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March/April 2012

‘Business content’ triggers FOIA, not who owns device
by Kimberly Small

Kimberly Small, IASB assistant general counsel, answers the question for this issue.

Question:  I use my iPhone® all of the time. Sometimes, I generate content or receive information on it that relates to my duties as a board member. Is it true that the FOIA officer for the board on which I am seated may search my phone and/or release content or information from it pursuant to a Freedom of Information Act (FOIA) request?

Answer : Conducting public business on a personal electronic account or device is subject to disclosure under the FOIA. If the content or information on your phone is a public record under the FOIA, who owns the account or device is not relevant. Nor is it relevant where, how or on what account or device the record is created or located. Rather, the Illinois Attorney General, in Public Access Opinion No.11-006, has outlined that the key question is: Was the requested record prepared by or used by one or more members of the public body in conducting its affairs?

If the answer is yes, then it is a public record and your district’s FOIA officer may need access to your phone to respond to a FOIA request, even though your phone belongs to you, not the district. This is true for other personal accounts and devices as well, e.g., e-mail from personal accounts, social media platforms (Twitter, Facebook, etc.), and other platforms yet to be invented.

In addition to FOIA disclosure, destruction prohibitions in Illinois law and rules for discovery in litigation impose more legal obligations on the records stored on your phone that pertain to your duties as a board member.

The Local Records Act prohibits destruction or deletion of any public record without written approval of the Local Records Commission. Public record, for purposes of the Local Records Act, is much broader than the definition in FOIA. Deleting a record without permission of the Local Records Commission violates the Local Records Act.

There are also rules for litigation that impose legal obligations that apply to district records when lawsuits are filed or may be filed against the district. These obligations start when your district becomes aware of a potential lawsuit. At that time, both parties must preserve all electronically stored material and messages concerning the subject matter at issue, regardless of where the information is stored. This is called a litigation hold. If the information is deleted or the board member was not aware of the litigation hold and deleted items that were subject to the hold, the court may award sanctions against your board and district, e.g., money punishments and possibly an adverse judgment.

Many attorneys in the field discourage school board members from the use of their private e-mail accounts and personal electronic devices for the dissemination of public records. Best practice suggests that all communications containing district records be transmitted through district-provided accounts.

Your board and superintendent should discuss with the board attorney and agree on how your district will handle the records created and stored by board members on their private e-mail accounts and personal electronic devices.   Use the board attorney to educate board members further about records retention and disclosure and the preferred best practices for your district. An agreed practice should then be reflected in the board policy ma nual.

Public record, under the FOIA, means: “all records, reports, forms, writings, letters, memoranda, … 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.”

Public record , under the Local Records Act, has a more broad definition than FOIA.

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