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:   

“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. 

Public Body:   

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 

thereof”). 

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 

other records.