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Tuesday, April 3, 2018

Police Officers' Emails on Private Devices Subject to FOIA

Update - this post is being republished because the previous version of this post did not contain the correct link to the Chicago v. Attorney General case.

We reported in the past on PAC Opinion 16-006, where 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 filed an appeal to the Circuit Court of Cook County, and we received a copy of the Court's ruling from one of our readers. The Circuit Court ruled in favor of the PAC and found that the emails on the officers’ personal accounts do qualify as “public records” under FOIA. City of Chicago v. Attorney General of the State of Illinois and CNN, 16 CH 12085.

The Court noted that for a communication to qualify as a public record, it must both 1) pertain to the transaction of public business and 2) been prepared by, prepared for, used by, received by, possessed by, or controlled by a public body. Notwithstanding the appellate court's finding in Champaign v. Madigan that a government official is not generally a "public body" that would be subject to FOIA, the Court found that the officers were acting as the public body, reasoning that a public body can only act through its employees, agents, and officials. The Court found that the PAC properly balanced the privacy rights of the officers with the public’s right to the information requested.  Further, it found that the request was limited in time, scope, and participants, so it does not allow for indiscriminate browsing through personal emails.  The Court ordered the City to conduct a new search in accordance with the PAC’s opinion, and noted the changes in technology since FOIA was enacted.

Public bodies have received mixed advice on the issue of FOIA and emails/text messages sent on a government official or employee's private device or using a private account. In a case we wrote about in 2016, the Cook County Circuit Court determined that the Mayor of Chicago's emails sent on his private device are subject to FOIA. Yet, the appellate court in Champaign v. Madigan determined that city council members' texts and emails sent on their private devices are only subject to FOIA in very limited circumstances: (1) if sent during a city council meeting; (2) if sent to a majority of the city council; and (3) if forwarded to/from a city account. Consistent with this Appellate Court ruling, a Cook County Circuit Court earlier this year issued a similar ruling in Ahmad v. City of Chicago, finding that an alderman was not acting as a "public body" for purposes of FOIA when he sent emails and text messages to constituents even though those messages related to City business. Yet, in this Circuit Court case, the court held that police officers' emails/texts sent on their private devices are subject to FOIA. 

With this hodge-podge of advice from the PAC and Illinois courts that treats government officials and employees differently for purposes of FOIA, it's difficult to provide any consistent guidance to public bodies on whether their officials' or employees' communications sent on private devices will be subject to FOIA. Some public bodies are taking actions to address this issue by adopting policies that require government business to be discussed only on official government accounts and using official government devices. 

Post Authored by Erin Pell & Julie Tappendorf


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