Whether Personal Text Messages and Emails of Public Officials Must Be Searched for Records Responsive to a FOIA Request
An Illinois Appellate Court found, once again, that public officials’ personal text messages and emails that are prepared for, used by, received by, or in the possession of a public body are public records for purposes of FOIA.
The Illinois Appellate Court in the First District affirmed a circuit court order which directed the City of Chicago Office of Mayor (Mayor’s Office) and Chicago Department of Public Health (CDPH) to inquire whether records exist pertaining to the presence of lead in the drinking water at Chicago Public Schools (CPS).
On June 7th, 2016, the Better Government Association (BGA) submitted a FOIA request to the Mayor’s Office and CDPH requesting “any and all communication between [the] Public Health Commissioner…and anybody in the mayor’s office and press office from April 1, 2016 to today.” The request was later modified to include “anything related to lead and CPS” and “any and all communication” between the Public Health Commissioner and other CPS officials. The Defendants (Mayor’s Office and CDPH) produced records but redacted or withheld others on the grounds that they were protected by Section 7.1 of FOIA.
On April 11th, 2017, the BGA filed a complaint in the circuit court. They argued that the Defendants violated FOIA by redacting and withholding the responsive records. The Plaintiffs (BGA) also argued that the Defendants improperly failed to inquire whether personal text messages and emails of the officials named in the requests contained responsive records.
The Defendants claimed that the redactions and withholdings were proper in their answer. The Mayor’s Office acknowledged that the officials named in the request used their personal email accounts for public business, but contended that it did not have the ability or any obligation to search the accounts for the responsive records.
On August 21, 2017, the Plaintiffs filed a partial motion for summary judgement. After hearing arguments from both sides, the circuit court held that the Defendant’s redactions were proper. However, the circuit court also held that the Defendants did not perform a reasonable search of the relevant officials because the personal text messages and emails were omitted.
To rectify this, the circuit court ordered the Defendants to “make inquiries as required to email custodians and supply affidavits from custodians regarding same” within 28 days. The Defendants went on to appeal the order.
In his opinion, the Honorable Michael T. Mullen stated that the Defendants did not cite a specific statutory exemption to make their case. Instead, they insisted that the personal text messages and emails did not constitute public records. To test this claim, Judge Mullen used two criteria (established in City of Danville v. Madigan, 421 Ill.Dec. 792 (2018)) that must be met to determine if the responsive records are public and therefore subject to disclosure under FOIA. First, the record must pertain to public rather than private business. Second, the record “must have been either (1) prepared by a public body, (2) prepared for a public body, (3) used by a public body, (4) received by a public body, (5) possessed by a public body, or (6) controlled by a public body.”
Judge Mullens found that the personal text messages and emails were “either prepared for, used by, received by, or in the possession of a public body,” which was sufficient to establish them as public records. For these reasons, the circuit court’s order was affirmed.