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Thursday, February 8, 2018

Alderman's Texts and Emails on Private Device Not Subject to FOIA According to Court

The use of private cell phones by elected officials brings up a variety of legal issues, including whether the emails or text messages sent and received by the private device are subject to public release under the Freedom of Information Act. We have discussed this issue at length on the blog, including reporting about the Illinois appellate court's decision in Champaign v. Madigan where the court held that communications sent/received on city council members' private cell phones might be subject to FOIA under certain circumstances. You may remember that the Illinois Attorney General had taken a much broader position - that all communications sent/received by an elected official is subject to FOIA but the court limited that in its ruling in Champaign.

Recently, the Cook County Circuit Court dealt with this issue in a case called Ahmad v. City of Chicago. In that case, Ahmad had filed a FOIA with the City of Chicago for the release of texts and emails sent by or to a City Alderman relating to Ahmad or his property. The City denied the FOIA request, and Ahmad sued claiming that the communications were releasable because they related to City business. The City argued that because an Alderman is not a "public body," FOIA did not apply to the communications on the Alderman's private cell phone.

The circuit court agreed with the City, finding that the Alderman was not acting as a "public body" when he sent and received emails and texts to and from constituents relating to Ahmad and his property. The court noted that FOIA only applies to public bodies, not public officials. The court also acknowledged the holding in the Champaign case that there are three situations where communications sent to received by an elected official on his or her private device would be subject to FOIA - i.e., when those communications are (1) forwarded to a government account; (2) sent during a meeting of the public body; or (3) sent to a majority of the public body. Unless one of these three circumstances exists, these emails and texts were not subject to FOIA because the Alderman was not a "public body" subject to FOIA. The court rejected Ahmad's argument that Chicago Alderman are acting in a quasi-executive manner in zoning matters, finding that the ultimate authority in granting zoning approvals lies with the City Council and not just one Alderman. 

In sum, the court made it clear that the "public body" is the legislative body as a whole, and not an individual Alderman. Because an individual Aldermen is not a public body under FOIA, he or she is not subject to FOIA's disclosure requirements except in one of the three limited circumstances discussed in the Champaign case.


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