Columbia Police Department properly withheld body camera footage under 7.5(cc)

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Dear

This determination letter is issued pursuant to section 9.5(c) of the Freedom of Information Act (FOIA). 1 For the reasons set forth below, the Public Access Bureau concludes that this Request for Review is unfounded.

On December 9, 2024, you submitted a FOIA request to the Columbia Police Department ( Police Department) seeking copies of an "[ i]ncident report, CAD notes, Full Body Camera Footage, 911 original audio file, DCFS notified or not?" 2 On December 17, 2024, the Police Department notified you that it was waiting to hear from the Monroe County State's Attorney' s Office regarding the arrest. On December 19, 2024, you followed up on the status of the Police Department' s response. The Police Department responded that it was working on the request. You followed up again with the Police Department on December 30, 2024. On January 3, 2025, the Police Department notified you that it would send you a copy of the incident report, a copy of the CAD notes, and proof that no 911 call was received. Additionally, the Police Department noted it did not appear that the Department of Children and Family Services ( DCFS) was called and that it was still making redactions to the body camera footage. On January 7, 2025, the Police Department notified you that a DVD of an audio recording was available for pick up. On January 9, 2025, the Police Department notified you that a DVD of the body camera from the arresting officer was available for pick up.

On February 6, 2025, you asked this office to review the Police Department' s response to your request, but your submission was incomplete because it did not include a copy of the FOIA request you submitted to the Police Department; you provided a copy of only a one response letter, in which the Police Department that asserted that it was withholding portions of the incident report pursuant to sections 7(1)(b) and 7(1)(c) of FOIA. 5 Section 9.5(a) of FOIA 6 specifies the materials that a requester must submit to the Public Access Bureau to file a Request for Review: " The request for review must be in writing, signed by the requester, and include ( i) a copy of the request for access to records and (ii) any responses from the public body." Accordingly, on February 7, 2025, the Assistant Attorney General ( AAG) from the Public Access Bureau assigned to the matter e-mailed you to inform you the file was incomplete and that you needed to submit a copy of the FOIA request for this office to proceed. On February 18, 2025, you provided the AAG with a copy of the original FOIA request you submitted to the Police Department.

On February 24, 2025, the AAG e-mailed the Police Department' s Records Clerk, Jennifer Woodcock, and asked her to provide a copy of the responsive report for this office's confidential review; Ms. Woodcock sent the AAG those records that same day, as well as her correspondence with you pertaining to this matter. Based upon the AAG's review of the correspondence, you did not provide this office with a copy of all of the Police Department' s responses in this matter; on February 24, 2025, the AAG informed you that you must send a copy of all responses from the Police Department for this office to proceed in the matter. On February 25, 2025, you purported to do so but, again, did not provide copies of all of the Police Department' s responses, because your e-mails with the Police Department referenced a separate FOIA provides that "[ a]ll 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). Under FOIA, the adequacy of a public body's search for responsive records is judged by a standard of reasonableness and depends upon the particular facts of the case. Better Government Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31. However, "[ a] requester is entitled only to records that an agency has in fact chosen to create and retain." Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982). Further, FOIA does not require a public body to answer questions or create new records in response to a request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989).

As an initial matter, the latter part of your request for "DCFS notified or not?" is a question rather than a request to inspect or copy public records. FOIA did not require the Police Department to answer that question, but the Police Department did answer that question during the course of your correspondence. As to your request for the 911 audio file, the Police Department informed you that no 911 call was made and provided a screenshot of calls made to the Police Department. You responded via e-mail to the Police Department that you understood there were no 911 calls.

As to your request for the report and CAD notes, the Police Department provided you with copies of those records without redacting the narratives. The Police Department made only discrete redactions pursuant to sections 7(1)(b) and 7(1)(c) of FOIA. The Police Department explained that it redacted addresses, phone numbers, and driver's license numbers pursuant to section 7(1)(b) of FOIA and dates of birth pursuant to section 7(1)(c) 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 FOIA (5 ILCS 140/2(c-5) (West 2023 Supp.)) defines " private information" to include:

U]nique identifiers, including a person' s social security number, driver' s license number, employee identification number, Based on this office's confidential review of the unredacted report and CAD notes, the Police Department properly redacted driver's license numbers, personal telephone numbers, and home addresses pursuant to section 7(1)(b) of FOIA.

Additionally, section 7(1)(c) of FOIA exempts from disclosure "[ p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information[,]" and this office has consistently determined that disclosure of a person' s date of birth would constitute a clearly unwarranted invasion of personal privacy. See, e.g., Ill. Att'y Gen. Pub. Acc. Op. No. 16-009, issued November 7, 2016, at 12. Accordingly, the Police Department properly redacted dates of birth. 8 The last record that you requested from the Police Department was the body camera footage for the incident. Section 7.5(cc) of FOIA exempts from disclosure "[ r]ecordings made under the Law Enforcement Officer- Worn Body Camera Act, except to the extent authorized under that Act." Section 10-20(b) of the Body Camera Act 9 provides, in relevant part:

Recordings made with the use of an officer-worn body camera are not subject to disclosure under the Freedom of Information Act, except that:

1) if the subject of the encounter has a reasonable expectation of privacy, at the time of the recording, any recording which is flagged, due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm, shall be disclosed in accordance with the Freedom of Information Act if:

B) the law enforcement agency obtains written permission of the subject or the subject' s legal representative;

2) except as provided in paragraph ( 1) of this subsection ( b), any recording which is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm shall be disclosed in accordance with the Freedom of Information Act; and 3) upon request, the law enforcement agency shall disclose, in accordance with the Freedom of Information Act, the recording to the subject of the encounter captured on the recording or to the subject' s attorney, or the officer or his or her legal representative.

Any recording disclosed under the Freedom of Information Act shall be redacted to remove identification of any person that appears on the recording and is not the officer, a subject of the encounter, or directly involved in the encounter. Nothing in this subsection ( b) shall require the disclosure of any recording or portion of any recording which would be exempt from disclosure under the Freedom of Information Act. (Emphasis added.)

Based on the police report, the footage is flagged for purposes of section 10-20 of the Body Camera Act because you were arrested. However, the person other than you who is a subject of the footage had a reasonable expectation at the time of the recording, because it occurred inside her residence. Therefore, the footage of that individual falls within the first of the three subsections of the Body Camera Act set out above: section 10-20(b)(1). Under the plain language of that provision, the footage of the other subject of the recording— who is described in the report as a victim and/or witness— may be disclosed by the Police Department only if that subject provides written consent to disclosure. There is no indication that this other subject has provided written consent to disclosure. Because any body camera recording from the incident depicting the other subject is not subject to disclosure to you under the Body Camera Act, such footage is exempt from disclosure under section 7.5(cc) of FOIA.

Very truly yours, KATIE GOLDSMITH Assistant Attorney General Public Access Bureau 85152 f unf pd cc: Via electronic mail Ms. Jennifer Woodcock Records Clerk Columbia Police Department 1020 North Main Street Columbia, Illinois 62236 jwoodcock@columbiail. gov