Korecki: When should officials’ private emails be public?

SHARE Korecki: When should officials’ private emails be public?
SHARE Korecki: When should officials’ private emails be public?

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Over the past two weeks, the University of Illinois and Gov. Bruce Rauner’s office have undergone scrutiny after public officials used private emails for public business.

Both institutions say they have clear policies on the practice. But the governor’s office and the state’s flagship university employed markedly differing approaches once confronted with an issue that’s gained attention since Hillary Clinton famously employed the tactic.

In fact, each has put forward a legal argument that seems to conflict with the other.

The University of Illinois, citing a 2013 appellate court ruling, has taken the position that public employees must turn over emails on a private account that have to do with public business.

ANALYSIS

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“It’s our position that [the Freedom of Information Act] applies to emails that are both either on your personal email or your university email when they are in the conduct of university business or communicating on university matters,” University of Illinois spokesman Tom Hardy says.

The governor’s office, in fighting the release of private communications between outside consultants and Rauner’s education secretary, said the opposite.

“Documents relating to the transaction of public business that were sent or received by a public employee on a personal email account are not subject to production under FOIA,” Rauner’s lawyers argued.

That argument seemed to be at odds with Rauner’s public remarks about the topic when asked last week.

“We have a very firm policy. We say: no personal email if you’re serving in the administration,” Rauner said. “Don’t use personal email for any government business whatsoever.”

In May, the Chicago Sun-Times sought emails from Rauner’s education chief. When Rauner’s office refused, the Sun-Times appealed to the Illinois attorney general’s office. Lawyers for Rauner argued in a seven-page submission that state law’s not settled on the matter but that there is nothing in the law overtly stating that public discussions over personal email must be made public.

Following Rauner’s “very firm policy” remarks, the Sun-Times again flagged the issue. Hours later, attorneys released emails the newspaper sought for months.

But Rauner’s office specifically noted it would not abandon its legal position.

“Even though the definition of ‘public record’ in most states is incredibly broad, the policies and procedures that most public places have in place probably haven’t caught up to the technology,” said Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press.

Marshall said public entities would be wise “to ensure that these communications are stored and archived in a way that are responsible and responsive to public records accounting.”

The university blew the whistle on itself. After following up on a suspect email and receiving a tip about the practice involving its chancellor Phyllis Wise, U. of I. launched an internal investigation hiring an outside law firm to mete out hundreds of emails its says were sent over private email in an effort to intentionally skirt public-disclosure laws.

It flagged its own scandal, releasing 1,100 email communications that clearly violated its ethics policy.

In contrast, Rauner’s office fought the release of emails, which, as one expert put it, made Rauner appear as if he had something to hide.

While Rauner’s office finally released 44 pages of documents, including one lengthy attachment detailing education strategy in Illinois, from Education Secretary Beth Purvis’ personal account, a spokesman said that wasn’t a violation of Rauner’s “very firm policy.”

Purvis received a message in her personal email from an outside consultant from the Civil Consulting Alliance regarding an upcoming policy briefing. The consultant asks if she wants to be included on an invitation. She says yes and asks that the invite be sent to her state account.

Rauner’s office said it did not find Purvis violated its policy and, in fact, commended Purvis for taking that action.

The release of emails to the Sun-Times also revealed a separate folder Purvis maintained on personal email titled “IL Ed Policy.”

The governor’s office said late Friday it searched that folder and found nothing responsive to the FOIA.

Rauner spokesman Lance Trover said the governor “strongly discourages the use of personal email for business purposes.”

That was a step back already from Rauner’s firm response days earlier.

“That policy does not, however, prevent unsolicited emails to personal accounts or inadvertent mistakes,” Trover continued. “Our policy provides guidance when such isolated situations arise, and we intend to treat those circumstances the same way we treat other government e-mails.”

Trover added that the policy does not subject an individual’s “entire personal account to FOIA.”

Of course, it wouldn’t — and it shouldn’t.

The Sun-Times’ inquiry focused narrowly on communications between consultants from Bain & Co. and the Civil Consulting Alliance that had to do with public matters.

And the governor’s office fought it for months.

The harder you fight against requests for the release of public information, the less transparent your policy on transparency appears.

Follow Natasha Korecki on Twitter: @natashakorecki

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