United States: Voluntary FOIA Exemptions: Aurora Police Lawsuit Provides A Cautionary Tale

Brooke D Lenneman is an Attorney in our Chicago office.

HIGHLIGHTS:

  • The Freedom of Information Act (FOIA) officer for the city of Aurora, Ill., released "largely unredacted" documents in response to an incarcerated felon's request for information about the police officers who worked the investigation that led to his conviction. The released document included private information from police officers' personnel files, such as home addresses, social security numbers and telephone numbers.
  • The lawsuit filed by the police officers against Aurora, John Munn, et al. v. City of Aurora, et al., is a sharp reminder that a response to an FOIA request is much more than merely handing over relevant documents.
  • However the case is resolved, the plight of Aurora and its former FOIA officer, puts public bodies on alert that a casual attitude toward production of public records, and undertrained FOIA officers, create serious risks.

An incarcerated felon submitted a Freedom of Information Act (FOIA) request in October 2015, to the city of Aurora, Ill., asking for information about the police officers who worked the investigation that led to his conviction. The felon is serving an 88-year sentence. In response to the request, Aurora's FOIA officer released "largely unredacted" documents from the officers' personnel files. The documents included the police officers' private information, including home addresses, social security numbers and telephone numbers. The felon had the information for approximately a year before the police officers learned it had been released. That FOIA officer is no longer employed by Aurora.

Section 7 of FOIA exempts certain information, including private information, from disclosure under the Act. If records responsive to a request contain exempt information, a public body may, but is not required to, redact the information. See 5 ILCS 140/7(1). Redactions are made at the discretion of the public body.

Case Background

Last May, the Aurora police officers and their families filed a lawsuit in the U.S. District Court for the Northern District of Illinois against Aurora and the former FOIA officer in her personal and official capacities. See John Munn, et al. v. City of Aurora, et al., No. 17 C 5296 (N.D. Illinois filed March 1, 2018). The plaintiffs claimed the city's failure to redact private information from the documents provided to the felon endangered the lives of the officers and their families. They further claimed that the disclosures caused emotional distress and financial damages. The ongoing lawsuit is a sharp reminder that a response to an FOIA request is much more than merely handing over relevant documents. The documents first must be reviewed diligently and cautiously and the specific circumstances carefully considered, regardless of whether the requester is a felon or an upstanding resident.

The complaint filed by the police officers alleges Aurora and the former FOIA officer violated their constitutional rights under a due process "state-created danger theory" and a right to informational privacy theory. To establish a "state-created danger theory," the police officers need to prove that 1) the state created or increased the danger, 2) the failure of the state to protect them from the danger was the proximate cause of their injuries, and 3) the state's failure to protect the officers "shocks the conscience."

In response, Aurora and the former FOIA officer filed a motion to dismiss the lawsuit arguing, among other things, that the plaintiffs' failed to plead sufficient facts to establish the "state-created danger theory" and that the former FOIA officer was protected by qualified immunity. Qualified immunity protects an official from liability when the official reasonably believes her or his actions to be lawful.

On Feb. 28, 2018, the District Court denied the motion to dismiss, allowing the case against Aurora and the former FOIA officer to move forward. The court found that the defendants could be legally liable under applicable law for the damages incurred by the police officers. Additionally, the court denied the former FOIA officer's claim of qualified immunity. The court stated that if the former FOIA officer "knowingly and intentionally gave private, personal information about Plaintiffs to a violent felon, knowing her actions would compromise Plaintiffs' safety, her actions clearly fell under the clearly established theory of state-created danger." The court found that the former FOIA Officer should have known her actions implicated the well-established "state-created danger" principle.

Conclusion

It is likely a ruling in the lawsuit is months away or longer. The plight of Aurora and its former FOIA officer, however it is resolved, puts all public bodies on alert that a casual attitude toward production of public records, and undertrained FOIA officers, create serious risks. There are times of course when a public body may decide to release records without making redactions even when authorized under the FOIA to do so. However, before doing so, the public body should consider very carefully what consequences might arise and evaluate what claims might be pressed, including a "state-created danger" claim.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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