Recent legal decisions continue to blur the line between private communications and public records, extending the reach of the Freedom of Information Act (FOIA). Because of these shifts, proactive government officials are reviewing records retention and communications policies and ensuring that their employees and elected officials are not operating under the mistaken assumption that a private email or text messaging account is beyond the reach of FOIA.

One of the more notable legal opinions concerning FOIA came this summer from Illinois Attorney General Lisa Madigan. In response to a FOIA request filed by CNN, Madigan required the City of Chicago to search the private email accounts of 12 of its police officers for messages related to recent police shootings they were involved in. The city initially refused to conduct the search on privacy grounds. The Attorney General disagreed and found that whether the accounts were public or private didn’t matter because the officers are public employees discussing information related to their public duties. Of course, the ongoing debate and disclosures surrounding Secretary Clinton’s “private” email server add further prominence to these questions.

Madigan’s decision opens up the matter for debate well beyond Chicago and Illinois. Some jurisdictions, like North Carolina, include exemptions from disclosure for personal information in FOIA statutes. However, these exemptions are often broadly defined and leave open plenty of room for interpretation. For example, North Carolina’s Public Records Act defines a public record to include any “documentary material” made or received “in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.” Public agency is defined to include any “public officer or official.” Accordingly, a public official’s private email about job related activity likely qualifies as an email of the public agency itself.

Why is this important? Claims of civil rights violations and illegal discrimination against local governments often hinge on evidence concerning the culture and practices of a public body. In the heat of the moment, public officials or employees may say things in a “private” email or text that do not truly reflect the values they bring to their jobs much less those of the governmental entity they serve. That distinction can easily get lost in a controversial lawsuit. The consequences of publishing these unguarded statements at trial or in the media can be devastating.

Therefore, even in states like North Carolina where FOIA statutes include disclosure exemptions for personal information, the safest practice for public officials or public employees is still to assume that any electronic message concerning governmental matters will qualify as a public record, even if the message was sent from or received to a personal account.

A copy of the Illinois Attorney General's opinion can be found here.