Menu

Imagine you represent children whose mother is accusing the father of sexual abuse. The children are giving you a story that indicates the father, but in many respects is difficult to believe. At the mother’s request, the children have been interviewed by DCFS and the state’s attorney. You want to find out what the children have been telling the state. You send subpoenas to the state’s attorney’s office and DCFS and are met with an objection stating that they will produce no records because compliance with the subpoena will interfere with an “ongoing investigation”. If you challenge the state’s assertion, you may not be precluded from obtaining the records.

As practitioners in the area of family law, the most difficult cases are those involving allegations of abuse of children. Often times in addition to the custody proceedings in the domestic relations case, there is a parallel criminal investigation
of the alleged perpetrator. Obtaining the information gathered by law enforcement authorities is crucial to allow the family court to make an informed determination as to the best interest of the children.

Unfortunately, experience tells us that as a general rule the police and state’s attorney’s office do not want to share their information. Law enforcement officials, sometimes with good reason, fear that the obtaining of investigatory material for the
purposes of a civil case could interfere with an ongoing criminal investigation. While involved in a recent case, our office ran head long into the law enforcement “wall of silence” and in the process re-discovered some case law of which all family law practitioners should be aware. The case of In Re the Marriage of Daniels both creates and defines the “limited law enforcement investigatory privilege.” 240 Ill. App. 3d 314, 607 N.E. 2d 1255, 180 Ill. Dec. 742 (5th District 1992).

The Daniels case was a post decree situation in which the custodial mother was shot and wounded by an unknown assailant. The father alleged that the mother was a drug user and drug dealer, that the assailant would return and the children
would be in the line of fire. The mother alleged that the father or his brother was the shooter. During discovery, the father attempted to obtain the Illinois State Police files and depose the investigating state trooper. After being held in contempt
of court for not complying with the court’s order concerning disclosure of information, the Illinois State Police appealed and as a result we now have the limited law enforcement investigative privilege.

The Daniels court began its analysis by stating the well accepted principle that privileges are not favored because they are in derogation of the search for truth and that the person asserting the privilege has the burden of showing facts which rise to the privilege. The court makes an analogy to the Federal and Illinois Freedom of Information Acts. The Illinois Freedom of Information Act (5 ILCS 140/7 (1) ( c) creates the following exception to obtaining information under the Illinois Freedom of Information Act:

“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; (ii) interfere with pending administrative enforcement proceedings conducted by any public body; (iii) deprive a person of a fair trial or impartial hearing; (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 or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct; (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.

While the Daniels court is very clear in stating that the Freedom of Information Act is not dispositive on the issue of whether investigatory information must be produced, the FOIA is a clear statement of public policy.

In deciding whether to uphold a claim of law enforcement investigatory privilege, the court must balance the law enforcement agency’s interest in proceeding unhindered in their criminal investigation and a civil litigant’s right to
discovery.

Once the law enforcement agency asserting the privilege makes a threshold showing that invoking the privilege may be appropriate, the court must conduct a balancing test. The Daniels court outlined ten factors which the court should
consider when deciding whether to uphold the claim of privilege. The factors are:

1. The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the police information.

2. The impact upon persons who have given information of having their identities disclosed.

3. Degree to which government self evaluation and consequent program improvement will be chilled by disclosure.

4. Whether the information sought is factual data or evaluative summary.

5. Whether the party seeking the discovery is an actual or potential defendant in any criminal proceedings either pending or reasonably likely to follow from the incident in question.

6. Whether the police investigation has been completed.

7. Whether any disciplinary proceedings have arisen or may arise from the investigation.

8. Whether the plaintiff’s suit is not frivolous and brought in good faith.

9. Whether the information sought is available through other discovery or from other sources.

10. The importance of the information sought to the plaintiff’s case.

The Daniels court and other courts have placed greater weight on whether the criminal investigation is ongoing.

Courts and some lawyers have a tendency to assume that an on-going police investigation is by its very nature more important than a civil proceeding. This is simply not true. The goal of the criminal justice system is to obtain a conviction and
not necessarily to protect the children. The stated goal of the Illinois Marriage and Dissolution of Marriage Act is to protect and promote the best interest of children. The interest of the civil court in a domestic relations case and the criminal court in a criminal prosecution are completely different and, despite what the state’s attorney’s office may tell you, neither is more important than the other. All practitioners in the State of Illinois should be aware of the Daniels case and be prepared to challenge law enforcement’s refusal to provide necessary and relevant information.


Kirsh, Matthew A., Obtaining Law Enforcement Records: Remember the Daniels Case. ISBA Family Law Section
Newsletter. October, 2007.

211 W. Wacker Drive, Suite 1100, Chicago, IL 60606
Phone:+1 (312) 981-0109 | Fax:+1 (312) 241-1636