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Public Access Opinion 16-006

Freedom of Information Act - Duty to Conduct Reasonable Search for Responsive Records Includes Search of Employees’ Personal Email Accounts for Communications Pertaining to the Transaction of Public B

Administrator Contracts
Case: Public Access Opinion 16-006
Date: Tuesday, August 9, 2016

CNN submitted a FOIA request to the Chicago Police Department (CPD) for “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 named CPD officers for specific date ranges. In response, CPD searched for emails on the officers’ CPD email accounts which contained the complete name “Laquan McDonald.” CPD then disclosed over 500 pages to CNN without citing any exceptions or explanations for the records. CNN filed a Request for Review with the Public Access Counselor (PAC), alleging the records produced were not responsive and that CPD did not conduct an adequate search for responsive records. During the PAC’s review, CPD confirmed it had not searched the 12 officers’ personal email accounts for responsive records and argued that emails on such accounts are not “public records” subject to FOIA. The PAC disagreed, finding that “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.” CPD countered that FOIA provides no mechanism for it to compel employees to grant CPD access to their personal email accounts. The PAC advised that CPD itself did not necessarily need to conduct an automated search of the officers’ personal email accounts; it could instead meet its obligation to search the personal email accounts by initially ordering the CPD officers themselves to search their own personal email accounts and turn responsive records over to CPD. The PAC ordered CPD to do just that; it also ordered CPD to expand the scope of its search of CPD email accounts to include other search terms, such as alternate name spellings, the names of officers involved, the incident number, the location of the incident, and a physical description of Mr. McDonald.

The take away here is that public bodies must conduct a reasonable search for public records responsive to a FOIA request, which includes searching public employees’ communications on personal devices or accounts for records pertaining to the transaction of public business.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.