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Thursday, June 2, 2016

Mayor's Private Emails May be Subject to FOIA

We have reported in the past about the use of private emails by government officials. The Illinois Public Access Counselor had taken a very strict position on this issue, issuing an opinion a few years ago that all emails and text messages that relate to government business are subject to release to the public under FOIA, regardless of the device used to transmit the message. On appeal, an Illinois appellate court narrowed the PAC opinion somewhat in a case involving the Champaign City Council, ruling that emails or text messages might be subject to release under FOIA in certain limited circumstances.

This same issue came up again in connection with FOIA requests by the Chicago Tribune for Chicago Mayor Emanuel's emails and text messages on his private cell phone. The City had denied the request, stating that the messages were not public records because the City did not have control or possession of the messages on the Mayor's private cell phone. 

The Tribune sued, and a Cook County Judge recently ruled that the Mayor's emails and texts are not "categorically" exempt from disclosure simply because they were transmitted on his private device.  Chicago Tribune v. City of Chicago.  The Judge cited the Champaign v, Madigan case, finding there are certain situations where emails or other electronic communications might be subject to release under FOIA even where they are sent on private devices. As a result, the Judge rejected the City's argument that FOIA did not apply to Mayor Emanuel's emails because they were not in the City's possession. The Judge also rejected the City's argument that it would be an invasion of privacy to require a search through the Mayor's private cell phone to access the records requested by the Tribune. 

At this stage of the Tribune's case against the Chicago mayor, the Judge simply denied the City's motion to dismiss the case. That means the case will move forward for a determination as to which of the Mayor's communications  are subject to release. It will be interesting to see how the Judge applies the Champaign case, or whether the Judge will take a different interpretation of "public body" when it involves the an executive officer of the City (mayor) in this case, rather than legislators (aldermen) who were the subject of the Champaign ruling. We will certainly keep track of this case.

As a reminder of the Champaign case, that court said that emails or text messages transmitted by members of a public body on private devices are not releasable under FOIA unless they are transmitted in one of the following 3 situations:

1.  The message is sent to a majority of the members of the public body.
2.  The message is forwarded to/from the government account.
3.  The message is transmitted during a meeting of the public body.

The Champaign court ruled that FOIA only applies to records of a "public bodies" and not those of individual members of the public body. So messages sent on private devices are only considered "public records" that may be subject to FOIA when the member sending/receiving the message is acting as a public body (i.e., one of the above-listed circumstances exists). The rationale offered by the court is that the public body is not in control or possession of messages of government officials when sent on private devices except in these three limited circumstances, and the records themselves may not qualify as public records. 

Post Authored by Julie Tappendorf


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