Updated: Champaign City Council decision on appeal expected tonight

Updated 11:10 a.m.

CHAMPAIGN  — The Champaign City Council is expected to make a decision tonight on whether it will appeal a circuit judge's recent ruling that compels the city to turn over electronic messages that city council members have sent and received during public meetings.

The groundbreaking ruling made by Sangamon County Circuit Judge John Schmidt on Monday supports an earlier decision by the Illinois attorney general's office public access counselor that the city is required to turn over the messages under Illinois' Freedom of Information Act. The case went to Sangamon County because all appeals of public access counselor decisions go either there or to Cook County.

Schmidt made his ruling after nearly 90 minutes of argument by attorneys for the city, the attorney general's office and The News-Gazette. Schmidt's decision, known as an administrative review of the public access counselor's determination, can be appealed to the state appellate court.

Champaign Assistant City Attorney Laura Hall said the city council will meet in closed session Tuesday evening to discuss the case and make a decision about whether to appeal Schmidt's decision. The city has 30 days to do so.

Champaign City Attorney Fred Stavins said he was not surprised by Schmidt's ruling. "I don't think it was unexpected," he said.

In July 2011, News-Gazette reporter Patrick Wade asked the city for "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."

The city originally provided The News-Gazette with 24 pages of emails generated during city council meetings. But officials withheld the remainder of the documents, arguing that the correspondence is not public record if it exists on council members' personal accounts and cellphones.

But last November, the public access counselor ruled that all communications regarding city business on officials' personal devices is subject to public disclosure.

In Monday's arguments before Schmidt, Hall contended the electronic messages were not public records because an individual city council member could not be construed as the entire council.

"You are not a public body by yourself," she said.

But Esther Seitz, arguing for The News-Gazette, said that "a public body acts through its individual members."

And Laura Bautista, an assistant attorney general, said that even if council members used their own cellphones to send an electronic message, you "can't use a private device to shield yourself from your communication becoming public."

Lawyers for two public access groups called Schmidt's decision — the first of its kind in Illinois — legally significant.

"I think it is significant in that it clarifies an area we have been dealing with for some time, and that's the fact that essentially technology has advanced more quickly than the law has been able to take into account," said Mike Luke, general counsel to Attorney General Lisa Madigan. "When the original (Freedom of Information Act) was enacted in 1984, there simply weren't any kinds of electronic devices of this type. And so consequently as the law develops and as the technology develops, we need to, in those circumstances, keep pace and that's what I think this case recognizes."

Don Craven, whose Springfield law firm represented The News-Gazette in the case, called the decision "a building block."

"The law and the General Assembly are always two or three iPhone models behind, as we fight the fight to get access to public records. This brings us up to date now," he said.

Craven noted that The News-Gazette's request "was drafted so that it deals with public records and the business of the public body because we were asking for records only created during the course of the city council meeting.

"The thought that these are not public records is very disturbing."

Comments

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JRR wrote on June 12, 2012 at 8:06 am

Schmidt's ruling is exactly right. Communication among public officials engaged in the conduct of public business quite rightly belongs to the people and is subject to their review under FOIA and other statutes.

The specific medium by which the communication takes place is irrelevant; my rule of thumb is that if a written memo is subject to disclosure, email or text messages are subject to disclosure as well.

Plaudits to the News-Gazette and the other parties who argued successfully that the people have the right to scrutinize the communication by their elected and appointed officials, no matter what the medium.

 

ROB McCOLLEY wrote on June 12, 2012 at 11:06 am
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True.

virgil g wrote on June 12, 2012 at 9:06 am

So, the effect of this ruling is that council members (throughout the jurisdiction of the Sangamon court) won't be taking their personal cell phones into meetings anymore.

ROB McCOLLEY wrote on June 12, 2012 at 11:06 am
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Also true.

 

But won't it be exciting to discover how many times the phrase thinking about donuts was transmitted?

readone wrote on June 12, 2012 at 11:06 am

The council members should not be able to take their cell phones to meetings.  There is no need for them.  They should be paying attention to what is going on in the meetings and not texting their "friends".  And if they are texting other council members, they should just be open and discuss it aloud.  They were elected to their posts to represent their constituents in conducting city business.   

ronaldo wrote on June 12, 2012 at 1:06 pm

I'm hoping that at least one of the texts was from one council member telling another council member to check out a hottie in the third row, forth from the right.

EdRyan wrote on June 12, 2012 at 3:06 pm

More likely beers at the Esquire

cuvoter wrote on June 12, 2012 at 4:06 pm

The City must not really care about the outcome here because they put their staff attorneys on it. If they really cared they would hire someone with some skill like they do for police brutality lawsuits.  

bluegrass wrote on June 18, 2012 at 2:06 pm

I love the News Gazette and I appreciate the service they give to this community, but they're wrong here.  Should we monitor all public employees personal messages while they are at work?  If so, who should be in charge of determining whether or not a message is work-related or personal? 


Yes, I know city council members run for the office.  However, they spend a lot of their own personal time and energy working on issues for the greater good, and if we're going to treat them poorly, we run a risk of scaring off good people who might otherwise want to offer their time and talents.  Many people, especially those who lurk about on message boards, don't know what it is to put your butt on the line in a public forum.  Many of these folks have jobs and businesses and families, and to scrutinize their personal messages from their own phones they pay for with their own money is going too far.  Sorry N-G.

rsp wrote on June 18, 2012 at 3:06 pm

These are texts during meetings not texts in general. I would have a problem if it was in general. But some people have their texts blocked so they can't be read and they comment on the meetings while they are going on. So if they are trying to influence the vote it should be public.