Ms. Terry Pastika, Executive Director/ Community Lawyer; Ms. Katrina
Kleinwachter, Legal Intern; Ms. Monika Narayen, Intern
I. Introduction
When the Illinois Open Meetings Act and Freedom of Information Act
were passed in 1957 and 1984, respectively, few legislators could have
foreseen the extent to which government would increase its reliance
on technology over the next fifty years. Today, electronic mail, electronic
chat rooms, and instant messaging have become an increasingly indispensable
tool for many municipalities in both their internal and external communications.
This influx of technology has not come without difficulties. As with
many laws, the Open Meetings Act and Freedom of Information Act were
written broadly, but not so broadly as to eliminate ambiguity over their
application to new technologies in a new era. To date, there have been
no published Illinois court opinions interpreting how open records laws
apply to e-mail and other forms of electronic communication. This in
contrast to a small number of other states in which electronic communication
issues have been litigated. The Illinois Attorney General and the General
Assembly have recently addressed the integration of Internet communications
and the Open Meetings Act to assist public bodies in navigating these
uncharted waters.
The Illinois Attorney General's Office has stated in the Guide to the
Open Meetings Act (Revised 2004 Edition):
E-mail or Internet chat rooms cannot be used to circumvent this policy.
Exchanges of e-mail and chat room discussions on issues being deliberated
by the public body that have as their intent the formulation of policy
outside the public view violate the spirit, if not the letter, of
the Open Meetings Act. Page 26.
On July 31, 2006, the Illinois General Assembly updated the Open Meetings
Act by passing Public Act 94-1058, which has an effective date of January
1, 2007. Among other amendments, the definition of "meeting" was changed
to state:
"Meeting" means any gathering, whether in person or by video or audio
conference, telephone call, electronic means (such as, without limitation,
electronic mail, electronic chat, and instant messaging), or other
means of contemporaneous interactive community, of a majority of a
quorum of the members of a public body held for the purpose of discussing
public business.
In response to public concern over how public bodies are addressing
the integration of technology into the business of governing, and the
potential implications with regard to the Open Meetings Act, the Freedom
of Information Act, and the preservation of substantive electronic communications,
the Citizen Advocacy Center ("Center") conducted a study of municipal
policies in DuPage and Cook Counties. The study sought to identify public
bodies that had adopted policies that specifically addressed the applicability
of open records laws to the technological advances of the twenty-first
Century, and evaluate the substantive components of such policies.
II. Applicable Law
In July of 2006, the Center examined what policies local governments
had passed to ensure compliance with the spirit and the letter of open
records laws. The following statutes were of primary focus:
The Freedom of Information Act (5 ILCS 140/1)
The Freedom of Information Act (FOIA) grants access to "public records"
in whatever form they are maintained in order to guarantee citizens
access to their government:
[I]t is declared to be the public policy of the State of Illinois
that all persons are entitled to full and complete information regarding
the affairs of government […] Such access is necessary to enable the
people to fulfill their duties of discussing public issues fully and
freely, making informed political judgments and monitoring government
to ensure that it is being conducted in the public interest. 5 ILCS
140/1.
The Open Meetings Act (5 ILCS 120/1)
The Open Meetings Act, similarly, requires that citizens be given access
to the debate and decision-making process underlying the public business
engaged in by their elected officials:
[I]t is the public policy of this State that public bodies exist
to aid in the conduct of the people's business and that the people
have a right to be informed as to the conduct of their business. […]
[I]t is the intent of this Act to ensure that the actions of public
bodies be taken openly and that their deliberations be conducted openly.
5 ILCS 120/1.
The Local Records Act (50 ILCS 205/4)
Further, the Local Records Act governs the preservation and destruction
of all documents relevant to public business:
All public records made or received by, or under the authority of,
or coming into the custody, control or possession of any officer or
agency shall not be mutilated, destroyed, transferred, removed or
otherwise damaged or disposed of, in whole or in part, except as provided
by law. 50 ILCS 205/4.
III. Study Methodology
The Center focused on the municipalities of DuPage and Cook Counties.
In surveying this entire sample of municipalities, the Center made 161
FOIA requests via facsimile and five FOIA requests via U.S. mail (as
required by those municipalities) for policies, resolutions, and legal
opinions. The FOIA requests called for:
[A]ny and all policies, resolutions, or legal opinions regarding
Internet communications among elected or appointed public officials.
This request includes any reference to the applicability of the Freedom
of Information Act and the Open Meetings Act to e-mail and other forms
of Internet communications and any reference to the preservation of
those communications pursuant to the Illinois Local Records Act.
The Center received responses from 113 municipalities, and separated
responses into six categories:
- Comprehensive policies that addressed either the FOIA or the Open
Meetings Act, or both;
- Minimally relevant policies that provided some indication that electronic
mail might be accessed by the municipality, but that did not explicitly
address the Open Meetings Act nor the applicability of FOIA to elected
officials;
- Memoranda issued by municipal attorneys in place of a binding policy;
- Requests that were denied because the public body had only memoranda
on the issue and chose to withhold the memoranda based on attorney-client
privilege;
- Letters stating that the municipality had no policy nor any memoranda
on the issue or policies that lacked any information relevant to the
study; and
- Non-responses to the FOIA request by August 3, 2006, for reasons
outlined below.
The phrase "Internet communications" was used with the intent of capturing
policies relevant not only to e-mail, but also to related technologies
such as online bulletin boards, blogs, and instant messaging. As very
few municipalities have policies addressing Internet communications
outside of e-mail, the remainder of this article refers specifically
and solely to e-mail policies. Other forms of Internet communications
are addressed separately and only where addressed in a municipality's
policy.
IV. Findings
The Most Comprehensive Policies
Only five of the 113 responsive municipalities (4.4%) have policies
that directly address the applicability of either or both the FOIA and
the Open Meetings Act to elected officials. Within this category, there
is a range of policy content. For example, the Arlington Heights policy
only addresses the Open Meetings Act. Neither the FOIA or preservations
issues related to the Local Records Act are addressed. This is in contrast
to the City of Bartlett in which extensive detail is provided for that
addresses the FOIA and the Open Meetings Act as applied to e-mail. The
City of Bartlett policy also addresses the preservation of e-mail under
the Local Records Act.
Minimally Relevant Policies
Thirteen of the 113 responsive municipalities (11.5%) have policies
that the Center categorized as "minimally relevant." These policies
contain no explicit reference of their application to elected officials;
they are instead generally addressed to employees of the municipality.
Five of the policies in this category (38.5%) contain some discussion
of FOIA, but none address the Open Meetings Act. However, several of
the policies make a cursory reference to the municipality's right to
access individual e-mail communications. Some policies in this category
thereby introduce the concept that municipality may access emails and
contest the myth that privacy exists in e-mail communications.
Municipalities with Memoranda but No Policy
Seventeen of the 113 responsive municipalities (15%) have at some point
addressed the application of FOIA and the Open Meetings Act to e-mail
by circulating a memorandum to public officials or hosting a presentation
by an attorney on the subject. The seventeen municipalities disclosed
the memoranda or presentation materials to the Center. The Center generally
did not analyze the content of the memoranda, as the main focus of our
study was whether the municipalities have a binding policy. However,
at least one public body, Clarendon Hills, received advisement from
its attorney recommending the adoption of a policy on the application
of the FOIA and the Open Meetings Act to e-mail.
Advice from municipal attorneys are a source of valuable guidance.
However, a binding policy results in greater accountability and mandates
compliance. Moreover, memoranda issued to public officials may fade
with time, as public bodies are joined by new members who were not present
when memos issues.
Municipalities That Withheld Memoranda under Attorney-Client Privilege
Five responsive municipalities (4.4%) would seemingly have fallen into
the "Municipalities with Memoranda but No Policy" category, because
they had memoranda but no binding policy. However, pursuant to Section
(7)(1)(n), these public bodies claimed exemption of the public records
due to attorney-client privilege. These public bodies are noted separately
to clarify that some communication has seemingly occurred on the issue
in these municipalities.
Municipalities with No Such Policies or That Provided Us with a
Non-Relevant Policy
The largest category of responses from the municipalities consisted
mainly of mailed letters or facsimile responses stating that the municipality
currently has no policies or memoranda on the applicability of FOIA,
the Open Meetings Act, and the Local Records Act to Internet communications.
Seventy-three of the 113 responsive municipalities (64.6%) fell into
this category. A few municipalities within this category provided the
Center with policies on Internet usage that bore no relevance to the
open records law at issue, and instead focused on appropriate uses of
municipal computers and how to avoid computer viruses on municipal computers.
Municipalities that focused on appropriate use of municipal computers
were also classified as having no policy on point.
Municipalities That Did Not Respond
Under the FOIA, government bodies have seven working days within which
to respond to a request by providing the requested information, denying
the request and informing the requestor of the denial, or requesting
an extension for an additional seven working days to respond. The Center's
FOIA requests were made by facsimile between July 6 and July 11 to every
municipality in DuPage and Cook Counties. The Center set August 3 as
the cutoff date for responding to the requests, so even those municipalities
that received the request on July 11 had more than fourteen business
days to respond. A total of fifty-three municipalities did not respond
to the Center's FOIA request. (32%) The Center made follow-up telephone
calls to municipal clerk's offices after the statutory response period
had expired. Public bodies stated that they had never received the request
or that they had yet to issue a response. Some municipalities never
responded to the follow-up phone calls. Thirteen municipalities claimed
to have not received the Center's request. While the municipalities'
rate of responsiveness was not the focus of this survey, the high level
of non-responsiveness is an important illustration of a systemic weakness
in the FOIA statute.
The Local Records Act
The Center included the Local Records Act in its analysis to learn
if responsive municipalities had a specific policy governing preservation
of e-mails to meet the requirements of the Act. The preservation of
e-mail is an essential component in the enforcement of open government
policies. If e-mail that constitutes public records is not preserved,
the FOIA becomes a useless tool, because the information requested is
no longer in existence and thus cannot be accessed. As addressed below,
only eight of the municipalities that responded to our survey have a
written policy that specifically addresses how substantive e-mails should
be preserved.
V. Analysis of the Most Comprehensive Policies
Open Meetings Act
Only five of the responsive municipalities (4.4%) have policies that
address the applicability of the Open Meetings Act to e-mail communications
of elected officials:
- Arlington Heights
- Bartlett
- Northfield
- Park Ridge
- Wilmette
These municipalities reference the general language of the Act itself
in stating that a gathering of a majority of a quorum of a public
body may constitute a violation of the Act if a "meeting" occurs via
an exchange of e-mails. Arlington Heights' policy provided no further
guidance, while the other four municipalities provided examples of
the types of e-mail exchanges that may or may not constitute a violation
of the Act.
The policies for Northfield, Park Ridge, Wilmette, and Bartlett explicitly
state the applicability of the Act not only to e-mail but to similar
technologies, including "but not limited to" instant messaging, web
forums, and chat rooms. Northfield, Park Ridge, Wilmette, and Bartlett
policies were the only ones that addressed alternative Internet communications.
Bartlett's policy also explicitly requires "periodic review" of its
policy to ensure that it remains "current with best practices and
new technology." While there is no enforcement mechanism or timetable
set up for such a review, this is an excellent step towards the monitoring
of open government laws with regard to new technologies.
Both the Northfield and Park Ridge policies provide examples of the
limited circumstances in which e-mail should be used to conduct public
business. Furthermore, both policies inform public officials that:
"messages between elected officials where the discussion involves
less than a majority of a quorum" may actually violate the
Act if the messages are then "passed sequentially from one member
to another in a number equaling a majority of a quorum" (emphasis
added).
Bartlett's policy is similarly commendable for its ban on "reply
all," "forward," or "cc" messages to members to Village Board members,
as such practices are fertile ground for Open Meetings Act violations.
It also contains an explicit notation of the number of members needed
for each of the various public bodies to constitute a majority of
a quorum in violation of the Act. These statements provide little
room for ambiguity for members of the Board of Trustees and its subsidiary
bodies in knowing when they can and cannot communicate regarding public
business. Wilmette's policy, while similar in other aspects to that
of Bartlett, does not contain these features.
Freedom of Information Act
Only four of the responsive municipalities (3.5%) have policies that
explicitly address the applicability of FOIA to the e-mail of elected
officials:
- Bartlett
- Northfield
- Park Ridge
- Wilmette
An additional five municipalities within the "Minimally Relevant
Policies" category address FOIA. However, as stated above, the policies
do not explicitly apply to elected officials, and direct their discussion
of FOIA to municipal employees:
- Aurora
- Burr Ridge
- Forest Park
- Oak Brook
- Oakbrook Terrace
While some additional municipalities in the "Minimally Relevant Policies"
category state that municipal e-mail may be subject to access and,
in some instances, to disclosure, these policies do not indicate that
the public may have access to municipal e-mail pursuant to open records
laws:
- Bolingbrook
- Hoffman Estates
- Norridge
- Palatine
- Streamwood
- Warrenville
- Woodridge
Preservation
A central issue at the intersection of FOIA, the Local Records Act,
and e-mail is that of how to best preserve e-mail that constitutes
a public record. Despite significant dependence on technology in everyday
government operations, the Center learned in its preliminary research
that public bodies at the state and federal level generally recommend
printing and filing hard copies of e-mails to ensure preservation.
For example, the Illinois State Archives implements a "print and file"
practice because of general concerns regarding the adequacy and reliability
of technology to maintain records.
The municipalities that responded to the Center's FOIA request had
vast differences in how preservation is addressed. Of the five responsive
municipalities with the most comprehensive policies, four specified
no method for preservation. Only Bartlett addressed preservation,
further establishing its position as the most comprehensive policy
received by the Center. Six of the twelve municipalities with minimally
relevant policies also did not address preservation. The remaining
breakdown of those that require printing or saving of the e-mails
may be witnessed below:
Methods of Preservation
|
Most Comprehensive Policies |
Minimally Relevant Policies |
| Print |
|
Burr Ridge |
| Save to Server |
|
Norridge, Forest Park, Aurora |
| Print or Save |
|
Hoffman Estates |
| Print and Save |
Bartlett |
Willowbrook, Oak Brook
|
| None specified in policy |
Park Ridge, Wilmette, Northfield, Arlington Heights |
Streamwood, Palatine, Bolingbrook, Oakbrook Terrace, Warrenville,
Woodridge |
State law requires that such e-mails be preserved. However after
reviewing policies received by the Center, it is uncertain how some
municipalities are complying with the Local Records Act with regard
to electronic communications. The absence of a specific retention
policy leaves open the potential for citizens to be deprived of access
to their government when e-mails that constitute public records are
inexplicably deleted. Further, some e-mail servers routinely purge
all e-mail from the system; if municipalities do not have a policy
to ensure long-term preservation, files that should be accessible
to the public may be lost forever.
Applicability to Home Computers
The majority of responsive municipalities' policies also did not
address the use of personal computers for sending e-mails on matters
of public business. None of the policies explicitly state that FOIA
(or the Open Meetings Act) apply to e-mails of public record sent
and received on home or personal computers. Bartlett's policy, while
extremely comprehensive in most respects, provides a limited exemption
for e-mails received by public officials on their personal computers.
The policy states that e-mail sent by a "non-member of the Corporate
Authorities to the Village President and/or a Village Trustee(s) at
his or her personal e-mail address," whether "at home or work," is
exempt from its policy even if the e-mail concerns public business.
It also states that e-mails that discuss urgent Village business that
"clearly affects public health and/or safety" must still be forwarded
to the Village Administrator.
E-mail received on personal computers may be subject to local record
laws. Messages that have been received by a member of a public body
that relates to public business may be subject to FOIA requests, even
if the communication is received on a personal computer. At least
one memorandum (provided by Inverness) addresses the issue of how
open government laws apply to personal computers, none of the binding
policies have addressed this point. The use of private e-mail accounts
for public business presents significant preservation and public access
concerns. Potential problems include personal computer crashes and
the failure of public officials to forward e-mails to the public body
for preservation by printing or saving on the municipal server.
VI. Recommendations for Reform
The Center recommends that each municipality adopt a policy that
addresses the issues of public concern outlined in this study. The
Center's model policy incorporates aspects of the best policies reviewed
and provides additional suggestions, thereby advocating a comprehensive
approach by which public bodies might best serve the letter and the
spirit of the Open Meetings Act, the Freedom of Information Act, and
the Local Records Act.
Significant provisions of the model policy include:
- Explicit application beyond e-mail to include other Internet communications
such as chat rooms and instant messaging;
- Clarification that the policy applies to both the public body and
its subsidiary bodies; "
- Enumeration of the number of members required to constitute a majority
of a quorum for the particular body;
- A ban on forwarding, "reply all," "cc" or "bcc" messaging on matters
of public business;
- A requirement that the municipality "print and file" Internet communications
of public record, until reliable technology is implemented to store
such information electronically;
- Explicit application of the Open Meetings Act and FOIA to public business
engaged in on a personal computer; and
- A requirement that public officials receive a government e-mail address
upon becoming a member of a public body, and thereafter using that address
predominately for public business to aid in the separation of e-mail
regarding public business from that which is personal.
Additional components to consideration:
- Implementing enforcement measures to ensure compliance with FOIA
requests
- Holding discussions to best determine preservation for e-mail and
other electronic communications
- Implementing mandatory training for employees and elected officials
regarding open record laws and how the Local Records Act is applicable
to internet communications.
VII. Conclusion
While the Center was surprised by the number of responsive municipalities
without any comprehensive policy addressing the applicability of the
Freedom of Information Act, the Open Meetings Act, and the Local Records
Act to e-mail, a limited number of municipalities should be commended
for implementing policies to address this challenging area at the
intersection of law and technology. Rather than leave e-mail communications
to the dangerous void of legal ambiguity, the adoption of a policy
that initiates the process of adapting the law for the ways in which
we use communication today is essential for ensuring citizen access
to public documents and the deliberation of public business.
