City of Granite City improperly denied crash report under 7(1)(d)(i)

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Dear and Ms. Burford:

This determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) ( 5 ILCS 140/ 9.5 (West 2023 Supp.)). For the reasons explained below, the Public Access Bureau concludes that the City of Granite City (City) improperly denied November 12, 2024, FOIA request.

On that date, submitted a FOIA request to the City seeking reports and videos related to crash report #2024-22354. On November 13, 2024, the City denied the request in its entirety pursuant to section 7(1)(d)(i) of FOIA ( 5 ILCS 140/ 7(1)(d)(i) (West 2023 Supp.), as amended by Public Act 103-605, effective July 1, 2024). On November 21, 2024, this office received complete Request for Review contesting the denial. On On December 4, 2024, this office forwarded a copy of the Request for Review to the City and requested a copy of the withheld records for this office's confidential review as well as a detailed explanation of the factual and legal bases for the applicability of section 7(1)(d)(i) to the records. On December 27, 2024, this office received the City's response. That same day, this office forwarded a copy of the City's written response to he did not reply.

DETERMINATION

All public records in the possession or custody of a public body are " presumed to be open to inspection or copying." 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v. Illinois Department of Public 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 2022). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408 (1997).

Section 7(1)(d)(i) 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[.]

The 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. See Ill. Att'y Gen. Pub. Acc. Op. No. 24- 006, issued April 1, 2024, at 8-9 (explaining that a law enforcement agency must demonstrate with a detailed factual basis, rather than conclusory statements, how disclosure of all information in a police report would interfere with law enforcement proceedings to sustain its burden of proving the report is exempt from disclosure in its entirety pursuant to the section 7(1)(d)(i) exemption).

Although the City's response to this office stated that the matter was still under investigation, the response did not set forth facts as to how or why disclosure of the responsive records would interfere with that investigation. Rather, the City provided only conclusory statements. Based on this office's review of the contested records, it is unclear how disclosure of most portions of the records would interfere with the Police Department' s investigation or State' s Attorney's Office's potential prosecution of the matter. The City did not provide any additional details regarding the previous case in which it had released some information, such as the type of information that was released, who accessed the information, and the nature of the charges that were filed in that case. Accordingly, this office concludes that the City did not sustain its burden of demonstrating by clear and convincing evidence that the records are exempt from disclosure in their entireties pursuant to section 7(1)(d)(i) of FOIA.

However, a portion of the records includes statements from a witness that may be used in the creation of the accident reconstruction report. Based on this office's review of the records, release of the portions documenting the witness' s impressions of the accident and moments just prior to the accident would interfere with the creation of the accident reconstruction report. Because the report had not been completed at the time of FOIA request, the City did not improperly withhold those limited portions of the records pursuant to section 7(1)(d)(i) of FOIA. may wish to submit an additional FOIA request for the remaining portions of the records once the report is complete.

In accordance with the conclusions expressed in this letter, this office requests that the City provide with copies of the contested records subject only to permissible redactions. This office will provide the City with a copy of the witness interview notes with permissible redactions highlighted. Additionally, the City may redact " private 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 Supervising Attorney Public Access Bureau 83921 f 71di improper pd