Perry County Sheriff's Office did not violate FOIA over former employee's personal records

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Dear and Mr. Beltz:

named deputy], email messages from both department issued and personal email accounts of [named deputy], Facebook messages from both department issued and personal Facebook accounts * * * of [named deputy], sent and received by [ named deputy] during all times he was on duty as the Perry County Resource Officer. [II On March 13, 2017, the Sheriffs Office responded by providing with some responsive records? Regarding part six of the request, the Sheriffs Office provided documents from the department - issued cell phone and pages from the Sheriffs Office' s School Resource Facebook page. However, the Sheriffs Office indicated any records from the deputy' s personal accounts did not meet the definition of public records under FOIA because the Sheriffs Office never possessed or controlled such records. On March 31, 2017, filed this Request for Review alleging that the Sheriffs Office failed to produce all records responsive to his request.

On April 6, 2017, this office forwarded a copy of the Request for Review to the Sheriff' s Office and asked it to respond to allegation that its response to the request was incomplete. In addition, this office requested that the Sheriffs Office provide a detailed description of the measures taken by the Sheriffs Office to search for records responsive to each part of request, including the specific recordkeeping systems that were searched, the method of the search, and the individuals who were consulted. Also, this office asked the Sheriffs Office to provide the factual and legal bases for the Sheriffs Office' s assertion that any responsive records from the deputy' s personal accounts did not meet the definition of a public record under FOIA.

On April 24, 2017, this office received the Sheriff' s Office's response in which the Sherriffs Office maintained that it had provided with all the responsive records in its possession. However, the Sherriffs Office response also indicated that after receiving the Request for Review from this office, it sent a letter to the former -deputy on April 24, 2017, requesting that he inform the Sheriffs Office if he possessed any records responsive to request, and if so, to provide copies of the records to the Sheriff' s Office by May 5, 2017. On April 25, 201/, this office forwarded the Sheriffs Office' s response to he replied Letter from to Steve Bareis, Perry County Sheriff, Perry County Sheriffs Office March 6, 2017).

on May 1, 2017... On July 27, 2017, an Assistant Attorney General in the Public Access Bureau confirmed with the Sheriffs Office, by e- mail, that the former -deputy did not respond to its April 24, 2017, letter.

DETERMINATION

The requirements of FOIA apply to " public records," which is defined as:

AJII 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 ofpublic 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 ofany public body. ( Emphasis added.) 5 ILCS 140/ 2( c) ( West 2016)

When presented with a FOIA request, a public body is required to conduct a reasonable search tailored to the nature of a particular request." Campbell v. U.S. Department ofJustice, 164 F. 3d 20, 28 ( D.C. Cir. 1998). A public body is not required to " search every record system[,];, but it "cannot limit its search to only one record system if there are others that are likely to turn up the requested information." Oglesby v. U.S. Department of the Army, 920 F.2d 57, 68 ( D.C. Cir. 1990). Neither the destruction of responsive records nor speculation that The Sheriffs Office' s response to this office explained that it searched the former deputy' s work phone and work e- mail account, and provided all responsive records in its physical possession to Additionally, with respect to any responsive records that may be stored on the former -deputy' s personal accounts, the Sheriff' s Office has demonstrated that it asked the former -employee to conduct a search and turn over any responsive records, but has not received a response.

In his Request for Review, asserts that the Sheriff' s Office should be required to provide any records from the deputy' s personal accounts even if it must obtain the records from a communications provider. This office, however, has previously determined that a public body is not required to use a subpoena process to obtain records from a communications provider in order to respond to a FOIA request for text messages. See 111. Att' y Gen. PAC Req. Rev. Ltr. 29327, issued March 27, 2015, at 2- 3 (" There is no indication that the General Assembly intended to require a public body to generate a lawsuit and issue or obtain a subpoena in order to gain control over records that it does not maintain in the ordinary course of business in order to respond to a FOIA request.").

In this instance, other than by filing a lawsuit or obtaining a subpoena seeking to compel the former -deputy to search his personal e- mail, phone, and Facebook accounts and turn over any records responsive to request, the Sheriff' s Office does not appear to have any way to require the former -deputy to cooperate because he is no longer an employee of the Sheriffs Office. ;,Because the available information indicates that the Sheriffs Office disclosed all responsive records in its physical possession or custody, and because it contacted the former - deputy and asked him to search his personal accounts, this office is unable to conclude that the Sheriffs Office violated the requirements of FOIA by failing to conduct an adequate search.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions, you may contact me by mail at the Chicago address listed on the first page of this letter, by phone at ( 312) 550- 4480, or by e- mail at sbargaby@atg. state. il.us. This letter serves to close this file.

Very truly yours,