While seemingly similar, whether your information is considered “personal” or “private” under the Freedom of Information Act (“FOIA”) determines whether the exemption can be waived. Most of those familiar with FOIA responses are aware that you can redact specific pieces of information contained in records based on the statutory exemptions in the statute.
Two of the more commonly used exemptions are for “private information” and “personal information contained within public records, the disclosure of which could constitute a clearly unwarranted invasion of personal privacy…” See, 5 ILCS 140/7(1)(b) and (c).
Section 7(1)(b) of FOIA defines “private information” as “unique identifiers, including a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses.” 5 ILCS 140/7(1)(b). In contrast, the “personal information” exemption applies to material that constitutes an “[u]nwarranted invasion of personal privacy” which is 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.” 5 ILCS 140/7(1)(c). Of note, FOIA provides that the “personal information” exemption can be waived “if consented to in writing by the individual subjects of the information.” Id. There is no similar waiver provision for the “private information” exemption.
These exemptions were compared and contrasted in Brewer v. City of Chicago. 2023 Ill. App. 1st 22059-U (the case has not been published but does provide guidance). In Brewer, an inmate sent a 2016 FOIA request for the arrest report, booking report, and property receipt for his case. The Chicago Police Department responded and provided the investigation file with certain redactions. When Brewer made a similar request in 2018, he also requested that statements attributed to a certain witness be unredacted and included a waiver from that individual. Eventually, Brewer narrowed his request to that witness’ phone records. CPD denied the request and stated that the records were properly redacted under Section 7(1)(b) of FOIA. Brewer sued and the CPD prevailed at the trial court. On appeal, the Appellate Court ruled that CPD properly redacted the telephone numbers.
The Court noted the general rule that when the legislature includes specific language in one part of a statute, but omits it from another, courts should conclude that the legislature intended the distinction. Here, that means because Section 7(1)(c) includes a waiver and Section 7(1)(b) does not, the logical determination would be that the legislature did not intend to permit a party to waive the “private information” exemption.
While this may be a somewhat unique situation, public bodies are reminded that the language of FOIA is strictly interpreted. Both the legislature and courts have made it clear that public bodies are to broadly interpret requests and narrowly interpret exemptions. Public bodies may not regularly see requests that include third-party waivers, but it is not unusual for an individual to provide a waiver for his own information. Brewer should remind everyone that those waivers are only valid for “personal information” under Section 7(1)(c). Private information is always private
The attorneys at Airdo Werwas, LLC are available to consult with you on any matter involving your FOIA. If you have any questions or concerns about any issue involving FOIA, or any other local government matter, please do not hesitate to contact Michael Airdo at mairdo@airdowerwas.com or 312-506-4480.