CHICAGO — A state appeals panel determined the text messages and emails of public officials who use private accounts to discuss otherwise public business can be opened to the public under the Freedom of Information Act.
The underlying issue is two FOIA requests the Better Government Association filed with the Chicago mayor’s office, as well as the city’s health department, concerning lead in drinking water at Chicago's public schools .
After the city did not satisfy those information requests, Cook County Judge Michael Mullen ordered the city to inquire if relevant records existed among their officials’ personal email accounts and text messages. They appealed that directive to the Illinois First District Appellate Court, which issued its opinion affirming Mullen’s order on Aug. 5.
Justice Cynthia Cobbs wrote the opinion; justices Margaret McBride and Nathaniel Howse concurred.
According to the panel, BGA submitted its FOIA requests on June 7, 2016, seeking “any and all communication between Public Health Commissioner Julie Morita and anybody in the mayor’s office and press office” dating back to April 1. It later narrowed those requests to anything involving lead and Chicago Public Schools, and naming then-Mayor Rahm Emanuel and three members of his administration, as well as five CPS officials.
Although the city offices did produce some records, the BGA filed a circuit court complaint in April 2017 alleging improper redactions and withholdings. Mullen ultimately ruled the redactions were proper but the city defendants were wrong not to search for and include messages on personal accounts.
“If the party seeking disclosure challenges the public body’s denial of a request in a circuit court, the public body has the burden of proving that the records in question are exempt,” Cobbs wrote. “Here, defendants do not argue that a statutory exemption applies to their officials’ personal text messages and emails but rather that the records sought do not qualify as ‘public records’ within the meaning of FOIA in the first place.”
The city didn’t contest the employees in question discussed public business on private accounts, but said those workers can’t be construed as a public body under the FOIA’s definition. The panel agreed, but said that distinction doesn’t “mean that their communications about public business cannot be public records. Instead, it is sufficient that the communications were either prepared for, used by, received by, or in the possession of a public body.”
The mayor and health director can make binding, unilateral decisions, the panel said, and it’s reasonable to assume such messages would eventually be used by a public body.
“The General Assembly expressed a clear intent that FOIA be interpreted to promote the public’s access to information, even when applied in situations where advances in communication technology may outpace the terms of FOIA,” Cobbs wrote. “The growing use of personal e-mail accounts and text messages by public officials for public business presents such a situation. Allowing public officials to shield information from the public’s view merely by using their personal accounts rather than their government-issued ones would be anathema to the purposes of FOIA.”
The panel also noted its opinion aligns with a few recent federal court findings as well as “several of the supreme courts of our sister states” that reached similar conclusions. It also disagreed with the city’s perceptions concerning a 2013 Illinois Fourth District Appellate Court opinion in City of Champaign v. Madigan, saying that decision held “that personal communications are at least sometimes public records” and that the Legislature’s inaction following that decision can’t be construed as a failure to expressly clarify rules about private accounts.
In affirming Mullen’s opinion, the panel said the city exaggerated privacy implications and wrongly raised concerns about timely response obligations. It also said the city’s erroneous FOIA interpretation meant it “admittedly performed no inquiry into their officials’ personal accounts” despite the BGA’s sufficient evidence to support its position.
The BGA was represented in the action by attorneys with the firm of Loevy & Loevy, of Chicago.