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The BGA’s fishing expedition and off the record e-mails

Tuesday, Jan 10, 2017

* From WMAY

A judge has ordered Governor Bruce Rauner to cooperate with an investigation into whether he and top staffers conducted state business on private emails.

WMAY’s watchdog partner, the Better Government Association, has been pushing to see emails between Rauner and top communications staffers on how to deal with media inquiries.

Actually, no. The BGA originally FOIA’d all e-mails sent to or by Gov. Rauner and communications guys Lance Trover and Mike Schrimpf from January 12-19, 2015. That includes, by definition, e-mails that reporters sent to Trover and Schrimpf along with the replies.

The governor’s office found over 3,500 e-mails and asked the BGA to narrow the scope of its request. The BGA narrowed it to January 13, 2015 - the day after Rauner was inaugurated.

* So, what the heck is going on here? From the BGA

A Cook County judge Monday opened the door to examining whether Gov. Bruce Rauner and top officials in his administration used personal email to conduct public business.

Acting on a lawsuit filed by the Better Government Association, Circuit Court Judge Kathleen M. Pantle ordered the governor’s office to cooperate with the watchdog group in determining whether emails discussing government business could be found on personal email accounts of Rauner and two top aides.

The BGA lawsuit, filed in July 2015, seeks business related emails sent on selected days during Rauner’s first month in office to or from the governor, his then Deputy Chief of Staff for Communications Mike Schrimpf and Communications Director Lance Trover. […]

In her ruling, Pantle said she will personally review the disputed emails to determine whether they should become public.

What’s more, her order requires the governor’s office and the BGA to “engage in discovery” on whether emails on personal accounts of the three involved discussions of public business. That decision came in response to an argument from the BGA questioning the thoroughness of a search for emails that did not include personal accounts used to transact public business.

So, apparently they’re trying to figure out whether Rauner and some people in the governor’s office are sending government-related e-mails on private e-mail accounts.

I gotta admit it will be interesting to see what they dig up on Rauner because he supposedly doesn’t do e-mail any longer and has no state e-mail account.

But the target date of that FOIA is, as mentioned above, the day after the swearing in. I imagine people still didn’t have fully functioning offices yet. Whatever they find might not mean much.

I checked my in-box and I can’t find a single government-related e-mail from Trover or Schrimpf that was sent from their personal G-Mail accounts. All the government-related e-mails I’ve received have been from their state accounts.

* In the meantime, does this mean that the BGA wants to gain access to off the record exchanges between the governor’s office and reporters? The governor’s people say that’s one reason why they’re resisting the FOIA. I asked Andy Shaw, and he sent me to his group’s attorney Matt Topic, who e-mailed me a few hours later…

We aren’t aware of that being an issue in our suit one way or the other, but I’m not aware of any legal basis under FOIA to withhold off-the-record statements in emails by government officials simply on that basis, regardless of what account was used.

So, in other words, if I ask a question off the record and/or receive an off the record response, that’s FOIA-able.

I don’t think I love that idea.

…Adding… I think some may be unclear on this. If I send an off the record question or whatever to someone’s private e-mail account, is that really fair game for FOIA? I haven’t done so with Trover, but seriously? You should be able to access that correspondence, too?

…Adding More…  I really think off the record reporter conversations are (or should be) exempted from FOIA. From the exemption list..

Business trade secrets or commercial or financial information that is proprietary, privileged or confidential and disclosure would cause a competitive harm to the person or business.

So, I truly don’t see how anyone can think that confidential, off the record conversations which could put commercial media outlets at a competitive disadvantage are FOIA-able.

- Posted by Rich Miller        

47 Comments
  1. - Stuff Happens - Tuesday, Jan 10, 17 @ 3:20 pm:

    Does that include Snapchat?

    https://capitolfax.com/?p=28191&more=1


  2. - Union thug - Tuesday, Jan 10, 17 @ 3:22 pm:

    Please correct me if I am wrong. Didn’t the gov say he didn’t use email for state business?


  3. - siriusly - Tuesday, Jan 10, 17 @ 3:29 pm:

    Rich - off the record - is an agreement between the reporter asking the question and the official providing the comment. That agreement does not mean the official was “off the clock” or not an official at that time. If you’re a public official, your communications are a form of public property and subject to FOIA.

    Sorry you may not like it - but off the record does not mean anything according to our state open records acts.


  4. - Team Sleep - Tuesday, Jan 10, 17 @ 3:30 pm:

    Given how slow things move around the Capitol complex it stands to reason that Rauner’s and his staff’s e-mail addresses and tech support systems were not set up immediately after he was inaugurated. How else were they supposed to communicate? Were the press guys supposed to meet up with reporters in coffee shops? At least this way using private e-mails can still serve as a somewhat loose check-and-balance and records are kept. I believe Gmail never deletes any e-mails or records unless there is a court order to do so (i.e. in the case of a criminal or civil court matter). So conducting very early business via smart phones, tablets and personal laptops was probably the only way to get anything done.

    This is not just a blanket defense of Rauner and his people. I remember when Barack Obama and his staff first started out. They had to communicate via personal means until the U.S. Senate had them set up. I know that was more than a decade ago but it takes time to set up an infrastructure and offices.


  5. - JS Mill - Tuesday, Jan 10, 17 @ 3:30 pm:

    =ut I’m not aware of any legal basis under FOIA to withhold off-the-record statements in emails by government officials simply on that basis,=

    FOIA is not predicated on an agreement that something is “off the record” if it is public business and not subject to any of the exemptions then any document (text, email, snapchat, facebook, coded parchment) it is subject to FOIA. A phone conversation would not be. So if you want it “off the record” keep it verbal.


  6. - From the 'Dale to HP - Tuesday, Jan 10, 17 @ 3:30 pm:

    Who in their right mind would e-mail something that they wanted off the record? If they’re dumb enough to write down something that they want to be off the record, too bad; next time don’t put it in writing imo.


  7. - Oswego Willy - Tuesday, Jan 10, 17 @ 3:32 pm:

    Raunerites and the Raunerite State Party makes a point that Madigan has no cell phone, and yet see no reason to think a governor not having email “in this day and age” is peculiar.

    Paulie Cicero would be proud of them both(?)

    To the Post,

    Oswego Willy knows Andy Shaw is fishing for something and Oswego Willy still remembers Andy Shaw was also a reporter, a political reporter to boot.

    I guess Oswego Willy wonders why Andy Shaw is approaching the off the record correspondence(s) in the light of day so darkly.

    I guess Oswego Willy doesn’t understand Andy Shaw at all, but understanding that making off the record conversations FOIA-able, Oswego Willy thinks this is going to mar government more closed and less open to working with the press, and more “surprises” will be the norm.


  8. - Oh, Please! - Tuesday, Jan 10, 17 @ 3:34 pm:

    Does the BGA fully disclose its donors? Rauner has been a six-figure BGA giver. This creates the appearance of a conflict for BGA. How can they vigorously hold his administration accountable?

    Would they inquire into Griffin’s influence in the Rauner administration, for example? Seems far-fetched.


  9. - Anonymous - Tuesday, Jan 10, 17 @ 3:47 pm:

    Excuse me. How could anybody think that an email can be ‘off the record’? The email IS the record.

    Want close to off the record, do a call. Want off the record? Do a one on one chat face to face in a noisy place.


  10. - Jon - Tuesday, Jan 10, 17 @ 3:53 pm:

    The BGA’s attorney is correct, there is not a FOIA exemption for a reporter’s email to a public body. I believe the GO is arguing their office’s response to the email would be exempt because it’s an opinion at that point, which is exemption 7(1)(f), however the exemption is intended to be used for internal correspondence, etc. for the most part, not an exchange with a outside party.

    If the court rules in the BGA’s favor, I would expect a change to FOIA by the GA to address this.

    As an aside, although briefly mentioned in the post, there remains the question of whether or not the emails and other records of an incoming administration are subject to FOIA or not. Rauner’s transition team did not operate with state email accounts, rather they used the Rauner campaign account to conduct public business, namely firing exempt state employees.


  11. - Mahna Anon - Tuesday, Jan 10, 17 @ 3:57 pm:

    === I don’t think I love that idea. ===

    I don’t either. And the BGA shouldn’t either. They are supposed to be “promoting transparency in government” but the result is going to be that government officials will not want to talk to reporters (at least via email).


  12. - wordslinger - Tuesday, Jan 10, 17 @ 3:57 pm:

    –Excuse me. How could anybody think that an email can be ‘off the record’? –

    Exactly.

    I’m really feeling my age. I remember a time when government and politics wasn’t all about emails, all the time.


  13. - Rich Miller - Tuesday, Jan 10, 17 @ 4:03 pm:

    ===I remember a time when government and politics wasn’t all about emails, all the time. ===

    Yeah, well times have changed.


  14. - Try-4-Truth - Tuesday, Jan 10, 17 @ 4:03 pm:

    Here are the exceptions to FOIA:

    What kind of information is not public?
    The FOIA law has a presumption that all information is public, unless the public body
    proves otherwise. There are several exceptions to public disclosure that include but are
    not limited to:
    12 9/9/2013
     Private information, which is defined as “unique identifiers, including a person’s
    social security number, driver’s license number, employee identification number,
    biometric identifiers, personal financial information, passwords or other access
    codes, medical records, home or personal telephone numbers, and personal e-mail
    addresses.” Under FOIA, “private information also includes home addresses and
    personal license plate numbers, except as otherwise provided by law or when
    compiled without possibility of attribution to any person.”
     Personal information that, if disclosed, would constitute a clearly unwarranted
    invasion of personal privacy, unless the disclosure is consented to in writing by
    the person who is the subject of the information. Under FOIA, the “unwarranted
    invasion of personal privacy” means the “disclosure of information that is highly
    personal or objectionable to a reasonable person and in which the subject’s right
    to privacy outweighs any legitimate public interest in obtaining the information.”
    Disclosing information that relates to the public duties of public employees is not
    considered an invasion of personal privacy.
     Law enforcement records that, if disclosed, would interfere with a pending or
    reasonably contemplated proceeding or that would disclose the identity of a
    confidential source.
     Information that, if disclosed, might endanger anyone’s life or physical safety.
     Preliminary drafts or notes in which opinions are expressed or policies are
    formulated, unless the record is publicly cited and identified by the head of the
    public body.
     Business trade secrets or commercial or financial information that is proprietary,
    privileged or confidential and disclosure would cause a competitive harm to the
    person or business.
     Proposals and bids for any contract, until a final selection is made.
     Requests that are “unduly burdensome.”

    Source: http://foia.ilattorneygeneral.net/pdf/faq_foia_government.pdf

    If “off-the-record” conversations can be fit into any of these exceptions, then they can be protected. If not, then they are public record and are available for public review.


  15. - Anonymous - Tuesday, Jan 10, 17 @ 4:04 pm:

    Jon: if the judge rules against Rauner, you seriously expect the 100th legislature will change the law to save him? Seriously?


  16. - Rich Miller - Tuesday, Jan 10, 17 @ 4:07 pm:

    ===Business trade secrets or commercial or financial information that is proprietary,
    privileged or confidential and disclosure would cause a competitive harm to the
    person or business.===

    I think off the record e-mails about a story I’m working on that nobody else is working on would be covered.


  17. - Try-4-Truth - Tuesday, Jan 10, 17 @ 4:09 pm:

    You could be right, Mr. Miller. Interesting case, if it gets higher in a court.

    Would you file an amicus brief?


  18. - Mahna Anon - Tuesday, Jan 10, 17 @ 4:09 pm:

    Everyone is missing the point. If the communication is using state email accounts, then of course, those emails will be FOIA-able. But in this instance, the BGA is trying to gain access the PRIVATE email addresses to see if there was any state business being conducted on those email addresses. I definitely see the potential for abuse.

    Politics and government go hand-in-hand. Obviously political operations utilize different strategies and messaging than government operations. Courts need to be careful when making determinations as to what constitutes state business.


  19. - Chicago Cynic - Tuesday, Jan 10, 17 @ 4:12 pm:

    NO, that should not be FOIA-able. That’s crazy. Off the record means just that. Otherwise let’s just all start FOIA-ing correspondence with journalists.


  20. - A guy - Tuesday, Jan 10, 17 @ 4:20 pm:

    Reportage has just become more difficult. An off the record email is the holy grail of trust. Text is next. The moment an editor sees one, it’s gonna get deleted.
    Whew, hang on. We may see the first legislator/government official who uses a nickname here on CF have to reveal before long. It’s a slippery, slippery slope.
    PS: It won’t be me revealing. lol


  21. - Jon - Tuesday, Jan 10, 17 @ 4:23 pm:

    ===the BGA is trying to gain access the PRIVATE email addresses to see if there was any state business being conducted on those email addresses===

    This has already been done, read the BGA link in the post. The key factor is not the type of record (government or private email account), rather whether or not the email itself pertains to the transaction of public business. The courts have not ordered anyone, at least to date, to turn over access to a personal account; rather they just require that private accounts be included in the search for records.


  22. - Annonin' - Tuesday, Jan 10, 17 @ 4:27 pm:

    1. BGA does not release Sched. B of their 990…they do list some donors in annual report Public leaned of BigBrain rental payment because he used the foundation check book to get a tax break.
    2. Emailing with Capt Fax is now trade secrets …cool.


  23. - Rascal Phlatt - Tuesday, Jan 10, 17 @ 4:27 pm:

    I work in Gov’t a good bit of advice is to assume all things you e-mail with a work account can or will be made public. Never leave voicemail and if something is sensitive or off- the record just call. you can’t FOIA a phone call or a conversation in person. FOIA only comes into play when you have a document either in print or electronic.


  24. - Bruce Rushton - Tuesday, Jan 10, 17 @ 4:33 pm:

    Real simple.

    If you want to have an off-the-record conversation with a reporter, then pick up a telephone. It is an amazingly underrated device.

    Go BGA.


  25. - Rich Miller - Tuesday, Jan 10, 17 @ 4:36 pm:

    ===If you want to have an off-the-record conversation with a reporter, then pick up a telephone===

    OTR should be OTR, regardless of the communications device used.


  26. - A guy - Tuesday, Jan 10, 17 @ 4:42 pm:

    ==If you want to have an off-the-record conversation with a reporter, then pick up a telephone.===

    …who then digitally types his notes of the call and voila…it’s on the record. Oy.


  27. - wordslinger - Tuesday, Jan 10, 17 @ 4:45 pm:

    ===Business trade secrets or commercial or financial information that is proprietary,
    privileged or confidential and disclosure would cause a competitive harm to the
    person or business.===

    I think off the record e-mails about a story I’m working on that nobody else is working on would be covered. –

    Perhaps, if the reporter is the original possessor of the “secrets” in question, and is sharing them with a government official.

    If those secrets are coming from government types and are derived from their official positions, I’m not seeing how a reporter could claim that the information received is “proprietary, privileged or confidential.”


  28. - Bruce Rushton - Tuesday, Jan 10, 17 @ 4:50 pm:

    A Guy,

    Pens and paper are also underrated devices. Ask H.R. Haldeman. By the time a scholar found his incrimating notes on the Vietnam peace talks, he was dead.


  29. - titan - Tuesday, Jan 10, 17 @ 4:54 pm:

    Rich - it might be interesting to hear what someone at the AG Public Access Coordinator’ office might say about OTR communications and FOIA. Your take is different than I’ve heard (the “competitive disadvantage” stuff comes into play when the government compels a person or business reveal the person’s or business’s trade secrets. Anything a commits to writing to a reporter is not a trade secret that can be kept quiet - public employees are not supposed to be able to tell some people things and be able to not tell others.


  30. - Henry Francis - Tuesday, Jan 10, 17 @ 4:57 pm:

    Would the release of information exchanged two years ago create a competitive harm?

    FOIA is not a swift process, especially with this administration.


  31. - Henry Francis - Tuesday, Jan 10, 17 @ 4:59 pm:

    Guy - a record created by a reporter would not be FOIAble.


  32. - KAA-boom - Tuesday, Jan 10, 17 @ 5:01 pm:

    Have you seen the types of opinions coming out of the AG’s office regarding FOIA? They also cite that the law was meant to be intepreted in favor of openness. OTR isn’t going to get an exemption and I’m willing to bet that they’ll say that text messages are open to FOIA as well.

    Maybe Lisa will comment on this issue OTR? ; - )


  33. - Robert the Bruce - Tuesday, Jan 10, 17 @ 5:07 pm:

    Why doesn’t Shaw simply amend his FOIA to exclude off-the-record conversations with reporters?

    Why pick an unnecessary fight, one that ultimately would lead to less whistleblowing if every public official has to worry about off the record emails becoming public record?

    Given his past job, he should be somewhat media savvy.


  34. - Anon - Tuesday, Jan 10, 17 @ 5:19 pm:

    The exemption cited has nothing to do with on- or off-the-record conversations, it is intended to protect commercial information from proposals from being released. Living under the FOIA bubble, I can say for certain that no judge (and certainly not our AG) is going to apply that exemption to an off-the-record conversation with a reporter. To even prevail in this case, that exemption would have had to have been cited as the reason for withholding the records in the first place.


  35. - JS Mill - Tuesday, Jan 10, 17 @ 5:29 pm:

    =So, I truly don’t see how anyone can think that confidential, off the record conversations which could put commercial media outlets at a competitive disadvantage are FOIA-able.=

    A member of public body communicating via written, email, text or any version of a “document” to a reporter does not meet the criteria for the exemption you list above. Public employees or elected officials’ words are not commerce. They are bought and paid for by the public and subject to FOIA with a few exceptions.

    Rich, I get why you feel that way, and the reporters documents are not subject to FOIA, but public employees or elected officials are.This is the world we live in. I wish there were additional things that were exempt from FOIA, but they are not.


  36. - LTTP - Tuesday, Jan 10, 17 @ 5:49 pm:

    –…who then digitally types his notes of the call and voila…it’s on the record. Oy.–

    Remember, only the records of government bodies are subject to FOIA. Whatever a reporter writes after his phone call stays with the reporter.

    Rich–good argument, but I don’t think it would prevail. The “trade secret” at issue would be the info being given _to_ you–information from the government actor, about government affairs, in a government record. FOIA can’t get it from you, but can get it from said government.


  37. - AnonAnon - Tuesday, Jan 10, 17 @ 5:55 pm:

    OTR emails etc. will not qualify for the trade secret or confidential information exemption under FOIA. That exemption is specifically aimed at proprietary formulas, processes etc. An example would be a company who submits an application for a permit and to get that permit the company must divulge their process or formulas. Releasing that information to the public could result in a competitor gaining an advantage or the submitting company losing their advantage. Also, the information must be claimed as confidential when it is submitted to whatever public agency or employee it is submitted to. There is no protection of the information if there is no specific claim the information contained in the email is confidential or trade secret. You aren’t allowed to go back and claim the information is confidential or trade secret once it has been submitted without the claim.


  38. - walker - Tuesday, Jan 10, 17 @ 6:00 pm:

    Wish the BGA were working on something more important for better government.


  39. - NoGifts - Tuesday, Jan 10, 17 @ 6:34 pm:

    This issue has been litigated with multiple government officials over the last 10 years. There is no question that government related communication belongs to the public record no matter what email it goes through.


  40. - Anonymous - Tuesday, Jan 10, 17 @ 6:40 pm:

    BGA has been fundraising heavily lately, likely trying to seem relevant by stirring the pot.


  41. - Rabid - Tuesday, Jan 10, 17 @ 7:38 pm:

    Russia has all the government Emails


  42. - Father Ted - Tuesday, Jan 10, 17 @ 8:11 pm:

    The BGA is on a fishing expedition? In other news, the grass is green and the day is long.


  43. - Thoughts Matter - Tuesday, Jan 10, 17 @ 10:13 pm:

    So exactly how does the Governor communicate with his staff and his agencies everyday? Does he call them? Text them? On his personal or state phone? Does he get inter-office memos typed on an iBM selectruc typewriter? Carrier pidgeon? Thru the US mail?


  44. - Shark Sandwich - Tuesday, Jan 10, 17 @ 10:45 pm:

    “There is no protection of the information if there is no specific claim the information contained in the email is confidential or trade secret.”

    Isn’t saying something is ‘off the record’ another way of saying it is ‘confidential’??


  45. - Southside Markie - Tuesday, Jan 10, 17 @ 11:56 pm:

    That government official is providing you, the press, information he got on my dime. I and other citizens own information. Not any reporter. That is why there is FOIA. This idea that reporters have some sort of superior rights as so-called special protectors of the democracy has no basis in law. And since the press is not an eleemosynary institution, it has no basis in fact or morals either. Hopefully, my blunt talk won’t get me banned.


  46. - PublicServant - Wednesday, Jan 11, 17 @ 6:39 am:

    @SM - If the press cannot protect their sources, then they won’t have any, and that, SM, is why Freedom of the Press is enshrined in the first amendment. They are a VERY necessary check on government excess and overreach.


  47. - Anyone Remember - Wednesday, Jan 11, 17 @ 9:14 am:

    Oswego Willy
    “Paulie Cicero would be proud of them both(?)”
    Tip ‘o’ cap, sir.
    If they are truly like Paulie Cicero, perhaps one, or both, could employ an ex-federal felon to assist in his rehabilitation, one John “Quarters” Boyle?


Sorry, comments for this post are now closed.


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* IEMA Highlights Emergency Preparedness for People with Access and Functional Needs in May - Ready Illinois website offers preparedness tips for people, caregivers
* First Lady Launches Illinois Family Connects
* Governor and Lt. Governor Unveil 2016 Journal of Local Government Shared Service Best Practices

  
* Sony Xperia XZ price tumbles to $340 on eBay in black, platinum and blue
* Huawei MateBook X shows up MacBook while MateBook D goes for “casual gamers”
* [TA Deals] Grab a lifetime subscription to VPNSecure for $39! (91% off)
* Microsoft bills ‘new’ Surface Pro as ‘the most versatile laptop’, Intel Kaby Lake inside
* [TA Deals] Get the Ticwatch 2 for $170! (15% off)
* Huawei MateBook E and X hands-on: a better keyboard makes a better laptop? (Video)
* Zenefits introduces level-funded insurance plans and more mobile updates

* White Sox can't solve Greinke in opening loss
* Covey seeks first win vs. Corbin, D-backs
* Gonzalez sees positives despite 5th straight L
* Diamondbacks 5, White Sox 1: Too much Zack Greinke
* White Sox can't solve Greinke in opening loss
* Moncada in Chicago for checkup on thumb
* Rodon frustrated but 'close to normal' in rehab


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