Wednesday, June 5th, 2013

Don’t Text and Legislate?

Last month, the Fourth District of the Illinois Appellate Court heard oral arguments in the case of City of Champaign v. Lisa Madigan.  The case involves a dispute over a Freedom of Information Act (“FOIA”) request made by a local newspaper to obtain text messages sent by city council members during council meetings and other sessions on both city-owned and personal devices.

In response to the News-Gazette’s request, the City provided 24 pages of responsive documents, but withheld communications generated on privately owned devices to private parties because the communications were not in their possession or control.  In seeking review of the City’s partial denial of the FOIA request, the News-Gazette argued that communications regarding public business by a public official received during an ongoing meeting should be public record.

In 2011, the Attorney General’s office held in Public Access Opinion 11-006, which analyzed the News-Gazette’s appeal, that if a public official “sent or received communications on personal electronic devices during city council meetings or study sessions…and those communications pertain to the transaction of public business, then those communications are ‘public records’ subject to the requirements of FOIA.”  The Attorney General found that if the City’s argument regarding “possession or control” were upheld, any public body or public official could circumvent FOIA by conducting public business on equipment not owned by the government unit.

In the Appellate Court, the Illinois Municipal League (“IML”) filed a brief on behalf of municipalities and argued that the Attorney General’s interpretation of  a “public record” under FOIA turns an individual council member and their private communications into a “public body” without any such factual findings.

A decision is expected before the end of the year. This case reinforces our continuing position to use government-issued devices and e-mail addresses that can be easily accessed by FOIA officers whenever engaging in government-related communications. Elected officials should also avoid e-mailing or texting during public meetings, to ensure compliance with the Open Meetings Act.  We will be sure to keep you updated as soon as a final decision is rendered on the Champaign case.


Timothy J. Clifton

Author: Timothy J. Clifton