In Mohammad v. Chicago Police Department, 2020 IL App (1st) 190011, the First District Appellate Court elaborated on a public body’s duty to conduct a reasonable diligent search for records in response to a FOIA request. The court also looked at whether a public body that previously disclosed information in response to criminal discovery proceedings waives their right to assert future FOIA exemptions over the same information.
The case involved two FOIA requests submitted to the Chicago Police Department (“CPD”) in September 2016. The requests sought police reports and other investigatory records for a particular case number. CPD responded to both requests by producing responsive records and providing detailed explanations for applicable FOIA exemptions under FOIA sections 7(1)(b), 7(1)(c) and 7(1)(d)(iv). In December 2017, the requestor sued CPD, requesting the circuit court to order CPD to fully release the requested records and penalize CPD for acting in bad faith when responding to both requests. In November 2018, the circuit court granted CPD’s motion for summary judgement, concluding that CPD fully complied with both requests by providing the requestor with all responsive records, that CPD’s redactions were proper and that a civil penalty was inappropriate because CPD did not violate FOIA.
Reasonably Diligent Search
On appeal, the requestor claimed that CPD failed to produce all responsive records in response to the FOIA requests. CPD rebutted that claim by demonstrating that its search was reasonable by providing an affidavit from CPD’s FOIA Officer that responded to the requests. The affidavit detailed CPD’s process for reviewing FOIA requests and the search for responsive investigative files undertaken by CPD’s Bureau of Detectives. The court rejected the requester’s argument that CPD’s search for responsive records was conducted in bad faith. The court acknowledged that just because documents may have existed during the trial did not mean that the documents still existed or that CPD had a reasonable method to access these records. As a result, the court found that CPD did not fail to comply with FOIA by not producing documents that CPD was unable to locate after a reasonably diligent search.
The requester also argued that CPD waived its right to claim FOIA exemptions over certain records that were previously produced during a criminal proceeding. However, the appellate court disagreed, noting that even if CPD had previously provided unredacted records to the State’s Attorney’s Office, which then provided them to the defendant’s attorney during discovery in a criminal matter, that does not mean that CPD waived its right to claim exemptions in response to a FOIA request. Indeed, the court underscored that FOIA’s disclosure standards are different than the criminal trial disclosure requirements, and that similar documents should not be treated similarly in the two different types of proceedings.
Lastly, because CPD’s response to the first FOIA request produced 60 pages versus the 242 pages CPD produced in response to the second request, the requester argued this disparity proved that the CPD acted in bad faith in responding to the initial request. Notably, the court recognized that the requester’s later request was far broader and more detailed in specifying the types of documents sought. As a result, CPD’s more limited response to a more limited request was not evidence that CPD acted in bad faith. So, the requester was not entitled to civil penalties.
Post Authored by Eugene Bolotnikov, Ancel Glink