Wednesday, June 8th, 2016

Mayor Emanuel’s Personal Electronic Device Raises Question of FOIA Disclosure

While the Illinois Freedom of Information Act (“FOIA”) was revised significantly in 2009 in part to ensure that it kept pace with technological changes, the contours of how FOIA applies to electronic communication are still evolving. In particular, questions continue to arise regarding communication by elected officials — both by text and by e-mail — on their personal electronic devices or using their personal email addresses. As we have written before, communication that takes place on a publicly-owned device, communication that uses a public-body issued email address, communication that ends up in the files or service of a public body, and communication by elected officials made while sitting as a public body are all subject to FOIA. This is true both for employees and for elected officials.

However, the question remains whether communication about public business undertaken by elected officials on their private devices or using their private addresses that are not otherwise in the possession of the public body are subject to FOIA. In the 2013 City of Champaign v. Madigan case, the state’s 4th District Court found that communication by elected officials — regardless of the device or address used — was subject to FOIA when those officials communicated during the course of a public meeting since, at that point, they were sitting as a public body. The implication, however, was that as individuals — when no public body was involved — their communication on private devices and addresses were not communications of the public body that would be subject to FOIA.

This decision left unanswered the question of whether the same analysis would apply to other elected officials such as mayors or others who might have the authority to act on their own as representatives of the public body. That question of the status of private communications by executive officials was raised by a Freedom of Information Act request made by the Chicago Tribune to the City of Chicago seeking the Chicago Mayor’s correspondence on his private device. The Tribune sought Mayor Emanuel’s emails and text messages from his personal device on matters related to public business. The City denied that request, and in the fall of 2015, the Tribune sued to compel the City to produce those communications under FOIA.

While the court in that case has not yet issued a final decision, at the end of May of this year, the judge hearing the case denied the City’s motion to dismiss the lawsuit. Among other things, the Court refused to find that communication on a personal device or using a personal email address is, by definition, personal communication exempt from FOIA. Instead, the Court held that, ultimately, the Court itself must determine through a fact-intensive inquiry whether such communications pertain to the transaction of public business and constitute “public records” subject to FOIA (and the Local Records Act) or whether they are of the type that would constitute personal matters protected by privacy considerations.

The Court also expressed the opinion that if the General Assembly had meant to shield all communication related to the transaction of public business when done on personal devices or personal email accounts by concluding that they were all unwarranted invasions of privacy, it would have said so. Instead, the Court concluded that the FOIA statute allows public bodies to claim a privacy exemption and that such claims are subject to judicial review.

The Court also took up the question of whether Mayor Emanuel, as the chief executive officer of the City, was himself subject to FOIA.  Remember that in the Champaign case, the elected Council members were considered part of a public body when they were sitting as the public body, but not when they were acting individually. In contrast, the Tribune Court found that, by definition, because the Mayor is the City’s chief executive officer who exercises police and other powers and because he sits as the head of the public body, that he would not be distinct from his department and could be subject to FOIA. As a result, “any communications pertaining to the transaction of public business received or sent by the mayor pursuant to his authority are ‘prepared by or for’, ‘received’, or ‘used’ by the public body.” Thus they would constitute public records.

Interestingly, the Court also concluded that local government bodies can compel production of public records that are on private devices. Many municipalities have long held that it would be difficult, if not impossible, to require their elected officials to produce material on their private devices and email accounts. Apparently, the Court in the Tribune case disagrees and suggests that a public body can demand production of its records on personal devices and can seek help from the courts to enforce that demand.

The issues surrounding communications on private devices and private email addresses raise significant public policy issues. For instance, if the Mayor seeks to discuss difficult matters of public policy with a friend in order to brainstorm those issues or if the Mayor were, for instance, to seek advice from his wife or a pastoral counselor or a therapist or a world famous public health expert about how conflicted he feels about the rise in violence in the City, should those be subject to the Freedom of Information Act if they do not take place on government-owned devices or using government resources in any way? What if the Mayor’s neighbor had an opinion about street paving and left a note tucked inside the Mayor’s mailbox to that effect? And what if the Mayor’s child wanted to see the City do more about recycling and sent him a Facebook message with a link to an article about the recycling programs in other cities? Are those all items that are appropriate for public disclosure and, if not, is there any distinction between these different types of communication? We will continue to report on this topic as this case progresses.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg