Monthly Archives: October 2012

Appeal to Public Access Counselor for Fairview Heights FOIA Denial – McCoy v. Fairview Heights

This is an appeal I filed with the Illinois Attorney General over a series of Freedom of Information acts to the Fairview Heights, Illinois Police Department which were denied, in large-part. I previously had not submitted a FOIA request to Fairview Heights Police until after I was beaten and Tased by two of their patrolmen during a traffic stop on February 17, 2009. I subsequently filed a civil suit in February, 2010 against the Fairview Heights Police Department and patrolmen Joshua Alemond and Aaron Nyman in St. Clair County, Illinois. There were documents provided by way of discovery which are referenced herein.

Discovery in Illinois civil cases is limited to 30 items without leave of the court. St. Clair County is one of the more corrupt counties in Illinois and its judges known to be largely anti-pro se. In an effort to circumvent discovery limitations and gather the information for my own edification.

My first submission for documents was on March 3, 2009. This was a couple of weeks after my beating and arrest. That request was denied for a number of reasons which are detailed below. One of the claimed exemptions under the Illinois Freedom of Information Act was 5 ILCS 140/7(d)(i) and 5 ILCS 140/7(d)(vii) which relate to records pertaining to an a pending or contemplated law enforcement proceeding and an ongoing criminal investigation. As I had been recently arrested, all charges of which were dropped, I did not press the issue and instead sought my documents through civil discovery per my case. Having not received the information through discovery, another long story, I again turned to the Freedom of Information Act.

My second submission was in April of 2009 and denied on largely the same grounds. I waited again until May of 2012 to re-submit a fairly comprehensive request which was again largely denied based on the “properly claimed exemptions” from the previous request. I appealed to the Illinois Attorney General, as provided by the Act at 5 ILCS 140/9.5. This request was an amalgamation of all my previous requests, omitting those already obtained or otherwise irrelevant, and again was subsequently denied on similar grounds as prior requests, basing the denial on the corresponding original request as having been “properly denied”, and then referencing my repeated request as “unduly burdensome” pursuant to 5 ILCS 140/3(g).

The main issues here are whether or not a record “properly denied” under 5 ILCS 140/3(g) based on an “actually or reasonably contemplated law enforcement proceeding” under 5 ILCS 140/7(d)(i) is precluded from ever being requested again if the “law enforcement proceeding” is no-longer in effect. If I submit a request for documents and there is an ongoing criminal investigation for a suspected offense and that investigation concludes, then is a subsequent request barred for the prior request having been properly denied?

In the responses from the Fairview Heights Police Department, there are references to 5 ILCS 140/7(c) that include subsections (vi) or (vii). There are no subsections under 5 ILCS 140/7(c) and where you see a reference to any subsection under 140/7(c) they mean to say 140/7(d). I did not press this “technicality” in my appeal because the reference did quote the text from the Act which is more specific than the statutory reference.

The Illinois Attorney General has issued a FOIA Guide for Law Enforcement which can be viewed here and has addressed the exemptions relating to “pending law enforcement proceedings“, “danger to life or safety“, and “ongoing criminal investigation“.

Mark McCoy

 October 7, 2012

Sarah Pratt Acting Public Access Counselor Office of the Attorney General 500 S. 2nd ST. Springfield, Illinois 62706

Re: McCoy v. Fairview Heights Police – Appeal of FOIA Denial by Fairview Heights Police Dept.

I am writing to appeal the denial of the certain requests for records pursuant to a FOIA submitted to Fairview Heights Police Department which I submitted on Sept. 17, 2012 and ultimately denied on Oct. 1, 2012. That request is enclosed as Exhibit A and the corresponding response Exhibit B.

Fairview Heights’ denial is based on several factors, some of which are due to similar requests having been submitted on or around March 3, 2009. At that time, their denials were based on 5 exemptions (SEE TABLE OF 4/22/09 EXEMPTIONS). Since that time, there has been no action taken pursuant to any ongoing criminal investigation, and in their response for my recent re-submission they make no mention of any such exemption, but rather cite the previously denied request.

I make this appeal following a conversation with Mary Jo of the Public Access Counselor’s Office. I had filed a FOIA request on May 17, 2012, with the Fairview Heights Police Department which was denied on May 31, 2012. I had emailed an appeal to the Public Access Counselor which did not arrive, possibly due to the size of the email attachment.  During the course of writing the appeal and not knowing if the email had arrived, the time allowed for filing an appeal expired. Following Mary Jo’s direction, I filed another FOIA request in order to procure a denial so another appeal could be made in a timely manner. Therefore, the Sept. 17, 2012 request has a majority of denials predicated upon the previous request made on May 17, 2012 being denied. The denials in the May 31, 2012 response were predicated upon responses from a request made in March, 2009. The response to that FOIA contains the exemptions upon which most of the subsequent denials are based. I have included copies of all of the FOIA requests and corresponding responses. There are denials based upon a prior request being denied and the subsequent similar request being burdensome. The heart of my argument is that some of the original denials, based upon a particular exemption in 2009 were no longer applicable and therefore subject to consideration in another FOIA request.

It is my contention that if a request was denied due to an ongoing criminal investigation pursuant to 5 ILCS 140/7(c)(i) and 5 ILCS 140/7(c)(vii), as was the case in 2009, and that investigation is no longer in progress or has not borne any fruit subsequent to that  investigation which would be further exempt, then a resubmission is proper and the records must be provided. Note: There actually is no 5 ILCS 140/7(c)(vii), as referenced in Fairview Heights denial of March 2009, but rather 5 ILCS 140/7(d)(vii).

Moving under the assumption the “ongoing criminal investigation” exemption was no longer applicable I submitted another request on or around May 17, 2012. Many of those requests were identical or similar to the original request from 2009. Most of the May 17, 2012 requests were then denied, not upon the original exemption under 5 ILCS 140/7(c)(i) and 5 ILCS 140/7(c)(viii), but this time by invoking 5 ILCS 140/3(g) as “repeated requests from the same person for the same records that are unchanged or identical” (SEE TABLE OF 5/31/12 EXEMPTIONS).

Concordantly, I filed a civil suit against Fairview Heights Police where requests for certain records were made pursuant to discovery. Some of the discovery requests were similar in nature to the FOIA requests. Most of the denials from 5/31/12 (Exhibit D) were based on documents previously provided through discovery in the civil suit. These FOIA responses bear notations such as “FH” or “RP” (SEE REGARDING EXHIBITS). I fail to see any correlation between a FOIA request and a similar request made in an unrelated matter even though the party making the request in each instance is the same and the type of record requested is similar. If an individual is willing to avail themselves to the FOIA process for procuring records and submit to paying for those records then the FOIA request should be viewed in its own light as separate and distinct from the other unrelated request.

Fairview Heights also makes the claim that the request is “unduly Burdensome”, but has not extended any opportunity to confer in order to reduce the request to manageable portions before invoking that exemption pursuant to 5 ILCS 140/3(g). My resubmitting the same request from 2009 was because I believed any claimed investigation had ceased, thereby making the records available. Despite similar or exact wording as a previous request, I fail to find any provision in the Act which prohibits a request based on similar or identical wording of a previous request, or exempts records in perpetuity which were previously exempt for a specific reason, of which said reason no longer applies.

I am enclosing the requests I made, as well as the corresponding denials, from 2009, and 2012. The most recent request from Sept. 18, 2012 included exhibits for clarity so the public body could accurately correlate the response to the request. The requests made, in reverse-chronological order are as follows:

Request made 9/17/12 and denied per response dated 10/01/12. Exhibit A. Contains Exhibits 1 through 6 with notations.

Response dated 10/01/12 is attached as Exhibit B

Request made 5/17/12 and denied per response dated 5/31/12. Exhibit C

Response dated 5/31/12 is attached as Exhibit D

Request made 3/3/09 and denied per response dated 4/22/09. Exhibit E

Response dated 4/22/09 is attached as Exhibit F

Requests to Produce pursuant to discovery for Case 10-L-75 is attached as Exhibit G

I do not have the original request from 2009 available, but it was returned to me as part of the denial with mark-ups made by the FOIA Officer where he numbered my requests in pencil. That request bears the year “2009” at the top and is labeled as “ATTACHMENT”. I had submitted a form provided by the Fairview Heights Police Department for FOI requests and attached my list to that, which is why it is listed as an attachment. I was not provided with a copy of the form I tendered to them pursuant to that request. Also, their denial dated April 22, 2009 makes reference to a request dated April 1, 2009, but which is essentially the request made per the attachment. This request is not at issue, but merely provided for reference purposes in establishing the reasons for denial in 2009, and subsequently resubmitted in May and Sept. of 2012. I have penciled in numbers on denial Exhibit C to correspond to the ATTACHMENT of the request.

For the request made 9/17/12 I provided the request, the reply, and “APPEAL NOTES” in italics to clarify my reason for appeal and why the request should be fulfilled. In those notes are links to the preceding requests and denials which link to the request from the previous year. This is to be used as a guide when referring to the provided exhibits.

RELIEF

I would ask that any denial based on documents provided by way of discovery in the civil action be disregarded as non-responsive since that action should not have any bearing on a FOIA request and that the most recent request be fulfilled. I would also ask that any request which relied upon the 2009 response of denied pursuant to 140/7(c)(i) and 5 ILCS 140/7(c)(vii), be fulfilled since there was no invocation of that exemption provision in the 10/1/12 response except to say that the request was exempt pursuant to 5 ILCS 140/3(g) as the subsequent requests are being construed as repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act, and thereby deemed unduly burdensome. All other denials from the 9/17/12 request should be reviewed in the light under which they were denied.

REGARDING EXHIBITS

I am enclosing copies of the actual requests and denials and labeling such as Exhibits with letters, (Exhibit A, Exhibit B.). The request I sent on 9/17/12 had exhibits for the Fairview Heights Police to accurately define the request with the corresponding response and those Exhibits are labeled numerically with notations, (Exhibit 1, Exhibit 2, Notation1). They are actually exhibits within exhibits, the main exhibit bearing a letter and enclosed exhibit bearing a number and notation.

In some of the replies from the public body, there are references made to things similar to, “response was provided as first RP #17 “” Response: FH70.” This is in reference to a civil suit filed by me against the Fairview Heights Police Department (Case 10-L-75) in St. Clair County. (SEE “TABLE OF EXEMPTIONS BASED ON PRIOR DISCLOSURE THROUGH CIVIL DISCOVERY”) and corresponding Exhibit G. The notation, “RP” apparently stand for “Request to Produce” pursuant to discovery requests, and the # relates to the corresponding request made in the Request to Produce. The public body did provide a CD with information labeled “FH 70″, which contains some of the material requested via FOIA, but that was not in response to a FOIA request and should be considered a separate issue. Also provided were hard copy documents pursuant to the discovery Request to Produce. I fail to see the relevance between a response pursuant to a civil matter and a request made pursuant Freedom of Information. Nevertheless, there is request made for a dashboard video from a Sgt. Krummrich’s car that was not made in discovery and covered in the FOIA. I am attaching the Request to Produce for all Defendants as Exhibit G. (SEE ALSO “TABLE OF EXEMPTIONS BASED ON PRIOR DISCLOSURE THROUGH CIVIL DISCOVERY”)

FOIA REQUEST 9/17/12 SEE ENCLOSED EXHIBITS A AND B

Item #1 Dashboard or other similar video from vehicles operated by Sgt. James Krummrich, DSN 141 from Feb. 17, 2009 when responding to circumstances involving the above referenced event, and which is referenced in a Video Chain of Custody Report bearing the following identifiers: System ID: 33381, Ingest Date: 2/17/2009 09:11, DVR Name: F15, Owner: *1 krummjv@20:02:03, Video Start Date: 02/17/2009 02:25, Serial Number: 0000015877, DVR Officer Name: krummjv, Video End Date: 02/17/2009 2:37, Category: VEH STOP or PED CHECK. (See attached Exhibit 1)

Response: Item # 1: Same request as the 2009 FOIA dated 03/03/2009 and 2012 FOIA dated 05/17/2012 submitted as question #1 a response was provided as first RP #17 “” Response: FH70. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I contend there is another video from Sgt. Krummrich’s car based on a Video Chain of Custody Report. See Exhibit 1 of Exhibit A. The 2009 Response was based on 5 ILCS 140/7(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(vii), in that the request may obstruct an ongoing criminal investigation. There were documents denied in the FOIA but provided through discovery. The attached Exhibit confirms there is some record regarding video from Sgt. Krummrich’s car but the 10/1/12 response is contradictory in that it relies upon the prior denial in 2009 under 5 ILCS 140/7(c)(vii) and references the discovery production. Notwithstanding the discovery production, the 10/1/12 denial is unresponsive to the request as I believe 5 ILCS 140/7(c)(vii) is no longer applicable as that exemption has not been invoked per any subsequent request; and given the enclosed Exhibit, a response to that specific request should be provided.

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Item #2 A copy of any refusal to be transported to Memorial Hospital signed by the FOIA requester, Mark McCoy, as referenced on Page 3, Paragraph I of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 2, Notation 1)

Response: Item #2: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records. Same as request of 05/17/2012 item #6.

APPEAL NOTES: I content there is a document in the possession of the Fairview Heights Police that is not held by MedStar Ambulance. See Notation 1 of Exhibit 2 in Exhibit A; Notation 1 of Exhibit 3 in Exhibit A; and Notation 1 of Exhibit 4 of Exhibit A. I take exception to this denial and request a review.

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Item #3 A copy of any Electronic Device Restraint Use Report completed by Patrolman Aaron Nyman, DSN 171, which was forwarded to Lieutenant Locke, as referenced on Page 3, Paragraph 4 of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 2, Notation 3)

Response: Item #3: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #12 and 2012 FOIA dated 05/17/2012 item #19. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #4 Any audio or video recording of the area known as “Temporary Cell One”, as referenced on Page 3, Paragraph 2 of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, for the duration of the confinement of FOIA requester, Mark McCoy on 2/17/09 between the hours of 2:30am and 6am, approx. (See attached Exhibit 2, Notation 2)

Response: Item #4: All audio or video was previously produced as FH70. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: The denial is based upon documents provided by way of discovery in an unrelated matter and separate from this FOIA. I expect an articulated response to this request and ask for review.

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Item #5 Any photographs taken at the scene of the stop and arrest on Donald Bailey Drive pursuant to the above referenced event.

Response: Item #5: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #3 and 2012 FOIA dated 05/17/2012 item #4. Previously produced as FH62-69. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(vii), in that the request may obstruct an ongoing criminal investigation. Subsequently, there were documents tendered by way of discovery in an unrelated matter and separate from this FOIA. I take exception to this denial and request a review.

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Item #6 Any records pertaining to the request made by Sgt. Krummrich to dispatch for MedStar EMS to respond to the Fairview Heights Police Department to evaluate and treat injuries to the FOIA requester, Mark R. McCoy, as well as any reports expressing an opinion, diagnosis, or report of injuries observed or treated, as referenced on Page 2, Paragraph 5, and Page 3 Paragraph l of a Supervisor Report filed by Sgt. Krummrich on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 3, Notation 1 and Exhibit 4, Notation 1)

Response: Item #6: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records. Same as FOIA request dated 05/17/2012 item #6.

APPEAL NOTES: This answer is contradicted by way of Notation 1 of Exhibit 2 in Exhibit A; Notation 1 of Exhibit 3 in Exhibit A; and Notation 1 of Exhibit 4 of Exhibit A. Sgt. Krummrich states in his own report, “McCoy signed a refusal to be transported to Memorial Hospital at that time.” and other statements. This indicates there in-fact was a record created with Krummrich’s direct knowledge. I take exception to this denial and request a review.

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Item #7 Reports, records, memos, letters, communications, created by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Response: Item #7: Same request as the 2009 FOIA dated 03/03/2009 and 2012 FOIA dated 05/17/2012 submitted as question #6 previously produced as FH1-12. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #8 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Response: Item #8: This request is denied based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. Same request as the 2012 FOIA dated 05/17/2012 submitted as question #9 Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #9 Transcript or other record, audio or written, of communications between Fairview Heights Police Department Dispatcher and Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Response: Item #9: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #9 and 2012 FOIA dated 05/17/2012 item #11. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. As there has been no further action taken pursuant to any investigation and that exception was not invoked in this request, I take exception to this denial and request a review.

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Item #10 Any report, log, or other information on the processing the patrol car for cleaning or otherwise, subsequent to the transporting of Mark McCoy from the scene on Donald Bailey Drive to the Fairview Heights Police Department, as well as any photographs, analysis, or reports pertaining to such.

Response: Item #10: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #10 and 2012 FOIA dated 05/17/2012 item #12. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. As there has been no further action taken pursuant to any investigation and that exception was not invoked in this request, I take exception to this denial and request a review.

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Item #11 Any records, memos, email, minutes, documents, or other written, verbal, or electronic communication between the Fairview Heights Police Department and any other municipal, state, or federal agencies or departments which pertain to Mark R. McCoy, the requester of these documents, including but not limited to interdepartmental or multi- jurisdictional contacts, associations or affiliations.

Response: Item #11: Document previously produced as document FH30-50. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: The denial is based upon documents provided by way of discovery in an unrelated matter and separate from this FOIA. I expect an articulated response to this request and ask for review.

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Item #12 Fairview Heights Police Department policy or guidelines/procedures on Taser use.

Response: Item #12: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 and 2012 FOIA dated 05/17/2012 item # 18. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vii). Uses of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. I take exception to this denial and request a review.

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Item #13 Reports of injury or death resulting from laser use by Fairview Heights Police Department.

Response: Item #13: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #14 and 2012 FOIA dated 05/17/2012 item #21. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #14 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Response: Item #14: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #15 and 2012 FOIA dated 05/172012 item #22. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #15 Reports relating to the deployment or use of weapons pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Response: Item #15: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #16 and 2012 FOIA dated 05/17/2012 item #23. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #16 Reports filed against Fairview Heights Police Department for abuse, or excessive use of force.

Response: Item #16: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #18 and 2012 FOIA dated 05/17/2012 item #25. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #17 Reports filed against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Response: Item #17: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #19 and 2012 FOIA dated item #26. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #18 Disciplinary action taken against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Response: Item #18: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #20 and 2012 FOIA dated 05/17/2012 item # 27. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #19 Fairview Heights Police Department policy or guidelines on the use of “pain compliance” Item as referenced on Page 3, Paragraph 1 of a Report filed by Patrolman Nyman, DSN 171, on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 5, Notation 1)

Response: Item #19: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 and 2012 FOIA dated 05/17/2012 item # 18. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. I take exception to this denial and request a review.

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Item #20 Fairview Heights Police Department policy, guidelines, procedures which address the checking of vehicle license plates.

Response: Item #20: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #21 and 2012 FOIA dated 05/17/2012. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on when and how vehicle license plates are checked would disclose unique or specialized investigative techniques other than those generally used and known. I take exception to this denial and request a review.

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Response: Item #21 Fairview Heights Police Department policy, guidelines, procedures which address effecting felony traffic stops.

Response: Item #21: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #23 and 2012 FOIA dated 05/17/2012 item #30. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on when and how vehicle license plates are checked would disclose unique or specialized investigative techniques other than those generally used and known. I take exception to this denial and request a review.

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Item #22 Fairview Heights Police Department policy, guidelines, procedures which address use of force.

Response: Item #22: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 and 2012 FOIA dated 05/17/2012 item # 31. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. I take exception to this denial and request a review.

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Item #23 Fairview Heights Police Department policy, guidelines, procedures which address control and cuffing of suspects upon arrest.

Response: Item #23: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including handcuffing and controlling of suspects contain information on methods to control subjects, as well as tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. Same request as 2012 FOIA dated 05/17/2012 item # 32. Denied- 5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #24 Fairview Heights Police Department policy, guidelines, procedures which address motorists who fail to stop when attempted to be pulled over.

Response: Item #24: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including conducting traffic and felony stops contain information on methods to control subjects, as well as tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law. Same request as 2012 FOIA dated 05/17/2012 item # 33. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #26 Any information, email, records, memos, letters, communications, created, received, or Item possessed by Fairview Heights Police Department, its employees, officers, or agents relating to the FOIA requester, Mark R. McCoy; DOB 8/11/59.

Response: Item #26: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #26 and 2012 FOIA dated 05/17/2012 item #35. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: I take exception to this denial and request a review.

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Item #27 Any information, email, records, memos, letters, communications created, received, or Item possessed by Fairview Heights Police Department, its employees, officers, or agents concerning the website markmccoy.com

Response: Item #27: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #27 and 2012 FOIA dated 05/17/2012 item #36. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on the Fairview Heights Police Department neither confirms nor denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. I contend there are records and that this denial is unresponsive in light of Notation 2 of Exhibit 5 in Exhibit 1, to wit, “Once back at the FHPD, I utilized a work computer to look-up the website of www.markmccoy.com“, as well as Notation 1 of Exhibit 6 in Exhibit A, to wit, “There were several links to anti-law enforcement websites” I take exception to this denial and request a review.

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Item #30 Any records, logs, reports, or other information relating to a “Taser Use of Force” as referenced on Page 4, Paragraph 5 of a Report filed by Patrolman Nyman, DSN 171, on 2/17/2009 for Case Number 09-01740, (See attached Exhibit 6, Notation 4)

Response: Item #30: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #12 and 2012 FOIA dated 05/17/2012 item #19. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. I take exception to this denial and request a review.

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Item #31 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning a Public Declaration of Sovereignty, Expatriation, and Dissolution of all Previous National and Political Allegiance, signed by Mark McCoy, and which was filed with the St. Clair County Recorder of Deeds on Jan. 4, 2008, and which bears the Letter Number A02084317.

Response: Item #31: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #28 and 2012 FOIA dated 05/17/2012 item #31. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

APPEAL NOTES: This was originally denied in 2009 based on the Fairview Heights Police Department neither confirms nor denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. I take exception to this denial and request a review.

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Your request is granted in part and denied in part as follows:

We have enclosed copies of the documents that you requested for item # 25, 28, & 29.

FOIA REQUEST 5/17/12 SEE ENCLOSED EXHIBITS C AND D

Item #1 Dashboard or other similar video from vehicles operated by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171. and Sgt. James Krummrich. DSN 141 from Feb. 17. 2009 when responding to circumstances involving the above referenced event.

Item # 1: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #1 a response was provided as first RP #17 “” Response: FH70. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #2 Any other audio or video recording originating from Joshua Alemond. DSN 170; Aaron Nyman, DSN 171. and Sgt. James Krummrich, DSN 141 from Feb. 17. 2009 when responding to circumstances involving the above referenced event.

Item #2: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #2 a response was provided as first RP #17 “” Response: FH70. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #3 Any other audio or video recording created between the time Mark R. McCoy was delivered to the Fairview Heights Police Department on Feb. 17, 2009 and his departure.

Item #3: All audio or video was previously produced as FH70. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #4 Any photographs taken at the scene of the stop and arrest on Donald Bailey Drive pursuant to the above referenced event.

Item #4: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #3 previously produced as FH62-69. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

Item #5 Any photographs taken of Mark R. McCoy including those taken during booking.

Item #5: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #4 also previously produced as FH62-69. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #6 Records pertaining to the dispatch and treatment of Mark R. McCoy provided by MedStar EMS, as well as any opinion, diagnosis, or report of injuries observed or treated.

Item #6: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

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Item #7 Names of MedStar EMS personnel who treated Mark R. McCoy at the Fairview Heights Police Department on Feb. 17, 2009.

Item #7: The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

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Item #8 Reports, records, memos, letters, communications, created by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #8: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #6 previously produced as FH1-12. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #9 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #9: This request is denied based on 5 ILCS 1 40/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

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Item #10 Records showing access and timestamp of Fairview Heights Police Department systems, or request for, vehicle registration, warrant checks.

Item #10: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #8. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #11 Transcript or other record, audio or written, of communications between Fairview Heights Police Department Dispatcher and Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #11: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #9 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #12 Any report, log, or other information on the processing the patrol car for cleaning or otherwise, subsequent to the transporting of Mark McCoy from the scene on Donald Bailey Drive to the Fairview Heights Police Department, as well as any photographs, analysis, or reports pertaining to such.

Item #12: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #10 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #13 Any records relating to access to, including chain of custody in handling, dashboard video from the patrol cars of Joshua Alemond, DSN 170, Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141,  including but not limited to such systems commonly known as “dashboard cameras” or other like-systems.

Item #13-Granted see below.

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Item #14 Any records, memos, email, minutes, documents, or other written, verbal, or electronic communication between the Fairview Heights Police Department and any other municipal, state, or federal agencies or departments which pertain to Mark R. McCoy, the requester of these documents, including but not limited to interdepartmental or multi- jurisdictional contacts, associations or affiliations.

Item #14: Document previously produced as document FH30-50. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #15 Copies of any warrants for the arrest of Mark R. McCoy, in the possession of the Fairview Heights Police Department prior or up to Feb. 17, 2009 or acted upon in arresting Mark R. McCoy on Feb. 17, 2009, including the supporting oath or affirmation, the name of the Judge signing said warrant, and any statements of probable cause in issuing said warrant.

Item #15: Partial Grant-The St Clair County Sheriff Department issued the warrant in which that police agency would have the warrant. See electronic warrant confirmation in report 09-01740, which is being provided.

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Item #16 Any record relating to the appearance, requested appearance, or denial to appear at a hearing on November 30, 2009 before the Honorable Randall Kelley for the above referenced citations, by Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171, to the St. Clair County Assistant State’s Attorney, Mr. Chet Kelly or his office.

Item #16: Granted

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Item #17 Any records, reports, notes, memos, recordings, photographs or other information relating to Chief Nicholas J. Galius meeting with Mark R. McCoy subsequent to Feb. 17, 2009 involving the above referenced event, and any complaint written or otherwise filed or submitted to Chief Nicholas J. Galius by Mark R. McCoy.

Item #17: The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

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Item #18 Fairview Heights Police Department policy on Taser use.

Item #18: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #11 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #19 Reports on Taser discharge, use, or deployment by Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #19: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #12 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged  or identical to records previously provided or properly denied under this Act shall be deemed unduly  burdensome under this provision.

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Item #20 Certifications for Taser training relating to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #20: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #13 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #21 Reports of injury or death resulting from Taser use by Fairview Heights Police Department.

Item #21: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #14 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #22 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #22: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #15 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #23 Reports relating to the deployment or use of weapons pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171.

Item #23: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #16 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #24 Fairview Heights Police Department policy on care of persons arrested, taken into custody, or have forced used against them.

Item #24: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #17 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #25 Reports filed against Fairview Heights Police Department for abuse, or excessive use of force.

Item #25: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #18 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #26 Reports filed against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Item #26: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #19 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #27 Disciplinary action taken against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Item #27: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #20 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #28 Fairview Heights Police Department policy on checking vehicle license plates.

Item #28: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #21 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #29 Fairview Heights Police Department policy on checking vehicle license plates.

Item #29: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #22 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #30 Fairview Heights Police Department policy on effecting felony traffic stops.

Item #30: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #23 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #31 Fairview Heights Police Department policy on any use of force.

Item #31: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #24 Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to  records previously provided or properly denied under this Act shall be deemed unduly burdensome under  this provision.

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Item #32 Fairview Heights Police Department policy and/or procedures on control and cuffing of suspects upon arrest.

Item #32: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including handcuffing and controlling of suspects contain information on methods to control subjects, as well as  tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

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Item #33 Fairview Heights Police Department policy on motorists who fail to stop when attempted to be pulled over, but who otherwise are not fleeing or eluding.

Item #33: This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including conducting traffic and felony stops contain information on methods to control subjects, as well as tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

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Item #34 Sworn oaths of office, and name of person administering said oath, for Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #34: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #25. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #35 Any information, email, records, memos, letters, communications, created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents relating to Mark R. McCoy.

Item #35: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #26. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #36 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning the website markmccoy.com

Item #36: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #27. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

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Item #37 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning a Public Declaration of Sovereignty, Expatriation, and Dissolution of all Previous National and Political Allegiance, signed by Mark McCoy, and which was filed with the St. Clair County Recorder of Deeds on Jan. 4, 2008, and which bears the Letter Number A020843 17.

Item #37: Same request as the 2009 FOIA dated 03/03/2009 submitted as question #28. Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

FOIA REQUEST 3/3/09 SEE ENCLOSED EXHIBITS E AND F

REQUEST:

Item #1 Dashboard or other similar video from vehicles operated by Joshua Alemond, DSN 170 Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141.

Item #2 Any other audio or video recording.

Item #3 Any photographs taken at the scene of the stop and arrest on Donald Bailey Drive.

Item #4 Any photographs taken of Mark R. McCoy including those taken during booking.

Item #5 Information pertaining to the dispatch and treatment of Mark R. McCoy provided by MedStar EMS, as well as any opinion, diagnosis, or report of injuries observed or treated

Item #6 Reports, records, memos, letters communications, created by Joshua Alemond, DSN 170, Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141

Item #7 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

Item #8 Records showing access and timestamp of Fairview Heights Police Department system or request for, vehicle registration, warrant checks

Item #9 Transcript or other record, audio or written, of communications between Fairview Heights Police Department Dispatcher and Joshua Alemond, DSN 170, Aaron Nyman, DSN 171, and Sgt. James Krummrich, DSN 141

Item #10 Any report, log, Or other information On the cleaning of the back seat of Joshua Alemond”™s patrol car, which was used to transport Mark McCoy, as well as any photographs, analysis, or reports pertaining to such.

DENIAL:

These requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation.

REQUEST:

Item #11 Fairview Heights Police Department policy on Taser use.

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, contain information on when and how to deploy various weapons in control of subjects. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

REQUEST:

Item #12 Reports on Taser discharge, use, or deployment by Joshua Almond, DSN 170 and Aaron Nyman, DSN 171

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

REQUEST:

Item #13 Certifications for Taser training relating to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

DENIAL:

The Police Department does not issue certifications for this sort of training.

REQUEST:

Item #14 Reports of injury Or death resulting from Taser use by Fairview Heights Police Department

Item #15 Reports relating to use of force pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

Item #16 Reports relating to the deployment or use of weapons pertaining to Joshua Alemond, DSN 170 and Aaron Nyman, DSN 171

DENIAL:

These requests are DENIED, based on 5 ILCS 140/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

REQUEST:

Item #17 Fairview Heights Police Department policy on care of persons arrested, taken into custody, or have forced used against them.

RESPONSE:

The Fairview Heights Police Department does not have a specific policy on this topic. There are, however, sections of department policies that deal with care of persons in custody. In order to attempt to satisfy your request, I can provide you with redacted policies that cover the information areas you request.

This information is available and will be provided upon receipt of $2.40 for the cost of reproduction.

REQUEST:

Item #18 Reports filed against Fairview Heights Police Department for abuse, or excessive use of force.

Item #19 Reports filed against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171 for excessive or inappropriate use of force.

Item #20 Disciplinary action taken against Joshua Alemond, DSN 170; Aaron Nyman, DSN 171

These requests are DENIED, based on 5 ILCS 14017(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

REQUEST:

Item #21 Fairview Heights Police Department policy on checking vehicle license plates.

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on when and how vehicle license plates are checked would disclose unique or specialized investigative techniques other than those generally used and known.

REQUEST:

Item #22 Fairview Heights Police Department policy on effecting traffic stops.

Item #23 Fairview Heights Police Department policy on effecting felony stops.

Item #24 Fairview Heights Police Department policy on any use of force.

DENIAL:

This request is DENIED, based on 5 ILCS 140/7(c)(vii). Use of force policies, including use of Taser policies, and policies on conducting traffic and felony stops contain information on methods to control subjects, as well as tactics and weapons that are employed by officers. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

REQUEST:

Item #25 Sworn oaths of office, and name of person administering said oath, for Joshua Alemond, DSN 110; Aaron Nyman, DSN 171, and Sgt., James, Krummrich, DSN 141.

RESPONSE:

This information is available and will be provided upon receipt of $1.20 for the cost of reproduction.

REQUEST:

Item #26 Any bonds or other surety filed With the City of Fairview Heights or the State of Illinois as required by law for OT by Joshua Alemond, DSN 170; Aaron Nyman, DSN 171, and Sgt. James Krummrich DSN 141

RESPONSE:

No such documents exist.

REQUEST:

Item #27 Any information, email, records, memos, letters, communications, treated, received, possessed by Fairview Heights Police Department, its employees, officers or agents relating to Mark R. McCoy prior to 2/17/09.

Item #28 Any information, email, records, memos, letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning the website markmccoy.com

Item #29 Any information, email, records, memos. letters, communications created, received, or possessed by Fairview Heights Police Department, its employees, officers, or agents concerning a Public Declaration of Sovereignty, Expatriation, and Dissolution of all Previous National and Political Allegiance, signed by Mark McCoy, and which was filed with the St Clair County Recorder of Deeds on Jan. 4, 2008, and which bears the Letter Number A02084317.

DENIAL:

The Fairview Heights Police Department neither confirms nor denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 14017(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation.

TABLE OF 4/22/09 EXEMPTIONS

These requests are DENIED, based on 5 ILCS 140/7(c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. This exemption was not invoked in any subsequent request for similar or identical records, but which were denied because of a claim that this original exemption, which bore no fruit with respect to any criminal proceeding, was considered by the public to be valid.

This request is DENIED, based on 5 ILCS 140/7(c)(vii). “policies including ” policies, contain information on “.. Public release of policies of this sort would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter. ” I take general exception to this exemption.

This request is DENIED, based on 5 ILCS 1410/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy. – I take general exception to this exemption.

This request is DENIED, based on 5 ILCS 140/7(c)(v). To disclose any policies or procedures on”..would disclose unique or specialized investigative techniques other than those generally used and known. – I take general exception to this exemption.

The Fairview Heights Police Department neither confirms or denies the existence of any such records. However, should they exist, these requests are DENIED, based on 5 ILCS 140/7 (c)(i). This information may interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement agency. These requests are further DENIED, based on 5 ILCS 140/7(c)(viii), in that the request may obstruct an ongoing criminal investigation. ““ This exemption is refuted by my request of 9/17/2012 with attached Exhibits/Notations, wherein reference is made to such records.

TABLE OF 5/31/12 EXEMPTIONS

Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

This request is denied based on 5 ILCS 1 40/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including  handcuffing and controlling of suspects contain information on methods to control subjects, as well as  tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be  used to counter or defeat a law enforcement officer during an encounter.

Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

TABLE OF 10/1/12 EXEMPTIONS

The MedStar Ambulance Service is the holder of these records. The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

This request is denied based on 5 ILCS 1 40/7(c)(vi). The release of the requested information would constitute an invasion of personal privacy.

Denied-5 ILCS 140/3(g) repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

The Fairview Heights Police Department can neither confirm nor deny the existence of any such records.

This request is denied, based on 5 ILCS140/7(c)(vii). Use of force policies, including  handcuffing and controlling of suspects contain information on methods to control subjects, as well as  tactics that are employed by officers. Public release of policies of this nature would endanger the life or physical safety of law enforcement personnel by providing tactical information that could be used to counter or defeat a law enforcement officer during an encounter.

TABLE OF EXEMPTIONS BASED ON PRIOR DISCLOSURE THROUGH CIVIL DISCOVERY   SEE EXHIBIT G

DEFENDANT JOSHUA ALEMOND’S RESPONSE TO PLAINTIFF’S FIRST REQUEST TO PRODUCE

1.         All documents which record, refer to, discuss, or analyze any occasions of investigating, questioning, arrest and/or detention of Plaintiff on the date of occurrence.

RESPONSE:      FH 1-70.

3.         All documents which record, refer to, discuss or analyze the incident.

RESPONSE:      FH 1-70.

4.         All written statements by any person who claims to be a witness to any of the occurrences that are the subject of Plaintiffs Complaint.

RESPONSE:      FH 1-12.

5.         Any and all documents in the possession or control of the Defendant which pertain to Plaintiffs criminal history, federal or state, including records relating to any conviction or arrests.

RESPONSE:  Defendant objects to Request 5 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence.  Without waiving that objection. Defendants are producing documents FH 30-45, 48-50.

6.         Any and all documents or other records of Plaintiffs physical injuries, as alleged in the complaint, relating to, or as a result of, the occurrence.

RESPONSE:      FH 1-12, 58-69.

7.         Any and all documents identified in your answers to any of the Plaintiffs Interrogatories or support any of your answers to interrogatories.

RESPONSE:      FH 1-70.

12.       All diaries or notes purporting to record or memorialize any of the occurrences which are the subject of Plaintiffs complaint or injuries claimed by Plaintiff.

RESPONSE:      FH 1-29.

17.       All audio or video recordings of the incident.

RESPONSE:      FH-70.

18.       Any and all documents or records of which the Plaintiff is the subject thereof, is mentioned therein, referenced to, or identified therein, as have been created or come to be after the date of the occurrence.

RESPONSE:      Defendant objects to Request 2 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, Defendant is producing FH 1-70.

DEFENDANT AARON NYMAN’S RESPONSE TO PLAINTIFF’S FIRST REQUEST TO PRODUCE

1.         All documents which record, refer to, discuss, or analyze any occasions of investigating, questioning, arrest and/or detention of Plaintiff on the date of occurrence.

RESPONSE:      FH 1-70.

3.         All documents which record, refer to, discuss or analyze the incident.

RESPONSE:      FH 1-70.

4.         All written statements by any person who claims to be a witness to any of the occurrences that are the subject of Plaintiff’s Complaint.

RESPONSE:      FH 1-12.

5.         Any and all documents in the possession or control of the Defendant which pertain to

Plaintiff’s criminal history, federal or state, including records relating to any conviction or arrests.

RESPONSE:      Defendant objects to Request 5 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence, Without waiving that objection, Defendants are producing documents FH 30-45, 48-50.

6.         Any and all documents or other records of Plaintiffs physical injuries, as alleged in the complaint, relating to, or as a result of, the occurrence.

RESPONSE:      FH 1-12, 58-69.

7.         Any and all documents identified in your answers to any of the Plaintiffs Interrogatories or support any of your answers to interrogatories.

RESPONSE:      FH 1-70.

9.         All documents that Defendant intends to use as an exhibit, demonstrative or otherwise, at trial.

RESPONSE:      Defendant has not yet determined what materials he will use an exhibit, but reserves the right to use FH 1-70 or any document produced by plaintiff.

12.       All diaries or notes purporting to record or memorialize any of the occurrences which are the subject of Plaintiffs complaint or injuries claimed by Plaintiff.

RESPONSE:      FH 1-29.

17. All audio or video recordings of the Incident.

RESPONSE:      FH 70.

18.       Any and all documents or records of which the Plaintiff is the subject thereof, is mentioned therein, referenced to, or identified therein, as have been created or come to be after the date of the occurrence.

RESPONSE:      Defendant objects to Request 2 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, Defendant is producing FH 1-70.

DEFENDANT CITY OF FAIR VIEW HEIGHTS RESPONSE TO PLAINTIFF’S FIRST REQUEST TO PRODUCE

1.         All documents which record, refer to, discuss, or analyze any occasions of investigating, questioning, arrest and/or detention of Plaintiff on the date of occurrence.

RESPONSE:      FH 1-70.

3.         All documents which record, refer to, discuss or analyze the incident.

RESPONSE:      FH 1-70.

4.         All written, statements by any person who claims to be a witness to any of the occurrences that are the subject of Plaintiff’s Complaint.

RESPONSE:      FH 1-12.

5.         Any and all documents in the possession or control of the Defendant which pertain to Plaintiff’s criminal history, federal or state, including records relating to any conviction or arrests.

RESPONSE:      Defendant Objects to Request 5 as irrelevant, overly broad, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving that objection, Defendants are producing documents FH 30-45, 48-50.

6.         Any and all documents or other records of Plaintiff’s physical injuries, as alleged in the complaint relating to, or as a result of, the occurrence.

RESPONSE:      FH 1-12, 58-69.

7.         Any and all documents identified in your answers to any of the Plaintiffs Interrogatories or support any of your answers to interrogatories.

RESPONSE:      FH 1-70.

9.         All documents that Defendant intends to use as an exhibit, demonstrative or otherwise, at trial.

RESPONSE:      Defendant has not yet determined what materials he will use an exhibit, but reserves the right to use FH 1-70 or any document produced by plaintiff.

12.       All diaries or notes purporting to record or memorialize any of the occurrences which are the subject of Plaintiffs complaint or injuries claimed by Plaintiff.

RESPONSE:      FH 1-29.

17. All audio or video recordings of the Incident,

RESPONSE:      FH1-70.

18.       Any and all documents or records of which the Plaintiff is the subject thereof, is mentioned therein, referenced, to, or identified therein, as have been created or come to be after the date of the occurrence.

RESPONSE:      Defendant objects to Request 2 as irrelevant, overly broad, unduly burdensome, vague, and. not reasonably calculated to lead to the discovery of admissible evidence. Without waiving this objection, Defendant is producing FH 1-70.

 

Exhibits for FOIA Appeal from Fairview Heights Police by Mark McCoy

(5 ILCS 140/7)
(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. “Unwarranted invasion of personal privacy” means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.

(5 ILCS 140/7)
(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:
(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request;
(vi) endanger the life or physical safety of law enforcement personnel or any other person; or
(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.

(5 ILCS 140/3)
(g) 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 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. If any body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information.
Repeated requests from the same person for the same records that are unchanged or identical to records previously provided or properly denied under this Act shall be deemed unduly burdensome under this provision.

(5 ILCS 140/9.5)
Sec. 9.5. Public Access Counselor; opinions.
(a) A person whose request to inspect or copy a public record is denied by a public body, except the General Assembly and committees, commissions, and agencies thereof, may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the date of the final denial. The request for review must be in writing, signed by the requester, and include (i) a copy of the request for access to records and (ii) any responses from the public body.

 

Illinois Attorney General FOIA Guide for Law Enforcement by Mark McCoy

7(1)(d) EXEMPTIONS Exemptions That Apply Specifically to Law Enforcement or Administrative Enforcement Proceedings EXEMPTION 7(1)(d)(i)

Pending Law Enforcement Proceedings Exemption 7(1)(d)(i) of FOIA (5 ILCS 140/7(1)(d)(i) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011) allows a public body to withhold records that would interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by the law enforcement or correctional agency that received the FOIA request. Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2010)), “[a]ll records in the custody of a public body are presumed to be open to inspection and copying” and “[a]ny 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.” (Emphasis added). As a result, when a public body asserts that records are exempt under section 7(1)(d)(i), the public body has the burden to prove by clear and convincing evidence that the disclosure of the records would in fact interfere with a pending or actually and reasonably contemplated law enforcement proceeding. The fact that an investigation has been commenced is, by itself, not enough to satisfy the burden to withhold information under this exemption. 2010 PAC 6939 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 6939, issued March 24, 2011, at 2) and 2011 PAC 13661 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 13661, issued June 6, 2011, at 2). The public body must produce specific evidence that disclosure of information contained in a document, such as a police report, would interfere with an actual or reasonably contemplated law enforcement proceeding. Examples of such information would be witnesses who have yet to be interviewed or suspects that have yet to be arrested. A criminal conviction that is being challenged through a post-conviction action does not constitute an ongoing criminal proceeding for the purposes of this exemption. Illinois courts have consistently held that post-conviction appeals are civil proceedings. See Illinois v. Wilson, 37 Ill. 2d 617, 620 (Ill. 1967); see also People v. Andretich, 244 Ill. App. 3d 558, 559 (Ill. App. 3d Dist. 1993); Illinois v. Dominguez, 366 Ill. App. 3d 468, 472 (Ill. App. 2d Dist. 2006). If a prosecution has commenced, a police department is strongly encouraged to contact the State’s Attorney’s Office to assess whether disclosure of the requested records could interfere with the prosecution. If a police department intends to assert an exemption under 7(1)(d) in a case where a prosecution is underway, obtaining detailed information from the State’s Attorney’s Office will likely help the police department meet its burden. In Day v. City of Chicago, 388 Ill. App. 3d 70, 72 (1st Dist. 2009), the plaintiff, who was convicted of murder in 1994, submitted a FOIA request in 2007 to the City of Chicago Police Department seeking all documents relating to his arrest and the investigation. The City denied the police report in its entirety pursuant to section 7(1)(c)(1) of FOIA, as it was written at the time, claiming that the investigation was “ongoing.” The First District Appellate Court held that the City’s three affidavits were “entirely conclusory and inadequate to sustain the City’s burden to show the requested documents and the redacted portions of the General Case and Arrest Reports were exempt because disclosure would ‘obstruct an ongoing investigation.’” Day, 388 Ill. App. 3d at 75. According to the Court, affidavits will not suffice “if the public body’s claims are conclusory, merely recite statutory standards, or are too vague or sweeping.’” Day, 388 Ill. App. 3d at 74 (quoting Illinois Educ. Ass’n. v. Illinois State Bd. of Educ., 204 Ill. 2d 456, 469 (2003)). The release of substantive information provided by individuals, even if identifying information were redacted, could have serious consequences for witness cooperation such as swaying testimony and discouraging other yet-to-be identified individuals from supplying information. The release of such information could taint prospective jurors if the information were released independent of any admissibility hearing. The latter, being subject to the rules of criminal procedure, would likely not have the same impact on public dissemination as would the release of information in response to a FOIA request. 2011 PAC 17636 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 17636, issued April 3, 2012, at 5). Other pieces of evidence, such as lab test results, financial records, and other pertinent records could possibly taint a prospective jury. 2011 PAC 17636 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 17636, issued April 3, 2012, at 2). A public body cannot obtain a prohibitive order to bar the release of a law enforcement record specifically in response to a FOIA request. Carbondale Convention Ctr., Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 479 (5th Dist. 1993).

EXEMPTION 7(1)(d)(vi) Danger to Life or Physical Safety Exemption 7(1)(d)(vi) (5 ILCS 140/7(1)(d)(vi) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011), provides that a public body may withhold information if disclosure would endanger the life or physical safety of law enforcement personnel or any other person. The public body has the burden to prove by clear and convincing evidence that the disclosure of the records in question would in fact endanger the life or physical safety of law enforcement personnel or any other person. Hypothetical, speculative scenarios do not satisfy the clear and convincing burden under section 1.2. Instead, the public body must provide specific information about how disclosure of information in response to the FOIA request at issue would endanger the life or physical safety of a law enforcement officer or any other person. See 2010 PAC 10313 (Ill. Att’y Gen. PAC Req. Rev. Ltr. 10313, issued March 1, 2011, at 7-8).

EXEMPTION 7(1)(d)(vii) Obstruction of Ongoing Criminal Investigation Exemption 7(1)(d)(vii) (5 ILCS 140/7(1)(d)(vii) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452, effective August 19, 2011), provides that a public body may withhold information if disclosure would obstruct an ongoing criminal investigation by the agency that is the recipient of the request. The public body has the burden to prove by clear and convincing evidence that the disclosure of the records in question would in fact obstruct an ongoing criminal investigation by the agency that is the recipient of the request.