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Monday, August 15, 2016

PAC Sticks to its Position that Emails on Private Devices Are Subject to FOIA

We have written extensively in the past about the Champaign v. Madigan case. That case involved a FOIA request for text messages between City Council members sent/received on their private cell phones. The City had denied the FOIA request on the basis that these text messages were not public records because they were not in the possession of, or under the control of, a public body. The requester had challenged the City's denial, and the PAC issued a binding opinion that all communications that relate to public business, regardless of device, are public records.  That opinion was appealed to the courts. Although the appellate court agreed with the PAC that the City Council members' text messages sent during a City Council meeting should be released, it disagreed with the PAC's very broad interpretation of FOIA that all communications, regardless of device, are public records.  

This case recently came up in the context of the PAC's 6th binding opinion of 2016. In PAC Op. 16-006, the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City had provided the requester with emails that were sent/received on the officers' official City email accounts or were found on the City server. The City did not provide any emails on the officers' personal email accounts on the basis that the emails were not public records because the City did not have any control over the officers' personal devices, and the emails were not used by, received by, in the possession of, or under the control of a public body.

The PAC ruled against the City, finding that "communications pertaining to the transaction of public business that were sent or received on the CPD employees' personal e-mail accounts are 'public records' under the definition of that term in section 2(c) of FOIA." The PAC noted that any other interpretation would be "contrary to the General Assembly's intent of ensuring public access to full and complete information regarding the affairs of government." 

It is this exact "broad brush" interpretation of FOIA, however, that the appellate court rejected in Champaign v. Madigan when in stated:
If the General Assembly intends for communications pertaining to city business to and from an individual city council member’s personal electronic device to be subject to FOIA in every case, it should expressly so state. It is not this court’s function to legislate. Indeed, such issues are legislative matters best left to resolution by the General Assembly. 
The PAC opinion also seems to ignore the guidance contained in Champaign v. Madigan that an individual government official is not the "public body" that is subject to FOIA. Messages sent on private devices are only considered "public records" that might be subject to FOIA when the official sending/receiving the message is acting as a public body. The rationale offered by the court is that the public body is not in control or possession of messages of government officials when sent on their private devices except in certain limited circumstances.  The PAC did not appear to apply this analysis to the CPD FOIA request, and instead stuck to its pre-Champaign v. Madigan position that only the content of the message is relevant for purposes of FOIA, and the device used to send that message doesn't matter. 

As the appellate court acknowledged (see above quote), FOIA does not expressly provide that communications on private devices are subject to FOIA. Based on the Champaign v. Madigan ruling, we know that individual City Council members' messages on their private devices are not necessarily subject to FOIA (they are releasable only in certain, limited circumstances such as when they are sent during a public meeting or forwarded to/from the City's server). It would be helpful for government bodies to know whether the Champaign v. Madigan analysis applies to all public officials/employees (and not just aldermen) or whether the PAC is correct that public employees will be treated as "public bodies" subject to FOIA whenever they communicate on public business, regardless of device. That's certainly not what the statute says.

Post Authored by Julie Tappendorf


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