In a binding opinion, the Public Access Counselor (“PAC”) found that a village violated FOIA by first withholding a “goodbye” email sent by the village’s retiring police chief on his last day of work, and then later the same day releasing the email with redactions pursuant to Section 7(1)(c) of FOIA, which exempts: “Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The village asserted that the email was “very personal” and contained the “Chief’s last heartfelt message to his team upon retirement.”
The requester submitted a request for review with the PAC disputing the redactions and alleging that the “goodbye email” contained information about the police department. In its response, the village argued that the email was not a public record subject to FOIA because it was personal in nature, and that the redactions were appropriate under Section 7(1)(c) of FOIA. Alternatively, the village argued that the redacted portions were preliminary and withheld under Section 7(1)(f) of FOIA, which exempts: “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.”
The PAC found that the “goodbye email” was a public record because it was in the possession of the village, it was prepared by the police chief during his employment as the police chief, and the email addressed police department policies and procedures and the conduct of police department employees. Moreover, the PAC found that the contents of the email were not exempt under Section 7(1)(c) as personal information because the email addressed police department policies and procedures and the conduct of village police officers and would not constitute an unwarranted invasion of personal privacy. Finally, the PAC determined that the email was not exempt as preliminary under Section 7(1)(f) because there was no evidence that the contents of the email were connected to any deliberative process, even though it contained opinions.
This case serves as a reminder that even communications between public employees that may be intended as personal are likely subject to FOIA if they pertain to public business. For each FOIA request, public bodies should carefully review requested records prior to release to determine if portions of those records should be released, released with redactions, or completely withheld.