Illinois Attorney General Lisa Madigan has issued a binding opinion under the state's Freedom of Information Act (FOIA) that email messages sent or received through public employees' personal email accounts may be public records subject to disclosure under FOIA if the messages pertain to public business.
On Jan. 28, 2016, CNN submitted a FOIA request to the Chicago Police Department (CPD) seeking "all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed" by 12 police officers. McDonald, who was killed in the incident, was shot 16 times in October 2014 by a Chicago police officer. McDonald was unarmed and the incident drew headlines across the nation.
The City of Chicago produced email messages the City claimed were responsive to CNN's request, but CNN said that none of the messages produced by the City were responsive. CNN filed a challenge to the City's response with the Attorney General (AG) Public Access Counselor.
While the challenge was pending, the City gave the AG a summary of the search methods the City used to locate records responsive to CNN's request. The summary revealed that the City searched the officers' email accounts on the City's email server. The summary did not show whether the City searched, or otherwise tried to obtain, any email messages that might have been in the officers' personal email accounts. The City subsequently confirmed that it had not sought email messages sent or received from personal accounts, regardless of whether the messages discussed public business.
The City contended that any email messages in the officers' personal email accounts were not "public records" because the records were not in the possession or control of the City. In addition, the City argued that the search of an employee's personal account would be an unreasonable and unnecessary invasion of the employee's personal privacy.
The AG rejected the City's arguments and determined that email messages sent or received by a public employee that pertain to public business are public records subject to the disclosure requirements of FOIA, regardless of whether the email messages are on a personal email account. The AG explained that, under those circumstances, an employee is transacting public business and thus generating public records:
When an individual public employee such as a CPD officer 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. CPD's interpretation would undercut the principal that public bodies act through their employees, by excluding from the definition of "public records" communications sent or received by employees of a public body on personal devices or accounts, regardless of whether the communications pertain to the transaction of public business. Such an interpretation erroneously focuses not on the content of a communication but on the method by which it is transmitted.
The AG also rejected the argument that compulsory disclosure of personal email from a personal email account infringes on a public employee's privacy rights. The AG reasoned that Section 7(1)(c) of FOIA specifically states that "disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy." The AG noted that the decision is limited to email pertaining to public business and does not apply to email regarding personal matters.
The AG's opinion cites a passage from the Appellate Court of Illinois for the Fourth District's opinion in City of Champaign v. Madigan, 2013 IL App (4th) 120662. The AG wrote:
The [Champaign] court stated that if a communication pertaining to public business was sent to and received by members of a city council on personal electronic devices during a city council meeting when the individual "members were functioning collectively as the 'public body,' then the communication is a 'public record' and thus subject to FOIA." City of Champaign, 2013 IL App (4th) 120662,¶ 42, 992 N.E.2d at 639- 40. The court added: "To hold otherwise would allow members of a public body, convened as the public body, to subvert the Open Meetings Act [ ] and FOIA requirements simply by communicating about city business during a city council meeting on a personal electronic device."
In Champaign, a reporter submitted a FOIA request requesting all email messages and text messages sent by city council members during a public meeting through personal email accounts on personal devices. The court held that the email and text messages in that particular situation were public records subject to disclosure under FOIA because the records were in the "possession and control" of the public body. The messages were sent and received while the city council was convened for a public meeting and thus the council members were conducting the business of the city (Id. ¶42). The messages would not have been public records, the court explained, if the city council had not been convened in a meeting at the time the messages were sent and received (Id. ¶41). The Champaign court wrote, "a message from a constituent 'pertaining to the transaction of public business' received at home by an individual city council member on his personal electronic device would not be subject to FOIA."
The AG did not explain the difference between the situation in Champaign in which the city's officers were convened in an official meetings and the situation in the McDonald matter in which the Chicago police officers who were off duty were sending messages in personal accounts on personal devices.
The distinction drawn by the AG appears to be that the role of a public employee differs from that of a city council member. A public employee has an ongoing duty to the public body and acts as the public body's agent at all times when conducting public business. A city council member, in contrast, has no independent authority and acts as the public body's agent only when the corporate authority of the public body – whether a city council, board of trustees, or subsidiary body – is convened.
The AG's opinion also does not prescribe the method by which public bodies may search an employee's personal email account. The AG stated that FOIA requires a public body to conduct a "reasonable search tailored to the nature of a particular request" and that "depending on the circumstances, ordering CPD officers to produce any responsive records may satisfy the requirements that CPD conduct a reasonable search." The AG does not consider, however, what circumstances may require a public body to do more than order an employee to provide records. Nor does the AG consider what a public body is required to do if it suspects an employee has not turned over responsive records or simply refuses to comply with the order.
The AG's opinion also does not discuss what it means for a personal email message to "pertain to public business." This omission raises questions: Is an email message sent on a personal email account discussing public business a public record even if the message is sent when the employee is off duty? Can a public employee discuss work at all in a personal email message without that message becoming a public record? For example, if a public employee sends a message on Saturday afternoon to her parents describing in detail her work the day before, is that message necessarily a public record?
The AG addresses only email messages and not text messages. The AG's analysis likely would be the same for text messages on personal devices through personal accounts, making those text messages also subject to disclosure under FOIA as public records.
In light of the AG's opinion, public bodies should expect to receive FOIA requests that specifically request email and text messages sent or received through personal email accounts and on personal devices. Accordingly, it makes sense that each public body establish clear guidelines requiring employees to turn over, if requested by the public body, personal email and text messages that pertain to public business.
Because the email and text messages pertaining to public business are public records, the guidelines might include procedures for retaining and archiving those public records to make sure the public body remains in compliance not only with FOIA, but also with the Illinois Local Records Act retention and destruction requirements.
In addition, public bodies that have not already done so should consider whether to adopt a policy prohibiting public employees from using personal email accounts and personal devices to discuss public business.
Holland & Knight attorneys are able to provide more information about the AG's opinion and to assist in the review and development of local policies that may be advisable in the wake of the opinion.
A copy of Attorney General Opinion 16-006 is available online.
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