Wheaton Police Department failed to prove pages 60-68 were sealed by court order

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Dear and Ms. Didier:

This determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)).

On December 9, 2024, submitted a FOIA request to the Wheaton Police Department ( Department) seeking copies of the reports for WH 0904284779, which related to a case dating back to May 27, 2009. On December 11, 2024, the Department denied the request pursuant to section 7(1)( a) of FOIA, 1 which exempts from inspection and copying "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." In connection with section 7(1)(a), the Department cited a provision in the Criminal Identification Act (20 ILCS 2630/13(c) (West 2022)) related to sealed or impounded records. On December 13, 2024, this office received Request for Review contesting the withholding of the arrest records.

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); see also Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds records " has the burden of proving by clear and convincing evidence" that the records are 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, 407 (1997).

A public body does not violate FOIA when it withholds records that are prohibited from disclosure by a court order, such as a sealing order. See GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 387 (1980) (U.S. Supreme Court held that a Federal agency did not violate the Federal FOIA ( 5 U.S.C. § 552 et seq. ( 1974)) by withholding several consumer safety reports that were subject to an injunction prohibiting their disclosure); Ill. Att'y Gen. Pub. Acc. Op. No. 16-009, issued November 7, 2016, at 22-23 concluding that a public body did not violate FOIA by withholding complaints for search warrants and search warrants that had been impounded by court order); Ill. Att'y Gen. PAC Req. Rev. Ltr. 62415, issued May 14, 2020 (public body not obligated to disclose a subpoena, which was sealed by the court, in response to a FOIA request).

In its response to this office, the Department stated that the incident that was the subject of the requested arrest records involved two individuals, one of whom was The Department asserted that the records are exempt from disclosure under section 7(1)(a) of FOIA because they were sealed pursuant to a court order. Specifically, the Department argued that records that have been sealed or expunged are exempt from disclosure in accordance with section 5.2(d)(9)(C) of the Criminal Identification Act, which provides, in relevant part, that u]pon entry of an order to seal records under subsection (c), the arresting agency, any other agency as ordered by the court, the Illinois State Police, and the court shall seal the records ( as defined in subsection (a)(1)(K))." 20 ILCS 2630/5.2(d)(9)(C) (West 2022)).

As noted above, the Department provided a copy of a court order to seal a conviction. The court order seals a conviction for another individual and references case # 09 However, a portion of the records (pages 60-68) pertain only to the arrest and charging of These records reference a different case, # 09 CF 1283, and do not discuss the other individual. The Department did not demonstrate how these records are covered by the court order at issue, and its applicability is not apparent to this office. Accordingly, the Department did not demonstrate by clear and convincing evidence that it properly denied the request in whole pursuant to section 7(1)(a) of FOIA. This office requests that the Department provide with a copy of pages 60-68 of the records.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at the Chicago address listed on the first page of this letter.

Very truly yours, TERESA LIM Deputy Bureau Chief Public Access Bureau 84373 f prot ord proper improper pd