Is information on privately-owned electronic devices subject to FOIA?—What Public Access Binding Opinion No. 11-006 means to you and your government clients

Public officials are continuously advised by their counsel to be extremely mindful of potential pitfalls when they send out documents or otherwise communicate via electronic means. In years past, the concern was typically centered on potential violations of the Open Meetings Act, especially when simple, informational e-mails could lead to discussion of public business between everyone receiving the e-mail. For the most part, the Freedom of Information Act (“FOIA”) was never a major concern, as the information disseminated was likely already included in the definition of “public records.” However, a new binding opinion from the Illinois Attorney General’s Public Access Bureau (“Opinion 11-006”) will change that past practice. Opinion 11-006 firmly establishes that electronic communications, whether shared on publicly or privately-owned devices, can be considered “public records” and therefore, may be subject to FOIA.

Background

What became Opinion 11-006 was born on July 15, 2011, when a reporter for The News Gazette of Champaign filed a request under FOIA to the City of Champaign seeking:

[a]ll electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3.1

The requester further specified he was seeking information from “both city-issued and personal cellphones…e-mail addresses and Twitter accounts.”

The City provided the requester with documentation that was held by in house or by other subsidiary public bodies. The documents provided were further redacted to remove personal e-mail addresses and other personal identifiers under 5 ILCS 140/7(1)(b).

The City also partially denied the request, maintaining that “[p]rivate citizen’s communications to the Council member’s or the Mayor’s privately owned electronic devices is not within the scope of the Freedom of Information Act.”

To support its position (and as more fully discussed below), the City supplied the requester with a memorandum from counsel advising the Illinois Appellate Court has held in a similar fashion in Quinn v. Stone. Quinn, 211 Ill.App.3d 809 (1st Dist. 1991), (where the plaintiff sued an individual alderman for records related to travel expenditures and the Court held, among other things, only a public body is subject to FOIA, and not a public official).

During the course of this dispute, however, the City further conceded that if the records on the private devices were actually in the City’s possession, they would be subject to FOIA.

After reviewing the City’s response to his request, the reporter sought Public Access Counselor review. The requester maintained the privately held information should be disclosed, as, for example, any communication between or used by members of a public body “in their role as a member of that public body during an ongoing public meeting—should be public records.”

Review by the Public Access Counselor

The Attorney General’s Office issued its opinion on November 15, 2011, after requesting an appropriate extension to file its decision. Right away, we learned that the Attorney General’s review “concern[ed] perhaps the most fundamental issue in interpreting the Freedom of Information Act—What is a public record?” Specifically, Opinion 11-006 was drafted to answer the question: do communications withheld by the City coming from electronic devices owned by officials and not by the City fall into the definition of a “public record?”

However, there were two provisions of FOIA the Attorney General Office asked the City (and quite frankly, all of us) to consider when determining whether or not a record should be disclosed under FOIA, including those contained on privately-held devices.

The first provision is perhaps one of the most obvious and important parts of FOIA, but yet one of the most overlooked - the very beginning of the Act itself - Section 1 (5 ILCS 140/1). It is in this Section we are reminded of the General Assembly’s intent under FOIA in that any:

[r]estraints on access to information, to the extent permitted by this Act, are limited exceptions to the principle that the people of this State have a right to full disclosure of information relating to the decisions, policies, procedures, rules standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed in accordance with this principle. (emphasis added in Opinion).

Section 1 provides this broad overview and instills in us the concept that we must almost always assume any document arguably responsive to a FOIA request will need to be disclosed. The only qualifier to this assumption will be to establish whether or not the document(s) are “public records,” which leads us to the second important provision of FOIA—that which defines the phrase “public records” found at 5 ILCS 140/2(c).

5 ILCS 140/2(c) states in relevant part:

[a]ll records * * * 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 body.

In its review, the Attorney General’s Office concluded the City simply focused on the phrase “in the possession of,” and did not consider the statute as a whole. Specifically, Opinion 11-006 stated that records in a public body’s possession “are only one class of records defined in FOIA.”

In what is perhaps the most important line of the analysis, we learned:

Whether information is a “public record” is not determined by where, how, or on what device that record was created; rather the question is whether that record was prepared by or used by one or more members of a public body in conducting the affairs of government. (Emphasis added).

With this in mind, the Attorney General’s Office came to the conclusion that any request for a public record, even those contained on privately-owned devices, should be reviewed with a “focus…on the creation of the record itself, and how it was used.” As an example, it was suggested that if a member of a public body sends or receives communications on personal devices during meetings or sessions (or whatever specified in a FOIA request), and the communications relate to public business, they are “public records” under FOIA.

Opinion 11-006 did not simply end there. The Attorney General’s Office did further consider other arguments put forth by the City at various points during the dispute (in addition to the original argument that the documents were not in its possession).

First, Opinion 11-006 noted the City’s reliance on the Quinn decision was “undermined by the facts of that case.” The City argued the Mayor and city council were not public bodies and therefore, consistent with Quinn, the communications received from privately-owned devices are not subject to FOIA.

However, the Attorney General’s Office asserted Opinion 11-006 is “completely consistent” with the Appellate Court’s ruling. In essence, review of the facts in Quinn that demonstrate a proper action under FOIA was to direct a request to a public body is consistent with the facts here—“that the records of the City officials in question pertaining to the transaction of public business are not records of the individual officers but records of the city.” Therefore, both decisions can be read together to show public records must be made available if required of a public body (no matter where they originate).

The City’s last argument was that a decision to provide all of this privately-held information would have “First Amendment implications well beyond this statute.” However, it was determined this opinion was not supported by any evidence demonstrating the First Amendment would be implicated when records at issue in a request “clearly relate to the transaction of public business.” It was advised that this clear relation to public business is exactly what will protect personal business and/or political issues from being released. Earlier in Opinion 11-006, it was even noted that the Attorney General’s Office “strongly agree[d]” with the City that “messages regarding ‘personal business meetings or family matters’ do not fall within the definition of ‘public records’” and do not need to be produced.

Going Forward

Opinion 11-006 ends by giving us all guidance as to how we are to handle similar requests in the future by summarizing:

A public body that receives a FOIA request for records generated on private equipment could clearly distinguish between communications that are either political in nature or simply mention public business are subject to disclosure under the requirements of FOIA, and any applicable FOIA exemptions can be asserted with respect to those records.

However, there are now many other issues we must consider and work with public bodies to properly comply with FOIA (and other areas of the Illinois law). These issues include, but are in no way limited, to:

1. Who now has the obligation to store and/or maintain public records originating from privately-owned devices?

Opinion 11-006 defined private electronic devices to include “cell phones, iphones, ipads, blackberries, computers, or any other device used to send and receive communications by means of e-mail, voice and/or text messages.”

Almost all of us have at least one of these devices. So does a public official forward everything (text message strings, voicemails, facebook and/or twitter messages) to the FOIA officer for storage?

2. Who determines what is a public record?

If a public official is now holding information in his or her device, is the obligation on that official to determine whether or not its substance is directly related to the transaction of public business and therefore must be disclosed under FOIA? Do we need some sort of “fail safe” provision where a public body has to review everything on everyone’s device before they are allowed to delete them?

If we take a step back from here, does this mean someone is now responsible for checking every piece of data forwarded to the public body to ensure it relates to the transaction of public business or do we allow each official that right to make that determination (especially if their private business is included on certain messages—essentially creating a reverse-FOIA scenario: a chance to redact their private data and send the rest to the public body for storage)?

3. What do we do if a public official loses or otherwise has to replace a device?

While this is primarily a concern for text messages and voicemail, is a public official now required to go to his wireless provider and pay for recovery of this data, if possible?

We also cannot overlook the implications of the potential destruction of public records (whether intentional or not) without following the appropriate standards of the Local Records Act (50 ILCS 205/) if lost data is not retrievable.

It is not clear if any of these problems are solved if we issue public officials city-owned devices, as they would still likely have their own devices to handle political matters or possibly have a third through another employer. Opinion 11-006 makes clear it does not matter on what device a record is created if it involves transactions of the public’s business, it is now a public record. ■

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1. All direct citations, except where otherwise noted, are taken from sources cited in Opinion 11-006 or directly cite the opinion itself.

This article was originally published in the December 2011 issue of the ISBA’s Local Government Law newsletter, Vol. 48, No. 4.