Public Employees’ Personal E-Mails Deemed “Public Records” Under FOIA

October 11, 2016

On August 9, 2016, the Public Access Counselor (PAC) of the Illinois Attorney General’s Office issued a binding PAC Opinion (Ill. Att. Gen. PAC 16-006) that deemed e-mails sent on Chicago Police Officers’ personal e-mail accounts to be “public records” subject to the Illinois Freedom of Information Act.

In the aftermath of the shooting of Laquan McDonald by Chicago Police Officer Jason Van Dyke, CNN reporter Courtney Yager submitted a public records request to the Chicago Police Department (“CPD”) requesting “all e-mails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for twelve officers involved in the case. CPD responded by only providing records contained on CPD servers, and did not ask the Officers to search their private email accounts for responsive documents.

The PAC found (1) “e-mails pertaining to the transaction of public business on the personal e-mail accounts” of CPD Officers are “public records” and (2) CPD did not conduct a reasonably adequate search for responsive records because it did not search the personal e-mail accounts of the Officers. On September 13, 2016, the City of Chicago sought review of the PAC’s decision in the Circuit Court of Cook County pursuant to the Illinois Administrative Review law, and is currently pending in front of Judge Kathleen Kennedy (Case No. 2016 CH 12085).

The Attorney General’s opinion is extremely broad in its language, holding that public bodies “act through their employees” when conducting official business. The Attorney General’s interpretation greatly expands the reach of FOIA, and local governments should expect similar inquiries related to public business. When sending or receiving an e-mail related to the business of a public entity, public employees should be advised that those e-mails are potentially public records subject to FOIA.

By issuing a binding opinion, the PAC aggressively expanded the reading of City of Champaign v. Madigan, 2013 IL App (4th) 120662. The Appellate Court in City of Champaign made clear that City Council members’ communication amongst themselves on their private devices while the Council was in session were “public records,” and that the Council, while in session, was acting as a public body. The PAC concludes that this situation is analogous to police officers’ communication in the course of an investigation.

Furthermore, the PAC found the search by CPD for responsive records to be inadequate because CPD did not search alternative or misspelled versions of McDonald’s name. The PAC concluded that “Mr. McDonald’s name may have been spelled differently in some emails,” and therefore a “reasonable search” required alternate spellings to be included among the search terms. The PAC did not specify whether this finding was due to a unique first name, or a common last name that carries multiple spelling configurations.

We shall be monitoring the progress of the case for its potential precedential value as the case is likely to be appealed regardless of the outcome. If you have further questions on how to ensure your agency and employees comply with the provisions of FOIA please contact us.

Ill. Atty. Gen. PAC Op. 16-006, Request for Review 2016 PAC 41657

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