Should a public official/employee be able to hide from public scrutiny by using peronsal accounts/devices to conduct public business? A City of Champaign attorney recently suggested that information on private devices and accounts is not fair game.
REPORT TO CITY COUNCIL
FROM: Trisha Crowley, Deputy City Attorney
DATE: July 21, 2011
SUBJECT: Patrick Wade FOIA Request 7-15-2011
A. Introduction: The purpose of this memo is to determine what public records must be
disclosed per this FOIA request.
B. Background: Patrick Wade of the News-Gazette has made a FOIA request as follows:
All electronic communications, including cellphone text messages, sent and received by members
of the city council and the mayor during city council meetings and study sessions since (and
including) May 3. Please note that this request applies to both city-issued and personal
cellphones, city-issued or personal email addresses and Twitter accounts.
C. Legal Analysis: “Each public body shall make available to any person for inspection or
copying all public records, except as otherwise provided in Section 7 of this Act.” 5 ILCS 140
/3(a). This request poses two issues; Are all of the records requested “public records” and are
each of the City Council members and the Mayor a “public body”.
“Public record” is defined as “all records, reports, forms, writings, letters, memoranda, books,
papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing
records, electronic communications, recorded information and all other documentary materials
pertaining to the transaction of public business, regardless of physical form or characteristics,
having been prepared by or for, or having been or being used by, received by, in the possession
of, or under the control of any public body”. 5 ILCS 140/2(c).
Relevant to this FOIA request, a public record must be “pertaining to the transaction of public
business”. Although there are no Illinois cases on this point, it is generally recognized that
personal communications are not “public records”. If the record does not concern public
business but private, family, personal or similar communications, it doesn’t fall within the
purview of the Act; no exemption is needed in order to refuse to provide the record. There are
exemptions for private information and personal information which would be an unwarranted
invasion of personal privacy. Examples would be personal telephone number in an official
accident report (private) or medical information relating to sick leave use of a public employee
(personal & an unwarranted invasion of personal privacy). But if a record is not a public record 2
because it is not pertaining to public business, refusal to disclose is not based on an exemption
but because it is simply not a public record. Examples of what would not be a public record,
even if it was on a public body’s computer equipment, as cited in cases collected in 54 ALR6th
653, include romantic emails between employees and union emails. The courts in these cases
said that the fact that the emails could be viewed by the employer (provider of the equipment)
and used in disciplinary action against the employees did not convert the emails into public
records subject to disclosure under the FOIA.
Conclusion: The News-Gazette request asks for “all electronic communications” but only
communications pertaining to public business would be subject to the Act.
A “public body” is defined as “legislative, executive, administrative, or advisory bodies of the
State, state universities and colleges, counties, townships, cities, villages, incorporated towns,
school districts and all other municipal corporations, boards, bureaus, committees, or
commissions of this State, any subsidiary bodies of any of the foregoing including but not
limited to committees and subcommittees thereof.” 5 ILCS 140/2(a)
Combining the definition of a public body with a portion of the definition of a public record
shows who must disclose and what records must be disclosed. Each public body shall make
available to any person for inspection or copying all public records having been prepared by or
for, or having been or being used by, received by, in the possession of, or under the control of
any public body.
Are City Council members and the Mayor “public bodies” under this Act such that electronic
communications received from private citizens on Council member’s or the Mayor’s privately
owned electronic devices would be subject to the FOIA?
There have been cases and Attorney General Opinions in other states that hold a public employee
or official’s communications pertaining to public business, even on privately owned devices, are
required to be disclosed. In Illinois, the only case on point specifically holds that an Alderman
of the City of Chicago is not a “public body”
“An exhaustive review of both state and federal law defining “public body” reveals no
case which would include an individual alderman in that definition. In fact, Illinois
statutes using the term either define it in a manner similar to the FOIA, or specifically
include a reference to individual officers of a public body. Cf., e.g., Ill.Rev.Stat.1989, ch.
5, par. 127 (“public body” under Soil and Water Conservation provisions is a soil and
water conservation district); ch. 24, par. 11-12-4.1 (“public body” under Illinois
Municipal Code includes no reference to individual persons); ch. 67 1/2, par. 8.18
(“public body” under Housing and Redevelopment provisions includes no reference to
individual persons); ch. 68, par. 101 (“public body” under Human Rights Act includes
no reference to individual persons); ch. 102, par. 41.02 (“public body” under Open
Meetings Act includes no reference to individual persons); with ch. 67 1/2, par. 30
(Housing and Redevelopment provisions distinguish “public body” from “governing 3
body,” which can include a president of entity); ch. 85, par. 1232 (Metropolitan Pier and
Exposition Authority Act refers to “public bodies, and public officers of any thereof”);
ch. 121, par. 10-715 (Illinois Highway Code refers to “public bodies, and public officers
We note the important purpose of the FOIA to provide persons with “full and complete
information regarding the affairs of government and the official acts and policies of those
who represent them as public officials and public employees” and the Act's recognition
that “people have a right to know the decisions, policies, procedures, rules, standards,
and other aspects of government activity that affect the conduct of government and the
lives of any or all of the people.” (Ill.Rev.Stat.1989, ch. 116, par. 201.) By holding that
plaintiff has pursued her statutory remedy against the wrong person, we do not in any
way intend to decide whether or not plaintiff has a right to the information requested.
The trial court properly dismissed plaintiff's complaint, however, on the basis that
defendant is not a “public body” as defined under the FOIA, and is not the proper
recipient of the request for records”
Quinn v. Stone, 211 Ill.App.3d 809, 570 N.E.2d 676 (Ill.App. 1 Dist.,1991).
Conclusion: Communications which pass through and are available on the City’s electronic
equipment are in the City’s possession and control and, if not exempt, will be provided.
However, communications of the Mayor and City Council members on privately owned
equipment to private parties are not public records of public bodies and will not be provided.
D. Conclusion: The City will respond to this request only with communications which are
available on the City’s equipment or City paid or provided equipment. The response to the
remainder of the request will be that the City- the public body- is not in the possession of any