Result of FOIA fight: 2 texts
CHAMPAIGN — Mayor Don Gerard doesn't text during city council meetings.
Neither do council members Will Kyles, Marci Dodds or Michael La Due, who says he puts his cellphone on vibrate and buries it in a shoulder bag "as to not disrupt meetings."
Other city council members don't consider the messages they send to be related to public business.
And Tom Bruno, for one, routinely deletes all his text messages as soon as he reads them — those are not retrievable.
The city turned over only two text messages sent or received by the nine city council members during 10 meetings in 2011. Several council members turned over the city-related emails they sent or received from their personal email addresses during those meetings, and those notes were more numerous than the text messages.
After a two-year legal battle between the city and The News-Gazette over whether the records should be made public under the state's Freedom of Information Act, the city says some of the records are not retrievable from cellphone companies and, if they had existed, would be lost forever.
"I think the real problem is that the state archivist has not promulgated any regulations with respect to the retention of these records," said City Attorney Fred Stavins. "This is not a new issue; everyone is aware of it."
Stavins said the city is looking for some direction from state officials in an era where electronic communication is commonplace.
The bulk of the messages the city unveiled in response to the newspaper's Freedom of Information Act request came from council members Tom Bruno and Deborah Frank Feinen.
Bruno, who turned his records over to the city attorney within 24 hours of the initial request, said he sent or received 46 emails during those 10 meetings in May, June and July 2011. Some of those were deemed not of a public nature and are exempt from disclosure under the state law.
He did not have any text messages to provide.
"I routinely delete all text messages as soon as I read them, so I am unable to provide any," he wrote in an email to an assistant city attorney.
Feinen, who gave her records to the city attorney a few days later, provided a number of emails, two text messages and a Google Voice conversation with Champaign County Clerk Gordy Hulten. Hulten, a former city council member, was curious about the outcome of city council votes on a few issues.
Hulten was also the sender of one of Feinen's text messages: "How's liquor discussion?" he asked on June 14.
The other came from Champaign firefighter Brad Diel on the same night: "By the way Tom's definition of not browning out is actually the exact definition of a brown-out."
City council members were meeting that night to discuss a new package liquor tax, which ultimately did not pass. The "brown-out" text message referred to city council members' deliberations over reducing the amount of firefighter overtime, which consequently would reduce the amount of time a fire engine on the city's west side could operate.
The appellate court ruling this summer that compelled the city to disclose the records applied only to emails, text messages and other records relating to city business sent or received by council members during an ongoing public meeting.
The city initially denied a request for those records in July 2011, which kicked off a series of appeals and court hearings on whether the Freedom of Information Act applies to records generated on elected officials' privately owned devices.
Some council members told the city's legal department that the records simply do not exist.
"I do not send texts or email missives during meetings," Gerard said in an email to a city attorney on July 17, 2011, two days after the original News-Gazette request. "The only messages which I have 'checked' during those times were of a personal nature. I can make my city phone available upon request for IT to review."
City council members also had no Twitter, Facebook or other similar kinds of messages to provide.
"It was determined that I received my texts before the time of the meetings," Foster said in an email to the assistant city attorney. "I do not have any texts or emails that would be considered 'public record' for the dates/times requested."
The law requires the city to maintain public records, but Stavins said there is no mechanism to do so in the case of text messages. Most cellphone providers do not keep records of the content of text messages, and the ones that do only retain those records for a few days.
"I suppose we're going to consult more with the city council to see how they want to deal with this," Stavins said.
Stavins said the appellate court ruling also left a number of "ambiguities": specifically, does a city council member have to read a message for that record to be considered "received" during a public meeting? And what should elected officials do if their mailboxes are full?
For now, though, Stavins said the city plans to let council members operate at their own discretion.
"They're aware of the implications of the decision, and they're aware of the ambiguities of the decision as well," Stavins said. "They're well equipped to deal with that."
The problem, though, could be with city officials and not with their inability to keep those records, said Esther Seitz, a Springfield attorney who litigated the case on behalf of the newspaper.
"I think the problem here is the way that the city behaved in this case is that they specifically told council members that they don't need to forward text messages anymore," Seitz said.
City legal staff initially asked council members to forward their messages to city attorneys for review. After some more analysis, the legal staff decided the messages on elected officials' private devices were exempt from the state law and told council members to stop forwarding them.
"The problem is that the city should have asked its council members, its public officials, to forward the messages," Seitz said.
Any text messages that were not forwarded would now be lost.
The appellate court's ruling, however, reinforces the state law on public records.
"Regardless of form, government records that pertain to government business are subject to FOIA," Seitz said. "I think the correct outcome was reached here."
The court even went beyond the scope of the case, Seitz said, to advise local governments on how they might deal with the ruling.
"The court went out of its way to advise the city in how to instruct its officials in the future," Seitz said. "I think the court went above and beyond in trying to help the city out here."
One of those solutions, the court suggested, might be for local government to restrict or prohibit elected officials' use of cellphones during public meetings.
Stavins, however, said the city is still awaiting direction from state officials on how to address the law. Simply prohibiting the use of phones, he said, does not fix the problem.
"That's not a solution," Stavins said.