Better Government Ass'n v. Zaruba

Illinois Official Reports
Appellate Court
Better Government Ass’n v. Zaruba, 2014 IL App (2d) 140071
Appellate Court BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellant, v.
Caption JOHN E. ZARUBA, as Sheriff of Du Page County, Defendant-
Appellee.
District & No. Second District
Docket No. 2-14-0071
Filed November 6, 2014
Held The trial court properly dismissed the complaint of the Better
(Note: This syllabus Government Association under the Freedom of Information Act
constitutes no part of the seeking the production of records disclosing the vehicles and persons
opinion of the court but subjected to Law Enforcement Agencies Data System (LEADS)
has been prepared by the inquiries by the teenage son of defendant sheriff, pursuant to a course
Reporter of Decisions the son took through the Illinois Department of State Police’s
for the convenience of Learning Management System entitled “LEADS Less Than Full
the reader.) Access” that led to the son being certified as a LEADS operator
certified and authorized to access LEADS through a certain date, since
plaintiff is not a proper body to investigate an alleged improper use of
LEADS but, rather, that task is left to the Illinois Department of State
Police in view of the sensitive information involved.
Decision Under Appeal from the Circuit Court of Du Page County, No. 13-MR-958;
Review the Hon. Terence M. Sheen, Judge, presiding.
Judgment Affirmed.
Counsel on Paul T. Fox and Gregory E. Ostfeld, both of Greenberg Traurig, LLP,
Appeal of Chicago, for appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
and Lisa A. Smith, Assistant State’s Attorneys, of counsel), for
appellee.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Birkett and Spence concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Better Government Association (BGA), appeals from the dismissal of its
complaint seeking production of certain records from defendant, John E. Zaruba, as sheriff of
Du Page County (the sheriff), pursuant to the Freedom of Information Act (FOIA) (5 ILCS
140/1 et seq. (West 2012)). Specifically, BGA requested records disclosing the vehicles and
persons who were the subjects of Law Enforcement Agencies Data System (LEADS)
inquiries conducted by Patrick Zaruba, the sheriff’s teenage son. The trial court concluded
that this information was exempt from disclosure under section 7(1)(a) of the FOIA (5 ILCS
140/7(1)(a) (West 2012)) and that a FOIA response to BGA’s inquiries was not possible. For
the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 On June 28, 2012, BGA filed in the circuit court of Cook County its verified complaint
for declaratory and injunctive relief against the sheriff. The case was subsequently
transferred to the circuit court of Du Page County on the sheriff’s motion.
¶4 BGA alleged that on May 29, 2012, it submitted FOIA requests to the sheriff, seeking the
following:
“1) Copies of any and all documents relating to Patrick Zaruba’s access to
LEADS or other law enforcement databases. (Examples of such documents are
Patrick Zaruba’s LEADS application and other supporting materials.)
2) Copies of documents sufficient to show the names of any and all persons who
because of their affiliation with the Du Page County Sheriff’s office have become
certified to use LEADS even though they’re not sheriff’s office employees, from Jan.
1, 2010, to present. (Examples of such persons are interns, Explorer scouts and
ride-along participants.)
3) Copies of documents sufficient to show any and all written communication
between the Illinois State Police and the Du Page County Sheriff’s office relating to
LEADS and/or Patrick Zaruba, from May 21, 2012, to present. (Examples of such
communication include emails and letters.)”
-2-
On May 31, 2012, BGA submitted another FOIA request for “[c]opies of documents
sufficient to show the vehicles and persons that were the subjects of LEADS inquiries
conducted by Patrick Zaruba, from November 2010 to present.”
¶5 On June 4, 2012, the sheriff responded as follows to BGA’s requests:
“I am unable to supply any information that is responsive to your Freedom of
Information request. LEADS is a system controlled by [the] Illinois State Police. You
would need to contact them for information/confirmation of any certified user. You
will also need to contact ISP for documentation of what persons/vehicles were the
subjects of inquires [sic] made by any certified user. As for written communication
between ISP and the Du Page County Sheriff’s Office related to LEADS and or
Patrick Zaruba from 5/21/12 to 5/29/12, I do not have information responsive to that
request.”
¶6 According to the complaint, in violation of section 9 of the FOIA (5 ILCS 140/9 (West
2012)), the sheriff’s response failed to state any statutory basis for denying the first, second,
and fourth categories of requests; identify any FOIA exemption; include a detailed factual
basis for the application of any exemption; or inform BGA of its rights to judicial review and
review by the Public Access Counselor. BGA alleged that it contacted the sheriff’s FOIA
officer regarding these purported deficiencies in the sheriff’s response, but was told that the
sheriff declined to revisit his position. In count I, BGA sought a declaration of its right to the
requested documents, a declaration that the sheriff’s actions were willful, intentional, and
done in bad faith, and an award of civil penalties. BGA sought injunctive relief in count II.
¶7 On October 2, 2013, the sheriff filed a motion to dismiss the complaint pursuant to
section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West
2012)). The sheriff argued that he was “not able to legally comply” with BGA’s requests,
invoking section 7(1)(a) of the FOIA, which exempts public bodies from producing
“[i]nformation specifically prohibited from disclosure by federal or State law or rules and
regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West 2012). The sheriff
represented that, in addition to his June 4, 2012, response to BGA’s requests, on July 19,
2012, an assistant State’s Attorney had forwarded to BGA copies of (1) an agreement dated
March 3, 2008, between the Illinois Department of State Police (Department) and the
Du Page County sheriff’s office regarding LEADS access (the Agreement) and (2) Patrick’s
certificate of completion for a course entitled “LEADS Less Than Full Access.” Although
neither the Agreement nor the certificate is included in the record on appeal, the sheriff
represented in his motion to dismiss that section VI of the Agreement provided:
“All data supplied through LEADS is strictly forbidden to be used for personal
reasons. It is strictly forbidden to sell any information obtained to any individuals,
organization, government agency or corporation. It is strictly forbidden to disseminate
any information obtained through LEADS to any individual organization that is not
legally authorized to have access to that information.”
The sheriff insisted that he would breach the Agreement if he were to provide the requested
records to BGA. Moreover, he argued that disclosure was prohibited by the Department’s
regulations, which are codified in the Illinois Administrative Code and provide that “LEADS
data shall not be disseminated to any individual or organization that is not legally authorized
to have access to the information” (20 Ill. Adm. Code 1240.80(d) (1999)) and that a violation
may result in suspension of LEADS service (20 Ill. Adm. Code 1240.110 (1999)). The sheriff
-3-
supported his motion with the affidavit of Darlene A. Jacobs, the LEADS statewide
coordinator for the Department. She asserted that the information BGA requested, “should it
exist,” could not be released by the sheriff in light of the Administrative Code and the
Agreement.
¶8 In its response to the motion, BGA argued that none of the requests sought either
information “obtained through LEADS” or “LEADS data” so as to implicate the Agreement
or the Administrative Code. BGA noted that the regulations define “LEADS data” as “all
data available through the LEADS computer” (20 Ill. Adm. Code 1240.30(b)(3) (1999)),
emphasizing that it was “seeking requests made by Patrick to the LEADS system, not
personal information or data obtained from the LEADS system.” (Emphases in original.)
Accordingly, BGA attempted to distinguish between the results of Patrick’s searches, which
it recognized would constitute “LEADS data,” and the subjects of Patrick’s LEADS
inquiries, which it argued would not. Additionally, BGA argued that the Agreement was not
a basis for an exemption under section 7(1)(a) of the FOIA, because the Agreement was
neither a law nor a rule or regulation implementing the law. Moreover, BGA argued, the
Agreement and the Administrative Code did not specifically prohibit the sheriff from
disclosing public records relating to unauthorized LEADS inquiries. In BGA’s words, “[t]he
Sheriff cannot hide behind agreements or administrative regulations designed to prevent
unauthorized access to the LEADS system in order to conceal such unauthorized access.”
(Emphases in original.)
¶9 In his reply brief in support of the motion to dismiss, the sheriff apparently abandoned his
argument premised on the Agreement, but continued to insist that he properly withheld
“LEADS data” as that term is used in the regulations. He submitted a second affidavit from
Jacobs, in which she asserted the following:
“That on November 22, 2010, Patrick Zaruba successfully completed the course
entitled ‘LEADS Less Than Full Access’ through the [Department’s] Learning
Management System (LMS). As a result of his completion of this course, Patrick
Zaruba was LEADS operator certified and authorized to access LEADS through
November 22, 2012.
That in order to inquire on a person through the LEADS system, the LEADS
operator will submit inquiry identifiers of last name, first name, middle initial, sex,
and date of birth and/or their driver’s license number into the LEADS System. Once
this information is submitted into the LEADS system it is LEADS data and part of the
complete LEADS record maintained by the Illinois State Police.
That through LEADS 2000, the Illinois State Police can only identify a device
accessing the LEADS system by its assigned Call Directing Code (CDC) and not the
unique identifiers of a certified user accessing the system.
That the Illinois Administrative Code Title 20, Part 1240.80 prohibits the
dissemination of LEADS data to any individual and/or organization that is not legally
authorized to have access to the information and the Better Government Association
is not legally authorized to receive LEADS data.”
Accordingly, the sheriff argued, “the Illinois State Police does not distinguish between
information input into the LEADS system and any other information contained in the
system.” (Emphasis in original.) The sheriff insisted that he could not provide the requested
-4-
information to BGA without “intentionally violating the Illinois Administrative Code and
thereby subjecting [himself] to a potential suspension of all or a portion of LEADS services.”
¶ 10 The sheriff also contended that Jacobs’ affidavit demonstrated that “the Illinois State
Police is not able to confirm what, if any, inquiries were made by Patrick Zaruba,” because
“the Illinois State Police can only identify what device the request comes from and not who
is using the device.” Finally, the sheriff emphasized that there was no evidence that Patrick
had used the LEADS system, let alone for an improper purpose, noting that the Department
had not restricted Patrick’s access to the system or suspended the sheriff’s office’s use of the
system due to any violation.
¶ 11 On December 18, 2013, the parties appeared before the court for its ruling on the motion
to dismiss. During the brief hearing, BGA suggested that there was a question of fact as to
whether any of the records responsive to the FOIA requests qualified as “LEADS data.” It
also argued that, because Jacobs averred in her second affidavit that the LEADS system
could not link specific inquiries to Patrick, BGA did not seek information “available through
the LEADS computer.” Therefore, BGA argued, it was entitled to discovery to determine
whether there were any responsive records available from the sheriff rather than through the
LEADS computer.
¶ 12 In a written order, the court granted the sheriff’s motion to dismiss, concluding that the
Administrative Code prohibited the sheriff from disseminating the requested information.
The court reasoned that the “broad terms” of the regulations “indicate intent to limit all
information in the LEADS system to people with the proper authorization.” Additionally, the
court described as “a fallacy” BGA’s argument that Patrick’s input information was not
“LEADS data.” The court noted that, according to Jacobs’ second affidavit, “once inquiry
identifier information is submitted to LEADS, it is LEADS data and part of the complete
LEADS record maintained by the Illinois State Police.” Furthermore, the court explained,
interpreting “LEADS data” to include input information was consistent with the intent of the
regulations, because the “expansive” definition of “LEADS data” is “not limited to data that
can be drawn from the system about a particular subject,” but, instead, is “all data available
through the LEADS computer.” The court added: “Assuming it is possible to query who
Patrick Zaruba looked up in the system (which no evidence has been submitted to prove this
is even possible), one would presumably need to obtain this information by going to a
LEADS computer and accessing the system.” Accordingly, the court found that such
information was “made available ‘through the LEADS computer’ ” (quoting 20 Ill. Adm.
Code 1240.30(b)(3) (1999)).
¶ 13 The court also addressed BGA’s argument that the court’s interpretation would lead to an
absurd result. The court explained that, while it was “true that the regulation at issue was
created, in part, to prevent use of the LEADS system for personal purposes,” there was
“nothing to prevent the appropriate body, properly authorized to access the LEADS system,
from investigating any alleged improper uses.” Under the court’s interpretation, “entities
such as the BGA are not the proper organizations to undertake such an investigation because
the investigation requires access to sensitive information to which the legislative body saw fit
to restrict access.” Moreover, the court found that there was “no evidence to suggest that
Patrick Zaruba utilized LEADS for an improper purpose,” so “it would be difficult to argue
that denying BGA access to the requested records allows the [sheriff] to protect Patrick’s
abusive practices by using anti-abuse regulations.”
-5-
¶ 14 Finally, the court found that it was not possible for the sheriff to produce records
reflecting Patrick’s LEADS inquiries:
“One final salient point noted by the [sheriff] is that the information sought by
BGA does not exist. *** According to Darlene Jacobs, the Illinois State Police can
only use the LEADS system to identify a device accessing the LEADS system by its
assigned Call Directing Code and not the unique identifies [sic] of a certified user
accessing the system. *** That is, even if the applicable regulations did not operate to
deny BGA’s access, the Illinois State Police would not be able to determine which
inquiries, if any, were submitted by Patrick Zaruba. As such, a FOIA response to
BGA’s inquiries is not possible.”
¶ 15 BGA timely appeals.
¶ 16 II. ANALYSIS
¶ 17 On appeal, BGA argues that only LEADS records maintained by the Department, not the
sheriff’s public records, are exempt from disclosure. BGA also contends that the term
“LEADS data,” as used in the Department’s regulations, encompasses only data available
through the LEADS computer, not inquiries submitted to the LEADS computer.
Additionally, BGA suggests that the trial court’s interpretation of the regulations had the
absurd effect of allowing the state law designed to prevent abuse of the LEADS system to be
used to shield such abuses from disclosure. Finally, BGA argues that the court erred in
concluding, without allowing BGA to conduct discovery, that the requested records did not
exist.
¶ 18 At the outset, we note that BGA has specifically challenged on appeal the trial court’s
ruling only as it relates to the request for “[c]opies of documents sufficient to show the
vehicles and persons that were the subjects of LEADS inquiries conducted by Patrick Zaruba,
from November 2010 to present.” Accordingly, we will not consider the propriety of the trial
court’s order as it relates to any of BGA’s other FOIA requests. See Ill. S. Ct. R. 341(h)(7)
(eff. Feb. 6, 2013) (points not argued in the appellant’s brief are forfeited).
¶ 19 The purpose of the FOIA is “to open governmental records to the light of public
scrutiny.” (Internal quotation marks omitted.) Watkins v. McCarthy, 2012 IL App (1st)
100632, ¶ 13. Under the FOIA public records are presumed to be open and accessible
(Heinrich v. White, 2012 IL App (2d) 110564, ¶ 8), and courts liberally construe the act to
achieve the goal of “provid[ing] the public with easy access to government information”
(Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 416 (2006)).
While “[t]he FOIA may not be used to violate individual privacy rights or disrupt the proper
work of a governmental body beyond its responsibilities under the Act,” a public body “must
comply with a valid request for information unless one of the narrow statutory exemptions
set forth in section 7 of the FOIA applies.” Watkins, 2012 IL App (1st) 100632, ¶ 13. It is the
public body’s burden to prove by clear and convincing evidence that the requested records fall
within any claimed exemption. 5 ILCS 140/11(f) (West 2012). The public body meets this
burden by providing “a detailed justification for its claimed exemption, addressing the
requested documents specifically and in a manner allowing for adequate adversary testing.”
(Emphasis in original and internal quotation marks omitted.) Day v. City of Chicago, 388 Ill.
App. 3d 70, 74 (2009).
-6-
¶ 20 This appeal requires us to interpret the term “LEADS data” as defined in section
1240.30(b)(3) of Title 20 of the Administrative Code. We interpret administrative regulations
in the same manner that we would interpret a statute. Arellano v. Department of Human
Services, 402 Ill. App. 3d 665, 673 (2010). “[O]ur primary aim is to give effect to the
drafters’ intent, and the best indicator of that intent is the regulation’s language, given its
plain and ordinary meaning.” Arellano, 402 Ill. App. 3d at 673. Construction of a regulation
presents a question of law, which we review de novo. Nelson v. Kendall County, 2014 IL
116303, ¶ 22. De novo review is also appropriate because the trial court dismissed BGA’s
complaint pursuant to section 2-619(a)(9) of the Code. Nelson, 2014 IL 116303, ¶ 22. “[A]
section 2-619 motion admits the legal sufficiency of the claims but raises defects, defenses,
or other affirmative matter, appearing on the face of the complaint or established by external
submissions, that defeats the action.” (Internal quotation marks omitted.) Lucas v. Prisoner
Review Board, 2013 IL App (2d) 110698, ¶ 13. In reviewing the trial court’s order, we
consider the pleadings and the affidavits in the light most favorable to BGA, as the
nonmoving party. Lucas, 2013 IL App (2d) 110698, ¶ 14.
¶ 21 The sheriff relies exclusively on section 7(1)(a) of the FOIA, which exempts from
disclosure “[i]nformation specifically prohibited from disclosure by federal or State law or
rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West 2012).
This court has held that, even if a statute does not specifically provide that records are
exempt from disclosure under the FOIA or otherwise contain an explicit prohibition against
public disclosure, records are nevertheless exempt “where the plain language contained in a
State or federal statute reveals that public access to the records was not intended.” Kibort v.
Westrom, 371 Ill. App. 3d 247, 256 (2007). On the other hand, section 7(1)(a) does not apply
“where a state or federal statute is ambiguous or silent in regard to the disclosure of public
records.” Kibort, 371 Ill. App. 3d at 256.
¶ 22 LEADS is “a statewide, computerized telecommunications system designed to provide
services, information, and capabilities to the law enforcement and criminal justice
community in the State of Illinois.” 20 Ill. Adm. Code 1240.10(a) (1999). “To connect to
LEADS, an agency must have computer hardware and computer software, and be connected
to a communications link to the LEADS Data Center in Springfield.” 20 Ill. Adm. Code
1240.40(a) (1999). “The Director of the State Police (Director) is responsible for establishing
policy, procedures, and regulations consistent with State and federal rules, policies, and law
by which LEADS operates.” 20 Ill. Adm. Code 1240.10(b) (1999).
¶ 23 The regulations contemplate either “ ‘[f]ull access’ ” or “ ‘[l]ess than full access’ ” to
“LEADS data and services.” 20 Ill. Adm. Code 1240.30(b)(2), (b)(5) (1999). “LEADS data”
is defined as “all data available through the LEADS computer” (20 Ill. Adm. Code
1240.30(b)(3) (1999)), and “LEADS services” refers to “A) providing access to LEADS files;
B) processing messages through LEADS; C) providing training and technical support to
LEADS users; and D) other LEADS-related services that may become available from the
Department” (20 Ill. Adm. Code 1240.30(b)(4)(A)-(D) (1999)). In order to have full access,
which is defined as “direct access to all LEADS data and services” (20 Ill. Adm. Code
1240.30(b)(2) (1999)), the candidate organization must qualify under one of the subsections
of section 1240.30(c)(1) and enter into a LEADS interagency agreement reflecting the rights
and duties of the parties (20 Ill. Adm. Code 1240.30(c)(1), (c)(2) (1999)). In contrast, less
than full access refers to “limited access to some LEADS data and services.” 20 Ill. Adm.
-7-
Code 1240.30(b)(5) (1999). LEADS agency personnel with either full access or less than full
access must undergo mandatory LEADS-user certification administered by the Department.
20 Ill. Adm. Code 1240.90(b)(1), (b)(2) (1999).
¶ 24 Additionally, “[e]ach LEADS participating agency shall comply with the LEADS access
security standards established by the Department.” 20 Ill. Adm. Code 1240.50(a) (1999). The
regulations specify certain personnel-security requirements, including a “[t]horough
background screening” for “terminal operators, programmers, and other persons employed or
utilized to effectuate access to or initiate transmission of LEADS and National Crime
Information Center (NCIC) information.” 20 Ill. Adm. Code 1240.50(b)(1) (1999). Persons
who are not of good character or who have been convicted of a felony are not permitted
LEADS access and may not provide maintenance or technical services at or near LEADS
equipment. 20 Ill. Adm. Code 1240.50(b)(2), (b)(3) (1999). The regulations provide that
“LEADS operators shall use the terminal only for those purposes for which they are
authorized” and that “[t]he individual receiving a request for criminal justice information
must ensure the person requesting the information is authorized to receive the data.” 20 Ill.
Adm. Code 1240.50(b)(4) (1999). Furthermore, “[e]ach LEADS agency must ensure that all
LEADS computer devices are placed in a location under the direct control and supervision of
authorized criminal justice personnel and are inaccessible to the public or persons not
qualified to either operate, view, or possess LEADS and/or NCIC transmitted or received
data.” 20 Ill. Adm. Code 1240.50(c) (1999). “The computer site and/or terminal area must
have adequate physical security to protect against any unauthorized personnel gaining access
to the computer equipment or to any of the stored data.” 20 Ill. Adm. Code 1240.50(c)
(1999).
¶ 25 Section 1240.80 regulates the dissemination of data obtained through LEADS and
provides as follows: “a) The LEADS network and LEADS data shall not be used for personal
purposes[;] b) Personal or unofficial messages shall not be transmitted[;] c) LEADS data
shall not be sold[;] [and] d) LEADS data shall not be disseminated to any individual or
organization that is not legally authorized to have access to the information.” 20 Ill. Adm.
Code 1240.80(a)-(d) (1999). The regulations provide that “[u]ser certification may be
suspended or revoked by the Department for violation or non-compliance with laws, rules,
regulations, or procedures.” 20 Ill. Adm. Code 1240.90(b)(9) (1999). The Department also
periodically audits each LEADS terminal agency and provides “a written analysis detailing
the findings, recommendations, discussions, and requirements for compliance generated by
the audit.” 20 Ill. Adm. Code 1240.100(a), (c) (1999). The available sanctions and the
required procedures depend on the severity of the violations. 20 Ill. Adm. Code 1240.110
(1999).
¶ 26 BGA argues that the sheriff is not specifically prohibited from disclosing information
regarding the subjects of Patrick’s LEADS searches, because such information is not
“LEADS data.” BGA focuses primarily on section 1240.30(b)(3), which defines “LEADS
data” as “all data available through the LEADS computer.” 20 Ill. Adm. Code 1240.30(b)(3)
(1999). From this definition, BGA extrapolates that there is a meaningful difference between
search input information (inquiry identifiers) and substantive information available through
the system (the results of those inquiries). According to BGA, the Department’s regulations do
not specifically prohibit the sheriff from disclosing records falling into the former category.
BGA proposes that, had “LEADS data” been intended to encompass inquiries to the LEADS
-8-
computer, the Department could have defined the term as information “submitted to or
available through the LEADS computer.”
¶ 27 Nothing in the regulations suggests that the Department intended to draw such a
distinction, and we hold that the regulations specifically prohibit the sheriff from disclosing
information regarding the inquiries performed by LEADS users. Even if BGA’s
interpretation of “LEADS data” is plausible when considering section 1240.30(b)(3) in
isolation, it does not hold up when viewing the regulations as a whole. “A fundamental
principle of statutory construction is to view all provisions of a statutory enactment as a
whole. Accordingly, words and phrases should not be construed in isolation, but must be
interpreted in light of other relevant provisions of the statute.” Southern Illinoisan, 218 Ill. 2d
at 415. Another provision of the regulations, which the parties do not address, indicates that
the Department does not distinguish between information transmitted through LEADS and
information stored in the system. Specifically, section 1240.50(c) provides:
“Each LEADS agency must ensure that all LEADS computer devices are placed
in a location under the direct control and supervision of authorized criminal justice
personnel and are inaccessible to the public or persons not qualified to either operate,
view, or possess LEADS and/or NCIC transmitted or received data. The computer
site and/or terminal area must have adequate physical security to protect against any
unauthorized personnel gaining access to the computer equipment or to any of the
stored data.” (Emphases added.) 20 Ill. Adm. Code 1240.50(c) (1999).
The regulations make clear that the public is not entitled to view or possess data that is
transmitted through, received through, or stored in LEADS. BGA insists that inquiry
identifier information is not “available through” the LEADS computer, because Jacobs’
second affidavit established that “the Illinois State Police can only identify a device
accessing the LEADS system by its assigned Call Directing Code *** and not the unique
identifiers of a certified user accessing the system.” However, even if Patrick’s personal
search history is not presently stored in the LEADS computer, it was, by its very nature, data
that was transmitted through the system. Section 1240.50(c) makes clear that the Department
intended for such information to be treated in the same manner as information received
through or stored in the system.
¶ 28 Another provision of the regulations, which the parties likewise do not address, renders
BGA’s interpretation of the definition of “LEADS data” questionable. Section 1240.50(b)
provides certain personnel-security requirements, including that “[t]he individual receiving a
request for criminal justice information must ensure the person requesting the information is
authorized to receive the data.” 20 Ill. Adm. Code 1240.50(b)(4) (1999). The regulations do
not define “criminal justice information.” However, information about which people or
vehicles have been the subjects of LEADS inquiries would seem to fall naturally within the
scope of that term. That the Department requires a showing of authority to receive “criminal
justice information”–a rather broad and undefined phrase–cuts against BGA’s argument that,
by defining “LEADS data” as it did in section 1240.30(b)(3), the Department intended to
make LEADS search histories accessible to the public.
¶ 29 The regulations, viewed in their entirety, reflect the Department’s intent to create a law
enforcement resource that is not open to public inspection. We cannot agree with BGA that,
by defining “LEADS data” as it did in section 1240.30(b)(3), the Department intended to
allow the public to know which suspects have been investigated by particular law
-9-
enforcement officers. Such a construction of “LEADS data” is neither necessary nor
reasonable in the context of regulations designed to prohibit rather than promote public
access to the LEADS system. It is readily apparent that public access to inquiry identifier
information was not intended and that the regulations do not treat such information
differently from other information stored in or accessible through the system.
¶ 30 BGA additionally argues that only LEADS records maintained by the Department, not
the sheriff’s public records, are exempt from disclosure as “LEADS data.” BGA claims that,
because Jacobs’ second affidavit established that Patrick’s search history cannot be identified
by means of the LEADS computer, such information is not “LEADS data.” We disagree with
BGA’s assessment. As we have previously explained, the information that BGA seeks–the
identities of the subjects of Patrick’s LEADS inquiries–is inherently “LEADS data”
prohibited from disclosure. The regulations do not distinguish between information
transmitted or received through LEADS and information stored in the system. Nor has BGA
brought to our attention any authority that would require a different result. BGA is not
entitled to Patrick’s search history, irrespective of whether such information is accessible
through the LEADS system or from records that the sheriff possesses.
¶ 31 The reasoning in at least one federal case supports by analogy that LEADS inquiry
identifier information is not subject to public disclosure. In Vazquez v. United States
Department of Justice, 887 F. Supp. 2d 114, 117 (D.D.C. 2012), the plaintiff filed an action
under the federal FOIA, seeking a log of NCIC transactions concerning himself. The
Department of Justice (DOJ) issued what is known as a “Glomar response,” refusing to
confirm or deny the existence of any responsive records, because doing so would cause harm
cognizable under an exception to the federal FOIA. Vazquez, 887 F. Supp. 2d at 116. The
DOJ based its response on 5 U.S.C. § 552(b)(7)(E), which exempts law enforcement records
from disclosure to the extent that production “would disclose techniques and procedures for
law enforcement investigations or prosecutions … if such disclosure could reasonably be
expected to risk circumvention of the law.” (Internal quotation marks omitted.) Vazquez, 887
F. Supp. 2d at 116. The DOJ filed a motion for dismissal and summary judgment, supported
by the affidavit of Kimberly Del Greco, who described the NCIC as a compilation of
“nineteen separate databases, all of which contain material compiled for law-enforcement
purposes.” (Internal quotation marks omitted.) Vazquez, 887 F. Supp. 2d at 117. She stated
that “NCIC transactions [are] performed[ ] in response to queries made by law enforcement
agencies regarding an individual” and that “while the public generally knows and
understands that law enforcement utilizes the NCIC databases to perform background checks
and/or other related checks … the details of those queries–including how they are executed,
what search terms are used, what[ ] passwords and clearances are required, and who has
authorization to run such queries[–]are not known to the public.” (Internal quotation marks
omitted.) Vazquez, 887 F. Supp. 2d at 117. The district court found that Del Greco’s affidavit
“established the threshold requirement that the responsive records be compiled for law
enforcement purposes” and showed that “utilization of the NCIC database constitutes a
‘procedure[ ] for law enforcement investigations’ covered by exemption 7(E).” Vazquez, 887
F. Supp. 2d at 117 (quoting 5 U.S.C. § 552(b)(7)(E) (2006)).
¶ 32 Del Greco additionally explained the nature of the harm from having to confirm or deny
the existence of the requested records:
- 10 -
“[P]ublic confirmation of NCIC transactions would alert individuals that they are the
subject of an investigation as well as reveal[ ] the identity of the investigative agency.
With this information, individuals could modify their criminal behavior, thereby
preventing detection by law enforcement agencies and risking circumvention of the
law. [Citation.] In other words, persons knowing that they are being investigated by a
law enforcement entity, which the requested information would reveal, could
reasonably be expected to use the information to circumvent the law. Conversely, a
person with knowledge that there have been no NCIC checks run against him, and
hence, that he is not on law enforcement’s radar[,] could reasonably be expected to
continue to engage in unlawful endeavors with renewed vigor.” (Internal quotation
marks omitted.) Vazquez, 887 F. Supp. 2d at 117-18.
Based on this affidavit, the district court found that the DOJ justified its assertion of harm
from confirming or denying the existence of the requested records, and the court granted
summary judgment in favor of the DOJ. Vazquez, 887 F. Supp. 2d at 118. The court of
appeals summarily affirmed in an unpublished order, concluding that the district court
“properly granted the government’s renewed motion for summary judgment with respect to
information withheld under Freedom of Information Act exemption 7(E) [citation] and did
not abuse its discretion in denying reconsideration of that judgment.” Vazquez v. United
States Department of Justice, No. 13-5197, 2013 WL 6818207, * 1 (D.C. Cir. Dec. 18, 2013)
(per curiam).
¶ 33 According to the Illinois Criminal Justice Information Authority’s website
(http://www.icjia.state.il.us/iijis/public/index.cfm?metasection=strategicplan&metapage=sjis
_leads (last visited Oct. 6, 2014)), LEADS users are able to access NCIC through LEADS.
See also 20 Ill. Adm. Code 1240.50(b)(1) (1999) (requiring background checks for “terminal
operators, programmers, and other persons employed or utilized to effectuate access to or
initiate transmission of LEADS and National Crime Information Center (NCIC)
information”). As federal courts have determined that the public is not entitled to information
regarding NCIC inquiries, it makes sense that this same type of information is not accessible to
the public through LEADS.
¶ 34 Furthermore, we reject BGA’s argument that our interpretation creates an absurd result
by allowing the state law designed to prevent abuse of the LEADS system to be used to
shield such abuses from disclosure. The regulations indeed establish, in no uncertain terms,
that LEADS users may not use the network or data for personal purposes (20 Ill. Adm. Code
1240.80(a) (1999)) and that such misuse may result in sanctions (20 Ill. Adm. Code
1240.90(b)(9) (1999)). However, as previously explained, the Department periodically audits
LEADS terminal agencies, and the Department has implemented sanctions and procedures
for addressing noncompliance with its policies. 20 Ill. Adm. Code 1240.110 (1999). As the
trial court aptly noted: “There is nothing to prevent the appropriate body, properly authorized
to access the LEADS system, from investigating any alleged improper uses. The
aforementioned construction merely finds that entities such as the BGA are not the proper
organizations to undertake such an investigation because the investigation requires access to
sensitive information to which the legislative body saw fit to restrict access.”
¶ 35 Finally, BGA argues that the trial court erred in concluding that “a FOIA response to
BGA’s inquiries is not possible” because Jacobs’ second affidavit showed that the
Department “would not be able to determine which inquiries, if any, were submitted by
- 11 -
Patrick.” We need not address BGA’s argument on this point in light of our holding that
BGA is not entitled to disclosure of the subjects of Patrick’s LEADS searches.
¶ 36 III. CONCLUSION
¶ 37 The judgment of the circuit court of Du Page County is affirmed.
¶ 38 Affirmed.
- 12 -