delivered the opinion of the court:
This consolidated appeal involves requests for data made by plaintiff-appellant National Association of Criminal Defense Lawyers (NACDL) under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2006)). NACDL requested the data used to assemble a legislatively mandated study of eyewitness identification procedures by the Chicago police department, the Joliet police department
I. BACKGROUND
In 2003, the Illinois General Assembly passed section 107A — 10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/107A — 10 (West 2006)). This legislation directed the Illinois State Police to conduct a one-year pilot study in the field on the effectiveness of the sequential method for lineup procedures. Under the sequential method, a witness is shown lineup participants one at a time and must state whether the individual shown is the perpetrator of the crime before viewing the next lineup participant. Moreover, the lineup administrator must be someone who does not know which participant is the suspect. 725 ILCS 5/107A — 10(c)(2) (West 2006). The traditional lineup procedure involves the simultaneous viewing of all lineup participants, and the lineup administrator usually knows which participants are suspects and which participants are “fillers,” i.e., persons who are not suspects themselves but bear a physical resemblance to the suspect. The statute directed the Illinois State Police to select three police departments to participate in the study (725 ILCS 5/107A — 10(b) (West 2006)) and Chicago, Joliet and Evanston were selected. The study was conducted in 2004 and 2005.
The program director of the Illinois study released a report of the study’s findings on March 17, 2006. The report concluded that the Illinois data did not bear out the research experiments that suggest that sequential, double-blind lineups produce a lower rate of known false identifications. Instead, the study found that the sequential, double-blind procedures resulted in an overall higher rate of known false identifications than did the simultaneous lineups. The five categories in particular for which the study concluded that the sequential, double-blind procedures may produce a higher rate of false identifications are: (1) child witnesses, (2) older witnesses, (3) cross-racial identifications, (4) multiple perpetrators, and (5) suspects who do not match the description because of a change in appearance.
The Chicago police department (CPD) denied the request, stating that it did not have some of the requested documents and claiming that the remaining documents were exempt from disclosure under the law enforcement exemption of FOIA (5 ILCS 140/7(1) (c), (l)(d) (West 2006)). The Joliet police department (JPD) disclosed some of the requested documents, stated that it did not have some of the requested documents, and claimed that the remaining documents were exempt from disclosure under the privacy and law enforcement exemptions of FOIA (5 ILCS 140/7(1)(b), (l)(c)(i), (l)(c)(viii) (West 2006)). The Evanston Police Department also denied the request, and the Illinois State Police produced some documents but declined to produce documents belonging to the various police departments. NACDL filed lawsuits in Cook and Will Counties against the four police agencies, seeking to compel production of the requested documents. The Evanston Police Department reached an agreement early on in the litigation with NACDL to provide the requested documents with redactions and is not a party to this appeal. The Illinois State Police remains a party in the Chicago case, but is taking no active role in the litigation and informed NACDL that it will comply with any applicable court order regarding the disclosure of the documents in its possession from the designated police departments.
CPD filed a motion for summary judgment with supporting materials. CPD asserted that the requested documents were exempt from production because their release would (1) constitute an invasion of both public and personal privacy, (2) interfere with pending law enforcement proceedings, (3) obstruct ongoing criminal investigations, and (4) disclose information specifically prohibited from disclosure under federal and state law, citing sections 7(l)(a), (b) and (c) of FOIA (5 ILCS 140/7(l)(a), (l)(b)(v), (l)(c)(i), (l)(c)(vi), (l)(c)(viii) (West 2006)). Moreover, the research required to determine whether each matter remained pending would constitute an undue burden pursuant to section 3(f) of FOIA (5 ILCS 140/3(0 (West 2006)).
In support of its motion, CPD submitted the affidavits of Officer Matthew Sandoval and Lieutenant James Gibson. Sandoval stated that he had conducted a random sampling of 10 cases used in the study and his sample research indicated that of the 250 investigations involved in the study,
NACDL filed a cross-motion for summary judgment, explaining that the police data was necessary to advance an ongoing public debate about the problem of erroneous eyewitness identifications in criminal investigations. NACDL submitted the affidavits of Rob Warden, executive director of the Northwestern University School of Law Center on Wrongful Convictions, Norman Reimer, NACDL’s executive director, and professor Nancy Steblay, a social psychologist with expertise in eyewitness identification research whom NACDL retained as a consultant.
Warden is a specialist in legal affairs, focusing primarily on wrongful convictions. He noted that in 59.3% of the documented wrongful convictions in Illinois since 1900, or 54 out of 91 known cases, eyewitness identification was the principal prosecution evidence. Warden stated that erroneous eyewitness identification is by far the most prevalent factor in wrongful convictions. Moreover, wrongful convictions entail enormous social costs, e.g., 601 years collectively behind bars for the 54 men and women known to have been wrongfully convicted and $39 million for taxpayers in just three civil rights actions stemming from these convictions. Warden explained that the results of the study have had a profound effect on public policy in Illinois, making it unlikely that the Illinois General Assembly will act to reform police identification procedures. Reimer provided examples of situations in which opponents of reforming lineup procedures have used the results of the study to support the use of traditional lineup procedures. Steblay stated that the results of the study contradicted decades of scientific research. The study has also been criticized in the scientific community for flaws in its design and methodology and a panel of researchers declared it unreliable as a basis for determining effective eyewitness identification procedures. Steblay further stated that she is acting as a consultant to NACDL without a consulting fee. Her role as a consultant is not to promote one lineup
Oral arguments were scheduled on the parties’ cross-motions for summary judgment, and the court recommended that the parties consider settling the case under an agreement whereby the CPD would provide NACDL with the requested, redacted police records subject to a protective order prohibiting their dissemination. The parties were unable to reach an agreement; however, during settlement negotiations, NACDL learned that there had been a misunderstanding regarding the scope of its FOIA request. NACDL also learned that the researchers had not had access to all of the police records concerning the investigations that were included in the study but had been furnished with a form summarizing the outcome of the lineups and some limited documentation from individual investigations. CPD had interpreted the request to include only those documents to which the researchers had access (report data). This misunderstanding led to the filing of supplemental arguments and evidence by both parties.
NACDL submitted a second affidavit of Steblay, in which she explained why a meaningful critique of the study required access to all of the records in order to determine whether important identification history had been excluded from the study. CPD submitted the affidavit of assistant corporation counsel Amber Ritter, in which she estimated that redacting the full police file for each investigation included in the study would take 170 hours.
In the Joliet case, NACDL filed a motion for summary judgment that was identical to the motion it filed in the Chicago case. JPD responded, submitting the affidavits of Officer Robert Puleo and Deputy Police Chief Patrick Kerr. Puleo estimated that it would take 197 person hours to redact the 257 police files that had been included in the study. Kerr’s affidavit was similar to the Gibson affidavits that were submitted in the Chicago case. He stated that the disclosure of the requested documents “could very well” interfere with ongoing police investigations. He further stated that the release of the police reports would constitute an invasion of privacy of the victims and witnesses involved.
In the Chicago case, the circuit court analyzed open and closed investigations separately, and also distinguished the report data from the remaining information contained in the police investigation files. With respect to the open files, the court determined that these files were exempt under section 7(1) (c) of FOIA (5 ILCS 140/7(1) (c) (West 2006)), relying on Gibson’s affidavits. For the closed files, CPD agreed to produce the report data with all personal identifying information redacted. This left three unresolved issues with respect to the closed files: (1) redaction of the faces from the photographs of lineup participants, (2) redaction of the RD numbers, and (3) production of the remaining information in the police investigation files. The court found that the privacy interests of the lineup participants outweighed the interests of NACDL and the public in viewing the photographs and ruled that CPD could redact the faces in the photographs. However, the court ruled that CPD could not redact the RD numbers because closed files are already in the public record so the release of a number that would allow NACDL to match a police file to a specific case would not constitute an invasion of privacy. Finally, the court ruled that the production of information in the police investigation files that was not part of the report data would impose a substantial burden on CPD, and that the public interest in the data did not outweigh the burden of redacting the documents.
NACDL filed notices of appeal in the First District in the Chicago case and in the Third District in the Joliet case. NACDL then filed a motion in the Illinois Supreme Court to transfer the Joliet case to the First District and consolidate the appeals. The Illinois Supreme Court granted the motion on December 4, 2008. This consolidated appeal follows.
II. ANALYSIS
Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 2004); State Farm Mutual Automobile Insurance Co. v. Coe,
CPD challenges this court’s jurisdiction over the Joliet case on the grounds that a denial of summary judgment is not a final and appeal-able order, citing Central Illinois Light Co. v. Home Insurance Co.,
“An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof.” R.W. Dunteman Co. v. C/G Enterprises, Inc.,
We now turn to the issues on appeal. FOIA declares that it is “the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” 5 ILCS 140/1 (West 2006).
The legislature recognized that even with such a policy certain documents should not be disclosed, and it dedicated section 7 of FOIA to exemptions. This section provides, in relevant part:
“(1) The following shall be exempt from inspection and copying:
(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy ***. *** Information exempted under this subsection (b) shall include but is not limited to:
(v) information revealing the identity of persons who file complaints with or provide information to *** law enforcement *** agencies;
* * *
(c) Records compiled by any public body for administrative enforcement proceedings and any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public body, but only to the extent that disclosure would:
(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency;
* * *
(iv) unavoidably disclose the identity of a confidential
source or confidential information furnished only by
the confidential source;
(v) disclose unique or specialized investigative techniques other than those generally used and known ***;
(vi) constitute an invasion of personal privacy under subsection (b) of this Section;
(vii) endanger the life or physical safety of law enforcement personnel or any other person; or
(viii) obstruct an ongoing criminal investigation.” 5 ILCS 140/7 (West 2006).
Finally, FOIA provides:
“Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions.” 5 ILCS 140/3(f) (West 2006).
NACDL first contends that the trial courts in both cases erred in holding that the affidavits submitted by CPD and JPD were sufficient to invoke the law enforcement and privacy exemptions in case files involving ongoing investigations. After the circuit courts in both cases ruled on this issue, this court issued an opinion in Day v. City of Chicago,
CPD concedes that after Day, the affidavits submitted are insufficient to support its claim that the documents are protected under the law enforcement and privacy exemptions of FOIA. However, because the circuit courts ruled that the production of documents outside of the report data in the closed cases would be unduly burdensome, CPD asks this court to extend that rationale to all documents in the open investigations. If this court should conclude that production of the documents would not be unduly burdensome, CPD asks this court to remand for an in camera review of the documents to determine whether the law enforcement and privacy exemptions apply. To avoid undue burden on the circuit court, CPD suggests that the circuit court limit its review to those files that contain some marker indicating that production of the documents would obstruct the investigation, e.g., cases in which there is a living perpetrator still at large. CPD further suggests that the circuit court may limit its review to a sample of the documents.
NACDL asks this court to reverse the circuit courts outright and order the police agencies to submit the requested data in open cases with redactions. NACDL contends that records in which all identifying information is redacted will not yield information that would threaten the safety of a witness or provide information to an at-large suspect. Alternatively, NACDL asks this court to require that the police agencies review the requested records, perform the redactions, and present to the court for in camera inspection any specific records for which they believe there is a reasonable possibility that disclosure even with redactions could obstruct or impede law enforcement.
We agree with both parties that the affidavits submitted to the circuit courts were insufficient to satisfy the burden
On remand, the parties should presume that all requested documents in the open investigations are to be produced, subject to the agreed redactions. The burden is on the police agencies to demonstrate on a case-by-case basis specifically how a particular witness could be in danger or how an individual investigation could be compromised if a document is disclosed in which all identifying information has been redacted. Moreover, any affidavits submitted in support of a statutory exemption must conform to the level of specificity required in Day. However, we note that our supreme court has indicated that while summary judgment would be appropriate without in camera review if the affidavits show with reasonable specificity why the documents fall within the claimed exemption, in camera review is the most effective way for the public body to objectively demonstrate that the exemption claimed does, in fact, apply. Illinois Education Ass’n v. Illinois State Board of Education,
We reverse the orders of the circuit courts granting summary judgment in favor of the police agencies for documents in open investigations. We remand for the police agencies to review the files and determine which documents, if any, meet the statutory exemptions even after the agreed redactions are made. Those documents should then be presented to the circuit court for an in camera inspection to determine whether the exemptions do, in fact, apply.
Next, NACDL contends that the circuit courts erred in holding that the faces in the photographic lineups are exempt from disclosure because their release would constitute an unwarranted invasion of personal privacy. NACDL argues that once all personal identifying information is removed from the photographs, the persons who typically act as fillers in lineups will have only a minimal privacy interest in the photographs. CPD argues that there is a stigma associated with “mug shots” and that the faces in the photographs could be recognized and identified even if all personal identifying information is redacted.
On the other hand, the degree of invasion of personal privacy is insignificant. First, we reject CPD’s characterization of the photos as “mug shots.” The persons who act as fillers in lineups may be police officers, individuals in jail, or civilians. There is no way for anyone to tell by looking at the photographic lineup which category any given individual falls into when all identifying information has been redacted. Second, civilians and police officers who act as fillers have voluntarily consented to have their photographs viewed by strangers and possibly introduced as evidence in criminal cases and therefore can have no expectation of personal privacy in the photos. The only conceivable privacy interest at stake is that of the individuals in jail who have not necessarily consented to the use of their photographs in the lineups. However, even if it would be possible to determine which fillers are individuals who are or were in jail, the likelihood that someone viewing the photographs will recognize a photo and link that person to a separate case in which he or she may be a suspect or may have been charged is remote; therefore the degree of invasion of personal privacy does not outweigh the remaining factors. Thus, we conclude that the release of the photos with all identifying information redacted does not constitute an unwarranted invasion of personal privacy. We also note that the Evanston police department has released the photographic lineups with the photos intact and only the identifying information redacted.
Finally, NACDL contends that the circuit courts erred in holding that the production of documents from the police files in closed cases outside of the report data would create an undue burden on the police agencies. NACDL argues that the circuit courts understated the public interest in disclosure of the records while overvaluing the burden that redaction would impose on the police agencies. CPD contends that NACDL is requesting the entire investigatory file for each case, including many documents that do not even relate to identification procedures, and states that redacting all of these documents would be a massive undertaking. Moreover, CPD argues that if it is required to produce the same information for the open investigations, the burden will include the redaction of the report data in addition to the investigative files. At oral argument, counsel for CPD estimated that redacting these files will take approximately 150 hours or 20 personnel days. Also, the individual responsible for making the redactions will need to consult with detectives on a case-by-case basis. NACDL responds that it is only requesting those documents in the investigation files that pertain to eyewitness identification,
As an initial matter, we note that FOIA contains a specific requirement for the party seeking to claim the undue burden exemption. “Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions.” 5 ILCS 140/3(f) (West 2006). Our review of the record does not disclose any evidence that the police agencies sought to confer with NACDL in an attempt to reduce the request prior to the circuit court’s ruling that the undue burden exemption applied to certain documents. There is also no evidence that the police agencies contacted NACDL to discuss ways to reduce the request before seeking to invoke the undue burden exemption before this court. CPD states in its brief that the burden on the agency “cannot be alleviated by narrowing the request,” however, it does not provide any support for this assertion. In fact, NACDL notes in its reply brief that the police agencies involved in this appeal never conferred with NACDL regarding their claim that compliance would be unduly burdensome and never attempted to explore whether there would be any way to satisfy NACDL’s request by producing only the relevant portions of the investigation files. For this reason alone, it appears that the police agencies have not complied with FOIA and cannot claim the undue burden exemption. However, we will still consider whether the circuit court erred in determining that the burden on the agencies outweighed the public interest.
In order for the exemption to apply, compliance must be unduly burdensome, there must be no way to narrow the request, and the burden on the public body must outweigh the public interest in the information. 5 ILCS 140/3(f) (West 2006). As discussed above, the police agencies have never attempted to see if the request can be narrowed, and NACDL has stated in its brief that most of the additional information it is requesting from the police files can be found in two reports. NACDL further stated that, with dialogue between the parties, it believes agreements could be reached to narrow the range of documents to be redacted. Indeed, the Evanston police department was able to reach an agreement with NACDL to produce all of the requested documents with redactions. Moreover, the public interest at stake in obtaining these documents is significant, both for the people of Illinois and for people across the country who are considering the results of the Illinois study. Wrongful convictions on the basis of mistaken eyewitness identification impose a huge cost on society in addition to the cost imposed on the individual who is wrongfully convicted. One such cost that has not been highlighted in the affidavits or briefs is that if the wrong person is convicted, the actual perpetrator is still at large and continues to pose a danger to society. If an examination of the data used in the study confirms that the results were correct, it allows researchers to focus on other possible methods of reform for identification procedures. If, however, an examination of the data discloses flaws in the study methodology or design, reform based on the sequential, double-blind identification procedures is still a possibility in Illinois, as well as in other states that have been considering such reform. As emphasized in the affidavit submitted by Steblay, the controversial results of the study cannot be analyzed
The importance of the public interest at stake is further demonstrated by an amicus curiae brief filed in support of NACDL by: The Innocence Network; the Northampton (Mass.) police department; Captain Kenneth Patenaude of the Northampton police department; Sergeant Paul Carroll (retired), formerly of the Chicago police department; Steven D. Penrod, Department of Psychology, John Jay College of Criminal Justice; D. Michael Risinger, Seton Hall University School of Law; Jon B. Gould, Chair, Innocence Commission for Virginia and Director, Center for Justice, Law & Society, George Mason University; Maurice Possley, freelance journalist; and Laura Spinney, freelance journalist. The brief argues that without the necessary scientific review of this study, which requires access to the requested documents, the development of research in this crucial field will be hampered, progress in dealing with the problem of mistaken eyewitness identification will be stalled, and, even more tragically, this stalled progress will lead to additional wrongful convictions based on erroneous eyewitness identifications.
CPD cites several cases in support of its argument that the undue burden exemption applies. CPD’s reliance on these cases is misplaced. In Farley v. Worley,
A request that is overly broad and requires the public body to locate, review, redact and arrange for inspection a vast quantity of material that is largely unnecessary to the appellants’ purpose constitutes an undue burden. American Federation of Government Employees, Local 2782 v. United States Department of Commerce,
We do not agree with the circuit court that “several weeks of full-time work by [CPD] personnel who need to possess a high level of knowledge and sophistication” is sufficiently burdensome to outweigh the important public interest at stake here. The results of this study have garnered nationwide attention on an issue of vital importance to our criminal justice system.
III. CONCLUSION
For the foregoing reasons, we affirm the circuit courts’ grant of summary judgment in favor of NACDL requiring production of the report data in the closed cases. We reverse the circuit courts’ grant of summary judgment in favor of the police departments protecting the report data and investigative files in the open cases and remand for further proceedings consistent with this opinion. We reverse the circuit courts’ grant of summary judgment in favor of the police departments protecting the investigative files in the closed cases. Finally, we reverse the circuit courts’ grant of summary judgment in favor of the police departments protecting the faces in the photographic lineups.
No. 1 — 08—2073, Affirmed in part and reversed in part; cause remanded with directions.
No. 1 — 08—3414, Affirmed in part and reversed in part; cause remanded with directions.
O’BRIEN and NEVILLE, JJ., concur.