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Monday, February 6, 2017

Bill Would Make Emails on Private Devices "Public Records"

Given the unclear state of the law with respect to government emails sent/received on private devices and through private accounts, it should come as no surprise that the Illinois state legislature is considering legislation to address this issue. We have reported on the Illinois appellate decision (Champaign v. Madigan) that established a three-part test for determining when emails sent by members of a public body on private devices or accounts are subject to FOIA.  We also reported on the Attorney General's opinion that text messages sent by police officers relating to a recent shooting were subject to FOIA. And finally, we have reported on the lawsuits against Chicago Mayor Emanuel seeking his emails. Even with these lawsuits, decisions, and opinions, government officials (and especially government employees) question whether their emails or text messages are subject to FOIA.

Illinois House Bill 2385 would amend the Local Records Act to expressly provide that all emails sent or received by a government agency, officer, employee, or contractor are public records "regardless of whether the email is sent or received on a personal or agency-provided email address." The bill also includes the following requirements:

  • agencies must provide official email addresses to all officers of the agency if employees are provided with an official email address. 
  • all officers, employees, and contractors to use the official email address. 
  • all officers, employees, and contractors must forward any email sent or received on his or her personal email address to the agency-provided email if it relates to agency business or, if the agency does not have an official email account, then provide a copy of the email to the agency.
The proposed legislation does raise a couple of questions.  

First, the bill only amends the Local Records Act - it does not address whether these records are subject to FOIA, which has a different definition of "public record." Under the Local Records Act (LRA), a public record is defined as records that are worthy of preservation. However, not all emails sent or received in connection with agency business will rise to this level, yet this legislation would legislatively make that determination and require agencies to "preserve" all emails as required by the LRA. This particular legislation may have been more appropriate as an amendment to FOIA, not the LRA, if the legislative intent was to make these communications subject to release to the public (rather than preservation). 

Second, "contractor" is not defined, and this could be problematic, particularly the provision requiring a contractor to use an official email address. The word "contractor" is very broad - it could include an interim or acting village administrator employed by a temp agency who has offices in the agency and whose only duties and responsibilities are for the agency. On the other hand, contractor could be interpreted to include a city attorney, engineer, or planner (or even a contractor on a construction project for the agency), all of whom are employed by non-government agencies, have offices outside the agency, and have duties and responsibilities to their own employer as well as other other agencies or even non-agency clients - requiring all contractor communications to take place on the agency account or server could create administrative burdens on both the contractor and the agency. 

Third, the legislation only addresses emails - it does not address text messages, a method of communication that has created as much, if not more, confusion for public agencies and their officers and employees.

We will monitor this legislation, and expect that if it moves forward, various agencies and organizations will look to address these and other issues with this proposed legislation. 

Post Authored by Julie Tappendorf


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