Recent OMA and FOIA Decisions Address “Personal” Emails of Public Officials

The Open Meetings Act (OMA) and the Freedom of Information Act (FOIA) cover the communications of board members and other public officials when conducting public business. While the laws have a long reach, granting the public access to extensive records and communications, two recent decisions outline their limits; where public business ends and personal communication begins.

In a recent nonbinding opinion, the Public Access Counselor (PAC) determined, in line with arguments made by Franczek attorneys, that emails between school board members concerning a referendum petition were not discussing public business and therefore did not violate OMA. The OMA defines a public meeting as any gathering – in person or by video or audio conference, email, instant messaging, or other means of contemporaneous interactive communication – of a majority of a quorum of a public body held for the purpose of discussing public business. 5 ILCS 120/1.02. Emails between the board members would, therefore, be meetings under the OMA if they discussed public business.

In this case, the board had approved a resolution of intent to issue working cash fund bonds. Residents of the district submitted a referendum petition to place the issuance of the bonds on the next ballot, and another group of residents filed objections to the validity of the referendum petition. The emails at issue concerned the objections to the referendum petition. While the petition for a referendum was clearly related to the public business of the board, the school board had no official role to play with respect to the referendum petition and objections. The emails dealt with the mechanics of the objections rather than the budget itself or the impact of the referendum or objections on the budget. The board members were, therefore, communicating about the objections in their capacities as private citizens rather than discussing public business as board members. Accordingly, the emails were not subject to the OMA.

Separately, a Cook County Circuit judge recently found that an alderman’s personal emails and text messages were not subject to disclosure under the Freedom of Information Act (FOIA). FOIA provides the public access to records that are prepared by or for, used by, received by, in the possession of, or under the control of a public body. 5 ILCS 140/2(c). In this case, a constituent believed his neighbors had convinced the alderman to stymie his home construction project. The constituent asked the city and the alderman to provide the alderman’s emails and texts regarding the constituent’s construction projects, including those communicated on the alderman’s personal accounts. The city and the alderman refused to provide communications from personal accounts.

The court found that an alderman does not have executive authority but acts only as part of the city council. Accordingly, the alderman is not, himself, a public body, and his personal communications are generally not subject to FOIA. Several exceptions exist, however. Messages created on a private device and account will be subject to FOIA if forwarded to a public account or device or sent to a quorum of the city council as well as if received or created during a meeting of the city council or a committee thereof. In those cases, the alderman is acting collectively as part of the city council, a public body, and the communication would be subject to FOIA.

While these cases illustrate the limits of the OMA and FOIA, board members and other public officials should exercise caution. The line between public and private can be quite technical and sometimes difficult to define.