OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

June 12, 2017

Via electronic mail

Ms. Jillian Duchnowski
Local Editor

The Journal -Standard of Freeport

50 West Douglas Street, 9th Floor
Freeport, Illinois 61032
j illian. duchnowski@journalstandard. com

Via electronic mail

Ms. Amy Haas
FOIA Officer
Village of Stockton
Stockton Police Department
105 West North Avenue
Stockton, Illinois 61085
ahaas@villageofstockton. com

RE: Request for Review 2017 PAC 47505

Dear Ms. Duchnowski and Ms. Haas:

This determination letter is issued pursuant to section 9. 5( f) of the Freedom of

Information Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2014). For the reasons that follow, the Public

Access Bureau concludes that the Village of Stockton ( Village) violated FOIA by improperly
denying a request submitted by Mr. Derrick Mason.

On March 3, 2017, Mr. Mason, on behalf of The Journal -Standard ofFreeport,

submitted a FOIA request to the Village seeking any police reports involving a specific person in
the last six months. On March 6, 2017, the Village provided Mr. Mason with certain responsive
information but denied the remainder of his request, citing an active investigation. However, the
City did not cite any of the exemptions listed in FOIA, 1 nor did it provide any other information
in support of its partial denial. On April 21, 2017, Ms. Jillian Duchnowski, on behalf of The

See 5 ILCS 140/ 7( 1) ( West 2015 Supp.), as amended by Public Act 99- 642, effective July 28,
2016 ( listing exemptions).

500 South Second Street, Springfield, Illinois 62701 ( 217) 782- 1090 TTY: ( 217) 785 - 2771 Fax: ( 217) 782- 7046
100 West Randolph Street, Chicago, Illinois, 60601 ( 312) 814- 3000 TTY: ( 312) 814- 3374 Fax: ( 312) 814- 3806
1001 East Main, Carbondale, Illinois 62901 ( 618) 529- 6400 TTY: ( 618) 529- 6403 Fax: ( 618) 529- 6416
Ms. Jillian Duchnowski

Ms. Amy Haas

June 12, 2017
Page 2

Journal -Standard of Freeport, submitted a Request for Review contesting the Village' s partial
denial and its failure to adhere to the statutory procedures for denying a request under FOIA.

On April 24, 2017, this office forwarded a copy of Ms. Duchnowski' s Request for
Review to the Village and asked the Village to furnish copies of the responsive records for our
confidential review, together with a detailed explanation of the factual and legal bases for its
partial denial. On May 16, 2017, this office received the records and brief response from the
Village. Ms. Duchnowski did not reply.

DETERMINATION

All records in the custody or possession of a public body are presumed to be

open to inspection or copying. Any public body that asserts that a record is exempt from
disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS
140/ 1. 2 ( West 2014). FOIA requires that "[ e] ach public body shall make available to any person
for inspection or copying all public records, except as otherwise provided in Sections 7 and 8. 5
of this Act."
5 ILCS 140/ 3( a) ( West 2014). The exemptions from disclosure are to be narrowly
construed. Lieber v. Board of Trustees of Southern Illinois University, 176 III. 2d 401, 407
1997).

As an initial matter, sections 9( a) and 9( b) of FOIA ( 5 ILCS 140/ 9( a), ( b) ( West

2014)) provide, in pertinent part:

a)
Each public body denying a request for public records shall
notify the requester in writing of the decision to deny the request,
the reasons for the denial, including a detailed factual basis for the
application of any exemption claimed, and the names and titles or
positions of each person responsible for the denial. Each notice of
denial by a public body shall also inform such person of the right
to review by the Public Access Counselor and provide the address
and phone number for the Public Access Counselor. Each notice of
denial shall inform such person of his right to judicial review under
Section 11 of this Act.

b) When a request for public records is denied on the grounds

that the records are exempt under Section 7 of this Act, the notice
of denial shall specify the exemption claimed to authorize the
denial and the specific reasons for the denial, including a detailed
factual basis and a citation to supporting legal authority.
Ms. Jillian Duchnowski

Ms. Amy Haas

June 12, 2017
Page 3

The provisions of sections 9( a) and 9( b) are mandatory. Thus, the Village violated sections 9( a)
and 9( b) of FOIA by denying the request without ( 1) citing and providing a detailed factual basis
for one or more specific FOIA exemptions; ( 2) clearly identifying by name and title or position
each person responsible for the partial denial; and ( 3) informing Mr. Mason of his right to seek
review by this office or a court of law. This office cautions the Village to comply with sections
9( a) and 9( b) of FOIA whenever it denies any portion of a FOIA request in the future.

In its response to this office, the Village provided only the following information
in support of its denial: " At the time of Derrick Mason' s request the case was under active
investigation. Due to it being under investigation, making the case public would have interfered
with due process and our ability to garner cooperation." 2 Although the Village failed to cite any
of the exemptions listed in FOIA, this office construes the Village' s response as an assertion of
section 7( 1)( d)( vii) of FOIA ( 5 ILCS 140/ 7( 1)( d)( vii) ( West 2015 Supp.), as amended by Public
Act 99- 642, effective July 28, 2016), which exempts from disclosure:

d) Records in the possession of any public body created in the

course of administrative enforcement proceedings, and any law
enforcement or correctional agency for law enforcement purposes,
but only to the extent that disclosure would:

vii)
obstruct an ongoing criminal investigation by the
agency that is the recipient of the request.

Conclusory statements asserting that the disclosure of requested records would obstruct a law
enforcement proceeding are insufficient to demonstrate that law enforcement records are exempt
from disclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74- 77 ( 1st Dist.
2009).

In this instance, the Village has failed to provide any substantive legal or factual
basis from which this office could conclude that the records that were withheld are exempt from
disclosure in their entireties under section 7( 1)( d)( vii). In particular, this office has not received
any information as to how disclosure of the records or any specific information in the records
requested by Mr. Mason would have obstructed an ongoing criminal investigation at the time of
his request. Given the Village' s blanket assertion that making the records public would interfere
with witness cooperation, it is notable that the records that the Village provided to this office

2Letter from Amy T Haas, FOIA Officer, Stockton Police Department, to Marie E. Hollister ( May
16, 2017).
Ms. Jillian Duchnowski

Ms. Amy Haas

June 12, 2017
Page 4

indicate that all of the witness interviews in the case had been conducted before Mr. Mason
submitted his request.

Because the Village did not prove by clear and convincing evidence that the
records it withheld are exempt from disclosure, this office concludes that the Village improperly
denied those records. Therefore, this office requests that the Village provide Ms. Duchnowski
with copies of those records, subject to the redaction of "private informationi3 under section
7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2015 Supp.), as amended by Public Act 99- 642,
effective July 28, 2016), and names and other " personal information" identifying specific
students pursuant to section 7( 1)( c) of FOIA4 ( 5 ILCS 140/ 7( 1)( c) ( West 2015 Supp.), as
amended by Public Act 99- 642, effective
July 28, 2016). ' The Village may also redact names and
other discrete information that would unavoidably disclose the identity of a person who filed a
complaint with or provided information to law enforcement. See 5 ILCS 140/ 7( 1)( d)( iv) ( West
2015 Supp.), as amended by Public Act 99- 642, effective July 28, 2016. 5
The Public Access Counselor has determined that resolution of this matter does
not require the issuance of a binding opinion. This letter serves to close this matter. If you have

3Section 2( c- 5) of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2015 Supp.)) defines " private information" as:

unique identifiers, including a person' s social security number, driver' s license

number, employee identification number, biometric identifiers, personal
financial information, passwords or other access codes, medical records, home
or personal telephone numbers, and personal email addresses. Private
information also includes home address and personal license plates, except as
otherwise provided by law or when compiled without possibility of attribution to
any person.

Section 7( I)( c) of FOIA exempts from disclosure:

Personal information contained within public records, the disclosure of'

which would constitute a clearly unwarranted invasion of personal privacy,
unless the disclosure is consented to in writing by the individual subjects of the
information. " Unwarranted invasion of personal privacy" means the disclosure
of information that is highly personal or objectionable to a reasonable person
and in which the subject' s right to privacy outweighs any legitimate public
interest in obtaining the information. The disclosure of information that bears on
the public duties of public employees and officials shall not be considered an
invasion of personal privacy.

3Section 7( 1)( d)( iv) exempts from disclosure information that would " unavoidably disclose the
identity of a confidential source, confidential information furnished only by the confidential source, or persons who
file complaints with or provide information to administrative, investigative, law enforcement[ ]" agencies.
Ms. Jillian Duchnowski

Ms. Amy Haas

June 12, 2017
Page 5

any questions, please contact me at ( 312) 793- 0865 or the Chicago address on the first page of
this letter.

Very truly yours,

MARIE HOLLISTER

Assistant Attorney General

Public Access Bureau
47505 f 71 dvii improper mun