By Steve Key
Illinois’ public access counselor has ruled that private email of public officials, if the subject matter is public business, falls under the scope of the state’s Freedom of Information Act.
The binding opinion was sparked by a request for emails and text messages sent and received by the Champaign mayor and city council members during council meetings and study sessions over a two-month period.
The request was made by The News Gazette (Champaign) reporter Patrick Wade.
Deputy City Attorney Trisha Crowley argued that emails and texts sent from private phones and on private email accounts were not public records under Illinois’ Freedom of Information Act and that messages that were of a personal nature and not relating to public business also should not be subject to the access law.
Michael Luke, chief of the Public Access and Opinions Division in the Illinois attorney general’s office, agreed that emails relating to a public official’s personal life – messages about family matters or personal business meetings, for example – were not public records under Illinois law.
But he said emails concerning the transaction of city business were subject to the act and copies should be made available to the reporter.
The city of Champaign, at the writing of this column, had the opportunity to appeal Luke’s opinion to a circuit court.
Since public business performed on private email accounts has been an issue in Indiana, how would have the reporter’s request played out under Indiana law?
As to the exclusion of non-public business emails or texts from public scrutiny, I think a ruling would be different under Indiana law if private email of public officials was found to be a public record.
Illinois’ Freedom of Information Act defines public records as “[a]ll records … 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.”
Luke excluded the personal emails because they didn’t pertain to “the transaction of public business.”
Indiana’s Access to Public Records Act defines public records as “any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.”
There isn’t a subject matter limit in our definition, so regardless of the subject matter all of the emails would fall under the scope of the Access to Public Records Act if the private emails were deemed to be public records.
Indiana’s definition keeps the door open to access records that might indicate ghost employment, use of public resources for private gain and inappropriate use of public email accounts.
On the question of whether the personal email accounts and text messages would fall under Indiana’s law, I’d say no.
The scope of the Access to Public Records Act is based on the connection of the record with the public agency, either through its creation or reception.
The personal emails of officials would have to be sent to a public agency’s email account before they would fall under the scope of the law.
Does this open the way for public officials to avoid government transparency by conducting business through private communication channels?
Yes, but that’s always been the case, whether through clandestine meetings or phone conversations on home phones in the evening.
Legislators in the past have loudly voiced their concerns over the public’s ability to seek personal emails. They almost excluded the General Assembly from the Access to Public Records Act over this very issue.
So while the Illinois ruling is intriguing, I don’t see it impacting Indiana practice or law.
Steve Key is executive director and general counsel for HSPA.