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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

May 2003, vol. 4, no. 5

High-tech hits home: Can local government officials use electronic communication tools without violating the sunshine laws?*

Part I: Does a meeting under the Open Meetings Act require physical presence?

By Al Swanson, Chicago

A. Electronic meetings

It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business. In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly. Open Meetings Act, 5 ILCS 120/1.

Illinois law appears settled that members of public bodies and their committees and commissions may meet by electronic means. In 1982, the Illinois Attorney General issued an opinion that a telephone conference call was an appropriate manner for the Elections Board to conduct business (Opinion 82-041 (1982)).

For the purposes of this Act:...."Public body" includes all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof. Open Meetings Act, 5 ILCS 120/1.02.

The seminal Illinois case found in a matter of first impression that "there is nothing within the Open Meetings Act which specifically prohibits conducting a meeting by telephone conference or requires members of a public body to be in each other's physical presence to establish a quorum." Freedom Oil Company v. the Illinois Pollution Control Board, 275 Ill.App.3d 508, 515, 655 N.E.2d 1184, 1189 (4th Dist. 1995). In Freedom Oil, the appellate court rejected Freedom's argument that a quorum needed to be physically present in the same room to constitute a meeting.

For the purposes of this Act: "Meeting" means any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business. Open Meetings Act, 5 ILCS 120/1.02.

The participation of a Village trustee by telephone in the consideration of and voting on an annexation issue was not a violation of the Open Meetings Act.People ex rel Graf v. Village of Lake Bluff, 321 Ill.App.3d 897, 748 N.E.2d 801 (2nd Dist. 2001). The appellate court rejected plaintiffs' argument that the trustee's participation by telephone prevented his full participation in the meeting and prevented plaintiffs from fully expressing their views to the trustee. The appellate court found the Open Meetings Act did not confer upon plaintiffs the right to participate in the hearing. "Rather, the Act's purpose is satisfied so long as meetings are not conducted in secrecy." Graf, 321 Ill.App.3d at 907, 748 N.E.2d at 811. The appellate court also observed that even if the trustee's participation in the meeting and vote by telephone violated the Act, plaintiffs had failed to demonstrate why the extreme remedy of nullifying the Village Board's action was appropriate. Accordingly, the appellate court rejected plaintiffs' challenge based on a violation of the Open Meetings Act. Graf, 321 Ill.App.3d 908, 748 N.E.2d 811-12.

B. A procedure for conducting telephonic meetings

With Illinois law clear that members of public bodies may participate in public meetings by telephone (see Editor's note), the question then becomes how to accommodate members who cannot be physically present yet still wish to fulfill their public duty and participate in a meeting. One example is the Village of River Forest, which adopted an ordinance allowing telephonic participation and setting forth rules specifying how such telephonic meetings are to be conducted. The ordinance provides simply that the "village board may provide for the conduct of its meetings via electronic means..." Code of the Village of River Forest, 1-06-4 H. The ordinance also prohibited meetings via electronic means until rules governing those meetings were adopted.

Those rules allow a member of the Village Board to participate by telephone in a regular or special meeting of the Board or in a meeting as a committee of the whole. The River Forest rules require a quorum be present in the meeting room so that the absent member cannot complete a quorum by participating over the telephone; this requirement applies for all meetings, including public hearings required by State statutes. The rules allow for any such member to participate fully in the discussion and vote on any matter presented. However, the rules also specifically state that the presiding officer at the meeting must be physically present in the meeting room. Thus, if the President or committee chair participates by telephone, there would need to be a presiding officer pro tem in attendance in the meeting room who would conduct the meeting. To avoid any other Open Meetings Act problems, the rules prohibit more than two board members to participate by telephone from the same location. In addition, the rules require a roll call on all votes if one or more members of the Board participates in the meeting by telephone.

The rules require, where possible, two business days notice from a member who wishes to participate by telephone so that the public notice of the meeting can identify the members who will be participating by telephone. If the two-day notice is not possible, the presiding officer is required to announce at the beginning of the meeting that one or more members will be participating by telephone and the reason for that participation.

In practical terms, telephonic participation requires a speakerphone so that all members of the board and all members of the public in attendance can hear the individual participating by telephone; and so that the member can hear the proceedings in the meeting room. The River Forest rules also require any trustee participating by telephone to identify himself and be recognized by the presiding officer before speaking.

These rules fulfill the purpose of the Act, which is "to ensure that actions of public bodies be taken openly and that their deliberations be conducted openly. 5 ILCS 120/1.

C. E-mail meetings

There are no Illinois cases yet that have determined whether a board member may participate in a public meeting via computer hookup or via the Internet. With advances in technology being what they are, that day may not be too far down the road when such participation may be technically possible. However, consideration of any such arrangement for computer or Internet participation in a public meeting logically raises several concerns about compliance with the Act. At a minimum, such computer-generated participation would require transmission of a real-time transcript to the remote participant as well as the capability for all members of the public in attendance as well as each board member to view the written transcript and written comments of the remote member. Cost rather than technology may ultimately determine whether such computer participation is feasible.

There are no Illinois cases deciding whether an exchange of e-mails can constitute a meeting and violate the Open Meetings Act. Although the law from other states is not always clear as to whether an exchange of e-mails may constitute a meeting in violation of the open meetings statutes, the analysis of available court decisions presented in the second part of this article provides some guidance to the emerging problems created by this popular mode of communication among public officials. Two cases are worth noting here, however.

In Washington State, where the statute defines a meeting as "meetings at which action is taken," (RCW 42.30.020(4)), the appellate court found that an exchange of e-mails among a quorum of members created a triable issue of fact as to whether the board violated the Open Public Meetings Act. Wood v. Battle Ground School District, 107 Wash.App. 550, 27 P.3d 1208 (Div. 2 2001).

The Alaska Supreme Court has taken what appears to be a contrary view, although Alaska's statute is worded differently than Washington's statute. Without describing the nature or content of the e-mail communications, the Alaska Supreme Court held the superior court properly concluded that even if the exchange of e-mails violated the Open Meetings Act, plaintiffs were not entitled to any remedy. Therefore, the Alaska Supreme Court declined to decide whether the undescribed e-mail exchanges violated the Open Meetings Act. In re 2001 Redistricting Cases, 44 P.3d 141 (2002).

As these cases and those discussed below suggest, members of local government boards and committees of local government entities should exercise caution in using e-mail to communicate about their public business.

Editor's note: Although the Freedom Oil decision appears to have been adopted by the Second District decision in Graf, it is less than crystal clear that telephonic and other electronic meeting participation is authorized. Therefore, the Section Council has developed legislation to codify theFreedom Oil decision and to eliminate any uncertainty over the legality and the propriety of meetings where one or more members attend by electronic means.

Part II: E-mail communication among public oficials: Risks and strategies

By Sharon L. Eiseman, Arlington Heights

A. Questions public officials must ask about using e-mail

E-mail as a form of electronic communication has become wildly popular and is increasingly more common as more people acquire computers and the appropriate skills to use this resource. The burning questions that now face government officials who serve on public governing boards, or councils, or on commissions or committees of public bodies, are whether their e-mail messages to and from one another belong to them or to the public, and whether they are acting illegally, in violation of the Open Meetings Act (OMA), by communicating via e-mail with one another about public business without providing the required OMA notice of a "meeting."

The first section of this article focused on meetings conducted by telephonic means, and briefly discussed the concerns created by e-mail communication; this section explores in greater depth those issues related to the use of e-mail by public officials and the consequences of that use. The section also proposes answers that may prove helpful until our Illinois courts rule definitively or provide some guidance on the matter; or, in the absence of litigation, until our Legislature sets standards by which we can measure such actions.

The following questions are the ones most commonly raised by public officials:

(1) When and under what circumstances may members of public bodies covered by the OMA1 communicate with each other and/or their administrations through e-mail or in a "chat room" regarding public business without violating the OMA?

(2) When public officials communicate with each other or with the administration via e-mail, do the messages become public documents subject to FOIA requests? If so, must they be stored and for how long?

(3) If the public officials composing the public body communicate via a "chat room," is that a meeting subject to the notice and other requirements of the OMA?

As further explained below, members of local government entities and other public bodies that are subject to the OMA and FOIA should either avoid use of e-mail communications to advance the business of the entity or take strong precautions when communicating via e-mail. However, if the head of the entity and its members wish to communicate among themselves by e-mail, or perhaps through a chat room, and to allow public access to those messages in accordance with the law, the requirements of the Open Meetings Act should be observed.

Although no Illinois court has addressed the issue of electronic communications directly, it is clear that any discussions or deliberations involving a majority of a quorum of the public body and relating to public business are subject to the Open Meetings Act, even if those activities are not conducted in an official meeting room. In addition, those communications related to a member's position and public duties and appropriate for preservation should be treated as public records under the Freedom of Information Act (FOIA), which must be maintained by the state or local government entity and released to the public upon request unless exempted by the FOIA.

B. E-mail communications and the Illinois Open Meetings Act; the law in other jurisdictions

(1) The state of the law in Illinois

The Illinois Open Meetings Act, 5 ILCS 120/1 et seq. (the Act), declares as the public policy of the state that "actions of public bodies be taken openly and that their deliberations be conducted openly." 5 ILCS 120/1. The Act requires that all meetings of public bodies be open to the public unless a specific exception applies, in which case the meeting may be closed pursuant to specifically enumerated procedures. 5 ILCS 120/2.

The Act does not mention electronic communication specifically. Rather, it defines "meeting" as "any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business." 5 ILCS 120/1.02. We must, therefore, look to judicial and administrative rulings in specific cases for guidance as to the applicability of the Act to e-mail communications and to the meaning of "gathering." Illinois courts and the office of the Illinois Attorney General have issued opinions exploring and clarifying the definition of "meeting," yet those opinions have not addressed the specific issue raised here: whether e-mail communication between and among members of a public body discussing public business constitutes a "meeting" under the Act.

The Act states and judicial decisions within Illinois concur that when a majority of a quorum of a public body discusses or makes decisions regarding public business, a "meeting" takes place for purposes of the Act. In certain cases challenging the actions of public officials who get together without declaring a meeting, and in questions posed to the Illinois Attorney General as to whether particular activities violate the Act, the emphasis is on whether those individuals constitute a quorum that is "gathered" to conduct public business. Recently, the Illinois Attorney General issued an opinion finding that an "informational" meeting attended by two county boards constituted a "meeting" under the Act because deliberation, questions, answers and statements--in short, discussion--regarding public business took place at the meeting, even though no action was taken. 1995 WL 441614 (Ill.A.G.), File No. 95-004. In that opinion, the Attorney General also pointed out that not every gathering of the relevant number officials constitutes a meeting that triggers application of the Act, one such example being attendance at a presentation on new legislative developments.

Another issue to be considered is whether a "gathering" can occur under the OMA even if a quorum is not physically present at a single location. Years ago, the Illinois Attorney General determined that a telephone conference of a majority of a quorum of a public body may constitute a "meeting" satisfying the requirements of the Act. 1982 Ill.Atty.Gen.Op. No. 124, File No. 82-041. As noted in the first part of this article, an Illinois appellate court reached the same conclusion in 1995, finding in favor of a state agency that "members of an administrative agency need not be in each other's physical presence to constitute a quorum." Freedom Oil Company v. Illinois Pollution Control Board, 655 N.E.2d 1184, 1190 (4th Dist. 1995). In that case, the court upheld an amended order issued by the Illinois Pollution Control Board during an official meeting attended by two Board members physically present at the noticed meeting site and four other members who participated in the meeting by "telephonic connection." See also People ex rel. Graf. v. Village of Lake Bluff, 748 N.E.2d 801 (2nd Dist., 2001), affirming the Freedom Oil Companyopinion that the Act does not prohibit a public body from conducting a meeting by telephone conference call. Graf also concluded that the public has no inherent right to participate in a public meeting that would be thwarted by a public body's allowance of telephone conferencing, a decision also in keeping with Scott v. Illinois State Police Merit Board, 584 NE2d 199 (1st Dist. 1991), which upheld the validity of the Merit Board's discussion of an officer's discipline at a noticed closed meeting conducted by prearranged telecommunications conference.

(2) How other states view e-mail communications

Although Illinois authorities have considered instances of communication by teleconference, the impact of e-mail communications has not yet been addressed in this state. However, the Attorneys General of several other states have tackled the issue, and court opinions have emerged from a few states in the past two years.

* KANSAS and "serial" communications

The Kansas Attorney General, interpreting the Kansas Open Meetings Act (which defines "meeting" to include "telephone call or any other means of interactive communication . . . ."), maintained that if three or more board members simultaneously engaged in discussion of board business through computer terminals, they could be in violation of the state's open meetings law. Simply sending a message to which other board members did not respond immediately would not be "interactive communication," however, and would not constitute a "meeting." 1995 WL 40761 (Kan.A.G.), Kan.Op.Atty.Gen.Op. No. 95-13.

The Kansas Attorney General subsequently found that "serial" communications, in which information is passed (via e-mail, fax, or some other means) from one board member to another until a consensus is reached on a common topic of discussion, would constitute a "meeting" if the communications collectively involved a majority of a quorum. Interestingly, the opinion observes that "real time" is not a necessary condition for interactive communication to constitute a meeting under Kansas law. Especially pertinent to recent questions raised by many elected and appointed public officials who serve on public bodies is the Kansas Attorney General's citation of a North Dakota Attorney General opinion which states that:

"[T]here is a threshold at which multiple conversations (in person or over the telephone) on a particular subject, each involving two or three Board members, collectively involve enough Board members (a quorum) that the conversations have the potential effect of forming consensus or furthering the Board's decision-making process on that subject. At the point the conversations on a particular subject collectively involve a quorum of the board, the 'quorum rule' is satisfied and the topic of discussion must be considered."

1998 WL 190416 (Kan.A.G.), Kan.Atty.Gen.Op. No. 98-26. One can appreciate how easy it is for a law enforcement agency or a court to apply this same analysis to e-mail communications.

In a 1998 opinion, the Kansas Attorney General interpreted the definition of "meeting" which had recently been amended to reference "interactive communication." The opinion declares that a communication need not be contemporaneous to be interactive. Kan. Atty. Gen. Op. No. 98-49 (1998).See also Stockton Newspapers, Inc. v. Members of Redevelopment Agency, 214 Cal. Rptr. 561 (1985) (holding that a series of individual, non-public telephone conversations between the agency's attorney and members of the agency constituted a collective discussion and therefore a meeting under the relevant California sunshine law); and Del Papa v. Board of Regents of the University and Community College System of Nevada, 956 P.2d 770 (1998) (holding that a quorum of a public body using serial electronic communication (i.e., facsimile) to deliberate or make a decision violated the Nevada open meetings law).

* Maryland officials must "convene"

Maryland's Attorney General reached a contrary conclusion, however, finding that no violation occurs when board members exchange e-mail non-simultaneously. 1996 WL 305985 (Md.A.G.), Opinion No. 96-016. That opinion is based upon the assumptions that a meeting requires the "convening" of a quorum, and that an exchange of paper, such as a sequential exchange by e-mail, does not constitute a meeting, and the opinion would apply even where decisions may be made by members of the public body outside of a "meeting." Though reasonable, this more liberal interpretation deviates from the majority view thus far expressed in this evolving area of the law. Although Illinois might ultimately embrace such a liberal view, it is not possible to predict the position our courts or the Illinois Attorney General will take once confronted with the issues raised by e-mail communication. It can be stated, however, that the Illinois Attorney General has traditionally taken a conservative position in the reading of the Open Meetings Act, generally construing the Act in favor of the public's right to know its government's business. Illinois courts, though not bound by those opinions, often rely upon them.

* Washington takes a strict approach

In 2001, in a lawsuit filed by an aggrieved former school employee, the Court of Appeals of Washington had occasion to consider whether certain actions of school board members related to the termination of that employee violated Washington's Open Public Meetings Act (OPMA). Wood v. Battle Ground School District, 107 Wash. App. 550, 27 P.3d 1208. One of the issues addressed by the court was the nature of various e-mail communications transmitted between and among several board members. Following an analysis of the OPMA and the legislative intent of the Act, the court held that a broad definition of the term "meeting" is appropriate, and that the physical presence of elected officials at a meeting site is not a prerequisite for them to conduct public business. To conclude otherwise would provide such officials with the opportunity to circumvent the intent of the open meetings law that government be accessible to the public. (A subsequent case brought by a City of Spokane council member charging the city with several violations of the OPMA relied on Wood for its broad interpretation of "meeting." Eugster v. City of Spokane, 110 Wash. App. 212, 39 P.3d 380 (2002)).

Citing several cases from other jurisdictions with similar open meetings laws, and an opinion from the Washington Attorney General, the Wood court concluded that the exchange of e-mails among elected officials can indeed constitute a meeting. In California, which has a similarly worded statute, a series of telephone calls between individual members and their attorney to "develop a collective commitment or promise on public business" violated the state's open meetings law. (Stockton Newspapers, Inc. v. Members of the Redevelopment Agency, 214 Cal. Rptr. 561, 565-6, 171 Cal. App.3d 95 (1985). In Nevada, a statutory violation occurred when a quorum of a public body used serial electronic communications to "deliberate toward or make a decision." (Del Papa v. Board of Regents of the University and Community College System, 114 Nev. 388, 956 P.2d 770, 778 (1998)).

* California and Nevada adopt the "serial" communication approach

As the Wood court noted, the Washington Attorney General's Web site states that it is inappropriate for members to use "telephone trees" to form collective decisions. According to Wood, the Web site also advised that a public meeting occurs when a majority of the members of the governing body discuss or consider public business, regardless of where the discussion or consideration occurs. See Wood, at 564.

In states where the Legislature has more precisely defined the types of communication that constitute a meeting covered under their respective open meetings laws, it is of course easier to determine when the law is violated. California, Iowa, Kansas and Tennessee utilize such specific and descriptive language as "telephone calls, and other means of interactive communication," "gatherings by electronic means," use of "direct communication, personal intermediaries, or technological devices," in their open meetings laws, and the laws refer to these forms of communication as being used by a majority of the membership of a public body (or agency) for the purpose of discussing the business affairs of the body, making a decision or deliberating toward a decision, deliberating or acting upon a matter within the scope of the public entity's duties, or to develop a "collective concurrence" as to action to be taken. See Wood, at 564, FN5.

The Wood court took pains to point out two distinctions, however. First, in states where the language of the open meetings law requires the physical presence of the elected officials, e-mail communication and telephone calls would not be prohibited. In addition, the court ruled that the "mere use or passive receipt of e-mail" does not constitute a "meeting." Wood, at 564. The OPMA is also not implicated when members receive information about upcoming issues or communicate among themselves about matters not related to the public business. Wood, at 565. Nor is there a meeting when fewer than a quorum is involved. As in California, the communication must also be characterized as a "collective intent to deliberate and/or discuss Board business." Despite this seemingly useful distinction, the Eugster court found that "further inquiry" was warranted to determine whether an OPMA violation occurred, even though one of the councilmembers, while out of town on vacation, had merely replied by e-mail that she was available to attend interviews.

Based upon the facts in Wood v. Battle Ground School District, which revealed that a quorum of board members exchanged e-mail messages about board business, including the employee's performance and possible legal action against her, the court found that the plaintiff had established a genuine issue of material fact. It was not material that final action had not been taken during these communications. Accordingly, the appeals court reversed the lower court's grant of summary judgment in the School District's favor and remanded the case for further proceedings.

(3) Application of existing views

Illinois courts have made it clear that telephone communications, though not specifically mentioned in the Act, can provide one means of holding a public meeting, with those participating by telephone being counted as present. It therefore stands to reason that e-mail could be used and construed in a similar manner under existing law. Moreover, the trend in other states is to regard as public meetings even serial electronic communications, when they are conducted for the purpose of advancing an issue related to the public body's business. Thus, failure of the public body to treat them as such violates at least the spirit and the stated legislative policy of most sunshine laws by depriving the public of access to the discussion and decision-making processes of government.

As noted, the general prohibitions of the Illinois Act indicate that a "meeting" takes place whenever a majority of a quorum of a public body takes action or deliberates regarding public business. Even though one board member's communication with one other board member on an item of public business would not constitute a "meeting" of the board under the Act, if all Board members are copied on the communication, and several respond, or one responds and the response is forwarded to several other board members by the recipient, the Act may be implicated because the communication resembles a group interaction where consensus on a public matter could be reached, even if no final action is taken. In reliance on this rationale, the general findings made by Illinois authorities, and the specific holdings in other states, it is proposed that the more conservative course and the one which best minimizes the risk of their prosecution for criminal liability or civil remedies is for public officials to refrain from discussing public business via e-mail, unless the body on which they serve treats the event as a meeting and follows the procedures for holding meetings that are specified in the Open Meetings Act. This position would be consistent with the public policy favoring liberal construction of the Act. Of course, holding an "electronic" meeting and making it accessible to the public will be a complicated and burdensome task to be undertaken with caution. For this reason, we do not recommend this option as a routine course of action to address the potential problems created by e-mail communication.

With regard to communication between the members and their manager or other administrative personnel, the Act is not implicated directly. Because the managers and administrators are not members of the public body, one public official's communication via e-mail with members of the administration would not constitute a "meeting" of a public body. Moreover, unilateral distribution of routine information via e-mail to the entire entity would be appropriate and analogous to the use of member packets for information purposes, and thus not subject to the Act.

However, where multiple members communicate by e-mail with administrators on matters of public business, discussing the public entity's issues and reaching consensus through informal "polling," a "meeting" has arguably taken place once a majority of a quorum becomes involved. Since e-mail communication makes it easy for multiple members to chime in on an issue, inadvertently discussing a subject more appropriate for a public meeting, it is suggested in this circumstance as well that all e-mail communication between and among the administration and the members be limited to the conveyance of information to individual members, and that the members refrain from engaging the administration and each other in discussions about the information.

In the event that the public body decides to open its communication process to the public by setting up an occasional "chat room" in the nature of a town hall meeting for purposes of obtaining public input, then each time a majority of a quorum participates, a "meeting" takes place and should be properly noticed under the OMA as a meeting, even if the responses are not simultaneous. In addition, a set of rules should be developed to govern the use of the chat room. For example, because of the requirement of advance notice, as well as the inherent unpredictability as to when members might decide to join in on a discussion of the entity's business, chat room use by the public officials should be scheduled and noticed in advance, with a beginning and end time, and not left to spontaneity. Otherwise, inadvertent but potentially illegal meetings are likely to occur. Once a chat room is approved and established, the e-mail messages resulting from the participation necessarily implicate the FOIA.

C. E-mail communications under the Illinois Freedom of Information Act

Unlike telephone conversations, when members of a public body communicate via e-mail, they create a record, albeit an electronic one. The Illinois Freedom of Information Act, 5 ILCS 140/1 et seq. (FOIA), requires that public bodies make "public records" available to any person for inspection and copying. 5 ILCS 140/3(a). The question is, therefore, whether an e-mail communication is a "public record."

The Illinois FOIA defines "public record" to include "all records, reports, forms, writings, letters, memoranda..., electronic data processing records, recorded information, and all other documentary materials, regardless of physical form or characteristics, having been prepared, or having been or being used, received, possessed or under the control of any public body." 5 ILCS 140/2(c). Under the FOIA, such records must be disclosed upon request, unless an exemption applies. Among the numerous exemptions listed is information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, and preliminary records in which opinions are expressed or policies formulated (unless publicly cited and identified by the head of the public body). 5 ILCS 140/7(b) and (f).

As with the Open Meetings Act, the Illinois FOIA does not directly address e-mail communications, and Illinois courts have not yet considered the issue. Using the definitions in the FOIA, however, it appears that e-mail communications between and among Board members addressing public business could constitute "public records," as they are "recorded information... having been prepared... or under the control of" the public body, although it is less likely that a court would view messages sent and received by public officials on their privately-owned computers as public records, unless the e-mails mushroom into group exchanges. It is also unlikely that short and casual informational exchanges similar to those formerly reserved for telephone use would necessarily and immediately become public records available under FOIA, and could be deleted after their receipt. A Washington state appeals court, however, has ruled that e-mail messages sent by an employee of a county prosecutor's office to her friends and family were public records, albeit ones of a private nature exempt under that state's public records act. Tiberino v. Spokane County, 103 Wash.App. 680, 13 P.3d 1104 (2000). Great care and discretion in deciding which messages may qualify for deletion are encouraged, even urged. Once a communication is deemed to be a public record, a case-by-case analysis would have to be conducted to determine, in an individual situation, whether the communication fell under one of the FOIA's enumerated exemptions, such as the exemption for preliminary records in which opinions are expressed. If it does not, the e-mail would be subject to disclosure. This opinion is substantiated by the Florida Attorney General's similar interpretation of its state's FOIA. (Fla.Atty.Gen.Op. No. 96-34).

With regard to the maintenance of public records, the Illinois Local Records Act, 50 ILCS 205/1 et seq., requires that public bodies maintain public records "made or received by, or under the authority of, or coming into the custody, control or possession of any officer or agency." (Emphasis supplied). 50 ILCS 205/4. "Public records" are broadly defined to include "digitized electronic material, or other official documentary material, regardless of physical form or characteristics, made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation by such agency or officer,... as evidence of the organization,... or because of the informational data contained therein." 50 ILCS 205/3.

An e-mail communication, even if exchanged between or among public members through home computers, arguably might fit the definition of "public record" under the Local Records Act, although a stronger case can be made that the messages are private if the computers are owned by the member and not provided by the public entity. If the communication addresses an item of public business, and is produced or received by the public entity or its officers, the communication is a public record under the Act. As such, the entity is required to maintain it until it is destroyed pursuant to the entity's document destruction plan filed with and approved by the local records commission, a conclusion which suggests that the covered e-mails should be printed and sent to the public entity for filing. Needless to say, these situations can become recordkeeping nightmares that will either end or continue in some form once our courts address the specific questions raised by the entity and other questions implied by them.

D. Conclusion

With regard to the specific questions raised at the outset, public officials should keep in mind the general rules clearly established in Illinois law: (1) Discussions and decision-making regarding public business generally indicate that a "meeting" is taking place, which then would be subject to the procedural requirements of the Open Meetings Act; and (2) Telephone conversations (and, presumably electronic communication) may constitute deliberations among a majority of a quorum, thus subjecting the conversations to the Act.

Members of public bodies should be aware that there is no violation of the Open Meetings Act when a single member communicates with members of the administration via e-mail. Similarly, when a single member sends an e-mail to another Board member on an item of public business, no violation of the Act occurs. Even if that communication becomes a discussion, in which ideas are exchanged back and forth between the two individuals, there is no violation of the Act (unless the two members constitute a majority of a quorum of the public body or a subsidiary of the body, such as a committee, and their communication relates to that committee's business). If, however, additional members are copied on the original communication in either of these scenarios and reply to the sender, these simultaneous or serial messages may constitute an illegal "meeting." Of course, personal e-mail or e-mail communication addressing items other than public business would not be subject to the Act.

Because electronic communication lends itself so easily to participation by many individuals, the chance of inadvertently engaging in discussion of public business in violation of the Act is relatively high. For this reason, we suggest the members generally refrain from discussing public business via e-mail until the law in this area has been more fully developed.

If members do communicate with one another or their administration via e-mail, records of those communications are potentially public records subject to the requirements of the FOIA and the Local Records Act. As with all public records under the FOIA, the public entity must maintain e-mail for release to the public upon request if it was prepared or received by the entity (acting through members or employees). It is conceivable that, in some situations, an e-mail communication that is deemed a public record could be regarded as a "preliminary record" in which opinions are expressed or policy formulated, thus exempting it from disclosure under the FOIA. That determination will have to be made on a case-by-case basis. Further, e-mail communications that are public records appropriate for preservation will have to be maintained in accordance with the Local Records Act.

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1. In that the boards, commissions and committees created by the corporate authorities of public bodies are also public bodies under both the Open Meetings Act and FOIA, and similarly subject to their requirements, all references in this article to the governing boards should be presumed to apply to those subsidiary boards, commissions and committees.


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