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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;

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

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
enforcement personnel or any In contrast to Section 7( 1)( c), a public body is not
other person."

required to obtain the advance approval of the Public Access Counselor before asserting Section
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 of FOIA ( 5 ILCS 140/ 1. 2), "[ a] ll records in the custody or possession of a
to be to inspection or Section 1. 2 further requires that
public body are presumed open copying."
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
whether stricter regulation of firearms is necessary.... Disclosure of
well as determining
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 privacy pursuant to Section 7(
of personal 1)( c). In support of its argument, ISP cites
Mager v. 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
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
tasers. 430 ILCS 65/ 1 ( Emphasis added.)

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
domestic battery.
whether they have been convicted of battery, assault or
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 pre-
authorization 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
FOID information about his alleged victim. This Office did not analyze the Form for Pre-
Approval pursuant to Section 7( 1)( d)( vi). 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
establishes that disclosure might endanger the lives of individuals and law
alleged victim
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

[email protected]

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."