On August 9, 2016, the Illinois Attorney General issued a binding opinion to the Chicago Police Department (CPD), finding that the Department had failed to conduct a reasonably adequate search for records responsive to a FOIA request made by the Cable News Network (CNN) for e-mails pertaining to the highly publicized LaQuan McDonald shooting.

The AG found the CPD’s search to be inadequate because (1) it did not seek to obtain responsive records from the personal e-mail accounts of 12 CPD officers specifically identified in the FOIA request, and (2) its search of CPD e-mails was limited to the proper name of “LaQuan McDonald” and did not include other search terms that could have produced more responsive records, such as alternative spellings of the name, the names of officers involved in the incident, or the incident number.

With regard to the first issue, the CPD argued that it had no duty under FOIA to search the officers’ personal e-mail accounts because it did not possess or control those e-mails.  The AG rejected that argument, finding that e-mails from the personal accounts of agency employees constitute public records under FOIA to the extent they pertain to the transaction of public business, in this case, the shooting death of Mr. McDonald.  The AG reasoned that to find otherwise would allow public officials to “conceal their public duties” merely by using their personal devices or accounts.  The AG directed the CPD to ask the 12 officers if they had any e-mails in their personal accounts that would be responsive to the request, and if so, to require them to produce those e-mails.

Regarding the second issue, the AG found that the CPD’s search of its own servers, which was limited to the one search term “LaQuan McDonald,” was not a reasonable search under FOIA.  The AG instructed the CPD to conduct a broader search of CPD emails, to try and capture misspellings of Mr. McDonald’s name and other responsive emails that may not have identified him by name.

The CPD has the option to appeal the binding opinion to state court within 35 days if the CPD wants to challenge it.   The AG Opinion potentially expands a public body’s obligations in searching for records responsive to FOIA requests.

Please contact Bob Kohn or Debra Jacobsen with your Freedom of Information Act inquiries.