Fourth District Appellate Court Update: FOIA and Personal Electronic Communications

You may remember the guidance issued in 2011, in which the Office of the Attorney General issued an opinion holding that electronic records relating to the transaction of public business are "public records" within the meaning of the Freedom of Information Act - even then they are generated on a public official's private equipment and/or maintained on personal electronic accounts.

The City of Champaign has been appealing the decision since that  time, after The News Gazette requested "all electronic communication, including cell phone text messages, send and received by member of the [Champaign] City Council and the mayor during city council meetings..."

The city appealed that ruling to the circuit court, but a judge upheld the decision of the Attorney General in June 2012. Later that summer, the city asked the Springfield-based appellate court to review the case.

Attorneys for the city argued that the communications conducted on privately owned devices are not subject to the FOIA because individual council members are not themselves a "public body."

But the appellate court disagreed, ruling on July 17 that "once the individual city council members have convened a city council meeting (or 'study session'), it can reasonably be said they are acting in their collective capacity as the 'public body' during the time the meeting is in session. Indeed, the city council cannot act unless it acts through its individual members during a meeting. As a result, it is not unreasonable to conclude the communications 'pertaining to the transaction of public business,' which are sent to and received by city council members' personal electronic devices during a meeting are in the possession of the public body."

The court prioritized concerns of public bodies subverting the Open Meetings Act and FOIA requirements by simple electronic capabilities.  In its decision the court also suggested the General Assembly clarify the law on electronic communications and urged municipalities to develop rules prohibiting the use of personal electronic devices during public meetings.

While the attorney representing the City Council believe the case left "important issues of privacy" unresolved, and problems with FOIA that the General Assembly must address, the attorney also stated that the city does not plan to appeal the decision. 

In sum, in the same way all school related documents and emails are "public records" based on their content, all forms of electronic communication can also reasonably be "public records".  It is best practice to only use school-based communication methods (including school-based email) to conduct public business - and to have in place a policy for retaining and organizing the vast numbers of electronic documents that are important public records, so that compliance with any FOIA requests can be efficient for your district.

* Special thanks to Donna M. Davis, who contributed substantial work to the research and drafting of this article.