Tuesday, March 21st, 2017

Police Reports Held to be FOIA-able Despite Open Investigation

In its first public access opinion of the year, the Public Access Bureau of the Attorney General has opined that the mere existence of an open police investigation will not exempt a police report from the Freedom of Information Act (FOIA).

One of the more popular FOIA exemptions invoked by government agencies is the exemption under 7(1)(d)(i) of the FOIA Act, which exempts law enforcement records to the extent that disclosure would “interfere with pending or actually and reasonably contemplated law enforcement proceedings.” Under this exemption, it is common for law enforcement agencies to withhold police reports while an investigation is pending. Following the new Attorney General Opinion, an open investigation does not automatically invoke this exemption.

In the case considered by the Attorney General, the requester submitted a FOIA request to the Illinois State Police for a field report of a traffic accident. The Illinois State Police denied the request entirely, citing section 7(1)(d)(i). Following the requester’s appeal to the Attorney General, the Illinois State Police attempted to support its denial with an affidavit stating that there was an open investigation and that disclosure would interfere with the investigation. The Attorney General was unimpressed with the affidavit, calling it “devoid of detail” as to how disclosure of the report would interfere with the open investigation. The Attorney General opined that to invoke the section 7(1)(d(i) exemption, the law enforcement agency must set forth facts that demonstrate how the disclosure of records would interfere with the pending law enforcement proceeding.

While the Attorney General opinion does not close the door on using the section 7(1)(d)(i) exemption for law enforcement records when there is an open investigation, it is clear that to invoke this exemption, a law enforcement agency must be able to specifically detail how and why disclosure would jeopardize the investigation.


Jennifer J. Gibson

Author: Jennifer J. Gibson