Overview: In 2016, the plaintiff, who worked as a reporter, submitted four Freedom of Information Act (FOIA) requests to obtain videotapes from 2013 of police interviews of several individuals accused of murder. The defendant (a municipality) denied those requests claiming unwarranted invasion of personal privacy, interference with actual or pending law enforcement proceedings, and disclosure of confidential source or information. The plaintiff then sought review by the Illinois Attorney General who determined that the plaintiff was entitled to the videotapes listed in the FOIA request because the defendant city violated section 9.5(c) of the FOIA (id. § 9.5 (c)) and failed to comply with the Attorney General’s request for a copy of the recordings and a written explanation in denying the plaintiff’s FOIA request. The City never provided the plaintiff with the videotaped police interviews.
The plaintiff filed a complaint for injunctive relief, attorney fees and a civil penalty for the denial of his FOIA request. The defendant city responded with two affirmative defenses: 1) that plaintiff’s request was unduly burdensome and outweighed public interest in the records, and 2) the disclosure would be an “unwarranted invasion of personal privacy.” At this point, both sides filed cross motions for summary judgment. In its motion, the City asserted, for the first time, that it was exempted under section 7(1)(a) of the FOIA from disclosing the videotapes because their disclosure was prohibited by section 103-2.1(g) of the Criminal Code (725 ILCS 5/103-2.1(g) (West 2016), prohibiting the transmission of any electronic recording of any statement made by an accused during a custodial interrogation that is compiled by any law enforcement. The plaintiff maintained that the City waived the aforementioned exemption because it had not raised it in its initial FOIA denial letter. The plaintiff also argued that section 103-2.1(g) does not apply to this case because the defendants in the videos were no longer “accused” when the FOIA request was made.
Outcome: Both the trial court and the Third District Appellate Court of Illinois ruled in favor of the defendant City finding that the plain language of section 103-2.1(g) specifically prohibits the videos from disclosure to the public. Following a brief discussion about statutory construction, the Court opined that the legislature’s intent in using the word “accused” was to maintain confidential and exempt status of recordings given by “accused” persons even after they are convicted or exonerated. “To accept [plaintiff’s] interpretation of section 103-2.1(g) . . . leaves open the troubling possibility of the public disclosure of sensitive or embarrassing personal information, particularly that of an innocent person, that would not have been revealed….” Since at least one of the accused defendants case was still pending, and the Court had no knowledge as to whether the other accused individuals had exhausted their rights to appeal, the Court determined that the subjects of Plaintiff’s requests were exempt from disclosure.