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FOID Letter - 10313 Rfr f Pb Ex Improper Sa

FOID Letter - 10313 Rfr f Pb Ex Improper Sa

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OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

March 1, 2011

Mr. John Hosteny
Legal Counsel

Illinois State Police

John_ Hosteny@i sp. state. i1. us
Re: FOIA Request for Review 10313

Dear Mr. Hosteny:

The Office of the Public Access Counselor ( Office) has reviewed the Request for Review

submitted to this Office by John O' Connor, a reporter for the Associated Press ( referred to

collectively as the AP) and the responsive documents submitted by the Illinois State Police.
Background

On September 24, 2010, Mr. O' Connor submitted a Freedom of Information Act (FOIA) request

to the Illinois State Police ( ISP) seeking the following information regarding Firearm Owner' s
Identification (FOID) cards issued by ISP:
1. The name of the cardholder;
and

2. The effective date of each cardholder' s FOID card ( or the date on which it expired);

3. Any weapons classifications, such as whether a cardholder is approved to carry a
certain type of weapon.

Pursuant to Section 9. 5( b) of FOIA ( 5 ILCS 140/ 9. 5( b), added by Public Act 96- 542, effective

January 1, 2010), a public body that receives a request for records and asserts that the records are
exempt from disclosure under, inter alia, Section 7( 1)( c) of FOIA, is required to provide written

notice of its intention to deny the request in whole or in part to both the requester and the Public
Access Counselor. On October 21, 2010, ISP submitted to the Public Access Counselor a

ISP indicated in its

response

letter that it

possesses no

documents

responsive

to

Item 3.

Mr. John Hosteny
March I, 2011 Page 2

document

entitled "

Form For Pre- Approval

of

Use

of

Exemption 7( 1)(

c) and

7( 1)( f)" ( Form for

Pre- Approval) with respect to the AP' s request.

Section 7( 1)( c) of FOIA ( 5 ILCS 140/ 7( 1)( c), as amended by Public Act 96- 542, effective

January 1, 2010) exempts from inspection and copying "[ p] ersonal 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." Id. The exemption defines "[ u] nwarranted invasion of personal privacy" as " 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." Id.

On October 29, 2010, the Public Access Counselor responded to ISP' s Form For Pre- Approval and denied ISP' s request to withhold the records pursuant to Section 7( 1)( c).

On November 5, 2010, the AP forwarded to the Public Access Counselor a denial letter it received from ISP explaining that ISP was withholding the requested information pursuant to
Section 7( 1)(
c) and

Section 7( 1)( d)( vi)

of

FOIA ( 5 ILCS 140/ 7( 1)( d)( vi)), which exempts from

inspection and copying " information that would endanger the life or physical safety of law
In contrast to Section 7( 1)( c), a public body is not required to obtain the advance approval of the Public Access Counselor before asserting Section
enforcement personnel or

any

other person."

7( 1)( d)( vi).

This Office initiated further review on November 16, 2010. On December 8, 2010, this Office
received ISP' s response letter together with a representative sample of the FOID card information that it seeks to withhold? The Office forwarded a copy of ISP' s response to the AP
on December 29, 2010.
Analysis Under Section 1. 2
public

of

FOIA ( 5 ILCS 140/ 1. 2), "[
to be
open

a] ll records in the custody or possession of a
or

body

are presumed

to inspection

copying."

Section 1. 2 further requires that

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." Id. ISP has not disputed that the records in
question are " public records" to which the provisions of FOIA apply. Rather, ISP has asserted that the records are subject to exemption from inspection or production under Section 7.

Specifically, ISP asserts that disclosure of the name and expiration date would result in a clearly
unwarranted invasion of the personal privacy of the cardholders and endanger their lives or
physical safety.

2 The document that ISP seeks to withhold is entitled" Illinois State Police Information& Technology Command FOLD Card Holders." The document includes the name of the FOLD card owner, the expiration date of the card, the FOLD card number and the card owner' s home address and telephone number. ISP may redact the home address and telephone number pursuant to Section 7( 1)( b) of FOIA( 5 ILCS 140/ 7( 1)( b)) which exempts from disclosure private information. The FOLD card number, however, is not a unique identifier under Section 7( 1)( b) and must be
disclosed
to the

AP

as

ISP has

not presented a

basis for withholding

the card number.

Mr. John Hosteny
March 1, 2011

Page 3

Section 7( 1)( c)

The first step of the analysis under Section 7( 1)( c) is to determine if the requested information is highly personal or its disclosure would be objectionable to a reasonable person. Only when the
information is found to be highly personal or its disclosure objectionable to a reasonable person

does the public body need to consider the second step in the analysis and determine whether " the subject' s right to privacy outweighs any legitimate public interest in obtaining the information."
The Illinois appellate courts have not yet considered whether the disclosure of the names of

individuals registered to own firearms constitutes an invasion of privacy under Section 7( 1)( c). Illinois courts have recognized, however, that because Illinois' FOIA statute is based on the

Federal FOIA statute, decisions construing the latter, while not controlling, may provide helpful and relevant precedents in construing the State Act. Margolis v. Directors, Illinois Dep. of Revenue, 180 Ill.App.3d 1084, 1087, appeal denied, 126 I11. 2d 560 ( 1989).
Under the Federal FOIA, courts have concluded that the disclosure of the names of handgun purchasers does not amount to an invasion of privacy. Center to Prevent Handgun Violence v.

U.S. Department of Treasury, 981 F. Supp.20, 24 ( D.D.C. 1997); City of Chicago v. United States Department of Treasury, 287 F. 3d 628 ( 7th Cir. 2002) opinion vacated on other grounds, 423 F. 3d 777, 779- 80 ( 7th Cir. 2005) ( City of Chicago I).3 In City of Chicago I, the City submitted a
FOIA request to the United States Department of Treasury, Bureau of Alcohol Tobacco and

Firearms ( ATF) seeking records on firearm traces and multiple sales both nationwide and in
Chicago from 1992 to the present. City of Chicago I, 287 F. 3d at 632. ATF partially denied the
request and withheld the names and addresses of manufacturers, dealers, purchasers and

possessors from the Trace Database and the Multiple Sales Database under Sections ( B)( 6), 7( A)
and

7( C)

of

the Federal FOIA ( 5 U. S. C.

§ 552 ( B)( 6), ( B)( 7)( A)

and (

B)( 7)( C)).

Id. The City

subsequently filed suit against the ATF seeking disclosure of the information. City of Chicago I,
287 F. 3d at 636.

ATF argued that disclosure of the information would interfere with active law enforcement

proceedings, intimidate witnesses and constitute an unwarranted invasion of personal privacy for
handgun
purchasers.

Id.

With regard to whether the individual names and addresses in the

records were protected from disclosure under Section ( B)(6) of the Federal FOIA because

disclosure would constitute a clearly unwarranted invasion of personal privacy, the Court held:

Mn the instant case, the City seeks records pertaining to gun buyers and sellers. It is
well-established that one does not possess any privacy interest in the purchase of a

firearm. See, e. g., Ctr. to Prevent Handgun Violence v. United States Dept. of Treasury,
981 F. Supp. 20, 23 ( D. D. C. 1997).

Firearms manufacturers, dealers and purchasers are

3The Court ultimately vacated its decision in City of Chicago I, 287 F. 3d 628, because Congress enacted new

legislation explicitly making the data at issue in the FOIA request" immune from legal process." City of Chicago v.
United States Department of Treasury, 423 F.3d 777, 779- 80 ( 7th Cir. 2005). In reviewing the new legislation, the
Court did not change its previous analysis that Federal FOR required the disclosure of the data, but held that Congress' enactment " amount[ ed] to a change in substantive FOIA law in that it exempts from disclosure data
previously
available

to the public under FOIA."

Id. at 781.

Mr. John Hosteny
March 1, 2011
Page 4

on notice that records of their transactions are not confidential and are subject to

regulatory inspection. United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32
L.Ed.2d 87 ( 1972) ( holding that when authorized by the Gun Control Act, a warrantless
inspection
of a gun

dealer'

s storeroom

does

not violate

the Fourth Amendment).

Unlike

the Washington Post Co. case, the names and addresses requested here are not of such a sensitive nature that their disclosure could harm or embarrass the individual. ( City of
Chicago I, 287 F. 3d 628, 636.)

The Court next considered whether the records were exempt under Section (B)( 7)( C) of Federal

FOIA because disclosure " could reasonably be expected to constitute an unwarranted invasion of
personal

privacy.'

City of Chicago I, 287 F. 3d at 636 ( quoting 5 U.S. C. Section 552( B)( 7)( C)).

In examining first whether a privacy interest would be implicated by the release of the records,
the Court concluded:

We agree with the district court that the release of the requested names and addresses

does not raise any legitimate privacy concerns because the purchase of a firearm is not a private transaction. See, e.g., Ctr. To Prevent Handgun Violence, 981 F. Supp. at 23- 24.
The Gun Control Act requires that a transaction for the sale of a firearm be recorded and

every dealer is required to make business records available to investigation. Again, every
purchaser of a firearm is on notice that their name and address must be reported to state and local authorities and ATF. Id; Biswell, 406 U.S. at 316, 92 S. Ct. 1593. As a result,

there can be no expectation of privacy in the requested names and addresses. ( City of
Chicago 1, 287 F. 3d at 637.)

The Court then went on to find that even if a minimal privacy interest existed with regard to

disclosure of the information, that interest was substantially outweighed by the public' s interest
in disclosure:

Inherent in the City' s request for records is the public' s interest in ATF' s performance of its statutory duties of tracking, investigating and prosecuting illegal gun trafficking, as
well as

determining

whether stricter regulation of

firearms is necessary....

Disclosure of

the records sought by the City will shed light on ATF' s efficiency in performing its duties
and directly serve FOIA' s purpose in keeping the activities of government agencies open

to the sharp eye of public scrutiny. (City of Chicago I,287 F. 3d at 637.)
Illinois law also recognizes that disclosure of a name furnished in a license application does not

amount to an invasion of personal privacy. Schessler v. Department of Conservation, 256
Ill. App. 3d 198 (
4th

Dist.

1994).

In Schessler, the requester sought information related to

applications for a live pigeon shoot. Specifically, the requester sought ( 1) the name of the person

or the organization sponsoring the event, ( 2) the date of the proposed pigeon shoot, ( 3) the
location of the event, and ( 4) the name of the owner of the property on which the pigeon shoot

would be held. Schessler, 256 I11. App.3d at 199- 200. The Department withheld the information
on the basis that disclosure " would constitute a clearly unwarranted invasion of personal

privacy." Id at 200. The Court concluded that disclosure of the information would not amount to
a

clearly

unwarranted

invasion

of personal

privacy. Id

at

201.

Mr. John Hosteny
March 1, 2011 Page 5

ISP contends that the decision to own a firearm is a personal decision and that disclosure of the
names of FOID cardholders and the expiration date of the cards amounts to an unwarranted
invasion Mager
v.

of personal

In support of its argument, ISP cites 1)( c). privacy pursuant to Section 7( Michigan State Police, 460 Mich. 134 ( Mich. 1999). In Mager, a citizen sought the

names, addresses and telephone numbers of people who had been issued a pistol safety certificate. Mager, 460 Mich. at 136. The Court concluded that gun ownership is information of

a " personal nature" and that " disclosure of this information would " clearly constitute an invasion
of personal privacy." Mager, 460 Mich. at 146- 147.

Here, unlike Mager, home addresses and telephone numbers are specifically protected from
disclosure under Section 7( 1)( b) of FOIA ( 5 ILCS 140/ 7( 1)( b)), which exempts from inspection

and copying " private information" pursuant to Section ( 2(c- 5)) of FOIA (5 ILCS 140/2( c- 5)). The
FOID card information that the AP seeks is limited to the names of FOID cardholders and the

expiration date of each card. In reviewing the representative sample supplied to this Office by
ISP, we conclude that the request and the responsive records are distinct from the records sought
in Mager.

The Firearm Owners Identification Card Act
Under the Firearm Owners Identification Card Act ( 430 ILCS 65/ 1
et

seq.) ( FOID Card Act),

when applying for a FOID card, an individual must provide ISP with information that will be
entered into a database. The FOID Card Act sets forth the requirements that the firearm owner,
ISP, and local law enforcement agencies must follow with regard to firearm ownership.
Section 1 of the FOID Card Act( 430 ILCS 65/ 1) provides:

It is hereby declared as a matter of legislative determination that in order to promote
andprotect the health, safety and welfare of the public, it is necessary and in the public
interest to provide a system of identifying persons who are not qualified to acquire or

possess firearms, firearm ammunition, stun guns, and tasers within the State ofIllinois

by the establishment of a system of Firearm Owner's Identification Cards, thereby
establishing a practical and workable system by which law enforcement authorities will

be afforded an opportunity to identify those persons who are prohibited by Section 24- 3. 1
tasers. 430 ILCS 65/ 1 ( Emphasis added.)

of the " Criminal Code of 1961," as amended, from acquiring or possessing firearms and
firearm ammunition and who are prohibited by this Act from acquiring stun guns and

Section 4 of the FOID Card Act (430 ILCS 65/ 4) requires an applicant to submit information to

ISP that it will rely upon in determining whether the applicant is eligible to own a firearm.4
4 Under Section 4, an applicant must submit information concerning whether they are over 21; if they are under 21, whether they have parental consent; whether they have been convicted of a misdemeanor, adjudicated as a

delinquent or convicted of a felony; whether they are addicted to narcotics; whether they are lawfully in the United
States; whether they have been in a mental institution in the past 5 years; whether they are mentally retarded; and
whether

they have

been

convicted of

battery,

assault or

domestic

battery.

Mr. John Hosteny
March 1, 2011

Page 6

In its letter, ISP argues that:

The clear intent of Section 65/ 1 was to allow law enforcement officers the opportunity to

identify those individuals who, for various reasons, should be prohibited from possessing
firearms, firearm ammunition, stun guns and/ or tasers, and conversely, identify those who

would be allowed to legally qualify for a FOID Card and possess such devices. It is law
enforcement officers, not the general public, who are charged with the duty to protect the

health, safety, and welfare of the general public under Section 65/ 1. The PAC's preauthorization determination letter asserts that the public' s interest in obtaining this

information outweighs an individual' s right to privacy based on Section 65/ 1, but clearly the opposite is true. Section 65/ 1 inherently protects an individual' s right to privacy by

only allowing the release of this information to law enforcement officers as part of their
legitimate law enforcement duties.

Contrary to ISP' s argument, there is no indication in the FOID Card Act that the name of the
cardholder and the expiration date was intended to be kept confidential and available only to law
enforcement. ISP further argues that because an applicant is required to submit information about his or her mental health and medical conditions, disclosure of the names of cardholders

would constitute an unwarranted invasion of personal privacy. The fact that a license applicant
must submit personal information as part of the application, however, does not create a privacy interest in the license itself. Moreover, the AP did not request mental health or medical information and ISP' s responsive documents do not include this type of information. Individuals

choose to apply for a FOID card and, as part of the process, are aware that they are submitting
detailed information to ISP.

As the court in City of Chicago I noted:

The Gun Control Act requires that a transaction for the sale of a firearm be recorded and

that every dealer is required to make business records available to investigation. Again, every purchaser of a firearm is on notice that their name and address must be reported to
state and local authorities and ATE. As a result, there can be no expectation of privacy

in the requested names and addresses. City ofChicago I, 287 F. 3d 628, 637. Based on this analysis, disclosure of the names of FOID cardholders and the expiration date of
the FOID card cannot be characterized as highly personal or objectionable to the reasonable person. Moreover, just as in the ATF records at issue in City of Chicago I, the General

Assembly has clearly determined that it is in the public interest to provide a system for identifying those who are qualified to acquire or possess firearms through the issuance of FOID

cards. The public, therefore, has a legitimate interest in ISP' s enforcement of the FOID Card Act. If, for example, a FOID cardholder becomes ineligible under Section 4 or if that individual
falsified his or her application, there exists a legitimate public interest in knowing whether ISP' s

database continues to authorize that individual to maintain a FOID card.5 Therefore, even if
5 Section 8 of the FOID Card Act( 430, ILCS 65/ 8) sets forth the requirements that would disqualify a cardholder.
The public has a legitimate interest in assessing whether these provisions are effective and whether a cardholder who is disqualified by statute to own a firearm will be noted as such in ISP' s database.

Mr. John Hosteny
March 1, 2011 Page 7

disclosure of the names and expiration of FOID card owners did constitute an unwarranted

invasion of personal privacy, this fact is outweighed by the public interest that exists in ensuring
the integrity of ISP' s database.

Finally, ISP relies on two recent United States Supreme Court decisions that addressed the issue
of an individual' s right to possess a firearm pursuant to the Second Amendment of the United

States Constitution. Neither District of Columbia v. Heller, 554 U. S. 570, 128 S. Ct. 2783
2008),
nor

McDonald

v.

City

of Chicago, _ U. S _,

130 S. Ct.3020 ( 2010), however, is applicable

here. In Heller, the Court held that the Second Amendment protected an individual' s right to possess a firearm. Heller, 554 U. S. at 595, 128 S. Ct., 2799. Further, McDonald held that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment right found in Heller. McDonald v. City of Chicago, 130 S. Ct. at 3050. These decisions addressed the

constitutionality of an individual' s right to own a firearm and not whether public disclosure of
the names of individuals who possess a FOID card amounts to an invasion of personal privacy.
Section 7( 1)( d)( vi)

ISP also argues that the names of the FOID cardholders and the expiration dates on the cards are exempt from disclosure under Section 7( 1)( d)( vi) because releasing this information would
endanger the life of individuals both named and not named in the records.

In City of Chicago I, the ATF argued that release of the records might threaten the safety of an

individual or interfere with a law enforcement investigation. City of Chicago I, 287 F.3d at 634. The Court concluded that ATF' s assertion that disclosure of these records would endanger lives or interfere with an investigation was speculative, and that as a government agency, ATF was
required to show beyond mere conclusory statements how disclosure of such records would

interfere with a pending law enforcement proceeding. City of Chicago I, 287 F. 3d at 635.
ISP argues that disclosure of the names of individuals who are FOID cardholders would

endanger their lives by making them targets of a home invasion. ISP also contends that disclosure of these documents could lead a third party to discover who does not own a handgun

by the omission of a name. Like the ATF' s arguments in City ofChicago I, ISP' s arguments are
purely speculative. Additionally, ISP' s arguments are even less compelling than the arguments

rejected in City of Chicago I because the addresses and telephone numbers of FOID cardholders
and applicants must be withheld by ISP pursuant to Section 7( 1)( b) of FOIA.

ISP also points to a previously issued determination letter from this Office, No. 2010 PAC 8727. In that matter, ISP submitted a Form for Pre-Approval seeking to withhold certain information
pursuant

to Section 7( 1)(

c).

The requester was an arrestee who sought the arrest reports and
vi).

FOID information about his alleged victim. This Office did not analyze the Form for PreApproval
pursuant

to

Section 7( 1)( d)(

Instead, the Office determined that disclosure of

information regarding ownership or registration of a firearm did not amount to an invasion of
privacy under Section 7( 1)( c).

ISP' s suggestion that this example of an arrestee seeking FOID card information concerning his
alleged victim establishes

that disclosure

might

endanger

the

lives

of

individuals

and

law

Mr. John Hosteny
March 1, 2011 Page 8

enforcement officers in response to this FOIA request is speculative and conclusory. In its Form
for Pre-Approval for 2010 PAC 8727, ISP presented no specific evidence in support of its assertion that disclosure of this information would result in an unwarranted invasion of personal

privacy or endanger the life and safety of the alleged victim.6 The facts presented in No. 2010
PAC 8727 do not change our analysis of Section 7( 1)( c) or Section 7( 1)( d)( vi) in the context of this FOIA request. ISP has offered no details to support its argument that disclosure of this

information to the AP would result in a safety threat to any individual.

ISP' s hypothetical

scenarios regarding other possible circumstances in which FOIA might be used as a tool to seek
information about FOID cardholders do not satisfy the clear and convincing evidence standard
required under Section 1. 2 as to the AP' s FOIA request.
Findings and Conclusions

After full review and consideration, this Office concludes that ISP has not met its burden with regard to Section 7( 1)( c) and Section 7( 1)( d)( vi) and must disclose the requested documents to
the

AP.

Should

you

have any

questions,

please

contact

me

at

(

312)

814- 5383.

This

correspondence shall serve to close this file. Sincerely,

Matthew C. Rogina

Assistant Public Access Counselor

cc:

Mr. John O' Connor

joconnor@ap.org
Sgt. Kelly Walter
Illinois State Police

Kelly_Walter@isp. state.il.us Trooper Kerry Sutton
Freedom of Information Act Officer
Illinois State Police

Kerry_S utton@i sp. state. il.us

6 In its Form for Pre- Approval for No. 2010 PAC 8727, ISP stated that" releasing the information would disclose an

individual' s personal decision whether to apply for a FOLD card, or seek to possess or firearm or firearm
ammunition in Illinois. Recent U. S. Supreme Court decisions have upheld an individual' s personal right to own or

possess firearms under the Second Amendment. The decision to exercise an individual' s right under the Second

Amendment is a personal matter, and each cardholder' s rightto privacy outweighs any interest in disclosing this
information to the
public."

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