The newsletter of the ISBA’s Standing Committee on Government Lawyers
FOIA and technology—When will they converge?
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.6As 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.15Similar 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."25Generally, "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.