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Question of the day

Tuesday, Nov 29, 2011

* Politicians who claim exemptions from the Freedom of Information Act because they’re using private cell phones or computers were shot down by Attorney General Lisa Madigan this month

(P)lenty of officials took advantage of that loophole. Their reasoning was simple: Because the communication happened on a private cell phone or computer, it’s not in the government’s possession and thus can’t be considered a public record.

An opinion issued by the Illinois Attorney General’s Office on Nov. 15 changes that. The opinion stemmed from the city of Champaign’s denial of a reporter’s request for documents pertaining to public business, even if those documents were in private cell phone, Twitter or email accounts.

The [city of Champaign] partially denied the request by saying the documents were not in its possession. That explanation violated the intent of the Freedom of Information Act, the attorney general’s office said.

“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 in conducting the affairs of government,” wrote Michael Luke, counsel to Attorney General Lisa Madigan.

From Madigan’s summary

(T)he Attorney General noted that not requiring the city to produce the records would allow any public body to completely circumvent the requirements of FOIA by conducting public business on private equipment. Finally, the Attorney General found the city’s argument that the release of communications from private devices would have First Amendment implications to be unpersuasive. Consequently, the city was found to be in violation of the requirements of FOIA, having incorrectly denied the records request.

* Gov. Pat Quinn has a private cellphone. He has also claimed his calls are exempt from FOIA. The attorney general’s office wouldn’t specifically comment on the governor’s issue, but it sure looks to me like he’s gonna have to fork over that information now.

And Quinn isn’t alone. It’s been assumed for a long time that private cellphone use was just that: Private. Oops.

* The Question: Do you agree with this AG Madigan opinion? Take the poll and then explain your answer in comments, please.


- Posted by Rich Miller        


87 Comments
  1. - Way Way Down Here - Tuesday, Nov 29, 11 @ 10:43 am:

    If you’re trying to hide it, you’re probably doing something wrong.


  2. - CircularFiringSquad - Tuesday, Nov 29, 11 @ 10:43 am:

    Looks like a little over reach


  3. - Plutocrat03 - Tuesday, Nov 29, 11 @ 10:45 am:

    Too many activities are being hidden by obscure tactics by various officials. If the government is to be open, then it should be open.

    So far the AG’s office has been on the side of openness. This is just another paragraph in that book.


  4. - walkinfool - Tuesday, Nov 29, 11 @ 10:47 am:

    No. How on earth can one require a government entity to provide records which they don’t control or possess?
    Even politicians are allowed to have private personal phone calls.


  5. - Pot calling kettle - Tuesday, Nov 29, 11 @ 10:48 am:

    This is along the same lines as the requirements of the Open Meetings Act applying to Board members meeting for lunch to discuss what will happen at the Board meeting the next evening. It violates the intent of the law.


  6. - Southside Mentality - Tuesday, Nov 29, 11 @ 10:49 am:

    I agree with the AG to a certain extent. If it is explicitly regarding state business, then the public should have access to it. But there needs to be some line drawn so private business can remain private.


  7. - heet101 - Tuesday, Nov 29, 11 @ 10:49 am:

    No. It’s a major invasion of personal privacy. Period.


  8. - Well of course - Tuesday, Nov 29, 11 @ 10:51 am:

    I’ve always assumed this. It’s pretty obvious. What might have some people confused is the what all would have to be released. So with a public phone, the bill with all the calls would likely be a public record. For a private cell phone, the only part that would be public record would be those calls dealing with public business.

    This will get pretty dicey when someone has to look at their bill and decide the nature of the call that’s being made. I suppose a judge could look at the entire, unredacted bill, en camera, and decide what should be released.

    Emails of course are entirely different. The content pretty much is the giveaway for its public/private nature.


  9. - Way Way Down Here - Tuesday, Nov 29, 11 @ 10:53 am:

    ===Even politicians are allowed to have private personal phone calls.===

    Yes, but for the most part, nobody is interested in those. It’s those “political” calls on “public” time. Like when the guy in the passenger seat looks at you when his personal cell phone rings and says, “I’m on my lunch hour.” And it’s seven in the morning.


  10. - wordslinger - Tuesday, Nov 29, 11 @ 10:53 am:

    I voted yes.

    What’s so hard about this? You have separate devices and accounts for public and private business. Don’t mix them and you have no worries.


  11. - formerpolitico - Tuesday, Nov 29, 11 @ 10:54 am:

    How in the world can a municipality or other public agency release information which is on someone else’s cell phone? This opinion is goofy - let’s just continue to drive decent people away from public service.


  12. - Cheryl44 - Tuesday, Nov 29, 11 @ 10:55 am:

    ~Even politicians are allowed to have private personal phone calls. ~

    Yes. For their private, personal phone calls, not to conduct government business and then hide what they’re doing in our names.


  13. - amalia - Tuesday, Nov 29, 11 @ 10:58 am:

    yes, public business on private phone, which is not the place to do it. but I am troubled by what may be increased access to the private property of those who work in the public sector and hopeful that the decision has set parameters for access to the private cell phones.


  14. - Fed up - Tuesday, Nov 29, 11 @ 10:59 am:

    Did pat Quinn use his private phone when negotiating the amount of dollars the unions would have to donate to his campaign for him to promise no layoffs. I wonder if Lisa realizes daddy controls his kingdom via private cell phone.


  15. - John Bambenek - Tuesday, Nov 29, 11 @ 11:00 am:

    If it’s public business, don’t do it on a private device and expect it to remain private.

    Setting up an e-mail is cheap, getting a burn phone is cheap, problem solved.


  16. - Alexander Cut The Knot - Tuesday, Nov 29, 11 @ 11:00 am:

    Yes, but get ready for budget increases to provide cell phones to local officials for all work-related calls. If someone calls one’s private number, one should be able to direct them to call the publicly provided number so one doesn’t have to open ones personal phone bills to scrutiny even if it is to search only for calls related to public business.


  17. - RetiredStateEmployee - Tuesday, Nov 29, 11 @ 11:02 am:

    Clearly, government officials should not be allowed to conduct public business on personal devices. Then, no need to worry about privacy concerns. There is already enough loopholes in the FOIA process and the public is being ripped off.


  18. - Dirty Red - Tuesday, Nov 29, 11 @ 11:02 am:

    I reluctantly voted, “No.” This gives the AG a lot of power. Some of those personal phone calls on as personal cell phone could be spun al ot of different ways.

    That said, I think Pot Calling might be onto something. Perhaps this is an issue that should be added to the OMA: No public business on personal cell phones. However, I don’t know how in the world you could enforce that.


  19. - dupage dan - Tuesday, Nov 29, 11 @ 11:06 am:

    Simple - if it is public business it is exposed. If it is private business it is not. If you are worried - don’t conduct public business on a private device. Simple.


  20. - The Horse - Tuesday, Nov 29, 11 @ 11:09 am:

    If business emails on a personal account should be public. Does that mean that personal stuff on my work account is now private? I THINK NOT rofl

    Did it matter whether Elliot Spitzer used his own cell phone?


  21. - Oswego Willy - Tuesday, Nov 29, 11 @ 11:11 am:

    I voted “No” … another reason for someone to decide NOT to get into public service … Not every move is open to the public. I am all for sunshine, (unlimited money fully disclosed, who you directly/indirectly rent from, etc.) but for politics to work sometimes, you can’t see how the sausage is made … Speaking of sausuage …THIS is what public service will turn into …

    “Paulie hated phones. He wouldn’t have one in his house. He used to get all his calls second hand, then you’d have to call the people back from an outside phone. There were guys, that’s all they did all day long was take care of Paulie’s phone call.”

    Hmmm … scary thought … but thatis what this decision will lead to when politics is in the mix.


  22. - Ahoy - Tuesday, Nov 29, 11 @ 11:13 am:

    While I agree with her reasoning, I think it creates even more of a fuzzy area. What is FOIAable? Just “business” items on private equipment and software or all items of public officials regardless of private or public intent?

    I believe we’ve way over stepped the bounds of FOIA’s intent and we need to work on keeping what really matters within the intent and discarding some of it. FOIA is also becoming a management and budget strain on local governments.


  23. - walkinfool - Tuesday, Nov 29, 11 @ 11:14 am:

    Word, I agree with you and Cheryl. Public servants should meticulously separate private and public business,and relevant records, and most do. I also support the intent of FOIA for good government.

    The problem I fear is that the FOIA requester will demand all records only to satisfy themselves that there are in fact no public calls on the private phone. There is no requirement to show due cause for that invasion of privacy. The initial response to the FOIA request that there are no such records probably won’t suffice. And so we bring even more to the courts.


  24. - Name Withheld - Tuesday, Nov 29, 11 @ 11:19 am:

    I reluctantly voted “yes” - because the idea that public business is public, regardless of where or how it’s conducted, is valid. My concerns stem from the impact and repercussions of the opinion. Cell phones are not cheap, especially those with data plans. You issue a government cell phone to every individual that could potentially conduct public business and you’ve got a big hole in your budget. And what about the issue that people are still going to FOIA private cell phone because of the *chance* that it might contain records of public business?

    As I said - I agree with the logic of the decision, but I see some far reaching consequences from it, and not all of them are positive.


  25. - Ghost - Tuesday, Nov 29, 11 @ 11:20 am:

    I think the AG is spot on. They opinion does not requireyou to turn over the device, just any documents related to serving the public to which there is no right of privacy. Pirvate calls or doucments unrelated to public work are still private.

    Governemnt should be open and transparent. If ou conduct governement work/buisness that should be open to the public. Meeeting in sadow locations or using of site storage is not a work around.


  26. - Anon III - Tuesday, Nov 29, 11 @ 11:26 am:

    Yes. Because the request for records was a lot more focused on the public business than a lot of the above comments would suggest.

    From the AG’s Summary:

    “Summary
    “A reporter submitted a FOIA request to a municipality seeking all electronic communications, including cell phone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions for a specified period of time. The reporter noted that the request applied to both city-issued and person cellphones, email addresses, and Twitter accounts.”


  27. - Robert - Tuesday, Nov 29, 11 @ 11:32 am:

    agree. people may be trying to get around intent of law by using other devices to discuss business that should be open.


  28. - Team Sleep - Tuesday, Nov 29, 11 @ 11:38 am:

    I don’t like it. When it comes to government resources, I want an open book and transparency. But at the federal level, ethics in Congress are very clear: you must use private resources for anything non-governmental. I like that precedence. For example, MOCs and their staff are not to use Congressional vehicles for any non-official (i.e. campaign or personal) events. If a state senator wants to divert the potential problem of using an official phone or computer for campaign or personal reasons, it makes sense for that senator’s campaign committee to just spring for a dual-use smart phone or laptop. It seems odd to many that I would suggest that, but it makes more sense than coming under an ethics investigation because of a few minor phone calls or e-mails.


  29. - 47th Ward - Tuesday, Nov 29, 11 @ 11:39 am:

    This is a tough one for me because there is a lot of overlap between business and personal lives. Today’s technology is advancing faster than the law can keep up.

    I lean yes in the interest of keeping a line between public business and private business, but I suspect a lot of today’s politicians find it very hard to completely separate the two. That is going to take some time to get used to, but I guess the sooner they start, the easier it will be.

    Scenario: I call my friend, who happens to be the alderman, asking him to attend a family party I’m having. I also mention the huge pothole on my street, jokingly asking if that could be fixed before the party. Is that business or personal? Which phone should I call him on? Which e-mail? Is that subject to FOIA?


  30. - Yellow Dog Democrat - Tuesday, Nov 29, 11 @ 11:41 am:

    With all due respect to the Attorney General, with whom I generally agree (canine searches of vehicles are another exception), I think both the letter of the law and the intent of the Legislature are quite clear on this issue:

    from the Freedom of Information Act:

    This Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.

    Sec. 1.2. Presumption. All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.

    Sec. 2. Definitions. As used in this Act:
    (a) “Public body” means all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. “Public body” does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act.

    (c) “Public records” means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.

    Records in sole possession of private individuals, even if that private individual is a public employee or elected official, are not covered by FOIA.

    Anyone who doesn’t like it needs to change the law.

    Why? Well, for one thing, under the current law anyone who calls a public employee’s cell phone or home phone, as opposed to their office, has a reasonable expectation of privacy.

    Want a good example? The Chicago Tribune is tired of getting scooped by a particularly savvy blogger, so they file a FOIA request with the Illinois General Assembly and lawmakers individually for telephone, e-mail, and internet records to see who is talking to the blogger, e-mailing him, and posting on his website, which includes their personal cell phones, e-mails, and computer records.


  31. - Oswego Willy - Tuesday, Nov 29, 11 @ 11:45 am:

    ===Scenario: I call my friend, who happens to be the alderman, asking him to attend a family party I’m having. I also mention the huge pothole on my street, jokingly asking if that could be fixed before the party. Is that business or personal? Which phone should I call him on? Which e-mail? Is that subject to FOIA?===

    Tutty leaves the Cab Stand … calls the Alderman for you from a pay phone … Tutty gets your answer, walks to your house, and then YOU know …

    Too many “what ifs” are created when lines are then moved and moved again. Slippery slope is being greased with this decision.


  32. - BCross - Tuesday, Nov 29, 11 @ 11:45 am:

    Amazing. Our state is in constant turmoil over prosecutions of corrupt officials and yet a slight majority of people voting on this issue — people who are undoubtedly more informed than the average citizen — are voting in favor of a system that encourages officials to conduct government business in secret. We truly do get the government that we deserve . . . .


  33. - Team Sleep - Tuesday, Nov 29, 11 @ 11:46 am:

    Let me clarify: I don’t think an elected official and his or her staff should use campaign phones and computers and/or private phones and computers to circumvent the Open Meetings Act or hide information from the public. My points is more so centered on officials who must constantly juggle governing and campaigning.


  34. - OneMan - Tuesday, Nov 29, 11 @ 11:47 am:

    if it is government business, it’s government business.


  35. - Peter Snarker - Tuesday, Nov 29, 11 @ 11:50 am:

    Point of clarification - how would this even work practically speaking?

    A phone record - showing a call was made or a text was sent - is just that - a record of the transaction/transmission NOT of the substantive underlying conversation (whether oral on the phone or text, on, um, a text message).

    If you were the politician or government officer being FOIA’d, what would you provide in response?

    A list of phone numbers/texts called with the times and duration of the call? What would that show? No one could say whether it was private or government business.

    Even if you subpoena’d the cell phone providers they dont keep back-ups of text messages for more than about 72 hours (I think maybe one provider keeps for about 2 weeks)… the volume is overwhelming.

    Yes, I know the Detroit Mayor was busted when his texts became public - but only b/c he wasnt really texting he was using a proprietary “push” system.

    Anywho, I digress, but I cannot fathom what would be provided or how one would determine it was public vs. private.

    Anyone know?


  36. - Well of course - Tuesday, Nov 29, 11 @ 11:52 am:

    We can’t expect every elected official to have a public cell phone for public business. You really think that makes sense for someone on the Shipman Village Board?

    This is pretty much common sense, and I can’ believe that the city and the council members fought this. If the AG opined in any other way, you could pretty much toss FOIA into a trash heap.

    I don’t even think there’s much in the way of gray area. The emails and text are obvious. Phone bills, less so.


  37. - Yellow Dog Democrat - Tuesday, Nov 29, 11 @ 11:56 am:

    @OneMan -

    The words “government business” do not appear anywhere in the Freedom of Information Act.

    What does appear over-and-over are the words “public records.”

    And a private cell phone bill or e-mail account in the possession of a private individual is not a “public record” under the law.

    To make the case even clearer, an elected official who is also a candidate is not “in possession” of the cell phone or e-mail records of a political campaign.

    Under the AG’s sweeping interpretation, reporters could even request a copy of a polling report prepared for an elected official and informing her/his conduct of public business but paid for by a campaign committee. Huh?!?


  38. - Peter Snarker - Tuesday, Nov 29, 11 @ 11:56 am:

    Well of Course -

    Texts and emails may be obvious - but as for texts, no one has those once they are deleted from the device. After 72 hours (or less) not even the cell phone provider can come up with it under a subpoena.

    Phone calls - no record of what this was about, just to whom and when a call was made.

    Emails - slightly more of a “trail” here (hint: google gmail is forever), but this is a practical logistical nightmare.


  39. - Well of course - Tuesday, Nov 29, 11 @ 11:58 am:

    –Scenario: I call my friend, who happens to be the alderman, asking him to attend a family party I’m having. I also mention the huge pothole on my street, jokingly asking if that could be fixed before the party. Is that business or personal? Which phone should I call him on? Which e-mail? Is that subject to FOIA? –

    Simple, you’re not a public official, so you’re not subject to the request. He is. If he is asked to turn over phone records relating to public business, to be safe he ought to turn over a copy of his phone bill, with all nongovernmental calls crossed out and yours on it.


  40. - Nice Kid - Tuesday, Nov 29, 11 @ 11:59 am:

    An AG’s opinion is not binding on the courts; but is something a judge would take into consideration.


  41. - Peter Snarker - Tuesday, Nov 29, 11 @ 12:01 pm:

    Well of Course:

    Simple?? That’s insane.

    So a reporter’s FOIA comes in for all phone records relating to government affairs going back the last 3 years. You go to your provider and ask for 3 years of cell phone call records.

    So, sure, all you have to do is remember which call some buddy mentioned something about a pot-hole going back 3 years out of literally tens-of-thousands of communications.

    Do-able? Perhaps.

    Simple and accurate? HA!


  42. - Just Observing - Tuesday, Nov 29, 11 @ 12:03 pm:

    The AG came down on the right side. The opinion does not open the door for all personal/private information to be open, just public business conducted via private technology. Many commenters are framing this argument in the context of a Congressman or Senator, but the vast majority of our public officials run small units of government like library districts, park districts, townships, and the like — too often, both purposely and not, they run the public body from their own homes, personal e-mail addresses, etc. — there must be a way to access public business when it is conducted via private technology.


  43. - Well of course - Tuesday, Nov 29, 11 @ 12:05 pm:

    if you’ve ever done FOIA requests, you know they’re often logistical nightmares. “Give me all documents relating the flooding on main street” You search through emails for flood, flooding, main, water, etc. and do the best you can. Things are undoubtedly missed. I’m not sure how any of that changes if I use gmail other than the search there is a ton faster than my outlook.

    as to the text or anything else, if you don’t have it, you don’t have to release it. This does beg the question of retention. That perhaps is a nightmare.

    But truly, if you could shield these things by using a personal email or phone we’d see rampant abuse.


  44. - Well of course - Tuesday, Nov 29, 11 @ 12:09 pm:

    Actually Snarker, not sure that you’d even have to produce the phone records that don’t exist. But let’s say they do exist. You have them in a file cabinet. You review them, find ones that you reasonably think to be covered, and disclose them. And if you’ve forgotten, than you don’t disclose it.

    People are too hung up on the phone bills, which aren’t even the subject of this opinion. Hard to believe that’s going to be the subject of FOIAs. The text and email messages likely will be, ought to be, and are simply found by elected officials


  45. - UnableToThinkOfACatchyHandle - Tuesday, Nov 29, 11 @ 12:12 pm:

    @Well of course

    But who decides what is a governmental or nongovernmental call, the reporter or the elected official? If it is the reporter then you have to give private information to the reporter, if it is the elected official then they will probably hold alot back.

    I vote no. Too much of a slippery slope. If I pay the bills on it with my personal funds, then it is my private information.


  46. - Oswego Willy - Tuesday, Nov 29, 11 @ 12:17 pm:

    ===Simple, you’re not a public official, so you’re not subject to the request. He is. If he is asked to turn over phone records relating to public business, to be safe he ought to turn over a copy of his phone bill, with all nongovernmental calls crossed out and yours on it.===

    Ut oh … not so fast, my friend. If that “pothole” was scheduled to be filled well after the party, and … well … it is filled before that party… are you “hiding” the lobbying that occured? That pothole was moved up by what? Pure luck? A random Act of Kindness …

    So, you arbitrarily say that the phone call was “personal”? Dunno about that if you go down the disclosure road.


  47. - colt 45 - Tuesday, Nov 29, 11 @ 12:19 pm:

    so now i’ll have to pay for an additional cell phone because the cell phone that i already pay for doesn’t really belong to me. brilliant.


  48. - What planet is he from again? - Tuesday, Nov 29, 11 @ 12:20 pm:

    I voted “Yes.” It’s public business we’re talking about here, and it shouldn’t be my problem (as the requester) where the information is located. No one is forcing them to make that phone call on their personal cell phone, that’s their choice and with choices there are consequences. Yes, it might be more convenient and cheaper in the long run for them to use their own equipment, but that’s beside the point.

    Let’s take it to the absurd extreme…imagine Blago sitting in his livingroom talking State business with Rezko or Madigan or whomever. Should that be exempt? I don’t think so.


  49. - Downstate Illinois - Tuesday, Nov 29, 11 @ 12:22 pm:

    I think some of you are missing the point. The ruling was for text messages sent by members of the city council during city council meetings, not texts sent before or after meetings.

    Public meetings are to be open. Private messages by public officials to fellow public officials during public meetings were held not to be private.

    I’m not sure how this would impact Quinn’s phone though.


  50. - Skirmisher - Tuesday, Nov 29, 11 @ 12:24 pm:

    The Attorney General’s argument that public business is public business is beyond dispute. Politician’s who don’t want to have their private phone records scrutinized will simply have to refuse work related calls at that number. Incidentally, when I worked for the State, this interpretation of the law was always understood in my office. I have always wondered how Quinn could possibly argue to the contrary.


  51. - Peter Snarker - Tuesday, Nov 29, 11 @ 12:28 pm:

    Well of Course -

    I dont want to get into too-much-of-a-back-and-forth with just one other individual on this issue - but let me be clear. In THEORY I think the AG’s opinion makes all the sense in the world.

    In PRACTICE - with the exception of searchable emails (as you pointed out) - cell phone records constitute (a) a record of when a call was made and to whom and (b) when a text was sent/received. There is no substance provided or that can be checked back to do your “flood” word search. As you correctly identify - this subjects any PERSONAL phone bill that may have had a single call on it that was work-related to governmental record retention policies. Do you have your cell phone bill for the past 7 years retained? Let’s say you do, you’re on top of things. So, now, just identify which calls from almost a decade ago may have had to do with the flood and which didnt and provide the ones that did.

    It just doesnt work really in logistical practice, and that is with the person making every good faith effort to comply (ie., keeping personal records according to state retention policies, etc) rather than just saying “cant prove what any of this was about so i am going to not provide”.

    My two cents. Reasonable minds can disagree.


  52. - Pelon - Tuesday, Nov 29, 11 @ 12:36 pm:

    Yes. Government related information should be part of the public record regardless of whether it is conducted on government or private devices. The point of FOIA is to have an open government.

    A better option may be to ban the use of personal equipment to conduct state business. That would eliminate both the privacy and posession of records issues.


  53. - UnableToThinkOfACatchyHandle - Tuesday, Nov 29, 11 @ 12:38 pm:

    Probably a dumb question, but here goes…

    I thought FOIA was for any government records, not just politician’s records. If that is the case then anytime someone from say, the Forest Preserve District, takes a business call on the personal cell phone then that information would be FOIAable. Am I wrong?


  54. - formerpolitico - Tuesday, Nov 29, 11 @ 12:40 pm:

    Statute does refer to “public records”. If I were on a public board, my private email is not a public record, even if the subject-matter is public business. Federal and state Constitutional protections re privacy and search-and-seizure would trump the state law. Texting during a public meeting is quite different. And FOIA is largely self-reporting; the requestor does not get to rummage through all my emails to see which ones are government-related. I - the requestee - decide that. But some reporter now will FOIA Speaker Madigan for all his emails relating to government business. What a mess. AG likely would lose in court trying to enforce any broader application of this opinion.


  55. - vise77 - Tuesday, Nov 29, 11 @ 12:45 pm:

    Public business is public business, period. It does not matter to me that such a ruling may make life a bit harder for our elected and appointed officials. Remember, these are often the same people who have done everything they can to make it extremely difficult for reporters–to say nothing of average folks who don’t have a company lawyer behind them–to access information that is already supposed to be public. And now some of you want me to feel sorry because officials might have to use two phones or be more careful about how they conduct the public’s business. BOO HOO! No sympathy from this ex-reporter and frustrated citizen. None at all. Remember: You work for us. Yes, it can be easy to forget that simple truth (not all of the officials out there, of course, but at least a significant minority), but I don’t care.


  56. - D.P. Gumby - Tuesday, Nov 29, 11 @ 1:03 pm:

    Can’t vote because the AG’s answer, while technically correct, is practically impossible. FOIA will have to be amended. Not possible for public body to force individual to somehow retain and turn over private material retroactively absent court order based upon something that doesn’t currently exist in FOIA. So, opinion may be correct, but is unenforcable cuz the public body still doesn’t possess them. And if they don’t possess them how can they produce them??


  57. - Logic not emotion - Tuesday, Nov 29, 11 @ 1:32 pm:

    Team Sleep: … “But at the federal level, ethics in Congress are very clear: you must use private resources for anything non-governmental.”

    I need more guidance regarding that clear federal distinction… I recently read that the current POTUS has been making more Presidential visits in swing states than others…. It is obvious to most that he is using those “official” visits for campaign purposes. Who is picking up that tab and what are your thoughts on that activity?


  58. - Peter Snarker - Tuesday, Nov 29, 11 @ 1:37 pm:

    Completely agree with D.P. Gumby.

    The AG is technically making the only decision that makes sense legally and common-sense wise (why wouldnt public business conducted be FOIA-able regardless of format).

    BUT

    You are telling me that every call, text, email between Speaker Madigan and AG Madigan for the past 7 years (typical retention period) should be in a warehouse in the state archives if it said “Hey, see you at noon for Thanksgiving dinner, we’ll have to talk about that crazy Blago situation too!”?

    You called in sick to work on your cell phone as an employee and talked about a file for one minute, so that phone record should be stored in the state archives?

    Legally I get it.
    Practically speaking it’s irrelevant as compliance and enforcement is beyond impossible.


  59. - Moderate REpub - Tuesday, Nov 29, 11 @ 1:51 pm:

    Its ridiculous. But if they want my cell phone records then the State can pay my phone bill.


  60. - Wensicia - Tuesday, Nov 29, 11 @ 1:59 pm:

    If this law prevents another Blagojevich, I’m all for it. Keep your private and public business communication separate, you won’t have any problems.


  61. - Yellow Dog Democrat - Tuesday, Nov 29, 11 @ 2:03 pm:

    Lets be clear: the law makes no distinction between elected officials and public employees when it comes to FOIA.

    Do we really want to suggest that a reporter can compel a school district to produce the emails and phone records of all teachers and even janitors from their personal accounts?

    Ironies: a newspaper asked to produce phone and email records of all communications with elected officials would insist those communications were protected from public review. And AG advisory opinions are not subject to FOIA.


  62. - Anonymous - Tuesday, Nov 29, 11 @ 2:13 pm:

    Mr. Luke’s AG opinion is well reasoned.


  63. - Timmeh - Tuesday, Nov 29, 11 @ 2:36 pm:

    I’m really unsure about this. State business is one thing and that should be open to the public. But politicians should also be able to complain about their job to their friends and colleagues without it being public record. I voted yes, but there needs to be a strict scrutiny. Put the information in the hands of a judge. Let him/her sort it out.


  64. - Capital View - Tuesday, Nov 29, 11 @ 2:36 pm:

    Judy Erwin was sanctioned for using a state number for a political fund raising call back. Politicians understand that private phones are for campaign activities and private business. Numerous legislators have a private number (and phone bill) on their desk phones in their state offices in Springfield.

    Public stuff gets communicated on retrievable public phones and email systems. The rest goes onto private. Not rocket science, folks.

    By the way, the Springfield City Council was notorious for aldermen emailing each other during council meetings, rather than speaking up in public. This was wrong, and if it continues, it better be on private email systems to each other rather than the city one or FOI inquiries could be quite embarrassing…


  65. - yinn - Tuesday, Nov 29, 11 @ 2:47 pm:

    I voted yes. There’s a city council member in my town who texts and receives text messages during most meetings. We would love to know who is telling him what to say. I think the scope of the opinion is narrow enough to avoid too much slope slip.


  66. - UnableToThinkOfACatchyHandle - Tuesday, Nov 29, 11 @ 3:26 pm:

    We seem to have two groups that are talking past each other. The Yes group focuses on elected officials conducting public business on their private cell phones and says that this information should be FOIAable. For the most part I agree with this. If you’re a trustee and you are texting to another trustee during a board meeting about the public business that is being discussed, that information should be FOIAable.

    The No group points out that the way the law is written, an overly large group of information is FOIAable. The No group points out that the law doesn’t just apply to elected officials, it applies to public employees and records. So if you are, for instance, a county highway department supervisor and you have a snow emergency, and you call your subordinates in to work using your home phone and call to their cellphones, in that instance your phone records are FOIAable. That seems to be an invasion of privacy and overbroad, unless there is something I am missing.

    Like I said, I voted no. I think, the way things are now, you are potentially invading the privacy of too many people.


  67. - langhorne - Tuesday, Nov 29, 11 @ 3:26 pm:

    the logic of the AG opinion seems straightforward enuf–public business is public business regardless of the device.

    i cant remember the state, but one of our eastern states had a court case having to do with bid rigging or the like. the question came up as to whether or not the involved officials conducted business from home, on private homes and computers. the court said maybe, lets find out, so all the private phone and computer records of a big number of employees had to be searched. tho they had tapes of emails, they no longer had software to run it. it cost thousands to recreate it. so the lesson is, dont check office email from home, dont take any work related call at home, is that where we are going with this?


  68. - Yellow Dog Democrat - Tuesday, Nov 29, 11 @ 3:37 pm:

    I cant help but laugh at all the mentions of
    Blago. As if there wasnt plenty of evidwnce
    That rod was unfit prior to December 2008.

    The AGs office might be right on what a good foia law should be, but her office is completely wrong about what the current law actually says.

    It definitely plays well politically, especially with editorial boards. Until someone files a FOIA request for the AGs cell phone records.


  69. - UnableToThinkOfACatchyHandle - Tuesday, Nov 29, 11 @ 4:00 pm:

    @Langhorne

    You pointed to a court case in an eastern state. I don’t know the case, but I do know that there was a determination, by an impartial and independent magistrate or a grand jury, that there was probable cause to believe some crime had been committed. There was also probably some judicial review of the information that was to be turned over to make sure that irrelevant and private information was not turned over.

    You don’t need probable cause or a court case to FOIA information. That is kind of the point of the law. What that means though is that you can FOIA pretty much anything that public bodies do. And if some of that data is on private devices I imagine that you have to turn the data over to the public body to determine if it needs to be disclosed or not. What that means, if the data is on a private device, is that the elected official or employee has to allow the reporter or someone from the public body that was FOIA’d access to at least some of their personal information.

    I have no problem with my employer and/or reporters having access to my work phone and email, in this day and age that is sort of understood. I do have a problem with my employer and/or reporters even potentially having access to my private email and telephone.

    And it is difficult not to at least occasionally do work on your private cell phone. Everyone has had a situation where you’re at lunch,taking a day off, or driving to or from work, and you get and respond to a work-related telephone call. If that is going to open your personal devices up to scrutiny, then the state really should pay for a work related cell-phone for all employees. Somehow I don’t see that happening…


  70. - Retired Non-Union Guy - Tuesday, Nov 29, 11 @ 4:01 pm:

    Voted yes but it was a close call; I could go either way on it. The real issue is whether or not government business was conducted or if it was done on government time or property. If yes, it should be disclosed. If no, then it should not need to be disclosed. But the question comes down to who makes the decision on which side of the line it falls; not everyone is honest. So, in my opinion, the honest majority will have to pay for the sins of the corrupt minority.


  71. - Demoralized - Tuesday, Nov 29, 11 @ 4:06 pm:

    I voted no. If the state isn’t paying for my cell phone then it is none of your business what is on it. The minute you make my private phone subject to FOIA is the minute I start billing the state for it.


  72. - Boone Logan Square - Tuesday, Nov 29, 11 @ 4:07 pm:

    What American over the past quarter of a century has the reasonable expectation of privacy on a cell phone? These little radio transmitters have broadcast reams of admissible evidence to police for decades even before expanded access to data was approved with the Patriot Act. Why would elected officials have an expectation of greater privacy than their constituents?


  73. - Peter Snarker - Tuesday, Nov 29, 11 @ 4:11 pm:

    … so when the county highway supervisor calls out his crew from his cell phone in the middle of the night in an emergency and then later deletes that text, or fails to submit that phone bill to the state archives board, he has now destroyed a government record that is FOIA-able and subject to, correct me if I am wrong, criminal action and civil penalties.

    Meanwhile, those text messages the city council is sending to each other that everyone is so keen to get their hands on - folks - it wont happen. Once those are deleted off the phone they are gone forever. You still wont see it. At best, you’ll have a record on a phone bill showing the text went back and forth, but you wont even see that bc since the content doesnt exist it will be claimed to have been personal and non-FOIA-able.

    So it (a) doesnt do what the “yes” people hope it will and (b) creates a crime/civil penalty situation every time an employee doesnt not retain for 7 years the time he called the county highway crew out for snow-removal on a personal phone.


  74. - Peter Snarker - Tuesday, Nov 29, 11 @ 4:15 pm:

    Boone Logan Square -

    You couldnt be more wrong.

    Even in a criminal context, which FOIA is not at all, feds need warrants issued by a judge to listen in to those calls, or even get the cell phone records showing a call was made.

    Every American should have the expectation of privacy on their cell phone. I cannot believe you would even suggest otherwise…

    … but this is all way way off topic.

    The AG opinion said what it needed to say. And it wont do anything substantively at all. Much ado about nothing.


  75. - steve schnorf - Tuesday, Nov 29, 11 @ 4:19 pm:

    I sometimes evaluate issues by pursuing them to their logical extremes to see if they then look silly. By that approach does this ruling effectively mean that each time a member of a public body, at a public meeting, leans over and speaks quietly to the person on one side or the other of them, they have to speak up so the whole room can hear? If so, I come down on the side of “silly”.


  76. - Skeeter - Tuesday, Nov 29, 11 @ 4:37 pm:

    One thing that is missing from this discussion is the practical application. As somebody who has subpoenaed cell phone records from time to time (usually to see if a person was on the phone when the person served in front of my client’s truck) I can say it can be very tough. Cell phone companies simply don’t retain them for very long.


  77. - In 630 - Tuesday, Nov 29, 11 @ 4:38 pm:

    I think the people saying the lesson is to not do public business on private phones/computers are onto the intent of the ruling.

    I wonder if the point is, essentially, to get boards and councils to turn their phones off during meetings. Like the other commenters have brought up- there are problems of practicality that make texts only obtainable in theory. But, put a scare into people to cut out texting in meetings and dial back on the personal phone for public business stuff and you’re less likely to have to deal with the questions that flow out of the decision about what constitutes public business and where the private information exception fits into this.


  78. - transplant - Tuesday, Nov 29, 11 @ 5:31 pm:

    We recently had a local issue to which this opinion would have bearing.
    The mayor of the city was emailing city council members about city business. The emails were sent from and to personal accounts.
    Because these email threads were received by and sent from all voting members of the municipal body, there was more than a quorum involved but the actions were not publicly announced or conducted in a public forum, which is a violation of OMA.
    The public has a right to know what these public officials were discussing.


  79. - JustaJoe - Tuesday, Nov 29, 11 @ 6:32 pm:

    I reluctantly said Yes. I oppose more intrusion into individual privacy, but the sly abusers of the public trust would (and do)certainly take shady dealings onto the omnipresent personal phones….duh. However, the real answer is not more intrusion into privacy but a halt to accepting bad behavior so readily and to severely limit the political patronage that begets so much of it.


  80. - Anonymous - Tuesday, Nov 29, 11 @ 6:33 pm:

    Doesn’t this make the home phone bill of every government employee potentially FOIAable? Every teacher. Every snow plow driver. And there are several hundred thousand of them in Illinois.


  81. - Carl Nyberg - Tuesday, Nov 29, 11 @ 6:47 pm:

    If the intent of the law is to allow people to know about activities of government then it seems pretty straightforward. Public officials can’t evade the requirements of the law by getting a “private” mobile phone.


  82. - Oswego Willy - Tuesday, Nov 29, 11 @ 7:37 pm:

    ===If the intent of the law is to allow people to know about activities of government then it seems pretty straightforward. Public officials can’t evade the requirements of the law by getting a “private” mobile phone.===

    Which is why the question would be … why would ANYONE want to be in public service, since even the basic privacy rights are lost to FOIs at any time.

    There is a huge difference between transperancy and downright being nosy because you can be nosy.


  83. - Oswego Willy - Tuesday, Nov 29, 11 @ 7:59 pm:

    I got one … and there are huge holes in this whole thing, the story, and the ‘opinion’, etc., ….but I am just making a point.

    A member of the General Assembly calls one of the regestered lobbyist for the IL Med Society, and these calls continue for 3 weeks or so, sometimes, as many as 3 a day.

    There is also going on a huge Med Mal bill going through committees and someone FOIs all members of the committees cell phone records … because they can … and they see all this back and forth.

    Meantime, the bill gets killed before this member votes up or down in commmittee, but this member makes a statement favorably for the bill, and hopes it comes back in some form.

    Calls continue between the lobbyist and the member … and the other chamber picks up a form of the bill, it gets to the committee, the member speaks for the bill in committee, and it gets to the floor.

    Not once does the member mention the communications with the lobbyist, but its reported that the member has been in constant contact with the lobbyist, so much so, that the member gets hounded to explain how this contact … constant contact… was never disclosed.

    The member caves … and discloses …a terminal illness that this DOCTOR, who is a FRIEND of 20 YEARS is helping with referrals and such. The member then has to show all the medical discussions, and all the “non-politcal” calls following their discussions to hospitals and other medical centers that the “others” overlooked when combing those calls, because “sunshine” was for the lobbyist and the legislator, not the friends.

    “I thought I could ask my friend of 20 years some medical advice, quietly. Now, I guess everyone knows.”

    Not too far-fetched. But two guys talking on their private phones turns into a lobbyist and legislator conspiring. A medical condition becomes public, because integrity and private cell phones don’t exist.

    “That much talk MUST be political. Call the doctor and the legislator!”

    Transparency is great. Pandora’s Box isn’t that great. Once you start down the road, it’s difficult to turn back.

    Be very careful.


  84. - justanordinarylawyer - Tuesday, Nov 29, 11 @ 9:24 pm:

    I am a state employee. I make it very clear that I am NOT to be called on my private phone (cell or home) to discuss work business. If the state wishes me to conduct business either during work hours or after work hours via cell phone, they will have to provide (and pay for) a cell phone. No FOIA problems.


  85. - Well of course - Tuesday, Nov 29, 11 @ 9:33 pm:

    Plenty of wiggle room in the law to address many of the concerns
    (5 ILCS 140/7)(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. “Unwarranted invasion of personal privacy” means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.


  86. - UnableToThinkOfACatchyHandle - Tuesday, Nov 29, 11 @ 10:13 pm:

    @Well of course

    Who decides if disclosing the information is an invasion of privacy? Does the individual decide what records to give to the state, or does the state get all of their records and get to look through all of those records and then decide what information to release? Both ways are problematic.


  87. - Anonymous - Wednesday, Nov 30, 11 @ 12:03 am:

    A call, text, or tweet made by a public figure on his or her privately paid for cell phone is a private, not public communication. That’s akin to saying every communication by a public official is a public communication. It isn’t.


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