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."