A
reporter submitted a FOIA request to a State’s Attorney’s Office (SAO) seeking
records about a former SAO employee who was terminated and criminally charged
for alleged misconduct while working at the SAO. The SAO withheld a responsive termination letter on the basis that the letter, if disclosed, would interfere with a pending criminal prosecution and picking of a jury.

After
the requester submitted a request for review with the Illinois Attorney
General’s Public Access Counselor (PAC), the PAC issued its second binding opinion of
2026 concluding that the SAO improperly withheld the termination letter. PAC
Op. 26-002.

First,
the PAC determined that FOIA’s investigatory exemptions in Section 7(1)(d) only apply to records either (1) created in the course of administrative
enforcement proceedings, or (2) if the record is maintained by a correctional
or law enforcement agency for law enforcement purposes. In this case, the PAC
determined that the termination letter was not created during the course in the
course of an administrative enforcement proceeding. The PAC also determined that the letter was not a record maintained by the SAO
“for law enforcement purposes,” because the letter was a personnel record
created by the SAO to document a former employee’s termination. Because the
withheld letter was not a record maintained by the SAO “for law
enforcement purposes,” the PAC determined that FOIA’s investigatory exemptions
in Sections 7(1)(d)(i) and 7(1)(d)(iii) did not apply to allow the SAO to withhold the
record.

Second, the
PAC determined that the SAO did not demonstrate that disclosing the
letter would interfere with law enforcement proceedings or create a substantial
likelihood that a person would be deprived of a fair trial or impartial
hearing. Although the SAO argued that the court had not yet ruled on the
admissibility of information in the letter, the PAC reasoned that FOIA does not
provide a blanket exemption for records that may contain information that may
be inadmissible in court. The PAC found that the SAO did
not illustrate that revealing previously undisclosed information in the letter
is likely to garner intense pre-trial publicity that could taint the pool of
potential jurors in the county. Even if some potential jurors were exposed to
the letter, the PAC argued that the SAO could use judicial safeguards, like voir
dire, to identify and exclude potential jurors whose knowledge of relevant
information may taint their impartiality. While the letter contains allegations
that have not been publicly disseminated or reported on, the PAC reasoned that
disclosing the letter would not interfere with the prosecution of the former
SAO employee, because it does not contain highly specific details (e.g.,
identities of witnesses, sensitive details that would materially impact witness
testimony, or evidentiary proof or sources of evidence) that would interfere
with a law enforcement proceeding.

Post Authored by Eugene Bolotnikov, Ancel Glink