News
December, 2011
Electronic Communications Of Public Business Are Public Records
By Kent Sezer
The
Illinois Freedom of Information Act went into effect on July 1, 1984,
long before the creation of the World Wide Web, home Internet service
providers and smart phones. Therefore, public officials might be forgiven
for thinking that the FOIA has no bearing on their use of their home
computers or phones to send messages regarding public business.
Attorney General Madigan ruled in November, however, that electronic records relating to the transaction of public business are "public records" within the meaning of the FOIA, even if they are generated on private equipment and/or maintained on personal electronic accounts. In other words, public bodies are responsible for obtaining and producing the private electronic records of their officials and employees in response to FOIA requests. Of course, the emails and text messages must be otherwise subject to FOIA, but the mere fact that a public official uses his or her own equipment to create a message does not make it exempt from public disclosure.
The Illinois Open Meetings Act went into effect July 11, 1957, at a time when computers took up entire rooms. Fifty years later, in 2007, however, its provisions were amended to specifically include emails and electronic chat. Recently, the Lake County State’s Attorney’s Office ruled that the Village of Lake Zurich had violated the Open Meeting Act because its trustees were sharing emails regarding meetings. The Act defines a “meeting” as a majority of a quorum (except, if there is a five-member board, a meeting is defined to include at least three members).
In many cases, an email from one member to another will not violate the Act. However, if the email is forwarded, it is an electronic communication between three members. If, the board consists of six members, a quorum is four, and a majority of the quorum is three. So, if one member of a six-member board sends an email to another, and that email is forwarded to a third, there is a substantial risk that the email chain violates the Open Meetings Act. Of course, if the public body consists of three members or if the public body has a substantive committee that consists of three members, emails between two members concerning public business may be considered a “meeting.”
The lesson is clear. Members of public bodies must think carefully before
using electronic means to discuss public business.