Ill. judge rules officials' tweets, texts, and e-mail messages about public business are public records

Electronic communications — specifically tweets, text and e-mail messages — between city officials discussing public business are subject to the Illinois Freedom of Information Act, even if they were sent from personal cellphones and accounts, a state circuit judge ruled.

Sangamon County Circuit Judge John Schmidt issued an oral ruling Monday ordering the Champaign City Council to turn over all such electronic messages to a local newspaper, The News-Gazette, affirming an earlier opinion issued by the Illinois attorney general’s office.

City Attorney Fred Stavins said officials are deliberating whether to appeal.

"We didn't think the Freedom of Information Act covered that kind of stuff," he said. "There is not that much law in that area."

Last July, News-Gazette reporter Patrick Wade filed a request for all 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.” Wade's request included messages on city-issued cellphones, e-mail addresses and Twitter accounts, as well as personal ones.

The city disclosed 24 pages of documents — with personal e-mail addresses and phone numbers redacted — and withheld the rest, claiming they were not public records because they were from officials' personal e-mail accounts and phones.

Wade asked the attorney general's office to review the city's decision not to disclose the requested materials in full. The office issued its opinion in November 2011, declaring the city's actions to be “clearly inconsistent with” the state's FOIA.

“If the mayor and/or a city council member sent or received communications on personal electronic devices during city council meetings or study sessions, as specified in Mr. Wade's request, and those communications pertain to the transaction of public business, then those communications are ‘public records’ subject to the requirement of FOIA,” Attorney General Lisa Madigan wrote in the opinion.

The state FOIA defines "public records" as all materials "pertaining to the transaction of public business, regardless of physical form . . . having been or being used by . . . any public body."

According to the opinion, the city incorrectly told Wade that private citizens' communications to the city officials' private electronic devices did not fall within the scope of the law, as they were "not public records of public bodies.”

The city “ignore[d] the plain language of the statute" and made an argument that, if supported by the court, "would allow any public body or public official to completely circumvent the requirements of FOIA by conducting their public business on personal equipment," according to the opinion.

"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 conducting the affairs of government,” the opinion stated.

News-Gazette attorney Esther Seitz said she wasn't surprised by the ruling.

“We don’t think that public officials should be able to transact public business on their personal devices and thereby be exempt from the reach of the Sunshine Law,” she said. “FOIA is supposed to be broadly construed in favor of access . . . and in light of evolving technology.”

Seitz said the decision is an important one because “this case resolved an issue that had not been expressly addressed in Illinois courts."

Related Reporters Committee resources:

· Illinois – Open Government Guide: C. Does the existence of information in electronic format affect its openness?