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AG Madigan rules that police officers’ private e-mails are subject to FOIA

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Illinois

Chicago police officers’ emails discussing the Laquan McDonald shooting can’t be kept secret even though they were transmitted privately, a state official has decreed in what open-records advocates say is a solid step toward transparency on an issue that has roiled Illinois and reached as high as Hillary Clinton’s presidential campaign.

The binding opinion last week by Democratic Attorney General Lisa Madigan follows quickly on a May Cook County Circuit Court ruling that Chicago Mayor Rahm Emanuel’s emails about separate issues aren’t automatically exempt from disclosure even though sent on private devices.

The opinion has the force of law, requiring the police to search officers’ private accounts and turn over relevant emails — although the police department can ask a judge to overturn it. The dictum also fuels an ongoing national debate about access to discussions of public business on privately held cellphones and computers under decades-old disclosure laws which didn’t anticipate such an explosion of electronic communication. […]

“This binding opinion will hopefully make clear that public employees cannot evade FOIA by using private devices when conducting public business,” said John Costello, a Chicago public-access lawyer.

* This was the Chicago Police Department’s original defense…

Because the communications sought, if any exist, would have been prepared by or sent to individual officers and employees rather than the City, they are not communications “prepared by or for” a public body. And because the communications would not be stored on a City server or account, they cannot be “used by,” were not “received by,” and are not “in the possession of, or under the control of,” a public body. Thus, the requested communications, if any, do not fall within the FOIA’ s definition of a “public record” and are not subject to production under the Act.

* The attorney general’s retort…

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 principle 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.

There’s lots more, including a mandate to search e-mails more broadly. So, go read the whole thing if this subject interests you.

posted by Rich Miller
Tuesday, Aug 16, 16 @ 1:37 pm

Comments

Next they’ll start using SnapChat or something instead.

Oh, wait…

Comment by Stuff Happens Tuesday, Aug 16, 16 @ 1:40 pm
Wow. Just wow. While I can certainly see that officers could use private email accounts to conduct police business, this also just opens up a huge can of worms if officers are required to open up their personal email accounts to FOIA requests.

The potential for abuse or invasions of privacy is massive. Simultaneously, the potential for uncovering corruption within the ranks is also massive.

Comment by jerry 101 Tuesday, Aug 16, 16 @ 1:46 pm
I wonder if AG Madigan thinks the same rules apply to a certain presidential candidate?

Comment by blue dog dem Tuesday, Aug 16, 16 @ 1:49 pm
So, public employees surrender a right to privacy while off duty? Does the same apply to private sector employees?

Comment by Keyser Soze Tuesday, Aug 16, 16 @ 1:50 pm
“So, public employees surrender a right to privacy while off duty?” If they’re conducting public business, they are, by definition, not off duty. I don’t see the burden here. Don’t use personal email for public business. Seems pretty darned simple to me.

Comment by Skeptic Tuesday, Aug 16, 16 @ 2:02 pm
The ghost of George Orwell in the public body of Lisa Madigan.

Comment by Chicago Taxpayer Tuesday, Aug 16, 16 @ 2:05 pm
What Jerry101 said.

This is a high emotion case so many may support. But the potential for abuse is YUGE.

Comment by Slugger O'Toole Tuesday, Aug 16, 16 @ 2:06 pm
Pretty broad stroke by the AG, but doesn’t go so far to compel public employees to permit their employer to search private email accounts. The employer is only required to “ask” if the employee is in possession of responsive records. Presumably an employee who affirms they have records would have to provide the records, but I don’t see this ruling requiring the employee to hand over login information to permit their employer to conduct the search.

Comment by Jon Tuesday, Aug 16, 16 @ 2:08 pm
I expect the ACLU to jump into this opinion and fight strongly for the civil rights of all off duty Police. Ha !!

Comment by proudstatetrooper Tuesday, Aug 16, 16 @ 2:10 pm
**If they’re conducting public business, they are, by definition, not off duty**

So how do you find the public stuff without searching through the private stuff ?

Comment by DGD Tuesday, Aug 16, 16 @ 2:13 pm
Strong, strong disagree.

Comment by AlfondoGonz Tuesday, Aug 16, 16 @ 2:23 pm
“So how do you find the public stuff without searching through the private stuff ?” If you’re conducting public business, there is no expectation of privacy.

Comment by Skeptic Tuesday, Aug 16, 16 @ 2:26 pm
== So, public employees surrender a right to privacy while off duty? Does the same apply to private sector employees? ==

Kind of does, my regulators can request my private e-mails if they are related to work in some way. that way I can’t just send something on my gmail account and render it undiscoverable as it were.

Comment by OneMan Tuesday, Aug 16, 16 @ 2:30 pm
**If they’re conducting public business, they are, by definition, not off duty**

I expect a lot of requests for overtime pay then.

Comment by Right Field Tuesday, Aug 16, 16 @ 2:30 pm
*** Kind of does, my regulators can request my private e-mails if they are related to work in some way. that way I can’t just send something on my gmail account and render it undiscoverable as it were. ***

BIG difference between discoverability and FOIA.

Comment by Right Field Tuesday, Aug 16, 16 @ 2:32 pm
Skeptic: “If you’re conducting public business, there is no expectation of privacy.” Consider a situation in which someone sends a government employee an email about his government job. The employee can’t control what someone sends him, and has not in any way chosen to do public business on his private email. Yet that email, if relating to public business, could be subject to FOIA, thus necessitating a search of all of the personal emails, in order to separate the responsive from the non-responsive.

Comment by Anon Tuesday, Aug 16, 16 @ 2:35 pm
Another good example of lawyers discouraging exemplary employees. Some of us would set up an exchange account that forwards work emails to private devices when off campus, allowing response in emergencies even when “off-the-clock” and out of the office. This discourages employees from doing so, due to the realistic fear that big brother might just want to take a peak at my personal phone that I once looked at a work e-mail on even though that same email would be available on the work computer as well. Maybe I’m wrong, but this seems very dangerous to me.

Comment by LessAnon? Tuesday, Aug 16, 16 @ 2:37 pm
Anon # 2:35 — I’m not a lawyer, but from what I’ve read, I don’t think that’s necessarily true. Simply receiving an email doesn’t constitute “conducting official business.” It’s what you do with it. I believe the same is true with ex parte communications.

Comment by Skeptic Tuesday, Aug 16, 16 @ 2:42 pm
== The opinion has the force of law, requiring the police to search officers’ private accounts and turn over relevant emails ==

Relevant e-mails, so are you saying that you should be able to use your gmail account as a FOIA shield as it were?

Comment by OneMan Tuesday, Aug 16, 16 @ 2:43 pm
LessAnon? If the employee is that crucial, then the public body can issue the employee a publicly owned device. Problem solved.

Comment by Skeptic Tuesday, Aug 16, 16 @ 2:49 pm
I strongly disagree with AG Madigan. I believe there is (or should be) a distinction between actually conducting public business and discussing public business, i.e., a personal conversation, with a co-worker while using one’s personal device.

Comment by Yiddishcowboy Tuesday, Aug 16, 16 @ 2:54 pm
Just delete your emails regularly. I dont believe they can require you to keep them or make backups some how.

Comment by Union Dues Tuesday, Aug 16, 16 @ 2:59 pm
Yiddish: What if the otherwise-private email conversation was about how the officers felt during an incident? Shouldn’t that be public knowledge?

Comment by Skeptic Tuesday, Aug 16, 16 @ 3:05 pm
So, co-workers go to a bar and one of them says “how about that bozo on the loading dock?” Better yet, some cops are at their bowling league after hours and one of them says “how about that bozo behind the Chief’s desk?” How is that anyone’s business other than the participants? It’s not in the country I grew up in. Otherwise, conversation would disappear.

Comment by Keyser Soze Tuesday, Aug 16, 16 @ 3:10 pm
What is on my personal email is none of her damned business unless she has a warrant. Can’t believe that a liberal democrat would agree to this…

Comment by downstate commissioner Tuesday, Aug 16, 16 @ 3:11 pm
The opnion states,

“CPD may initially conduct this search by asking the 12 CPD officers whether they maintain any records responsive to the request, and, if so, by requiring the officers to provide copies of the records to CPD’ s FOIA Officer.”

In any event private e-mail accounts on a matter are subject to disclosure by subpoena in civil law suites without any consideration of offical business.

The opinion discussed a number of cases in and out of Illinois where this issue arose. The Champaign City Council was a fun case.

Just imagine, the Governor, or Speaker of the House, could avoid official e-mail accounts and only use personal accounts. Or the Secretary of State.

As far as deleting e-mail, I doubt you can truly get rid of anything anymore.

Comment by Bigtwich Tuesday, Aug 16, 16 @ 3:20 pm
Skeptic 2:

Comment by Anon Tuesday, Aug 16, 16 @ 3:20 pm
**What is on my personal email is none of her damned business unless she has a warrant. Can’t believe that a liberal democrat would agree to this…**

What is on my personal email is none of her damned business unless she has a warrant. I can believe that a liberal democrat would agree to this…

There, fixed it for ya.

Comment by DGD Tuesday, Aug 16, 16 @ 3:20 pm
Hypocrisy reigns as you can bet this will not be applied to politicians.

Madigan, like her father, has already been too long involved in Illinois politics. Power corrupts and twists the mind.

Comment by Federalist Tuesday, Aug 16, 16 @ 3:21 pm
Waiting for someone to FOIA all of the AG’s personal emails … like the police officers union.

Point of clarification, if Officer X sends a personal email to Officer Y saying that Sargent Z is an @#$%^, is that conducting public business?

Comment by titan Tuesday, Aug 16, 16 @ 3:29 pm
Skeptic 2:42 — you are mistaken. Section 2 of FOIA defines “public records” (which are subject to FOIA) to include communications “received by . . . a public body.” There’s nothing about an employee “conducting public business” on his email. Under the AG’s ruling, if an employee receives an email that relates to the transaction of public business, that email is subject of FOIA. And that’s true regardless of whether that employee did anything other than receiving that email.

Comment by Anon FOIA Tuesday, Aug 16, 16 @ 3:31 pm
Union Dues — Under the AG’s rationale, such private emails would likely be subject to the Local Records Act, which prohibits the destruction of “public records” and makes doing so a criminal offense. Another reason why this decision is so wrongheaded.

Comment by Anon FOIA Tuesday, Aug 16, 16 @ 3:32 pm
Too thin Rooster; too thin.

Comment by Anonymous Tuesday, Aug 16, 16 @ 3:38 pm
@Skeptic @3:05: with respect,I say no, the public has no right to know. They are private conversations…even about public events.

Comment by Yiddishcowboy Tuesday, Aug 16, 16 @ 3:42 pm
Since this is Illinois, over/under on how fast this expansion will be abused.

Also - Does complaining about your job or your boss qualify as work related? What about anonymous posts on a message board? Or Facebook?

Someone needs to ask AG Madigan if she cleared her FOIA backlog from 2011.

Comment by Chicagonk Tuesday, Aug 16, 16 @ 3:54 pm
I’m cool with this as long as it applies to the Governor, AG, Legislature, and all other public officials. Lisa is opening up a huge can o’ worms.

Comment by Ratso Rizzo Tuesday, Aug 16, 16 @ 4:32 pm
Yeah Lisa, let’s make it even more unattractive for young men and women to choose a dangerous career in LE.

Comment by Responsa Tuesday, Aug 16, 16 @ 4:45 pm
It’s clear that fewer tham half of thr commenters here read the opinion. Relax, people; it’s not as bad as you think.

Comment by Anonymous Tuesday, Aug 16, 16 @ 5:29 pm
More Madigan buffoonery

Comment by Ron Tuesday, Aug 16, 16 @ 7:08 pm
Get A Warrant!! Private emails from American Citizens should never be part of a FOIA.

Comment by Shankks Wednesday, Aug 17, 16 @ 12:06 am