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The [Tuesday] Papers

"Chicago police officers' e-mails discussing the Laquan McDonald shooting can't be kept secret even though they were transmitted privately, a state official has decreed in what open-records advocates say is a solid step toward transparency on an issue that has roiled Illinois and reached as high as Hillary Clinton's presidential campaign," AP reports.

"The binding opinion last week by Democratic Attorney General Lisa Madigan follows quickly on a May Cook County Circuit Court ruling that Chicago Mayor Rahm Emanuel's e-mails about separate issues aren't automatically exempt from disclosure even though sent on private devices."

In other words, the public's business is the public's business, no matter how privately you try to conduct it.

In other other words, you can't dodge public records laws by conducting the public's business on private channels.

"The ruling determined that the Chicago Police Department improperly failed to search 12 officers' personal e-mail accounts for discussion of the October 2014 fatal shooting of McDonald, an unarmed black man, by a white police officer. Atlanta-based CNN appealed that omission to the public access counselor under the Illinois Freedom of Information Act.

"Among the officers whose e-mails CNN is seeking are Officer Jason Van Dyke, who shot McDonald 16 times, and Deputy Chief David McNaughton, who approved the report that the shooting was justified and who abruptly retired Monday."

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This ruling is good news - though it strikes me as problematic in seemingly allowing searches through private e-mail accounts merely to see if anything relevant to a request is in there. So if I file a FOIA seeking any correspondence between police officers on Topic X, the department must include in their search a review of cops' personal accounts?

I mean, I'm for that, but it will demand a protocol, no?

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Let's take a closer look at the case at hand. From the opinion - background of the back-and-forth between CNN, CPD and the AG's office:

"On January 28, 2016, Ms. Yager, on behalf of CNN, submitted a FOIA request to CPD seeking 'all e-mails related to Laquan McDonald from Police Department e-mail accounts and personal e-mail accounts where business was discussed' for 12 named CPD officers' for the date ranges of October 19 through October 24, 2014, and November 19 through November 29, 2015 . . .

"On June 1, 2016, CPD submitted a written response to this office. CPD explained that it had searched the CPD e-mail system for the 12 named officers for the requested time periods and the search resulted in 47 e-mails.

"CPD described some of the responsive e-mails as being 'News Clips' produced by CPD's Office of News Affairs that contained references to Laquan McDonald.

"According to CPD, 24 of the other e-mails were 12 identical copies of two CPD office-wide e-mails sent on November 24, 2015, and November 25, 2015, regarding the release of the dashboard camera video."

CNN's response, from the opinion:

"It appears that the Department only searched for e-mails on the officers' city-issued e-mail address, and not on any other platforms or devices, including personal e-mail accounts. Even if the Department does not retain control over personal e-mail or devices, it still has a duty to request copies of such communications that relate to the officer's public service role and/or in the performance of their government function."

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Continuing:

"Documentation provided by CPD with that submission indicates that the CPD e-mail accounts of the 12 named police officers were searched for the term 'Laquan McDonald.' Two searches were conducted, one for each of the specified time frames requested. CPD also confirmed that it had not conducted a search of personal e-mail accounts for responsive records, asserting that e-mails on those accounts are not 'public records.'"

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From the analysis section of the opinion, Madigan quotes the state's FOIA law:

"all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials 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. (Emphasis added.)"

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Henry Kissinger shout-out:

"The court distinguished the United States Supreme Court's decision in Kissinger on the bases that former Secretary of State Henry Kissinger held the relevant records under a claim of right and that the State Department had ceded legal control of those records to him. Competitive Enterprise Institute, No. 15- 5128, 2016 WL 3606551, at * 2-3.

"In rejecting the agency' s argument that it lacked control of the records, the court emphasized that 'an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door.' (Emphasis added.)"

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On privacy:

"CPD also argued that the search of personal e-mail accounts would subject employees to unreasonable and unnecessary invasions of personal privacy. Section 7(1)( c) of
FOIA (5 ILCS 140/ 7(1)( c) (West 2015 Supp.)) exempts information from disclosure when disclosure would be an 'unwarranted invasion of personal privacy.' This provision, however, expressly provides that the 'disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.'"

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Now we get to the meat of my slight hesitation:

"CPD has expressed concerns about invading its employees' personal privacy by conducting a search of their personal e-mail accounts. CPD, however, has taken no action to ascertain whether the CPD employees named in the FOIA request might possess responsive records.

"Although FOIA does not specifically describe the manner in which a public body is required to perform its search, an automated search of the entirety of a personal e-mail account using a search term is not necessarily required.

"Depending on the circumstances, ordering CPD officers to produce any responsive records may satisfy the requirement that CPD conduct a reasonable search."

Aha. Now, that's putting an awful lot of trust in those officers. This is where violating FOIA needs far, far stiffer penalties (and prosecutions) than currently exist. Even then, I'm not so sure this provision is sufficient. But we shall see.

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Song Of The Moment: Smack My Bitch Up
Eaaaheeyheeaheyyyee. We take a look.

God Has A Plan For This Insufferable House-Flipping Couple That Doesn't Include Living In Chicago
Straight outta Central Casting.

Madman With A Water Pistol
Where Is The War Against Terrorble Mental Health Services?

Why BLM Should Take On Charter Schools
It's ironic many in the education reform movement believe they should be embraced by Black Lives Matter, even though many of the theories and practices many of us are fighting against in the criminal justice arena are still openly embraced by many charter schools.

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From the Beachwood sports desk . . .

Breakfast In America: My Aunt's Nuts
If the English Premier League season ended today . . .

The Four Faces Of Premier League Management
These charismatic box-office managers will dominate headings this season - and one will lift the Premier League trophy in May 2017.

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BeachBook

8-Year-Old Chicago Boy Tackles Homelessness With 'Blessing Bags.'

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TweetWood
A sampling.

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The Beachwood Tronc Line: About right.



Permalink

Posted on August 16, 2016


MUSIC - Song Of The Moment: Alabama.
TV - Media Consolidation To Get Even Worse.
POLITICS - Offshore Leaks Database.
SPORTS - Beachwood Radio: Broken Bears; Cubs' 7-Year Itch.

BOOKS - Inside The Book Of The Dead.

PEOPLE PLACES & THINGS - Lakes, Cheese & You.


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