Thursday, March 17th, 2016

Illinois Attorney General Determines Post-Mortem Photographs May Be Released Pursuant to FOIA

The Illinois Attorney General recently released a binding Public Access Counselor (PAC) Opinion regarding Freedom of Information Act (FOIA) requests. The request at issue concerned a father’s inquiry for records relating to his daughter’s death. Specifically, the FOIA request sought “[a]ll crime scene photographs, autopsy photographs, images and trajectory diagram[s].”

The Illinois State Police denied the request for crime scene and autopsy photographs based on there being a personal privacy interest. See 5 ILCS 140/7(1)(b)(c). However, the father claimed that he should be entitled to these photographs as he was both a close family member and the executor of his daughter’s estate.

Ultimately, the Attorney General determined that the father could receive the photographs. Specifically, the Attorney General reaffirmed an earlier PAC opinion stating that “a decedent’s surviving family members do possess a separate personal privacy interest in ‘their close relative’s death-scene images’ and similar records.” Ill. Att’y. Gen. Pub. Acc. Op. No. 10-003. In that previous opinion, the Attorney General determined that it would be an invasion of the surviving family members’ personal privacy to release post-mortem photographs to a non-family member when the family had objected to their release. Therefore, the father, who was both a close family member and the deceased’s executor, could receive the photographs pursuant to a valid FOIA request.

Police departments responding to similar FOIA requests should keep this PAC opinion in mind when contemplating whether to release post-mortem photographs. Also note that any assertion that the release of information would constitute an unwarranted invasion of personal privacy should be evaluated on a case-by-case basis.

Michael J. Smoron

Authors: Michael J. Smoron, Jacob Caudill