Government Emails on Private Devices/Accounts
I've gotten a lot of questions concerning the recent news reports about Hillary Clinton's use of her private email account to conduct official government business. How does this issue affect, if at all, Illinois local government officials' email activities? Legally, it doesn't - Illinois does not prohibit local government officials from using their private email accounts to conduct local government business. Politically, though, it certainly could affect the public's perception of how its elected and appointed officials, including local government officials, should be communicating.
There are three issues that Illinois local government officials need to think about when using private email accounts to conduct government business. First, members of local government bodies need to consider whether their email communications trigger the Open Meetings Act - most understand that communicating, even electronically, with a majority of a quorum of a public body could violate the Open Meetings Act. Second, local government officials need to consider how their official emails can be retained, if required under the Local Records Act. Third, local government officials need to be aware that their electronic communications, even when sent on private devices or from private accounts, may be subject to release under FOIA.
How and when these communications are legally subject to FOIA has evolved over the past few years. A few years back, we had a Public Access Counselor (PAC) opinion from the Attorney General's office that unequivocally stated that any communication that involved government business would be subject to FOIA, regardless of nature of the device or account that sent the communication. The city appealed that ruling, and an appellate court limited the PAC's opinion somewhat. In Champaign v. Madigan, the appellate court said that a public official's electronic communication about public business that was sent to/from a private device or account might be subject to FOIA, but only if it met one of the following three circumstances:
1. The email/text was forwarded to or from an official government account;
2. The email/text was sent to a majority of the members of a public body; or
3. The email/text was sent during a meeting of the public body.
The important point in the appellate court's ruling is that FOIA applies to the records of a "public body" not the records of its individual members. Only when a member of the public body is acting as a public body would the members' communications on private devices/accounts be subject to FOIA. is. The rationale for the court's decision to limit the PAC's ruling that all communications about public business are subject to FOIA regardless of device is that the public body has little to no control over the communications sent/received on its officials' private devices or accounts. Only when the member is acting as the public body (at a meeting, sending communications collectively, or sending emails through its official account) does the member's communication become subject to FOIA.
So, for the time being, Illinois local government officials operate under a different legal scheme than federal government officials. Given the amount of press this issue has received, however, don't be surprised if the state legislature proposes a law similar to that of the federal government. Local governments may also feel pressure to establish local rules prohibiting the use of private devices or accounts to conduct public business - which they have the authority to enact.
Post Authored by Julie Tappendorf
I understand the difficulty of monitoring and gathering emails that are considered public body discussions taking place from a personal email account held by a board member. If however, a FOIA officer is included in the email string, the messages can easily be retrieved and then this really isn't an issue. If this isn't happening, there is another issue going on and there are possibly other issues going on behind the scenes with these government officials. As to the email being sent from a personal device, that shouldn't matter as the email is still kept on the account's, not actually on the device. I think that a law that applies to all government officials creates a level of compliance that is hard for a small taxing body to manage and afford with volunteer board members who are often averse to using their email to communicate in the first place. That is not to say that everyone shouldn't be held accountable, but training and repeat annual training may be sufficient to ensure that we are all compliant. The cost of setting up email boxes for 9 volunteer board members who basically use the email to receive their monthly board packet is cost prohibitive and would become one more unfunded mandate.
ReplyDeleteI think the issue shouldn't be the devise but rather the email account. I and several staff as well as the elected officials can access both our private email account as well as the office account on our private device. The email from the office account is archived automatically within the office server which supports that account. So, I guess it's not the issue of the device, its an issue of the account. Exchanging emails concerning your office via a personal email is what needs to be clarified. Correct?
ReplyDeleteI think the issue shouldn't be the devise but rather the email account. I and several staff as well as the elected officials can access both our private email account as well as the office account on our private device. The email from the office account is archived automatically within the office server which supports that account. So, I guess it's not the issue of the device, its an issue of the account. Exchanging emails concerning your office via a personal email is what needs to be clarified. Correct?
ReplyDeleteEven emails sent on private devices, using a personal email account (such as gmail) could be subject to FOIA under the Illinois appellate court's analysis. So, let's say that 4 city council members (7 city council) are emailing each other from their gmail accounts on personal cell phones during a meeting. Under the rationale of the Champaign case, these emails would be subject to FOIA (assuming they discuss public business), even though they do not go through the city's official email network or account. The difficulty, of course, is how the city is to retain or control these emails since they aren't stored or archived on the city's network. That is probably something for the legislature to address.
ReplyDeleteAgreed. What would prohibit someone from simply denying emails exist? It's the same with text messages. I believe that currently a subpoena is required to review text messages and a judge is the only party who can weed through messages to determine if any are relevant, right? It's probably impossible to completely control this type of behavior. In my mind it should be restricted to the office email solely. But as you correctly stated, it should be a legislative decision and a pretty complicated one I would imagine. Just my two cents :) Thanks for all you do here Julie! Good stuff.
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