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By Rob Scott, Attorney - Monday, March 9, 2015

 

            Illinois Freedom of Information Act can be found at 5 ILCS 140/1 et al.  The law indicates that “all records in the custody or possession of a public body are presumed to be open to inspection or copying.”  (5 ILCS 140/1.2)  This means that two threshold questions regarding the possibility of turning over personal cell phone records exist.  The first would be the question of whether the information qualifies as a record and the second; whether it is in the custody or possession of a public body.

            A public record is defined as “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.”  (5 ILCS 140/2(c))  This definition can easily be interpreted to mean that if you use a personal cell phone for the purposes of conducting public business it may well qualify as a public record.  The sole remaining issue would be whether or not your use of a personal cell phone would qualify as being under the control of a public body.

            According to the law 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 the State, any subsidiary bodies of any of the forgoing including  but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code.”  (5 ILCS 140/2)  At first glance this definition would not appear to indicate that an employee would qualify as a public body and one could then argue that a personal cell phone, although used to conduct public business, would not fall into the category of records that would be required to be turned over.

            Unfortunately, there is a recent Illinois case which calls into question such a simple resolution of the issue.  The case of City of Champaign v. Lisa Madigan, 992 N.E. 2d 629, 372 Ill.Dec. 787 (4th Dis., 2013) is the case which raises possible issues.  That case arose due to a media request for copies of electronic communications sent and received during a city council meeting from members of the city council and mayor.  While the original request was not limited to work related messages the parties ultimately agreed that personal communications were not being sought.  The City, in part, denied said request alleging that personal communications, even those related to public business, done on privately owned devices was not subject to FOIA.  The denial was reviewed by the Attorney General’s office which resolved the question by indicating that text messages and emails sent or received on a personal device, during a public meeting and concerning city council business are public records and therefore subject to FOIA.

            The City appealed this finding claiming among other things that the information was not a public record as defined in FOIA and that public officials have privacy rights in their personal communications.

            In determining the matter the Appellate Court indicated that certain underlying facts were not in dispute.  The Court noted that for purposes of their analysis they would assume that council members sent or received communications related to public business on personal devices during the meeting.  The question in the Court’s eyes was whether this made the communications public records. 

            In addressing this question the Court noted that to be a public record the communication must be about public business and either have been prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body or controlled by a public body.  The city of Champaign conceded that the council was a public body but argued that the individual members of the council were not themselves a public body.  The Appellate Court noted the distinction and recognized that the statute does not reference members of a public body.  Further, the Court noted that to accept the Attorney General’s argument would be to essentially expand the statute by inserting the concept of members of the body being included. 

            The Court worked around the request by instead focusing on members working collectively or as part of the quorum which would constitute the council.  The Court indicated that a message to one single council member would not be subject to FOIA if that was all that was done.  However, if that message were forwarded to a quorum of the council it would then be considered to be in the possession of the public body.  Further, the Court noted if the message was sent/received after a meeting had been convened it would consider that as being acting in the capacity of the body.  It is a fine line the Court has chosen to draw.  The line appears to be drawn based upon numbers involved and the timing of the communication.

            At this point it is unknown whether or not the Appellate Court’s analysis would transfer to a police officer.  I would suggest that the threshold answer is that under most circumstances an officer’s personal cell phone would not be subject to a FOIA request.  Further, as this request was related to public business an officer should have minimal concern regarding personal information be turned over.  Additionally, an officer may have additional claims to prevent the release of information based upon the recognized safety exceptions built into the FOIA statute.  This conclusion though should be tempered in that it is clear that the Attorney General and at least certain courts in Illinois lean toward releasing the information.  It is not impossible to imagine a situation where an officer would act in a fashion that would result in a required disclosure of cell phone records.  An example might be where police related information is sent via a mass text to all members of the department regarding police business.  Under these circumstances it would be very easy to see the analysis of the 4th District Appellate Court come into play. 

            In conclusion the answer is that in most instances a personal cell phone of an officer will not be subject to FOIA but under certain circumstances, such as those discussed by the 4th District Appellate Court, it is possible that it could be.  The only real way to prevent ever having to consider this is if officers take the precautionary step of simply not using personal cell phones for police business.          

About The Author:  Rob Scott did his undergraduate studies at the University of Wisconsin at Platteville and received his law degree from Southern Illinois University School of Law.  Rob has worked as an Assistant States Attorney and First Assistant Public Defender in Sangamon County Illinois and served three years as a Legal Counsel with the Illinois Senate Judiciary Committee.  Rob has been with the Illinois Fraternal Order of Police Labor Council since 2003.