1st District Issues Opinion On FOIA and Emails/Texts on Personal Devices
The issue of whether the emails/text messages of a public official sent or received on a private device or personal account are subject to public release under FOIA has been discussed many times on this blog. We reported previously on the Champaign v. Madigan case where the 4th District Appellate Court ruled that some electronic communications on private devices or personal accounts may be releasable depending on the circumstances surrounding the communication (i.e., sent during a meeting, sent to a majority of the public body, forwarded to a government account or device). Since that case was decided, the Public Access Counselor of the Illinois Attorney General's Office (PAC) has issued a number of opinions that have gone further than the 4th District case and determined that any electronic communication sent on any device that relates to government business will be subject to FOIA.
Recently, the 1st District Appellate Court weighed in on this issue and also seemed to depart somewhat from the 4th District's opinion. In Better Government Association v. City of Chicago Office of Mayor, 2020 IL App (1st) 190038, the 1st District Appellate Court found the City in violation of FOIA for not turning over text messages and emails of certain City officials that were contained on the officials' private devices.
In 2016, the Better Government Association (BGA) submitted FOIA requests to the City of Chicago Office of Mayor and the City’s Department of Public Health (CDPH), seeking records relating to the discovery of lead in the drinking water at Chicago Public Schools (CPS). In response, the City produced some records, but withheld or redacted others citing various FOIA exemptions. BGA filed a lawsuit claiming that the City violated FOIA by failing to inquire whether the City officials had any personal text messages and e-mails that were responsive to the request. After the circuit court ordered the defendants to search the personal text messages and e-mails of the City officials for responsive records, the City appealed. The 1st District Appellate Court upheld the circuit court’s order and concluded that communications pertaining to public business within City officials’ personal text messages and e-mail accounts are public records under FOIA, and the City failed to conduct a reasonably diligent search by failing to inquire whether the personal accounts of officials named in the FOIA requests contained responsive records.
The 1st District acknowledged that individual officials are not themselves public bodies under FOIA. However, the court determined that this does not mean their communications about public business are not public records that were prepared for, used by, received by, possessed by, nor controlled by a public body. The 1st District cited the 4th District's opinion in Champaign v. Madigan, which determined that individual city council member communications that were sent or received from personal accounts while the public body was conducting business were public records in the public body’s possession. Although the 4th District concluded that the city council was conducting public business only in certain limited circumstances (such as when a quorum of council members was involved) the 1st District did not restrict its ruling to these circumstances. Instead, the 1st District held that individual officials could function as a public body (and their communications be subject to FOIA) in other circumstances beyond a meeting or a quorum. In this case, the 1st District found that the individual City officials could function as public bodies without any official meeting having been
convened because some of them had the authority to make unilateral decisions that
would be binding on the City. The 1st District reasoned that concluding otherwise would allow public officials to shield information from the public’s view by using their personal accounts rather than their government-issued ones, which would be inconsistent with FOIA’s goals of transparency, accountability, and promoting public access to information.
The 1st District rejected the City's concern that requiring public officials to search their personal accounts for communications regarding public business would diminish FOIA’s privacy safeguards since only communications pertaining to public business, rather than information concerning the private lives of public officials, would be subject to disclosure. The 1st District also rejected the City's concerns about the administrative burden of obtaining these communications from individual City officials within the limited time-frame allowed under the FOIA statute for response.
Based on the 1st District's finding that the BGA demonstrated that the City officials used their personal accounts for public business, and that the City failed to perform any inquiry into their officials’ personal accounts, the City was not entitled to a presumption of good faith for a search they failed to conduct. As a result, the First District determined that the City was required to ask whether City officials used their personal accounts for public business to satisfy FOIA’s requirement of conducting a reasonably diligent search for responsive records.
What does this mean for Illinois local government officials? That could depend on where they are located in the State. The 4th District's decision in Champaign v. Madigan takes a more limited view on what communications are subject to FOIA when they are sent or received on an official's personal device or account. The 1st District, on the other hand, seems to take a broader view on whether a particular communication sent or received on a personal device or using a personal account is a public record subject to FOIA. As we have stated in previous posts on this topic, it may be best practice to encourage public officials to use their official government devices and/or accounts to communicate about public business and, if they do happen to use their personal device or account for government business, to make sure the officials forward those communications to an official government account.
Post Authored by Julie Tappendorf & Eugene Bolotnikov, Ancel Glink
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