While California and Illinois do not share the same weather, they seem to be similar in at least one aspect: Their court decisions support denial of Freedom of Information Act (FOIA) requests for most communications by public officials about public business on private electronic devices.
In City of San Jose v. Superior Court, the California Court of Appeals held that it was proper for a public body to deny a request for “voicemails, emails or text messages sent or received on private electronic devices” by the Mayor and City Council members relating to public business. The court found that such records were not “public records.” Specifically, they were not “prepared, owned, used, or retained” by the public body under the relevant definition in California law.
Readers may recall that a previous decision by an Illinois court, City of Champaign v. Madigan, addressed a similar issue. There, the Illinois court required a public body to turn over text messages about public business that were sent or received by city council members on their private technology devices during a city council meeting. The court found that where a message was sent or received during a meeting or by a majority of a quorum of the public body, the city council members were acting as the public body and the records they created were public records, even if created on personal devices.
Although the Illinois and California cases reached different results, their reasoning is reconcilable. Both cases support the conclusion that in most cases members of a public body do not act as the public body, even when they are speaking or writing about public business. Accordingly, the records created by those individuals are not “public records” subject to public records requests. The California case thus provides further support for public body’s to refuse to disclose most communications by public officials and employees on private electronic devices, even those relating to public business.
Nonetheless, because the Illinois Attorney General and courts have not specifically ruled on the question of how such records will be treated, we continue to advise Illinois public bodies to discourage officials and employees from discussing public business on personal electronic devices.
* Jamel Greer is a third-year law student at Loyola University Chicago School of Law.