An agency order to employees to search their personal cell phones for copies of public records is in excess of agency authority. Comm’r of the Dep’t of Corr. v. Freedom of Info. Comm’n, 2020 Conn. Super. LEXIS 1004 (Tax & Admin. Appeals July 30, 2020):
To the extent that FOIC’s order requires the Department to search the personal cell phones of its employees, the FOIC went too far on the record before it as noted above. The Department’s employees have a reasonable expectation of privacy in their personal cell phones and in the text messages contained on their personal cell phones. See State v. Boyd, 295 Conn. 707 (2010). How the search of employee personal cell phones is conducted is really beside the point. Whether the employer seizes the cell phones and searches them, or orders the employees to search and report the results to the employer, the employees’ right to privacy in their personal cell phones and texts contained thereon would be inappropriately violated. The FOIC in their brief state: “There is a big difference between asking an employee to check his or her own cellphone for the existence of public records and an order that directs an agency to seize and search a personal cell phone . . .” Although there may be a difference, both proposals inappropriately invade the privacy of employees and are unauthorized by the record here. A fishing expedition for the unsupported possibility of public records on the personal cell phones of employees on this record clearly goes beyond the authority of the FOIC.
In view of the foregoing, the court concludes that, to the extent that the FOIC’s order required the plaintiff to search, or to direct their employees to search, their employees’ personal cell phones for text messages, such order is (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) affected by error of law; (4) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. As such the court respectfully sustains the appeal.