The Illinois Appellate Court recently ruled that electronic communications about public business sent or received by members of a city council during a public meeting or study session are “public records” subject to the Illinois Freedom of Information Act. Although making clear that at least some electronic communications by public officials and employees on personal electronic devices and accounts will be subject to FOIA, the decision actually narrows the circumstances when such communications will be subject to FOIA. Nonetheless, it is still best practice for public bodies to discourage officials and employees from conducting public business through their personal technology and accounts. This includes communications on personal e-mail accounts, through personal cell phones (e.g., text messages and voicemails), and on personal social media accounts.

The court also decided an important attorney’s fee issue in the case. The court determined that a FOIA requester may not receive attorney’s fees for an administrative review of an Illinois Attorney General Public Access Counselor opinion in court. The practical effect of this decision is that a FOIA requester is only eligible to receive attorney’s fees if the requester sues in court before the Attorney General rules on a request for review of a denial.

A thorough summary and analysis of the case follows.

As we reported in an earlier FR Alert, in 2011 the PAC held that the City of Champaign must release all records responsive to a FOIA request seeking electronic communications sent or received by city council members and the mayor during city council meetings and study sessions, including communications on personal cell phones, e-mail addresses, and Twitter accounts. Last year, a trial court in Sangamon County upheld the PAC’s decision, and also awarded the FOIA requester, the News Gazette, attorney’s fees. Last week, the Illinois Appellate Court, Fourth District, agreed in City of Champaign v. Madigan that at least some electronic communications regarding public business and sent or received on the personal electronic devices of the city council members are subject to FOIA.

The court explained that an electronic communication created or received by a city council member would only be a “public record” subject to FOIA if it: (1) pertains to the transaction of public business; and (2) was either prepared by or for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.

Relying on dictionary definitions of “public,” the court explained that the first prong of the test would be met if the communication pertains to “business or community interests as opposed to private affairs.” Accordingly, purely personal communications with no bearing on public business are not subject to FOIA.

For purposes of the second prong of the test, moreover, the court held that it was not enough for the communication to be prepared, used, received, possessed, or controlled by or prepared for a member of the public body, such as a city council member. The court held that because an individual city council member cannot conduct the business of the public body alone, a council member is not a “public body.”

Nonetheless, the court found that in the circumstances of the case before it, the city council members were acting as the public body for purposes of FOIA. The court noted that once the individual city council members convened a city council meeting (or “study session”), they were acting in their collective capacity as the “public body” during the time the meeting was in session. The court specifically noted that the city council cannot act unless it acts through its individual members during a meeting.

The court’s decision sets reasonable limits on a troubling PAC opinion by providing clarification for public bodies on when FOIA will apply to communications and other records on board member personal electronic devices and accounts. The court’s decision leads to the following general conclusions:

• Communications about non-public matters will not be subject to FOIA even if they are created, maintained, or accessed by employees or board members on public technology or accounts.  
• Communications authored or received by public employees or board members about public business on publicly issued electronic devices will be subject to FOIA unless an exemption applies regardless of how many members of a public body receive the communication.
• Communications authored or received by board members on private devices that discuss public business are subject to FOIA if any of the following apply: (1) the communication is received by a majority of a quorum of the public body (this includes committees); (2) the communication is sent or received during a public meeting; or (3) the communication is subsequently forwarded to on a publicly issued device or electronic address.
• Communications authored or received by board members on private devices that discuss public business but are sent to the private devices of less than a majority of a quorum of public body members may not be subject to FOIA. The court’s decision seems to imply that such records are not public records of the public body because less than a majority of a quorum of the public body is not the public body.
• The underlying rationale for the court finding that the communications were public bodies in this case would not apply to employees of the District, who can never act in the capacity of a public body. There may, however, be other rationales that the PAC or a court could apply to find that the communications by employees about public business on personal electronic devices or accounts are nonetheless public records subject to FOIA.

Because the court’s decision leaves some questions unanswered and makes clear that at least some messages by public body officials on private devices will be subject to FOIA, we still advise that public bodies implement policies and procedures discouraging employees and officials from using personal electronic devices and accounts for public business. This will allow the public body to avoid the logistical hurdles, costs associated with searches of such technology, and potential privacy issues that we identified in our first FR Alert on this case. Indeed, the court in City of Champaign v. Madison encouraged public bodies to implement such policies, stating: “We would encourage local municipalities to consider promulgating their own rules prohibiting city council members from using their personal electronic devices during city council meetings.”