PAC Supports FOIA Determination to Withhold Records of Sexual Offenses Involving Minors
In a recent binding opinion, the Public Access Counselor (PAC)—the division of the Attorney General that reviews appeals regarding the FOIA and OMA—found that a public body properly withheld records concerning an alleged sexual offense against a minor. The PAC opinion provides strong support for withholding or redacting records relating to complaints against minors.
In Public Access Opinion 21-002, a requester sought records held by the Bartlett Police Department regarding a complaint or allegation of a sexual offense against a minor. The police department denied the request in its entirety, citing sections 7(1)(a), 7(1)(b), and 7(1)(c) of the FOIA. Section 7(1)(a) prohibits disclosure of information protected by State or Federal law, Section 7(1)(b) exempts “private information,” and Section 7(1)(c) prohibits disclosure of records if the disclosure would constitute a clearly unwarranted invasion of personal privacy.
When addressing Section 7(1)(c), the PAC reviewed the typical factors in determining whether disclosure was required. The factors are:
- The requester’s interest in disclosure,
- The public interest in disclosure,
- The degree of invasion of personal privacy, and
- The availability of an alternative means to obtain the requested information.
The PAC reviewed the first and second factors together because the requester was a reporter, reasoning that to the extent the requester sought to report on the responsive records, her personal interest was likely aligned with the public interest in disclosure. On the first and second factors, the PAC found that the public interest in disclosure was not strong, particularly because the records related to a sexual assault case involving a minor.
Continuing its analysis, the PAC found that the degree of invasion of personal privacy would be particularly high, as the exempted records involved sexual assault allegations against a minor. In addressing the fourth factor, the PAC acknowledged that there were likely few alternative means of obtaining the requested record. The PAC nonetheless gave the fourth factor less weight as the other factors and found that the police department did not violate the FOIA by exempting the records under Section 7(1)(c). Further, the PAC commented that while other sections of the FOIA, such as 7(1)(b), only exempt from disclosure discrete information that could be redacted, these particular records were exempt in their entirety under Section 7(1)(c), likely because redactions could not guarantee the minor’s privacy.
Public bodies, including public schools, colleges, and universities, can rely on this decision to support denial of FOIA requests for records of sexual offenses against a minor under Section 7(1)(c). The decision also accords with the Illinois Appellate Court’s 2013 decision in State Journal-Register v. University of Illinois Springfield, which recognized the strong protection Section 7(1)(c) provides regarding sexual misconduct claims involving students. As State Journal-Register recognized, however, Section 7(1)(c) is less likely to shield information about school, college, or university employees with respect to sexual misconduct claims because there is strong public interest in information about public employee behavior related to sexual misconduct. In that case, release of employee information did not affect the personal privacy rights of the students and so certain employee information could be released. The PAC’s recent opinion does not change the analysis that would likely apply to such information.
If you have questions regarding the Freedom of Information Act, please contact the authors of this post or any Franczek attorney.