Calumet Memorial Park District violated FOIA by failing to conduct reasonable search

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Dear Mr. Patton and Mr. Solomon:

like to submit an [ sic] FOIA for text messages from Yvette' s phone ( the new commissioner)

during the time of meetings for every meeting she' s attended so far. i3 The next day, Mr. Dockery stated: " J. R., I don't know how you would go about that, she is using her personal phone and not a park district issued phone. I' m not sure but I think you will have to FOIA her for her phone records and not the Park District. Make it a great day! i4 Mr. Patton responded by asserting: " As a member of the board she is required to comply with any request sent through the park district. My understanding is that as the FOIA person at the park you can submit a copy of the request to her and then she can comply or not comply from there — but I would check with the parks attorney." 5 In the copy of this e- mail exchange that Mr. Patton provided this office, the next e- mail in the chain is a response from Mr. Dockery on July 31, 2019, stating, in pertinent part:

In My last email I asked you did your email serve as a FOIA request or was it just an email. You never replied.

However, I spoke with Commissioner Williams about your FOIA Inquiry for her text message records for every meeting that she has been a commissioner. She replied that she has no cell phone in her name and she can' t provide you those records.

I have no problem providing you information, however, it needs to be in the form of a formal FOIA request and not an On August 6, 2019, this office forwarded the Request for Review to the District asked it to provide a detailed description of the measures take to locate records responsive to the request. Specifically, this office asked the District to explain whether it asked the Commissioner identified in the FOIA request ( Ms. Yvette Pierce -Williams) to search for responsive text messages concerning District business' on any personal communication devices that were in her possession at the time of District Board meetings, and to describe her response to that inquiry. On August 19, 2019, the District' s outside counsel provided a response on the District's behalf, arguing: ( 1) Mr. Patton had not submitted a proper FOIA request to the District; ( 2) Mr. Patton' s correspondence did not request copies of public records of the District because a Commissioner' s texts are not records in the custody or possession of the District; and ( 3) the District inquired with the Commissioner about Mr. Patton's request and notified Mr. Patton of the Commissioner' s response. Mr. Patton replied on August 21, 2019.

DETERMINATION

The District further characterizes Mr. Patton's correspondence to Mr. Dockery as a " personal email. i9 Section 3( c) of FOIA ( 5 ILCS 140/ 3( c) ( West 2018), as amended by Public Act 101- 081, effective July 12, 2019) states that written requests for inspection of copies of records " may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body," and that "[ a] public body may not require that a request be submitted on a standard form[.]" Given that Mr. Patton had been corresponding by sending e- mails to the District's FOIA Officer at his Park District e- mail address, it was apparent that e- mail delivery of his FOIA request was a " means available to the public body."

Finally, the District alleges that Mr. Patton' s e- mail " merely informs Mr. Dockery that he ' would like to submit [ a] FOIA,'" 10 rather than requesting inspection or copying of records. This statement mischaracterizes the e- mail. Mr. Patton' s e- mail both states that he would like to submit a " FOIA" and specifically identifies the records he is seeking— text messages from a particular commissioner' s phone sent or received during meetings. Furthermore, Mr. Patton sent this e- mail after he had already asked and received an answer to his general question about the process for submitting a FOIA request to the District. The District further alleges that Mr. Dockery sought clarification from Mr. Patton as to whether his request for a Commissioner' s text messages was a FOIA request, and that Mr. Patton did not respond to that request for clarification. Regardless, Mr. Patton' s e- mail was directed to the FOIA officer, specifically invoked FOIA, and asked for a particular set of records. This e- mail leaves no room for ambiguity as to whether Mr. Patton was seeking information under FOIA. The e- mail was a valid FOIA request to which Mr. Patton is entitled to receive either responsive records or a 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.)

Specifically, the District argues:

T]he information/ records requested by Mr. Patton were not records in the custody or possession' of the Calumet Memorial Park District, which, under the FOIA Act, would have been 'open to inspection or copying." See 5 ILCS 140/ 1. 2. Nothing in the Illinois FOIA Act vests duty or responsibility upon a public body to investigate or seek information/ records that are not in its custody or possession for the purpose of responding to a FOIA request." tl Citation in original.)

The Illinois Appellate Court specifically rejected a similar argument seeking the same type of records in City ofChampaign v. Madigan, 2013 IL App ( 4th) 120662, ¶ 38, 992 N. E. 2d 629, 638 ( 2013). There, the City argued that electronic communications sent or received by City Council members during a City Council meeting were not the City' s " public records" if they were sent or received on the personal communication devices of the City Council members. City of Champaign, 2013 IL App ( 4th) 120662, ¶ 19. In rejecting that argument, the appellate public record" and thus subject to FOIA. City ofChampaign, 2013 IL App (4th) 120662, ¶ 42.

Likewise, Mr. Patton requested any text messages from the phone of a public body member sent or received during meetings. His Request for Review makes clear that he is contesting the District' s denial of his request only with respect to " any and all text message relating to the business of the board meeting[.]" I2 Accordingly, to the extent that the • Commissioner Pierce -Williams sent or received text messages during a Board meeting that concerned the public business of the District or Board, those messages are the District' s public records and are subject to FOIA. 13 Adequacy of the Village' s Search for Responsive Records Finally, the District' s response to the Request for Review asserts that Mr. Dockery in good faith, did speak with the identified Commissioner to inquire about the subject of Mr. Patton' s ' FOIA request.' Her response was relayed to Mr. Patton. Again, neither Mr. Dockery, nor the Calumet Memorial Park District, under the Illinois FOIA Act, is under any legal obligation or duty to conduct any investigation or inquiry into the response of the Commissioner. i14 Mr. Dockery had responded to Mr. Patton' s FOIA request by asserting that the commissioner reported she has no cell phone in her name.

The adequacy of [a public body' s] search for requested documents is judged by a standard of reasonableness[.]" Miller v. US. Department of State, 779 F. 2d 1378, 1383 ( 8th Cir. 1985). " At all times the burden is on the [ public body] to establish the adequacy of its search." Rugiero v. US. Dep' t of Justice, 257 F. 3d 534, 547 ( 6th Cir. 2001). In Binding Opinion 16- 006 12E -mail from J. R. Patton, 6th Ward Alderman, City of Calumet City to Public Access ( August 1, 2019).

Ill. Att'y Gen. Pub. Acc. Op. No. 16- 006, issued August 9, 2016), this office analyzed whether the Chicago Police Department ( CPD) violated FOIA by failing to attempt to ascertain whether its personnel possessed e- mails in their private e- mail accounts that were responsive to a request seeking e- mails about a police shooting from both public and private accounts. With respect to the parameters of the search that CPD was obligated to perform under FOIA, the Attorney General stated: " 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." III. Att'y Gen. Pub. Acc. Op. No. 16- 006, at 10. The Attorney General also cited Brophy v. U.S. Department ofDefense, No. CIV.A. 05- 360 ( RMC), 2006 WL 571901, at * 8 D. D. C. 2006) for the principle that " absent evidence of a lack of good faith, a public employee' s search of his personal e- mail account and confirmation that he did not locate responsive records satisfied the public body' s obligation to conduct a reasonable search of that account." Ill. Att'y Gen. Pub. Acc. Op. No. 16- 006, at 11.

The District did not demonstrate it conducted a reasonable search for the records Mr. Patton requested. In one of his initial e- mails to Mr. Patton, Mr. Dockery stated that the commissioner was " using her personal phone and not a park district issued phone, i15 and then later responded that the commissioner told him she does not have a cell phone in her name. Mr. Patton asserted to this office that Commissioner Pierce -Williams was seen using a cell phone at a meeting. Given these conflicting statements, this office requested that the District clarify whether it had asked the commissioner to search for responsive text messages concerning public business on any personal communication devices that were in her possession at the time of District Board meetings. Instead of providing this simple clarification, the District instead responded to this office by referencing Mr. Dockery's imprecise statement to Mr. Patton and arguing it had no duty to ask the commissioner any additional questions. For that reason, this office is unable to conclude that the District performed a reasonable search for public records responsive to Mr. Patton' s request.

Accordingly, this office has determined that the District violated FOIA by failing to conduct a reasonable search for responsive records. This office requests that the District inquire with the commissioner identified in the FOIA request as to whether she possesses any responsive text messages concerning public business on any personal communication devices that were in her possession at the time of District Board meetings. Following that search, the District should issue a supplemental response to Mr. Patton, providing him with copies of any public records responsive to his request, subject only to permissible redactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018)). If the District determines that there are no public records responsive to Mr. Patton' s request, its supplemental response should describe how it reached that conclusion in sufficient detail to allow for adversarial testing.

The Public Access Counselor has determined that resolution of this issue does not require the issuance of a binding opinion. This letter shall serve to close the matter. If you have any questions, you may contact me at ( 312) 814- 6437 or lbartelt@atg. state. il. us Very truly yours, LEAH BAR rI ELT Deputy Public Access Counselor Public Access Bureau