Required Disclosure Limited to Communications Sent or Received During Public Meetings
On July 16, 2013, the Appellate Court of Illinois for the Fourth District issued an opinion in City of Champaign v. Madigan, 2013 IL App (4th) 120662, that upheld the Illinois Attorney General's (AG) binding opinion (Public Access Opinion No. 11-006) requiring the City of Champaign to provide certain emails and text messages stored on public officials' private computers and electronic devices in response to a request under the Freedom of Information Act (FOIA). Importantly, however, the appellate court significantly narrowed the AG's opinion, making clear that emails and text messages stored on public officials' private computers and electronic devices are "public records" only when the communications are sent or received during a public meeting.
On May 3, 2011, a reporter for the Champaign News Gazette attended a meeting of the City Council of the City of Champaign, Illinois. While at the meeting, the reporter witnessed members of the city council sending emails and cellphone text messages to each other. The reporter submitted a FOIA request to the city in which the reporter requested access to all electronic communications sent and received by city council members during the meeting. In his FOIA request, the reporter specified that he sought records on "both city-issued and personal cell phones, city-issued or personal email addresses, and Twitter accounts." City of Champaign v. Madigan, 2013 IL App (4th) 120662 at ¶4. The city provided the requester the records that were in its possession, but denied the request because it applied to the electronic communications that were on the council members' private cellphones and in their private email accounts.
The reporter challenged the partial denial of his FOIA request. The AG issued a binding opinion holding that the text messages and emails on the city council members' privately owned electronic devices and in their private email accounts were "public records" under FOIA if the records pertained to public business.
In reaching its conclusion, the AG rejected the city’s argument that the records were not "public records" because the city did not possess them. Instead, the AG determined that the private text messages and emails were public records because they were"prepared by or used by one or more members of a public body in conducting the affairs of government." Public Access Opinion No. 11-006, p. 5 (emphasis added).
The City of Champaign sought judicial review of the AG's opinion in the circuit court, which upheld the AG's opinion. The city then appealed the decision to the Illinois appellate court.
The Appellate Court Decision
What Is Subject to FOIA?
In one respect, the Fourth District Appellate Court upheld the AG's opinion, ruling that the city wrongfully denied the reporter's FOIA request as it applied to the records on the council member's private devices. At the same time, however, the court narrowed the AG's opinion, faulting the AG for reading the definition of "public record" in a manner that did not comport with the plain language of the statute.City of Champaign v. Madigan, 2013 IL App (4th) 120662 at ¶¶30, 31.
The appellate court explained that a record is not a "public record" simply because the record pertains to public business; rather this is only one of two requisite factors. According to the court:
Once the threshold determination of whether a communication pertains to "public business" is established, the next determination is whether that communication has been either (1) prepared by a public body, (2) prepared for a public body, (3) used by a public body, (4) received by a public body, (5) possessed by a public body, or (6) controlled by a public body.City of Champaign v. Madigan, 2013 IL App (4th) 120662 at ¶4.
The court then went on to explain that individual council members are not themselves a "public body." Thus, a communication sent by a constituent to city council member at home, even if the communication is about public business, is not a public record. Id. at ¶41.
However, collectively, the council members are a "public body" when the members convene a public meeting. Id. As a result, according to the appellate court, any communications that pertain to public business and are sent or received by council members when a public meeting is in session could constitute public records pursuant to FOIA. Id. ¶42. The court required the city to turn over the text messages and emails that are on the council members' private email accounts that were sent or received while the city council was in session.
It is not certain whether the appellate court's decision will be appealed to the Illinois Supreme Court.
Claims for Attorneys' Fees
The appellate court also considered the requester's claim for attorneys' fees under 5 ILCS 140/11. Although the circuit court awarded fees against the City of Champaign, the appellate court reversed that award. The appellate court determined that Section 9.5 (administrative relief under FOIA through the AG) and Section 11 (judicial relief under FOIA) are alternative remedies. As a result, once a requester obtains a binding opinion from the AG under Section 9.5, the requester cannot file a separate action in court under Section 11 in order to recover attorneys' fees.
Although the City of Champaign opinion has left some questions unresolved regarding whether private communications of elected officials are subject to FOIA, it also has clarified a key issue that was made unclear by the AG opinion regarding the City of Champaign. Most notably, in rejecting the AG's reading of FOIA, the court made clear that the text messages and emails sent and received by city council members and village trustees are generally not subject to FOIA so long as the communications: (1) remain in private control, and (2) are not sent or received while the council members and trustees are at a public meeting.
Nevertheless, several exceptions to this general rule were identified by, or could be inferred from, the appellate court opinion, and should be heeded by local governments and their officials. These exceptions include the following:
- communications on the private device of a council member or trustee that are sent to or from the municipality's server or related systems will be subject to FOIA
- communications on the private device of a council member or trustee that are sent, received or used by council members and trustees while at a public meeting may be subject to FOIA
- communications on the private device of a council member or trustees that are shared with a majority of a quorum of the council or village board may be subject to FOIA
- communications on the private device of a mayor or village president (regardless of whether sent or received during a meeting of the corporate authorities) may be subject to FOIA because, unlike individual council or board members, the mayor or president is an officer of the municipality
At the very least, council members and trustees should also be mindful that accessing private emails and text messages during public meetings may transform a non-public record into a public record, thereby making the record subject to FOIA. As such, local governments should also be prepared to appropriately process FOIA requests that ask for these types of private communications.
The appellate court opinion urged local governmental bodies to adopt policies governing the use of private email and private electronic devices during public meetings to avoid controversy about whether records may be subject to FOIA. Holland & Knight attorneys can assist in the development of such local policies as well as provide more information about the ruling.
A copy of City of Champaign v. Madigan is available here: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2013/4thDistrict/4120662.pdf