Q. A public official in Illinois is claiming that five "private" emails are exempt on a government server. Is it possible to determine whether the claim is valid without obtaining a court subpoena?
A. The Illinois Freedom of Information Act (FOIA) applies to "public records," which means, in relevant part, "all records . . . pertaining to the transaction of public business." Thus, the mere fact that an email is sent or received on a government device does not automatically mean that the email is subject to FOIA. For example, if an Illinois government employee were to email a grocery list to his or her spouse, the FOIA would not apply because the email does not pertain to the transaction of public business. If you wish to challenge the agency's decision (i.e., file a lawsuit), the agency will have the burden of proving "by clear and convincing evidence" that the withheld records are exempt. Short of a lawsuit, you might ask the agency whether it would be willing to provide you with an index that describes the withheld material in more detail.