According to a ruling from Illinois’ attorney general, government employees cannot conceal work-related communication on private email, despite the Chicago Police Department’s arguments for it.
Should government employees be allowed to hide their discussions of government business by using their personal email accounts? A new opinion from Illinois Attorney General Lisa Madigan says no.
Madigan issued a binding opinion Aug. 9 requiring the Chicago Police Department, or CPD, to disclose police officers’ private emails related to the October 2014 shooting death of Laquan McDonald. This opinion came in response to a Freedom of Information Act, or FOIA, request made by CNN, which asked for, among other things, “all emails related to Laquan McDonald from… personal email accounts where business was discussed” from 12 police officers, including Officer Jason Van Dyke, who shot McDonald. CPD did not attempt to gain access to any records from the officers’ private email accounts in making its response, despite CNN’s request.
Under FOIA, all public bodies, including CPD, must make all public records available to members of the public. These records include all electronic communications “pertaining to the transaction of public business” if they were created by or for, used by, received by or in the control of that public body. CPD argued that the private emails were not public records subject to FOIA requests because they were sent by individual employees and were not prepared by or for a public body. According to CPD, the private emails also were not used or received by, or in the possession of the public body because they were not stored on a city server.
Madigan rejected that argument, citing a federal appellate court decision stating 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[.]” As Madigan recognized, if emails sent through private accounts weren’t considered public records, government employees could avoid otherwise lawful requests for public records, and avoid public scrutiny, by using private accounts.
Madigan also rejected CPD’s arguments that it couldn’t review officers’ personal emails because FOIA doesn’t require disclosure of records when it would constitute an “unwarranted invasion” of someone’s “personal privacy.” According to CPD, officers’ interests in keeping CPD from sifting through their private and potentially highly personal emails to find documents about public business would outweigh the public’s interest in seeing them. But that argument failed because the law expressly states that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”
CPD can ask a court to review Madigan’s decision, but as it stands, officers will not be able to avoid responding to FOIA requests by communicating through private accounts.
Unfortunately, this is not the first attempt by Chicago police to obscure abuse-related data from reporters. When city officials were poised to turn over CPD disciplinary records pursuant to a FOIA request from independent journalist Jamie Kalven, the Chicago Tribune and the Chicago Sun-Times, the Fraternal Order of Police, the union representing rank-and-file police officers, sued to prevent the release of records more than four years old.
But the Illinois attorney general’s decision to require the release of emails related to the Laquan McDonald shooting is a good step toward holding public officials accountable. Other public officials in Illinois are on notice that they can’t hide official business through private accounts, either.