The public is entitled to know what city council members are talking about during meetings. Even when their thumbs are doing the talking.
That’s the takeaway from a new ruling from an Illinois court, which affirms that messages exchanged by government officials — even on their personal cellphones — are public records that must be produced on request.
In City of Champaign v. Madigan, Illinois’ Fourth District Appellate Court decided July 16 that a reporter for The News Gazette was entitled under the Illinois Freedom of Information Act to copies of texts exchanged by city council members.
Illinois joins the growing consensus that text messages about government business are public records even if sent on personal electronic devices. Florida’s attorney general has likewise advised government officials that official-business communications on personal cellphones must be preserved and produced just like other government records.
The main issue in the Champaign case was whether a text message could be a record “of” a government agency even if it existed only on the cellphone of one member of a multi-member commission.
The court carefully parsed through different scenarios and answered:
If a city official receives a text from anyone about city business on a government-issued device, then it is a public record, even if the sender is just an ordinary voter and not a government employee.
If a city official gets a message on a personal cellphone from a concerned citizen about city business, it is not yet a public record, because it belongs only to that individual council member. However, if the council member forwards the message to a majority of the council, it then becomes a record “of” the city and subject to FOIA.
If city officials exchange messages while participating in a council meeting, those messages are public records regardless of what device they were sent on, or how many members are copied. Even a message between just two council members is, if sent during a meeting, subject to production under FOIA.
Dozens of school boards, cities and counties have banned (or tried to ban) electronic exchanges among board members during meetings — both because of the possibility that undisclosed discussions might violate state open-meetings laws and just because it’s rude. But with an increasing number of government officials constantly plugged-in while working — on tablets as well as smartphones — it may be wishful thinking that board members aren’t chatting beneath the audience’s radar.
Every state has a mandatory retention schedule that requires preserving the records of government business. (Here’s an example, from the State of North Carolina.) While it’s often within each employee’s discretion to destroy records of no substantive value — like a Post-It sticky note reminding the mayor about a meeting — records generally must be retained for a period of months (if not years) if there is any likelihood that they might be used in the future.
It’s a positive step for accountability that the public can have access to an increasingly important means of communication. But that access is meaningful only if public employees actually retain their official-business texts instead of just pressing “delete.”