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Wednesday, February 19, 2020

Court Finds in Favor of Public Body on FOIA Request for Employee Electronic Communications

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


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