The lawsuit claims that, in recent years, Freedom of Information Act requests from the Tribune to the mayor’s office “have been met with a pattern of non-compliance, partial compliance, delay and obfuscation.” Emanuel’s use of private phones and personal email, the lawsuit alleges, allows the mayor to do the public’s business without scrutiny and contributes to a “lack of transparency.”
The lawsuit is the second the news organization has filed against the Emanuel administration in recent months. In June, the Tribune sued the mayor’s office over its refusal to produce some email chains related to a multimillion-dollar no-bid Chicago Public Schools contract now at the center of a federal criminal investigation.
“We are seeking the release of public records on matters of great interest to citizens, but the city refuses to divulge them,” Tribune Editor Gerould Kern said in a statement. “Regrettably, the city’s denial is part of a pattern of resistance to releasing public documents covered by the Illinois Freedom of Information Act. We are compelled, therefore, to go to court for the second time in three months to force the city’s compliance.”
Kelley Quinn, a spokeswoman for the mayor, said she had not seen the lawsuit and could not comment.
The use of personal email and text messages by government officials is raising growing concern across the country from advocates for government transparency, who say the officials use them to circumvent so-called sunshine laws and avoid scrutiny of the media and the public.
Hillary Clinton has been dogged during her campaign for the Democratic presidential nomination by her use of a personal email account, and a server at her home while secretary of state. The discovery that University of Illinois Chancellor Phyllis Wise and other campus administrators had used personal email accounts to evade the Freedom of Informatiom Act preceded Wise’s resignation last month.
At the very least, experts said, using personal devices to do government business makes it more difficult to provide public scrutiny.
“When a public official conducts business on a personal email account, they’re throwing up a barrier to obtaining that information as easily as when that business is done on a government device,” said Steven Macias, a professor at the law school at Southern Illinois University.
At worst, experts warn that using personal devices represents an effort to skirt both the letter and spirit of open records laws, which aim to inform the public and give citizens a way to probe their government — even when government might not appreciate the scrutiny.
Though the Tribune argues in its lawsuit that the mayor’s office’s refusal to turn over emails on private accounts and text messages on personal phones is “contrary to law,” Ruth Schlossberg, a Crystal Lake attorney who represents municipalities on such matters, said she disagrees and that “the law is not so settled” in Illinois.
Schlossberg, who was not commenting on the Tribune’s lawsuit in particular, said that she encourages clients to do government business on government devices, and that many municipalities have policies that require it, but some municipalities do not.
She said her advice on official communication is simple: “Anything related to municipal business, do it on a public device.”
Illinois law says written communications by government officials are subject to Freedom of Information Act requests. The law covers “electronic communications,” but does not spell out the rules for the use of personal email and text messages on private cellular phones, according to experts.
The office of Attorney General Lisa Madigan has issued an opinion on the matter. In 2011, in a case involving members of the Champaign City Council, Madigan’s public access counselor determined that written communications about government business on personal email accounts and private cellphones are subject to FOIA. In essence, the office said it was not the device that mattered but the person using the device and the content of the communications.
The case was appealed to the Illinois Appellate Court in Springfield, which took issue with some aspects of the attorney general’s opinion. But the court agreed that emails and texts on personal devices sent by council members during a public meeting were subject to FOIA.
Anticipating continuing disputes over the issue, the appeals court also suggested that the General Assembly clarify the law. Despite that recommendation, lawmakers have yet to pass legislation to resolve what is considered a public record under the Freedom of Information Act.
The Tribune has clashed with Emanuel and his predecessor, Richard M. Daley, over open records requests, as well as with other public officials, in what is a routine part of news gathering. The Tribune sued the College of DuPage and its fundraising foundation in April to obtain records the school and foundation refused to provide in response to a Freedom of Information Act request. That lawsuit, filed in DuPage County Circuit Court, is pending.
The Tribune has been successful in obtaining some of the documents that it was seeking from the college and its foundation.
The lawsuit against Emanuel grew out of a FOIA request in June from Tribune reporter David Kidwell. Kidwell’s request sought emails, text messages and other electronic communications between Jan. 1, 2015, and June 30, 2015, related to the city’s scandal-plagued red light camera program.
Kidwell and the Tribune have reported aggressively on the program, challenging many of the city’s claims about its effectiveness. That reporting led to a bribery indictment of a former city official and revealed inconsistent enforcement and lax oversight.
The Tribune’s FOIA request also sought communications during the same period that included the mayor and Michael Sacks, CEO of a Chicago-based hedge fund who has donated to Emanuel’s campaigns and was named to lead World Business Chicago, which Emanuel formed to try to bring business to the city. The Tribune, in its reporting, has sought to learn more about Sacks’ role in advising the mayor on economic development and other public policy issues.
Kidwell’s request also sought all texts and electronic communications to or from Emanuel between May 1, 2015, and June 30, 2015. It specified that the entire request applied to correspondence on both city and personal communication devices.
In its July 15 response, the mayor’s office agreed to produce some logs. It said some of the request was “unduly burdensome,” an exemption under Freedom of Information Act law, since it would require workers to produce thousands of emails. And it said it had no texts, which typically are not stored.
But the mayor’s office also said that it had no records responsive to the request for emails and texts in which Emanuel conducted city business on personal devices. What’s more, the mayor’s office wrote in its response that it was not required under the law to produce those.
“As a result, to the extent that your request seeks records that do not reside on City email and telephone accounts, the Mayor’s Office has no records responsive to that portion of your request,” wrote Freedom of Information officer Chloe Rasmas in the mayor’s office’s response.
The response was included in the lawsuit.
Several public statements by the mayor have referred to his use of electronic communications. In 2011, Emanuel told the Tribune he used a cellphone for work but would not say whether it was a city-paid cellphone.
In a phone interview last year with DNAInfo, Emanuel said he used a flip phone to talk business and handled emails on a separate device. “I have to do emails and be on the phone at the same time,” he said. “I’m finishing an email right now as we’re talking. … I’ve got another phone, a smartphone.”
Last May, he told the Tribune that teachers union head Karen Lewis had given him some ideas and “I texted her back. I gave her some. I texted her — not texted — I communicated with her.”
The Tribune’s lawsuit argues that the emails that the city did turn over — from two official email accounts linked to the mayor — were not fully responsive to the FOIA request. According to the lawsuit, 139 emails over a two-month period were released, and nearly half of those were “form invitations to the dedication of Maggie Daley Park,” with only 64 considered by the Tribune to be “potentially substantive.”
The lawsuit argues this is a “surprisingly low” number for a big-city mayor if all his government business was conducted on official email.
Schlossberg, the Crystal Lake attorney, said Illinois needed to deal with the conflict between open records laws and private devices.
The state’s sunshines laws, she said, really do not “reflect the reality of the 21st century.”
©2015 Chicago Tribune Distributed by Tribune Content Agency, LLC.
