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August 9, 2022

AG ordered Danville Police Dept to turn over arrest records; issued Binding Opinion –

By John Kraft & Kirk Allen

On December 29, 2020

Danville, IL. (ECWd) –

The Danville, Illinois Police Department violated the Freedom of Information Act by improperly withholding certain arrest records, and the Illinois Attorney General ordered them to produce the requested records or appeal the decision to the courts.

According to the Attorney General’s Binding Opinion (here):

For the reasons discussed below, this office concludes that the Danville Police Department ( Department) violated the requirements of FOIA by improperly denying access to the arrest reports and field case report responsive to Mr. John Kraft’ s FOIA request.

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the information submitted, the Public Access Counselor’s review, and the applicable law, the Attorney General finds that:

1) On October 23, 2020, Mr. John Kraft, on behalf of Edgar County Watchdogs, Inc., submitted a FOIA request to the Danville Police Department seeking, among other things, copies of police and incident reports concerning the arrest of Andre; White.

2) On October 26, 2020, the Department denied that part of the request in its entirety pursuant to section 7(1)( d)(i) of FOIA. On October 31, 2020, Mr. Kraft again asked the Department to disclose the responsive arrest reports. On November 2, 2020, the Department responded that it stood by its denial.

3) In an e- mail submitted on Saturday, November 14, 2020, and received by the Public Access Bureau on Monday, November 16, 2020, Mr. Kraft submitted a Request for Review contesting the denial of the arrest and incident reports related to the arrest. The Request for Review was timely filed and otherwise complies with the requirements of section 9. 5(a) of FOIA (5 ILCS 140/ 9. 5(a) (West 2018)). Therefore, the Attorney General may properly issue a binding opinion with respect to this matter

4) On November 19, 2020, the Public Access Bureau sent a copy of the Request for Review to the Department and requested unredacted copies of the withheld records for this office’s confidential review, and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemption.

5) On that same date, this office received those materials from the Department.

6) Later on November 19, 2020, the Public Access Bureau forwarded to Mr. Kraft a copy of the Department’ s answer and notified him of his opportunity to reply. On November 30, 2020, Mr. Kraft submitted a reply to the Department’ s answer.

7) Section 2.15(a) of FOIA requires a police department to publicly disclose certain basic information about each arrest within 72 hours of the arrest, subject to several exceptions provided in section 2.15(c) of FOIA. The responsive records in this matter include three arrest reports. The Department did not prove that any of the exceptions in section 2.15(c) apply to any information in the three arrest reports. Therefore, the Department improperly withheld the arrest reports.

8) Section 7(1)(d)(i) of FOIA exempts from disclosure law enforcement records to the extent that disclosure would ” interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]” The Department’ s statement that prosecutions are pending for two of the arrestees is insufficient to demonstrate that disclosure of the records would interfere with the prosecutions. Accordingly, the Department did not prove by clear and convincing evidence that the arrest reports and field case report are exempt from disclosure under section 7(1)( d)(i).

Therefore, it is the opinion of the Attorney General that the Danville Police Department violated the requirements of FOIA by denying the arrest reports and field case report responsive to Mr. Kraft’ s Freedom of Information Act request. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Kraft with copies of the arrest reports and field case report responsive to his October 23, 2020, FOIA request. Pursuant to section 7(1)( b) of FOIA (5 ILCS 140/ 7(1)(b) West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452,  effective January 1, 2020; 101- 455, effective August 23, 2019), the Department may properly redact private information “as that term is defined in FOIA. 17 The Department also may properly redact dates of birth as “personal information” pursuant to section 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(c) ( West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101-
452, effective January 1, 2020; 101- 455, effective August 23, 2019). If the Department chooses to redact this information from the copies of the reports it provides to Mr. Kraft, it must include a written denial that identifies the basis for each redaction and which otherwise complies with the requirements of section 9(a) of FOIA ( 5 ILCS 140/9(a) (West 2018)).

This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/ 3-101 et seq. (West 2018). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. John Kraft as defendants. See 5 ILCS 140/ 11. 5 (West 2018).

65678 Binding Opinion_Redacted

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9 Comments
  • PK
    Posted at 18:28h, 29 December

    Despite the expertise of Mr. Kraft being forced to contend with an initial denial, the 67 days taken thus far seems somewhat shorter than the norm. Is there a special cause to such variability?

    • John Kraft & Kirk Allen
      Posted at 18:43h, 29 December

      I believe it was somewhat of a new issue where no Binding Opinion was issued on it yet, and that the parents of the deceased have a right to know why their loved one was arrest, just prior to his death.

      • Babbs smith
        Posted at 08:48h, 30 December

        Yes, the arrest records should be produced, those ARE public information. The parts they are claiming as personal are already public record. The ONLY reason to not produce the arrest records is that there MUST be something improper with the arrest they do no want known. I just don’t understand how we have laws but, continuously, the gov feels they do not have to follow them! If we the people did not comply with a request/summons for information and we did not comply…..it WOULD be jail for us! WE are sick of the double standard.

  • Mags
    Posted at 10:00h, 30 December

    We need to start seeing severe consequences for our elected officials and Government employees who continue to violate FOIA and Open Meetings Act rather than a slap on the wrist.

    We have far too many issues with lack of transparency.

  • Sgt. Joe Friday (LAPD Ret)
    Posted at 12:36h, 30 December

    It never looks good when a department withholds ANY reports related to the in-custody death of an inmate or arrestee.

  • Ang
    Posted at 12:48h, 30 December

    Whoa, the AG’s Office issued a binding opinion?

    That’s amazing. Under the former AG, very few binding opinioms were issued.

    Some actual teeth now with FOIA enforcement.

  • PK
    Posted at 12:54h, 30 December

    I’ll put in for Mr. Kraft and Mr. Allen to receive an audience with an Illinois State Legislative Committee. If that were to occur, the ECWd’s could share outcomes of their work in a way that would surely compel the state legislature to action. The state ethics committee chair can take that suggestion and run.

    • cool guy
      Posted at 19:44h, 02 January

      I wouldn’t hold your breath on any action from the Illinois State Legislature or any of it’s sub-bodies. They haven’t done a thing for 10 months. I asked my local guy when they would be passing legislation to support JB’s expired 30 day emergency declaration’s. He replied that there was plenty of precedent for JB to act in such a manner. I asked him to share them…
      You can guess what I got in response…

      • PK
        Posted at 12:28h, 05 January

        Without geographically representing every corner of the state, the Joint Committee on Administrative Rules (JCAR) created ‘enforcement mechanism’ rules for every county in the state mid-year, 2020…in my view, making matters worse.

        Your local guy is not very well informed about precedent and may simply need a reminder about JB’s propensity toward unearned income, toilets, and real estate tax assessments. JB;s statement of economic interest is not to be trusted either due to him not following the secretary of state’s general directions for completing the form.

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