National Association of Criminal Lawyers v. Chicago Police Department

FOURTH DIVISION
February 25, 2010

Nos. 1-08-2073 and 1-08-3414 (consolidated)

NATIONAL ASSOCIATION OF CRIMINAL ) Appeal from the
DEFENSE LAWYERS, ) Circuit Court of
) Cook County
Plaintiff-Appellant, )
) No. 07 CH 3622
v. )
) Honorable
CHICAGO POLICE DEPARTMENT, ) Mary Anne Mason,
) Judge Presiding.
Defendant-Appellee. )
)
__________________________________________ ) ________________________
)
NATIONAL ASSOCIATION OF CRIMINAL ) Appeal from the
DEFENSE LAWYERS, ) Circuit Court of
) Will County
Plaintiff-Appellant, )
) No. 07 MR 530
v. )
) Honorable
CHIEF OF THE JOLIET POLICE ) Bobbi N. Petrungaro,
DEPARTMENT, ) Judge Presiding.
)
Defendant-Appellee. )

JUSTICE GALLAGHER delivered the opinion of the court:

This consolidated appeal involves requests for data made by plaintiff-appellant National

Association of Criminal Defense Lawyers (NACDL) under the Illinois Freedom of Information

Act (FOIA) (5 ILCS 140/1 et seq. (West 2006)). NACDL requested the data used to assemble a

legislatively mandated study of eyewitness identification procedures by the Chicago Police
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Department, the Joliet Police Department and two other police agencies. The Chicago and Joliet

Police Departments tendered final administrative responses to the requests, declining to produce

the majority of the data requested. NACDL filed suit against both agencies, seeking to compel

production of the requested data. The parties in the Chicago case filed cross-motions for

summary judgment. NACDL also filed a motion for summary judgment in the Joliet case. Both

trial courts directed defendants to produce some of the requested data but ruled that the majority

of the information sought was either protected from disclosure by FOIA’s law enforcement and

privacy exemptions or was too burdensome for the agencies to produce. On appeal, NACDL

contends that: (1) the law enforcement and privacy exemptions of FOIA do not bar disclosure of

police data after all personal identifying information has been redacted, (2) the generic and

conclusory statements in police affidavits are insufficient to satisfy the police agency’s burden of

proof to show that an exemption applies, (3) the privacy exemption of FOIA does not bar the

disclosure of photographs used in lineups after all personal identifying information has been

redacted, and (4) the burden of redacting identifying information does not outweigh the public

interest in obtaining the requested data. For the reasons that follow, we affirm the trial courts’

partial grant of summary judgment in favor of NACDL, reverse the trial courts’ grant of summary

judgment in favor of the Chicago and Joliet Police Departments and remand for further

proceedings consistent with this opinion.

I. BACKGROUND

In 2003, the Illinois General Assembly passed section 107A-10 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/107A-10 (West 2006)). This legislation directed the Illinois

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State Police to conduct a one-year pilot study in the field on the effectiveness of the sequential

method for lineup procedures. Under the sequential method, a witness is shown lineup

participants one at a time and must state whether the individual shown is the perpetrator of the

crime before viewing the next lineup participant. Moreover, the lineup administrator must be

someone who does not know which participant is the suspect. 725 ILCS 5/107A-10(c)(2) (West

2006). The traditional lineup procedure involves the simultaneous viewing of all lineup

participants, and the lineup administrator usually knows which participants are suspects and which

participants are “fillers,” i.e., persons who are not suspects themselves but bear a physical

resemblance to the suspect. The statute directed the Illinois State Police to select three police

departments to participate in the study (725 ILCS 5/107A-10(b) (West 2006)) and Chicago, Joliet

and Evanston were selected. The study was conducted in 2004 and 2005.

The program director of the Illinois study released a report of the study’s findings on

March 17, 2006. The report concluded that the Illinois data did not bear out the research

experiments that suggest that sequential, double-blind lineups produce a lower rate of known false

identifications. Instead, the study found that the sequential, double-blind procedures resulted in

an overall higher rate of known false identifications than did the simultaneous lineups. The five

categories in particular for which the study concluded that the sequential, double-blind procedures

may produce a higher rate of false identifications are: (1) child witnesses, (2) older witnesses, (3)

cross-racial identifications, (4) multiple perpetrators, and (5) suspects who do not match the

description because of a change in appearance.

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The Illinois study was one of the first to compare the two methods in the field. The

results of the study received national publicity and have been criticized by social science

researchers who have cited flaws in the study design and the failure of the report’s authors to

submit the study for scientific peer review. NACDL sent Freedom of Information Act (FOIA)

requests to the Illinois State Police and the three police departments designated as participants in

the study. The FOIA requests sought the following information: (1) the procedures followed by

investigating officers in the control group of cases which followed the traditional simultaneous

lineup method, including documentation on whether each live lineup was a first viewing of a

suspect by an eyewitness or if the eyewitness had previously identified the suspect in a photo

lineup, (2) the training materials and records for police personnel participating in the study, (3)

records regarding the retention of certain personnel in connection with the study, (4) the criminal

court case numbers for each case included in the study together with the corresponding photos

and recordings of lineups and all photos shown to an eyewitness during a photo spread or

sequential photo array, and (5) the complete database of information used to generate the data

tables in the report.

The Chicago Police Department (CPD) denied the request, stating that it did not have

some of the requested documents and claiming that the remaining documents were exempt from

disclosure under the law enforcement exemption of FOIA (5 ILCS 140/7(1)(c) and (d) (West

2006)). The Joliet Police Department (JPD) disclosed some of the requested documents, stated

that it did not have some of the requested documents, and claimed that the remaining documents

were exempt from disclosure under the privacy and law enforcement exemptions of FOIA (5

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ILCS 140/7(1)(b), (c)(i) and (viii) (West 2006)). The Evanston Police Department also denied

the request, and the Illinois State Police produced some documents but declined to produce

documents belonging to the various police departments. NACDL filed lawsuits in Cook and Will

counties against the four police agencies, seeking to compel production of the requested

documents. The Evanston Police Department reached an agreement early on in the litigation with

NACDL to provide the requested documents with redactions and is not a party to this appeal.

The Illinois State Police remains a party in the Chicago case, but is taking no active role in the

litigation and informed NACDL that it will comply with any applicable court order regarding the

disclosure of the documents in its possession from the designated police departments.

CPD filed a motion for summary judgment with supporting materials. CPD asserted that

the requested documents were exempt from production because their release would (1) constitute

an invasion of both public and personal privacy, (2) interfere with pending law enforcement

proceedings, (3) obstruct ongoing criminal investigations, and (4) disclose information specifically

prohibited from disclosure under federal and state law, citing sections 7(1)(a), (b) and (c) of FOIA

(5 ILCS 140/7(1)(a), (b)(v), (c)(i), (c)(vi), (c)(viii) (West 2006)). Moreover, the research

required to determine whether each matter remained pending would constitute an undue burden

pursuant to section 3(f) of FOIA (5 ILCS 140/3(f) (West 2006)).

In support of its motion, CPD submitted the affidavits of Officer Matthew Sandoval and

Lieutenant James Gibson. Sandoval stated that he had conducted a random sampling of 10 cases

used in the study and his sample research indicated that of the 250 investigations involved in the

study, approximately half of the investigations were still open. Gibson submitted two affidavits.

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In the first affidavit, he stated that for open investigations, releasing the requested documents

“could very well interfere” with the investigations. Suspects could become aware of the status of

an investigation, what the police know and what evidence they have. Disclosure could also

present a risk to the safety of witnesses and their families. In the second affidavit, Gibson stated

that for open cases, even a redacted document could still possibly be linked to an ongoing

investigation because although the crime may have occurred in a large city, the members of the

small community in which the crime occurred could recognize the details of a specific incident and

the safety of victims and witnesses could be compromised. Gibson further stated that if a

redacted document was linked to an ongoing investigation, an at-large perpetrator could become

aware of what evidence the police have against him and could learn about specific police

investigative techniques. Gibson said there is no way to adequately redact these documents

because no single employee possesses the knowledge and discretion to determine what

information needs to be redacted. Gibson also stated that releasing photographs of lineup

participants “could constitute a violation of privacy.” Finally, Gibson conceded that documents in

closed cases could be released if the following information is redacted: (1) all personal identifying

information of victims, witnesses and suspects, (2) the exact location of the incident, (3) the

identities of individual lineup participants, and (4) the exact date, internal records division (RD)

numbers, and other identifying codes.

NACDL filed a cross-motion for summary judgment, explaining that the police data was

necessary to advance an ongoing public debate about the problem of erroneous eyewitness

identifications in criminal investigations. NACDL submitted the affidavits of Rob Warden,

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executive director of the Northwestern University School of Law Center on Wrongful

Convictions, Norman Reimer, NACDL’s executive director, and professor Nancy Steblay, a

social psychologist with expertise in eyewitness identification research whom NACDL retained as

a consultant.

Warden is a specialist in legal affairs, focusing primarily on wrongful convictions. He

noted that in 59.3% of the documented wrongful convictions in Illinois since 1900, or 54 out of

91 known cases, eyewitness identification was the principal prosecution evidence. Warden stated

that erroneous eyewitness identification is by far the most prevalent factor in wrongful

convictions. Moreover, wrongful convictions entail enormous social costs, e.g., 601 years

collectively behind bars for the 54 men and women known to have been wrongfully convicted and

$39 million for taxpayers in just three civil rights actions stemming from these convictions.

Warden explained that the results of the study have had a profound effect on public policy in

Illinois, making it unlikely that the Illinois General Assembly will act to reform police

identification procedures. Reimer provided examples of situations in which opponents of

reforming lineup procedures have used the results of the study to support the use of traditional

lineup procedures. Steblay stated that the results of the study contradicted decades of scientific

research. The study has also been criticized in the scientific community for flaws in its design and

methodology and a panel of researchers declared it unreliable as a basis for determining effective

eyewitness identification procedures. Steblay further stated that she is acting as a consultant to

NACDL without a consulting fee. Her role as a consultant is not to promote one lineup strategy

over another, but to advocate for sound science particularly as it informs public policy.

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Oral arguments were scheduled on the parties’ cross-motions for summary judgment, and

the court recommended that the parties consider settling the case under an agreement whereby the

CPD would provide NACDL with the requested, redacted police records subject to a protective

order prohibiting their dissemination. The parties were unable to reach an agreement; however,

during settlement negotiations, NACDL learned that there had been a misunderstanding regarding

the scope of its FOIA request. NACDL also learned that the researchers had not had access to all

of the police records concerning the investigations that were included in the study but had been

furnished with a form summarizing the outcome of the lineups and some limited documentation

from individual investigations. CPD had interpreted the request to include only those documents

to which the researchers had access (report data). This misunderstanding led to the filing of

supplemental arguments and evidence by both parties.

NACDL submitted a second affidavit of Steblay, in which she explained why a meaningful

critique of the study required access to all of the records in order to determine whether important

identification history had been excluded from the study. CPD submitted the affidavit of assistant

corporation counsel Amber Ritter, in which she estimated that redacting the full police file for

each investigation included in the study would take 170 hours.

In the Joliet case, NACDL filed a motion for summary judgment that was identical to the

motion it filed in the Chicago case. JPD responded, submitting the affidavits of Officer Robert

Puleo and Deputy Police Chief Patrick Kerr. Puleo estimated that it would take 197 person hours

to redact the 257 police files that had been included in the study. Kerr’s affidavit was similar to

the Gibson affidavits that were submitted in the Chicago case. He stated that the disclosure of the

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requested documents “could very well” interfere with ongoing police investigations. He further

stated that the release of the police reports would constitute an invasion of privacy of the victims

and witnesses involved.

In the Chicago case, the circuit court analyzed open and closed investigations separately,

and also distinguished the report data from the remaining information contained in the police

investigation files. With respect to the open files, the court determined that these files were

exempt under section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2006)), relying on Gibson’s

affidavits. For the closed files, CPD agreed to produce the report data with all personal

identifying information redacted. This left three unresolved issues with respect to the closed files:

(1) redaction of the faces from the photographs of lineup participants, (2) redaction of the RD

numbers, and (3) production of the remaining information in the police investigation files. The

court found that the privacy interests of the lineup participants outweighed the interests of

NACDL and the public in viewing the photographs and ruled that CPD could redact the faces in

the photographs. However, the court ruled that CPD could not redact the RD numbers because

closed files are already in the public record so the release of a number that would allow NACDL

to match a police file to a specific case would not constitute an invasion of privacy. Finally, the

court ruled that the production of information in the police investigation files that was not part of

the report data would impose a substantial burden on CPD, and that the public interest in the data

did not outweigh the burden of redacting the documents.

In the Joliet case, the circuit court held that the information in open cases was exempt

from disclosure under sections 7(1)(b) and (c) of FOIA (5 ILCS 140/7(1)(b)(v), (c)(iii), (c)(viii)

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(West 2006)). The circuit court granted NACDL’s motion for summary judgment in part and

ordered JPD to produce the report data in the closed cases with all personal identifying

information redacted. The court held that the photographs in the closed cases were exempt from

disclosure under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b)(v) (West 2006)). Finally, the court

held that JPD did not have to produce information from closed cases that was not part of the

report data because the redaction of identifying information contained in those materials would

impose an undue burden on the department.

NACDL filed notices of appeal in the First District in the Chicago case and in the Third

District in the Joliet case. NACDL then filed a motion in the Illinois Supreme Court to transfer

the Joliet case to the First District and consolidate the appeals. The Illinois Supreme Court

granted the motion on December 4, 2008. This consolidated appeal follows.

II. ANALYSIS

Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate

that no genuine issue of material fact exists and that the moving party is entitled to judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West 2004); State Farm Mutual Automobile Insurance

Co. v. Coe, 367 Ill. App. 3d 604, 607, 855 N.E.2d 173, 176 (2006). We review de novo an order

granting summary judgment. Jones v. Country Mutual Insurance Co., 371 Ill. App. 3d 1096,

1098, 864 N.E.2d 793, 795 (2007).

CPD challenges this court’s jurisdiction over the Joliet case on the grounds that a denial of

summary judgment is not a final and appealable order, citing Central Illinois Light Co. v. Home

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Insurance Co., 342 Ill. App. 3d 940, 795 N.E.2d 412, (2003). This case is distinguishable. In

Central Illinois Light, the plaintiff filed an indemnification action against multiple excess liability

insurers. The defendants filed nine motions for summary judgment, three of which were denied.

The court concluded that it had no jurisdiction over the three denials because they were not final

orders. Central Illinois Light, 342 Ill. App. 3d at 964, 795 N.E.2d at 433.

“An order is final and appealable if it terminates the litigation between the parties on the

merits or disposes of the rights of the parties, either on the entire controversy or a separate part

thereof.” R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159, 692 N.E.2d 306,

310 (1998). The only significant difference between the Chicago and Joliet cases is that the

parties in the Chicago case filed cross-motions for summary judgment, while JPD merely filed a

response to NACDL’s motion for summary judgment. Both lower courts ordered the disclosure

of some of the requested documents and held that the remaining documents were protected from

disclosure under various exemptions in FOIA. The order in the Joliet case states that “all matters

in controversy have been resolved.” There was nothing else for the parties to litigate in the Joliet

case. This court is not deprived of jurisdiction because the motion for summary judgment was

partially denied and the court did not specifically enter judgment in favor of JPD. The denial of

NACDL’s motion for summary judgment as to the majority of the requested documents operated

as a judgment in favor of JPD. The court accepted JPD’s argument that the documents were

exempt from disclosure and the order terminated the litigation between the parties. Indeed,

appeal was the only recourse left to NACDL in its attempt to obtain the documents. Thus, we

conclude that the order was final and appealable and this court has jurisdiction over the Joliet

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case.

We now turn to the issues on appeal. FOIA declares that it is “the public policy of the

State of Illinois that all persons are entitled to full and complete information regarding the affairs

of government and the official acts and policies of those who represent them as public officials

and public employees consistent with the terms of this Act. Such access is necessary to enable the

people to fulfill their duties of discussing public issues fully and freely, making informed political

judgments and monitoring government to ensure that it is being conducted in the public interest.”

5 ILCS 140/1 (West 2006).

The legislature recognized that even with such a policy certain documents should not be

disclosed, and it dedicated section 7 of FOIA to exemptions. This section provides, in relevant

part:

“(1) The following shall be exempt from inspection and copying:

***

(b) Information that, if disclosed, would constitute a clearly unwarranted

invasion of personal privacy***. ***Information exempted under this

subsection (b) shall include but is not limited to:

***

(v) information revealing the identity of persons who file complaints

with or provide information to *** law enforcement *** agencies;

***

(c) Records compiled by any public body for administrative enforcement

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proceedings and any law enforcement or correctional agency for law

enforcement purposes or for internal matters of a public body, but only to

the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated

law enforcement proceedings conducted by any law enforcement or

correctional agency;

***

(iv) unavoidably disclose the identity of a confidential source or

confidential information furnished only by the confidential source;

(v) disclose unique or specialized investigative techniques other

than those generally used and known ***;

(vi) constitute an invasion of personal privacy under subsection (b)

of this Section;

(vii) endanger the life or physical safety of law enforcement

personnel or any other person; or

(viii) obstruct an ongoing criminal investigation.” 5 ILCS 140/7

(West 2006).

Finally, FOIA provides:

“Requests calling for all records falling within a category shall be complied with

unless compliance with the request would be unduly burdensome for the

complying public body and there is no way to narrow the request and the burden

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on the public body outweighs the public interest in the information. Before

invoking this exemption, the public body shall extend to the person making the

request an opportunity to confer with it in an attempt to reduce the request to

manageable proportions.” 5 ILCS 140/3(f) (West 2006).

Public records are presumed to be open and accessible under FOIA and the exemptions

are to be read narrowly. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d

401, 408, 680 N.E.2d 374, 377 (1997). With that in mind, this court must address the following

issues: (1) whether the circuit courts erred in determining that all data in the open investigations is

protected from disclosure under the privacy and law enforcement exemptions and, if so, whether

the undue burden exemption applies, (2) whether the circuit courts erred in determining that the

faces in the photographic lineups should be redacted, and (3) whether the circuit courts erred in

determining that redacting the documents from the police investigation files would impose an

undue burden on the police agencies.

NACDL first contends that the trial courts in both cases erred in holding that the affidavits

submitted by CPD and JPD were sufficient to invoke the law enforcement and privacy exemptions

in case files involving ongoing investigations. After the circuit courts in both cases ruled on this

issue, this court issued an opinion in Day v. City of Chicago, 388 Ill. App. 3d 70, 902 N.E.2d

1144 (2009). In Day, this court held that affidavits submitted by Sandoval and Gibson (that

appear to be nearly identical to the affidavits submitted by these same individuals in the instant

case) were entirely conclusory and inadequate to sustain the city’s burden to show that the

requested documents were exempt. Day, 388 Ill. App. 3d at 75, 902 N.E.2d at 1149. The case

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was remanded and the circuit court was directed to conduct an in camera review of the

documents in order to determine whether the law enforcement or privacy exemptions applied.

Day, 388 Ill. App. 3d at 80, 902 N.E.2d at 1153.

CPD concedes that after Day, the affidavits submitted are insufficient to support its claim

that the documents are protected under the law enforcement and privacy exemptions of FOIA.

However, because the circuit courts ruled that the production of documents outside of the report

data in the closed cases would be unduly burdensome, CPD asks this court to extend that

rationale to all documents in the open investigations. If this court should conclude that

production of the documents would not be unduly burdensome, CPD asks this court to remand

for an in camera review of the documents to determine whether the law enforcement and privacy

exemptions apply. To avoid undue burden on the circuit court, CPD suggests that the circuit

court limit its review to those files that contain some marker indicating that production of the

documents would obstruct the investigation, e.g., cases in which there is a living perpetrator still

at large. CPD further suggests that the circuit court may limit its review to a sample of the

documents.

NACDL asks this court to reverse the circuit courts outright and order the police agencies

to submit the requested data in open cases with redactions. NACDL contends that records in

which all identifying information is redacted will not yield information that would threaten the

safety of a witness or provide information to an at-large suspect. Alternatively, NACDL asks this

court to require that the police agencies review the requested records, perform the redactions, and

present to the court for in camera inspection any specific records for which they believe there is a

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reasonable possibility that disclosure even with redactions could obstruct or impede law

enforcement.

We agree with both parties that the affidavits submitted to the circuit courts were

insufficient to satisfy the burden of showing that any statutory exemption applies. Moreover, for

the reasons discussed below, we reject CPD’s argument that redaction of the open investigation

files would be unduly burdensome. We do not agree that the order of the circuit court granting

summary judgment in favor of the police agencies should be reversed outright, but we also do not

think it is appropriate for the circuit court to conduct an in camera review of all documents in the

open investigation files to determine whether an exemption applies. In Day, the police files in

question involved a single criminal investigation. In the instant case, there are still potentially over

100 cases in which the investigations are ongoing. It is possible that there are some investigations

in which production of the data could compromise an ongoing investigation, even with all

identifying information redacted. However, we do not think such a scenario is likely in the

majority of open investigations, nor will it be as easy to identify witnesses in redacted files as the

Gibson affidavits suggest. The fact that witnesses, victims and perpetrators may all live in the

same neighborhood and attend the same schools does not mean that the safety of a witness could

be compromised if the documents are released. Both parties agree that the location of the crime

and all personal identifying information and other unique identifiers will be redacted; therefore, it

will be impossible to tell where the crime occurred and what individuals may have been involved

in the majority of cases.

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On remand, the parties should presume that all requested documents in the open

investigations are to be produced, subject to the agreed redactions. The burden is on the police

agencies to demonstrate on a case-by-case basis specifically how a particular witness could be in

danger or how an individual investigation could be compromised if a document is disclosed in

which all identifying information has been redacted. Moreover, any affidavits submitted in

support of a statutory exemption must conform to the level of specificity required in Day.

However, we note that our supreme court has indicated that while summary judgment would be

appropriate without in camera review if the affidavits show with reasonable specificity why the

documents fall within the claimed exemption, in camera review is the most effective way for the

public body to objectively demonstrate that the exemption claimed does, in fact, apply. Illinois

Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 470-71, 791 N.E.2d 522,

531 (2003).

We reverse the orders of the circuit courts granting summary judgment in favor of the

police agencies for documents in open investigations. We remand for the police agencies to

review the files and determine which documents, if any, meet the statutory exemptions even after

the agreed redactions are made. Those documents should then be presented to the circuit court

for an in camera inspection to determine whether the exemptions do, in fact, apply.

Next, NACDL contends that the circuit courts erred in holding that the faces in the

photographic lineups are exempt from disclosure because their release would constitute an

unwarranted invasion of personal privacy. NACDL argues that once all personal identifying

information is removed from the photographs, the persons who typically act as fillers in lineups

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will have only a minimal privacy interest in the photographs. CPD argues that there is a stigma

associated with “mug shots” and that the faces in the photographs could be recognized and

identified even if all personal identifying information is redacted.

To determine whether disclosure would constitute an unwarranted invasion of personal

privacy, courts take into account (1) the plaintiff’s interest in disclosure, (2) the public interest in

disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative

means of obtaining the requested information. Lieber, 176 Ill. 2d at 408-09, 680 N.E.2d at 378.

NADCL’s interest and the public interest are essentially the same. As part of its analysis of the

study, NACDL needs to assess the quality of the composition of the lineups in the study. This

information is separate and distinct from the identification history and other information that will

be analyzed from the report data and investigation files. A meaningful analysis of the study must

include an assessment of the lineups that were actually used. Moreover, the actual photographs

are the only means available to researchers to determine the composition of the lineups that were

used in the study.

On the other hand, the degree of invasion of personal privacy is insignificant. First, we

reject CPD’s characterization of the photos as “mug shots.” The persons who act as fillers in

lineups may be police officers, individuals in jail, or civilians. There is no way for anyone to tell

by looking at the photographic lineup which category any given individual falls into when all

identifying information has been redacted. Second, civilians and police officers who act as fillers

have voluntarily consented to have their photographs viewed by strangers and possibly introduced

as evidence in criminal cases and therefore can have no expectation of personal privacy in the

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photos. The only conceivable privacy interest at stake is that of the individuals in jail who have

not necessarily consented to the use of their photographs in the lineups. However, even if it

would be possible to determine which fillers are individuals who are or were in jail, the likelihood

that someone viewing the photographs will recognize a photo and link that person to a separate

case in which he or she may be a suspect or may have been charged is remote; therefore the

degree of invasion of personal privacy does not outweigh the remaining factors. Thus, we

conclude that the release of the photos with all identifying information redacted does not

constitute an unwarranted invasion of personal privacy. We also note that the Evanston Police

Department has released the photographic lineups with the photos intact and only the identifying

information redacted.

Finally, NACDL contends that the circuit courts erred in holding that the production of

documents from the police files in closed cases outside of the report data would create an undue

burden on the police agencies. NACDL argues that the circuit courts understated the public

interest in disclosure of the records while overvaluing the burden that redaction would impose on

the police agencies. CPD contends that NACDL is requesting the entire investigatory file for

each case, including many documents that do not even relate to identification procedures, and

states that redacting all of these documents would be a massive undertaking. Moreover, CPD

argues that if it is required to produce the same information for the open investigations, the

burden will include the redaction of the report data in addition to the investigative files. At oral

argument, counsel for CPD estimated that redacting these files will take approximately 150 hours

or 20 personnel days. Also, the individual responsible for making the redactions will need to

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consult with detectives on a case-by-case basis. NACDL responds that it is only requesting those

documents in the investigation files that pertain to eyewitness identification, e.g., police records

that directly describe the lineups and photo arrays or show prior contact between the eyewitness

and the suspect. NACDL contends that these records will primarily be found in lineup reports

and supplementary reports.

As an initial matter, we note that FOIA contains a specific requirement for the party

seeking to claim the undue burden exemption. “Before invoking this exemption, the public body

shall extend to the person making the request an opportunity to confer with it in an attempt to

reduce the request to manageable proportions.” 5 ILCS 140/3(f) (West 2006). Our review of the

record does not disclose any evidence that the police agencies sought to confer with NACDL in

an attempt to reduce the request prior to the circuit court’s ruling that the undue burden

exemption applied to certain documents. There is also no evidence that the police agencies

contacted NACDL to discuss ways to reduce the request before seeking to invoke the undue

burden exemption before this court. CPD states in its brief that the burden on the agency “cannot

be alleviated by narrowing the request,” however, it does not provide any support for this

assertion. In fact, NACDL notes in its reply brief that the police agencies involved in this appeal

never conferred with NACDL regarding their claim that compliance would be unduly burdensome

and never attempted to explore whether there would be any way to satisfy NACDL’s request by

producing only the relevant portions of the investigation files. For this reason alone, it appears

that the police agencies have not complied with FOIA and cannot claim the undue burden

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exemption. However, we will still consider whether the circuit court erred in determining that the

burden on the agencies outweighed the public interest.

In order for the exemption to apply, compliance must be unduly burdensome, there must

be no way to narrow the request, and the burden on the public body must outweigh the public

interest in the information. 5 ILCS 140/3(f) (West 2006). As discussed above, the police

agencies have never attempted to see if the request can be narrowed, and NACDL has stated in its

brief that most of the additional information it is requesting from the police files can be found in

two reports. NACDL further stated that, with dialogue between the parties, it believes

agreements could be reached to narrow the range of documents to be redacted. Indeed, the

Evanston Police Department was able to reach an agreement with NACDL to produce all of the

requested documents with redactions. Moreover, the public interest at stake in obtaining these

documents is significant, both for the people of Illinois and for people across the country who are

considering the results of the Illinois study. Wrongful convictions on the basis of mistaken

eyewitness identification impose a huge cost on society in addition to the cost imposed on the

individual who is wrongfully convicted. One such cost that has not been highlighted in the

affidavits or briefs is that if the wrong person is convicted, the actual perpetrator is still at large

and continues to pose a danger to society. If an examination of the data used in the study

confirms that the results were correct, it allows researchers to focus on other possible methods of

reform for identification procedures. If, however, an examination of the data discloses flaws in

the study methodology or design, reform based on the sequential, double-blind identification

procedures is still a possibility in Illinois, as well as in other states that have been considering such

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reform. As emphasized in the affidavit submitted by Steblay, the controversial results of the study

cannot be analyzed without access to the identification histories contained in the police

investigation files.

The importance of the public interest at stake is further demonstrated by an amicus curiae

brief filed in support of NACDL by: The Innocence Network; The Northampton (Mass.) Police

Department; Captain Kenneth Patenaude of the Northampton Police Department; Sergeant Paul

Carroll (retired), formerly of the Chicago Police Department; Steven D. Penrod, Department of

Psychology, John Jay College of Criminal Justice; D. Michael Risinger, Seton Hall University

School of Law; Jon B. Gould, Chair, Innocence Commission for Virginia and Director, Center for

Justice, Law & Society, George Mason University; Maurice Possley, freelance journalist; and

Laura Spinney, freelance journalist. The brief argues that without the necessary scientific review

of this study, which requires access to the requested documents, the development of research in

this crucial field will be hampered, progress in dealing with the problem of mistaken eyewitness

identification will be stalled, and, even more tragically, this stalled progress will lead to additional

wrongful convictions based on erroneous eyewitness identifications.

CPD cites several cases in support of its argument that the undue burden exemption

applies. CPD’s reliance on these cases is misplaced. In Farley v. Worley, 215 W. Va. 412, 424,

599 S.E.2d 835, 847 (2004), the court held that in response to a proper FOIA request, “a public

body has a duty to redact or segregate exempt from non-exempt information contained within the

public record(s) responsive to the FOIA request and to disclose the nonexempt information unless

such segregation or redaction would impose *** an unreasonably high burden or expense.” The

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court in Farley required the public body to provide the redacted material in response to the FOIA

request. Farley, 215 W. Va. at 425, 599 S.E.2d at 848. In ACLU Foundation of Northern

California v. Deukmejian, 32 Cal. 3d 440, 453, 651 P.2d 822, 830, 186 Cal. Rptr. 235, 243

(1982), the court held that the burden of segregating exempt from nonexempt material on 100

index cards was substantial and the utility of disclosure was questionable where the deletion of

personal identifiers would make it impossible for the appellant to learn whether a particular person

had been improperly listed as an associate of a criminal suspect.

A request that is overly broad and requires the public body to locate, review, redact and

arrange for inspection a vast quantity of material that is largely unnecessary to the appellants’

purpose constitutes an undue burden. American Federation of Government Employees, Local

2782 v. United States Department of Commerce, 907 F.2d 203, 208-09 (D.C. Cir. 1990). The

requests at issue in American Federation would have required the public body to locate every

chronological office file and correspondence file, internal and external, for every branch office,

staff office, etc. and the information had little or nothing to do with the stated purpose. American

Federation, 907 F.2d at 209. In the instant case, the request specifically targets the police files

for those cases that were used in the study and the information requested is essential to a

meaningful review of that study.

We do not agree with the circuit court that “several weeks of full-time work by [CPD]

personnel who need to possess a high level of knowledge and sophistication” is sufficiently

burdensome to outweigh the important public interest at stake here. The results of this study have

garnered nationwide attention on an issue of vital importance to our criminal justice system.

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Moreover, the circuit court’s order presumed that the police agencies would have to redact the

entire investigatory file in each case. NACDL has stated that it does not need access to every

document in each file. It has proposed ways to narrow the request and expressed a willingness to

enter into dialogue with the police agencies in an attempt to further reduce the burden. We

conclude that the burden on the police agencies of redacting any identifying information is not so

excessive that it outweighs the vital public interest in the disclosure of these documents.

Therefore, we reverse the orders of the circuit courts holding that production of the data from the

investigative files in closed cases is unduly burdensome. We also reject CPD’s argument that

production of the data from the investigative files in open cases would constitute an undue

burden. We remand for the police agencies to produce the requested documents from the

investigative files in open and closed cases with the agreed redactions after conferring with

NACDL to reach a final agreement on narrowing the request to those documents that are relevant

to its analysis of the study.

III. CONCLUSION

For the foregoing reasons, we affirm the circuit courts’ grant of summary judgment in

favor of NACDL requiring production of the report data in the closed cases. We reverse the

circuit courts’ grant of summary judgment in favor of the police departments protecting the report

data and investigative files in the open cases and remand for further proceedings consistent with

this opinion. We reverse the circuit courts’ grant of summary judgment in favor of the police

departments protecting the investigative files in the closed cases. Finally, we reverse the circuit

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courts’ grant of summary judgment in favor of the police departments protecting the faces in the

photographic lineups.

No. 1-08-2073, Affirmed in part and reversed in part; cause remanded with directions.

No. 1-08-3414, Affirmed in part and reversed in part; cause remanded with directions.

O’BRIEN and NEVILLE, JJ., concur.

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1-08-2073 & 1-08-3414, consolidated

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each case)
________________________________________________________________________

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Plaintiff-Appellant,

v.

CHICAGO POLICE DEPARTMENT,

Defendant-Appellee.

_________________________________________

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Plaintiff-Appellant,

v.

CHIEF OF THE JOLIET POLICE DEPARTMENT,

Defendant-Appellee.

_____________________________________________________________________________

Nos. 1-08-2073 and 1-08-3414 (consolidated)

Appellate Court of Illinois
First District, Fourth Division

February 25, 2010
_____________________________________________________________________________

JUSTICE GALLAGHER delivered the opinion of the court.

O’BRIEN and NEVILLE, JJ., concur.

_____________________________________________________________________________

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1-08-2073 & 1-08-3414, consolidated

Appeal from the Circuit Court of Cook County.

Honorable Mary Anne Mason, Judge Presiding.
Honorable Bobbi N. Petrungaro, Judge Presiding.
_____________________________________________________________________________

For APPELLANT, Roderick MacArthur Justice Center, Northwestern University School of Law,
Chicago, IL (Locke E. Bowman, of counsel)

For APPELLEE - CHICAGO POLICE DEPARTMENT, Corporation Counsel of the City of
Chicago, Chicago, IL (Mara S. Georges, Benna Ruth Solomon, Myriam Zreczny Kasper, Suzanne
M. Loose, of counsel)

27