In response to separate FOIA
requests submitted to a city’s police department and its office of emergency
management seeking records regarding a 2021 fatal crash, both public bodies
denied the requests because disclosing its responsive records would interfere
with a pending or anticipated law enforcement proceeding. After the requester
sued both public bodies seeking to compel disclosure of the withheld records,
the circuit court ruled in favor of the public bodies, finding that disclosing
the withheld records would interfere with an ongoing police investigation concerning
a fatal collision, and that the requested body camera (BWC) footage was exempt
from disclosure under FOIA. The requester appealed.
On appeal, an Illinois Appellate Court upheld the circuit court’s ruling in favor of the public bodies. NBC
Subsidiary (WMAQ-TV), LLC v. Chi. Police Dep’t & Off. of Emergency Mgmt.
First, the Appellate Court determined that the affidavit submitted by the police department provided case-specific details demonstrating why and how disclosing its
withheld records would interfere with an ongoing police investigation (e.g.,
disclosing footage could expose witnesses to risk of harm or retaliation
because of the primary suspect’s criminal history, alter witness memories and
undermine the value of subsequent interviews, alert the suspect that they were
being investigation and allow them to evade capture, or give the suspect time
to create an alibi or fabricate evidence).
Second, the Appellate Court
rejected the requester’s argument that he was entitled to receive redacted
versions of the withheld records, because the public bodies demonstrated that
its responsive records were entirely exempt from disclosure pursuant to
FOIA’s pending or contemplated law enforcement exemption, because the court held that this particular FOIA exemption broadly
protects entire records, in contrast to other FOIA exemptions
which generally authorize redacting only discrete exempt information
contained in records.
Third, the Appellate Court
rejected the requester’s argument that the police department’s prior disclosure
of information concerning the accident undermined its argument that disclosing
the withheld records at issue would interfere with an ongoing police
investigation. The Appellate Court explained that the police
department’s prior, more limited disclosure of information about the accident
in a crash report and a community alert did not eliminate the risk of
interference to the police department’s pending investigation if the department
were forced to disclose the more detailed records at issue.
Finally, the Appellate Court
rejected the requester’s argument that the body camera recordings capturing
witness statements should have been disclosed, because the witnesses made their
statements to police officers on a public street and allegedly did not have a
“reasonable expectation of privacy” in their statements. The Appellate Court
explained that reasonable people in the position of the witnesses would
reasonably expect that their statements would not be publicly disclosed,
because disclosure could expose them to acts of retaliation and otherwise
depict the witnesses in a vulnerable state after witnessing a traumatic
accident. Therefore, because the witnesses captured in the withheld BWC
recordings had a reasonable expectation of privacy at the time of the
recordings, and the witnesses did not provide their written consent to disclose
the recordings, the public bodies properly withheld the BWC recordings from
disclosure.
Post Authored by Eugene Bolotnikov, Ancel Glink