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Monday, January 28, 2019

PAC Again Addresses Text Messages on Personal Devices

The question of whether texts or emails sent to or received by a public official or employee on his or her personal device are subject to FOIA has been the subject of a number of PAC opinions as well as court decisions, including one from the Illinois Appellate Court. Unfortunately for public bodies, the opinions on this issue have not been consistent, creating more confusion than guidance. A recent advisory opinion on this issue has not cleared anything up for public bodies.

An attorney submitted a request to a municipality asking for a variety of records, including correspondence between city council members about a personnel matter. The city provided certain records to the requester, some of which were redacted. The city also denied that part of the request that asked for text messages between aldermen and the mayor on the basis that the records were contained on private devices and, pursuant to the Illinois Appellate Court's ruling in Champaign v. Madigan, were not public records subject to FOIA.

The requester appealed to the PAC on a number of grounds, including challenging the city's withholding of texts sent/received on private devices. 

The PAC ruled in the requester's favor, finding the city in violation for withholding the text messages on the private devices of the city council members. Although the PAC did cite to the Champaign case, it did not appear to apply its holding to this request. Instead, the PAC again seemed to broadly hold that all communications that relate to public business, whether sent on a personal or government device, are public records subject to FOIA. As we have reported in the past, however, the Illinois Appellate Court rejected the PAC's broad position in the Champaign case and established particular standards for when a communication sent/received on a private device might be subject to FOIA. A message sent on a private device to/from a city council member is subject to FOIA in 3 circumstances:  (1) if forwarded to a city account; (2) if sent/received by a quorum of the city council; or (3) if sent/received during a city council meeting. We also reported on a recent circuit court decision that ruled consistently with the Champaign case, holding that an alderman's texts on his personal device were not subject to FOIA. 

In this case, the messages that the city withheld were texts between a city council member and the mayor. Applying the Champaign case to that situation, none of the three circumstances established by the Champaign case that would require release would seem to apply since the texts were not sent during a meeting or between a majority of the council, nor were they forwarded to a city account or device. Instead of following the Champaign case reasoning, the PAC cited to out-of-state rulings that hold that any communication relating to public business even if stored on a private account is a public record, as well as a previous PAC opinion relating to police department officers' text messages. 

In sum, the PAC continues to  rely on the argument it made in the Champaign case (that all communications about public business are subject to FOIA regardless of the nature of the device or account used to send them) even though that position was expressly rejected by the Illinois Appellate Court in the Champaign case. The PAC relies on the definition of "public record" to support its position, but seems to reject or ignore the analysis in the Champaign case that the record must also be in the possession of or under the control of a public body. Individual city council members are not  acting as a "public body" when they send communications on their personal devices except in the three circumstances discussed above, so communications on these personal devices are not "public records" subject to FOIA based on the analysis in Champaign. Yet, the PAC continues to rely on its broader opinion, arguing that public officials should not be able to withhold communications about public business simply because they are on personal devices. But, the Champaign court addressed that very issue in its opinion, stating as follows:
If the General Assembly intends for communications pertaining to city business to and from an individual city council member’s personal electronic device to be subject to FOIA in every case, it should expressly so state. It is not this court’s function to legislate. Indeed, such issues are legislative matters best left to resolution by the General Assembly.
The PAC's position in this and other opinions makes it difficult for public bodies because even if the government follows the Illinois Appellate Court ruling, the PAC may still find a public body in violation of FOIA based on its own reasoning that appears inconsistent with the court's ruling.

You can read the advisory opinion here.

Disclosure: Ancel Glink represented the city in this PAC appeal.


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