The McHenry County Sheriff’s Office was fined $5,000 in addition to approximately $80,000 for the other side’s legal costs and filing fees, after a trial court deemed it to have improperly withheld documents from a Freedom of Information Act (FOIA) request. The FOIA request had been made in 2013 by a local media source to obtain records regarding an internal investigation the then Sheriff had conducted into an alleged wrongdoing by the then Undersheriff. The Sheriff concluded that there had been no wrongdoing by the Undersheriff.

The Sheriff’s Office denied the FOIA request, citing exemption from disclosure under the FOIA, stating that the documents were related to the Sheriff’s Office’s adjudication of a disciplinary case (5 ILCS 140/7(1)(n)). The media source then submitted the denial to the Public Access Counselor (PAC) for review, and the PAC issued a non-binding determination that the records should be disclosed because they related to an investigation, not an adjudication. After the Sheriff’s Office still refused to produce the documents, the media source filed suit against the Sheriff’s Office for an alleged FOIA violation.

At trial, the court determined that because a summary of the investigation report had been previously disclosed outside of the Sheriff’s Office, including to a media source, the Sheriff’s Office had waived its asserted FOIA exemption. While the trial court did not order the disclosure of the full report, the award of legal costs was determined to be a reasonable reflection of the time necessary to successfully litigate a FOIA violation. The plaintiff’s attorney had clocked over 300 hours on the case.

The case could still be appealed, and there are several issues that will be of interest to local governments if this case becomes precedential in the Second Appellate District. For example, the FOIA does not define “adjudication” under the cited exemption, and so it is unclear at what point a personnel disciplinary investigation becomes an adjudication. Also at potential issue is whether the entire investigation report should have been disclosed versus only the summary of the report, and whether and on what basis FOIA exemptions may be waived. Until more clarity emerges on these issues, the threat of paying tens of thousands of dollars plus a fine looms large for local governments which are advised to carefully analyze the FOIA exemptions before asserting them in a FOIA response.

Brad Stewart

Author: Brad Stewart