Category: FOIA/OMA

Coins stacked in front of clock

Park Districts & Governments Must Know the New Overtime Rules and Other Legal Developments

We invite elected officials, officers, and administrative employees of local governments or park districts, and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. This focused seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA).

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact  Local Governments & Park Districts and as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for local governments and park districts.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

Employee Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules to area business leaders.

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders (pictured above). Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

5:00 p.m.  – 6:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and Hors d’Oeuvres)
4:30 p.m. – 5:00 p.m.:    Registration and Hors d’Oeuvres
5:00 p.m. –  6:30 p.m.: Presentation, Q & A

Tiled sheet of $1 Bills

What Schools Need to Know Now about the New FLSA Overtime Regulations and Other Legal Developments

We invite school administrators, board members and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. The October 26, 2016 lunch-and-learn seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA). Do not wait to learn about these changes at the Illinois Association of School Boards’ conference – it could be too late!

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact Schools as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for schools and educational institutions.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

School Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders. Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

 

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

 

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

12:00 p.m.  – 1:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and lunch)
11:30 a.m. – 12:00 p.m.:    Registration and lunch
12:00 p.m. –  1:30 p.m.: Presentation, Q & A

Using personal cell phone to create employee emails subject to FOIA

Public Employee Emails Subject to FOIA

Even when using private email or devices, employee emails are subject to FOIA and must be included in a reasonably adequate search.

By Joshua Herman

email: joshua.herman@mhtlaw.com

On August 9, 2016, the Illinois Attorney General’s Public Access Counselor (“PAC”) issued Binding Opinion 16-006, which addressed the Freedom of Information Act’s (“FOIA”) application to employee email. The opinion unequivocally held that public employee emails were subject to FOIA, requiring that public bodies conduct a reasonable search for these responsive records, which includes searching public employees’ private emails.

Background of Request for Employee Emails

In January of 2016, CNN submitted a FOIA request to the Chicago Police Department (“CPD”) that sought “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 specific officers during various dates. CPD eventually provided its response on April 19, 2016. CPD’s response consisted of a series of emails with attachments totaling over 500 pages. CPD did not cite any exemptions nor did it provide an explanation with its untimely response.

Request for Review by PAC

CNN filed a Request for Review with the PAC, claiming the CPD’s response did not contain any responsive records despite the fact the CPD claimed that the provided emails were “all of the records found in their search.” CNN asserted that the CPD did not conduct an adequate search because CPD’s response did not contain “a single responsive email.”

Investigation of Whether Requested Employee Emails were Subject to FOIA

The PAC began its investigation by asking the CPD for:

“A detailed description of the processing of [the] FOIA request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted.”

CPD responded that it searched its email system for the 12 named officers for the requested time periods, resulting in 47 e-mails being located. Some of these e-mails were described as being “News Clips” and 12 of the emails were copies of the same two emails.

CNN pointed-out that CPD’s response indicated that the CPD did not search for officers’ emails on any other platform or device, including personal email accounts. CNN argued that:

“Even if the Department does not retain control over personal email or devices, it still has a duty to request copies of such communications that relate to the officer’s public service role and/or in the performance of their government function.”

CNN further questioned how the CPD conducted its search:

“Regardless of the email accounts and devices actually searched, it is entirely unclear to us the search terms and/or parameters the Department actually undertook in conducting its search. Obviously, the search terms used, and the review procedures utilized that would identify highly-relevant documents that might not be found using a search term, are crucial to obtaining CNN’s satisfaction that the Department has engaged in a fulsome search responsive to CNN’s FOIA request.”

The PAC then requested that CPD describe the methods it used to search CPD e-mail accounts, including the particular search terms used.

CPD responded by stating that it searched the email accounts of the 12 named police officers for the search term “Laquan McDonald” during the date ranges requested. CPD also confirmed that it had not conducted a search of any personal e-mail accounts, arguing that e-mails on those accounts are not “public records.” CNN responded that:

”Giving public officials like police officers carte blanche to evade FOIA laws by using personal email for public purposes would eviscerate Illinois FOIA. Moreover, public officials would have an incentive to avoid FOIA by deliberately communicating about sensitive or controversial topics on private email. This flies in the face of the very purpose of public information laws.”

Analysis of whether employee emails subject to FOIA

The PAC began its analysis of whether the private emails of public employees may be subject to FOIA by determining whether they could be “public records.” The PAC addressed the definition of “public records” as it was discussed in City of Champaign v. Madigan, a case that held that some government official text messages are public records. According to the appellate court, to be a “public record,” the communication must

  1. Pertain to the transaction of public business and it must have been
  2. Prepared by,
  3. Prepared for,
  4. Used by,
  5. Received by,
  6. Possessed by, or
  7. Controlled by a public body.

After reviewing the City of Champaign case, the PAC explained that when individual public employees act in their official capacity, they are transacting the public business of the public body. The PAC found that CPD’s interpretation would “undercut the principle that public bodies act through their employees” and that excluding all communications on personal devices or accounts, regardless of whether they pertain to transaction of public business, wrongly focuses solely on the method of communication rather than on the content of the communication.

The CPD had also argued that personal email accounts are not subject FOIA because CPD does “possess or control” those records. The PAC rejected this argument, explaining that an agency always acts through its employees and officials and that if one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the employee or official stores them outside of the agency.

The PAC explained that the CPD’s argument “would yield absurd results by enabling public officials to sidestep FOIA and conceal how they conduct their public duties simply by communicating via personal [electronic] devices.”

CPD also argued that searching personal email accounts would subject employees to unreasonable and unnecessary invasions of personal privacy, an exemption under Section 7(1)(c) of FOIA. However, this exemption expressly states that “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Consequently, according to the PAC, any emails exchanged by CPD employees pertaining to Laquan McDonald would pertain to public business and accessing them would not be an unwarranted invasion of personal privacy.

Although personal accounts can contain public records, the PAC explained:

“[t]he fact that a personal e-mail account is used to send or receive public records does not transform all communications sent or received on that account, in particular those with no connection to the transaction of public business, into public records that must be disclosed in accordance with FOIA.”

The PAC noted that the CPD did not assert that it asked employees whether they possessed responsive emails, nor did the CPD assert that any employee objected to providing responsive emails. Indeed, the CPD indicated that it took no action to ascertain whether its employee’s had responsive records. The PAC explained that although a public body need not search every record system, it cannot limit its search to only one system if others are likely to contain records responsive to a request.

While FOIA does not specify the manner in which a public body must conduct its search for records, the PAC stated that ordering the CPD officers to produce any responsive records they possessed may have satisfied CPD’s obligation to conduct a reasonable search. In support of this, the PAC cited cases that hold, absent a lack of good faith, a public employee’s search of his personal e-mail and confirmation that he did not locate responsive records satisfies the public body’s obligation to conduct an adequate search.  In light of FOIA, CPD could not simply decline to search for responsive emails on an officer’s private email account.

The PAC also addressed whether CPD’s search term of “Laquan McDonald” was adequate under the circumstances. The emails CPD did produce demonstrated that officers referred to McDonald in multiple ways, including misspellings and the use of only one part of his name. The PAC explained that under these circumstances, the singular search term was “not reasonably calculated to discover all relevant records.”

CPD Ordered to Obtain Employee Emails Subject to FOIA

The PAC found CPD’s response and underlying search to be inadequate under FOIA. The PAC’s binding opinion required the CPD to conduct a search of the personal e-mail accounts of the relevant CPD officers. The PAC suggested that, at a minimum, this requires the CPD to ask the officers whether they possess responsive records, and if so, requiring the officers to provide copies of those records to the CPD.

The PAC further directed CPD to expand its search terms to more reasonably attempt to locate responsive records by including:

  • Alternate name spellings,
  • Names of officers,
  • The incident number,
  • The location of the incident,
  • And a physical description of Laquan McDonald.

Conclusion and next steps

In summary, the PAC’s Binding Opinion held that public bodies must take reasonable steps to locate all public records responsive to a FOIA request. Because employee emails are subject to FOIA to the extent they are public records, regardless of whether they are stored in or sent by a private account or private device. Based on this opinion, in order to comply with FOIA, public bodies should investigate whether employees’ private email, devices and text messages contain responsive records. This means, at a minimum, public bodies must at least ask their employees if they possess responsive records.

This PAC opinion also requires public bodies to craft searches reasonably designed to find relevant documents by using multiple search terms that could be used in or related to relevant records.

Of course, every situation is different based on the facts and circumstances involved. A public body should consider seeking legal advice to ensure it has complied with its legal obligations under FOIA.

Click here for a copy of the complete binding opinion regarding the disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business and the Duty to Conduct a Reasonable Search for Responsive Records.

Personal Information Obtained From Driver’s Record Must Be Removed From FOIA Responses

Public bodies take note, new case holds newspaper may have violated law by publishing personal information obtained from driving records

By Joshua D. Herman

joshua.herman@mhtlaw.com

Newspapers often pursue legal and administrative remedies against public bodies, alleging failure to properly disclose information in response to a Freedom of Information Act (“FOIA”) request. The tables were turned in Dahlstrom v. Sun-Times Media, LLC, 2015 WL 481097, a case decided by the 7th Circuit Court of Appeals in February, 2015. In Dahlstrom, five police officers sued the Chicago Sun-Times for its disclosure of personal information that it obtained from the officers’ driver’s records.

Dahlstrom v. Sun-Times Media

This case is instructive for public bodies attempting to comply with FOIA while avoiding liability for disclosing certain information.  Dahlstrom arises from the Sun-Times’ reporting on the Chicago Police Department’s (“CPD”) murder investigation of the nephew of then-Mayor Richard M. Daley. The Sun-Times questioned the legitimacy of a lineup featuring the nephew and five CPD officers in an article titled: “Daley Nephew Biggest Guy on Scene, But Not in Lineup.” The Sun-Times published photographs of the lineup and the officers’ names, both of which were obtained from the CPD. Problematically, the Sun-Times also published information it received from the Secretary of State, including: the months and years of the officers’ births, their heights, weights, hair colors, and eye colors.

The Driver’s Privacy Protection Act (the “DPPA”), 18 U.S.C. 2721, prohibits any person from knowingly obtaining or disclosing personal information from a motor vehicle record. The Act defines “personal information” as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.”

The Sun-Times claimed the information it published from the Secretary of State was not “personal information,” and, even if it were, the DPPA violates the First Amendment by preventing the press from reporting the news.  The Seventh Circuit rejected  both of the Sun-Times’ arguments.

First, it held that the information at issue was “personal information” under the DPPA. The Court noted that, prior to enactment of the DPPA, virtually anyone could get motor vehicle records for any driver, from almost any state and for any reason, and that the purpose of the DPPA was to protect personal information from being so readily disclosed. The Court also recognized that the DPPA was meant to prevent some states from continuing a practice of selling drivers’ personal information to businesses engaged in direct marketing and solicitation.

Second, the Court held that the DPPA does not unconstitutionally restrict First Amendment rights to speech and the press. Instead, it provides a valid, content-neutral restriction imposed on a rational basis.

Based on these holdings, the Court upheld the denial of the Sun-Times’ motion to dismiss, and ordered the officers’ suit to continue.

FOIA Responses After Dahlstrom

While FOIA permits a public body to redact certain exempt information from public records before it produces them in response to a request, FOIA does not typically require redaction. For example, Section 7 of FOIA allows a municipality to redact private and personal information from a FOIA response. Section 7.5 allows redaction of “[l]aw enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code” and “[p]ersonally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.” Of course, FOIA also has a catch-all exemption that permits redaction of information “specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.”  However, none of these require the relevant information be redacted.

Dahlstrom demonstrates that disclosure of personal information obtained from drivers’ and motor vehicle records may subject a public body to liability under the DPPA. To avoid liability, public bodies must redact this type of information from their FOIA responses.

Readers may also be interested to know that the Seventh Circuit included a footnote that told the rest of the underlying story in Dahlstrom. The Cook County Circuit Court appointed a special prosecutor to investigate the matter. Daley’s nephew was subsequently indicted and charged with involuntary manslaughter, to which he pled guilty in January 2014.

In conclusion, regardless of how a public body obtains personal information from driver and motor vehicle records, the body must redact such information before producing documents in a FOIA response. If you ever question whether certain information can be obtained or should be disclosed without violating FOIA or the DPPA, please consult your attorney.

New Rules Regarding Public Comments

Requiring Speakers To State Their Home Addresses Violates The Open Meetings Act

By Richard M. Joseph

richard.joseph@mhtlaw.com

 On September 4, 2014, the Illinois Attorney General issued a binding opinion stating that a public body that required speakers to provide their home addresses prior to addressing governmental bodies violates the Illinois Open Meetings Act.  This opinion applies regardless of whether the requirement arises from custom and practice or it is imposed by an established and written rule of the public body.

Either as a result of a specific rule or ordinance of a public body, or as a result of custom and practice, it is very common for public bodies to require speakers addressing the public body to provide their full name and home address.  Public bodies often use this information to assist in accurate recordkeeping and to better evaluate the weight they should give to speakers’ comments with, perhaps, more weight being given to speakers who are taxpayers of the governmental body they seek to address, or to those who will be affected more by a particular issued based on where they live.  However, the Attorney General’s opinion mandates that public bodies stop requiring speakers to provide their home address as a prerequisite to making public comments during an open meeting.

The facts and background which led to the Attorney General’s opinion have played out many times in many governmental bodies.  The matter in this case involved the Village of Lemont, Illinois.  At the April 14, 2014, village board meeting, the mayor, prior to the public comment portion of the agenda, stated that those individuals wishing to speak would need to approach the podium and give their names and addresses.  At that meeting, Ms. Janet Hughes sought to address the village board but did not provide her address.  The mayor specifically requested that Ms. Hughes state her address and repeated that request when she attempted to begin her public comments without providing her address.  The mayor then asked the village attorney how to proceed and, after some discussion, he indicated that the board should allow Ms. Hughes to speak without providing her address. However, after the attorney’s comments, Ms. Hughes did state her home address before making her comments.  Upon a review of the videotape of the meeting, the Attorney General’s office determined that it appeared as though the request for Ms. Hughes’ address had the effect of making her feel that she needed to state her complete home address before she could provide public comments.  Subsequent to the meeting, she submitted a request for review alleging that the village board, acting through the mayor and village attorney, “pressured and forced” her to state her home address for the record prior to being permitted to provide public comment.

Section 2.06(g) of the Open Meetings Act states “any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body”.  Section 2.06(g) was added by Public Act 96-1473, effective January 1, 2011.  Prior to that time, the Open Meetings Act did not guarantee members of the public the right to address public bodies; however, public address was often permitted by custom and practice.

While Section 2.06(g) provides for the right of “any person” to address public officials, the section makes clear that this right is not without limits.  The Open Meetings Act does not, however, further define the types of rules that a public body may adopt.  Consequently, courts have generally found that public bodies may promulgate reasonable “time, place, and manner” regulations necessary to further a significant government interest.  For example, limiting public comments to time limits has been held to serve a significant governmental interest and, therefore, is permitted.

Additionally, the Act does not require a public body subject itself or others to harassment or vulgarity, and rules prohibiting such speech by the public are regularly upheld when they are reasonably enforced. Public officials can also take comfort in the fact that no portion of the Open Meetings Act, or any other law, requires that members of the public body respond to public comments or otherwise engage in a dialogue or debate with a speaker. This is true even if a member of the public demands an immediate answer to their question or concern.

The foregoing aside, the Attorney General noted that the plain language of Section 2.06(g) does not require that a person provide his or her address before he or she can speak.  Moreover, a person’s right to comment at a public meeting under Section 2.06(g) is not contingent upon where he or she resides.  Thus, the Attorney General found that requiring a speaker to disclose his or her home address before addressing the public body would have a chilling effect on individuals who wish to speak at public meetings—and, as such, is inconsistent with the Open Meetings Act.

It is interesting to note that the ordinances of the Village of Lemont regarding public comments did not specifically require speakers to provide their address.  The village indicated that this was a matter of longstanding custom and practice.  While reasonable rules limiting a person’s opportunity to address the public body may be imposed, the Illinois Attorney General’s office affirmatively determined that, whether by rule or by “custom and practice,” requiring an individual to provide a home address before addressing a public body is prohibited because it is inconsistent with the provisions of the Illinois Open Meetings Act.  The Attorney General went on to state that while rules governing public comment under Section 2.06(g) of the Open Meetings Act may assist the public body in accurate recordkeeping, the primary purpose of the rules is to accommodate a speaker’s statutory right to address a governmental body while ensuring that order and decorum are maintained.  While there are reasonable arguments on both sides as to whether or not home addresses should be provided, the language of Section 2.06(g) does not, in the Attorney General’s opinion, require a person to provide his or her complete home address as a condition to addressing the public body.

In the wake of this ruling, public bodies should review their own practices regarding public comment and revise their policies as may be necessary to comply with this new rule.

 

Personal Electronic Devices and the Freedom of Information Act

Court holds that not all communication on personal electronic devices is subject to FOIA

By Richard M. Joseph

richard.joseph@mhtlaw.com

In July, 2013, the Fourth District Appellate Court of Illinois, in the case of City of Champaign vs. Lisa Madigan (2013 WL 3704619), held that not all messages received by a public official on a personal electronic device, even though the communications may pertain to the transaction of public business, are subject to the Freedom of Information Act (“FOIA”).

As many of our readers are aware, in 2011 the Illinois Attorney General’s Office issued Public Access Opinion No. 1106 which stated that electronic records relating to the transaction of public business are “public records” and are subject to disclosure under Section 2(c) of FOIA, notwithstanding that they are generated on a public official’s private equipment and/or maintained on personal electronic accounts.  Under that binding opinion, communications to or from public officials on cell phones, iPhones, iPads, BlackBerrys, computers, or any other device used to send and receive communications by means of email, voice and/or text messages, even though the electronic device is privately owned and does not utilize an email account of the public body, was held to be subject to disclosure under FOIA.  In fact, it became commonplace, after the Attorney General’s opinion, for individuals filing FOIA requests to specify that their request includes all emails even though they may be on a personal electronic device.

It is interesting to note that Public Access Opinion No. 1106 was issued to the City of Champaign in regards to the same set of facts which gave rise to the Fourth District’s opinion; which, in effect, limits the impact of Public Access Opinion No. 1106.

In the City of Champaign case, the City sought review of a decision by the Illinois Attorney General that found that texts and emails sent or received from a city council member’s personal electronic device during public meetings, and concerning city business, were public records subject to a newspaper reporter’s FOIA request.

The issue started when the Champaign News Gazette filed a FOIA request with the City of Champaign seeking the following records:

“All electronic communications, including cell phone text messages, sent and received by members of the City Council and the Mayor during Council meetings and study sessions since (and including) May 3.  Please note that this request applies to both City-issued and personal cell phones, City-issued or personal email addresses, and Twitter accounts.”

The City, in partially denying the request, and later in court, argued that communications on privately-owned electronic devices are not subject to FOIA as they are not “public records” because individual city council members are not themselves the “public body”.

Section 2(c) of FOIA defines “public records” as follows:

“[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information, and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.”  (Emphasis added)  5 ILCS 140/2(c).

To qualify as a “public record”, the court held that the communication must (i) “pertain[ ] to the transaction of public business” and (ii) must either have been prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.  The court, in contrast to the position of the Attorney General, determined that not all communications “pertaining to the transaction of public business” are “public records”.

Once there is a determination that a communication pertains to “public business”, the next determination is whether that communication has been either prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.  Thus, the question of whether a communication which pertains to the transaction of public business is subject to FOIA turns upon the definition of a “public body”.  The Fourth District held that individual members of the city council are not themselves a “public body” under FOIA.  The court reasoned that because an individual city council member cannot, by himself or herself, conduct the business of the public body, is unable to individually convene a meeting, and is individually unable to pass ordinances or approve contracts, an individual is not a “public body” for purposes of FOIA.

Under this interpretation, an electronic message between an individual and a public official “pertaining to the transaction of public business” received outside of a city council meeting on his or her personal electronic device would not be subject to FOIA.  Such a statement, however, is not without limitation.

The court further reasoned that the communication would be subject to FOIA if it were forwarded to enough members of the public body so as to constitute a quorum for that specific body even if a personal electronic device was used.  Additionally, communications received on an electronic device provided by the public body or through an email address provided by the public body would be subject to FOIA (unless another exception applies) because such a device would be “under the control of a public body”.  Finally, even though a communication may be made or received on a personal electronic device, if the communication is between members of the public body while in a public meeting of that public body, then such communications are subject to FOIA.  This makes sense since the law should not be interpreted to allow public officials acting in their collective capacity as a public body to engage in private electronic communications which are outside the public review if they pertain to the public’s business.

The impact of the Fourth District’s opinion in City of Champaign vs. Lisa Madigan is significant.  In essence:

  • Communications to or from a public official pertaining to the transaction of public business received or sent on an electronic device provided by the public body or via an email account provided by the public body are (unless another exception applies) subject to disclosure under FOIA.
  • Communications received or sent by a public official, even though pertaining to the transaction of public business, on his or her personal electronic device and through an email account not provided by the public body are not generally subject to disclosure under FOIA.
  • Notwithstanding the above, and even if the communication is received on a personal electronic device, if the communication is forwarded to enough members of the public body so as to constitute a quorum for that specific public body, then the communication (unless another exception applies) is subject to disclosure under FOIA.
  • Finally, if public officials engage in electronic communication with each other during a public meeting and such discussion pertains to public business, the communication (unless another exception applies) is subject to disclosure under FOIA.