According to the PAC, Communications About Public Business on Personal Devices Subject to FOIA

Since a 2013 Illinois Appellate Court decision, the City of Champaign v. Madigan, Illinois public bodies have known that three categories of emails and text messages sent to or from personal technology devices are “public records” subject to the Freedom of Information Act (FOIA). Messages (1) received by a majority of a quorum of the public body or its committee, (2) sent or received during a public meeting, or (3) forwarded to a publicly issued device or electronic address are indisputably “public records” subject to release under the FOIA. Since then, at least one trial court in Cook County held that an email or text message an alderman sent or received on his personal device did not constitute a public record, finding that a public body cannot act through one alderman alone. Ahmad v. City of Chicago, 16 CH 15152 (2017). In a recent non-binding decision regarding a request for review, 2017 PAC 50558, the Illinois Attorney General’s Public Access Counselor (PAC) reasserted its interpretation of the FOIA to govern any record that deals with the transaction of public business, regardless of whether that record is maintained on a public or private device.

The PAC decision revolves around a request for records from a city including correspondence regarding the position of the police chief or the city’s former police chief. The city withheld certain text messages maintained on one alderman’s private device because it believed they were not “public records” under FOIA.

The PAC cited to City of Champaign, in which the Illinois Appellate Court found that emails and text messages concerning public business that were sent or received by city council members on their personal devices during a public meeting were “public records” subject to the requirements of FOIA. There, the court held that the communications were in the possession of the city council because a quorum was present and acting collectively as a public body at the time. The court also said, “a message from a constituent ‘pertaining to the transaction of public business’ received at home by an individual city council member on his personal electronic device would not be subject to FOIA’ unless ‘it was forwarded to enough members of the city council to constitute a quorum . . .” 2013 IL App (4th) 120662, ¶ 41, 992 N.E.2d at 639. The PAC noted, however, that that language was not essential to the court’s holding in the case, because there were no emails between constituents and city council members involved in the case.

The PAC cited cases from California, Vermont, and Washington D.C. holding that any record, including emails and text messages, concerning public business is subject to open records laws like FOIA, regardless of whether they are on personal or professional devices. The PAC also cited a previous decision, PAC Decision 16-006 (Aug. 9, 2016), which held that emails pertaining to the transaction of public business sent to or from personal email accounts of police department employees were subject to FOIA.

Based on those cases, the PAC determined that any record relating to the transaction of public business and held by an employee or member of the public body is, no matter where it is maintained, a public record subject to FOIA. The PAC reviewed the records at issue and determined they pertained to the transaction of public business. Although the text messages were maintained on the alderman’s private device, the text messages clearly discuss issues pertaining to City business and involve the public duties of City personnel. Therefore, the PAC concluded that the text messages constitute ” public records” under section 2(c) of FOIA.

As we reported in 2013 when the City of Madigan case was issued, there has always been uncertainty as to whether the PAC or a court would expand the reach of the FOIA to records on personal devices beyond those identified in City of Madigan. While the PAC’s decision arguably disregards precedent by not recognizing the Appellate Court’s reasoning, it has always been best practice for public bodies to discourage officials and employees from conducting public business through their personal technology and accounts. This includes communications on personal email accounts, through personal cell phones (e.g., text messages and voicemails), and on personal social media accounts. Because the PAC’s decision raises even more questions as to the status of the law in this area, we continue to advise that public bodies implement policies and procedures discouraging employees and officials from using personal electronic devices and accounts for public business. This will allow the public body to avoid the logistical hurdles, costs associated with searches of such technology and potential privacy issues that can arise in these cases.