The University of Illinois recently disclosed that its former Chancellor and other university employees intentionally used private email addresses for the purpose of evading public disclosure of several sensitive matters. Not only did they discuss public business in these private emails, but in some instances they specifically noted they were doing so to avoid disclosure under the Freedom of Information Act (FOIA). In addition, the University has acknowledged that these emails were not disclosed in response to FOIA requests that would have included this material. This practice contravened the University ethics policy stating that University-related communications are subject to FOIA regardless of whether they are sent using private devices or personal accounts.
While the situation of the University of Illinois raises a host of issues, the biggest from a legal and employment perspective appear to be twofold. First, the University had a policy in place regarding conduct of University business on University devices — so that the deliberate choice to use private devices may well have violated the University’s internal policy. Second, the emails demonstrate a clear intent to avoid subjecting public records to FOIA, but conducting public business on private devices by University employees did not actually make them any less public records of the University. The irony in this case is that a good many of the emails in question would have been exempt from production under FOIA (5 ILCS 140/7(f)) which exempts: “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body . . . .”
The University’s situation serves as a good reminder to other public bodies to ensure they institute policies and practices to ensure compliance at all levels with both FOIA and the state’s record retention rules. It is not per se illegal to use a private email device to conduct government business. However, doing so may contravene a public body’s own policies (as is the case in the U of I matter). In addition, the fact that correspondence takes place on private email addresses and private devices does not automatically mean it is not subject to FOIA.
Here are a few thoughts to keep in mind:
Public Records: Remember that virtually all of your government emails are public records. Under FOIA, “public records” are “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary material pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, in the possession of or under the control of any public body. 5 ILCS 140/2(c).
Email Policy for Public Business: You may wish to ensure that your body has a policy in place regarding use of email or other media for public business.
- Public email for employees: At least for employees, we recommend requiring public business to be conducted using public email addresses. In that way, your FOIA officer is only required to look at one system when searching for responsive emails and can reliably respond to FOIA requests after searching through public emails.
- Elected officials and private email: Regarding elected official use of private devices and private email addresses, the law is not fully settled in Illinois as not every communication of an elected official is also a public record as the communication of a public body. While it now seems clear that correspondence by elected officials that takes place on government issued devices or using government email addresses or that ends up in the possession of the public body would be subject to FOIA, not every instance of fully private communication by elected public officials — on private devices and email addresses — is subject to FOIA. The leading authority on this issue is the 2013 City of Champaign v. Madigan case. In that decision, the fourth district Illinois appellate court considered whether correspondence about government business conducted by elected officials on their personal devices constituted public records of the public body. The court found that elected officials were not by themselves a “public body” and that, for instance, an email from a constituent to an elected official on the official’s private email address and private device, would not be subject to FOIA (unless the message were then forwarded to a majority of a quorum or otherwise ended up in the system of the public body). In contrast, however, the court found that messages sent between elected officials during public meetings — that is when a majority of a quorum was present and sitting as a public body — were subject to FOIA as public records of a public body. The court specifically noted that if the General Assembly meant for city council members’ communications pertaining to public business on their personal devices to be subject to FOIA in every case, then it should pass a law making that clear.
Local Records Act: While the Local Records Act addresses what emails must be retained, to the extent that a qualified email exists and has not been disposed of in accordance with the Local Records Act, then it is subject to FOIA (although it may be exempt from disclosure under one of the authorized exemptions). Once a FOIA request has been made for an email, an email should not be deleted even if it might otherwise have been eligible for destruction under the Local Records Act.
FOIA’s Reach: FOIA compliance is mandated by law. Nothing in FOIA requires that all discussions be reduced to writing or documented by email. But once those emails exist on the municipality’s system or by their employees working on public business, then they are subject to FOIA and the FOIA rules and exemptions apply.
Online FOIA Training: It is a good idea to be sure that your employees or at a minimum those in positions of managerial responsibility — and not just your elected officials or FOIA officers — have some basic understanding of the FOIA rules. The Illinois Attorney General’s office provides free online FOIA training for the public through its website.
Author: Ruth A. Schlossberg