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* Sangamon County Judge John Schmidt has issued a landmark ruling against Champaign’s attempt to keep secret electronic communications sent by city council members on their private phones during public meetings…

In July 2011, News-Gazette reporter Patrick Wade asked the city 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.”

The city originally provided The News-Gazette with 24 pages of emails generated during city council meetings. But officials withheld the remainder of the documents, arguing that the correspondence is not public record if it exists on council members’ personal accounts and cellphones.

But last November, the [attorney general’s] public access counselor ruled that all communications regarding city business on officials’ personal devices is subject to public disclosure.

In Monday’s arguments before Schmidt, Laura Hall, an assistant city attorney for Champaign, contended the electronic messages were not public records because an individual city council member could not be construed as the entire council.

“You are not a public body by yourself,” she said.

But Esther Seitz, arguing for The News-Gazette, said that “a public body acts through its individual members.”

And Laura Bautista, an assistant attorney general, said that even if council members used their own cellphones to send an electronic message, you “can’t use a private device to shield yourself from your communication becoming public.”

Gov. Pat Quinn uses his private cellphone to conduct business, and has maintained that those communications are exempt from state FOIA laws. Mayor Rahm Emanuel has also refused to turn over his text messages related to city contracts. Extending Schmidt’s logic outward, far less info could be shielded from public view.

* The Question: Do you agree with Judge Schmidt’s decision? Take the poll and then explain your answer in comments, please. Thanks.

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posted by Rich Miller
Tuesday, Jun 12, 12 @ 11:20 am

Comments

Yes, the public deserves to know the discussions going on to determine public policy. Elected officials are ignoring the law by doing public business and attempting to claim it is private because they pay the cell phone bill.

Comment by Fed up Tuesday, Jun 12, 12 @ 11:29 am
This ruling runs against common sense. A persons privately paid for cell phone is NOT public record. If the cell phone is being paid for with “public funds” that is a different matter. This is an over reach. Politicians must be accountable, but they are also citizens, and should have the right to shield the communications that go on through their privately paid for devices.

Comment by John A Logan Tuesday, Jun 12, 12 @ 11:31 am
Also, whom is going to determine what text messages are dealing with public policy. A text from one county official to another, which says “is your wife coming to the meeting?” could or could not be dealing with public policy. If you want access to government officials cell phones, then pay for them.

Comment by John A Logan Tuesday, Jun 12, 12 @ 11:33 am
I voted No.

It may be good public policy, but a plain reading of the Freedom of Information Act makes it pretty clear that the definition of “public body” to which the Act applies does not include individual elected officials.

You can read FOIA here.

If, as the News Gazette and the Attorney General argue, the “head of a public body” has the authority to release records not only held by the City Council, but by individual elected City Council members, you create a politically untenable situation.

Imagine, for example, the House Speaker having the power to release the cell phone and e-mail records of all GOP House members. After reviewing them of course.

Or the Chief Judge of a Circuit Court having the power to release the phone and e-mail records of individual judges.

I agree with the Attorney General that there’s a huge loophole in FOIA, that allows public officials to conduct public business using private communication tools, such as personal/campaign phones or e-mail accounts.

Don’t you think the members of the Illinois General Assembly realized that when they enacted the law?

Comment by Yellow Dog Democrat Tuesday, Jun 12, 12 @ 11:42 am
Logan , yes in a just world public officials would do public business on public phones but since the politicans are trying to get around the law by doing public business on private phones the judge is correct in stating it’s the publics right to see the discussions used to make public decisions.

Comment by Fed up Tuesday, Jun 12, 12 @ 11:45 am
We are giving away our liberties bit by bit…. there is a pun in there if your tech savvy…..

Comment by Liberty_First Tuesday, Jun 12, 12 @ 11:46 am
Yes. It seems simple. Avoid public business on your private cell phone. Don’t do private business on your government device. And all public business messages are subject to disclosure.

The difficulty occurs when some just FOIA all messages on all private devices, just to be sure there’s nothing public there. That is an unreasonable request. There’s no fair way around this but to allow requests for public messages, and make it the responsibility of holder of the phone to properly decide and disclose what is public in nature.

Comment by mark walker Tuesday, Jun 12, 12 @ 11:49 am
I voted yes. Those that said no - would you also exempt notes written on personally owned paper with personally owned pens? The communication is the issue here, not the mode.

Comment by Ken in Aurora Tuesday, Jun 12, 12 @ 12:00 pm
== This is an over reach. Politicians must be accountable, but they are also citizens, and should have the right to shield the communications that go on through their privately paid for devices. ==

But taking this to it’s conclusion, doing public business on your own phone is never FOIAble, if that is the case, why do any public business on a government phone?

A bit torn on this one, but you shouldn’t be able to use a private phone to completely avoid FOIA.

But voted yes for the entertainment and educational value of these things coming out

Comment by OneMan Tuesday, Jun 12, 12 @ 12:00 pm
Yes - communications about public business should be public.

Mixing up public stuff with private stuff is a problem that the phone user created and must suffer the adverse consequences , if any.

Comment by x ace Tuesday, Jun 12, 12 @ 12:01 pm
I voted yes. Any discussion or communication that entails any aspect of public business should be public record. What is the difference between a wiretap on a landline phone paid for by the public individual and getting records from a wireless phone owned by the public individual?

Comment by Irish Tuesday, Jun 12, 12 @ 12:06 pm
I get both sides, but if you allow text messages, does an alderman or anyone else have to start recording all calls made to a home phone? An alderman can say anything and shake on anything and it’s not a public record, but a 140 character text is. I’m not sure how you ever clearly delineate while allowing business to occur and transparency.

Comment by Shemp Tuesday, Jun 12, 12 @ 12:09 pm
Where does it stop?

How do you determine what messages are or aren’t government business? Somebody has to read ALL of the messages to determine that, don’t they?

Do we get to go to the alderman’s home computer to determine if message there pertain to city business?

Do we get to see what Websites they looked at to determine if they were doing research on city business?

Comment by John Wood Tuesday, Jun 12, 12 @ 12:11 pm
foolishness

Comment by steve schnorf Tuesday, Jun 12, 12 @ 12:18 pm
Transparency makes governing harder. That isn’t to say that transparency doesn’t provide any benefit, because it does.

But at the same time our elected officials need to be able to govern, and you can’t govern when every communication might be disclosed to the public. We’re a Republic, not a Democracy, and part of being a Republic means we have to trust our elected officials to make decisions at some level. There can and should be scrutiny of decisions, but not everything needs to be public.

At some point transparency becomes counter-productive

Comment by J Tuesday, Jun 12, 12 @ 12:25 pm
What if there are political factions on the board and two minority members are communicating about their views in light of their factional affiliation. Could the majority essentially shut down organized minority dissent by forcing all private messages into the public? That seems to go against the principle that seeks to prevent a tyranny of the majority.

Comment by muon Tuesday, Jun 12, 12 @ 12:25 pm
I voted yes. I agree it sounds a little chilling and big-brotherly at first, but look again: “sent and received by members of the city council and the mayor during city council meetings and study sessions . . .” Those people were on the taxpayers’ dime at the time. This is not a fishing expedition.

Comment by Ray del Camino Tuesday, Jun 12, 12 @ 12:27 pm
This is like the “ethics” legislation - they pass a bill and say everyone has to comply with training. (guess which connected organization gets the bid to create the training) All the workers will be told they cannot conduct business on their private phones. Universities will add a high paid administrator and staff to insure compliance with the law. Forms with signatures will designed and reports will be generated. Someone will suggest that contact must me maintained so they will buy cells for everyone. This is how government works….

Comment by Liberty_First Tuesday, Jun 12, 12 @ 12:29 pm
“Somebody has to read ALL of the messages to determine that, don’t they?” How about this scenario: Person A files a FOIA against Public Official 1. PO1 returns all the records relating. Now what if Person A finds a relevant record from a different source (Say, Public Official 2) that PO1 did not report? Then seems to me that PO1 is now in contempt and can be punished accordingly, and then someone else can be brought into to review what records need to be released. Does that have any basis in reality?

Comment by What planet is he from? Tuesday, Jun 12, 12 @ 12:30 pm
No, I do not think personal communications should be subject to FOIA. I believe the current FOIA law goes a little overboard with access to public information anyway and personal email accounts and communication devises should be off limits both for workers and public officials.

This is one instance where public workers and officials need to be protected from the public.

Comment by Ahoy! Tuesday, Jun 12, 12 @ 12:31 pm
Don’t you think they’re using their personal cell phones or emails for convience. Why automatically assume that public officials use their private cell phones to avoid FOIA? Not everyone is trying to hide something.

I thought FOIA only applied to records in the possession of the public body. How does a public body have records of private cell phones? Does this mean a public body has to call the phone company and request a public official’s phone records? Will they even given them to a public body? How you go about getting records of text messages?

FOIA is supposed to help the public access government records, not a way to make someone’s life miserable.

Comment by Anon Tuesday, Jun 12, 12 @ 12:39 pm
No doubt a good decision.

The public has a right to see and or hear what the officials are communicating about regardless of the method of the communication.

If the right to learn the contents of the discussions would be limited by who paid for the device, all officials would get personal phones and the public would be kept in the dark as usual.

Remember that the light of day is the best disinfectant

Comment by Plutocrat03 Tuesday, Jun 12, 12 @ 12:43 pm
How good is anybody at catagorizing old text messages? Don’t most people delete them from their phone? This ruling would apply to any public worker too, not just elected officials.

Comment by Johnnie F. Tuesday, Jun 12, 12 @ 12:43 pm
I voted Yes if the records relate to discussion or debate of business before the public body.

On the other hand, if someone sends a text message to their spouse during a public meeting that is not related to the business before the public body, the records should be exempt from disclosure.

Comment by Foxfire Tuesday, Jun 12, 12 @ 12:47 pm
I voted no

The question in my mind is where is the logical conclusion of the matter and who would oversee the collecting of information? If a councilman’s personal e-mails are subject to FOIA, who would be responsible for sifting through them and picking out the e-mails? The Councilman? The City Manager? Does this mean that a Councilman would have to turn over his personal computer to a staffer?

Would they be able to delete e-mails off their private account?

Would this apply to Twitter, Facebook, etc., etc.?

Seems like there is no logical conclusion for the matter.

Comment by Ghost of John Brown Tuesday, Jun 12, 12 @ 12:54 pm
I don’t agree. Some jurisdictions make provisions (i.e. users pay a fee) to use their cellphone devices for private conversations / texts even though the cellphone was purchased by a public body. How does one distingush between private vs. public use under this type of arrangement? Can you really ascertain from a random text what a conversation was about?

Comment by Stones Tuesday, Jun 12, 12 @ 12:55 pm
There’s an Open Meetings issue with city councils. If a majority of a quorum discusses city business via e-mail, then those messages are FOIAble. Why should text messages be treated differently>

Comment by reformer Tuesday, Jun 12, 12 @ 1:00 pm
-Don’t you think they’re using their personal cell phones or emails for convience.-

If, OTOH, they returned to being on-site v. virtual workers, would they focus more on their jobs within the limited time they spend in their offices or on the floor? And could that in turn, shorten the campaign and fundraising season from year round to something a bit more reasonable?

Comment by Anonymous Tuesday, Jun 12, 12 @ 1:16 pm
When the taxpayers start paying my personal cell bill, they can see how I use.

Comment by Give Me A Break Tuesday, Jun 12, 12 @ 1:20 pm
IF it’s in a public meeting, it’s under FOIA. I’ve always been taught that if you were in a government meeting with more than 3 elected officials, that meeting had to be posted as a public meeting, and was subject to FOIA.

Now, most of the time, the meeting content would drive one to the nth degree of boredom, but we always took meeting minutes, assuming we were subject to FOIA.

So why should text messaging during the meeting be any different?

If nothing else, possibility exists for high humor content.

But I got to tell you, the concept of having to comb through and recover all the text messages/’tweets’ occurring during a public meeting after said public meeting does not excite me in the least.

There’s high potential for invasion of privacy issues here that really need to be thought through.

Can you imagine the poor techie who has to collect all the cell phone/tablets from all the ’suits’ at the meeting, extract, and then catalog/index all that information for either the Chicago City Council or Cook County Board meetings.

“I really, really hate my job….”

One would have to be wearing a steel foundry worker’s complete protective rig just to pick up Rahm’s cell phone….

Comment by Judgment Day Tuesday, Jun 12, 12 @ 1:25 pm
Little off topic:

Rahm Emanuel’s cell phone specs….

Frame: 16 gauge Titanium alloy (say, Grade 5)
Display/Glass: Multi layered honeycombed Gorilla Glass.
Heat Sinks: YES YES! YES!!

Being that it’s Rahn, the cell phone will have to be the size of a Chicago paving brick.

Comment by Judgment Day Tuesday, Jun 12, 12 @ 1:41 pm
I voted Yes….Blago tried to play the system by doing most of his work at his campaign headquarters.

In theory, all a public office holder would need to do is have everyone set up a gmail account and conduct business that way, and it would be secret and secure from FOIA. THis ruling cuts the loophole.

Comment by He Makes Ryan Look Like a Saint Tuesday, Jun 12, 12 @ 1:43 pm
If the government official used a personally-funded mobile device, how is the unit of local government or government entity able to get a copy of the correspondence? While I agree with Schmidt’s desire, the government can’t force Verison/AT&T to cough up the records of one of their customers.

Comment by It's Just Me Tuesday, Jun 12, 12 @ 1:43 pm
I vote yes.

When I was first told that our electronic communications during meetings were subject to FOIA I asked people to stop. Prior to that I had received some, and other than those from my spouse, most of them were related to issues we were deciding at the time.

I have no problem with this ruling. What I do have a problem with is that the Open Meetings Act essentially prohibits any group of local officials from discussing issues at all, or even attending other organization’s briefings where related policy issues may arise because if you don’t post a meeting notice you can be in violation of OMA. I wish the General Assembly had to live under the same rules we do. They can meet in secret. Direct state employees to take actions in secret, they even negotiate most of the budget in closed meetings away from the public and the press.

Sure complying with OMA is a pain and that’s why the GA won’t apply those rules to themselves. But in the end I think the public is better off. Just wish the GA wasn’t so two-faced on the issue.

Comment by municipal official "A" Tuesday, Jun 12, 12 @ 1:58 pm
people should be entitled to their own private cell phone. including elected people.

Comment by amalia Tuesday, Jun 12, 12 @ 2:28 pm
I voted yes. I don’t see how using a private device to conduct public business turns the public business private. It might be difficult to police or enforce, but that’s not the point.

Comment by champaigndweller Tuesday, Jun 12, 12 @ 2:32 pm
Determining what is public versus private has been an issue since FOIA was first passed in Illinois in the early 1980s. While the public does have a right to know and be involved in discussions on public policy, some over-zealous individuals file FOIA requests just to satisfy their own interests and public policy has nothing to do with it. While the FOIA is laudable, I don’t ever think it was intended to be used as a source for fishing expeditions. Perhaps the requestor should be required to declare what information he/she is looking for when requesting the information - sorry rambling a bit there because that will never happen. Nonetheless, although Schmidt’s ruling follows the statute as it’s written today, I still believe the statute didn’t contemplate smart phone or PCs when it was written and needs to be revisited.

Comment by Commonsense in Illinois Tuesday, Jun 12, 12 @ 2:33 pm
=== A persons privately paid for cell phone is NOT public record. ===

Yes it is according to the AG and the Judge.

=== A text from one county official to another, which says “is your wife coming to the meeting?” could or could not be dealing with public policy. ===

Someone always has to make a determination if a record is exempt or not — based on your logic, nothing should be FOIA’ble on the basis that someone has to make a judgment.

=== the definition of “public body” to which the Act applies does not include individual elected officials. ===

You are wrong — the Act does apply to elected officials.

=== I get both sides, but if you allow text messages, does an alderman or anyone else have to start recording all calls made to a home phone? ===

No, just like elected officials and staff do not have to record conversations at a public building on a public phone line. If the record does not exist, it does not exist.

=== There can and should be scrutiny of decisions, but not everything needs to be public. ===

Not everything is public. An elected official that texts kid to be home at a certain time is not a public record and will not be discloseable even under this ruling.

=== What if there are political factions on the board and two minority members are communicating about their views in light of their factional affiliation. Could the majority essentially shut down organized minority dissent by forcing all private messages into the public? ===

Two minority members are legally allowed to communicate on matters — that is not an OMA violation — but their conversations should be held in-person or over the phone to avoid creating public records.

=== How about this scenario: Person A files a FOIA against Public Official 1. PO1 returns all the records relating. Now what if Person A finds a relevant record from a different source (Say, Public Official 2) that PO1 did not report? Then seems to me that PO1 is now in contempt and can be punished accordingly, and then someone else can be brought into to review what records need to be released. Does that have any basis in reality? ===

This scenario is no different than if someone didn’t provide or missed a record maintained on a public device. Moreover, the law distinguishes between innocent mistakes and willful obstruction.

=== Don’t you think they’re using their personal cell phones or emails for convience. Why automatically assume that public officials use their private cell phones to avoid FOIA? Not everyone is trying to hide something. ===

Often it is out convenience, too often it is to avoid creating public records.

=== who would oversee the collecting of information ===

Most likely the public official him or herself based on good faith.

=== When the taxpayers start paying my personal cell bill, they can see how I use. ===

Wrong, when you conduct public business on your personal dime, those very specific records become the public’s business. Should records on a cell phone that tie someone to a murder be exempt from court because the murderer paid for the text messages on his own dime?

Comment by Just Observing Tuesday, Jun 12, 12 @ 2:37 pm
I voted yes - reluctantly so. The only communicaitons that should be subjec to FOIA on a privately owned cell phone are those calls or messages sent or received during the course of a public meeting.

Comment by johhnypizza Tuesday, Jun 12, 12 @ 2:39 pm
What if the message was recieved during a meeting but read later? How would you prove when it was read?

Comment by What if Tuesday, Jun 12, 12 @ 2:41 pm
An after thought - woiuld the attorney genera’s public access counselor have given the same ruling if Mike Madigan had been the person calling or texting or receiving either type of communication during any meeting on state business? I think I would pay to see that conversation between Mike and Lisa if it came down to it.

Comment by johhnypizza Tuesday, Jun 12, 12 @ 2:43 pm
Turn the tables:

Imagine YOUR boss told you they were entitled to all emails, text messages, and phone messages you received while at work.

Legislators ROUTINELY get emails, cell calls, and texts while they are in Springfield. All subject to FOIA now
Because they are in Springfield on the taxpayers dime?

Most elected officials no longer even HAVE a taxpayer-funded cell phone. To avoid even the possibility of a political conversation coming up on a state phone, they have a political campaign cell and get all there calls on it. Now, you want their campaign phone records subject to FOIA?

I’m all for transparency, but this is a fishing expedition. There’s such a thing as TMI.

BTW, some wiseacre should file a FOIA request for the judge’s personal cell and email records tomorrow.

Comment by Yellow Dog Democrat Tuesday, Jun 12, 12 @ 2:44 pm
=== === What if there are political factions on the board and two minority members are communicating about their views in light of their factional affiliation. Could the majority essentially shut down organized minority dissent by forcing all private messages into the public? ===

Two minority members are legally allowed to communicate on matters — that is not an OMA violation — but their conversations should be held in-person or over the phone to avoid creating public records. ===

I understand that you are quoting the law, but I think there is a fine and diminishing line between a digitally transmitted voice message and a digitally transmitted text message. The line vanishes when voice is translated as part of the message. The law never imagined this, but it’s here or rapidly approaching.

Comment by muon Tuesday, Jun 12, 12 @ 2:54 pm
There’s no reason at all my boss can’t tell me to turn over all emails, texts, I’ve received on work devices and/or during working hours. I’ve also been instructed to turn my personal cell phone off while I am at work, and I do that.

Comment by Cheryl44 Tuesday, Jun 12, 12 @ 2:58 pm
- John Wood - Tuesday, Jun 12, 12 @ 12:11 pm:

Where does it stop?

Great question, where does it stop. If these “Public Servants” weren’t breaking the law and working around it this discussion would not be happening.

Comment by Dan Shields, Springfield, IL Tuesday, Jun 12, 12 @ 3:11 pm
If public officials are conducting business on the behalf of the public, yes, all communications should be made public. My fear is that our Illinois officials are conducting public business that will/could increase their personal business and or wealth and that is why they don’t wish to hand over those communications. If it’s personal, the public does not need that information. However, why would a public official take care of his personal business on my dime?

Comment by Downstate Babe Tuesday, Jun 12, 12 @ 3:20 pm
All of you need to keep your noses out of somebody else’s business. Being a government official doesn’t equate to you having access to everything in their lives. Get over it. I’ll destroy my phone before I hand it over and not because there is anything bad on it. I would do it for the principle of it. Stay out of my life.

Comment by Demoralized Tuesday, Jun 12, 12 @ 3:24 pm
I voted yes, because I understand the idea that public official should not be able to avoid disclosure simply by using a privately-owned device.

My concern is in the application of that ruling, which - taken to a general concept - says that all communications, regardless of whether they occur on a publicly or privately owned device, are public records - to other public workers beyond elected officials and their appointees.

Apply this to staff and other low-level employees who happen to use their private device to communicate with their supervisor or boss (say - to call/text to say they are sick). Is that staff member now obligated to implement their agency’s rules for record storage and retention on their personal device? Is their personal device now subject to constant monitoring and archival process by their agency (because the only way to identify whether a record needs to be archived is to review it)?

Let’s take this further. How does affect things like my mobile contract? Am I now obligated to get a business plan that allows me to have more storage for a longer period of time in order to comply with my agency? Does the agency now incur any financial responsibility to offset the additional costs to my mobile contract that are now applied because of having to enforce a public policy on a private device?

The easy rule is to say that no official business is permitted on private equipment. But that’s about as enforceable as a verbal contract. This is like an unfunded mandate. It’s easy to say “do this” - but harder than hell to implement once you think through the ramifications and unintended consequences.

Comment by Name Withheld Tuesday, Jun 12, 12 @ 3:25 pm
I think JUDGMENT DAY is right.

The key detail most people are setting aside here is that the info being required to be turned over was sent DURING A PUBLIC MEETING.

If someone is sending a text message or e-mail during a meeting, you are in quorum and the Open Meetings Act is implicated.

Thus, YDD your concerns about legislators getting dragged into this is misplaced because they are not covered by the Open Meetings Act.

Comment by hisgirlfriday Tuesday, Jun 12, 12 @ 3:36 pm
-I voted Yes….Blago tried to play the system by doing most of his work at his campaign headquarters.-

Imagine that. Saint, do you know what the rule is when someone is making calls from “party” headquarters? Just wondering.

Comment by Anonymous Tuesday, Jun 12, 12 @ 3:54 pm
hisgirlfriday - I was taking the specific situation into account in my comments. It is not unusual for a councilman to lean over and have a word or two to their neighbor during a meeting. It even happens that a councilman will walk over to share words with another while an issue is discussed in public. In both these cases the public cannot hear what is said and there is no violation. But if the public trust is violated when a councilman texts another during the same meeting, explain how that differs from a whispered conversation.

Comment by muon Tuesday, Jun 12, 12 @ 3:56 pm
A word of advice tangentially related to FOIA and this post: No one should ever use their personal cell phone to text, or email account to email, anything related to their work. It is potentially discoverable during litigation. Also, you should never use your work email account for personal use…imagine someone else reading all your emails should your employer be involved in some sort of lawsuit.

Comment by boo Tuesday, Jun 12, 12 @ 4:15 pm
I think this is peeling a grape with an axe.

The Champaign City Council members obviously thought they were very clever and could conduct public business through private communications in a public forum (wow, my head hurts).

They were dumb and deserved to be whacked.

But grabbing all electronic communications related to public business is going too far, unless under subpoena. There has to be some ability to communicate in candor.

Besides, the best political advice I ever heard was: “Don’t pay any attention to what we say, watch what we do.”

Comment by wordslinger Tuesday, Jun 12, 12 @ 5:39 pm
Remember Sara Palin and what she had to release?
It’s not a matter of access to a private communicator and it’s messages. It’s a matter of public access to public business.

Comment by JustaJoe Tuesday, Jun 12, 12 @ 5:40 pm
I voted a reluctant yes. Ideally, the GA should take a 21st century look at these types of communications and revise this section appropriately. As other posters have noted, there should be some consistency between paper, oral, and electronic communications for the purposes of this Law.
Speaking from experience, AA sure wouldn’t have wanted his texts or Blackberry messages sent back in the day to get FOIAd, because like most of the opponents here, my notes were often snarky, profane, or both.

Comment by Arthur Andersen Tuesday, Jun 12, 12 @ 5:41 pm
I don’t see that Schmidt had a choice. One of the texts could say, “tack on 10% to that bid for me and you’ve got a deal.”

Comment by Excessively Rabid Tuesday, Jun 12, 12 @ 5:56 pm
This is insane. We are getting to the point where the assumption is always that public officials are hiding something. I dont get all this do gooder handwringing. The biggest problem is enforcement. It’s not that the public doesn’t have a right to know…it’s that some things the public thinks it has a right to know are really stupid. And when people are on fishing expeditions for all kinds of nefarios reasons, who don’t have any idea how government works, they can make almost ANYTHING sound sinister. Going into public life does not mean that you have to give up all notions of privacy. Clearly our laws have not caught up with our technology and we are going to have to figure out how to update all kinds of things like FOIA laws to contemplate smart phones which are really just little tiny computers in your pocket. But if we go down this road I just can’t wait to see the arguments over who has the right to determine which communications fit the criteria for release. Living in this microwave sound byte society is creating unrealistic expectations and very blurred lines about what information the public has a right to know. The danger of releasing truncated conversations out of context is very real. And I’m sorry, I agree with an earlier poster who said this is just another way for a consultant or lobbyist to work to create a public demand that all public officials be issued cell phones and computers so that we the public can monitor their communications during all work hours. One of the first things we cut in agencies were all those greedy little state worker cell phone contracts that were supposedly a waste of money. This is a big over reach.

Comment by Ridiculous Tuesday, Jun 12, 12 @ 7:41 pm
If its something that is on the agenda for that meeting, then no it shouldn’t be discussed, but if its something that you are discussing that you would like further info on, then no I don’t think its wrong and should be open to the public. Only that info that you will be discussing at a council meeting should not be discussed by texting but should be discussed at the council meeting in front of the public. Why hide it? But, you can’t take every single subject in on a meeting, thats why you have committee meetings and such. Thats what I think anyway.

Comment by thunder Tuesday, Jun 12, 12 @ 8:48 pm
I think it should be limited to all electronic devices that attend the meeting. ie. if you don’t want people looking at your communications, drop the device off at the front desk with security who won’t release it until after the meeting…no trips with the phone to the restroom in the middle of the meeting. Then do the public’s business with your full attention and pick up the device afterward.

Comment by NoGifts Tuesday, Jun 12, 12 @ 9:14 pm
I think the key to this case, as mentioned in several comments above, is that this case was about texts sent to each other during public meetings. In this case, I agree with the AG and the judge.

Comment by Pot calling kettle Tuesday, Jun 12, 12 @ 9:21 pm
@JustaJoe -

Sarah Palin’s e-mails were sent a received using her GOVERNMENT EMAIL account. They were GOVERNMENT records.

I’m not disagreeing with anyone who argues that there’s potential for elected officials to exploit a loophole in the law by conducting government business by using personal email or phone accounts. Its the same loophole that exists if they have a face-to-face conversation.

I’m not even necessarily disagreeing that closing the loophole would be a good idea — although I don’t think its a good idea to change the rules midstream.

But I would argue that the current law does not apply FOIA to the phone, text, or email messages of a private individual, even if that person is an elected official or other public employee.

This is Law School 101 stuff. If you file a subpoena - a court order - for Corporation A to turn over all documents related to a specific business transaction, that court order does not apply to records that are not in the Corporation’s possession, including personal records of its employees or officers.

Where the Champaign City Council messed up, in my opinion, is that it should have responded to the FOIA request for those phone records by saying “If in fact those communications happened, we are not in possession of any of those records, and unfortunately cannot fulfill your request.”

@Pot calling kettle -

For all we know, those texts — if in fact they exist — were to spouses, girlfriends, etc. They could have been privileged conversations with legal counsel. In any case, the party they were texting has a presumption of privacy, because they apparently were NOT at the meeting.

Comment by Yellow Dog Democrat Tuesday, Jun 12, 12 @ 10:17 pm
BTW, Don Craven’s quote is EXTEMELY misleading as attorney for the News Gazette.

And, I have to say, I’m a bit disappointed that the AG’s Office went along with it.

They both explicitly state that this ruling updates FOIA, as if lawmakers never imagined cell phones or texting playing such a prominent role in our lives.

Craven, references FOIA’s first drafting, in 1984.

The problem is FOIA just received a major overhaul in 2010. PA 96-542 added electronic communication to the list of public records.

But the General Assembly did not expand the definition of “Public Body” to include individual members of a legislative body. Nor did they expand the definition of “public record” to include public employees’ personal cell phones, even if they were used while on the job or for a job.

Comment by Yellow Dog Democrat Tuesday, Jun 12, 12 @ 10:49 pm
I have to wonder, under the Attorney General and Mr. Craven’s argument, whether e-mails or texts to a news reporter during a city council meeting are “public records” as far as FOIA is concerned, and when they stop being public records?

Clearly, communication with the press is a government function, and there is, I’m reluctant to report, no exemption in FOIA for press communications.

Comment by Yellow Dog Democrat Tuesday, Jun 12, 12 @ 11:00 pm
I believe there was a ruling in Missouri recently that public officials can’t use private email accounts to avoid FOIA. This is just an extension of that. Also, to Yellow Dog’s point about the General Assembly, they are already exempt from the Open Meetings Act, so maybe there’s an exemption for them in the FOIA…usually the legislature likes to exempt itself from rules they impose on everyone else.

Comment by Open government guy Tuesday, Jun 12, 12 @ 11:17 pm