Capitol Fax.com - Your Illinois News Radar » Appellate court rules that officials’ private emails and texts about public business are subject to FOIA requests
SUBSCRIBE to Capitol Fax      Advertise Here      About     Exclusive Subscriber Content     Updated Posts    Contact Rich Miller
CapitolFax.com
To subscribe to Capitol Fax, click here.
Appellate court rules that officials’ private emails and texts about public business are subject to FOIA requests

Thursday, Aug 6, 2020 - Posted by Rich Miller

* 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.

       

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.


Sorry, comments for this post are now closed.


* Pritzker calls some of Bears proposals 'probably non-starters,' refuses to divert state dollars intended for other purposes (Updated)
* Isabel’s afternoon roundup
* Friends of the Parks responds to Bears’ lakefront stadium proposal
* It’s just a bill
* Judge rejects state motion to move LaSalle Veterans' Home COVID deaths lawsuit to Court of Claims
* Learn something new every day
* Protect Illinois Hospitality – Vote No On House Bill 5345
* Need something to read? Try these Illinois-related books
* Illinois Hospitals Are Driving Economic Activity Across Illinois: $117.7B Annually And 445K Jobs
* Today's quotables
* Open thread
* Isabel’s morning briefing
* Live coverage
* Yesterday's stories

Support CapitolFax.com
Visit our advertisers...

...............

...............

...............

...............

...............


Loading


Main Menu
Home
Illinois
YouTube
Pundit rankings
Obama
Subscriber Content
Durbin
Burris
Blagojevich Trial
Advertising
Updated Posts
Polls

Archives
April 2024
March 2024
February 2024
January 2024
December 2023
November 2023
October 2023
September 2023
August 2023
July 2023
June 2023
May 2023
April 2023
March 2023
February 2023
January 2023
December 2022
November 2022
October 2022
September 2022
August 2022
July 2022
June 2022
May 2022
April 2022
March 2022
February 2022
January 2022
December 2021
November 2021
October 2021
September 2021
August 2021
July 2021
June 2021
May 2021
April 2021
March 2021
February 2021
January 2021
December 2020
November 2020
October 2020
September 2020
August 2020
July 2020
June 2020
May 2020
April 2020
March 2020
February 2020
January 2020
December 2019
November 2019
October 2019
September 2019
August 2019
July 2019
June 2019
May 2019
April 2019
March 2019
February 2019
January 2019
December 2018
November 2018
October 2018
September 2018
August 2018
July 2018
June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005

Syndication

RSS Feed 2.0
Comments RSS 2.0




Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller