Texts and Emails in Personal Accounts Can Be Subject to FOIA Disclosure

In Better Government Association v. City of Chicago Office of Mayor, an Illinois appellate court held that public officials’ emails and text messages kept in personal accounts are subject to FOIA if they pertain to public business. The Better Government Association requested from the Mayor’s Office and the Chicago Department of Public Health text messages and emails between the Chicago Public Health Commissioner and public officials such as then-Mayor Rahm Emanuel regarding lead in the drinking water in Chicago Public Schools. While some officials admittedly used their personal accounts for public business, the City argued that it had no obligation to search those accounts because the records were not subject to FOIA.

The court held that the requested records are public records and, therefore, subject to FOIA disclosure. A record is a public record under FOIA if it meets two criteria. First, the record must pertain to public business rather than private affairs. Second, the record must have been either prepared for, used by, received by, or in the possession of a public body. In this case, the City argued that the public officials themselves are not public bodies, so the records in the officials’ personal accounts are not subject to FOIA. Rejecting that argument and diverging from the appellate court in City of Champaign v. Madigan, the court reasoned that, unlike city council members, who must form a quorum to conduct public business, the officials here could function as public bodies even if no official meeting occurred. The court also found it reasonable to conclude that their communications are prepared for or eventually used by the public bodies at issue. Thus, the communications from the officials’ personal accounts that pertain to public business are subject to FOIA. The court noted that its conclusion followed the intent of FOIA to promote the public’s access to information even when advances in communication technology may outpace the statute’s terms.

The court then held that the City’s search for responsive records was inadequate because it did not include a request for the officials’ to search their personal accounts. To satisfy FOIA requirements, a search must be reasonably calculated to discover the requested documents. Here, the City admitted that the officials at issue used their personal accounts for public business, so the refusal to even inquire whether their officials’ personal accounts contained responsive records was therefore unreasonable. The court also rejected the City’s argument that searching the officials’ accounts would invade their privacy because FOIA contained privacy safeguards. For example, FOIA exempts from disclosure private information and information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.

School districts commonly receive FOIA requests for communications sent by employees and board members. Such communications are subject to FOIA if they pertain to public business, even if exchanged using their personal accounts. To avoid complex searches of teachers’, administrators’ and board members’ cell phones and personal email accounts, limit discussions of public business to official district accounts only and be thoughtful about what substantive school matters are discussed via email or text messages in the first place.

Source: Better Gov’t Ass’n v. City of Chicago, 2020 IL App (1st) 190038

 

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