FOIADetermination Letter (non-binding)No violationPolice & Investigative Records

Markham Police Department not required to provide destroyed body camera footage

The requester sought body camera footage from a July 2024 incident that the police department stated was no longer in its possession.

Date issued: January 24, 2025
Request number(s): 84547
Public body: Markham Police Department
Statute(s): 5 ILCS 140/1.2
Outcome: No violation found

Plain-language summary

A citizen requested police body camera footage from a specific incident, but the police department said they no longer had the video. The Attorney General's office investigated and found that the police were not legally required to keep the video because the incident did not meet the criteria for mandatory preservation under the Body Camera Act. Therefore, the police did not improperly withhold any records.

Legal question

Whether a public body violates FOIA by failing to provide records that it no longer possesses and was not legally required to retain.

Holding

The Markham Police Department did not violate FOIA because it did not possess the requested records at the time of the request.

Summary

The requester sought body camera footage from a July 2024 incident, but the Markham Police Department stated no footage existed because it had not been preserved. The PAC determined the Department's response was proper because the footage was not required to be retained under the Body Camera Act and was no longer in the Department's possession.

Issues decided in this letter

Each question the Public Access Bureau decided, with the rule it applied. Extracted automatically from the letter; the source PDF is authoritative.

No violationFOIA section 9.5(c)
Adequacy of search for body camera footage
Rule applied: A public body's search for responsive records is judged by reasonableness; a requester is entitled only to records the agency actually created and retained.
Authorities cited: Better Government Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31; Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982)
No violation
Withholding of body camera footage deleted under retention law
Rule applied: Body camera recordings must be retained 90 days and then destroyed unless flagged; unflagged footage need not be preserved beyond 90 days.

body camerapolice recordsrecord retentionFOIA request

Reading view (727 words)

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Dear

This determination letter is issued pursuant to section 9.5(c) of the Freedom of Information Act (FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2023 Supp.)). For the reasons that follow, the Public Access Bureau has determined that this Request for Review is unfounded.

On December 4, 2024, you submitted a FOIA request to the Markham Police Department ( Department) seeking, in relevant part, copies of camera footage from a July 13, 2024, incident at a specific address. On December 10, 2024, the Department responded by informing you that no responsive video footage existed. On December 27, 2024, this office received your Request for Review contesting the Department's response.

FOIA provides that "[ a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying." 5 ILCS 140/ 1.2 (West 2022). Under FOIA, the adequacy of a public body's search for responsive records is judged by a standard of reasonableness and depends upon the particular facts of the case. Better Government Ass' n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31. However, "[a] requester is entitled only to records that an agency has in fact chosen to create and retain." Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982).

On January 10, 2025, the Deputy Public Access Counselor contacted the Department' s FOIA officer and requested an explanation of its search for responsive footage. On January 21, 2025, Commander Eric. S. Blohm responded, explaining:

I then conducted a search for "police cam footage." This incident occurred at a private residence. Therefore, the only possible "police cam footage" that may exist is body worn camera footage. I am the records custodian for the police department and as part of my duties, I am responsible for the management of body camera footage. I conducted a search of our body worn camera footage which is stored by Axon at Evidence.com pursuant to our contract with them. No body worn camera footage was found.

I again reviewed the report and found that body worn camera was referenced in the report, but no arrest was made in this incident. I reviewed the audit records of the body camera recordings and found that they were not flagged. Because the footage was not flagged, they were deleted after the 90-day retention period as required by our department's policy.[1]

Sections 10-20(7) and 7(b) of the Law Enforcement Officer-Worn Body Camera Act (Body Camera Act) (50 ILCS 706/10-20(7), 7(B) (West 2022)) provides, in relevant part:

Recordings made on officer- worn cameras must be retained by the law enforcement agency or by the camera vendor used by the agency, on a recording medium for a period of 90 days.

B) Following the 90-day storage period, any and all recordings made with an officer- worn body camera must be destroyed, unless any encounter captured on the recording has been flagged.

Based on the Department' s explanation to this office and the information submitted with this Request for Review, the incident underlying the requested body camera footage did not result in an arrest or otherwise involve an encounter that required the recording to be flagged under the Body Camera Act. Therefore, the footage was not required to be preserved beyond 90 days under that statute. Because the Department has confirmed that it no If you have any questions, please contact me at the Springfield address on the first page of this letter. This letter closes this matter.

Very truly yours, CHRISTOPHER R. BOGGS Deputy Public Access Counselor Public Access Bureau 84547 f unf pd cc: Via electronic mail Commander Eric S. Blohm *315 Markham Police Department 16313 Kedzie Parkway Markham, Illinois 60428 eblohm@CityofMarkham.net

Notes from the original PDF (1)

1E- mail from Eric S. Blohm, Markham Police Department, to Christopher Boggs (January 21, 2025).