Breaking Up with Your Smartphone

Now That You are Elected, Your Personal Phone Could Become Public Business

By Scott Uhler and Mallory Milluzzi

In 2021, most of us are “connected” for most of our waking hours. We can be (and are) contacted by friends and colleagues at work by text, email, or social media at all times. The lines between “work hours” and personal time have been blurred, if not erased.
 
For public officials, conducting public business is no longer neatly segregated into a 9-to-5 workday, or the time devoted to board meetings. Public business can be conducted 24/7 with the press of a button or reading a screen. Public officials therefore must be wary that texting or emailing during personal time on a personal cellphone is not necessarily “personal.” Those texts or emails may in fact be “public,” accessible by anyone in the community. Does this mean you should disconnect? Or break up with your smartphone?
 
An Illinois court has recently issued a decision clarifying and expanding just such disclosure obligations of public officials of texts and emails involving public business on their personal cellphones.

Prior Judicial Interpretation of Limited Disclosure Duties from Personal Cellphones (2013)
In 2013, an Illinois appellate court in City of Champaign v Madigan declared select electronic messages “privately” sent by public officials using their personal cellphones, because the messages were sent during the participation of those same elected officials in an open public meeting while conducting public business, to be records of the city and subject to the Freedom of Information Act (FOIA). However, the court did not make all use of personal cellphones and electronic devices subject to possible FOIA requests/searches. It appeared to limit the disclosure obligations under FOIA by finding that generally the actions of individual public officials on their personal cellphones or laptops were not subject to FOIA because they did not constitute use, preparation, or possession of records by a “public body,” i.e. an individual public official is not a public body.
 
Illinois Attorney General Finds Expanded Obligation to Disclose Personal Cellphone Records (2016)
As our use of new technologies for communication has continued to expand and advance, the legal doctrines related to public access to the records of government officials have similarly expanded. In 2016, the Public Access Counselor (PAC) reached a different conclusion than the City of Champaign court in considering a request for records to the Chicago Police Department (CPD). The PAC concluded that even though an email by a public employee on a personal cellphone was not “prepared by or for,” nor in possession of or maintained by a public body, records of public employees regarding public business, created on the employee’s personal cellphone, could be subject to FOIA. The PAC reasoned that exempting such records from FOIA “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….” 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.
 
The PAC further noted that the search for responsive records by the CPD was inadequate in that no search was even made of personal email accounts, although a specific request was made for those 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. The critical question of how to address the logistics of properly and lawfully examining or searching the personal electronic devices of public employees and officials, and sorting through personal information and communications, to identify and retrieve relevant records regarding “public business” was not addressed.
 
The Illinois courts have now further clarified certain of these issues, including that communications pertaining to public business within officials’ personal text messages and email accounts are public records subject to FOIA.
 
Current Judicial Interpretation of Expanded Disclosure Duties from Personal Cellphones (2020)
In 2020, an Illinois appellate court once again visited the issue of the possible obligations of public officials to produce records from their personal devices. In that matter, the Better Government Association (BGA) filed FOIA record requests for all communications among and between certain Chicago Public Health officials, the Mayor’s Office, and Chicago Public School officials (Defendants), related to lead (in drinking water) and the Chicago Public Schools. The Court was faced with two principal issues: (1) Were the records being sought covered by FOIA; and (2) If covered by FOIA, what constitutes a proper “search” of personal devices in response to a FOIA request?
 
1: Are The Records On Personal Devices Subject To FOIA?
Relying on the prior appellate decision in City of Champaign, the Defendants took the position that they were not required to search their officials’ personal accounts because the communications in those accounts are not subject to FOIA, and that they had no ability to search those accounts for responsive records. Defendants contend that their officials’ personal emails and text messages are not public records because they were neither prepared for, used by, received by, possessed by, nor controlled by a public body, as required by FOIA. Here, Defendants note that under the City of Champaign decision they, as officials, are not considered to be “public bodies” and that the communications requested by the BGA lack the requisite nexus to a public body. The Court agreed that the Defendants’ individual officials are not themselves public bodies under FOIA, but read the City of Champaign holding to be limited to the actions of an elected board when it acts as a public body, meaning there needed to be a gathering of a quorum of the elected members in order to engage in “public business.”
 
The Court found it was sufficient that the communications requested by the BGA were either prepared for, used by, received by, or in the possession of a public body and reasoned that through their individual officials named in the BGA FOIA request, the Defendants can function as public bodies without the need for an official public meeting. The Court cited to two of the Defendants’ officials, the mayor of Chicago and the director of the Chicago Department of Public Health, as examples of officials authorized to make decisions that could bind their public body and the emails and text messages from those officials’ personal accounts are considered to be “in the possession of” a public body within the meaning of FOIA. The Court also presumed that many such communications are prepared for or eventually used by the public body. The Court held therefore that the communications that pertain to public business from the named officials’ personal accounts are subject to FOIA.
 
The Court emphasized that its conclusions were consistent with the clear intent of the General Assembly that FOIA be interpreted to promote the public’s access to information, “even when applied in situations where advances in communication technology may outpace the terms of FOIA.” (5 ILCS 140/1 and West 2016). Illinois FOIA states “To the extent that this Act may not expressly apply to those technological advances, this Act should nonetheless be interpreted to further the declared policy of this Act that public records shall be made available upon request except when denial of access furthers the public policy underlying a specific exemption.”
 
As noted above in Illinois Public Access Opinion 16-006 (August 9, 2016), the Illinois Attorney General previously reached the conclusion that the scope of records subject to FOIA is even broader and that employee emails generally that pertain to public business and are that are sent or received on private email accounts can be considered “public records” under FOIA and must be searched and produced.
 
2: What Constitutes a Proper “Search” of Personal Devices in Response to a FOIA Request?
The Court found that FOIA would only require Defendants to ask a limited number of officials whether their personal accounts contain records responsive to the FOIA request and if an official has not used a personal device for public business they can simply state it. The Court was clear that communications concerning personal matters that are unrelated to the transaction of public business are not public records under FOIA. When a public body determines that there are no records responsive to a request, it bears the initial burden of demonstrating the adequacy of its search. The FOIA requester does not have an obligation to request that specific devices be searched. As for what qualifies as an adequate search under FOIA, the Court stated the reasonableness of the search depends on the facts of each case, and that the basic issue is not if relevant documents might exist, but rather is whether the search conducted by the public body was reasonably calculated to discover the requested documents.
 
(Relative to a judicial appeal, the Court stated that a public body satisfies this burden by submitting reasonably detailed affidavits setting forth the type of search it performed and averring that all locations likely to contain responsive records were searched. The Court found that only once the agency has submitted such an affidavit does the burden shift to the requester to produce countervailing evidence that the search was not adequate.)
 
A public body must conduct a search that is reasonably calculated to locate all responsive records. The public body always bears the burden to establish the adequacy of its search.
 
The requirement to consider records on personal devices does not change the requirements for making a FOIA request. A proper FOIA request must provide a reasonable description of the documents sought so that the public body is able to retrieve those documents and “[a] request to inspect or copy must reasonably identify a public record and not general data, information, or statistics. A request reasonably describes records if “the agency is able to determine precisely what records are being requested,” but a person making a FOIA request needs only to identify the records being requested by describing their contents.
 
Need For Policies and Procedures
When a person is elected to a school board, they do not begin to carry two cellphones or laptops or tablets: one for school business and one for personal matters. Almost everyone carries one cellphone and mixes all communications — personal and business — in a continuous stream of texts, emails, and social media use.
 
The above judicial decisions and the opinion of the Public Access Counselor serve to emphasize 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.
 
See IASB sample policies: Policy 2:250 Access to District Public Records, Policy 2:140 Communications To and From the Board, and Policy Exhibit 2:140-E Guidance for Board Member Communications, Including Email Use. 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 are available via the website of Klein, Thorpe, and Jenkins, Ltd. (see resources list).
 
The judicial decisions and PAC opinion also reiterate 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.
 
Scott Uhler and Mallory Milluzzi are attorneys with Klein, Thorpe, and Jenkins, Ltd. and members of the Illinois Council of School Attorneys. Resources and references associated with this article are available at bit.ly/JA21-Jres.