Tuesday, July 23rd, 2013

Don’t Text and Legislate, or Suffer the FOIA Consequences

On July 16, the Illinois Appellate Court published its long-awaited opinion in City of Champaign v. Madigan, addressing the Freedom of Information Act’s (FOIA) applicability to text messages sent or received by public officials.

A reporter from the Champaign News-Gazette had submitted a FOIA request to the City of Champaign seeking:

All electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3. Please note that this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts.

The city partially denied the request stating that personal communications on private devices are not within the purview of FOIA. The reporter sought review of the city’s response and the Attorney General, in Public Access Opinion No. 11-006, found “texts and emails sent or received from a council member’s personal electronic device during public meetings, concerning city council business are by definition public records and thus subject to FOIA.” The Attorney General’s opinion was upheld on administrative review in the circuit court.  The city appealed to the Fourth District Court.

The Appellate Court found the issue in dispute to be “whether communications relating to city business to and from individual city council members, on their personal electronic devices, constitute public records.” On appeal, the reporter argued that the communications received on these private devices “aid in the elected officials’ formulation of opinions and that consequently affect their votes,” making those communications documentary materials pertaining to the transaction of public business being used by a public body, and thus subject to FOIA. The city argued that the requested communications were not “public records” as defined by FOIA; that the council members alone were not a public body; and that the public officials had a reasonable expectation of privacy in their personal communications.

The Appellate Court began their analysis with a review of the statutory language of FOIA and specifically the underlying purpose of FOIA, “to open governmental records to the light of public scrutiny.” Upon a review of section 2(c) of FOIA, the Court defined a “public record” as a communication that “must (1) pertain[ ] to the transaction of public business and must have been either (2) prepared by a public body, (3) prepared for a public body, (4) used by a public body, (5) received by a public body, (6) possessed by a public body, or (7) controlled by a public body.” The Court went on to note that to pertain to “public business,” the communication must involve “business or community interests as opposed to private affairs.” The Court turned next to analyzing what a “public body” under FOIA is.  The city claimed that council members alone are not a public body, and thus FOIA is not applicable.  The Court agreed with the city in that an individual council member, alone, is not conducting city business.  However, depending on the nature (personal or city-owned) of the device used to send or receive the message or the amount of council members who receive the message (sufficient to create a quorum), a private communication on a personal device may become subject to FOIA.

Ultimately, the Court held that “communications from an individual city council member’s personal electronic devices do not qualify as ‘public records’ unless they:

(1)               Pertain to ‘public business’ and were
(2)               Prepared by; prepared for; used by; received by; possessed by or controlled by the ‘public body’.”

The Court found that communications pertaining to the transaction of public business that are sent or received during the time a city council meeting is in session are public records subject to FOIA.  As a result, all communications sent or received by the city’s council members during council meetings (or study sessions) were ordered turned over to the city’s FOIA officer for review and ultimate turn over to Wade.  To rule differently, the court found “would allow members of a public body, convened as a public body, to subvert the Open Meetings Act and FOIA Requirements simply by communicating about city business during a city council meeting on a personal electronic device.”

Based on the Court’s holding and language contained within the opinion, there are a few takeaways for municipal officials to consider:

  • Do Not Text (or E-mail) During Meetings: The Court held that all communications sent or received during a meeting regardless of the device (personal or publicly issued) are subject to FOIA.  Therefore, if you don’t want your messages subject to FOIA review, refrain from all forms of messaging during meetings.
  • Use Caution When Using Publicly Issued Devices: The holding also found all communications, regardless of time and place, sent to or received by publicly issued devices are subject to FOIA.  For example, a message received by a council member on a personal phone regarding public business at home would not be subject to FOIA.  However, if all the facts were the same, but the message was received on a city-issued phone, the message would be subject to FOIA. Therefore, any city official causing a publicly issued device for communication purposes needs to be mindful that they are intended for municipal business.  No city official wants any embarrassing information leaked from a FOIA request.
  • Do Not Make an “Electronic Quorum”: On multiple occasions, the opinion notes that where a message initially may not be subject to FOIA (i.e., personal device, not during a meeting), that same message can become subject to FOIA (and potentially result in a violation of the Open Meetings Act) if it is forwarded to enough council members to create a quorum for that specific body, even if all the devices are personal.

Timothy J. Clifton

Author: Timothy J. Clifton