Heyl Royster

 

FOIA Update: When Texts and Emails on Your Cell Phone or Tablet Become Public Records

By: Stacy E. Crabtree
scrabtree@heylroyster.com 

Before you think about sending an email or text using your cell phone or tablet during the next board meeting, you should consider a recent court decision in City of Champaign v. Madigan, 2013 IL App (4th) 120662. In July of 2013, the Fourth District Court of Appeals was faced with the question as to whether texts and emails that city council members sent and/or received during a city council meeting were public records, which would subject the communications to disclosure under the Freedom of Information Act ("FOIA") (5 ILCS 140/). In its analysis, the court attempted to simplify the definition of "public records" as provided in Section 2(c) of FOIA. The court stated that in order to qualify as a public record, a communication (1) must pertain to the transaction of public business and (2) must have been either (a) prepared by, (b) prepared for, (c) used by, (d) received by, (e) possessed by, or (f) controlled by a public body.

As for the first requirement that a communication pertain to the transaction of public business, the court determined this meant the communication must pertain to business or community interests as opposed to private affairs.

As for the second requirement, the court analyzed the meaning of "public body" and recognized that a city council member cannot on his or her own "convene a meeting, pass ordinances, or approve contracts for the city." Rather, a quorum is necessary to be considered a public body.

The court then went on to make the following distinctions, which should act as guidelines for members of any public body when communicating through cell phones or tablets:

1. A message sent to one city council member on the city council member's personal cell phone or tablet by a constituent is not considered a public record. However, if that city council member forwards the message on to the number of members that would constitute a quorum, then it is a public record subject to disclosure under FOIA. We can also interpret this to mean then that if a constituent sends the original message to the number of members that would constitute a quorum, as opposed to just one city council member, then it is a public record.

2. If a constituent sends a message to even just one city council member on that city council member's publicly issued cell phone or tablet, then the message is possessed by the public body and subject to disclosure under FOIA.

3. Once a city council meeting has convened, the members are acting in a collective capacity and therefore acting as a public body. As a result, any communications sent to city council members during the meeting are public records subject to disclosure. This is true regardless of the number of members on the communication and regardless if it is on a personally owned or public issued device.

Notably, (1) through (3) above do not apply unless the communications also pertain to the transaction of public business, as opposed to private affairs. So, if during the next board meeting you text your spouse about plans for the weekend, the text is not a public record. However, if you text even one other board member during a board meeting about something pertaining to public business (e.g. concerns about expenditures, a public contract, or current board leadership), regardless if it is on your personal cell phone or tablet, the text is subject to disclosure. If the public body purchased your cell phone or tablet for you, then anything that you send from that cell phone or tablet pertaining to public business is subject to disclosure under FOIA, regardless if it was sent during a meeting and regardless of the number of recipients.

The court then ended its opinion with the following piece of advice: "local municipalities should consider promulgating their own rules prohibiting city council members from using their personal electronic devices during city council meetings." Although some elected officials may resist such a rule, those elected officials would certainly see the benefit the next time they have to search their personal devices for any texts or emails sent during a meeting.