                             2014 IL App (2d) 140071
                                  No. 2-14-0071
                          Opinion filed November 6, 2014
______________________________________________________________________________

                                            IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

BETTER GOVERNMENT ASSOCIATION,         ) Appeal from the Circuit Court
                                       ) of Du Page County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 13-MR-958
                                       )
JOHN E. ZARUBA, as Sheriff of Du Page  )
County,                                ) Honorable
                                       ) Terence M. Sheen,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

          JUSTICE ZENOFF delivered the judgment of the court, with opinion.
          Justices Birkett and Spence concurred in the judgment and opinion.

                                           OPINION

¶1        Plaintiff, Better Government Association (BGA), appeals from the dismissal of its

complaint seeking production of certain records from defendant, John E. Zaruba, as sheriff of Du

Page County (the sheriff), pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et

seq. (West 2012)).     Specifically, BGA requested records disclosing the vehicles and persons

who were the subjects of Law Enforcement Agencies Data System (LEADS) inquiries conducted

by Patrick Zaruba, the sheriff’s teenage son. The trial court concluded that this information was

exempt from disclosure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 2012)) and

that a FOIA response to BGA’s inquiries was not possible.       For the reasons that follow, we

affirm.
2014 IL App (2d) 140071


¶2                                      I. BACKGROUND

¶3     On June 28, 2012, BGA filed in the circuit court of Cook County its verified complaint

for declaratory and injunctive relief against the sheriff.   The case was subsequently transferred

to the circuit court of Du Page County on the sheriff’s motion.

¶4     BGA alleged that on May 29, 2012, it submitted FOIA requests to the sheriff, seeking the

following:

               “1) Copies of any and all documents relating to Patrick Zaruba’s access to

       LEADS or other law enforcement databases.         (Examples of such documents are Patrick

       Zaruba’s LEADS application and other supporting materials.)

               2) Copies of documents sufficient to show the names of any and all persons who

       because of their affiliation with the Du Page County Sheriff’s office have become

       certified to use LEADS even though they’re not sheriff’s office employees, from Jan. 1,

       2010, to present.   (Examples of such persons are interns, Explorer scouts and ride-along

       participants.)

               3) Copies of documents sufficient to show any and all written communication

       between the Illinois State Police and the Du Page County Sheriff’s office relating to

       LEADS and/or Patrick Zaruba, from May 21, 2012, to present.             (Examples of such

       communication include emails and letters.)”

On May 31, 2012, BGA submitted another FOIA request for “[c]opies of documents sufficient to

show the vehicles and persons that were the subjects of LEADS inquiries conducted by Patrick

Zaruba, from November 2010 to present.”

¶5     On June 4, 2012, the sheriff responded as follows to BGA’s requests:




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                 “I am unable to supply any information that is responsive to your Freedom of

          Information request.   LEADS is a system controlled by [the] Illinois State Police.    You

          would need to contact them for information/confirmation of any certified user.     You will

          also need to contact ISP for documentation of what persons/vehicles were the subjects of

          inquires [sic] made by any certified user.    As for written communication between ISP

          and the Du Page County Sheriff’s Office related to LEADS and or Patrick Zaruba from

          5/21/12 to 5/29/12, I do not have information responsive to that request.”

¶6        According to the complaint, in violation of section 9 of the FOIA (5 ILCS 140/9 (West

2012)), the sheriff’s response failed to state any statutory basis for denying the first, second, and

fourth categories of requests; identify any FOIA exemption; include a detailed factual basis for

the application of any exemption; or inform BGA of its rights to judicial review and review by

the Public Access Counselor.         BGA alleged that it contacted the sheriff’s FOIA officer

regarding these purported deficiencies in the sheriff’s response, but was told that the sheriff

declined to revisit his position.     In count I, BGA sought a declaration of its right to the

requested documents, a declaration that the sheriff’s actions were willful, intentional, and done in

bad faith, and an award of civil penalties.   BGA sought injunctive relief in count II.

¶7        On October 2, 2013, the sheriff filed a motion to dismiss the complaint pursuant to

section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West

2012)).     The sheriff argued that he was “not able to legally comply” with BGA’s requests,

invoking section 7(1)(a) of the FOIA, which exempts public bodies from producing

“[i]nformation specifically prohibited from disclosure by federal or State law or rules and

regulations implementing federal or State law.”        5 ILCS 140/7(1)(a) (West 2012).     The sheriff

represented that, in addition to his June 4, 2012, response to BGA’s requests, on July 19, 2012,



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2014 IL App (2d) 140071


an assistant State’s Attorney had forwarded to BGA copies of (1) an agreement dated March 3,

2008, between the Illinois Department of State Police (Department) and the Du Page County

sheriff’s office regarding LEADS access (the Agreement) and (2) Patrick’s certificate of

completion for a course entitled “LEADS Less Than Full Access.”             Although neither the

Agreement nor the certificate is included in the record on appeal, the sheriff represented in his

motion to dismiss that section VI of the Agreement provided:

       “All data supplied through LEADS is strictly forbidden to be used for personal reasons.

       It is strictly forbidden to sell any information obtained to any individuals, organization,

       government agency or corporation.          It is strictly forbidden to disseminate any

       information obtained through LEADS to any individual organization that is not legally

       authorized to have access to that information.”

The sheriff insisted that he would breach the Agreement if he were to provide the requested

records to BGA. Moreover, he argued that disclosure was prohibited by the Department’s

regulations, which are codified in the Illinois Administrative Code and provide that “LEADS data

shall not be disseminated to any individual or organization that is not legally authorized to have

access to the information” (20 Ill. Adm. Code 1240.80(d) (1999)) and that a violation may result in

suspension of LEADS service (20 Ill. Adm. Code 1240.110 (1999)). The sheriff supported his

motion with the affidavit of Darlene A. Jacobs, the LEADS statewide coordinator for the

Department. She asserted that the information BGA requested, “should it exist,” could not be

released by the sheriff in light of the Administrative Code and the Agreement.

¶8     In its response to the motion, BGA argued that none of the requests sought either

information “obtained through LEADS” or “LEADS data” so as to implicate the Agreement or

the Administrative Code. BGA noted that the regulations define “LEADS data” as “all data



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2014 IL App (2d) 140071


available through the LEADS computer” (20 Ill. Adm. Code 1240.30(b)(3) (1999)), emphasizing

that it was “seeking requests made by Patrick to the LEADS system, not personal information or

data obtained from the LEADS system.”             (Emphases in original.)      Accordingly, BGA

attempted to distinguish between the results of Patrick’s searches, which it recognized would

constitute “LEADS data,” and the subjects of Patrick’s LEADS inquiries, which it argued would

not.   Additionally, BGA argued that the Agreement was not a basis for an exemption under

section 7(1)(a) of the FOIA, because the Agreement was neither a law nor a rule or regulation

implementing the law.     Moreover, BGA argued, the Agreement and the Administrative Code

did not specifically prohibit the sheriff from disclosing public records relating to unauthorized

LEADS inquiries.       In BGA’s words, “[t]he Sheriff cannot hide behind agreements or

administrative regulations designed to prevent unauthorized access to the LEADS system in

order to conceal such unauthorized access.” (Emphases in original.)

¶9      In his reply brief in support of the motion to dismiss, the sheriff apparently abandoned his

argument premised on the Agreement, but continued to insist that he properly withheld “LEADS

data” as that term is used in the regulations.    He submitted a second affidavit from Jacobs, in

which she asserted the following:

               “That on November 22, 2010, Patrick Zaruba successfully completed the course

        entitled ‘LEADS Less Than Full Access’ through the [Department’s] Learning

        Management System (LMS).         As a result of his completion of this course, Patrick

        Zaruba was LEADS operator certified and authorized to access LEADS through

        November 22, 2012.

               That in order to inquire on a person through the LEADS system, the LEADS

        operator will submit inquiry identifiers of last name, first name, middle initial, sex, and



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2014 IL App (2d) 140071


       date of birth and/or their driver’s license number into the LEADS System.         Once this

       information is submitted into the LEADS system it is LEADS data and part of the

       complete LEADS record maintained by the Illinois State Police.

               That through LEADS 2000, the Illinois State Police can only identify a device

       accessing the LEADS system by its assigned Call Directing Code (CDC) and not the

       unique identifiers of a certified user accessing the system.

               That the Illinois Administrative Code Title 20, Part 1240.80 prohibits the

       dissemination of LEADS data to any individual and/or organization that is not legally

       authorized to have access to the information and the Better Government Association is

       not legally authorized to receive LEADS data.”

Accordingly, the sheriff argued, “the Illinois State Police does not distinguish between

information input into the LEADS system and any other information contained in the system.”

(Emphasis in original.)   The sheriff insisted that he could not provide the requested information

to BGA without “intentionally violating the Illinois Administrative Code and thereby subjecting

[himself] to a potential suspension of all or a portion of LEADS services.”

¶ 10   The sheriff also contended that Jacobs’ affidavit demonstrated that “the Illinois State

Police is not able to confirm what, if any, inquiries were made by Patrick Zaruba,” because “the

Illinois State Police can only identify what device the request comes from and not who is using

the device.”   Finally, the sheriff emphasized that there was no evidence that Patrick had used

the LEADS system, let alone for an improper purpose, noting that the Department had not

restricted Patrick’s access to the system or suspended the sheriff’s office’s use of the system due

to any violation.




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¶ 11   On December 18, 2013, the parties appeared before the court for its ruling on the motion

to dismiss.   During the brief hearing, BGA suggested that there was a question of fact as to

whether any of the records responsive to the FOIA requests qualified as “LEADS data.”      It also

argued that, because Jacobs averred in her second affidavit that the LEADS system could not

link specific inquiries to Patrick, BGA did not seek information “available through the LEADS

computer.” Therefore, BGA argued, it was entitled to discovery to determine whether there

were any responsive records available from the sheriff rather than through the LEADS computer.

¶ 12   In a written order, the court granted the sheriff’s motion to dismiss, concluding that the

Administrative Code prohibited the sheriff from disseminating the requested information.      The

court reasoned that the “broad terms” of the regulations “indicate intent to limit all information

in the LEADS system to people with the proper authorization.”            Additionally, the court

described as “a fallacy” BGA’s argument that Patrick’s input information was not “LEADS

data.” The court noted that, according to Jacobs’ second affidavit, “once inquiry identifier

information is submitted to LEADS, it is LEADS data and part of the complete LEADS record

maintained by the Illinois State Police.”       Furthermore, the court explained, interpreting

“LEADS data” to include input information was consistent with the intent of the regulations,

because the “expansive” definition of “LEADS data” is “not limited to data that can be drawn

from the system about a particular subject,” but, instead, is “all data available through the

LEADS computer.” The court added: “Assuming it is possible to query who Patrick Zaruba

looked up in the system (which no evidence has been submitted to prove this is even possible),

one would presumably need to obtain this information by going to a LEADS computer and

accessing the system.”   Accordingly, the court found that such information was “made available

‘through the LEADS computer’ ” (quoting 20 Ill. Adm. Code 1240.30(b)(3) (1999)).



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2014 IL App (2d) 140071


¶ 13   The court also addressed BGA’s argument that the court’s interpretation would lead to an

absurd result.    The court explained that, while it was “true that the regulation at issue was

created, in part, to prevent use of the LEADS system for personal purposes,” there was “nothing

to prevent the appropriate body, properly authorized to access the LEADS system, from

investigating any alleged improper uses.” Under the court’s interpretation, “entities such as the

BGA are not the proper organizations to undertake such an investigation because the

investigation requires access to sensitive information to which the legislative body saw fit to

restrict access.” Moreover, the court found that there was “no evidence to suggest that Patrick

Zaruba utilized LEADS for an improper purpose,” so “it would be difficult to argue that denying

BGA access to the requested records allows the [sheriff] to protect Patrick’s abusive practices by

using anti-abuse regulations.”

¶ 14   Finally, the court found that it was not possible for the sheriff to produce records

reflecting Patrick’s LEADS inquiries:

                 “One final salient point noted by the [sheriff] is that the information sought by

       BGA does not exist.       ***   According to Darlene Jacobs, the Illinois State Police can

       only use the LEADS system to identify a device accessing the LEADS system by its

       assigned Call Directing Code and not the unique identifies [sic] of a certified user

       accessing the system.     ***   That is, even if the applicable regulations did not operate to

       deny BGA’s access, the Illinois State Police would not be able to determine which

       inquiries, if any, were submitted by Patrick Zaruba.         As such, a FOIA response to

       BGA’s inquiries is not possible.”

¶ 15   BGA timely appeals.

¶ 16                                       II. ANALYSIS



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2014 IL App (2d) 140071


¶ 17   On appeal, BGA argues that only LEADS records maintained by the Department, not the

sheriff’s public records, are exempt from disclosure. BGA also contends that the term “LEADS

data,” as used in the Department’s regulations, encompasses only data available through the

LEADS computer, not inquiries submitted to the LEADS computer.                   Additionally, BGA

suggests that the trial court’s interpretation of the regulations had the absurd effect of allowing

the state law designed to prevent abuse of the LEADS system to be used to shield such abuses

from disclosure.    Finally, BGA argues that the court erred in concluding, without allowing

BGA to conduct discovery, that the requested records did not exist.

¶ 18   At the outset, we note that BGA has specifically challenged on appeal the trial court’s

ruling only as it relates to the request for “[c]opies of documents sufficient to show the vehicles

and persons that were the subjects of LEADS inquiries conducted by Patrick Zaruba, from

November 2010 to present.” Accordingly, we will not consider the propriety of the trial court’s

order as it relates to any of BGA’s other FOIA requests.     See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,

2013) (points not argued in the appellant’s brief are forfeited).

¶ 19   The purpose of the FOIA is “to open governmental records to the light of public scrutiny.”

(Internal quotation marks omitted.) Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13.

Under the FOIA public records are presumed to be open and accessible (Heinrich v. White, 2012

IL App (2d) 110564, ¶ 8), and courts liberally construe the act to achieve the goal of “provid[ing]

the public with easy access to government information” (Southern Illinoisan v. Illinois

Department of Public Health, 218 Ill. 2d 390, 416 (2006)). While “[t]he FOIA may not be used to

violate individual privacy rights or disrupt the proper work of a governmental body beyond its

responsibilities under the Act,” a public body “must comply with a valid request for information

unless one of the narrow statutory exemptions set forth in section 7 of the FOIA applies.”



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2014 IL App (2d) 140071


Watkins, 2012 IL App (1st) 100632, ¶ 13. It is the public body’s burden to prove by clear and

convincing evidence that the requested records fall within any claimed exemption. 5 ILCS

140/11(f) (West 2012). The public body meets this burden by providing “a detailed justification

for its claimed exemption, addressing the requested documents specifically and in a manner

allowing for adequate adversary testing.” (Emphasis in original and internal quotation marks

omitted.) Day v. City of Chicago, 388 Ill. App. 3d 70, 74 (2009).

¶ 20    This appeal requires us to interpret the term “LEADS data” as defined in section

1240.30(b)(3) of Title 20 of the Administrative Code.      We interpret administrative regulations in

the same manner that we would interpret a statute.       Arellano v. Department of Human Services,

402 Ill. App. 3d 665, 673 (2010).    “[O]ur primary aim is to give effect to the drafters’ intent, and

the best indicator of that intent is the regulations’ language, given its plain and ordinary meaning.”

Arellano, 402 Ill. App. 3d at 673. Construction of a regulation presents a question of law,

which we review de novo.      Nelson v. Kendall County, 2014 IL 116303, ¶ 22. De novo review

is also appropriate because the trial court dismissed BGA’s complaint pursuant to section

2-619(a)(9) of the Code. Nelson, 2014 IL 116303, ¶ 22. “[A] section 2-619 motion admits the

legal sufficiency of the claims but raises defects, defenses, or other affirmative matter, appearing

on the face of the complaint or established by external submissions, that defeats the action.”

(Internal quotation marks omitted.) Lucas v. Prisoner Review Board, 2013 IL App (2d) 110698,

¶ 13.   In reviewing the trial court’s order, we consider the pleadings and the affidavits in the

light most favorable to BGA, as the nonmoving party.       Lucas, 2013 IL App (2d) 110698, ¶ 14.

¶ 21    The sheriff relies exclusively on section 7(1)(a) of the FOIA, which exempts from

disclosure “[i]nformation specifically prohibited from disclosure by federal or State law or rules

and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West 2012).              This



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2014 IL App (2d) 140071


court has held that, even if a statute does not specifically provide that records are exempt from

disclosure under the FOIA or otherwise contain an explicit prohibition against public disclosure,

records are nevertheless exempt “where the plain language contained in a State or federal statute

reveals that public access to the records was not intended.” Kibort v. Westrom, 371 Ill. App. 3d

247, 256 (2007). On the other hand, section 7(1)(a) does not apply “where a State or federal

statute is ambiguous or silent in regard to the disclosure of public records.” Kibort, 371 Ill. App.

3d at 256.

¶ 22   LEADS is “a statewide, computerized telecommunications system designed to provide

services, information, and capabilities to the law enforcement and criminal justice community in

the State of Illinois.” 20 Ill. Adm. Code 1240.10(a) (1999). “To connect to LEADS, an agency

must have computer hardware and computer software, and be connected to a communications link

to the LEADS Data Center in Springfield.” 20 Ill. Adm. Code 1240.40(a) (1999). “The Director

of the State Police (Director) is responsible for establishing policy, procedures, and regulations

consistent with State and federal rules, policies, and law by which LEADS operates.” 20 Ill.

Adm. Code 1240.10(b) (1999).

¶ 23   The regulations contemplate either “ ‘[f]ull access’ ” or “ ‘[l]ess than full access’ ” to

“LEADS data and services.” 20 Ill. Adm. Code 1240.30(b)(2), (b)(5) (1999). “LEADS data” is

defined as “all data available through the LEADS computer” (20 Ill. Adm. Code 1240.30(b)(3)

(1999)), and “LEADS services” refers to “A) providing access to LEADS files; B) processing

messages through LEADS; C) providing training and technical support to LEADS users; and D)

other LEADS-related services that may become available from the Department” (20 Ill. Adm.

Code 1240.30(b)(4)(A)-(D) (1999)). In order to have full access, which is defined as “direct

access to all LEADS data and services” (20 Ill. Adm. Code 1240.30(b)(2) (1999)), the candidate



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2014 IL App (2d) 140071


organization must qualify under one of the subsections of section 1240.30(c)(1) and enter into a

LEADS interagency agreement reflecting the rights and duties of the parties (20 Ill. Adm. Code

1240.30(c)(1), (c)(2) (1999)). In contrast, less than full access refers to “limited access to some

LEADS data and services.” 20 Ill. Adm. Code 1240.30(b)(5) (1999). LEADS agency personnel

with either full access or less than full access must undergo mandatory LEADS-user certification

administered by the Department. 20 Ill. Adm. Code 1240.90(b)(1), (b)(2) (1999).

¶ 24   Additionally, “[e]ach LEADS participating agency shall comply with the LEADS access

security standards established by the Department.” 20 Ill. Adm. Code 1240.50(a) (1999). The

regulations specify certain personnel-security requirements, including a “[t]horough background

screening” for “terminal operators, programmers, and other persons employed or utilized to

effectuate access to or initiate transmission of LEADS and National Crime Information Center

(NCIC) information.” 20 Ill. Adm. Code 1240.50(b)(1) (1999). Persons who are not of good

character or who have been convicted of a felony are not permitted LEADS access and may not

provide maintenance or technical services at or near LEADS equipment. 20 Ill. Adm. Code

1240.50(b)(2), (b)(3) (1999). The regulations provide that “LEADS operators shall use the

terminal only for those purposes for which they are authorized” and that “[t]he individual

receiving a request for criminal justice information must ensure the person requesting the

information is authorized to receive the data.”         20 Ill. Adm. Code 1240.50(b)(4) (1999).

Furthermore, “[e]ach LEADS agency must ensure that all LEADS computer devices are placed in

a location under the direct control and supervision of authorized criminal justice personnel and are

inaccessible to the public or persons not qualified to either operate, view, or possess LEADS

and/or NCIC transmitted or received data.”        20 Ill. Adm. Code 1240.50(c) (1999).        “The

computer site and/or terminal area must have adequate physical security to protect against any



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unauthorized personnel gaining access to the computer equipment or to any of the stored data.”

20 Ill. Adm. Code 1240.50(c) (1999).

¶ 25     Section 1240.80 regulates the dissemination of data obtained through LEADS and

provides as follows: “a) The LEADS network and LEADS data shall not be used for personal

purposes[;] b) Personal or unofficial messages shall not be transmitted[;] c) LEADS data shall not

be sold[;] [and] d) LEADS data shall not be disseminated to any individual or organization that is

not legally authorized to have access to the information.” 20 Ill. Adm. Code 1240.80(a)-(d)

(1999). The regulations provide that “[u]ser certification may be suspended or revoked by the

Department for violation or non-compliance with laws, rules, regulations, or procedures.” 20 Ill.

Adm. Code 1240.90(b)(9) (1999).        The Department also periodically audits each LEADS

terminal agency and provides “a written analysis detailing the findings, recommendations,

discussions, and requirements for compliance generated by the audit.”        20 Ill. Adm. Code

1240.100(a), (c) (1999). The available sanctions and the required procedures depend on the

severity of the violations. 20 Ill. Adm. Code 1240.110 (1999).

¶ 26     BGA argues that the sheriff is not specifically prohibited from disclosing information

regarding the subjects of Patrick’s LEADS searches, because such information is not “LEADS

data.”   BGA focuses primarily on section 1240.30(b)(3), which defines “LEADS data” as “all

data available through the LEADS computer.” 20 Ill. Adm. Code 1240.30(b)(3) (1999). From

this definition, BGA extrapolates that there is a meaningful difference between search input

information (inquiry identifiers) and substantive information available through the system (the

results of those inquiries). According to BGA, the Department’s regulations do not specifically

prohibit the sheriff from disclosing records falling into the former category. BGA proposes that,

had “LEADS data” been intended to encompass inquiries to the LEADS computer, the



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Department could have defined the term as information “submitted to or available through the

LEADS computer.”

¶ 27   Nothing in the regulations suggests that the Department intended to draw such a

distinction, and we hold that the regulations specifically prohibit the sheriff from disclosing

information regarding the inquiries performed by LEADS users. Even if BGA’s interpretation of

“LEADS data” is plausible when considering section 1240.30(b)(3) in isolation, it does not hold

up when viewing the regulations as a whole. “A fundamental principle of statutory construction

is to view all provisions of a statutory enactment as a whole. Accordingly, words and phrases

should not be construed in isolation, but must be interpreted in light of other relevant provisions of

the statute.” Southern Illinoisan, 218 Ill. 2d at 415. Another provision of the regulations, which

the parties do not address, indicates that the Department does not distinguish between information

transmitted through LEADS and information stored in the system.                Specifically, section

1240.50(c) provides:

                 “Each LEADS agency must ensure that all LEADS computer devices are

       placed in a location under the direct control and supervision of authorized criminal

       justice personnel and are inaccessible to the public or persons not qualified to either

       operate, view, or possess LEADS and/or NCIC transmitted or received data. The

       computer site and/or terminal area must have adequate physical security to protect

       against any unauthorized personnel gaining access to the computer equipment or to

       any of the stored data.” (Emphases added.) 20 Ill. Adm. Code 1240.50(c)

       (1999).

The regulations make clear that the public is not entitled to view or possess data that is transmitted

through, received through, or stored in LEADS. BGA insists that inquiry identifier information is



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not “available through” the LEADS computer, because Jacobs’ second affidavit established that

“the Illinois State Police can only identify a device accessing the LEADS system by its assigned

Call Directing Code *** and not the unique identifiers of a certified user accessing the system.”

However, even if Patrick’s personal search history is not presently stored in the LEADS

computer, it was, by its very nature, data that was transmitted through the system.       Section

1240.50(c) makes clear that the Department intended for such information to be treated in the

same manner as information received through or stored in the system.

¶ 28    Another provision of the regulations, which the parties likewise do not address, renders

BGA’s interpretation of the definition of “LEADS data” questionable.          Section 1240.50(b)

provides certain personnel-security requirements, including that “[t]he individual receiving a

request for criminal justice information must ensure the person requesting the information is

authorized to receive the data.” 20 Ill. Adm. Code 1240.50(b)(4) (1999). The regulations do not

define “criminal justice information.” However, information about which people or vehicles

have been the subjects of LEADS inquiries would seem to fall naturally within the scope of that

term.   That the Department requires a showing of authority to receive “criminal justice

information”—a rather broad and undefined phrase—cuts against BGA’s argument that, by

defining “LEADS data” as it did in section 1240.30(b)(3), the Department intended to make

LEADS search histories accessible to the public.

¶ 29    The regulations, viewed in their entirety, reflect the Department’s intent to create a law

enforcement resource that is not open to public inspection. We cannot agree with BGA that, by

defining “LEADS data” as it did in section 1240.30(b)(3), the Department intended to allow the

public to know which suspects have been investigated by particular law enforcement officers.

Such a construction of “LEADS data” is neither necessary nor reasonable in the context of



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regulations designed to prohibit rather than promote public access to the LEADS system. It is

readily apparent that public access to inquiry identifier information was not intended and that the

regulations do not treat such information differently from other information stored in or accessible

through the system.

¶ 30   BGA additionally argues that only LEADS records maintained by the Department, not the

sheriff’s public records, are exempt from disclosure as “LEADS data.” BGA claims that, because

Jacobs’ second affidavit established that Patrick’s search history cannot be identified by means of

the LEADS computer, such information is not “LEADS data.”               We disagree with BGA’s

assessment. As we have previously explained, the information that BGA seeks—the identities of

the subjects of Patrick’s LEADS inquiries—is inherently “LEADS data” prohibited from

disclosure. The regulations do not distinguish between information transmitted or received

through LEADS and information stored in the system. Nor has BGA brought to our attention any

authority that would require a different result. BGA is not entitled to Patrick’s search history,

irrespective of whether such information is accessible through the LEADS system or from records

that the sheriff possesses.

¶ 31   The reasoning in at least one federal case supports by analogy that LEADS inquiry

identifier information is not subject to public disclosure. In Vazquez v. United States Department

of Justice, 887 F. Supp. 2d 114, 117 (D.D.C. 2012), the plaintiff filed an action under the federal

FOIA, seeking a log of NCIC transactions concerning himself. The Department of Justice (DOJ)

issued what is known as a “Glomar response,” refusing to confirm or deny the existence of any

responsive records, because doing so would cause harm cognizable under an exception to the

federal FOIA. Vazquez, 887 F. Supp. 2d at 116. The DOJ based its response on 5 U.S.C. §

552(b)(7)(E), which exempts law enforcement records from disclosure to the extent that



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production “would disclose techniques and procedures for law enforcement investigations or

prosecutions … if such disclosure could reasonably be expected to risk circumvention of the law.”

(Internal quotation marks omitted.) Vazquez, 887 F. Supp. 2d at 116.     The DOJ filed a motion

for dismissal and summary judgment, supported by the affidavit of Kimberly Del Greco, who

described the NCIC as a compilation of “nineteen separate databases, all of which contain material

compiled for law-enforcement purposes.” (Internal quotation marks omitted.) Vazquez, 887 F.

Supp. 2d at 117. She stated that “NCIC transactions [are] performed[ ] in response to queries

made by law enforcement agencies regarding an individual” and that “while the public generally

knows and understands that law enforcement utilizes the NCIC databases to perform background

checks and/or other related checks … the details of those queries—including how they are

executed, what search terms are used, what[ ] passwords and clearances are required, and who has

authorization to run such queries[—]are not known to the public.” (Internal quotation marks

omitted.) Vazquez, 887 F. Supp. 2d at 117. The district court found that Del Greco’s affidavit

“established the threshold requirement that the responsive records be compiled for law

enforcement purposes” and showed that “utilization of the NCIC database constitutes a

‘procedure[] for law enforcement investigations’ covered by exemption 7(E).” Vazquez, 887 F.

Supp. 2d at 117 (quoting 5 U.S.C. § 552(b)(7)(E) (2006)).

¶ 32   Del Greco additionally explained the nature of the harm from having to confirm or deny the

existence of the requested records:

       “[P]ublic confirmation of NCIC transactions would alert individuals that they are the

       subject of an investigation as well as reveal[ ] the identity of the investigative agency.

       With this information, individuals could modify their criminal behavior, thereby

       preventing detection by law enforcement agencies and risking circumvention of the law.



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       ***    In other words, persons knowing that they are being investigated by a law

       enforcement entity, which the requested information would reveal, could reasonably be

       expected to use the information to circumvent the law.            Conversely, a person with

       knowledge that there have been no NCIC checks run against him, and hence, that he is not

       on law enforcement’s radar[,] could reasonably be expected to continue to engage in

       unlawful endeavors with renewed vigor.” (Internal quotation marks omitted.) Vazquez,

       887 F. Supp. 2d at 117-18.

Based on this affidavit, the district court found that the DOJ justified its assertion of harm from

confirming or denying the existence of the requested records, and the court granted summary

judgment in favor of the DOJ. Vazquez, 887 F. Supp. 2d at 118. The court of appeals summarily

affirmed in an unpublished order, concluding that the district court “properly granted the

government’s renewed motion for summary judgment with respect to information withheld under

Freedom of Information Act exemption 7(E) [citation] and did not abuse its discretion in denying

reconsideration of that judgment.” Vazquez v. United States Department of Justice, No. 13-5197,

2013 WL 6818207, ¶ 1 (D.C. Cir. Dec. 18, 2013).

¶ 33   According    to   the   Illinois   Criminal      Justice   Information   Authority’s   website

(http://www.icjia.state.il.us/iijis/public/index.cfm?metasection=strategicplan&metapage=sjis_lea

ds (last visited Oct. 6, 2014), LEADS users are able to access NCIC through LEADS.            See also

20 Ill. Adm. Code 1240.50(b)(1) (1999) (requiring background checks for “terminal operators,

programmers, and other persons employed or utilized to effectuate access to or initiate

transmission of LEADS and National Crime Information Center (NCIC) information”). As

federal courts have determined that the public is not entitled to information regarding NCIC




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inquiries, it makes sense that this same type of information is not accessible to the public through

LEADS.

¶ 34    Furthermore, we reject BGA’s argument that our interpretation creates an absurd result

by allowing the state law designed to prevent abuse of the LEADS system to be used to shield such

abuses from disclosure. The regulations indeed establish, in no uncertain terms, that LEADS

users may not use the network or data for personal purposes (20 Ill. Adm. Code 1240.80(a) (1999))

and that such misuse may result in sanctions (20 Ill. Adm. Code 1240.90(b)(9) (1999)). However,

as previously explained, the Department periodically audits LEADS terminal agencies, and the

Department has implemented sanctions and procedures for addressing noncompliance with its

policies. 20 Ill. Adm. Code 1240.110 (1999). As the trial court aptly noted: “There is nothing to

prevent the appropriate body, properly authorized to access the LEADS system, from investigating

any alleged improper uses. The aforementioned construction merely finds that entities such as

the BGA are not the proper organizations to undertake such an investigation because the

investigation requires access to sensitive information to which the legislative body saw fit to

restrict access.”

¶ 35    Finally, BGA argues that the trial court erred in concluding that “a FOIA response to

BGA’s inquiries is not possible” because Jacobs’ second affidavit showed that the Department

“would not be able to determine which inquiries, if any, were submitted by Patrick.” We need

not address BGA’s argument on this point in light of our holding that BGA is not entitled to

disclosure of the subjects of Patrick’s LEADS searches.

¶ 36                                   III. CONCLUSION

¶ 37    The judgment of the circuit court of Du Page County is affirmed.

¶ 38    Affirmed.



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