Standing Committee on Government Lawyers
February 2003 VOL. 4, NO. 4
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Government lawyer honored as Laureate by the Academy of Illinois Lawyers
* FOIA and technology--When will they converge?
* Someone you should know: Miriam Miquelon
* Attorney General's office issues opinion regarding appearance of attorneys licensed in other states in Illinois administrative proceedings
By Charles Gunnarson, Springfield
On December 11, 2002, the ISBA's Standing Committee on Government Lawyers (CGL) hosted a reception for government lawyers entitled, "Pride in Our Profession: The ISBA Salutes Government Attorneys" in conjunction with the ISBA's Mid-Year Meeting in Chicago. As the title indicates, the goal of the reception was to both recognize government practitioners as well as to introduce non-ISBA members to the organization and its many benefits. The reception, held for the second time in as many years, was well attended by both government attorneys and present and past officers of the ISBA.
One attendee in particular deserves mention, both for her individual accomplishments as a government practitioner and for her recent recognition as a top practitioner among attorneys in both the public and private sectors in Illinois. Last fall, Madalyn Maxwell, a former Assistant Illinois Attorney General, was chosen for induction into the ISBA's Academy of Illinois Lawyers. Madalyn was a government practitioner for nearly 47 years with the Office of the Illinois Attorney General, working in that office's child support division. At the time of her retirement from State service in 2001, she was head of the Attorney General's child support division, supervising more than 30 attorneys throughout Illinois. Madalyn has also been involved in child support enforcement issues on the national and international levels, being instrumental in negotiating reciprocal child support enforcement agreements between Illinois and several states, as well as with a number of foreign countries.
One of the CGL's goals is to ensure government practitioners are properly recognized for their achievements, both professionally and for the benefit of the offices and public for whom we work. The CGL felt Madalyn's professional achievements in the public sector warranted recognition throughout the entire legal community, and not just among other government practitioners. Consequently, the CGL was instrumental in nominating Madalyn for induction into the Academy by preparing the requisite nominating information. CGL is proud that "one of our own" will be inducted into the Academy, and is pleased to have been able to highlight the quality legal work performed by our constituency through her induction to the Academy. Congratulations, Madalyn!
Government lawyer honored as Laureate by the Academy of Illinois Lawyers
Madalyn Maxwell, profiled in our March 2001 newsletter, will be honored by the Academy of Illinois Lawyers as one of 12 distinguished Laureates. Established by the Illinois State Bar Association in 1999 to celebrate excellence in the legal profession, the Academy of Illinois Lawyers recognizes attorneys throughout the State who maintain the highest standards of professionalism and community service.
Retired Springfield attorney Madalyn Maxwell, a 1951 graduate of the University of Illinois College of Law, practiced for two years in Nashville, Illinois, then served as an Assistant Illinois Attorney General from 1953 until 2001. In 1964 she was named bureau chief of the Public Assistance Claims Enforcement Division. Her work in this area, as well as the number of attorneys assigned to this area, steadily increased until her retirement in 2001.
In addition to her exemplary public service, Ms. Maxwell devotes time to civic, community and bar associations. She is an active member of Saint Paul's Episcopal Church, serving on its food pantry board, and is a member of the Planned Parenthood Board, the Springfield Choral Society Board, and the finance committee of the Springfield Center for Performing Arts, among many others.
The Attorney General's new Public Aid Bureau in Springfield will be dedicated in honor of Maxwell, who is immediate past president of the Illinois Family Support Enforcement Association. She is also past president of the Illinois Symphony Orchestra Evening Guild and Sojourn Women's Center.
We honor and applaud Madalyn Maxwell's inclusion as a Laureate.
FOIA and technology--When will they converge?*
By David Silverman, Joliet
Recently, the Houston Chronicle requested a computerized copy of records on Texas' 12 million drivers. The Texas Department of Public Safety agreed to provide the records at a cost of $60 million.1 In California, the San Jose Mercury News sought a copy of a State of California database containing names of participants in the State's "adopt a highway" program. The State of California denied the request, claiming it infringed on the participants' privacy despite their names already being displayed on highway signs.2 In yet another case, the San Jose Mercury News requested a copy of a database containing information on owners of licensed pets. This request was also denied because it would violate the pet owners' privacy, even though the same information could have been obtained on paper through a FOIA request.3 Closer to home, many Illinois municipalities are receiving FOIA requests seeking computerized records, especially e-mails. Due to the increased pressure on public entities to provide information digitally, developing a uniform approach to the dissemination of public information is of paramount importance.
The explosion of internet technology, e-mail and other forms of digital information have forced government officials to face tough decisions when formulating compliance policies for requests made pursuant to the Local Records Act,4 the Freedom of Information Act,5 and the Open Meetings Act.6 As public bodies increasingly move toward a "paperless office," issues inevitably arise which drastically alter the traditional ways in which the public accesses information. Important to the vision of digitizing information is that our public institutions maintain a high level of integrity regarding free and open access to public records.
This article is intended to be an introduction to issues presented by the emergence of electronic documents into the world of government. Over the next several months a series of articles will be published which deal more specifically with matters respecting the Freedom of Information Act, the Local Records Act, local government Web sites, electronic communications between government officials, attorney-client privilege, litigation discovery and the impact of the Open Meetings and Freedom of Information Acts on electronic communications.
In the 1990s, a movement to digitize all facets of governmental communication and storage of information was championed based on increasing efficiency in the handling of public records. However, often times, the digitization of information did not address the rights of the public to access this information. Recently, McHenry County, Illinois officials came under scrutiny for their policies concerning accessibility to public records. The scrutiny arose when a local newspaper filed a FOIA request for all e-mail messages sent or received by county officials. Upon notification by McHenry County that the e-mail no longer existed, the newspaper charged the elected officials with destroying materials which contained public information in violation of the Local Records Act and FOIA.7 But, just how far must a public institution go to comply with the law and avoid criticism such as occurred in McHenry County? Are e-mails really public records? What e-mails must be retained by the public body and its officers?
According to McHenry County officials, e-mail messages are purged about every two weeks, whenever the County's computer experts need to clear hard-drive space.8 A large body of case law suggests that once created, records should be destroyed only under a records retention program.9 Further, the Illinois Local Records Act prohibits the destruction of public documents without adherence to a rigid protocol. The Local Records Act defines public documents as "any book, paper, map, photograph, digitized electronic material, or other official documentary material, regardless of physical form, characteristics, made, produced, executed or received by any agency or officer."10 This broad definition includes e-mail messages as "public documents" and thus, they must be preserved, unless destroyed in compliance with the Local Records Retention Act.
Undisputably, government officials now communicate electronically more than ever. E-mail has surpassed letters as the choice format for communicating among government officials and bureaucrats in most communities. This new form of communication has prompted speculation that e-mails sent in a "round-robin" fashion by elected officials come close to violating the Open Meetings Act.11 However, if e-mail is really no different than a letter, such communication should not violate the tenets of the Illinois Open Meetings Act. A chat room, on the other hand, where there is "real-time" interaction between individuals via a computer would likely result in an Open Meetings Act violation. A chat room is analogous to a telephonic conference call, which is governed by the Open Meetings Act.
Undoubtedly, it is incumbent upon our governmental decision makers to continue communicating electronically in the 21st century. Equally important is that such communication in electronic form be subject to disclosure and made available to the public, subject to exemptions provided by law. Government agencies charged with creating, collecting and maintaining information must immediately face this issue and formulate policies to ensure the integrity of public information and prevent its indiscriminate destruction. Absent such affirmative action by governmental policy makers, they will face similar requests and consequences as occurred in McHenry County.
The United States Congress addressed the electronic phenomenon in 1996 when it passed the E-FOIA Amendments12 to the United States Freedom of Information Act.13 The E-FOIA Amendments have been heralded as a "model for governmental transparency throughout the world."14 Under the E-FOIA Amendments, the term "record" unambiguously includes electronic formats.15 Similar to the Illinois Freedom of Information Act, under the Federal law, there is a presumption in favor of disclosure and agencies resisting disclosure bear the burden of establishing that the information is covered by the enumerated exceptions.16 What new policies did E-FOIA bring about? E-FOIA simply consolidated and codified a consensus that emerged over nearly 10 years regarding the relationship between FOIA and information technology.17 This consensus brought about the current federal statutory frameworks which embrace a vision of governmental transparency.
Since the widespread use of e-mail is relatively new, there is little reported case law squarely addressing its legal status. However, Armstrong v. Executive Office of the President18 highlights the importance of a coherent public policy regarding records retention. In Armstrong, the court determined that all e-mail must be considered federal records if they were prepared in the course of federal business.19 The court further determined that e-mail records could not be preserved simply by printing out its text. Instead the court mandated preserving the electronic version because it contained a great deal of additional information, including, date of receipt, list of recipients, linkage between messages sent and replies received, as well as other information not contained in the screened print.20
While Armstrong is limited to the Federal Records Act, Illinois has enacted comparable state laws that include "electronic records" within the definition of state government records. For example, under Illinois' FOIA, "public records" are defined as "all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all 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."21 The definition of public records under Illinois' Local Records Act is even broader. It not only reaches records used, received or possessed by the public body but also those held by an officer. For purposes of the Local Records Act, "officer" is broadly defined as "any elected or appointed official of a court, county, municipal corporation or political subdivision."22 Arguably, even e-mails received or transmitted from an elected or appointed official's home computer are governed by the Local Records Act depending upon their subject matter. While these "home e-mails" may not be subject to disclosure under FOIA because they are not in the possession or control of the public body, they may very well be subject to the Local Records Act.
With the massive amount of information now being recorded electronically, another issue surfaces concerning the appropriate format of information. For example, when complying with the Freedom of Information Act, must a public body provide a computer print-out? Or is a computer tape, disk or some other form acceptable? Obviously, the format by which information is provided can make requested data very useful or render it totally useless. As in the earlier case of Texas' 12 million drivers records requested by the Houston Chronicle, an electronic format which has the capability of scanning through various drivers and sorting information would provide a greater benefit than the same information on paper which requires manual calculations and counting by anyone wishing to utilize the information. The format public records must be provided in raises serious compliance questions, many of which have yet to be argued in either the court of public opinion or in the courts.
Illinois has addressed the issue of what format public documents must be provided in to a requester. Under the Illinois FOIA, agencies must "furnish....electronic data...in a form comprehensible to persons lacking knowledge of computer language or print-out format."23 Illinois FOIA allows an agency to withhold "administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical designs of computerized systems, employee manuals, and any other information, that if disclosed, will jeopardize the security of the system or its data or the security of materials exempt under this section."24
In addition, Illinois courts have required agencies to do customized searches of their files when requesters will pay for necessary computer programming. However, the Supreme Court of Illinois has suggested some limits on that requirement. For example, the request may not interfere with an agency's other services and the request may not "place an onerous burden on the agency."25 Generally, "mere administrative inconvenience is not enough to override...the right of access," if the requester pays for the costs of removing non-disclosable material.26 The bottom line in Illinois is, when it comes to providing requesters with data provided in a specific format, the agency must do so, unless it can cite a specific exemption listed in the State law.27
Illinois courts have also addressed the charging of fees for public information by governmental institutions. In Illinois, an agency may charge only for the "actual cost" of copying the record, or for "use...of the equipment of the public body to copy records." The fee may not include "the cost for any search and review of the record...unless otherwise provided by state statute."28 However, Illinois courts have allowed agencies to charge for computer programming to remove material exempt from public disclosure.29
Resolving conflicts between the Illinois FOIA, the Illinois Local Records Act, and federal FOIA statutes will go a long way in decreasing public scrutiny regarding disclosure of public information. However, only the proactive dissemination of information and extending reforms in our current laws will remove the perceived veil of secrecy behind our governmental institutions. The states and units of local government must immediately embrace strategies for record keeping, storage and retention of electronic communication to ensure the integrity of public information. Only then will our public institutions be positioned to avoid criticism and guarantee compliance with various retention and disclosure requirements.
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* This article was first published in the ISBA's Local Government Law newsletter, October 2002, Vol. 39, No. 3, and is reprinted with permission.
1. <www.rcfp.org/elecrecs/er_introduction.html>.
2. Id.
3. Id.
4. 50 ILCS 205/1 et seq.
5. 5 ILCS 140/1 et seq.
6. 5 ILCS 120/1 et seq.
7. Shaw News Service appearing in the Morris Daily Herald, Tuesday, September 25, 2001, Section 9A.
8. Id.
9. See D. Skupsky and J. Montana Law, Records and Information Management: The Court Cases (1994).
10. 50 ILCS 205/3.
11. Shaw News Service appearing in the Morris Daily Herald, Tuesday, September 25, 2001, Section 9A.
12. Electronic Freedom of Information Amendments of 1996, Pub.L.No. 104-231, sections 1-12, 110 Stat. 348, sections 1-12 (1996) (codified at 5 USC '552).
13. 5 USC '552.
14. 50 Admin. L. Rev. 391.
15. 5 USC '552 (f) (2).
16. The burden is on the agency to demonstrate that it requester to disprove that the materials sought are not "agency records" or have not been "improperly" "withheld." See United States Department of Justice v. Tax Analysts, 492 US 136, 142 (1989).
17. 50 Admin. L. Rev. 391.
18. 1 F 3d 1274 (D.D.Cir. 1993).
19. 44 USC chapters 21, 29, 31 and 33 (1999).
20. The Internet and Business; a Lawyer's Guide to the Emerging Legal Issues, published by the Computer Law Association (1996).
21. 5 ILCS 140/2 (c).
22. 50 ILCS 205/3.
23. 5 ILCS 140/5.
24. 5 ILCS 140/7 (p).
25. Family Life League v. Department of Public Aid, 493 N.E. 2d 1054 (1986).
26. Hammer v. Lentz, 525 N.E. 2d 1045 (1988).
27. AFSCME v. County of Cook, 555 N.E. 2d 361 (1990).
28. 5 ILCS 140/6.
29. Family Life League v. Department of Public Aid, 493 N.E. 2d 1054 (1986).
Someone you should know: Miriam Miquelon
By Polly Hampton and Judith Hahn*
An interview with a United States Attorney is enough to make any two law students nervous. An interview with a United States Attorney who has a reputation for toughness and a penchant for prosecuting scandals involving organized crime certainly would make them apprehensive. Our expectations of Miriam Miquelon were clouded by her well-publicized tenacity and by the delay in the approval of her nomination as a United States Attorney. Our stereotypical image of a "stuffy" prosecutor quickly dissolved. Just seconds into the interview, we found ourselves relaxed and enjoying an inspiring conversation with an extremely positive and dynamic woman.
Miriam Miquelon is the first female United States Attorney for the Southern District of Illinois. She seems to have been destined for the job. Ms. Miquelon realized she wanted to be a lawyer when her eighth grade class studied the Constitution. "It struck me that young people make law and influence the world. After all, Thomas Jefferson was only 22 years old when he wrote the Declaration of Independence." Miquelon believes in a "society of rules," saying, "It has always just made sense to me." That belief appears to be just as strong today as it was when she was in the eighth grade. Her enthusiasm and dedication are evident when she speaks about her current position, declaring, "This job is not about me. It's about law enforcement and the people in the community who depend on us to do the right thing and to look at things with a sense of urgency."
An avid Cubs fan, Ms. Miquelon was born and raised in Chicago and attended a Chicago public high school. She comes from a middle-class background: her mother was a postal clerk and her father was a dental technician. When Miquelon speaks about her childhood, it becomes clear that her parents exercised great foresight in child-rearing, which laid the foundation for her success. In an era when many parents taught their daughters that marriage should be their loftiest ambition, her parents instilled an appreciation for education in both Miquelon and her