(The Center Square) – Previously when public officials used their private emails and personal phones to conduct public business, it was largely shielded from Illinois’ open records laws, but a court ruling this month now requires governments to turn those over to the public.
The First District Court of Illinois agreed with the Better Government Association, a Chicago-based nonprofit, that an elected official or public worker cannot keep messages about their public dealings secret by using a private email.
“Thus, under [another previous ruling], the e-mails and text messages from those officials’ personal accounts are ‘in the possession of’ a public body within the meaning of FOIA. It is also reasonable to conclude that, at a minimum, many such communications are prepared for or eventually used by the public body,” Judge Cynthia Cobbs wrote. “Accordingly, the communications that pertain to public business from the named officials’ personal accounts are subject to FOIA.”
The BGA, represented by law firm Loevy and Loevy, filed a suit in Circuit Court in 2017 after the City of Chicago denied its Freedom of Information Act Request for private communications regarding lead in the city’s drinking water.
The suit resulted in thousands of then-Mayor Rahm Emanuel’s private communications with lobbyists, other officials, even Illinois Gov. Bruce Rauner being released for public scrutiny. The city soon banned private communications.
The appellate court ruling, barring another case in another Illinois district, sets the standard for all public officials in the state.
“If you’re a public official anywhere in the state of Illinois, then you are bound by this ruling that says if you conduct public business on a private or personal email account or text messaging account, Slack, Signal, or any other form of communication, that those are still records that are subject to FOIA,” said Mattew Topic, an attorney at Loevy and Loevy. “If you don’t comply with an effort by the public body or by a requestor to get those records, then you can be held in contempt of court.”
One group of elected officials remain largely immune to FOIA requirements: State lawmakers.
“There is a distinction, whether it’s state or local, between the executive branch and legislative branch officials,” Topic said. “A single legislator is not subject to FOIA unless they sent a communication during a meeting.”
For local officials, legal experts said it is better to be safe.
“..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,” said Julie Tappendorf, attorney with Ancel Glink and author of Municipal Minute, a blog focused on local government laws and regulations.