Thursday, October 5th, 2017

Illinois Attorney General Releases 11th Public Access Opinion of 2017

The Office of the Attorney General recently released Public Access Opinion 17-011, which looked at whether a 9-1-1 call is beyond the reach of a Freedom of Information Act (FOIA) request.

A radio station sought to obtain two 9-1-1 recordings possessed by the Will County Sheriff’s Office in regard to the death of a 17-month-old child. The radio station filed two FOIA requests for the 9-1-1 calls on April 27, 2017, with the Will County Sheriff’s Office. The Will County Sheriff’s Office denied both requests for two stated reasons. First, the Will County Sheriff’s Office claimed that one recording was exempt from FOIA because it contained private information, in particular biometric identifiers. Second, the Will County Sheriff’s Office argued that the second recording was exempt from FOIA because the disclosure of the recording could impede the active investigation into the death of the child.

In regard to the first argument, the Office of the Attorney General determined that the common understanding of a biometric identifier was the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Because the 9-1-1 recording did not analyze caller’s voice to determine its identity, there were no biometric identifiers in the recording and therefore it was not exempt from the FOIA.

As to the argument that disclosure of the second recording could impede the active investigation, the Office of the Attorney General noted that the public agency must show a factual basis as to why disclosure would interfere with an ongoing criminal investigation. Finding that the Will County Sheriff’s Office did not provide enough facts to establish how it would interfere with the investigation, the Office of the Attorney General determined that the recording was not exempt from FOIA requirements.

In sum, the Office of the Attorney General found that a voice recording that did not involve an analysis of the voice to determine the speaker does not qualify as containing biometric identifiers and therefore is subject to FOIA requests. The Office of the Attorney General also found that a mere assertion that a disclosure would impede an ongoing criminal investigation, without a sufficient factual basis, is insufficient to exempt a record from FOIA requests.


Kelly A. Cahill

Authors: Kelly A. Cahill, Nathan Davidson