Page 15 - November 2018

Field Representative’s Report
Are your private cell phones and email accounts subject to FOIA requests?
A former secretary of state and our mayor each have been, or at least supposed to have been, compelled to turn over emails that were created using a personal email account and/or on a per- sonal electronic device as public records.
As a public employee, any document involv- ing our official capacity is considered a public record. As such, it is party to being subject to a Freedom of Information Act (FOIA) request.
What has become a concern for Chicago Police Officers is that when using personal cell phones, electronic devices and emails, to what extent are they subject to a FOIA request? Additionally, who conducts the search, and to what extent can they go to find any public record documents on your personal cell phone or in your private email accounts?
From a recent ruling in the case of the City of San Jose vs. the Superior Court of California, we have some guidance on this issue.
This case originates from a citizen who made a FOIA re- quest covering 32 categories of public officials for any public records sent or received on private electronic devices.
The court first ruled that in order for the document to be
discoverable, it has to be considered a public record. To de- termine if it is a public record and subject to FOIA, it has to relate in some “substantial” way to be essential to conduct- ing “public business.” That means it has to be work-related.
The court further states that communications that are pre- dominantly personal containing no more than “incidental” company business are not considered public records and are protected under constitutional rights. These are not subject to a FOIA request.
Now comes the most important question: Who decides what documents are subject to the FOIA request and, more importantly, who will search through the device or account to determine if it is subject to a FOIA request?
According to the ruling, the employers can reasonably rely on the employee to search in response to a FOIA request for public records held in non-governmental accounts or on personal electronic devices to determine if any materials pertaining to the requests exists.
Although a request can be made of your personal cell phones or emails, barring a warrant requiring probable cause, the only person allowed to go through your phone or accounts is you. d
ROBERT BARTLETT
CHICAGO LODGE 7 ■ NOVEMBER 2017 15