2020 IL App (1st) 190038 No. 1-19-0038 Third Division August 5, 2020 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ BETTER GOVERNMENT ASSOCIATION, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) No. 17 CH 5181 THE CITY OF CHICAGO OFFICE OF MAYOR ) and THE CITY OF CHICAGO DEPARTMENT ) OF PUBLIC HEALTH, ) Honorable ) Michael T. Mullen, Defendants-Appellants. ) Judge, presiding.
JUSTICE COBBS delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.
OPINION
¶1 This matter arises from two Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq.
(West 2016)) requests submitted by plaintiff, the Better Government Association (BGA) to
defendants, the City of Chicago Office of Mayor (Mayor’s Office) and the City of Chicago
Department of Public Health (CDPH). The BGA’s requests sought records related to the discovery
of lead in the drinking water at Chicago Public Schools (CPS). Defendants appeal from an order
of the circuit court directing them to inquire whether relevant records exist in certain of their No. 1-19-0038
officials’ personal text messages and e-mail accounts. Defendants primarily argue that these
communications are not subject to FOIA because they lack the requisite nexus to a public body.
For the following reasons, we affirm the circuit court’s order.
¶2 I. BACKGROUND
¶3 The BGA is a not-for-profit watchdog corporation dedicated to “protect[ing] the integrity
of the political process in Chicago.” On June 7, 2016, the BGA submitted FOIA requests to both
the Mayor’s Office and CDPH, requesting “[a]ny and all communication *** between Public
Health Commissioner Julie Morita and anybody in the mayor’s office and press office from April
1, 2016 to today.” The BGA subsequently narrowed its requests to “anything related to lead and
CPS” involving Eileen Mitchell, Adam Collins, Kelley Quinn, or Mayor Rahm Emanuel in the
Mayor’s Office and “any and all communication” between Morita and CPS officials Forest
Claypool, Doug Kucia, Jason Kierna, Emily Bittner, or Michael Passman. In response, defendants
produced some records and redacted or withheld others under various exemptions in section 7(1)
of FOIA (id. § 7(1)).
¶4 On April 11, 2017, the BGA filed a complaint in the circuit court, claiming that defendants
violated FOIA by improperly redacting or withholding nonexempt records and by failing to inquire
whether the personal text messages and e-mails of the officials named in the requests contained
responsive records. The complaint alleged that the Mayor’s Office was aware that its officials
named in the request had used their personal e-mail accounts to discuss public business. In their
amended answer, defendants contended that their redactions and withholdings were proper. The
Mayor’s Office also admitted that the four officials named in the request used their personal e-
-2- No. 1-19-0038
mail accounts for public business but maintained that it had no obligation or ability to search those
accounts for responsive records.
¶5 On August 21, 2017, the BGA filed a motion for partial summary judgment on the grounds
that some of defendants’ redactions were improper. In response, defendants argued that they were
entitled to summary judgment because they conducted a reasonable search for records and made
only appropriate redactions.
¶6 Following a hearing on the parties’ cross-motions for summary judgment, the circuit court
entered an order requiring defendants to submit supplemental affidavits about the nature of their
searches. The court also required defendants to provide unredacted copies of the records they
produced for in camera review. In response to defendants’ supplemental briefing, the BGA
produced evidence that Collins, Quinn, and Mayor Emanuel had communicated about public
business via text message.
¶7 After a second round of argument, the court found that defendant’s redactions were proper.
However, the court also found that defendants did not perform a reasonable search because they
failed to include the personal text messages and e-mails of the relevant officials. Consequently,
the court ordered defendants to “make inquiries as required to email custodians and supply
affidavits from custodians regarding same” within 28 days. The court later granted defendants’
motion to stay the order and included a finding that the order was appealable under Illinois
Supreme Court Rule 304(a) (eff. Mar. 8, 2016). This appeal followed.
¶8 II. ANALYSIS
¶9 “FOIA cases are typically and appropriately decided on motions for summary judgment.”
Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). Summary judgment is appropriate only where
-3- No. 1-19-0038
“the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). Summary judgment is a drastic means of
disposing of litigation that should be granted only where the right of the moving party is clear and
free from doubt. Lewis v. Lead Industries Ass’n, 2020 IL 124107, ¶ 15. Where, as here, the parties
file cross-motions for summary judgment, they agree that there is only a question of law involved
and invite the court to resolve the litigation based solely on the record. Illinois Insurance Guaranty
Fund v. Priority Transportation, Inc., 2019 IL App (1st) 181454, ¶ 53. A reviewing court may
affirm a circuit court’s ruling on a motion for summary judgment on any basis in the record,
regardless of the reasoning employed by the circuit court. Kainrath v. Grider, 2018 IL App (1st)
172270, ¶ 19. A circuit court’s ruling on cross-motions for summary judgment is reviewed
de novo. Schroeder v. Sullivan, 2018 IL App (1st) 163210, ¶ 25.
¶ 10 A. FOIA’s Applicability to Personal Text Messages and E-mail Accounts
¶ 11 The ultimate issue in this appeal is the adequacy of defendants’ search for records. The
BGA maintains that the search was inadequate because, at least with respect to the named officials’
personal text messages and e-mail accounts, defendants performed no search at all. As they did in
the circuit court, defendants contend that they were not required to search their officials’ personal
accounts because the communications in those accounts are not subject to FOIA. The threshold
issue thus becomes whether text messages and e-mails sent from a public officials’ personal
accounts can qualify as public records under FOIA. For the reasons that follow, we conclude that
they can.
-4- No. 1-19-0038
¶ 12 Our analysis is guided by the clear purpose of FOIA, which is “ ‘to open governmental
records to the light of public scrutiny.’ ” Stern v. Wheaton-Warrenville Community Unit School
District 200, 233 Ill. 2d 396, 405 (2009) (quoting Bowie v. Evanston Community Consolidated
School District No. 65, 128 Ill. 2d 373, 378 (1989)). Specifically, FOIA was enacted to effectuate
“the public policy of the State of Illinois that all persons are entitled to full and complete
information regarding the affairs of government and the official acts and policies of those who
represent them as public officials and public employees consistent with the terms of this Act.” 5
ILCS 140/1 (West 2016). Section 1 of FOIA explains that “[s]uch access is necessary to enable
the people to fulfill their duties of discussing public issues fully and freely, making informed
political judgments and monitoring government to ensure that it is being conducted in the public
interest.” Id. Accordingly, FOIA is to be construed liberally to promote the public’s access to
governmental information. In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 25.
¶ 13 Under FOIA, “public records are presumed to be open and accessible.” Id. Thus, when a
public body receives a proper request for information, it must comply with the request unless one
of the narrow statutory exemptions applies. Illinois Education Ass’n v. Illinois State Board of
Education, 204 Ill. 2d 456, 463 (2003). If the party seeking disclosure challenges the public body’s
denial of a request in a circuit court, the public body has the burden of proving that the records in
question are exempt. Id. at 464. “To meet this burden and to assist the court in making its
determination, the agency must provide a detailed justification for its claim of exemption,
addressing the requested documents specifically and in a manner allowing for adequate adversary
testing.” (Emphasis omitted.) Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537 (1989).
-5- No. 1-19-0038
¶ 14 Here, defendants do not argue that a statutory exemption applies to their officials’ personal
text messages and e-mails but rather that the records sought do not qualify as “public records”
within the meaning of FOIA in the first place. Section 2(c) of the FOIA defines “public records”
as:
“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.” 5 ILCS 140/2(c) (West
2016).
Accordingly, there are two criteria a record must satisfy in order to qualify as a public record under
FOIA. First, the record must pertain to public business rather than private affairs. City of Danville
v. Madigan, 2018 IL App (4th) 170182, ¶ 19. 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.
Id.
¶ 15 Defendants do not necessarily contest that their officials’ personal text messages and e-
mail accounts contain records pertaining to public business. Nor do defendants dispute that the
Mayor’s Office and CDPH are public bodies under FOIA. Rather, the crux of defendants’
argument is their contention that the individual officials named in the BGA’s requests are not
themselves public bodies. Thus, defendants conclude that those officials’ personal e-mails and text
-6- No. 1-19-0038
messages are not public records because they were neither prepared for, used by, received by,
possessed by, nor controlled by a public body.
¶ 16 FOIA defines a “public body” as:
“all legislative, executive, administrative, or advisory bodies of the State, state universities
and colleges, counties, townships, cities, villages, incorporated towns, school districts and
all other municipal corporations, boards, bureaus, committees, or commissions of this
State, any subsidiary bodies of any of the foregoing including but not limited to committees
and subcommittees thereof.” 5 ILCS 140/2(a) (West 2016).
¶ 17 The only Illinois case to examine the interplay between “public records” and “public
bodies” as those terms relate to personal communications of public officials is the Fourth District’s
opinion in City of Champaign v. Madigan, 2013 IL App (4th) 120662, a case upon which
defendants rely. There, the FOIA requester sought electronic communications relating to public
business that were sent and received by individual city council members on their personal devices
during city council meetings. Id. ¶ 4. On appeal, the City of Champaign argued that those
communications were not “public records” under FOIA because the individual city council
members were not themselves public bodies. Id. ¶ 30. The Fourth District agreed that the
individual city council members were not public bodies under FOIA, reasoning that a single
council member could not conduct public business alone because “a quorum of city council
members is necessary to make binding decisions.” Id. ¶ 40.
¶ 18 As an example, the court explained that an e-mail from a constituent received by a lone
council member on the member’s personal device would not be subject to FOIA because no public
body was involved. Id. ¶ 41. The court went on to say, however, that such an e-mail would become
-7- No. 1-19-0038
a public record if it was forwarded to enough council members to constitute a quorum. Id. This is
so because at that point the e-mail is “ ‘in the possession of a public body,’ ” i.e. the city council
with sufficient numbers to conduct business and make binding decisions. Id. The court employed
the same logic in holding that the messages the members sent and received on their personal
devices during official city council meetings were public records subject to FOIA because they
were necessarily sent at a time when the individual members were acting collectively as a public
body. Id. ¶ 42. The court noted that “[t]o hold otherwise would allow members of a public body,
convened as a public body, to subvert *** FOIA requirements simply by communicating about
city business during a city council meeting on a personal electronic device.” Id. ¶ 43.
Consequently, the court held that any messages pertaining to public business sent or received by
council members’ personal devices during council meetings should be provided to the city’s FOIA
officer for review and any nonexempt material provided in turn to the FOIA requester. Id.
¶ 19 Defendants argue that City of Champaign shows that the communications requested by the
BGA lack the requisite nexus to a public body. We reach the opposite conclusion. Although we
agree with defendants that the individual officials identified in the requests are not themselves
public bodies under FOIA, this does not mean that their communications about public business
cannot be public records. Instead, it is sufficient that the communications were either prepared for,
used by, received by, or in the possession of a public body. 5 ILCS 140/2(c) (West 2016); City of
Danville, 2018 IL App (4th) 170182, ¶ 19. As noted, City of Champaign held that communications
on the personal account of a member of a public body come into the possession of that body when
the communications are sent or received at a time when the body is conducting public business.
Applying this principle to the facts of that case, the court concluded that the city council was
-8- No. 1-19-0038
capable of conducting public business only when a quorum of council members was involved. By
contrast, as defendants conceded at oral argument, the officials in question here are not limited by
a quorum requirement. Rather, defendants—through their individual officials such as those named
in the requests at issue—can function as public bodies without any official meeting having been
convened. For example, the mayor and the director of CDPH can make unilateral decisions that
are binding on their respective public bodies. See Dumke v. City of Chicago, 2013 IL App (1st)
121668, ¶ 10 n.2 (the mayor of Chicago is the city’s chief executive officer responsible for,
inter alia, directing city departments and appointing department heads). Thus, under City of
Champaign, the e-mails and text messages from those officials’ personal accounts are “in the
possession of” a public body within the meaning of FOIA. It is also reasonable to conclude that,
at a minimum, many such communications are prepared for or eventually used by the public body.
Accordingly, the communications that pertain to public business from the named officials’
personal accounts are subject to FOIA.
¶ 20 This conclusion comports with the goals of governmental transparency and accountability
underlying FOIA and with our supreme court’s instruction to construe FOIA liberally in order to
further these goals. See Special Prosecutor, 2019 IL 122949, ¶ 25. Indeed, the General Assembly
expressed a clear intent that FOIA be interpreted to promote the public’s access to information,
even when applied in situations where advances in communication technology may outpace the
terms of FOIA. 5 ILCS 140/1 (West 2016) (“To the extent that this Act may not expressly apply
to those technological advances, this Act should nonetheless be interpreted to further the declared
policy of this Act that public records shall be made available upon request except when denial of
access furthers the public policy underlying a specific exemption.”). As the City of Champaign
-9- No. 1-19-0038
court recognized, the growing use of personal e-mail accounts and text messages by public officials
for public business presents such a situation. Allowing public officials to shield information from
the public’s view merely by using their personal accounts rather than their government-issued ones
would be anathema to the purposes of FOIA.
¶ 21 Although only persuasive authority, our analysis also aligns with those of the few federal
courts that have considered the issue under the federal FOIA. See Special Prosecutor, 2019 IL
122949, ¶ 55 (“Due to the similarity of the statutes, Illinois courts often look to federal case law
construing the federal FOIA for guidance in construing FOIA.”). For example, in Brennan Center
for Justice at New York University School of Law v. U.S. Department of Justice, 377 F. Supp. 3d
428, 436 (S.D.N.Y. 2019), the United States District Court for the Southern District of New York
ruled that the Department of Justice was required to ask two of its officials if there were responsive
records in their personal e-mail accounts where there was evidence that the officials used their
personal accounts for public business. In so ruling, the court stated that it would be inconsistent
with the purposes of the federal FOIA to allow the “widespread use of personal devices for official
work” to “shunt critical and sensitive information away from official channels and out of public
scrutiny.” Id. Similarly, in Competitive Enterprise Institute v. Office of Science & Technology
Policy, 827 F.3d 145, 150 (D.C. Cir. 2016), the Court of Appeals for the District of Columbia
Circuit also held that documents maintained on an official’s private e-mail account were
government records subject to FOIA. The court reasoned that:
“The Supreme Court has described the function of [the federal] FOIA as serving ‘the
citizens’ right to be informed about what their government is up to.’ [Citation]. If a
department head can deprive the citizens of their right to know what his department is up
- 10 - No. 1-19-0038
to by the simple expedient of maintaining his departmental emails on an account in another
domain, that purpose is hardly served.” Id.
¶ 22 Additionally, several of the supreme courts of our sister states have reached similar results.
See Toensing v. Attorney General, 2017 VT 99, ¶ 20, 206 Vt. 1, 178 A.3d 1000 (“Strong public
policy reasons support the conclusion that electronic information stored on private accounts is
subject to disclosure under [Vermont’s FOIA].”); City of San Jose v. Superior Court, 389 P.3d
848, 859 (Cal. 2017) (“The whole purpose of [California’s FOIA] is to ensure transparency in
government activities. If public officials could evade the law simply by clicking into a different
email account, or communicating through a personal device, sensitive information could routinely
evade public scrutiny.”); Cheyenne Newspapers, Inc. v. Board of Trustees of Laramie County
School District Number One, 2016 WY 113, ¶ 3, 384 P.3d 679 (Wyo. 2016) (“Because school
board members use their personal email addresses to conduct school board business, the request
required a search and retrieval of emails from personal email accounts of the board members as
well as from the School District’s computer system.”); Nissen v. Pierce County, 357 P.3d 45, 49
(Wash. 2015) (en banc) (“We hold that text messages sent and received by a public employee in
the employee’s official capacity are public records of the employer, even if the employee uses a
private cell phone.”).
¶ 23 In line with the foregoing case law and the text of FOIA, we hold that communications sent
and received from public officials’ personal accounts may be “public records” subject to FOIA. In
reaching this conclusion we acknowledge but reject each of the several reasons offered by
defendants as to why our interpretation is inconsistent with the legislature’s intent in enacting
FOIA.
- 11 - No. 1-19-0038
¶ 24 First, defendants observe that the City of Champaign court suggested that the legislature
should expressly clarify whether it “intends for communications pertaining to city business to and
from an individual city council member’s personal electronic device to be subject to FOIA in every
case.” City of Champaign, 2013 IL App (4th) 120662, ¶ 44. In light of this signal, defendants
interpret the legislature’s failure to expand the definitions of a public body and public record under
FOIA as an indication that the legislature did not intend for the contents of an official’s personal
accounts to be subject to disclosure. However, defendants’ logic cuts both ways: if the legislature
intended for officials’ personal accounts to never be subject to FOIA, it could have amended FOIA
after City of Champaign. Because the legislature has declined to amend FOIA in a way relevant
here, we may presume that the legislature has acquiesced to City of Champaign’s holding that
personal account communications are at least sometimes public records. See Ready v.
United/Goedecke Services, Inc., 232 Ill. 2d 369, 380 (2008) (“[W]here the legislature chooses not
to amend a statute after a judicial construction, it is presumed that the legislature has acquiesced
in the court’s statement of the legislative intent.”).
¶ 25 Second, defendants greatly exaggerate the privacy implications of our ruling. Defendants
assert that affirming the circuit court’s order would “require public bodies to search their
employees’ private accounts—and potentially their homes and other private locations—in
response to almost any FOIA request for communications about public business.” Yet the order
before us imposes no such requirements. Instead, defendants will merely be required to ask a
limited number of officials whether their personal accounts contain responsive records. This
approach poses almost no invasion on the privacy interests of public officials and has been
persuasively endorsed by several courts. See Brennan Center, 377 F. Supp. 3d at 435-36; City of
- 12 - No. 1-19-0038
San Jose, 389 P.3d at 860; Nissen, 357 P.3d at 57-58. If the officials in question have not used
their personal accounts to conduct public business, they can so state. Indeed, the BGA concedes
that this simple step may well end the litigation because “if the City were to show through legally
admissible affidavits following a reasonable search by the relevant employees that no responsive
private-account communications exist, case law as it currently stands would often absolve the City
of any further responsibility absent a showing to the contrary by BGA.”
¶ 26 We further observe that our interpretation of FOIA in no way affects the privacy safeguards
that have long been in place. For example, FOIA exempts from disclosure any information “that
is highly personal or objectionable to a reasonable person and in which the subject’s right to
privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(1)(c)
(West 2016). “Private information” such as the financial information, personal telephone numbers,
personal e-mail addresses, and home addresses of public officials also remains exempt. Id. §§ 2(c-
5), (7)(1)(b). Moreover, any of the statutory exemptions listed in section 7 of FOIA may still apply.
We also reiterate that only those communications that pertain to public business are potentially
subject to disclosure in the first place. No information concerning the officials’ private lives need
be disclosed to defendants’ FOIA officers. Officials can also avoid any personal account disclosure
in the future by simply refraining from the use of personal accounts to conduct public business.
¶ 27 Defendants next observe that the FOIA generally gives a public body five business days to
either comply with or deny a records request. See id. § 3(d). Defendants’ argue that this deadline
“cannot be reconciled” with a requirement that they inquire into their officials’ personal accounts.
However, defendants have shown no reason why they would be unable to ask a handful of their
officials whether their private accounts contained responsive records within five business days.
- 13 - No. 1-19-0038
Additionally, FOIA contemplates situations in which the production of requested records might
require “additional efforts” for a variety of reasons. Id. § 3(e). In these situations, the public body
is entitled to an extension of five additional business days. Id. FOIA also expressly allows the
requester and the public body to agree on an extended deadline of their choosing. Id. Thus, we find
nothing in the statutory disclosure deadlines inconsistent with our interpretation of FOIA.
¶ 28 Finally, defendants raise concerns about the ability of a public body to compel its officials
to turn over responsive records contained in their personal accounts. However, there is no
indication that the officials in this case will be unwilling to comply with a court order. Additionally,
if the officials prove incalcitrant, FOIA provides that the circuit court may help enforce disclosure
through its contempt powers. Id. § 11(g) (“In the event of noncompliance with an order of the court
to disclose, the court may enforce its order against any public official or employee so ordered or
primarily responsible for such noncompliance through the court’s contempt powers.”).
¶ 29 In sum, we hold that the e-mails and text messages sought by the BGA are public records
under FOIA because they pertain to public business and share the requisite connection to a public
body. This conclusion is entirely consistent with both the letter and purpose of the statute.
¶ 30 B. Adequacy of Defendants’ Search
¶ 31 Having determined that the e-mails and text messages in question are generally subject to
FOIA, we now turn to the ultimate question on appeal, which is the adequacy of defendants’ search
for responsive records. The adequacy of a public body’s search is “judged by a standard of
reasonableness and depends upon the facts of each case.” Maynard v. Central Intelligence Agency,
986 F.2d 547, 559 (1st Cir. 1993). “The crucial issue is not whether relevant documents might
exist, but whether the agency’s search was reasonably calculated to discover the requested
- 14 - No. 1-19-0038
documents.” (Internal quotation marks omitted.) Id. Although a public body is not required to
perform an exhaustive search of every possible location, the body must construe FOIA requests
liberally and search those places that are “reasonably likely to contain responsive records.”
Judicial Watch, Inc. v. U.S. Department of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019).
Whether a particular search was reasonable depends on the specific facts and must be judged on a
case-by-case basis. Rubman v. United States Citizenship & Immigration Services, 800 F.3d 381,
387 (7th Cir. 2015)
¶ 32 When a public body determines that there are no records responsive to a request, it bears
the initial burden of demonstrating the adequacy of its search. Evans v. Federal Bureau of Prisons,
951 F.3d 578, 584 (D.C. Cir. 2020). An agency typically satisfies this burden by submitting
reasonably detailed affidavits setting forth the type of search it performed and averring that all
locations likely to contain responsive records were searched. Id. Only once the agency has
submitted such an affidavit does the burden shift to the requester to produce countervailing
evidence that the search was not adequate. Bayala v. United States Department of Homeland
Security, 264 F. Supp. 3d 165, 172 (D.D.C. 2017).
¶ 33 Here, the BGA’s requests sought communications from the relevant officials’ personal text
messages and e-mail accounts. The BGA also presented some initial evidence that the officials in
question used their personal accounts for public business. However, defendants conducted no
inquiry into these accounts based on their erroneous position that the accounts could not contain
public records within the meaning of FOIA. Thus, defendants’ search was not reasonably
calculated to capture all sources where responsive records were likely to exist.
- 15 - No. 1-19-0038
¶ 34 Even so, defendants maintain that they were not obligated to inquire about the personal
accounts of their officials because the BGA did not show that the accounts were likely to contain
responsive records. In support, defendants rely on two federal district court cases, Hunton &
Williams LLP v. U.S. Environmental Protection Agency, 248 F. Supp. 3d 220 (D.D.C. 2017), and
Wright v. Administration for Children & Families, No. 15-218, 2016 WL 5922293 (D.D.C. Oct.
11, 2016). 1 In both of these cases, the court held that an agency was not required to further inquire
into the personal accounts of their officials where the requester merely speculated that the officials
might have used their accounts for public business. Hunton, 248 F. Supp. 3d at 238; Wright, 2016
WL 5922293, at *9. However, both cases are distinguishable for two reasons. First, the question
in those cases was whether the requesters overcame the presumption of a good faith search where
the agencies carried their initial burdens. Hunton, 248 F. Supp. 3d at 238 n.17 (agencies’ search
presumed adequate where they inquired into some of their employees’ personal accounts and
submitted declarations attesting that a further search was not likely to be fruitful because all work
was done through agency accounts); Wright, 2016 WL 5922293, at *8 (presuming officials
complied with a federal law requiring them to ensure that any communications related to
government business done via their personal accounts were also preserved on agency systems).
Here, no such presumption exists because defendants have admittedly performed no inquiry into
their officials’ personal accounts based on an erroneous interpretation of FOIA. Additionally,
defendants never contested in the circuit court that the officials named in the request used their
personal accounts for public business. Although on appeal defendants contend that at least CDPH
1 We note that both cases cited by defendants support the proposition that FOIA extends to public officials’ personal e-mails and text messages. See Hunton, 248 F. Supp. 3d at 237; Wright, 2016 WL 5922293, at *7-8.
- 16 - No. 1-19-0038
Director Morita only used her government-issued account, there is nothing in the record from
Morita to support this proposition. Second, the BGA produced precisely the kind of evidence of
personal account usage that was lacking in Hunton and Wright. Hunton, 248 F. Supp. 3d at 237
(suggesting evidence that a specific private e-mail address had been used for agency business is
sufficient to require a search); Wright, 2016 WL 5922293, at *9 (same). Indeed, defendants have
admitted that the named officials in the Mayor’s Office used their personal e-mail accounts for
public business. The BGA has also submitted evidence that some of the named officials have
communicated about public business via text messages. This evidence was sufficient to require
defendants to at least ask its officials whether they used their personal accounts for public business.
¶ 35 III. CONCLUSION
¶ 36 In sum, we hold that communications pertaining to public business within public officials’
personal text messages and e-mail accounts are public records subject to FOIA. The BGA
submitted sufficient evidence to establish a reason to believe that defendants’ officials used their
personal accounts to conduct public business. Defendants’ refusal to even inquire whether their
officials’ personal accounts contain responsive records was therefore unreasonable under the facts
of this case. Accordingly, we affirm the order of the circuit court directing defendants to inquire
whether the relevant officials used their personal accounts for public business.
¶ 37 Affirmed.
- 17 - No. 1-19-0038
No. 1-19-0038
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-5181; the Hon. Michael T. Mullen, Judge, presiding.
Attorneys Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth for Solomon, Myriam Zreczny Kasper, and Ellen Wight McLaughlin, Appellant: Assistant Corporation Counsel, of counsel), for appellants.
Attorneys Joshua Burday, Matthew Topic, and Merrick Wayne, for of Loevy & Loevy, Chicago, for appellee. Appellee:
- 18 -