respond to attacks on Lee County's population or infrastructure. Instead, in its response to OIA request, the Sheriffs Office simply asserted that law enforcement use ALPR technology "to detect and apprehend those individuals involved in The use of ALPRs for routine law enforcement activities such as responding to crimes and collecting evidence do not constitute "security measures, * * * that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations[.]"8 Accordingly, this office concludes that the Sheriff's Office has not sustained its burden of demonstrating by clear and convincing evidence that records reflecting the locations of ALPRs are exempt from disclosure pursuant to section 7(1)(v) of FOIA.

In accordance with the conclusions expressed above, this office requests that the Sheriff's Office provide-with copies of the requested 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 [email protected].

Very truly yours, CHRISTOPHER R. BOGGS Deputy Public Access Counselor Public Access Bureau 83705 f 71d7 improper 71v improper sho