by Karl R. Ottosen and Chloe Cummings (Summer 2018)
In Ahmad v. City of Chicago, 16 CH 15152 (2017), the Circuit Court of Cook County re-examined when a public board member’s emails and text messages are subject to disclosure under the Freedom of Information Act (“FOIA”). The court followed the holding of City of Champaign v. Madigan, 2013 IL App (4th) 120662, that an individual alderman is not a public body because he alone cannot conduct the business of the public body.
Under FOIA, “all records in the custody or possession of a public body are presumed to be open to inspection or copying.” (5 ILCS 140/1.2). Further, “each public body shall make available to any person for inspection or copying all public records.” (5 ILCS 140/3). Concerns over FOIA disclosure in the electronic age are particularly relevant in society today due to the prevalence of electronic communication in the workplace. Public officials and employees alike must address the issue of whether personal communications on electronic devices are subject to FOIA disclosure.
In Ahmad v. City of Chicago, the plaintiff, Ahmad, alleged that an alderman violated FOIA by not producing records responsive to a request for non-city emails discussing Ahmad or his property located in the alderman’s ward. The defendant, City of Chicago, moved for summary judgment on the grounds that: (1) the alderman is not a public body under FOIA, and (2) messages on personal devices are not public records subject to FOIA disclosure.
In its decision, the court held that the alderman was not automatically subject to FOIA’s disclosure requirements because the definition of “public body” refers to the board or council as a whole, not to an individual board member. The court reasoned the legislature intended the term “public body” to encompass the entire group rather than one individual because the legislature used the plural form “bodies” in the FOIA definition. The term “public body” conspicuously avoids naming an individual member except for ‘the head of a public body,” such as a board president. (5 ILCS 140/2(e)). Although the General Assembly has amended FOIA on several occasions, it has never expanded the definition of public body. Since the alderman is not a public body because he alone cannot conduct the business of the public body, an email or text message sent to the personal device of a single alderman does not on its own constitute a public record.
The Ahmad court reaffirmed that a message contained on a publicly issued device is subject to FOIA. Whether an email or text message on an individual board member’s personal device is subject to FOIA depends on the context surrounding the message. Citing the City of Champaign case, the Ahmad court further recognized that the personal email or text message would constitute a public record if it were used, sent, or received during a city council meeting. Similarly, the email or text message would constitute a public record if it were used, sent, or received by a quorum of the city council. Thus, if the alderman forwarded the message received on his personal device to enough other alderman to constitute a quorum, the message would become a public record. Such messages would be subject to disclosure under FOIA because the alderman would be acting as part of public body while at a public meeting and/or while conducting public business through a quorum.
FOIA disclosure issues also affect a variety of public workers, including the employees of school districts. For example, in Schill v. Wisconsin Rapids Sch. Dist., 786 N.W.2d 177 (Wis. 2010), the Wisconsin Supreme Court held that a teacher’s personal e-mails sent on a school computer were not public records because the communications did not pertain to work-related functions. Yet, if the teachers’ personal e-mails did pertain to public business, they would constitute public records subject to possible disclosure pursuant to a FOIA request. Although Schill dealt with Wisconsin’s FOIA, the same principle applies in Illinois.
With respect to employees, any emails or texts that pertain to public business are subject to FOIA, regardless of whether they are on a personal or district-issued device. Public bodies act through their employees. Accordingly, communications pertaining to the transaction of public business that are sent or received on an employee’s personal e- mail account are “public records” under the definition of that term in section 2(c) of FOIA. The Illinois Public Access Counselor for the Office of the Attorney General (“PAC”) reached this conclusion in Opinion 16-006. In that matter, CNN filed a complaint against the Chicago Police Department (“CPD”) for failing to turn over emails pertaining to the Laquan McDonald shooting from the personal accounts of 12 named police officers. CPD did a search of its own email accounts and devices and found no records responsive to the request. CPD argued that it had no duty to search individual employees’ personal email accounts or disclose any pertinent emails discovered on those accounts. The PAC disagreed, noting that any e-mails exchanged by CPD employees concerning the shooting death of Mr. McDonald presumably pertain to those employees’ public duties. While the CPD wouldn’t have to disclose communications concerning personal matters unrelated to the transaction of public business, the PAC ordered CPD to search the personal email accounts of the 12 police officers.
Similar “public body” FOIA issues will also impact school district employees in their performance of public business. School districts should take note of the court’s increasing trend to balance individual privacy rights and public policy concerns. If school board members or employees use personal electronic devices to conduct public business of the District, the communications may be found to be public records subject to disclosure. For this reason, it is recommended that all District related electronic communications be conducted using District e-mail servers and accounts. Such a practice provides the school district the best opportunity to thoroughly search for responsive records when a FOIA request is made. School districts can further try to avoid FOIA disclosure issues by instituting clear policies for their elected officers and employees regarding use of personal electronic devices for school-related communications.
If you have any questions regarding the applicability of FOIA to your board members’ or employees’ emails and texts, please contact an Ottosen Britz attorney for assistance.