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By Shawn Roselieb, Assistant Executive Director - Tuesday, September 06, 2016

 

On August 9, 2016, the Office of the Attorney General issued a binding opinion which stated that the Chicago Police Department (CPD) violated the requirements of the Freedom of Information Act (FOIA) when it failed to conduct an adequate search for all emails that discussed the death of Laquan McDonald. The Attorney General's Office determined that any communications pertaining to the transaction of public business that were sent or received on the CPD employees' personal email accounts are "public records" under section 2(c) of FOIA.

This opinion is based on the January 28, 2016 FOIA request by CNN to the CPD that requested "all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed" for twelve named officers and for a time period of five days in October of 2014 and ten days in November of 2014. The CPD turned over many emails, all from the CPD business email accounts for the officers, and no emails from the officers' personal email accounts. The requestor (CNN) challenged the emails and claimed those emails turned over were not responsive to CNN's request. CNN claimed CPD had a duty to also request the officers to submit any records regarding Laquan McDonald that were transmitted via the officers' personal email accounts. CPD argued that the officers' personal email accounts are not "public records" as defined under the FOIA.

Section 3(a) of FOIA (5 ILCS 140/3(a)) provides that public bodies shall make available to any person for inspection or copying all public records, with an exception in sections 7 and 8.5. Public records, as defined by FOIA, in pertinent part are "…materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." First, the officers employed by the CPD are employed by a public body, so the next issue to analyze is how the Attorney General's Office reached the conclusion that emails sent from the officers' personal email accounts are public records.

It is important to remember the intent of FOIA, which was enacted by Public Act 83-1013 and was effective July 1, 1984. The intent of the FOIA was to ensure public access to "full and complete information regarding the affairs of government and employees consistent with the terms of this Act." 5 ILCS 140/1. As argued by Michael Luke in this opinion, if the personal emails sent by the officers that discussed Laquan McDonald were determined not to be public records, this would evade the original intent of FOIA which ensured public access to "full and complete information regarding the affairs of government." Luke's argument further noted that if personal emails which discuss public business were exempt from FOIA, this would encourage public employees to evade FOIA by discussing public business that they did not want disclosed under FOIA by means of personal email accounts.

CPD also attempted to argue that the search of personal email accounts would result in "unreasonable and unnecessary invasions of personal privacy." 5 ILCS 140/7(1)(c). FOIA allows for an exception from disclosure if such disclosure would be an "unwarranted invasion of personal privacy." Luke noted in his opinion that if the personal emails contain information about the death of Laquan McDonald, those emails pertain to the officers' public duties and are public records under FOIA. On the other hand, if the personal emails do not discuss public business, then those emails are exempt from disclosure under FOIA.

KEEP IN MIND – EVEN THOUGH THIS CASE HAD TO DO WITH THE PERSONAL EMAILS OF POLICE OFFICERS, IT IS SAFE TO ASSUME THAT THE RULING APPLIES TO ALL PUBLIC EMPLOYEES. And the lesson to take from the Attorney General's opinion is to remember that if a public employee discusses public business on his/her personal email account, that communication will be subject to disclosure under FOIA. An expectation of privacy does NOT exist for an public employee's personal emails if the public employee discusses public business on his/her personal email account. So please, err on the side of caution and refrain from discussing work related matters on personal emails or personal cell phones to avoid that information from being disclosed.