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Wednesday, July 17, 2013

Appellate Court Rules Text Messages are Subject to FOIA

In a previous blog post, we reported on a 2011 Illinois Attorney General PAC opinion determining that text messages sent between public officials and transmitted over privately owned cell phones are subject to release under FOIA.  We also reported that the PAC's ruling was upheld last June by the Sangamon Circuit court.  Yesterday, an Illinois appellate court again upheld these rulings that city communications on privately owned communication devices are subject to release under FOIA.  City of Champaign v. Madigan
In coming to its conclusion, the appellate court fashioned a two-part test in determining whether electronic communications qualify as public records.  The threshold question is whether communication relates to “public business,” which the court defined using the Merriam-Webster Dictionary definition as “business or community interests as opposed to private affairs.”
The second question, which the court spent a considerable time analyzing, defined the term “public body” for the purposes of FOIA.  Here, the court agreed with the city that individual public officials are not in themselves a “public body” because a single person on their own cannot carry out official business.  Instead, the court’s analysis turned on the simultaneous nature of the communication, whether the exchange of messages mimics an actual meeting. 
The court opined that electronic communications forwarded to the requisite number of members to constitute a quorum is in “the possession of the public body” and is a part of the public record.  Alternatively, messages sent to and received during an official meeting or study session, regardless if on private or public devices, are also owned by the public body and subject to public record laws.  Moreover, messages received on a private device but then forwarded to the public device become an official part of the public record.
In this case, the reporter’s request satisfied the court’s test.  The requested information was related to public business and was sent “during the time city council meetings (and study sessions) were convened.”  Thus, the court found the city should turn over the requested information to the city’s FOIA officer.
Finally, the Fourth District strongly emphasized the need for legislative action regarding electronic communications and public record laws.  The court “[encouraged] local municipalities to consider promulgating their own rules prohibiting city council members from using their personal electronic devices during city council meetings.”
Post Authored by Julie Tappendorf and Joy Austria, Ancel Glink.



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