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“public record,” it must be “prepared by or for,” or “used by, received by, in the possession of or under the control of any public body.” CPD explained that the individual officer employees of CPD are not a “public body” within the meaning of FOIA. Moreover, CPD explained, com- munications of individual officer employees on their privately owned and personal email accounts were not “prepared by or for,” or “used by, received by, in the possession of or under the control of any public body.” Thus, these communications were not subject to disclo- sure under FOIA.
The City also indicated that it did not possess any communications stored on its employees’ privately owned and personal email accounts. Finally, it further opined that FOIA provided no means by which the De- partment could force its individual employees to grant the Department access to any privately owned email ac- counts – which, arguably, constitutes an unreasonable violation of privacy (not to mention the Collective Bar- gaining Agreement), an interest expressly protected un- der the FOIA statute itself.
On Aug. 9, the counsel to the Attorney General (AG) issued an opinion letter, which might have long-term consequences if left unchallenged. Specifically, the AG determined that emails on any personal email accounts of any Department employees are subject to the require- ments of FOIA. As part of the opinion letter, the AG found that the Department did not demonstrate that it con- ducted an adequate search for all the records because it did not even attempt to obtain responsive records from the personal email accounts of the named officers. The opinion letter then directed the city to conduct a search of the personal email accounts of those officers named in the request. The opinion letter would be considered a final decision by an administrative agency unless an “aggrieved party” obtained judicial review with the state court.
Although the Lodge did not qualify as an “aggrieved party,” for purposes of attacking the opinion letter, the Lodge is an interested party. Yet, the Lodge initially had no basis to file a complaint for review. However, the city is an aggrieved party, and it could. Indeed, the city in- formed the Lodge that it would file a complaint for ad- ministrative review of the opinion letter and, on Sept. 13, it did (giving the Lodge the ability now to seek to in- tervene in the litigation to make sure that all members’ rights are fully protected). For once, the city’s interests and the Lodge’s interest seem to be the same.
In its complaint for administrative review, the city jus- tifiably attacks the opinion letter for incorrectly deter- mining that the city’s obligations to comply with a FOIA request extend to emails of individual officer employees contained on their privately owned, personal email ac- counts. The city goes on to argue that the AG also incor- rectly construed the definition of “public records,” and improperly applies that definition in concluding that the emails sought by CNN on individual officer employ- ees’ privately owned, personal email accounts are “pub- lic records.” The AG also improperly equates individu-
al officer employees with a “public body subject to the requirements of FOIA,” and should not have concluded that individual officer employees communicating on private email accounts are transacting business as a “public body,” as defined by FOIA.
Additionally, the opinion letter would impose an ad- ditional obligation on the city, which FOIA does not require: an obligation to search records of employees’ privately owned, personal email accounts that are not currently under the city’s control. This ruling would al- low any entity the ability to make FOIA requests seek- ing privately owned, personal email accounts on all governmental agents and employees – the mayor, the aldermen, city clerk, superintendent, down to any rank- and-file streets and sanitation worker. Surely, drafters of FOIA did not contemplate such a far-reaching impact.
The Lodge filed a motion to intervene, so it can active- ly and directly participate in the process. The judge has the discretion to grant or deny that request. The Lodge will keep the membership apprized of any new develop- ments. In the meantime, as I explained to a group of de- tectives last month at the Lodge hall, officers should not be using their personal cell phones while at work – even if it is strictly for personal use. Leave them in your lock- ers. Avoid any potential problem. Play it safe. The De- partment cannot force any member to possess a person- al cell phone while at work. Any need to communicate for work-related business should only be performed on a Department-issued device. d
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