December 2013Volume 101Number 12Page 606

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Aldermen’s texts, tweets during council meetings are ‘public records’

Put your phone down as soon as the meeting starts, a lawyer for local officials counsels his clients in the wake of City of Champaign v. Lisa Madigan.

In a decision that bolsters the strength and lengthens the reach of Illinois' sunshine laws, an appellate court ruled that messages sent by aldermen on their personal electronic devices during a council meeting are "public records" and are subject to disclosure if they pertain to public business.

In City of Champaign v. Lisa Madigan, 2013 IL App (4th) 120662, a unanimous panel of the fourth district appellate court held that a municipality is required to disclose electronic communications between aldermen during a city council meeting if those texts, tweets, or e-mails were about city business, even if the communications were created on, sent by, or stored in the aldermen's private phones or computers.

"To hold otherwise would allow members of a public body, convened as a public body, to subvert the Open Meetings Act and [Freedom of Information Act (FOIA)] requirements simply by communicating about city business during a city council meeting on a personal electronic device," Justice M. Carol Pope wrote for the appellate panel.

Public business on private devices

The case began when a reporter from The News-Gazette attended a public meeting of the Champaign City Council and noticed some aldermen using their personal cell phones and other electronic devices to send messages during the meeting. Curious about the contents of those messages, the reporter submitted a FOIA request to the city, seeking copies of: "All electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during the city council meetings.... Please note that this request applies both to city-issued and personal cellphones, city-issued or personal email addresses, and Twitter accounts."

The city conceded that "there were electronic communications [that] would be responsive to [the reporter's] request if they were required to be produced," but the FOIA officer refused to produce any such documents, claiming instead that they did not meet FOIA's definition of "public records" and that the individual members of the city council did not meet the definition of a "public body."

The appellate court, however, disagreed. The court noted that section 2(c) of FOIA defines "public record" as documents "pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body."

The court further held that "public business" is an element of a public record, and public business can be easily summed up as "business or community interests as opposed to private affairs."

Since the city had acknowledged that at least some of the requested records pertained to public business, and since the reporter conceded he was not seeking disclosure of any private affairs, the court was left with the issue of whether the individual aldermen constituted a "public body," and whether the records created and stored on their personal devices were "in the possession of, or under the control of any public body."

After analyzing prior appellate decisions, the fourth district held that an individual alderman is not a "public body" while acting alone, but is an integral component of a public body while acting in unison in the midst of a meeting of the entire board or council.

"Under this interpretation, a message from a constituent 'pertaining to the transaction of public business' received at home by an individual city council member on his personal electronic device would not be subject to FOIA," the court explained. "However, that communication would be subject to FOIA if it was forwarded to enough members of the city council to constitute a quorum for that specific body, regardless of whether a personal electronic device, as opposed to a publicly issued electronic device, was used."

Similarly, if the communications were created in the midst of a council meeting, or a meeting of any other public body, such communications would be subject to FOIA because the individual members were, at that time, acting together as the public body. When the individual members are acting as a public body, the court held that all records stored on their personal electronic devices are, as a matter of law, in the possession and control of the public body and must be disclosed if the records pertain to public business.

"For the reasons stated, communications 'pertaining to public business' and sent to and from individual city council member's personal electronic devices during the time city council meetings (and study sessions) were convened should be turned over to the City's FOIA officer for review of what information, if any, should be...provided to [the FOIA requester]."

A duty to store personal texts, emails?

This holding appears to place a duty on elected officials to provide copies to the head of the public body (or its FOIA officer) of all documents stored on their personal computers and phones that are related to public business and that were either created during a meeting of the public body, or that were distributed to at least a quorum of its members.

However, Bollingbrook-based local-government attorney John M. O'Driscoll, a partner with Tressler LLP, said the Champaign decision raises more questions than it answers, and all governmental bodies throughout the state should take a close look at their local practices and ordinances to make sure they are complying with the sunshine laws without also putting themselves at risk of having to disclose communications they intended to remain private.

"Everybody understands and appreciates the need for transparency in government, but trying to implement that in a fair and reasonable way is a difficult thing to do, especially with advancements in technology," O'Driscoll said. "With my [village] trustees, I tell them to put their phone down and don't touch it as soon as the meeting starts - it's not worth the aggravation. But that can be a problem sometimes, because people are addicted to these devices."

O'Driscoll said responding to FOIA requests that involve electronic communications has become "no easy task," and the Champaign decision is only one step towards providing FOIA officers with the information they need to properly perform their duties. There will be future court decisions, O'Driscoll said, dealing with specific scenarios on a case-by-case basis.

"For example, consider a message that was sent before the meeting started but had an attachment that slowed the delivery until after the meeting started. How would that be treated?" he said.

The Champaign court didn't have all the answers, but it did provide some advice for elected officials that echoes what O'Driscoll has been telling his governmental clients.

"We would encourage local municipalities to consider promulgating their own rules prohibiting city council members from using their personal electronic devices during city council meetings," the court said.

Adam W. Lasker <> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.

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