Public officials’ private email and text accounts are subject to disclosure requirements of the Freedom of Information Act, the Illinois 1st District Appellate Court ruled on Wednesday, upholding a circuit judge’s ruling in a Better Government Association lawsuit against the city of Chicago.
“Allowing public officials to shield information from the public’s view merely by using their personal accounts rather than their government-issued ones would be anathema to the purposes of FOIA,” according to the opinion written by Justice Cynthia Cobbs.
The BGA sued in 2017 to obtain records that were improperly withheld by the administration of then-Mayor Rahm Emanuel. Cook County Circuit Court Judge Michael Mullen ruled that the city did not conduct a reasonable search for records because its search did not account for emails or texts on employees’ private accounts. Mayor Lori Lightfoot’s Law Department appealed that ruling.
In 2016, the BGA filed FOIA requests for information on lead testing conducted in Chicago Public Schools after a pilot program found elevated levels in drinking water at a South Side elementary school. The BGA asked for communications among 10 city or schools employees related to “lead and CPS” between April 1, 2016 and June 17, 2016.
The city produced some records, but did not query the named officials about possible communications on private accounts. The city acknowledged that four officials named in the request used their private accounts for public business, but claimed that those communications are not subject to FOIA. The appellate court rejected that argument.
The justices also rejected a city claim that upholding the circuit court ruling would force public bodies to search employees’ private accounts “and potentially their homes and other private locations in response to almost any FOIA request.” The city is simply required to inquire about whether the records exist — an approach that “has been persuasively endorsed by several courts,” the Illinois appellate panel said.
“We were frankly disappointed that Mayor Lightfoot’s administration continued to litigate this case, embracing the anti-transparency argument staked out by her predecessor,” said BGA President David Greising. “This losing battle has been costly to taxpayers and is incompatible with the mayor’s stated commitment to transparency in her administration and access to public records.”
* From the opinion…
We also reiterate that only those communications that pertain to public business are potentially subject to disclosure in the first place. No information concerning the officials’ private lives need be disclosed to defendants’ FOIA officers. Officials can also avoid any personal account disclosure in the future by simply refraining from the use of personal accounts to conduct public business. […]
Finally, defendants raise concerns about the ability of a public body to compel its officials to turn over responsive records contained in their personal accounts. However, there is no indication that the officials in this case will be unwilling to comply with a court order. Additionally, if the officials prove incalcitrant, FOIA provides that the circuit court may help enforce disclosure through its contempt powers. […]
In sum, we hold that the e-mails and text messages sought by the BGA are public records under FOIA because they pertain to public business and share the requisite connection to a public body. This conclusion is entirely consistent with both the letter and purpose of the statute. […]
In sum, we hold that communications pertaining to public business within public officials’ personal text messages and e-mail accounts are public records subject to FOIA. The BGA submitted sufficient evidence to establish a reason to believe that defendants’ officials used their personal accounts to conduct public business. Defendants’ refusal to even inquire whether their officials’ personal accounts contain responsive records was therefore unreasonable under the facts of this case. Accordingly, we affirm the order of the circuit court directing defendants to inquire whether the relevant officials used their personal accounts for public business.