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Appellate court rules that officials’ private emails and texts about public business are subject to FOIA requests

Thursday, Aug 6, 2020

* BGA

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.

- Posted by Rich Miller        

19 Comments
  1. - Anonymous - Thursday, Aug 6, 20 @ 1:07 pm:

    Lot of commenters on this site badmouth the BGA, but they’re an important asset in a state like Illinois.


  2. - Johnny Tractor - Thursday, Aug 6, 20 @ 1:10 pm:

    This always slays me. Using the old-school analogy, it’s like sending a business letter on a plain piece of paper, and then claiming it’s not an official communication because it wasn’t on letterhead. It’s not the medium that’s used, and if you don’t understand that, maybe you should find another line of work.


  3. - Donnie Elgin - Thursday, Aug 6, 20 @ 1:23 pm:

    “Finally, defendants raise concerns about the ability of a public body to compel its officials to turn over responsive records”

    Interesting ruling that will be near impossible to implement. Most public bodies have email servers with Archive software that makes retrieving FOIA requests straight forward. If an elected official/employee uses their own Gmail account, the public body has no means of searching, retrieving, or preserving that communication. I suppose the new standard practice will be to simply ask the elected official/employee if they have any of the documents in their private email. Not much teeth in that request.


  4. - Chatham Resident - Thursday, Aug 6, 20 @ 1:24 pm:

    ==it’s like sending a business letter on a plain piece of paper, and then claiming it’s not an official communication because it wasn’t on letterhead.==

    Or even the same thing as if you wrote an “official communication” down on a complimentary notepad at motels. Such as those you see at Super 8. Same deal, medium doesn’t matter.

    Speaking of, I wonder if there have been times where Pat Quinn jotted down some “official communications” on Super 8 notepads.


  5. - Father Ted - Thursday, Aug 6, 20 @ 1:25 pm:

    I’ve been wondering how this case would turn out. My overly simplified understanding was always that a public body’s records are fair game, with defined exceptions. Now, the scope increases to include items/records beyond what the public body possesses and/or maintains.
    With that said, I think that any public official that thought they’d get away with this practice was fooling themselves.


  6. - revvedup - Thursday, Aug 6, 20 @ 1:29 pm:

    I predict increased perjury by government officials, as they lie about conducting any gov’t business on personal devices or accounts. I also predict a FOIA storm acomin’ as requestors include wording “to include any and all records created, maintained or stored on any official’s or employees personal devices or email or social media accounts.” BGA scores well on this matter.


  7. - Ostomie Wedgie - Thursday, Aug 6, 20 @ 1:31 pm:

    I think all Federal, State and local public officials and employees should be under constant video and audio coverage. This of course should only occur when they are conducting the peoples business. Can you imagine the feds having to video their interviews?


  8. - a priori - Thursday, Aug 6, 20 @ 1:36 pm:

    I FOIA requested the text messages of BOT members from an all day meeting of an Illinois university. Two of the members were texting with each other and with at least one other person I could see. The BOT member said they had not texted. False. I watched from six feet away for hours.

    Enforcement is impossible. Our university attorney, who seemed to not want to know what was in those texts, said there was nothing she could do.

    Given the hidden nature of so much decision making, these conversations should be made public. The best thing would be to say no phones at the meeting tables. Make your conversations about public matters, public.


  9. - Candy Dogood - Thursday, Aug 6, 20 @ 1:51 pm:

    It’s Five O’ Clock Somewhere.

    Specifically every FOIA officer in the state’s office.


  10. - fs - Thursday, Aug 6, 20 @ 2:12 pm:

    As technology advances, this seems pretty obvious and common sense. State agencies were directed to use similar procedures a few years ago. The only thing Chicago accomplished by not doing the same was wasting a whole lot of money on attorneys fees.


  11. - thechampaignlife - Thursday, Aug 6, 20 @ 2:14 pm:

    I thought this was settled back in 2011: https://www.news-gazette.com/news/state-says-electronic-messages-from-council-meetings-are-public-records/article_b1bf729e-3200-5e65-af7f-d3c05fe6929c.html


  12. - Anyone Remember - Thursday, Aug 6, 20 @ 2:28 pm:

    This seems to have started with a case involving City of Champaign aldermen - apparently they were publicly using Yahoo Messenger and / or texts during the meetings and the City said they didn’t have possession of same. The AG in 2011 and the Appellate Court in 2013 said they had to be released.

    “In its decision the court also suggested the Legislature clarify the law on electronic communications and urged municipalities to develop rules prohibiting the use of personal electronic devices during public meetings.”

    The only way I see public officials will stop conducting public business using private email / burner phones is a law that makes doing so a crime, with the penalty being forfeiture of office, banishment from all future public employment (elected or otherwise), and forfeiture of all accrued pension benefits. Not holding my breath.


  13. - Skeptic - Thursday, Aug 6, 20 @ 3:29 pm:

    I mean, it’s not like an entire Presidential election wasn’t swayed by this exact topic.


  14. - Proud Sucker - Thursday, Aug 6, 20 @ 4:20 pm:

    I have been doing this for years. The Village FOIA Officer sends me an e-mail requesting “any and all communication” then I go through my Village and personal phones and my corporate account and G-Mail account. It is time consuming for sure. However, there are always at least two parties for all communication. I don’t delete anything, just archive it. Someone else has a copy even if cannot find one.


  15. - yinn - Thursday, Aug 6, 20 @ 5:09 pm:

    Years ago I watched an alderman texting before votes and was concerned he was being coached by someone. Twice I FOIA’d the texts and got nothing but an enemy for life. Later, through a mutual friend, I found out he’d been texting blue talk with his much-younger co-ed girlfriend.

    To the post: I support this but wonder how it squares with the FOIA language about making available documents in possession of/under the control of the public body.


  16. - Three Dimensional Checkers - Thursday, Aug 6, 20 @ 5:25 pm:

    Don’t use your private anything to conduct public business. It’s really as simple as that.


  17. - DTAG - Thursday, Aug 6, 20 @ 6:17 pm:

    You can’t FOIA a phone call, just the call logs.


  18. - Trying to be Rational - Thursday, Aug 6, 20 @ 6:24 pm:

    ===The only way I see public officials will stop conducting public business using private email / burner phones is a law that makes doing so a crime, with the penalty being forfeiture of office, banishment from all future public employment (elected or otherwise), and forfeiture of all accrued pension benefits.===

    Couple the above with a $50,000 reward for turning in someone who covers up the FOIA-covered texts.


  19. - Huh? - Thursday, Aug 6, 20 @ 7:47 pm:

    It is exactly this that I strictly separate work from personal. No matter as a consultant or public employee. It is an exceedingly rare occasion that public communications get mixed with private.

    Regardless of private consultant or public service, I have always demanded a company cell phone to avoid any mixing of communications. When I get a work related email on private email account, I direct the sender to my work account.

    Autofill is the bane of mixing work and private email.


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