In response to a FOIA request
seeking copies of resignation/termination records and payroll records for city
law enforcement officers, a city police department (Department) disclosed the
payroll records, but withheld resignation/termination records
citing various exemptions under FOIA. After the requestor appealed to the Public Access Counselor of the Attorney General’s Office (PAC), the PAC issued
binding opinion PAC
Op. 25-002 finding that the Department improperly withheld its
responsive termination/resignation records.

First, the PAC determined
that the Department did not provide detailed factual basis demonstrating how
and why disclosing its withheld termination/resignation records would
interfere with either (1) a pending or actually and reasonably contemplated law
enforcement proceeding or (2) an active administrative enforcement proceeding.
Even if the Department had established the existence of an active
administrative enforcement proceeding, the PAC opined that the Department
improperly withheld its records under a cited exemption because
they were not created in the course of that proceeding.

The PAC also rejected the
Department’s argument that disclosing the withheld records would create a
substantial likelihood of depriving people of a fair trial or an impartial
hearing, because the Department did not demonstrate that (1) a trial or adjudication
was pending or imminent, and (2) that is was more probable than not that
disclosing the records would interfere with a fair trial of impartial hearing.
Notably, the PAC stated that the existence of a pending
investigation/proceeding or the possibility of criminal charges being filed is
not sufficient to establish that a trial is “pending or imminent” for purposes
of Section 7(1)(d)(iii) of FOIA.

The PAC also rejected the
Department’s argument that the resignation/termination records were
confidential and not subject to disclosure under Section
7(1)(d-6) of FOIA, which exempts:

Records
contained in the Officer Professional Conduct Database (Database) under Section
9.2 of the Illinois Police Training Act (Act), except to the extent authorized
under Section 9.2 of the Act.

Although Section 9.2(c) of
the Act generally requires the Illinois Law Enforcement Training and Standards
Board (Board) to maintain the confidentiality of certain local law enforcement
records that are obtained by or disclosed to the Board, these confidentiality
restrictions prohibit the Board, not local law enforcement entities,
from disclosing public records shared with the Board. Because the Act expressly states that local law enforcement agencies are not
exempt from disclosing public records subject to FOIA, the PAC reasoned that
the Department was authorized to disclose its responsive
termination/resignation records, even if those records had been shared with the
Board.

Post Authored by Eugene Bolotnikov, Ancel Glink