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Illinois Public Officials Beware What You Text

As published in the Califf & Harper, P.C. August 2013 Newsletter

Early in the summer of 2011, Patrick Wade, a reporter for the News Gazette of Champaign, Illinois, attended a Champaign City Council meeting. During the meeting, city council members periodically sent text messages to one another. After the council meeting, on July 15, 2011, Patrick Wade, on behalf of the News-Gazette, filed a request under the Illinois Freedom of information Act to the City of Champaign seeking:

“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 May 3.”

The News Gazette’s request for text messages from the personal cell phones of government officials has sparked a judicial battle in Illinois concerning whether text messages sent by government officials are “public records,” and therefore, subject to the Illinois Freedom of Information Act. This is a judicial battle that has already taken place in several other states. In Texas, Michigan, California, and Arkansas the courts have previously concluded text messages are “public records;” New York is considering legislation classifying text messages as public records.

The City of Champaign argues only records in the possession of a “public body” can be considered public records under the Illinois Freedom of Information Act. The City argues that because the individual council members are not themselves “public bodies,” the text messages sent from their personal phones cannot be deemed “public records.”

The News Gazette disagrees. The News Gazette argues that pursuant to section 2(c) of the Illinois Freedom of Information Act a “public record” means “all…electronic communications…pertaining to the transaction of public business, regardless of physical form or characteristics, having been (1) used by, (2) in the possession of, or (3) under the control of any public body.” Each “public body shall make available to any person… all public records.”

The News Gazette contends that if individual council members used text messages to discuss public business in their capacity as city council members, then the Champaign City Council as a “public body” was using electronic communications to transact public business. Therefore, pursuant to the Illinois Freedom of Information Act, these text messages must be considered “public records.”

The case has already been heard by both Attorney General Lisa Madigan and the Sangamon County Court. Both have agreed with the News Gazette, finding that text messages between city council members that discuss public business, even text messages sent from personal cellphones, are “public records.”

The Illinois Fourth District Appellate Court is currently considering the case, and will likely issue a decision later this year. Both parties agree, however, regardless of the Appellate Court’s ruling it is likely that the Illinois Supreme Court will have to hear this issue before this case is finally resolved.

For more information on this topic please contact Califf & Harper, P.C. by calling 309-764-8300 or 1-888-764-4999. This article is intended to provide general information regarding the topic discussed herein but is not intended to constitute individual legal advice.