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