Ruth Alderman Schlossberg

Wednesday, June 8th, 2016

Mayor Emanuel’s Personal Electronic Device Raises Question of FOIA Disclosure

While the Illinois Freedom of Information Act (“FOIA”) was revised significantly in 2009 in part to ensure that it kept pace with technological changes, the contours of how FOIA applies to electronic communication are still evolving. In particular, questions continue to arise regarding communication by elected officials — both by text and by e-mail — on their personal electronic devices or using their personal email addresses. As we have written before, communication that takes place on a publicly-owned device, communication that uses a public-body issued email address, communication that ends up in the files or service of a public body, and communication by elected officials made while sitting as a public body are all subject to FOIA. This is true both for employees and for elected officials.

However, the question remains whether communication about public business undertaken by elected officials on their private devices or using their private addresses that are not otherwise in the possession of the public body are subject to FOIA. In the 2013 City of Champaign v. Madigan case, the state’s 4th District Court found that communication by elected officials — regardless of the device or address used — was subject to FOIA when those officials communicated during the course of a public meeting since, at that point, they were sitting as a public body. The implication, however, was that as individuals — when no public body was involved — their communication on private devices and addresses were not communications of the public body that would be subject to FOIA.

This decision left unanswered the question of whether the same analysis would apply to other elected officials such as mayors or others who might have the authority to act on their own as representatives of the public body. That question of the status of private communications by executive officials was raised by a Freedom of Information Act request made by the Chicago Tribune to the City of Chicago seeking the Chicago Mayor’s correspondence on his private device. The Tribune sought Mayor Emanuel’s emails and text messages from his personal device on matters related to public business. The City denied that request, and in the fall of 2015, the Tribune sued to compel the City to produce those communications under FOIA.

While the court in that case has not yet issued a final decision, at the end of May of this year, the judge hearing the case denied the City’s motion to dismiss the lawsuit. Among other things, the Court refused to find that communication on a personal device or using a personal email address is, by definition, personal communication exempt from FOIA. Instead, the Court held that, ultimately, the Court itself must determine through a fact-intensive inquiry whether such communications pertain to the transaction of public business and constitute “public records” subject to FOIA (and the Local Records Act) or whether they are of the type that would constitute personal matters protected by privacy considerations.

The Court also expressed the opinion that if the General Assembly had meant to shield all communication related to the transaction of public business when done on personal devices or personal email accounts by concluding that they were all unwarranted invasions of privacy, it would have said so. Instead, the Court concluded that the FOIA statute allows public bodies to claim a privacy exemption and that such claims are subject to judicial review.

The Court also took up the question of whether Mayor Emanuel, as the chief executive officer of the City, was himself subject to FOIA.  Remember that in the Champaign case, the elected Council members were considered part of a public body when they were sitting as the public body, but not when they were acting individually. In contrast, the Tribune Court found that, by definition, because the Mayor is the City’s chief executive officer who exercises police and other powers and because he sits as the head of the public body, that he would not be distinct from his department and could be subject to FOIA. As a result, “any communications pertaining to the transaction of public business received or sent by the mayor pursuant to his authority are ‘prepared by or for’, ‘received’, or ‘used’ by the public body.” Thus they would constitute public records.

Interestingly, the Court also concluded that local government bodies can compel production of public records that are on private devices. Many municipalities have long held that it would be difficult, if not impossible, to require their elected officials to produce material on their private devices and email accounts. Apparently, the Court in the Tribune case disagrees and suggests that a public body can demand production of its records on personal devices and can seek help from the courts to enforce that demand.

The issues surrounding communications on private devices and private email addresses raise significant public policy issues. For instance, if the Mayor seeks to discuss difficult matters of public policy with a friend in order to brainstorm those issues or if the Mayor were, for instance, to seek advice from his wife or a pastoral counselor or a therapist or a world famous public health expert about how conflicted he feels about the rise in violence in the City, should those be subject to the Freedom of Information Act if they do not take place on government-owned devices or using government resources in any way? What if the Mayor’s neighbor had an opinion about street paving and left a note tucked inside the Mayor’s mailbox to that effect? And what if the Mayor’s child wanted to see the City do more about recycling and sent him a Facebook message with a link to an article about the recycling programs in other cities? Are those all items that are appropriate for public disclosure and, if not, is there any distinction between these different types of communication? We will continue to report on this topic as this case progresses.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Friday, April 29th, 2016

Severance Agreements Subject to FOIA Effective June 1, 2016

The Illinois Freedom of Information Act (“FOIA”) has explicitly required the disclosure of settlement agreements since 2010.  Public Act 99-478, passed last fall, expands this explicit duty to produce settlement agreements to also include severance agreements.  Effective June 1, 2016, Section 2.20 of FOIA provides that “All settlement and severance agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.”

“Severance Agreements” are defined in Section 2 of FOIA as “a mutual agreement between any public body and its employee for the employee’s resignation in exchange for payment by the public body.”

While there is no duty to disclose otherwise exempt information — such as home addresses or social security numbers — public bodies should assume that any details associated with any payments from or benefits granted by the public body to a departing employee are details that should be disclosed in response to any FOIA request.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Thursday, September 3rd, 2015

GASB Announces New Disclosure Requirements

Last month, the Governmental Accounting Standards Board (GASB) announced the issuance of new guidelines requiring local governments to disclose information about tax abatement agreements. Many municipalities agree to abate or reduce taxes in an effort to stimulate and promote economic development, job growth, and other community benefits, but these agreements also impose costs on municipalities both in terms of foregone revenue as well as in terms of financial commitments by the public body to the incentive recipient. The new GASB Statement 77 is intended to create a more consistent and transparent manner for reporting on the financial impact of these tax abatements.

Statement 77 will require local governments to include information in their financial statements about both their own tax abatement programs and about any tax abatement programs offered by other governments if those agreements impact the tax revenue of the reporting body.  When reporting about their own abatement agreements, the local government will be required to disclose the purpose of the tax abatement program, to identify the nature and amount of the tax being abated and to describe any provisions for recapturing those abated taxes. The reporting must also include not only a description of any commitments required of the abatement recipients but also any other commitments the government has made under the abatement agreement, such as agreeing to build infrastructure that would benefit the abatement recipient.

Regarding tax abatements that have been entered into by other governments but that have a financial impact on the reporting municipality, the municipality should identify the body that has entered into an abatement agreement, describe the specific tax being abated, and provide the dollar amount of taxes that the reporting body will not receive because of this other reporting government’s abatement agreement.

The new requirement will apply to financial reporting periods that begin after December 15, 2015.  The GASB standards apply to all Illinois municipalities’ financial reports, and compliance with them is essential for municipalities seeking a clean audit report. Accordingly, you can expect to receive more specific details about the guidelines for implementing these new requirements from your auditors and finance officers in the coming months.  In the meantime, more details about the new standards can be found on the GASB’s website.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Wednesday, August 19th, 2015

Using Personal Emails for Government Business: How NOT to do it

The University of Illinois recently disclosed that its former Chancellor and other university employees intentionally used private email addresses for the purpose of evading public disclosure of several sensitive matters. Not only did they discuss public business in these private emails, but in some instances they specifically noted they were doing so to avoid disclosure under the Freedom of Information Act (FOIA). In addition, the University has acknowledged that these emails were not disclosed in response to FOIA requests that would have included this material. This practice contravened the University ethics policy stating that University-related communications are subject to FOIA regardless of whether they are sent using private devices or personal accounts.

While the situation of the University of Illinois raises a host of issues, the biggest from a legal and employment perspective appear to be twofold. First, the University had a policy in place regarding conduct of University business on University devices — so that the deliberate choice to use private devices may well have violated the University’s internal policy. Second, the emails demonstrate a clear intent to avoid subjecting public  records to FOIA, but conducting public business on private devices by University employees did not actually make them any less public records of the University. The irony in this case is that a good many of the emails in question would have been exempt from production under FOIA (5 ILCS 140/7(f)) which exempts: “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body . . . .”

The University’s situation serves as a good reminder to other public bodies to ensure they institute policies and practices to ensure compliance at all levels with both FOIA and the state’s record retention rules. It is not per se illegal to use a private email device to conduct government business. However, doing so may contravene a public body’s own policies (as is the case in the U of I matter). In addition, the fact that correspondence takes place on private email addresses and private devices does not automatically mean it is not subject to FOIA.

Here are a few thoughts to keep in mind:

Public Records: Remember that virtually all of your government emails are public records. Under FOIA, “public records” are “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary material pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, in the possession of or under the control of any public body. 5 ILCS 140/2(c).

Email Policy for Public Business: You may wish to ensure that your body has a policy in place regarding use of email or other media for public business.

  • Public email for employees: At least for employees, we recommend requiring public business to be conducted using public email addresses. In that way, your FOIA officer is only required to look at one system when searching for responsive emails and can reliably respond to FOIA requests after searching through public emails.
  • Elected officials and private email: Regarding elected official use of private devices and private email addresses, the law is not fully settled in Illinois as not every communication of an elected official is also a public record as the communication of a public body. While it now seems clear that correspondence by elected officials that takes place on government issued devices or using government email addresses or that ends up in the possession of the public body would be subject to FOIA, not every instance of fully private communication by elected public officials — on private devices and email addresses — is subject to FOIA. The leading authority on this issue is the 2013 City of Champaign v. Madigan case. In that decision, the fourth district Illinois appellate court considered whether correspondence about government business conducted by elected officials on their personal devices constituted public records of the public body. The court found that elected officials were not by themselves a “public body” and that, for instance, an email from a constituent to an elected official on the official’s private email address and private device, would not be subject to FOIA (unless the message were then forwarded to a majority of a quorum or otherwise ended up in the system of the public body). In contrast, however, the court found that messages sent between elected officials during public meetings — that is when a majority of a quorum was present and sitting as a public body — were subject to FOIA as public records of a public body. The court specifically noted that if the General Assembly meant for city council members’ communications pertaining to public business on their personal devices to be subject to FOIA in every case, then it should pass a law making that clear.

Local Records Act: While the Local Records Act addresses what emails must be retained, to the extent that a qualified email exists and has not been disposed of in accordance with the Local Records Act, then it is subject to FOIA (although it may be exempt from disclosure under one of the authorized exemptions). Once a FOIA request has been made for an email, an email should not be deleted even if it might otherwise have been eligible for destruction under the Local Records Act.

FOIA’s Reach: FOIA compliance is mandated by law. Nothing in FOIA requires that all discussions be reduced to writing or documented by email. But once those emails exist on the municipality’s system or by their employees working on public business, then they are subject to FOIA and the FOIA rules and exemptions apply.

Online FOIA Training: It is a good idea to be sure that your employees or at a minimum those in positions of managerial responsibility — and not just your elected officials or FOIA officers — have some basic understanding of the FOIA rules. The Illinois Attorney General’s office provides free online FOIA training for the public through its website.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Wednesday, June 3rd, 2015

Proposed Bill Would Change FOIA Requirements for Police Body Cameras

Currently, a bill sits before Governor Rauner that would establish criteria for police body cameras. While the bill does not require police departments to utilize these cameras, it does establish regulations for their implementation and use. This new bill sets new and complex guidelines for determining when recordings made under this Act may be released under the Freedom of Information Act (FOIA), when they must be withheld, when permission to release must be sought and when they must be redacted. The complexity of these determinations will result in new work for FOIA Officers and their attorneys who will be asked to make sense of the new guidelines.

While on the face of it the Act seems to exempt the recordings made with the officer-worn body camera from disclosure under FOIA, in fact such disclosure is actually required in many instances. As drafted (though the drafting is unnecessarily complex and confusing) it seems that where there has been a filing of a complaint, discharge of a firearm, use of force, arrest or detention, or a resulting death or bodily harm, then the recording must be disclosed. However, FOIA Officers will be asked to determine if a subject has a reasonable expectation of privacy at the time of the recording. If that subject is also a victim or witness, then the law enforcement agency must first get written permission from the subject or their legal representative in order to release the information. Recordings also must be released to the subject of the encounter captured on the recording or to their legal representative or attorney. The Act notes that if a subject was arrested as a result of the encounter, then there is no reasonable expectation of privacy but it does not otherwise clarify what is a reasonable expectation of privacy. It also notes that a “witness” does not include a victim or one arrested as a result of the encounter.

If this is not complicated enough, the Act goes on to provide that only recordings or portions of recordings responsive to the request shall be available for inspection or reproduction. This suggests that a FOIA responder must determine the precise parameters of what part of the recording is responsive. The responder is also required to redact the recording to remove identification of any person on the recording that is neither the officer, the subject of the encounter or someone directly involved in the encounter. It then goes on to state that nothing in the Act requires the disclosure of anything that is otherwise exempt under FOIA.

Elsewhere in the legislation there is a new exemption from FOIA for the production of certain officer or pedestrian information compiled by law enforcement under the Illinois Vehicle Code related to traffic and pedestrian stop statistical study. For instance, any municipalities considering the implementation of police body cameras should make note of these new and complicated FOIA requirements.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Monday, April 27th, 2015

Schlossberg Appointed to ISBA Local Government Role

Ruth Alderman SchlossbergIn early April, Zukowski, Rogers, Flood & McArdle attorney Ruth Alderman Schlossberg was appointed to a prominent post in the Illinois State Bar Association, an organization of about 30,000 Illinois attorneys.

Highly regarded in the field of municipal and local government law, Ruth Alderman Schlossberg received an ISBA appointment for the 2015-2016 year to serve as secretary to the ISBA Local Government Law Section Council. She has been a member of the section since 2012.

The mission of the Local Government Law Section is:

  • to enhance the knowledge and professional capabilities of lawyers who devote time to the practice of the law relating to units of local government;
  • to disseminate information and comment on legislative and judicial developments and their impact on units of local government; to make recommendations on legislation; and
  • to develop and communicate ideas to improve the functioning of units of local government.

Schlossberg is widely known for co-authoring with Richard G. Flood the book You’ve Been Elected: Now What Do You Do? A Practical Guide to Local Government, now in its 3rd edition. The guide, published by the Illinois Municipal League, offers local public officials advice to help them “hit the ground running” and succeed in new leadership positions.

For Schlossberg’s professional credentials, please view Ruth Alderman Schlossberg’s biography. You may also wish to view her Illinois Municipal League conference video presentation, delivered with ZRFM local government law attorneys Richard G. Flood and Kelly A. Cahill.

As the largest law firm in McHenry County, Illinois, many Zukowski, Rogers, Flood & McArdle attorneys have been involved with the endeavors of various ISBA sections. Earlier in his career, ZRFM’s David W. McArdle was a chair of the Local Government Law Section Council.

Friday, March 6th, 2015

New Regulations to Prevent Fencing at “Cash for Gold” Stores

The rise in popularity of precious metal resale stores, often known as Cash for Gold stores, over the last several years created a new problem for law enforcement officials seeking to trace and stop the fencing or resale of stolen goods. While Cash for Gold stores operate in many of the same ways as pawn shops, they were not regulated similarly. Most notably, there had been no requirement that Cash for Gold stores keep records of precious metal purchases from their customers. In turn, this made it easier for criminals to fence stolen jewelry at Cash for Gold stores and more difficult for law enforcement agencies to identify the parties involved. To combat this, the Illinois Legislature passed Public Act 098-1096 entitled “The Resale Dealers Act” which went into effect on January 1, 2015, and has created new regulations relating to the Cash for Gold industry in Illinois.

The new law requires all “resale dealers,” a term which specifically includes “Cash for Gold” operators, to keep a detailed record of “all goods, articles, and other things purchased or received by the resale dealer from any source.” Additionally, the resale dealer will need to keep a record of the time of purchase, obtain identification from customers — which they must record — and keep formal records of the transactions. The law also requires daily reporting procedures to local law enforcement, establishes holding periods before goods may be resold, melted or transferred, and outlines the methods by which government officials can inspect suspected stolen goods. While home rule communities may not create any regulations that are less restrictive than required by this Act, the Act specifically contemplates that more restrictive regulations may be imposed locally including a requirement that Cash for Gold shops videotape their businesses.

The law was prepared in consultation with police and sheriff’s officials. If your police department has been struggling with this issue, this may offer an additional useful enforcement tool and should, hopefully, plug the gap created by the different regulation of pawn sales and cash for gold sales that existed before the law was passed.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Thursday, February 26th, 2015

Protecting Municipal Interests in Springfield

With the Governor’s recent proposal to significantly reduce municipal LGDF revenues, protecting municipalities against unfunded mandates and increased regulation and costs has become increasingly important. An astounding number of bills have been introduced in Springfield this legislative season that would further increase municipal operating costs including new rules for website posting and changes to the Open Meetings and Local Records Act, increased limitations on sewer and water tap-on fees and increased training and procedural requirements imposed on municipalities or their officials.

At the same time, some bills that might ultimately benefit municipal operations have also been introduced including, for instance, those that would expand the pricing of projects that must be subject to public bidding, proposals that might change the application of the prior appropriation rule to permit longer contract terms, a potential expansion of the uses of hotel/motel tax funds, an expansion of lien enforcement and code violation authority, a potential increase in the level of permitted sales tax levels for non-home rule communities and a potential expansion of non-home rule powers more generally.

At ZRFM, we monitor relevant legislation through our involvement with the IML, the Local Government Law Section Council of the Illinois State Bar Association and local councils of government. Please contact us with any questions about the proposed bills or their implications for your municipality.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Monday, January 12th, 2015

Elected Officials’ E-Mail Addresses Must Be Available and Linked to the Local Government Home Page

Among the new legislation affecting municipalities in 2015 is a new internet posting requirement contained in the Local Records Act (Public Act 98-0930). Before April 2015, local government bodies, including school districts, that maintain a website (whether full-time or not) are required to post on their website some mechanism for members of the public to electronically communicate with their elected officials. You can use a single uniform email address unless your officials have individual email addresses intended for that purpose. The Act requires that the website have a hyperlink to the information that is easily accessible from your home page. Most municipalities that maintain websites already have contact information for their elected officials available somewhere on their websites, but we remind you that this Act specifically requires a hyperlink to this information be available on your home page.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Tuesday, December 2nd, 2014

Satisfying Levy Detail Requirements

As we enter December and the end of tax levy season, we remind you that state statute requires your levy ordinance to specify “in detail in the manner authorized for the annual appropriation ordinance or budget of the municipality, the purposes for which the appropriations, budgeting or such additional amounts deemed necessary have been made and the amount assignable for each purpose respectively.” 65 ILCS 5/8-3-1. This has been interpreted to mean that a levy must be sufficiently clear so a taxpayer can read it and understand its purpose and have some basis for determining its propriety and that if a levy is too vague, it will not be valid. The challenge to municipal government is to ensure your levy satisfies the detail requirement even if you do not identify every single pencil purchase in your levy. Courts have required at least some distinctions regarding spending items, for instance “for maintenance of water works system” would be sufficient but “water works system” alone would not.

If you have any questions about your levy or if you need additional information or samples, please contact Ruth Schlossberg at rschlossberg@zrfmlaw.com or Michael Smoron at msmoron@zrfmlaw.com.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg