FOIA: Ongoing Murder Investigation Not Enough to Claim Blanket Exemption According to First District Illinois Appellate Court Ruling
By: Miguel Larios
The First District Illinois Appellate Court reversed a Cook County Circuit Court’s ruling in favor of several public bodies in a Freedom of Information Act (FOIA) lawsuit related to a 53-year-old murder. Valerie Percy was killed in the Village of Kenilworth in 1966. Fifty years after her death, John Q. Kelly filed a FOIA request for information about the murder investigation with Kenilworth, the Illinois State Police, the Cook County State’s Attorney’s Office, the Cook County Medical Examiner’s Office, and the Chicago Police Department. After each public body denied the request on the grounds that there was an active and ongoing investigation, Mr. Kelly filed suit in the Circuit Court.
The Village of Kenilworth produced an affidavit from their Police Chief laying out why the 20,000-page investigative file should not be released as it could interfere with an active investigation. The Circuit Court agreed with the defendants who made similar arguments and granted summary judgment in their favor (CPD was voluntarily dismissed).
On appeal, the First District in Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780, reversed and remanded the case for further proceedings. The Appellate Court confirmed that there is an ongoing investigation but found that “the method used by defendants, Kenilworth, the ISP, and the CCSAO, in particular, to address the voluminous investigative files did not comport with Illinois law.” Id. at ¶ 36. As a result, defendants had not met their burden “to demonstrate that a blanket exemption was warranted.” Id.
Although it would be much simpler to claim an exemption over the entire investigative file, the Court found that section 7(1)(d) did not allow for that approach. There is another exemption in FOIA, section 3(g), for an “unduly burdensome” request, however defendants did not cite or rely on that section in the lower court. As a result, individuals who receive FOIA requests concerning ongoing criminal investigations should consult with their attorneys.