Information Contained in Various Devices of Public Officials, Whether Publicly Issued or Personal, May Be a “Public Record” Under the Freedom of Information Act

In Chicago Tribune Company, LLC v. City of Chicago Office of the Mayor and Mayor Rahm Emanuel, the Tribune requested information pertaining to public business from Mayor Emanuel’s publicly issued and personal devices and accounts, including emails and text messages. The city denied the request as unduly burdensome and refused to search through the mayor’s personal accounts and devices. The Tribune filed a lawsuit against the city and mayor for failing to produce the documents pursuant to FOIA and for violating the Illinois Local Records Act, which grants the public the ability to inspect certain public documents. Additionally, the Tribune sought the production of the requested records, including those on the mayor’s personal devices and accounts, and to prevent the deletion of any of the records. The city filed a motion to dismiss, which the Circuit Court of Cook County denied.

Consistent with prior decisions, the court determined that an email, text message, or other record contained on a personal device or account may be a “public record” under FOIA. According to the court, there is no categorical shield against disclosure pursuant to FOIA simply because the record is on a personal device or account.

The court determined that FOIA requests that encompass records from personal devices and accounts are not necessarily an invasion of personal privacy.

The city also alleged that it did not have the power to compel public employees to provide the information from the personal accounts and devices. The court, however, dismissed this argument because the mayor, as a defendant, can compel himself to produce the responsive documents. Additionally, the court noted that a public body can require its public employees to give it its own records, even if the records are on the employee’s personal device.  Finally, the court upheld the Tribune’s request to preserve the records pursuant to the Local Records Act.

This decision, though not binding precedent on any public body other than the City of Chicago, demonstrates that, even if records are on a public employee’s personal devices and accounts, they may be subject to FOIA if the information is considered to be a “public record.” Additionally, the court’s decision to deny the motion to dismiss makes clear that heads of public bodies are vulnerable to FOIA rules and may be required to preserve information and records from their personal accounts or devices.

Please contact Bob Kohn or Jeff Goelitz with your FOIA inquiries.

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