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Public business on private electronics subject to FOIA

November 23, 2011

Staff Report

SPRINGFIELD — The Illinois Press Association (IPA) applauds the binding opinion issued Nov. 15 by the Illinois Attorney General that clarifies that public officials cannot hide public business from disclosure by using personal computers and cell phones.

The ruling stems from a Freedom of Information Act (FOIA) request to the City of Champaign by reporter Patrick Wade of The News-Gazette in Champaign. Wade had asked the city to produce documents pertaining to public business, even if those documents reside in personal e-mail, cell phone and Twitter accounts.

The city partially denied the request based on the fact that the documents were not in possession of the city.

Wade challenged the denial, and suggested electronic communications relating to the transaction of public business sent or received by public officials acting in their official capacity as public officials should be subject to FOIA disclosure, regardless of the form they take.

Illinois Attorney General Lisa Madigan agreed. Michael J. Luke, counsel to the Attorney General, wrote in the binding opinion that “[r]ecords in control or possession of public bodies are only one class of records defined in FOIA. 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.”

The opinion further noted that the public body can readily distinguish electronic messages that are of a personal, political or business nature from those that pertain to the transacting of public business.

This binding opinion sets forth an important precedent,” said Josh Sharp, director of Government Relations for the IPA. “All too often, public bodies hide the public’s business, intentionally or not, through the use of their personal electronics. The ruling made by the Attorney General’s office just highlights a common-sense approach to open government that seems to be lacking in Illinois. Regardless of the types of communications that transpire among public bodies, citizens have a fundamental right to know how their government is being run.”

The attorney general’s opinion states that the City of Champaign’s denial was “clearly inconsistent with the General Assembly’s intention … that the public have full disclosure of information relating to the decisions, policies, procedures, rules, standards and other aspects of government activity.”

The IPA, located in Springfield, Ill., represents the interests of more than 480 daily and weekly newspaper members. The Rock River Times is a member of the association.

From the Nov. 23-29, 2011, issue

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