Wednesday, August 17th, 2016

New PAC Opinion Concerns FOIA and Personal Email Accounts

In a significant new opinion issued on August 9, 2016, the Illinois Attorney General’s Public Access Counselor issued an opinion finding that “communications pertaining to the transaction of public business that were sent or received on … personal email accounts are ‘public records’ under the definition of the terms in Section 2(c) of FOIA.”  See Public Access Opinion 16-006. This is a new interpretation of the reach of FOIA law and has the potential to raise other, new questions.

The PAC’s opinion involved a request made by CNN to the Chicago Police Department seeking “all emails [for certain officers] related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed.” The PAC’s Opinion discusses whether the Chicago Police Department had any obligation to search public employee’s personal email accounts for matters relating to the transaction of public business.  The PAC concluded that it does have such an obligation.

In order to determine whether emails on the personal account of a government employee are subject to FOIA, the PAC needed to determine if such emails fell into the category of “public record.” To do this, the PAC’s analysis relied on the earlier City of Champaign v. Madigan decision to determine whether something qualifies as a public record under Section 2(c) of FOIA.

As such, it must “(1) pertain [ ] to the transaction of public business and have either been (2) prepared by, (3) prepared for, (4) used by, (5) received by, (6) possessed by, or (7) controlled by a public body.”  The Champaign case had concluded that city council members acting alone were not a public body, but acting in concert they were a public body.  The issue of whether employee emails on private devices were public records was not explicitly decided in the Champaign case,  but here the PAC applied the Champaign reasoning to conclude that employees doing the work of the public body would be creating public records regardless of the device or email address on which they were prepared. According to the PAC, “when an individual public employee . . . acts in an official capacity, he or she transacts public business as a member of a municipal police department, which clearly is a public body subject to the requirements of FOIA.”

The PAC noted that if the communication was a public record, it does not matter on what device or by what means it was sent. Again, citing Federal law, the PAC concluded that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door.”

In support of its position that employees’ emails about work undertaken on personal devices/addresses are subject to FOIA, the PAC also discussed the type of search a public body is required to conduct for responsive records. In referencing federal law, it noted that a public body must conduct “a reasonable search tailored to the nature of a particular request” and noted that it could not limit its search to just one record system if there were others that were likely to have the information that was requested. The PAC concluded that in conducting an adequate search, the Police Department had a duty to at least try to obtain responsive records from personal email accounts since the request specifically sought such records.

In response to concerns regarding employee personal privacy, the PAC indicated that personal matters would not be required to be produced but that information that bears on the public duties of employees was not subject to personal privacy exemption. While the PAC acknowledged that FOIA does not describe how a public body is required to obtain this information, it indicated that at least depending on the circumstances, they could simply have asked the officers to produce responsive records and that this would satisfy the requirement to conduct a reasonable search. That is, the public body, if it makes a request in good faith, will have performed its obligation without invading the rights of its employees.

Thus, the PAC indicates that the Police Department at least needed to ask for the information. It does not address how to enforce the production of that information nor does it discuss how a body is to determine what, precisely, “bears” on the public duties of employees. For instance, if a police officer wrote to his mom that he felt terrible about all of the negative coverage stemming from the case, would that “bear” on his duties since it relates to the case? This might “bear” on his duties, but would not be covered by the analysis applied in the Champaign case.

Finally, it is worth noting that the PAC also held that simply searching the Police Department accounts for the name “Laquan McDonald” was by itself insufficient because there may have been references to the incident using the name of the officer, the incident number, the location or some other physical descriptions. It is also possible the names were not spelled correctly in some of the records. Therefore, the PAC found that the use of the full proper name as the only search term was not sufficient to discover the relevant records.

It is not clear what combination of search terms would constitute an adequate search under this standard, but apparently just one – the name of the party in question – was not sufficient. This aspect of the opinion, while it may receive less attention than the “private device” aspect, may have equally large implications for FOIA officers trying to conduct appropriate searches for requested documents, as it raises the question of — but does not fully answer — what combination of search terms will constitute an adequate search.

This decision is likely to be controversial. It expands the reach of FOIA into personal accounts of employees and expands the duty of government bodies to search for records in personal accounts and subjects their search terms and methodology to greater scrutiny. How this will be interpreted and implemented is likely to raise new questions and challenges that may depend on the legislature and courts to further clarify the full scope and reach of FOIA in Illinois.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg