Carroll v. Merrill Lynch, 2012 WL 4875456, (7th Cir. 10/16/12).

Illinois Eavesdropping Act

Open Meetings Act - OMA
Case: Carroll v. Merrill Lynch, 2012 WL 4875456, (7th Cir. 10/16/12).
Date: Tuesday, October 16, 2012

This case may be of interest to school officials because the Illinois Eavesdropping statute applies to any conversation, including lawfully closed meetings under the Illinois Open Meetings Act. What that means is that while a recording of a closed meeting is required by the Illinois Open Meetings Act, an individual in a closed meeting making his or her own recording without the knowledge or consent of others present in the closed meeting would violate the Eavesdropping statute in Illinois. This case discusses the “fear of crime” exception to the Illinois Eavesdropping Act.

Mary Carroll called her coworker, Jim Kelliher late on a Thanksgiving Day. According to Carroll, she was “riled up” and she snapped on the phone. Kelliher’s wife overheard Carroll on the other end of the phone and recorded the conversation without Carroll’s knowledge. Kelliher was frightened after the phone call, and he reported it to his supervisors at Merrill Lynch. Carroll was fired for the phone call and initiated this suit as a violation of the Illinois Eavesdropping statute. The Illinois Eavesdropping statute prohibits recording conversations without the consent of all the parties and the subsequent use of that recording. 720 ILCS 5/14-2 (a)(1). The fear of crime exemption allows unauthorized recordings under a reasonable suspicion that another party to the conversation is committing, about to commit, or has committed a criminal offense against that person or a member of his or her immediate household. To determine a reasonable suspicion, the exemption requires that (1) a subjective suspicion that criminal activity is afoot, and (2) that the suspicion be objectively reasonable.

Carroll argues that the failure of Kelliher to call the police means that there was a lack of reasonable suspicion. However, Illinois criminalizes phone calls made with the intent to abuse, threaten or harass any person at the called number. 720 ILCS 135/1-1(2). Carroll’s own admission that she was angry and snapped on the phone can be used as evidence of the abusive nature of the phone call. Further, Kelliher’s wife had a reasonable suspicion of a crime, so her recording fell under the fear of crime exemption.

Rachel Prezek, IASB Law Clerk