Illinois law says government officials’ emails about taxpayer business are public records for all to see. But what if they’re sent from private accounts or personal cellphones?
Chicago Mayor Rahm Emanuel argues those are not for public consumption. The Chicago Tribune claims they are, and took the matter to court last month. Gov. Bruce Rauner had his own dust-up this summer over an aide’s private emails, and the practice cost a University of Illinois chancellor her job in August.
The issue, once limited to scattered consternations over politicians playing fast and loose with new technology, is pervasive this year, beginning with revelations about Democratic presidential front-runner Hillary Clinton’s use of a private email server to conduct business while she was U.S. secretary of state — a case that spurred a lawsuit by The Associated Press.
Public-access advocates insist Illinois law is clear, and the state’s attorney general and appellate court weighed in just two years ago, declaring that public business is public record — no matter how it’s conducted.
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The Illinois Freedom of Information Act requires disclosure of public records “regardless of physical form or characteristics.” The appellate court decreed in a case involving the Champaign City Council that making an exception for communication on private devices would allow officials to “subvert” FOIA by avoiding all official channels.
That very concern is back in court as government officials parse the 2013 ruling’s language.
“There is an express presumption of openness in the statute …” said Matthew Topic, a lawyer and FOIA expert in Chicago. “Unfortunately, this line of thinking has become all too common: Even when the language of the statute is clear, public bodies won’t comply until a court tells them that they must.”
In the case of Emanuel, the Tribune sought emails related to Chicago’s scandal-tainted system of red-light tickets enforced through cameras. But the Democrat’s administration argued messages sent from private devices are not in a public body’s possession.
FOIA “does not impose an obligation to locate and search private email accounts,” the city said in a July denial letter to the Tribune. The newspaper filed the lawsuit Sept. 24.
As for Rauner, the Chicago Sun-Times reported that education adviser Beth Purvis, operating as a contractual employee, was using a private email account to conduct public business. Rauner’s legal staff denied a Sun-Times FOIA for Purvis, using the “possession” argument, then reversed itself and disclosed several documents, including one marked “confidential.” But the office maintains the issue remains “unsettled.”
Rauner’s office did not respond to a request for comment from the AP, but told the Sun-Times this summer that: “Case law and statutory interpretation of Illinois’ FOIA make it plain that personal emails are not public records.”
Non-elected officials also came under fire this year. The University of Illinois cited FOIA wiggle room when it announced in August that emails sent to and from former Chancellor Phyllis Wise to and from private accounts had potentially been improperly withheld.
A school statement declared that the FOIA law is not specific about “personal email accounts” and the law is “not settled on this issue.”
Access advocates say it was settled in the 2013 appellate court ruling on a lawsuit filed by the (Champaign) News-Gazette, but others believe the court’s opinion provides maneuverability. City council members texting one another during a public meeting prompted the newspaper to argue the texts contained information that could affect the officeholders’ policy positions.
But city councils aren’t technically a public body until it convenes to conduct business, so the appellate court determined that an email sent by private account might be subject to disclosure if it was sent to a government account, to a majority of members of a public body or during a public meeting.
“The court noted that there may be circumstances where a government official is emailing someone on his or her private device where it is not a public record,” according to Julie Tappendorf, a Chicago lawyer who represents municipalities. “It is only when that official is acting as a public body that his or her private emails will turn into public records.”
She suggested the court in the Tribune case will determine whether Emanuel’s emails are public record with similar reasoning. But Topic isn’t so sure.
“That issue does not apply to executive branch employees, each one of whom is an agent of the public body who acts on the public body’s behalf,” he said.