In Johnson v. Joliet Police Department, 2018 IL App (3d) 170726, the Third District Appellate Court ruled that personnel records that are more than four years old are exempt from disclosure under the Illinois Freedom of Information Act (“FOIA”), despite language in the Personnel Records Review Act (“the Review Act”) suggesting that they could be subject to disclosure.

Johnson delivered a FOIA request to the Police Department seeking an employee’s disciplinary history.  The Police Department responded, in part, by stating that the records were exempt under FOIA because of another state law: Section 8 of the Review Act, which provides that an employer shall delete records of disciplinary action that are more than four-years-old before turning such records over to a third party.  The Police Department also responded that it had no record of citizen complaints filed against the employee.  Johnson wrote another letter to the Police Department arguing that the Review Act was construed to not apply to FOIA requests.  In a second letter, the Police Department told Johnson that it did not possess records responsive to his request.

Johnson then sued in circuit court.  He argued that the Review Act did not apply to FOIA requests.  The Police Department filed a motion to dismiss, arguing that the Review Act prevented it from delivering the requested records.  The circuit court granted the motion and dismissed the complaint.

The appellate court affirmed.  It began by finding that the requested records were contemplated by Section 8 of the Review Act.  However, Johnson argued that Section 11 of the Review Act required disclosure because it states that it shall not be construed to diminish a right of access to records otherwise provided by law, provided that the disclosure of performance evaluations under FOIA shall be prohibited.  Addressing Johnson’s argument, the court interpreted the meaning of Section 11 of the Review Act. Under the tenets of statutory construction, the court noted that it must ascertain the legislature’s intent by giving effect to all of the provisions of a statute such that none are rendered superfluous.  For this reason, the court determined that FOIA’s provision, which mentions the Review Act by name, must take precedence over the general construction guidance found in Section 11 of the Review Act.

In reaching this conclusion, the court distinguished two appellate court cases concerning the disclosure of citizen complaint registers, which were found not to be disciplinary records for purposes of FOIA.  The court acknowledged that Fraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago, 2016 IL App (1st) 143884, stated that the type of disciplinary records discussed in Section 8 of the Review Act could be disclosed under FOIA.  In the court’s view, that statement was not essential to the holding of that case.  The court refused to read that statement to hold that the Review Act supersedes FOIA.

This case clarifies that records of disciplinary action are exempt from disclosure under FOIA and the Review Act if they are more than four-years-old.  At the same time, the court also recognizes that its conclusion differs from another court’s interpretation of the statute.  A full clarification of the interaction between the Review Act and FOIA may involve additional interpretation by the courts. While the courts continue to address this issue, public bodies should follow all FOIA procedures when denying FOIA requests involving disciplinary reports.  This case in particular highlights the need for public bodies to cite all available exemptions from disclosure to preserve their rights in the event of further litigation over a FOIA request.