Attorney General’s Office: After 5-year-old AJ Freund’s murder, DCFS failed to perform ‘reasonable search’ for public records

The Illinois Department of Children and Family Services failed to perform a “reasonable search” in response to a public records request the Northwest Herald submitted in 2019 after the murder of a 5-year-old Crystal Lake boy, the Illinois Attorney General’s Office Public Access Bureau said in a decision Thursday.

The Northwest Herald sought reports, written and electronic communication related to AJ Freund, his immediate family and one of the DCFS employees who had contact with the 5-year-old before his April 2019 murder. The newspaper also asked for any documentation of disciplinary action against that DCFS employee.

Both that worker, Carlos Acosta, and his supervisor, Andrew Polovin, have since been fired from the department and are now charged in connection with Freund’s death. They both have pleaded not guilty to two felony counts of endangering the life of a child and one felony count of reckless conduct.

“The Department of Children and Family makes every effort to comply with the Freedom of Information Act as it responds to the many hundreds of requests it receives each year,” DCFS Director of Communications Bill McCaffrey said in an email Friday. “While we regret responding late to this request by a few days, even the Public Access Counselor noted in its letter that we did not violate [the Freedom of Information Act] by withholding records concerning allegations of child abuse or neglect.”

In its ruling, the Public Access Bureau not only found the existence of DCFS employee text messages that the Northwest Herald might have been entitled to examine but that the agency didn’t search for those messages until more than two months after the newspaper submitted its request.

By that time, both Acosta’s and Polovin’s phones had been impounded as part of a related investigation. Although DCFS might have had access to those messages at the time the Northwest Herald submitted its May 6, 2019, request, the agency could no longer retrieve them by the time it conducted its search, according to Thursday’s decision.

“(T)he Public Access Bureau concludes that the Illinois Department of Children and Family Services (DCFS) responded late to a FOIA request submitted by [Northwest Herald reporter] Ms. Katie Smith and did not perform a reasonable search for responsive text messages, but did not violate FOIA by withholding case records concerning allegations of child abuse or neglect,” Public Access Deputy Bureau Chief Joshua Jones wrote in the decision.

DCFS denied the first two parts of the Northwest Herald’s request on May 23, 2019, citing, in part, the Abused and Neglected Child Reporting Act. According to the agency, the act bars DCFS from disclosing information about the abuse or neglect of a child.

The Northwest Herald later submitted a request for review, disputing the basis of the denial and alleging that DCFS’s response to the FOIA request was late.

Notably, although the newspaper sought documents that would have included text messages between employees, DCFS never searched for those records until both former employees’ phones had been impounded as part of a DCFS Office of the Inspector General investigation, according to the ruling.

It wasn’t until July 25, 2019, that DCFS’s FOIA officer asked Acosta for the first time if he had any responsive text messages, according to the decision.

“Mr. Acosta responded that he had exchanged at least some responsive text messages with his supervisor, but that his State-issued phone had been impounded by the DCFS Office of Inspector General on or about July 17, 2019,” Jones wrote.

The agency now has no way of retrieving any potentially responsive text messages from Acosta’s or Polovin’s phones, according to the decision.

Regarding those messages, DCFS cited a “Mobile Device Security Policy” that forbids the use of text messaging to conduct public business. It wasn’t sufficient, however, for DCFS to assume that because employees were not supposed to communicate via text messages, no such text messages existed, Public Access Deputy Bureau Chief Joshua Jones wrote.

“The existence of the ‘Mobile Device Security Policy‘ does not suggest that it was unnecessary to search for responsive text messages because of the reasonable possibility that responsive text messages were nonetheless sent or received,” Jones wrote. “Indeed, it turns out that they were.”

Work-related text messages on state employees’ personal phones also would have been subject to disclosure under FOIA, but DCFS “gave no indication that it included any such devices or accounts in its search,” Jones wrote.