 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.
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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.
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