Illinois government transparency in question with secret "surveillance" reports

CHICAGO (CBS) -- A woman taking photos on the street. Contract workers surveying a cell tower. A student seeking help from his guidance counselor.

These are all seemingly everyday activities; snapshots of life across Chicagoland. They were also all reported to police as "suspicious."

Then, they were documented by local law enforcement in the form of suspicious activity reports, or SARs, which are maintained by the FBI. The glaring disparity: most of the people who were reported were Arab and Muslim.

The nonprofit Arab American Action Network (AAAN) sued the Illinois State Police for hundreds of SARs like these, CBS Chicago reported in 2022. They were seeking data that might validate their experiences of discrimination and police surveillance – anecdotal stories they heard from the Arab community for decades.

The reports showed that's precisely what was taking place. After state police agreed to release more than 200 of these documents through a settlement agreement, AAAN found the reports had less do with what people were doing, and more to do with what they looked like. More than half of those who were reported as "suspicious" were described as "Arab," "Middle Eastern," "Muslim," or "olive-skinned" – even though Arabs make up just over 1 percent of the state's population.

"That, in it of itself, proves our point that this is a tool of racial profiling and surveillance," said Muhammad Sankari, lead organizer with AAAN.

Read the full report here at AAAN's website, or below

CBS Chicago wanted to find out how the suspicious activity reporting program was being used nearly two years later, especially since reports of hate crimes and racial profiling have surged after the war in Gaza began Oct. 7. The Illinois State Police even warned the public "to stay vigilant" in a December news release.

"If you see something that seems out of place or someone acting in a manner that doesn't seem right, report it to your local law enforcement," state police said in the news release.

But that same agency is refusing to release any more SARs to the public. State police denied CBS Chicago's repeated Freedom of Information Act (FOIA) requests asking for more recent reports – both before the war in Gaza and after – which would show why people were reported and their demographics. And the Illinois Office of the Attorney General said the denials are completely legal.

"Our community deserves to know if we're being targeted," Sankari said. "And again, we knew that we were, and I'm confident in saying that we still are."

SARs are produced as part of a federal program called the Nationwide Suspicious Activity Reporting Initiative. Administered by the U.S. Department of Homeland Security (DHS) and the FBI, the program was among many formed in the years after the 9/11 terror attacks.

The suspicious activity reporting specifically was cited as necessary to thwart any future threats. An annual $2 million was earmarked to the program in 2007 when it was created, according to minutes from DHS committee hearings.

The government asks and encourages the public to report activity they deem to be "suspicious" or threatening to local police agencies, its website says. This could be anything as vague as taking photos of people or buildings "in an unusual or surreptitious manner that would arouse suspicion of terrorism or other criminality in a reasonable person."

Information on threats, including any SARs, is received and analyzed by state-owned and operated facilities called fusion centers. These entities serve as focal points in states and major urban areas to gather, analyze, and share this information. Illinois has two fusion centers: the Illinois State Police and the Chicago Police Department.

In one example, someone reported a "suspicious male individual, possibly Middle Eastern" at the L station across from Wrigley Field in 2016. The suspect "appeared out of place while taking various photographs" and was "typing or texting, possibly in Arabic," the report said.

In 2019, a 16-year-old Orland Park student was reported to law enforcement after coming to a guidance counselor about his anxiety about the war in Syria. That same year, someone reported a Black woman for "wearing clothing consistent with those worn by women of the Muslim faith/religion," who was taking video of the State Capitol in Springfield.

SARs were created on each of these mundane, routine activities, and hundreds of others between 2016 and 2019, AAAN's analysis found. This means the FBI holds permanent records of these individuals, including their names, addresses, and more – even if the reports are unfounded.

"We were able to prove [in 2022] the reality of the situation," Sankari said. "This can be done, should be done again. And we believe we would come to the same conclusion."

To find that out, CBS Chicago filed a FOIA request with state police, asking for more recent reports made from 2020 to 2023.

Police denied that request, saying the records can't be made public because they contain "criminal intelligence information" maintained by the FBI.

CBS Chicago appealed that decision with the Office of the Attorney General, which resolves or mediates FOIA disputes between the public and government agencies.

In its appeal, CBS Chicago argued state police had already released hundreds of SARs through a previous settlement agreement, and that they should be required to release similar records again, but for a more recent timeframe.

But the Attorney General upheld the state police's decision, saying the agency did not improperly deny the FOIA request. The Attorney General's opinion cited Illinois law and said because CBS Chicago sought similar, but not identical records to those state police already released through the settlement agreement, the agency is not required to provide them through FOIA.

Unless the state police are sued again, the Attorney General's decision means it's impossible for the public to see records from a government program that previously revealed concerning disparities. Matt Topic, an expert on government transparency and an attorney with Loevy and Loevy, said the legal technicality that allows government agencies to release documents through a lawsuit – but refuse to release a different batch of the same record through FOIA – is "maddening" and impacts public trust.

"It doesn't really make much sense to the average person," he said. "It doesn't really make much sense to me. Otherwise, you're just picking and choosing and cherry-picking what you want to release and playing games with something that's very important – bringing transparency into what the government is up to."

In a statement, state police said the documents also contain private information of individuals and said it "is committed to protecting confidential information that could compromise the public's safety or infringe upon a person's privacy or constitutional right."

However, in the previous release of SARs, police redacted personal information, finding a balance between privacy and allowing AAAN to see other contents of the reports. In this case, CBS Chicago asked for the same redactions to take place, but were refused.  

A spokesperson for the Attorney General did not comment specifically on the appeal but in a statement said Illinois law requires the office to "impartially interpret" FOIA. The spokesperson also said the office works "diligently to educate public bodies about records that must be disclosed, according to the provisions of FOIA."

"With all due respect to the Attorney General, I would say that they are wrong," Sankari said. "Absolutely the public has a right to know. And again, there is a way to release information that protects the privacy of people. "

Topic also believes state police's privacy claim contradicts the public's desire to know what's contained in SARs.

"I don't think that reflects reality. I think people who have been surveilled, especially based on their ethnicity or their religion, want the world to know that is what the government is doing," he said.

"So, we have this sort of bizarre situation in which in the name of the privacy of people being surveilled the government is making it impossible to understand the government's own surveillance."

Sankari said this applies to the Arab community.

"If the Illinois State Police believes that they're conducting themselves in the best way, and without profiling, then why will they not provide us [the records]?" he said. 

"Again, we're not asking for names and addresses. Why would they not provide us just general data, demographic data, on suspicious activity reports?" Sankari continued. "To me, the answer is clear. It's because they know, because we've proven, that this continues to be a practice of racial profiling. "

Sankari added it's even more critical now to see the most recent SARs. Tens of thousands of people have rallied across Chicago and Illinois, protesting Israel's killing of more than 30,000 Palestinians since Oct. 7, according to numbers from the Gaza Health Ministry. And Sankari said the FBI recently visited the homes of several people, including members of his organization and others, who participated in the protests. He worries they could be the subject of erroneous SARs.

"Obviously, with the United States being involved in one side of the war on Gaza, and arming and funding an Israeli genocide, just to be frank, we believe the policing is going to reflect looking into a community that's raising its voice against this ongoing genocide," Sankari said.

"It leads us to believe – one would think – that there is obviously much, much more resources, much, much more time, and therefore, many more suspicious activity reports that are being filed targeting our community," he continued.

State police would only tell CBS Chicago that 35 SARs have been reported since October 2023. A spokesperson would not provide details or say whether any of them were used to foil credible security threats.

The Attorney General's decision to uphold the state police's denial was also cited by the Chicago Police Department just weeks ago, when they too denied CBS Chicago's request for precisely the same records.

"It's extremely disappointing, I would say, because we feel like this has been litigated already," Sankari said.

 "If we want our communities to be safe, then those who are policing our communities should be held to the highest standards of transparency."