Chicago police officers' emails 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.
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 emails about separate issues aren't automatically exempt from disclosure even though sent on private devices.
The opinion has the force of law, requiring the police to search officers' private accounts and turn over relevant emails — although the police department can ask a judge to overturn it. The dictum also fuels an ongoing national debate about access to discussions of public business on privately held cellphones and computers under decades-old disclosure laws which didn't anticipate such an explosion of electronic communication.
The ruling determined that the Chicago Police Department improperly failed to search 12 officers' personalemail 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 IllinoisFreedom of Information Act.
"This binding opinion will hopefully make clear that public employees cannot evade FOIA by using private devices when conducting public business," said John Costello, a Chicago public-access lawyer.
Among the officers whose emails 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.
A CNN spokeswoman would not comment on the matter, but it's likely the television network is trying to determine what other news media organizations have sought — whether officers on the scene cooperated in covering up the true sequence of events leading to McDonald's shooting, a sequence that became clear a year later when a judge ordered police to release a dashboard-camera video of the shooting.
The examples of the tussle over access to public discussions on private devices are piling up. Just in the last year, the news media have challenged not only Emanuel and his police department, but Gov. Bruce Rauner's education adviser, who was conducting public business with a private email account. And The Associated Press filed a lawsuit last year over the State Department's failure to turn over Clinton's emails. Separately, the FBI declared in July that while she was secretary of state, Clinton, now the Democratic presidential nominee, had improperly read and sent classified government information on private devices.
The issue cost former University of Illinois chancellor Phyllis Wise her job last fall in a case in which the university turned over the privately sent emails in question but declared that the law is "not settled." That's because an Illinois appellate court in 2013 addressed the issue of whether an electronic message sent by a city council member was under a public body's control if the council member was not acting as part of the public body while convened for business.
Following that reasoning, Chicago police argued that the officers' emails were not under the police department's control. The attorney general's opinion cited a federal court ruling released last month which maintained that such a claim was akin to a public official putting documents "in a file at his daughter's house and then claiming that they are under her control."
To the police department's complaint that it would violate officers' privacy by searching their email accounts, the attorney general noted privacy is not an exception when public records are at stake. The police had not even asked the officers if such emails existed and could avoid jeopardizing privacy by asking the officers to voluntarily surrender emails involving McDonald, the attorney general said.
Emanuel argued the privacy issue in May, asking a Cook County judge to dismiss the Chicago Tribune's lawsuit over his emails involving the city's problematic red-light camera program and his dealings with a Chicago hedge-fund manager and campaign contributor. The judge refused, saying public records are public, regardless of how they're stored. The watchdog Better Government Association has won similar court rulings against Emanuel and the state comptroller in recent months.
As for the attorney general's recent decree, Chicago police spokesman Anthony Guglielmi said the agency is considering options. Binding opinions can be challenged in court.
Don Craven, Springfield-based lawyer for the Illinois Press Association, said if the police abide by the opinion, or if a judge upholds it upon legal challenge, "We are a long way toward good news" in ensuring government officials can't hide their work on private phones and computers.