Illinois Appellate Courts Issue Two New FOIA Opinions  

April 4, 2018

Cook County State’s Attorney Need Not Compile “Stingray” Data Based Upon FOIA Request

On March 12, 2018, the Illinois Appellate Court, First District, recently upheld the general rule that a public body does not have to create records it does not ordinarily keep in response to a general request for data or statistics. In Martinez v. Cook County State’s Attorney’s Office,(2018 IL App (1st) 163153) a FOIA requester submitted a request for each instance where a cell site simulator (or a “stingray” device) was used to gather evidence in furtherance of a criminal prosecution. For each instance, the requester also sought the case numbers, records of each case, records of the information collected and used, the charges and outcome of the case, the method of collection, the agency using the device, and any court orders for the use of the device. The State’s Attorney denied the request, indicating that it had no way of identifying the cases where such a device was used, and further indicating that if there were responsive documents, it would be unduly burdensome to collect those documents. The requester followed up with a second request, requesting a search of all Assistant State’s Attorney’s e-mails with identified terms related to the use of “stingray” devices. This request was denied as unduly burdensome after the requester agreed to narrow the request to just narcotics and terrorism cases. The State’s Attorney additionally raised the attorney-client, work product, deliberative process, and law enforcement investigatory exceptions to FOIA.

The FOIA requester sued, seeking disclosure of the withheld documents. The State’s Attorney’s Office responded with an affidavit from their FOIA compliance officer, which indicated that a summary or listing of the cases where “stingray” devices were used by law enforcement was not kept or maintained by the State’s Attorney. The State’s Attorney argued that it had no duty to create new records in response to the request. The trial court granted summary judgment for the State’s Attorney. Citing State and Federal precedent, the Appellate Court upheld this decision, holding that “[a] request for a listing or index of a database’s contents that seeks information about those contents, as opposed to the contents themselves, requests a new record.” The Court found that the requester was requesting a search and compilation of unknown records in a format not kept by the State’s Attorney, requiring the creation of new records. The Court upheld the rule that FOIA does not compel this result and affirmed summary judgment for the State’s Attorney.

Appellate Court Delivers Mixed Result in Inmate’s Lawsuits Over Multiple FOIA Requests

On March 27, 2018, Illinois Appellate Court, Third District, issued a consolidated opinion which affirmed the dismissal of several lawsuits by an inmate in Will County, but reversed a dismissal regarding a misinterpretation of a FOIA request. In Bocock v. Will County Sheriff (2018 IL App (3d) 170330), an inmate filed a FOIA lawsuit regarding the denial of his requests for a discarded milk container, documents relating to the lockdowns in the detention facility, documents related to another inmate’s lost or stolen property, the Jail’s policy manual, and documents relating to the Jail’s sale of stamps.

With respect to the discarded milk container, the Appellate Court upheld the trial court’s determination that a record that has been discarded in the trash is no longer in possession of the public body and the request is therefore moot. The Appellate Court further affirmed the trial court’s ruling that the Jail must provide dates and times of lockdowns within the facility, but the Jail was able to withhold the reasons for the lockdowns under the jail security exemption to FOIA. The Appellate Court further upheld the non-disclosure of the documents of the unrelated inmate under the personal privacy exemption of FOIA.

The Appellate Court additionally upheld the non-disclosure of the Jail’s Policy Manual, which the trial Court had reviewed in camera and only found one provision of which was not exempt from disclosure under the jail security exemption to FOIA. However, the Appellate Court reversed where the dismissal of the requester’s claims with respect to the sale of stamps, where the requester asked for the records of stamp sales after the U.S. Postal Service decreased the price of stamps from $0.49 to $0.47. The Appellate Court rejected the Jail’s interpretation of the request as not reasonably identifying a public record. The Appellate Court also rejected the Jail’s interpretation of the request as a fishing expedition for those detainees who were overcharged for stamps. The Court read Plaintiff’s request as simply regarding records for sales of stamps in a given time period. The Court found that the request was not unclear, and remanded to the trial court.

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