Scott F. Uhler is a partner with Klein, Thorpe and Jenkins, Ltd. in Chicago.
Now that you are elected, is your smartphone or other personal electronic device still yours?
Prior doctrine — Limited disclosure required by public officials under FOIA
In 2013, the Illinois Appellate Court wrestled with the difficult issue of whether certain communications made on the private electronic devices of public officials can be subject to required disclosure under the Freedom of Information Act (FOIA). In City of Champaign v. Madison in 2013, elected officials were observed using their smartphones at a public meeting to communicate with one another. The court found such communications could be subject to disclosure if they pertained to public business and were “prepared by or 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 found that if the communications on the cellphones did involve public business, that generally the actions of individual public officials did not constitute use, preparation, or possession by a “public body,” i.e. an individual public official is not a public body. In that particular situation however, the court determined that the city council members — while participating in a public meeting — were acting as the public body and therefore covered by FOIA. Individual elected city council members there were acting in their collective capacity as the “public body” while their regular public meeting was being held. The court made it clear that regardless of how or when such communications were made, purely personal communications with no bearing on public business are not subject to FOIA. The court’s decision therefore appeared to establish the following legal principles under FOIA:
The discussion of public business by or to elected board members on their personal electronic devices must be disclosed under FOIA if the communication goes to a majority of a quorum of the public body, is sent during a public meeting, or if the e-message is forwarded to a device or email system owned or controlled by the public body.
That discussion of public business by public employees on their personal electronic devices would not be subject to FOIA (since a public employee cannot be “public body”).
The scope of disclosure expands — Can public records be created on personal cellphones?
A more recent decision of the Public Access Counselor (PAC) of the Office of the Illinois Attorney General once again calls into question the rules related to the use of electronic communications by public officials and employees, and the scope of required disclosure, even on personal cell phones, tablets, and laptops. On August 9, 2016, the PAC issued binding opinion 16-006 in response to a request for review alleging a violation of FOIA by the Chicago Police Department (CPD). A news outlet submitted a FOIA request to the CPD seeking “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 named CPD officers for certain date ranges. In preparing a response to the FOIA request, the CPD FOIA officer searched the CPD email system for the named officers and the requested periods and produced the responsive records. However, CPD did not conduct a search of personal email accounts for any responsive records, asserting that emails on such accounts are not public records. The CPD argued (under the rules seemingly established in City of Champaign v Madigan) that any such communications sent from personal email accounts did not fall within FOIA because they were not “prepared by or for” a public body. CPD also argued that because they were not stored on a city server, they could not be “used by” or in the possession or under the control of a public body.
The PAC, however, disagreed, concluding that such a finding “would undercut the principle that public bodies act through their employees, by excluding from the definition of ‘public records’ communications sent or received by employees of a public body on personal devices or accounts, regardless of whether the communications pertain to the transaction of public business.” The PAC held that the proper inquiry must focus on the content of the communication (does it pertain to public business) and not the method by which it was transmitted.
Public employees’ personal email accounts can be subject to FOIA
The PAC reasoned that interpreting the definition of “public records” under FOIA to exclude communications relating to the transaction of public business which were sent from or received on the personal email or devices of public officials and employees would be contrary to the basic intent under FOIA to ensure public access to full and thorough information regarding governmental affairs. The PAC concluded that such an interpretation would yield absurd results by allowing public officials or employees to circumvent FOIA and hide information from the public about how they conduct their public duties simply by using personal electronic devices to communicate.
As a result, the PAC held that any communications pertaining to the transaction of public business that were sent or received on employees’ personal email accounts are “public records” under FOIA and should be produced subject to any other possible statutory exemptions. The PAC emphasized that the mere fact that a personal email account is used to send or receive public records does not transform all communications sent or received on that account into public records that must be disclosed in accordance with FOIA, in particular such records have no connection to the transaction of public business. Those communications pertaining to the transaction of public business, however, that were sent or received on the CPD employees’ personal email accounts, are “public records” under the definition of that term in FOIA.
The PAC further noted that CPD’s search for responsive records was inadequate in that no search was even made of personal email accounts, although a specific request was made for the same. The PAC found the CPD’s concern about privacy concerns unfounded since the search itself was inadequate, as CPD took no steps at all to ascertain whether the employees named in the FOIA might have any responsive records. While the PAC did not answer precisely what the required “search” of a personal cellphone, laptop or tablet would look like, it made clear that a public body cannot simply decline to search for emails contained on personal accounts, if they are relevant to the request.
Need for policies and procedures
This binding PAC opinion emphasizes the need for clear policies and training for public officials and employees about proper procedures for conducting public business by email or text, particularly when using personal electronic devices or email. It also reiterates the need for public bodies to conduct thorough and targeted searches for responsive documents when processing FOIA requests, which may include personal devices or accounts.
IASB’s Policy Reference Manual: 2:250 Access to District Public Records, 2:140 Communications To and From the Board and 2:140-E Exhibit — Guidance for Board Member Communications, Including Email Use
City of Champaign v. Madigan , 2013 IL App (4th) 120662 is available at http://www.illinoiscourts.gov/Opinions/AppellateCourt/2013/4thDistrict/4120662.pdf
Sample Policies: Sample policies from the Office of the Attorney General addressing electronic file management, prohibiting the use of private email accounts for official or work-related business and prohibiting the use of text messaging for official business are available for reference at http://www.ktjlaw.com/457AE3/assets/files/documents/375928_1.pdf
A copy of the full PAC Decision 16-006 is available at the following link: http://foia.ilattorneygeneral.net/pdf/opinions/2016/16-006.pdf