Category: Police

Using personal cell phone to create employee emails subject to FOIA

Public Employee Emails Subject to FOIA

Even when using private email or devices, employee emails are subject to FOIA and must be included in a reasonably adequate search.

By Joshua Herman

email: joshua.herman@mhtlaw.com

On August 9, 2016, the Illinois Attorney General’s Public Access Counselor (“PAC”) issued Binding Opinion 16-006, which addressed the Freedom of Information Act’s (“FOIA”) application to employee email. The opinion unequivocally held that public employee emails were subject to FOIA, requiring that public bodies conduct a reasonable search for these responsive records, which includes searching public employees’ private emails.

Background of Request for Employee Emails

In January of 2016, CNN submitted a FOIA request to the Chicago Police Department (“CPD”) that sought “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 specific officers during various dates. CPD eventually provided its response on April 19, 2016. CPD’s response consisted of a series of emails with attachments totaling over 500 pages. CPD did not cite any exemptions nor did it provide an explanation with its untimely response.

Request for Review by PAC

CNN filed a Request for Review with the PAC, claiming the CPD’s response did not contain any responsive records despite the fact the CPD claimed that the provided emails were “all of the records found in their search.” CNN asserted that the CPD did not conduct an adequate search because CPD’s response did not contain “a single responsive email.”

Investigation of Whether Requested Employee Emails were Subject to FOIA

The PAC began its investigation by asking the CPD for:

“A detailed description of the processing of [the] FOIA request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted.”

CPD responded that it searched its email system for the 12 named officers for the requested time periods, resulting in 47 e-mails being located. Some of these e-mails were described as being “News Clips” and 12 of the emails were copies of the same two emails.

CNN pointed-out that CPD’s response indicated that the CPD did not search for officers’ emails on any other platform or device, including personal email accounts. CNN argued that:

“Even if the Department does not retain control over personal email or devices, it still has a duty to request copies of such communications that relate to the officer’s public service role and/or in the performance of their government function.”

CNN further questioned how the CPD conducted its search:

“Regardless of the email accounts and devices actually searched, it is entirely unclear to us the search terms and/or parameters the Department actually undertook in conducting its search. Obviously, the search terms used, and the review procedures utilized that would identify highly-relevant documents that might not be found using a search term, are crucial to obtaining CNN’s satisfaction that the Department has engaged in a fulsome search responsive to CNN’s FOIA request.”

The PAC then requested that CPD describe the methods it used to search CPD e-mail accounts, including the particular search terms used.

CPD responded by stating that it searched the email accounts of the 12 named police officers for the search term “Laquan McDonald” during the date ranges requested. CPD also confirmed that it had not conducted a search of any personal e-mail accounts, arguing that e-mails on those accounts are not “public records.” CNN responded that:

”Giving public officials like police officers carte blanche to evade FOIA laws by using personal email for public purposes would eviscerate Illinois FOIA. Moreover, public officials would have an incentive to avoid FOIA by deliberately communicating about sensitive or controversial topics on private email. This flies in the face of the very purpose of public information laws.”

Analysis of whether employee emails subject to FOIA

The PAC began its analysis of whether the private emails of public employees may be subject to FOIA by determining whether they could be “public records.” The PAC addressed the definition of “public records” as it was discussed in City of Champaign v. Madigan, a case that held that some government official text messages are public records. According to the appellate court, to be a “public record,” the communication must

  1. Pertain to the transaction of public business and it must have been
  2. Prepared by,
  3. Prepared for,
  4. Used by,
  5. Received by,
  6. Possessed by, or
  7. Controlled by a public body.

After reviewing the City of Champaign case, the PAC explained that when individual public employees act in their official capacity, they are transacting the public business of the public body. The PAC found that CPD’s interpretation would “undercut the principle that public bodies act through their employees” and that excluding all communications on personal devices or accounts, regardless of whether they pertain to transaction of public business, wrongly focuses solely on the method of communication rather than on the content of the communication.

The CPD had also argued that personal email accounts are not subject FOIA because CPD does “possess or control” those records. The PAC rejected this argument, explaining that an agency always acts through its employees and officials and that if one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the employee or official stores them outside of the agency.

The PAC explained that the CPD’s argument “would yield absurd results by enabling public officials to sidestep FOIA and conceal how they conduct their public duties simply by communicating via personal [electronic] devices.”

CPD also argued that searching personal email accounts would subject employees to unreasonable and unnecessary invasions of personal privacy, an exemption under Section 7(1)(c) of FOIA. However, this exemption expressly states that “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Consequently, according to the PAC, any emails exchanged by CPD employees pertaining to Laquan McDonald would pertain to public business and accessing them would not be an unwarranted invasion of personal privacy.

Although personal accounts can contain public records, the PAC explained:

“[t]he fact that a personal e-mail account is used to send or receive public records does not transform all communications sent or received on that account, in particular those with no connection to the transaction of public business, into public records that must be disclosed in accordance with FOIA.”

The PAC noted that the CPD did not assert that it asked employees whether they possessed responsive emails, nor did the CPD assert that any employee objected to providing responsive emails. Indeed, the CPD indicated that it took no action to ascertain whether its employee’s had responsive records. The PAC explained that although a public body need not search every record system, it cannot limit its search to only one system if others are likely to contain records responsive to a request.

While FOIA does not specify the manner in which a public body must conduct its search for records, the PAC stated that ordering the CPD officers to produce any responsive records they possessed may have satisfied CPD’s obligation to conduct a reasonable search. In support of this, the PAC cited cases that hold, absent a lack of good faith, a public employee’s search of his personal e-mail and confirmation that he did not locate responsive records satisfies the public body’s obligation to conduct an adequate search.  In light of FOIA, CPD could not simply decline to search for responsive emails on an officer’s private email account.

The PAC also addressed whether CPD’s search term of “Laquan McDonald” was adequate under the circumstances. The emails CPD did produce demonstrated that officers referred to McDonald in multiple ways, including misspellings and the use of only one part of his name. The PAC explained that under these circumstances, the singular search term was “not reasonably calculated to discover all relevant records.”

CPD Ordered to Obtain Employee Emails Subject to FOIA

The PAC found CPD’s response and underlying search to be inadequate under FOIA. The PAC’s binding opinion required the CPD to conduct a search of the personal e-mail accounts of the relevant CPD officers. The PAC suggested that, at a minimum, this requires the CPD to ask the officers whether they possess responsive records, and if so, requiring the officers to provide copies of those records to the CPD.

The PAC further directed CPD to expand its search terms to more reasonably attempt to locate responsive records by including:

  • Alternate name spellings,
  • Names of officers,
  • The incident number,
  • The location of the incident,
  • And a physical description of Laquan McDonald.

Conclusion and next steps

In summary, the PAC’s Binding Opinion held that public bodies must take reasonable steps to locate all public records responsive to a FOIA request. Because employee emails are subject to FOIA to the extent they are public records, regardless of whether they are stored in or sent by a private account or private device. Based on this opinion, in order to comply with FOIA, public bodies should investigate whether employees’ private email, devices and text messages contain responsive records. This means, at a minimum, public bodies must at least ask their employees if they possess responsive records.

This PAC opinion also requires public bodies to craft searches reasonably designed to find relevant documents by using multiple search terms that could be used in or related to relevant records.

Of course, every situation is different based on the facts and circumstances involved. A public body should consider seeking legal advice to ensure it has complied with its legal obligations under FOIA.

Click here for a copy of the complete binding opinion regarding the disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business and the Duty to Conduct a Reasonable Search for Responsive Records.

Image of cannabis leaves

New Law Decriminalizing Marijuana and Drug Paraphernalia

Ordinances Enacted by Units of Local Government Not Affected by New Law Decriminalizing Marijuana and Drug Paraphernalia.

By:  Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

Effective July 29, 2016, the possession of certain small amounts of cannabis and drug paraphernalia are no longer criminal offenses.  The bill that was signed into law by Governor Bruce Rauner on July 29, 2016 decriminalizes the possession of small amounts of cannabis and drug paraphernalia by amending the portions of the Illinois Criminal Code pertaining to possession of cannabis and possession of drug paraphernalia.  Under the amended Cannabis Control Act (720 ILCS 550/1 et seq.), a person in possession of less than 10 grams of any substance containing cannabis is guilty of a civil law violation.  Such civil violation is punishable by a minimum fine of $100 and a maximum fine of $200.  Similarly, under the amended Drug Paraphernalia Control Act (720 ILCS 600/1 et seq.), any person who is also in possession of drug paraphernalia [during the civil cannabis violation] is guilty of a civil violation and subject to the same $100 minimum fine and $200 maximum fine.

The proceeds of the fines for these civil violations are distributed as follows:

  1. $10.00 to the Circuit Clerk;
  2. $10.00 to the law enforcement agency that issued the violation;
  3. $15.00 to the County;
  4. $10.00 to the Appellate Prosecutor;
  5. $10.00 to the State’s Attorney; and
  6. The remainder to the law enforcement agency that issued the citation ($45 to $145).

The Cannabis Control Act was also amended by adding a new section which addresses the impact of the changes upon local ordinances.  Section 17.5 of the Act explicitly states: “The provisions of any ordinance enacted by any municipality or unit of local government which impose fines upon cannabis other than as defined in this Act are not invalidated or affected by this Act.”

Therefore, municipalities and park districts are not required to change their ordinances in order to comply with the new law.  Municipalities and park districts may still issue ordinance citations for possession of less than 10 grams of cannabis and possession of drug paraphernalia, as well as impose fines for such possession in excess of $200.  However, because the law is already in effect, municipal and park district police departments should immediately review department policies and procedures with regard to processing violations for possession of cannabis and drug paraphernalia as either ordinance violations, civil violations, misdemeanors, and/or felonies.

New Laws for Law Enforcement Agencies in 2016

Officer-Involved Deaths, Body Cameras, Terry Stops, Towing of Vehicles, and More

By Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

On January 1, 2016 several new laws regulating law enforcement agencies and their activities went into effect.  A brief summary of each law is provided below.

Public Act 99-352

Law Enforcement Officer-Worn Body Camera ActThe Act provides that any agency that elects to use body cameras must adopt a written policy relating to their use, provide training to those officers that use the cameras, and provide an annual report to the Illinois Law Enforcement Training Standards Board (the “Board”).  Note that the Act only applies to law enforcement agencies that elect to use body cameras; it does not require agencies to use body cameras.

The annual report required by the Act must be submitted to the Board on or before May 1st of each year, and include (1) a brief overview of the agency’s composition; (2) the number of officers using body cameras; (3) the number of body cameras being used; (4) any technical issues with equipment and how they are fixed; (5) a brief description of the review process used by supervisors; and (6) the time, date, precinct, offense charged, date charges filed, and any other relevant information for each recording that is used in the prosecution of an offense.

The Act also provides that the body camera recordings are generally exempt from disclosure under FOIA.  However, such recordings must be disclosed in accordance with FOIA in any of the following situations: (1) the subject is a victim or witness and the agency obtains written permission from the subject or his legal representative; (2) the recording is flagged due to the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or bodily harm; or (3) the subject of the recording, his attorney or his legal representative requests it.

Additionally, the Law Enforcement Camera Grant Act (50 ILCS 707/5) provides financial assistance to municipalities for the purpose of purchasing body cameras.

Terry StopsSection 11-212 of the Illinois Vehicle Code has been amended to include that officers complete a “uniform pedestrian stop card” (“Stop Card”) for a pedestrian that is frisked, searched, or arrested.  A Stop Card must include the date; time; location; gender of the pedestrian; alleged reasons for the stop; whether a frisk was conducted; reasons for the frisk; whether the frisk was by consent or other means; whether contraband was found during the frisk; type and amount of contraband seized; whether a search was conducted; reasons for the search; whether the search was by consent or other means; whether the stop resulted in a warning, ticket or arrest; and the name and badge number of the officer.

The forms currently used by a majority of law enforcement agencies do not contain all of the required information.  Therefore, it is recommended that an agency prepare or obtain new forms or modify existing forms to comply with the law.

Additionally, Section 107-14 of the Illinois Code of Criminal Procedure was amended to include a requirement for officers to issue a “stop receipt” when a person is stopped in a public place, the officer reasonably believes the person is committing, about to commit, or has committed a crime (excluding traffic offenses and ordinance violations), and the officer conducts a frisk or search.  The stop receipt must contain the officer’s name, badge number, and reason for the stop.  However, the officer is not required to issue a stop receipt if it is impractical, impossible or exigent circumstances exist.

The key difference between a “stop card” and “stop receipt” is the nature of the violation.  A stop card is issued to pedestrians that are stopped based upon a violation of the Illinois Vehicle Code, while a stop receipt is issued to any individual that is temporarily stopped for questioning in relation to criminal activity and not subject to arrest.

Police and Community Relations Improvement ActThe Act requires all law enforcement agencies to have a written policy regarding the investigation of officer-involved deaths.  An officer-involved death is the death of any individual caused by an act or intentional omission of a law enforcement officer while acting within the scope of his employment.

The policy must provide that the investigation shall be conducted by at least 2 investigators who are not employed by the agency involved in the death, and the lead investigator must be certified by the Illinois Law Enforcement Training Standards Board (the “Board”) as a Lead Homicide Investigator.  If the death involves a motor vehicle accident, the policy must provide that at least one investigator shall be certified by the Board as a Crash Reconstruction Specialist.  Finally, the policy must require the investigators to provide a report to the State’s Attorney or to publicly release it if the State’s Attorney declines to prosecute.

The Act permits an agency to conduct an internal investigation into an officer-involved death as long as it does not interfere with the outside investigation required by the Act.

Uniform Crime Reporting ActThe Act requires all law enforcement agencies to submit the following information to the Illinois State Police (ISP) on a monthly basis: a report for any arrest-related death (not including death of an officer), discharge of a firearm by an officer causing a non-fatal injury (beginning January 1, 2017), a report on hate crimes, a report on any alleged commission of a domestic crime, data on specific offenses selected by ISP, and data on offenses and incidents reported by schools.

In addition to the monthly reports, beginning July 1, 2016, all agencies must submit information regarding a criminal homicide as required by ISP rules and regulations on a quarterly basis.

Officer Professional Conduct Database:  The Illinois Police Training Act was amended to now require that all law enforcement agencies notify the Illinois Law Enforcement Training Standards Board (the “Board”) when there has been a final determination of a willful violation of agency policy, official misconduct, or violation of law if an officer is discharged as a result of the violation or resigns during the course of an investigation.  The agency must notify the Board of the nature of the violation within 30 days of the final determination.

Use of ForceThe Illinois Criminal Code was amended to prohibit peace officers from using chokeholds in the performance of their duties, unless deadly force is justified under the Criminal Code.  A chokehold is defined as “applying any direct pressure to the throat, windpipe, or airway of another with the intent to reduce or prevent the intake of air.”

Public Act 99-438

Tow Rotation ListThe Act amends the Illinois Vehicle Code by requiring any law enforcement agency whose duties include the patrol of highways to maintain a tow rotation list.  The list must be used by officers when authorizing any vehicle tow within its jurisdiction.  The agency is allowed to maintain multiple lists covering different geographic locations within its jurisdiction; a towing service may be included on more than one list.

Any towing service may apply for inclusion on the rotation list by submitting an application in the form and manner provided by the law enforcement agency.  In order to be included on the rotation list, a towing service must meet the requirements set forth in the Act (see 625 ILCS 5/4-203.5).  An agency may select which towing service(s) meeting these requirements will be included on the rotation list.  Complaints regarding inclusion on the list should be referred in writing to the head of the agency; however, an agency cannot be held liable for excluding a service from the list.

When an officer initiates a vehicle tow, he must inform his agency that a tow has been authorized.  The agency must then select a towing service from the list and contact the service directly.  Towing services must be contacted in the order listed; however, in the event a service is unavailable, the next service on the list should be contacted.  An agency may also deviate from the order listed in the event of an emergency, or if the officer or agency determines the service is not properly equipped to handle the tow.  Whenever a towing service that has not been requested arrives on scene, the officer is obligated to tell that service to leave.