2025 IL App (1st) 240629-U
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
FIRST DIVISION June 2, 2025 No. 1-24-0629 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
NBC SUBSIDIARY (WMAQ-TV) LLC, ) ) Appeal from the Plaintiff-Appellant, ) Circuit Court of ) Cook County v. ) ) No. 22 CH 1297 THE CHICAGO POLICE DEPARTMENT and OFFICE ) OF EMERGENCY MANAGEMENT AND ) The Honorable COMMUNICATIONS, ) Joel Chupack, ) Judge Presiding. Defendants-Appellees. )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: The appellate court affirms the trial court’s orders that news organization was not entitled to obtain police officers’ body camera recordings and other records where disclosure would interfere with pending or contemplated law enforcement proceedings.
¶2 The plaintiff, NBC Subsidiary (WMAQ-TV) LLC, appeals from the trial court’s entry of
summary judgment in favor of the defendants, the Chicago Police Department (CPD) and the
Office of Emergency Management and Communications (OEMC), on the plaintiff’s complaint
seeking to enforce compliance with a request for records under the Freedom of Information Act No. 1-24-0629
(FOIA) (5 ILCS 140/1 et seq. (West 2022)). We affirm.
¶3 BACKGROUND
¶4 On January 6, 2022, an investigative producer working for the plaintiff submitted a FOIA
request to CPD, seeking “any and all documentation related to the fatal hit-and-run crash that
occurred on [August 26, 2021,] at 300 N. Central Park Ave. (RD# JE350872), including any
surveillance video, incident reports, witness statements and any other materials related to the
crash.” On January 7, 2022, CPD responded and denied the plaintiff’s FOIA request. In summary,
CPD’s response stated that (1) the major accident investigation unit’s reports and the traffic crash
report were available through non-FOIA means, (2) responsive body camera video footage had
been identified, but it was not subject to disclosure under FOIA pursuant to section 10-20(b) of
the Law Enforcement Officer-Worn Body Camera Act (Body Camera Act) (50 ILCS 706/10-20(b)
(West 2022)), and (3) additional responsive records were exempt on the grounds that disclosure of
them would interfere with pending or anticipated law enforcement proceedings or would obstruct
an ongoing criminal investigation, pursuant to sections 7(1)(d)(i) and (vii) of FOIA (5 ILCS
140/7(1)(d)(i), (vii) (West 2022)). The plaintiff thereafter obtained an unredacted copy of the
traffic crash report for this collision. 1
¶5 On January 10, 2022, the plaintiff submitted a FOIA request to OEMC requesting “any and
all video recorded via POD [(police observation device)] cameras or surveillance cameras between
3:30 p.m. and 5:30 p.m. on [August 26, 2021], in the area of the fatal hit-and-run crash that
occurred at 300 N. Central Park Ave (RD# JE350872).” On January 18, 2022, OEMC responded
and denied the plaintiff’s FOIA request. Pertinent to this appeal, OEMC’s response cited section
1 Neither side discloses whether the plaintiff was eventually able to obtain any reports from the major accident investigation unit, but such reports are not a subject of this appeal.
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7(1)(d)(i) of FOIA (id. § 7(1)(d)(i)) as its basis for denial. It stated that releasing the requested
information would impede CPD’s open investigation into the incident and give those involved
insight into the direction of that investigation and an ability to threaten witnesses or destroy
evidence.
¶6 On February 15, 2022, the plaintiff filed the present cause of action against the defendants
seeking to enforce compliance with the two FOIA requests above. Once the parties were at issue
on the pleadings, cross-motions for summary judgment were filed and briefed. As part of that
briefing, the defendants filed an index of records that were responsive to the plaintiff’s request but
withheld as exempt from disclosure. See id. § 11(e). According to that index, the withheld records
in this case comprise (1) footage from five police officers’ body-worn cameras, which show the
victim and witnesses and which record witnesses’ statements concerning the suspect, the suspect’s
vehicle, and the witnesses’ personal information (i.e., names, phone numbers, and birthdates); (2)
records obtained from T-Mobile in response to a search warrant for the suspect’s cell phone records
(described as call log, data sessions, and interpretations of call log, subscribers, and time stamp);
(3) footage from three POD cameras in the area at the time of the collision; and (4) a PowerPoint
presentation that CPD prepared on the progress of the investigation (as of a date not disclosed),
including an analysis of the T-Mobile records and POD footage.
¶7 The defendants argued in their motion for summary judgment that all of the records above
were exempt from disclosure under section 7(1)(d)(i) of FOIA (id. § 7(1)(d)(i)), which exempts
records in the possession of any law enforcement agency for law enforcement purposes, “but only
to the extent that disclosure would interfere with pending or actually and reasonably contemplated
law enforcement proceedings conducted by any law enforcement *** agency that is the recipient
of the request.” In support of their assertion that disclosure of the above records would interfere
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with CPD’s then-ongoing investigation into the hit-and-run collision at issue, the defendants
submitted the affidavit of Paul Niezabitowski. As this affidavit is the primary basis of the parties’
arguments on appeal, we set forth its contents in detail.
¶8 Officer Niezabitowski’s affidavit established the following facts. He is employed by CPD as
an investigator with the major accident investigation unit, and he assisted in investigation of the
fatal hit-and-run collision at issue. His duties in the case included collecting and reviewing
available evidence. His opinion is that the current investigation would be compromised by the
release of (1) videos, including from officers’ body-worn cameras and POD cameras; (2) records
from T-Mobile responsive to a search warrant for cell phone records; and (3) a PowerPoint
presentation analyzing the T-Mobile records and POD camera video footage. As of January 7,
2022, and January 18, 2022, the investigation of the incident was open and ongoing; no arrests had
been made, and the perpetrator remained at large on both dates. Based on his experience, it is not
uncommon for a hit-and-run investigation to take longer than five months to close or otherwise
reach a point where release of any associated records would not interfere with the investigation;
this is due to the various investigative steps which require time to complete (e.g., forensic evidence
testing), and the need to comply with requests by the Cook County State’s Attorney’s Office.
¶9 Officer Niezabitowski’s affidavit went on to state that in this instance, the investigation took
time to progress because it required the major accident investigation unit to locate the suspect
vehicle, swab it for DNA on both the steering wheel and undercarriage, send those swabs to the
Illinois State Police for testing, receive the results of the testing back, send additional evidence
from the suspect vehicle to the Illinois State Police to gain greater evidence of who was driving it
at the time of the crash, and obtain court approval for the above searches and seizures, as well as
for a grand jury to subpoena T-Mobile for cell phone records of the suspect’s phone. He stated that
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investigations are designed to remain out of the public eye until warrants are issued and arrests are
made; this enables the investigation to occur without undue interference, such as changing of
witness statements or suspects evading detection and capture. Producing records responsive to the
plaintiff’s FOIA requests would have materially impacted the investigation, as disclosure would
reveal the nature and progress of the investigation and descriptions of potential suspects. If
offenders determine from the news media the extent of evidence police have against them, they
can then take steps to evade detection or capture, including fleeing the jurisdiction. It can also
allow suspects time to create alibis and better fabricate evidence.
¶ 10 Officer Niezabitowski stated that he was actively attempting to locate and speak with a
specific witness who could identify the driver of the vehicle. In his experience, releasing witnesses’
likenesses, identifying information, and statements reduces civilian cooperation with police and
hampers investigations. If witness statements are made public during an investigation prior to
arrests being made, it places witnesses at risk of harm or retaliation, which makes them less likely
to cooperate with investigators. Publicly releasing investigation details could also alter the memory
or testimony of witnesses who have not yet been interviewed.
¶ 11 Finally, as to the specific categories of records at issue in this case, Officer Niezabitowski’s
affidavit stated as follows:
“19. In the current case, the disclosure of the officer worn body camera video would
have interfered with the investigation. The videos included witness identities and interviews.
As part of those interviews, witnesses gave descriptions of the suspect and the suspect
vehicle. Release of these videos would put these witnesses at risk of harm or retaliation,
particularly considering the criminal history of the primary suspect and could jeopardize the
investigation.
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20. In my experience, if the body worn camera videos were released and published in
the current case, these witnesses and others would see the interviews. Their memories could
be altered, and the value of any subsequent interviews could be undermined.
21. The POD camera videos show the suspect vehicle driving in the vicinity of the crash
at the time of the crash. If these videos were released, the suspect would see their vehicle
appears in all the videos, would know that they are under investigation, and would attempt
to evade capture. The release could also alter the memories of witnesses, as the paths and
direction of travel of the suspect vehicle is not publicly known.
22. The release of the T-Mobile records would interfere with the investigation. The
records were for the primary suspect’s cell phone records. Disclosing those records would
reveal the name of the suspect, who has not yet been arrested. The suspect would see this
disclosure, know that they are under investigation, and could attempt to evade capture. More
importantly, and as explained above, the phone records were obtained as a result of Grand
Jury Subpoenas and cannot publicly be disclosed absent a court order.
23. The public release of the PowerPoint analysis of the T-Mobile records and the POD
videos would similarly undermine the investigation. The PowerPoint shows how the
suspect’s cell phone was in the vicinity of the crash at the time of the crash. The POD video
shows how the suspect’s vehicle was also in the vicinity at that time ***. Similarly, if the
PowerPoint were publicly released, the suspect would know that CPD is aware that their
vehicle and that their phone was in the area of the crash at the time it occurred. The suspect
would then know that they are being investigated and could attempt to evade capture.”
¶ 12 The trial court entered two orders in this case that are the subject of appeal. By these orders,
it granted the defendants’ cross-motion for summary judgment, denied the plaintiff’s motion for
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partial summary judgment, and denied the plaintiff’s motion to reconsider those summary
judgment rulings. With greater elaboration in its order denying the motion to reconsider, the trial
court explained that it found that the defendants had met their burden to establish that all withheld
records were exempt from disclosure on the basis that the disclosure of them would interfere with
an ongoing police investigation concerning the hit-and-run collision at issue. Also, specifically
concerning the video footage from officers’ body-worn cameras, the trial court ruled that this was
exempt from disclosure through FOIA under section 10-20(b) of the Body Camera Act (50 ILCS
706/10-20(b) (West 2022)). The plaintiff filed a notice of appeal as to these rulings.
¶ 13 ANALYSIS
¶ 14 This appeal involves the trial court’s entry of summary judgment in a FOIA case. Section 2-
1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2022)) provides that
summary judgment shall be rendered without delay if the pleadings, depositions, and admissions
on file, together with any affidavits, show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. Once the records at issue are properly
identified, FOIA cases are generally appropriate for resolution through summary judgment.
BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990, 997 (2007).
We review de novo both questions as to the propriety of summary judgment and as to whether the
records of a public body are exempt from disclosure under FOIA. Lucy Parsons Labs v. City of
Chicago Mayor’s Office, 2021 IL App (1st) 192073, ¶ 11.
¶ 15 FOIA provides that all records in the custody or possession of a public body are presumed to
be open to inspection or copying. 5 ILCS 140/1.2 (West 2022). A public body must comply with
a proper request for information unless the records or information is subject to one of the
exemptions in section 7 of FOIA (id. § 7). Chapman v. Chicago Department of Finance, 2023 IL
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128300, ¶ 32. These exemptions are to be read narrowly. Id. Relevant here is the exemption for
“[r]ecords in the possession of *** any law enforcement *** agency for law enforcement purposes,
but only to the extent that disclosure would interfere with pending or actually and reasonably
contemplated law enforcement proceedings conducted by any law enforcement *** agency that is
the recipient of the request.” 5 ILCS 140/7(1)(d)(i) (West 2022). A public body that asserts that a
record is exempt from disclosure has the burden of proving by clear and convincing evidence that
it is exempt. Id. § 1.2. To meet this burden and assist the court in making its determinations, the
public body must provide a detailed justification for its claim of exemption, addressing the
requested documents specifically and in a manner that allows for adequate adversary testing.
Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003).
Accordingly, affidavits submitted for this purpose that are conclusory, that merely recite statutory
standards, or that are too vague or sweeping will not suffice to satisfy this burden. Id. at 469. We
review the propriety of withholding records pursuant to a claim of exemption under circumstances
as they existed on the date the public body made its decision (here, January 7, 2022, and January
18, 2022). Green v. Chicago Police Department, 2022 IL 127229, ¶ 3.
¶ 16 In this appeal, the heart of the plaintiff’s argument is that Officer Niezabitowski’s affidavit
was insufficient to satisfy the defendants’ burden of proving by clear and convincing evidence that
release of all the withheld records would interfere with pending or reasonably contemplated law
enforcement proceedings. 2 See 5 ILCS 140/7(1)(d)(i) (West 2022). The plaintiff argues that his
affidavit is simply a repetition of the affidavit statements that this court found sufficient in Ballew
v. Chicago Police Department, 2022 IL App (1st) 210715, without any meaningful independent
2 The plaintiff also discusses section 7(1)(d)(vii) of FOIA (5 ILCS 140/7(1)(d)(vii) (West 2022)), which exempts from disclosure law enforcement records to the extent it would “obstruct an going criminal investigation.” However, as the defendants make no argument that the records at issue are exempt under section 7(1)(d)(vii), we do not address this separate exemption.
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application to the records of this case. As such, the plaintiff argues, the statements in it upon which
the defendants rely are generic, vague, and untethered to any specific records actually being
withheld in this instance. The plaintiff also characterizes the defendants as improperly claiming a
“blanket” exemption over all responsive records, instead of reviewing them all to determine what
information within them can be disclosed, at least in redacted form. The plaintiff further contends
that the defendants have voluntarily made public much of the information sought here, such as the
witnesses’ full names and contact information included in the traffic crash report and the still
photos and license plate number of the suspect vehicle included in a community alert issued the
day after the collision. The plaintiff argues that the extent of information that the defendants have
voluntarily disclosed undermines their argument that disclosing much of the same information
through a FOIA request would interfere with an ongoing investigation.
¶ 17 In response, the defendants argue that they met their burden of showing that all the responsive
records were properly withheld as exempt from disclosure under section 7(1)(d)(i), because Officer
Niezabitowski’s affidavit sets forth in detail how disclosing the responsive records at issue would
have interfered with CPD’s ongoing investigation into this particular hit-and-run collision. They
contend that the plaintiff is grossly misrepresenting the extent of case-specific detail included in
Officer Niezabitowski’s affidavit, and they assert that his affidavit goes beyond what this court
held sufficient in Ballew. They argue that this is not a case in which a blanket exemption was
asserted over all records without any meaningful review of them to determine whether anything
within them needed to be disclosed in redacted form, and nothing supports the argument that the
defendants undertook an inadequate review of records here. Finally, they argue that the
information made public in the traffic crash report or the community alert was far less detailed
than the records requested by the plaintiff here, which include extensive video footage and details
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about the crash and ensuing police investigation. We agree with the defendants’ arguments.
¶ 18 In Ballew, the CPD partially denied a FOIA request by a reporter seeking records pertaining
to a homicide that had occurred six months earlier. Ballew, 2022 IL App (1st) 210715, ¶¶ 3-4. This
court held that CPD had satisfied its burden of explaining how disclosure of the withheld
documents would interfere with its pending investigation into the homicide by its submission of
the affidavit of the investigator in charge of it, Lieutenant John Roberts. Id. ¶¶ 20-23, 27. The court
summarized the contents of Roberts’ affidavit as follows:
“In his affidavit, Roberts explained that the homicide investigation was ongoing and
that the offender remained at large. Moreover, he stated that the outcome of the investigation
may be jeopardized if details of the investigation, investigative technique, and evidence were
to be released. The homicide underlying the FOIA request in the case at bar appears to be
linked to another unsolved homicide, and both appear to be hate-driven with similar
modi operandi. Thus, according to Roberts, ‘releasing any of the requested materials before
the investigation was complete would materially impact the investigation, especially
considering that the investigators were still trying to identify witnesses, and premature
release would make the investigators’ determination of the veracity of any subsequent
witnesses much more difficult.’ Finally, he explained that, in cases that have received
significant media interest, ‘it is critical that the investigators be able to determine whether a
purported witnesses [sic] actually has something to further aid the investigation, and is not
simply using [publicly] available information in a misguided attempt to aid or otherwise
mislead the investigators, wasting finite investigative resources.’ ” Id. ¶ 21.
¶ 19 A simple comparison of the statements in Officer Niezabitowski’s affidavit above (supra ¶¶
8-11) to the summary of Lieutenant Roberts’ affidavit in Ballew leads us to reject the plaintiff’s
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argument that Officer Niezabitowski’s affidavit is a generic or vague duplication of the points in
Roberts’ affidavit with no application to the records or facts of this case. Instead, we agree with
the defendants that his affidavit contains sufficient case-specific detail about why the disclosure
of the records at issue would interfere with an ongoing police investigation.
¶ 20 Officer Niezabitowski’s affidavit explained that, as of the operative dates of the FOIA request
five months after the collision at issue, CPD was continuing to investigate to identify the driver of
the suspect vehicle. This specifically included attempting to locate and speak to a particular witness
who could identify the driver. He explained that disclosing the body camera footage, which
included witnesses’ identities and interviews wherein they described the suspect and the suspect
vehicle, would place those witnesses at risk of harm or retaliation (particularly in light of the
primary suspect’s criminal history) and could jeopardize the investigation. Publication of these
videos could also alter the memories of other witnesses, thereby undermining the value of any
subsequent interviews. He explained that releasing the POD camera footage, which showed the
suspect vehicle driving in the vicinity, would alert the suspect to the fact that they were under
investigation and allow the suspect to evade capture. It could likewise alter the memory of
witnesses, as paths and direction of travel are not publicly known. He explained that release of the
T-Mobile records, which were for the primary suspect’s cell phone records, would reveal the name
of the suspect, again alerting that person that they were under investigation and allowing them to
evade capture. Finally, he explained that release of the PowerPoint document, which analyzed the
T-Mobile records and POD camera footage to show how the suspect’s cell phone and vehicle were
in the vicinity at the time of the collision, would alert the suspect to the evidence against them and
allow them to evade capture. He added that disclosure of the records during an ongoing
investigation may also allow the suspect time to create an alibi or better fabricate evidence. We
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find the statements in Officer Niezabitowski’s affidavit to be sufficient to show by clear and
convincing evidence that these records are exempt from disclosure under section 7(1)(d)(i).
¶ 21 Further, we find no support for the plaintiff’s argument that the defendants improperly
claimed a “blanket” exemption over all responsive records without reviewing them all to determine
whether any information within them could be disclosed, at least in redacted form. This court
rejected a nearly identical argument in Ballew. There, the court found that CPD had produced an
incident report and shown through the affidavit of Lieutenant Roberts why the other requested
documents were exempt from disclosure, and there was “nothing to indicate that CPD has refused
to review all responsive records before asserting this exemption.” Ballew, 2022 IL App (1st)
210715, ¶ 24. The court in Ballew further stated that the explanation in Lieutenant Roberts’
affidavit distinguished that case from Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780,
where this court had held that an improper blanket exemption was claimed. Ballew, 2022 IL App
(1st) 210715, ¶ 25. The holding in Kelly was based upon the FOIA request recipients’ claiming
that all documents were exempt concerning a 50-year-old unsolved homicide, where the recipients
had responded with only generic explanations as to why disclosure would interfere with an
ongoing investigation and had essentially admitted to not reviewing the 20,000 pages of withheld
documents to determine whether anything in them could be disclosed. Kelly, 2019 IL App (1st)
170780, ¶¶ 36, 39, 47.
¶ 22 In this case, we are dealing with a fairly small number of records that were withheld,
comprising about eight video recordings, the cell phone records of one person, and a PowerPoint
presentation. As was the case in Ballew, we find no basis in the record for concluding that the
defendants did not review these records before claiming a “blanket” exemption from disclosure
under section 7(1)(d)(i). Instead, as explained above, we find that Officer Niezabitowski’s affidavit
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supports the conclusion that the entirety of the body camera and POD camera footage, the T-
Mobile records, and the PowerPoint analysis pertaining to this hit-and-run collision were reviewed
and found to come within this exemption for the reasons he articulated.
¶ 23 As for the plaintiff’s argument that it is nevertheless entitled to obtain redacted versions of
these records in some form, neither party addresses this argument in great detail. The plaintiff
relies upon the provision of section 7(1) of FOIA (5 ILCS 140/7(1) (West 2022)) that states:
“When a request is made to inspect or copy a public record that contains information
that is exempt from disclosure under this Section, but also contains information that is not
exempt from disclosure, the public body may elect to redact the information that is exempt.
The public body shall make the remaining information available for inspection and copying.”
The plaintiff also cites Lucy Parsons Labs, 2021 IL App (1st) 192073, ¶ 19, for the proposition
that a public body’s duty to redact the exempt information and produce the nonexempt information
remains even where the redactions would leave the requestor with nothing useful.
¶ 24 We find that the plaintiff is not entitled to redacted versions of the law enforcement records
at issue that are exempt on the basis that disclosure of them would interfere with pending or
contemplated law enforcement proceedings. Section 7(1)(d)(i) of FOIA (5 ILCS 140/7(1)(d)(i)
(West 2022)) exempts “[r]ecords” in the possession of a law enforcement agency. It is thus a
broader exemption than many other exemptions that apply only to “information” within records.
See, e.g., id. § 7(1)(c) (exempting “[p]ersonal information contained within public records”); id.
§ 7(1)(j) (exempting certain “information pertaining to educational matters”). And section 7(1)
states that redaction applies when a request involves “a public record that contains information
that is exempt from disclosure under this Section, but also contains information that is not exempt
from disclosure.” (Emphases added.) Id. § 7(1).
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¶ 25 When the court in Lucy Parsons Labs stated that a public body had a duty to redact exempt
information and produce the nonexempt information “even where the redactions would leave the
requestor with nothing useful,” it did so in the specific context of recognizing that the FOIA request
at issue likely involved “a mix of both exempt and nonexempt information.” Lucy Parsons Labs,
2021 IL App (1st) 192073, ¶ 19. The request in that case was for the City of Chicago’s 150-page
action plan for managing potential unrest on the day of the verdict in a high-profile murder trial
involving a former police officer. Id. ¶ 3. In withholding the entire action plan, the defendant had
relied upon the exemption for
“ ‘[v]ulnerability assessments, security measures, and response policies or plans that
are designed to identify, prevent, or respond to potential attacks upon a community’s
population or systems, facilities, or installations, the destruction or contamination of which
would constitute a clear and present danger to the health or safety of the community, but only
to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of
the measures or the safety of the personnel who implement them or the public. Information
exempt under this item may include such things as details pertaining to the mobilization or
deployment of personnel or equipment, to the operation of communication systems or
protocols, or to tactical operations.’ ” Id. ¶¶ 3, 13 (quoting 5 ILCS 140/7(1)(v) (West 2018)).
The court reasoned that while the defendant had met its burden of establishing that some
information within the requested action plan qualified for this exemption, the presence of this
information within it did not necessarily make the plan exempt in its entirety. Id. ¶¶ 14-15. The
court held that, having determined that the plan “is likely a mix of both exempt and nonexempt
information,” remand was necessary so that the defendant could redact from the plan any
information within it that qualified for exemption and produce that which remained. Id. ¶¶ 19, 21.
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¶ 26 In this case, unlike in Lucy Parsons Labs, we are dealing with an exemption for “[r]ecords,”
not one for particular information within records. See 5 ILCS 140/7(1)(d)(i) (West 2022). And
again, this case involves a fairly small number of records—body camera and POD camera footage,
the primary suspect’s cell phone records subpoenaed from T-Mobile, and a PowerPoint
presentation analyzing this other evidence. Nothing about the nature of these records causes us to
suspect that any of these is a “record that contains information that is exempt from disclosure under
this Section, but also contains information that is not exempt from disclosure.” Id. § 7(1). Rather,
given their nature and the law-enforcement reasons for which they are exempt from disclosure, we
conclude that the defendants have sufficiently shown through Officer Niezabitowski’s affidavit
that these records are exempt from disclosure in their entirety pursuant to section 7(1)(d)(i). The
defendants had no duty in this instance to provide redacted versions of them to the plaintiff.
¶ 27 Finally, we find no merit to the plaintiff’s argument that the defendants’ voluntary disclosure
of the witnesses’ names and contact information in the traffic crash report and of photos and the
license plate number of the suspect vehicle in a community alert undermines their position that
disclosing information through a FOIA request would interfere with an ongoing police
investigation. It is evident from Officer Niezabitowski’s affidavit that the body camera and POD
camera footage, the T-Mobile records, and the PowerPoint analysis of the evidence contains far
more detailed information about the nature and extent of CPD’s investigation into the collision
than anything made public in the traffic crash report or the community alert issued in the days
following the incident. If this detailed information were disseminated through the news media—
particularly the recorded footage of the witnesses’ statements and the suspect vehicle’s path of
travel—there is far greater risk of attracting the attention that would result in the harm discussed
in Officer Niezabitowski’s affidavit. Thus, the fact that CPD made public some limited information
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does not eliminate the risk of interference to the pending investigation if law enforcement records
containing far greater information about it were disclosed.
¶ 28 Given our conclusion that all withheld records in this case are exempt from disclosure under
section 7(1)(d)(i) of FOIA (id. § 7(1)(d)(i)), it is not necessary for us to separately consider whether
the body camera footage is also exempt from disclosure under section 10-20(b) of the Body
Camera Act (50 ILCS 706/10-20(b) (West 2022)). However, we choose to address the plaintiff’s
legal argument that this statute does not exempt disclosure through FOIA of footage recorded on
a public street where the victim and witnesses lacked a “reasonable expectation of privacy.”
¶ 29 Section 10-20(b) of the Body Camera Act (id.) provides as follows:
“(b) Recordings made with the use of an officer-worn body camera are not subject to
disclosure under the Freedom of Information Act, except that:
(1) if the subject of the encounter has a reasonable expectation of privacy, at the
time of the recording, any recording which is flagged, due to the filing of a complaint,
discharge of a firearm, use of force, arrest or detention, or resulting death or bodily
harm, shall be disclosed in accordance with the Freedom of Information Act if:
(A) the subject of the encounter captured on the recording is a victim or
witness; and
(B) the law enforcement agency obtains written permission of the subject or
the subject’s legal representative;
(2) except as provided in paragraph (1) of this subsection (b), any recording which
is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or
detention, or resulting death or bodily harm shall be disclosed in accordance with the
Freedom of Information Act; and
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(3) upon request, the law enforcement agency shall disclose, in accordance with
the Freedom of Information Act, the recording to the subject of the encounter captured
on the recording or to the subject’s attorney, or the officer or his or her legal
representative.
For the purposes of paragraph (1) of this subsection (b), the subject of the encounter
does not have a reasonable expectation of privacy if the subject was arrested as a result of
the encounter. For purposes of subparagraph (A) of paragraph (1) of this subsection (b),
‘witness’ does not include a person who is a victim or who was arrested as a result of the
encounter.
Only recordings or portions of recordings responsive to the request shall be available
for inspection or reproduction. Any recording disclosed under the Freedom of Information
Act shall be redacted to remove identification of any person that appears on the recording
and is not the officer, a subject of the encounter, or directly involved in the encounter.
Nothing in this subsection (b) shall require the disclosure of any recording or portion of any
recording which would be exempt from disclosure under the Freedom of Information Act.”
(Emphasis added.) 3
¶ 30 The parties’ dispute centers around the meaning of “reasonable expectation of privacy” in the
above statute. Both sides agree that the body camera footage at issue was “flagged” due to death
resulting to a person in the recording. See id. § 10-20(a)(7)(B)(iii). They also agree that the subjects
of the encounter captured on the recording are witnesses and the victim and that no written
3 Related to this statute, we also note that section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2022)) exempts from disclosure “[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.” And section 7.5(cc) of FOIA (id. § 7.5(cc)) exempts from disclosure “[r]ecordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act.”
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permission from the subjects or their legal representatives has been obtained by any party.
¶ 31 Instead, the plaintiff’s position is that the body camera footage is disclosable under section
10-20(b)(2) above. Section 10-20(b)(1) is inapplicable, according to the plaintiff, because the
victim and the witnesses who were the subjects of the recorded encounter had no “reasonable
expectation of privacy” in events or conversations with police that were recorded on a public street,
where this hit-and-run collision took place. The plaintiff contends that “reasonable expectation of
privacy” is ambiguous as it is used in this statute. Based upon this purported ambiguity, the plaintiff
urges us to look to the legislative history and to conclude that this phrase has the same meaning as
in the test set forth in Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347 (1967).
Under that test, a reasonable expectation of privacy, the infringement of which violates the fourth
amendment, requires (1) that a person has exhibited an actual (subjective) expectation of privacy
and (2) that the expectation be one that society is prepared to recognize as reasonable. Id. at 361
(Harlan, J., concurring); see California v. Ciraolo, 476 U.S. 207, 211 (1986) (test adopted by
majority); People v. Smith, 152 Ill. 2d 229, 244-45 (1992). From this premise, the plaintiff argues
that there is no basis for concluding that the witnesses whose interviews with police were recorded
by body cameras expected that their conversations on a public street would be kept private, thus
obviating the requirement of section 10-20(b)(1)(B) that their written permission be obtained as a
condition of disclosing the body camera footage pursuant to a FOIA request.
¶ 32 This argument as to ambiguity requires us to apply principles of statutory interpretation. A
court’s primary objective in interpreting statutes is to ascertain and give effect to legislative intent.
Accettura v. Vacationland, Inc., 2019 IL 124285, ¶ 11. To do this, we look first to the plain and
ordinary meaning of the language used in the statute, read in light of the subject it addresses and
the legislature’s apparent intent in enacting it. People v. Lane, 2023 IL 128269, ¶ 11. Words and
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phrases are considered in light of the statute as a whole instead of being viewed in isolation. Relf
v. Shatayeva, 2013 IL 114925, ¶ 23. When the language of a statute is clear and unambiguous, we
must apply it as written, without resorting to legislative histories or other extrinsic sources to
determine legislative intent. Policemen’s Benevolent Labor Committee v. City of Sparta, 2020 IL
125508, ¶ 15. Only if statutory language is ambiguous may we consider extrinsic aids of
construction. Id. A statute is ambiguous when it is subject to more than one reasonable
interpretation, but statutory language is not ambiguous merely because the parties disagree about
its meaning. Lenz v. Advocate Health & Hospitals Corp., 2023 IL App (1st) 230740, ¶ 13.
¶ 33 Applying these principles of statutory interpretation, we reject the plaintiff’s argument that
the phrase “reasonable expectation of privacy” is ambiguous as used in section 10-20(b) of the
Body Camera Act (50 ILCS 706/10-20(b) (West 2022)). Thus, we find no need to resort to
legislative history to discern the legislative intent. Instead, we conclude from the plain language,
read in context of the whole statute and considered in light of the statute’s purpose, that the
legislature intended this phrase to have a broader meaning than it does under fourth amendment
law. Section 10-20(b) is specifically addressing disclosure of body camera recordings under FOIA.
The statute’s concern is with the reasonable privacy expectations of a victim or a witness who
becomes “the subject of [an] encounter” with police that is recorded by body camera. If the phrase
“reasonable expectation of privacy” in this context is interpreted as having the same contours as
the test from Katz for a fourth amendment violation, it is difficult for us to conceive how any
person who voluntarily engages in a conversation with a law enforcement officer about a crime of
which he or she has been a victim or witness could ever be said to have a reasonable expectation
of privacy in that conversation, regardless of where it occurs. See United States v. Mendenhall,
446 U.S. 544, 554 (1980) (“no intrusion upon [a] person’s liberty or privacy” occurs for fourth
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amendment purposes when a person voluntarily answers questions posed by police).
¶ 34 Instead, we believe that the legislature intended the phrase “reasonable expectation of
privacy” in this statute to account for the fact that a victim or witness could engage in an encounter
with a law enforcement officer while recognizing that the body camera recording of that encounter
would likely be used for law enforcement purposes; by doing so, however, that victim or witness
does not necessarily forfeit the reasonable expectation, stemming from the right to privacy (see
People v. Austin, 2019 IL 123910, ¶¶ 62-63), that the law enforcement agency will not disseminate
that recording to the news media or the public at large. The consideration is how a reasonable
person in that position would expect the body camera recording to be used and the nature and
extent of the audience to which he or she would reasonably expect it to be disclosed. This
interpretation most reasonably advances the legislative purpose of “protecting individual privacy”
while also furthering the goals of helping to collect evidence, improving transparency and
accountability, and strengthening public trust in law enforcement agencies. See 50 ILCS 706/10-
5 (West 2022).
¶ 35 Here, the body camera recordings were taken at the scene of a fatal hit-and-run collision that
occurred on a public street. All five body camera recordings involve interviews with witnesses to
the collision in which they described to police the suspect and the suspect’s vehicle. At least one
of the recordings also contains video of the victim who suffered ultimately fatal injuries receiving
treatment in an ambulance. We find that reasonable persons in the position of these witnesses and
the victim would reasonably expect their recorded encounters to be used for law enforcement
purposes but would also expect, as a matter of privacy rights, that the recordings not be
disseminated to the news media or the public. We believe that witnesses to a fatal hit-and-run
collision who give statements to police describing the perpetrator would reasonably expect the
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police department to protect them from possible acts of retaliation by avoiding the dissemination
of their recorded statements to the media or the general public. Similarly, we believe that
individuals who have just witnessed or been involved in a traumatic incident such as a fatal car
collision would not reasonably expect the police to release video to the public showing them in a
vulnerable state. And a person who is in an ambulance receiving treatment for injuries he or she
has sustained in a collision would not reasonably expect the police to publicly release video footage
showing this.
¶ 36 For these reasons, we hold that the body camera recordings at issue are ones in which the
victim and witnesses who are the subjects of the encounters had reasonable expectations of privacy
at the time of the recording. As such, the recordings are subject to disclosure only if written
permission is obtained from the subjects or their legal representatives. As the record discloses no
written permission for disclosure, the defendants properly withheld the recordings from disclosure
under section 10-20(b)(1).
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 39 Affirmed.
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