Illinois Attorney General Removes ‘FOIA Shield’ of Personal Email


***Update 8/18: The Facebook discussion of this post has prompted me to expand and clarify it. What I’ve added, I’ve placed in italics.***

The Illinois Attorney General has issued a binding opinion concerning public employees’ use of personal email accounts when messages pertain to public business.

What the opinion does is to remove doubt that email or texts from personal accounts are subject to the Freedom of Information Act when public business is the topic.

The reasoning goes to the state’s very definition of public records:

(c) “Public records” means 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 materials 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, received by, in the possession of, or under the control of any public body.

Some key words here are: “pertaining,” “received by,” and “in the possession of,” which indicate that even the passive generation of records in the course of public bodies’ transacting public business is subject to Freedom of Information Act requests. Since public bodies transact public business through their officers and employees, the Act covers communications concerning these transactions no matter which mailboxes they come from or land in.

Please note distinctions we must make, though. While clear that it’s the content of the message that matters and not the method of communication, a response to a request for information depends on context and position held, because this opinion is specific to employees of a public body. Employees are independent agents of the public body at all times in transacting public business, which automatically makes communications about these transactions a generation of public records.

Council members, on the other hand, don’t have independent authority outside of convened meetings, and it’s been established that city business-related communications that occur during these meetings are the only ones you can request at this point.

But don’t get discouraged, FOIA fans. If you want to know what the mayor is up to, you could request messages sent and received by city employees and NIU employees instead. The AG has removed a “FOIA shield,” and it’s still a big deal.

Meanwhile, public bodies in Illinois generally will need to set guidelines for obtaining messages from officials where applicable.

The development is another good argument for keeping public business separate from private, which, in my experience, people who are functional and honest tend to do anyway.