SPRINGFIELD — An Illinois appellate court has sided with The News-Gazette and ruled that the city of Champaign turn over to reporter Patrick Wade copies of electronic communications sent and received by city council members during council meetings and study sessions in May, June and July 2011.
But the same three-member court overturned a ruling by Sangamon County Judge John Schmidt that The News-Gazette's attorney was entitled to $7,500 in attorney fees and costs from the city.
The unanimous decision came from the Springfield-based Fourth District Appellate Court and was written by Justice M. Carol Pope. Justices Thomas Appleton and Lisa Holder White concurred.
Champaign City Attorney Fred Stavins said Wednesday the city would make a decision within the next two weeks whether to appeal the ruling.
"We need to talk more to the city council about this," Stavins said. "But we think the decision is favorable because it clarifies some points that were ambiguous before, although it also raises other questions as well."
He said the attorneys for both sides would discuss how to turn over to The News-Gazette about 35 pages of electronic communications from among the council members.
"The attorney general has all those communications already so it's a pretty short step to do that," he said. "But ultimately I don't think the case is about these individual communications. I think it's a broader issue about electronic communications and how they're handled."
Among the questions still to be resolved, Stavins said, is how long do electronic messages have to be retained and how are they preserved.
"I don't know that anybody has this solved, about how to handle electronic communications in the public place," he said.
The issue started in July 2011 when Wade filed a Freedom of Information Act request with the city, asking for all "electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor" during meetings since May 3, 2011. A week later the city rejected Wade's request, contending that the communications between council members on privately owned equipment were not public records.
The Illinois attorney general's office later ruled, however, that texts and emails sent during public meetings are public records and subject to the Freedom of Information Act. The city appealed that ruling to the circuit court, but Schmidt upheld it in June 2012. Later that summer the city asked the appellate court to review the case.
Attorneys for the city argued that the communications conducted on privately owned devices are not subject to the FOIA because individual council members are not themselves a "public body."
But the appellate court disagreed, ruling that "once the individual city council members have convened a city council meeting (or 'study session'), it can reasonably be said they are acting in their collective capacity as the 'public body' during the time the meeting is in session. Indeed, the city council cannot act unless it acts through its individual members during a meeting. As a result, it is not unreasonable to conclude the communications 'pertaining to the transaction of public business,' which are sent to and received by city council members' personal electronic devices during a meeting are in the possession of the public body."
In determining that the records should be turned over to Wade, the court wrote that to "hold otherwise would allow members of a public body, convened as a public body, to subvert the Open Meetings Act and FOIA requirements simply by communicating about city business during a city council meeting on a personal electronic device."
Esther Seitz, a Springfield attorney who has represented The News-Gazette in the case, said the ruling "is an important decision for members of the public, including the news media, that want to report on public meetings. It makes very clear that members of the public body cannot move their discussions to electronic media equipment and thereby escape the openness requirements because those messages too are subject to the open records laws, even if they are conducted on a private iPhone, for example."
She said she was not aware of any other cases in Illinois where there were complaints about public officials discussing issues by electronic devices during a public meeting.
"I'm sure it happens all the time because the reality is nowadays that people are always on their cellphones and I don't think that would be any different for public officials in an open meeting," she said. "But I don't know of a specific factual scenario like this."
In its decision the court also suggested the Legislature clarify the law on electronic communications and urged municipalities to develop rules prohibiting the use of personal electronic devices during public meetings.
It was a continuation of a theme that Pope had expressed during the oral arguments on the case May 22 in Springfield. At one point during the 45-minute session, she had asked an attorney, "Isn't this a legislative matter? The flip side, doesn't the Legislature need to, if they think this is important and should be covered, shouldn't they make the statute clear about that?"
In her decision Pope wrote, "If the General Assembly intends for communications pertaining to city business to and from an individual 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."
Seitz said Pope's comment was limited only to electronic messages sent and received during council meetings.
"I think she's suggesting that if the Legislature wants it to be broader, then they have to specifically so state," Seitz said.
Pope also wrote that the appellate court encourages "local municipalities to consider promulgating their own rules prohibiting city council members from using their personal electronic devices during city council meetings."
Added Seitz, "If they don't want to release the records. That's what I would read into that, because if they are going to allow texting, then the public bodies have to be prepared to round up those text messages and release them in response to FOIA requests."
Stavins said he believed the decision established that a single city council member is not a public body.
"I think that was an important point, maybe the most important point of the case," he said.