FOIA Regarding Text Messages on Personal Devices

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The Illinois Freedom of Information Act was initially enacted in 1984 to allow the citizens of the state access to government at all levels. Many things have changed since 1984, including technology such as cell phones, tablets, and other personal devices that may double as conduits for public records.

The Illinois General Assembly realized that technology was continually changing faster than the legislature could amend, and explicitly intended the FOIA Act to make as many public records available as possible unless there was a reason to deny a request explicitly. 5 ILCS 140/1.

On November 15, 2011 the state’s Attorney General, Public Access Counselor (PAC), issued a “binding” opinion (Public Access Opinion No. 11-006; 2011 PAC 15916 (2011)), stating that texts or emails sent or received by a council member on their private devices during a meeting, in their public capacity, should be considered public records and therefore subject FOIA.

Two years later that decision was challenged in the Illinois Appellate Court in City of Champaign v. Madigan. The City did not dispute the fact that city council members were sending and receiving texts and email during their meetings. Rather, in dispute was whether those types of correspondence on private devices were subject to FOIA requirements. Champaign v. Madigan, 2013 IL App (4th) 120662, 992 N.E.2d 629.

In its ruling, the Appellate Court reaffirmed the foundation of the FOIA Act – that under the state Constitution, citizens are entitled to information regarding the affairs of their government, the official acts of those who represent them, and the policies of those who represent them.

The Court reviewed the FOIA Act de novo, meaning from the beginning, to come to its decision. It focused on two distinct areas of the Act. One is the types of documents or data that fall under the FOIA umbrella. The second is to whom and when FIOA applies.

Types of Documents and Data Under the FOIA Umbrella

Almost any conceivable work product can be subject to FOIA if it is shown to be under the control of a public body.

An individual city council member is not a public body, just one element of that body. Personal papers, texts, and emails of a council member are not part of the “public body” and therefore do not fail under the requirements for FOIA.

When that individual transitions into a public body, then all work products become subject to FOIA, if they fall into one of the following categories:

  1. Pertaining to the transaction of public business
  2. Prepared by a public body
  3. Prepared for a public body
  4. Used by a public body
  5. Received by a public body
  6. Possessed by a public body
  7. Controlled by a public body

An individual becomes a public body when meetings are in session and the members are functioning as a group. Also, anytime enough members are participating in a conversation, including email chains and texts, they can be considered to have a quorum, and that activity can also be considered an act of a public body.

The Illinois Appellate Court in Champaign used judicial restraint and refused to enhance the current statute, finding that the proper place for making additional requirements under the FOIA Act was in the legislature.

The Attorney General’s office has been more forward in pushing to the outer boundaries of the Act, to even include police officers’ text messages. Currently, the PAC is at odds with Illinois Appellate Court in the Champaign decision in its belief that personal devices do not assure personal privacy.

Jordan Matyas

Jordan Matyas

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Jordan Matyas is a lawyer, lobbyist, and Founder of 1818 Legal, an Illinois professional licensing defense law firm he created in 2014. With more than 18 years of experience practicing law, he represents clients in a wide range of legal matters, including professional license defense, administrative law, land use and zoning, and state, local, and municipal law.

Jordan received his Juris Doctor from the University of Illinois — Chicago School of Law and is a member of the Illinois Bar Association.