When Technology Outpaces the Law – The Illinois Freedom of Information Act and Personal Electronic Devices

Openness and transparency in government is critical to garnering the confidence and support of the general public. From the nation’s highest offices in the White House to the day-to-day operations in a local city hall, the operations of government are continuously under scrutiny.

Enacted on July 1, 1984, the Illinois Freedom of Information Act (“FOIA”), like the federal Freedom of Information Act, was adopted on the premise that “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees…” and to promote “transparency and accountability of public bodies at all levels of government.”

However, since its inception, technological advances have moved faster than the law has been able to keep up (the law itself acknowledges that “technology may advance at a rate that outpaces its ability to address those advances legislatively”). In recent years, devices such as smart phones have not only made information readily available, but also increased the number of ways in which parties can electronically communicate with one another (i.e. text messaging, e-mailing, and video chatting). However, the law at present only generally references “electronic communications” and makes no distinction between the various methods that one may utilize. Moreover, many entities have implemented “bring your own device” policies, requiring employees to conduct work-related business on their personal devices. As a consequence, determining whether information belongs to the public or private domain has become increasingly more difficult.

This is illustrated by a recent controversy in Chicago, which raises the question whether e-mails, pertaining to public matters but sent from private accounts or personal devices, are “public records” under FOIA. On September 24, 2015, the Chicago Tribune sued the City of Chicago Office of the Mayor and the Mayor for injunctive and declaratory relief for, amongst other things, production of “improperly held records” from “private” accounts. The Chicago Tribune asserted that such information, insofar as it pertains to public business, remains subject to FOIA. The Office of the Mayor disagrees, asserting the fact that such information was not in possession or under the control of the public body.

A similar issue was addressed in City of Champaign v. Madigan, 992 N.E.2d 629 (2013), a case in which members of the city council were found to be sending text messages to one another on their personal electronic devices during a city council meeting. Despite the private nature of the device, the crux of the court’s assessment came down to examining what constitutes the “public body.” In that case, the text messages were found to be “public record” by virtue of the fact that they were sent at a time while the public body was convened. The court, however, acknowledged “notably, section 2(a) [of FOIA] does not include the individual members of those bodies in the definition of ‘public body.’” Citing Quinn v. Stone, 570 N.E.3d 676, 677 (1991), the court further emphasized that “an individual city council member, alone, cannot conduct the business of a public body… [i]nstead, a quorum of city council members is necessary to make a binding decision.”

However, even in the event that the court does take on a FOIA question, the decisions are often narrow in scope. While basic principles can be imputed, public entities have been placed in the precarious position of having to serve as both the gatekeeper and the arbiter of such requests, careful to strike the correct balance between a host of competing interests (an employee’s right to privacy in their personal information with the public’s right to access public information), while simultaneously applying a law that admittedly can’t provide clear guidance to technological advances.

There are steps that public employers can take to help mitigate some of these issues. First and foremost, it is imperative that all public employees understand FOIA and its various implications. Second, public employers should make an ongoing effort to stay abreast of technological advances, create strong internal policies regarding the use of technology, and conduct regular training sessions regarding the same. These policies should encourage means that help segregate information in the public domain from that of the employee as a private individual. Finally, public employers should not hesitate to contact legal counsel if they have any questions, as handling these matters correctly from the beginning can help avoid potential problems down the line.

By: Laura M. Julien

For more information on the Freedom of Information Act, and how it may affect you as an employer or employee, or any other employment law issues, please contact Peter K. Wilson, Bernard K. Weiler, Jessica L. Briney, or Laura M. Julien, of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., 2111 Plum Street, Suite 201, Aurora, Illinois 60506. Telephone Number:630-801-9699, or by E-mail at: pkw@mickeywilson.com; bkw@mickeywilson.com; jlb@mickeywilson.com; and lmj@mickeywilson.com.

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