Court rules texts, emails sent during public meetings are public

The Open Meetings Act is quite clear as to what a public meeting is. “Meeting” means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum...

The Open Meetings Act is quite clear as to what a public meeting is.

“Meeting” means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business.

According to an appellate court ruling, if board members are communicating through text message or emailing during a board meeting, those texts and emails are subject to review by the public through the Freedom of Information Act, or FOIA.

This ruling stems from a FOIA request filed by the local Champaign/Urbana News-Gazette newspaper that was denied by the city of Champaign.

According to the News-Gazette:

The issue started in July 2011 when a News-Gazette reporter filed a Freedom of Information Act request with the city, asking for all “electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor” during meetings since May 3, 2011. A week later the city rejected the newspaper’s request, contending that the communications between council members on privately owned equipment were not public records.

The Illinois attorney general’s office later ruled, however, that texts and emails sent during public meetings are public records and subject to the Freedom of Information Act. The city appealed that ruling to the circuit court, but a judge upheld it in June 2012. Later that summer the city asked the appellate court to review the case.

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But the appellate court disagreed, ruling on July 17 that “once the individual city council members have convened a city council meeting (or ‘study session’), it can reasonably be said they are acting in their collective capacity as the ‘public body’ during the time the meeting is in session. Indeed, the city council cannot act unless it acts through its individual members during a meeting. As a result, it is not unreasonable to conclude the communications ‘pertaining to the transaction of public business,’ which are sent to and received by city council members’ personal electronic devices during a meeting are in the possession of the public body.”

An analysis of the case by the law firm Holland & Knight outlines the practical implications of the case for local governments and their residents.

Although the City of Champaign opinion has left some questions unresolved regarding whether private communications of elected officials are subject to FOIA, it also has clarified a key issue that was made unclear by the AG opinion regarding the City of Champaign. Most notably, in rejecting the AG’s reading of FOIA, the court made clear that the text messages and emails sent and received by city council members and village trustees are generally not subject to FOIA so long as the communications: (1) remain in private control, and (2) are not sent or received while the council members and trustees are at a public meeting.

Nevertheless, several exceptions to this general rule were identified by, or could be inferred from, the appellate court opinion, and should be heeded by local governments and their officials. These exceptions include the following:

• communications on the private device of a council member or trustee that are sent to or from the municipality’s server or related systems will be subject to FOIA

• communications on the private device of a council member or trustee that are sent, received or used by council members and trustees while at a public meeting may be subject to FOIA

• communications on the private device of a council member or trustees that are shared with a majority of a quorum of the council or village board may be subject to FOIA

• communications on the private device of a mayor or village president (regardless of whether sent or received during a meeting of the corporate authorities) may be subject to FOIA because, unlike individual council or board members, the mayor or president is an officer of the municipality

Communications between members of a public body during open meetings need to be public information. If a meeting is truly open to the public, members shouldn’t be allowed to conduct parts of the meeting in private. The ruling by the appellate court and the decision by the city of Champaign to forgo further appeals is a victory for increased transparency in government.