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. Att'y. Gen. Op. No. 98-49, issued September 16, 1998, 1998 WL 681234 (Kan.A.G.). 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. In Opinion No. 96-016, issued May 22, 1996, 1996 WL 305985 (Md.A.G.), the Maryland Attorney General concluded 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. 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 council members, 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 OMA, 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 OMA 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 OMA 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 public officials and their managers or other administrative personnel, the OMA 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 body'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 officials 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 of a public body 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 a 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 of the public body 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 officials 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., 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 are: 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 Illinois 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 falls 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. Att'y. Gen. Op. No. 96-34, issued May 15, 1996, 1996 WL 267352 (Fla.A.G.).
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 public official and not provided by the public body. If the communication addresses an item of public business, and is produced or received by the public body or its officers, the communication is a public record under the Act. As such, the body is required to maintain it until it is destroyed pursuant to the body'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 body 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 member of a public body 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 that public officials generally refrain from discussing public business via e-mail until the law in this area has been more fully developed.
If public officials 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 body must maintain e-mail for release to the public upon request if it was prepared or received by the body (acting through officers 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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* This article was first published in the ISBA's Local Government Law newsletter, February 2003, Vol. 39, No. 7, and is reprinted with permission.
1. 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 Illinois State Bar Association's Local Government Law Section Council has drafted legislation to codify the Freedom Oil decision and to eliminate any uncertainty over the legality and the propriety of meetings where one or more members attend by electronic means. See, 93rd General Assembly, Senate Bill 699.
2. 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 the Freedom of Information Act, 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.
The following is a synopsis of bills introduced during the 93rd General Assembly that may be of general interest to government attorneys. The summaries are of the bills as introduced. Some of the bills may have been amended, and the amendments are not summarized here. Copies of bills, as well as additional information about the bills, may be found at: <www.ilga.gov>.
HB 47--Creates the State Appointee Disclosure Act. Requires appointees of State boards, commissions, authorities and task forces to disclose to the Secretary of State contracts between the State and themselves, their spouses and immediate family members who have majority financial interests and certain campaign contributions made to candidates before, during, and after their appointments.
HB 69--Creates the State Facility Closing Act. Requires that an economic impact statement be performed and a report submitted to the General Assembly prior to the closing of the facility or agency or the layoff of the agency's staff. The community where the closure occurred shall have priority for the construction or location of a new facility.
HB 89--Amends the State Finance Act and the Illinois State Collection Act of 1986. Requires that the Auditor General establish a Debt Collection Unit for collection of overdue debts owed to the State.
HB 305--Amends the Open Meetings Act and the Freedom of Information Act. Allows a public body to hold closed meetings to consider the prevention of and response to dangers to public safety and property.
HB 438--Amends the Freedom of Information Act. Provides that the court shall award reasonable costs, including attorney fees at trial and on appeal, to litigants who prevail in a proceeding against a public body that has violated the Act.
HB 469--Amends the State Lawsuit Immunity Act. Provides that a worker, former worker, or prospective worker of the State who is aggrieved by any conduct or action of the State that would constitute a violation of the Federal Age Discrimination in Employment Act, and certain related acts, may bring a civil action against the State.
HB 539--Amends the Freedom of Information Act. Provides that a private gain or public loss, the expectation of which exempts certain information from the Act's inspection and copying requirements, does not include a news medium's dissemination of information regarding the public's health, safety, welfare, and legal rights.
HB 1456--Amends the Administrative Procedure Act. Creates the Office of Administrative Hearings to conduct hearings for agencies under the Governor, except certain specified boards and commissions.
HB 3452--Creates the Human Voice Contact Act. Provides that a State agency that uses automated telephone answering equipment to answer incoming telephone calls must, during normal business hours, provide a caller with the option of speaking to a live operator.
SB 106--Creates the State's Attorney Prohibited Loan Act and amends the Election Code. Prohibits a state's attorney or candidate for the office of state's attorney from taking loans, loan guarantees, or the promise of loans from attorneys or law firms that during the previous two years represented a defendant in criminal matters in the circuit court of the county where the state's attorney holds or the candidate seeks office.
SB 690--Amends the Freedom of Information Act. Removes the requirements for the awarding of attorney fees in a suit resulting from the denial of the disclosure of a public record that the record be highly significant to the general public and that the public body lacked a reasonable basis for the denial.
SB 915--Creates the State Employee Leave Sharing Act. Requires the Department of Central Management Services to adopt rules allowing a State employee to share unused sick, vacation, or personal time with that employee's spouse if the spouse, whether employed by the same or another State agency, is eligible for sick, vacation, or personal time and has used all of the sick, vacation, or personal time available to him or her.
SB 1416--Amends Freedom of Information Act. Requires the Secretary of State to maintain an updated directory of contact information about persons designated by public bodies to whom requests should be directed to for the copying and inspection of public records.
SB 1504--Creates the Office of Administrative Hearings to conduct hearings for agencies under the jurisdiction of the Governor, except for certain specified boards and commissions.
SB 1510--Amends the Freedom of Information Act. Provides that information held by any State agency, including public pension funds, regarding certain investment information that is considered a trade secret be exempt from the Act.
SB 1530--Amends the Procurement Code. Creates a five-year ban against bids from and contracts with businesses with personnel convicted of felonies under the Sarbanes-Oxley Act or Securities Law and requires that bids and contracts certify that the business is not barred by the ban.