Illinois Public Access Opinion 16‑006 is a binding opinion of the Illinois Attorney General pursuant to that state's Freedom of Information Act (FOIA). Issued in 2016 in the aftermath of the police murder of Laquan McDonald, the opinion addressed a public records request from Cable News Network (CNN) for emails by officers of the Chicago Police Department (CPD) related to the incident, which were on the officers' personal email accounts. After the CPD denied CNN's request, the Attorney General's office, led by Lisa Madigan, ruled that the police officers' email messages about McDonald's murder were subject to public disclosure, even though those messages were communicated on personal accounts outside of the police department's email servers. A prior appellate court decision in City of Champaign v. Madigan had established that communications about public business on personal electronic devices may be subject to disclosure. However, the scope of that decision applied only during public meetings convened by a city council or other public body, and it was unclear how it would apply to employees. In Public Access Opinion 16‑006, the Attorney General found that the police officers were acting on behalf of the police department, making their messages public records of the police department. Nonetheless, CNN never received the emails that it had requested, even after it went to court to enforce the Attorney General's opinion.
Background
On October 20, 2014, Laquan McDonald was fatally shot in Chicago by police officer Jason Van Dyke. Preliminary reports by the Chicago Police Department (CPD) and Van Dyke claimed that McDonald had pointed a knife and moved towards Van Dyke, forcing the officer to shoot in self defense. The shooting was recorded by a CPD dashboard camera. However, the video was not initially available to the public, and a lawsuit was filed in the Circuit Court of Cook County to secure the video's release. On November 19, 2015, the court ordered CPD to release the video, and CPD complied five days later. By then, 13 months had passed since the shooting. The video revealed that McDonald had a knife in his hand, but had been walking away from police when he was shot. Van Dyke shot McDonald 16 times, most of them while McDonald was already on the ground. On January 28, 2016, Courtney Yager, a producer for Cable News Network (CNN), submitted an Illinois Freedom of Information Act (FOIA) request to CPD for "all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed" for twelve CPD officers, including Van Dyke and others involved in the case. The request covered emails from October 19 through October 24, 2014 (around the date of the shooting), and November 19 through November 29, 2015 (around the date of the circuit court's order, and the video's subsequent release). CPD provided a large number of emails from the police officers' CPD-issued email accounts, but CPD failed to search the officers' personal email accounts, despite CNN's request. The Associated Press surmised that CNN was trying to determine whether the officers coordinated efforts to cover up the true circumstances behind McDonald's death. On April 28, 2016, CNN attorney Drew Shenkman appealed CPD's omission to the Public Access Counselor, the bureau of the Illinois Attorney General responsible for enforcing FOIA. CNN's situation was not unique. By 2018, journalists and citizen activists had filed at least 10 appeals to the Public Access Counselor after Chicago officials blocked requests for records related to the murder of McDonald.
Case law
Public bodies in Illinois, including CPD, are required under FOIA to make all public records open to disclosure. Public records include all emails "pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body". In City of Champaign v. Madigan, a 2013 case, the Illinois Appellate Court considered a FOIA dispute regarding elected officials who were observed using their cell phones during a city council meeting to communicate with each other. The court found that the communications in question must be disclosed to the public, as long as they pertained to public business, because the city council had collectively formed a public body upon convening a council meeting. Therefore, the court ruled that the communications, though stored on personal devices, must be disclosed. This was the first court decision in Illinois to find that messages sent on private devices were subject to disclosure under FOIA. However, the court's decision left room for interpretation in other contexts. The court found that, while city council members collectively form a public body during council meetings, they are not individually considered a public body. Therefore, a council member would not necessarily have to disclose messages received from constituents on their personal electronic devices while at home. Still, the applicability of City of Champaign to employees (rather than elected officials) of a public body remained unclear. Attorney Matt Topic, a FOIA expert based in Chicago, suggested that executive branch employees may still be required to disclose their records because they act on the public body's behalf. The University of Illinois System cited such ambiguity when it revealed in 2015 that it had failed to disclose emails stored on the private accounts of Phyllis Wise, chancellor of the university at Urbana-Champaign. An internal investigation had found that Wise intentionally evaded FOIA by using her personal account when discussing sensitive topics (such as the Steven Salaita hiring controversy) and subsequently deleting those emails. In May 2016, the Circuit Court of Cook County cited City of Champaign when it ruled that personal emails of Chicago Mayor Rahm Emanuel may be subject to disclosure, even when stored on private devices.
Opinion
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