Last month, the Public Access Counselor released a decision on the subject of when text messages can be obtained from a public body through a FOIA request. The decision was non-binding, but nonetheless illustrates that absent a court order or subpoena, the PAC does not expect public bodies to obtain and turn over responsive text messages that are not in the public bodies’ possession.

In April of 2014, a school district client of Franczek Radelet received a FOIA request for text messages sent to or from district-issued phones of seven named employees going back to a certain date. After reviewing the district-issued phones and finding no responsive text messages, the FOIA officer for the District denied the request. Following this denial, the requester filed a Request for Review with the Illinois Attorney General’s office. The District responded that only two of the seven employees listed had district-issued phones and those phones did not contain any text messages that were responsive to the FOIA request. Further, the District contacted its network service provider who informed the District that it does not provide text message details without a subpoena or court order.

Since neither the District nor any of its employees were in direct possession of the responsive text messages, the PAC concluded that the District did not improperly withhold records responsive to the FOIA request. The PAC noted that there was no indication that the General Assembly intended to require a public body to institute a lawsuit and issue or obtain a subpoena in order to gain control over records that it does not maintain in the ordinary course of business in order to respond to a FOIA request.