Wednesday, February 19, 2020 Julie Tappendorf
In Shehadeh
v. Downey, 2020 IL App (3d) 170158-U,
a requester filed several FOIA requests with the Kankakee County Sheriff’s
Office (KCSO), seeking a variety of records relating to the requester's imprisonment
at the Jerome Combs Detention Center (JCDC). He requested his inmate file, emails and text messages from both
personal and work phones of KCSO employees, video footage of the correctional
facility, and the internet search engine queries
performed by KCSO staff.
He later filed a lawsuit against the Sheriff and other KCSO employees under
FOIA claiming the Sheriff refused one of his requests without
explanation, failed to timely respond to others, and continued to withhold
information that he had requested.
The Sheriff voluntarily provided
some of the records to the requester after the filing of the lawsuit but
refused to release others. The Sheriff argued the remaining records were not public records kept or maintained by the KCSO or were exempt under FOIA. Ultimately, the case made its way to the appellate court which ruled in favor of the
Sheriff.
We wanted to
highlight aspects of the case relating to the request for internet search
engine queries and text messages/emails. First, the court noted that FOIA does not require the
compilation of data not ordinarily kept by a public body. In this case, the Chief of
Corrections for Kankakee County had filed an affidavit attesting that search
engine histories and related information were not maintained or kept by the
JCDC or KCSO. Since complying with the request would have required the KCSO to create new documents that were not maintained by the KCSO, the appellate court held that the internet search engine
queries were not public records subject to FOIA.
Next, the court held that the
text messages and emails were exempt from disclosure under both sections
7(1)(e) and 7(1)(b) of FOIA. Here, we want to focus on the court’s application
of 7(1)(b) and its determination that the text messages and emails on the KCSO
work and personal cell phones are “private information.” The appellate court discussed the appellate court decision in City
of Champaign v. Madigan that held that certain texts sent by elected officials on personal cell phones were subject to FOIA, but noted that the Champaign court "merely held that electronic communications that city officials sent
to each other on their personal devices while conducting public business during a business
meeting were subject to FOIA" but
did not hold that any electronic communication sent or
received from a public employee’s personal or work electronic device would be subject
to FOIA, rejecting the requester's broad argument to the contrary. Further, the court noted that the requester failed to limit his
request to communications that were government-related. Finally, the court found that even if the records were public records, they would fall within the definition of "private information" under 7(1)(b) of FOIA because release could jeopardize inmate and jail security.
This is the first time a court has extended the "private information" exemption in 7(1)(b) to text
messages and/or emails sent or received by employees on their personal devices. Because it's not clear that this particular analysis would extend beyond the third district appellate court or the facts of this case, government officials and employees may want to be careful on reading too much into this decision without consulting with their own attorneys and considering how the Champaign case might apply to their communications.
Post authored by Ashton Tunk & Julie Tappendorf, Ancel Glink
