The Citizen Advocacy Center ("Center") is a non-profit, non-partisan, community-based legal organization that has served the DuPage County region since 1994. The Center’s mission is to build democracy for the 21st Century by strengthening the citizenry’s capacity, institutions and resources for self-governance. A free community resource, the Center provides public education, resources, and training in civic skills and the law to increase the public’s capacity and desire to participate in public affairs. The Center also advocates and litigates on behalf of the citizenry to sustain access to justice, and monitors government agencies to ensure public accountability, accessibility, and transparency.
Much of the Center’s work focuses on the Open Meetings Act ("OMA") and Freedom of Information Act; ("FOIA") two cornerstone laws that protect and ensure public access to the government decision-making process. The Illinois OMA and FOIA were passed in 1957 and 1984, respectively, times when Internet communications were either non-existent or in its early infancy. Today, electronic mail, electronic chat rooms, and instant messaging have become an increasingly indispensable tool for many public bodies. The recent influx of technology into the business of governing has significantly impacted how public officials communicate with constituents, staff, and other public officials. Technology has also presented some unique concerns related to the applicability of FOIA and the OMA. The Center has experienced a steady increase in public inquiries asking: Can citizens make a FOIA request for e-mail communications between and among public officials? Is it a violation of the OMA if a majority of a quorum e-mails each other simultaneously about public business? Can public officials avoid an OMA violation by doing "chain e-mails?" and, How must public bodies preserve substantive electronic communications?
With no published case law interpreting how Illinois open records laws apply to e-mail and other forms of electronic communication, little guidance is available to help public bodies adopt policies that ensure transparency, accountability, and accessibility. Likewise, members of the public seeking to monitor government activity also have few resources available to help identify what kind of information is, in fact, accessible by the public. The Illinois General Assembly has recently amended the OMA in July 2006, which has an effective date of January 1, 2007, to help clarify some concerns related to electronic communications. The amendments set specific guidelines for when public officials may participate in a public meeting via telephone, and expanded the definition of "meeting." The definition of a meeting under the Illinois OMA now states:
…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 communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business.1
Electronic methods of communication are now specifically detailed within the definition. Moreover, public officials who engage in e-mail and other forms of electronic messaging with a majority of a quorum must provide public notice of the deliberation2 and a means by which the public can attend the meeting.3
In response to public inquiries received by the Center regarding how public bodies address the integration of technology into governing, and because of recent OMA amendments, the Center instituted a study in August of 2006 to better understand what kind of policies, if any, municipalities had in DuPage County and Cook County to regulate public official’s e-mail communications. The study sought to analyze whether or not written policies ensured public access to public body communications via the FOIA and OMA, as well as review various preservation procedures utilized by municipalities to ensure compliance with the Local Records Act. Finally, the Center sought to create a resource for public bodies and the citizenry regarding important provisions that should be included in the drafting of a policy.
The Center focused on the presence of the FOIA, the OMA, and the Local Records Act referred to within policies because collectively, these statues ensure and protect public access to the democratic process. The FOIA grants access to public records in whatever form they are maintained in order to guarantee citizens access to their government.4 The OMA ensures that the people have a right to be informed as to the conduct of government business and mandates that the deliberations and actions of public bodies be conducted openly.5 Finally, The Local Records Act governs the preservation and destruction of all documents relevant to public business and mandates that all public records made, received by, under the authority of, in the custody, control or possession of any officer or agency shall not be destroyed or disposed of, in whole or in part, except as provided by law.6
II. Study Overview
In surveying every municipality in DuPage County and Cook County, the Center made 161 FOIA requests: 156 were via facsimile and five were via U.S. mail. The FOIA requests called for:
[A]ny and all policies, resolutions, or legal opinions regarding Internet communications7 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 separated municipal responses into six categories:
1 Non–responses to the FOIA request;
2 "Comprehensive policies" due to the FOIA and/ or OMA being referenced within the policy;
3 "Minimally relevant policies" due to some indication that electronic mailing between public officials might be accessed by the public. However, the policies in this category do not explicitly address that public official electronic communications were subject to the FOIA or OMA;
4 "Memoranda" issued by municipal attorneys that advise public bodies on the implication of the FOIA and OMA in regards to public officials communication;
5 "Requests denied";
6 "No policy" identified by the municipality. This included memoranda provided to the Center that were non-responsive to the FOIA request, the production of a policy that lacked information relevant to the study, or the admission by the public body that there was no policy responsive to the FOIA request.
While the Center surveyed all municipalities in DuPage County and Cook County, discussions in this article will only focus on the 34 public bodies located in DuPage County.8
Six of the 34 municipalities (17.6%) either did not respond to the Center’s FOIA request, or responded outside the prescribed statutory time.9 These municipalities included the villages of Addison, Hinsdale, Itasca, Lisle, and Wood Dale, and the City of Naperville.
Only one municipality had a comprehensive policy. The City of Bartlett’s policy10 explicitly applied to public officials and stated that the FOIA and the OMA applied to their e-mail communications. The policy provided examples of various kinds of communications that would be subject to open records laws, addressed alternative Internet communications, and required "periodic review" of its policy to ensure that it remains "current with best practices and new technology." The City of Bartlett’s policy also banned "reply all," "forward," or "cc" messages to Board members and contained an explicit notation detailing how many members are needed for various public bodies to constitute a majority of a quorum under the OMA, and addressed the municipality’s policy to preserve e-mails to ensure compliance with the Local Records Act.
The City of Bartlett’s policy was extremely comprehensive in regulating public officials’ electronic communications and provided little room for ambiguity. However, the provision addressing the accessibility of e-mail communication from personal computers and e-mail accounts presented an issue of concern for the Center. The policy stated: e-mails 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. The policy also stated that e-mails that discuss urgent Village business that "clearly affects public health and/or safety" must still be forwarded to the Village Administrator. The reason for highlighting this section as an issue of concern is because public business can be conducted at any location - be it the city council chambers, a restaurant, or a person’s home. Moreover, the FOIA and the OMA fail to distinguish the location by which a public meeting can occur or where public documents can be created. As such, electronic communications by public officials regarding public business should be subject to disclosure and local record laws, regardless of the location of the computer or the use of a private e-mail address.
Minimally Relevant Policies
Eight of the 34 municipalities (23.5%) surveyed had policies that addressed FOIA concerns, however, the policies in this category did not explicitly apply to elected officials. Rather, the policies focused on municipal employees. Municipalities in this category included: the villages of Burr Ridge, Bolingbrook, Oak Brook, Willowbrook, and Woodridge, as well as the cities of Aurora, Oakbrook Terrace, and Warrenville. The villages of Burr Ridge and Oak Brook and the cities of Aurora and Oakbrook Terrace had policies which discussed the FOIA, thereby implying e-mail communication was not private. The villages of Bolingbrook and Woodridge, and the City of Warrenville had policies which generally stated municipal e-mail may be accessible, and in some instances, subject to disclosure. However, the policies do not indicate that the public may have access to municipal e-mail pursuant to open records laws.
Municipalities with Memoranda but No Policy
Five of the 34 municipalities surveyed (14.7%) had a municipal attorney either circulate a memorandum or facilitate a presentation for public officials regarding the application of FOIA and the OMA. Municipalities in this category include: the villages of Clarendon Hills, Lombard, and Westmont, and the cities of Darien and Elmhurst. The Center did not analyze memoranda content due to memoranda not being binding policy. However, at least one memoranda advised a public body to adopt a policy to address the application of the FOIA and the OMA to e-mail.
Municipalities That Withheld Memoranda under Attorney-Client Privilege
The Village of Downers Grove was the only municipality to refuse to disclose memoranda as attorney-client privilege exempt under the FOIA.11
Municipalities with No Policies or Responded to FOIA Request with Non-Relevant Policies
By far, the largest category of responses consisted of municipalities with no policies, or with policies regarding Internet usage that bore no relevance to the open records laws at issue. Policies made available to the Center focused on appropriate use of municipal computers and how to avoid computer viruses. Fourteen of the 35 surveyed municipalities (40%) fell into this category. Municipalities included: The villages of Bensenville, Bloomingdale, Carol Stream, Elk Grove, Glen Ellyn, Glendale Heights, Hanover Park, Roselle, Villa Park, Wayne, and Winfield, as well as the cities of West Chicago and Wheaton.
The Local Records Act
The Center included the Local Records Act in its analysis to learn how municipalities were preserving e-mails and other forms of electronic communication to ensure compliance with the law. If a municipality does not have mechanisms in place to preserve e-mails that constitute a public record, the intent of FOIA and the OMA are usurped: information not in existence cannot be accessed. State law requires that electronic communications be preserved. The absence of a specific retention policy leaves open liability concerns for the municipality and deprives citizens of access to public documents. As addressed below, only eight municipalities surveyed had a policy that specifically addressed how e-mails that qualify as public records must be preserved on a long-term basis
In reviewing the one municipality policy that was deemed "Comprehensive" and the handful of policies considered "Minimally Relevant" a variety of methods are being utilized to preserve substantive electronic records. Some municipalities however have no policy, raising the question of how public bodies that do not have a policy to preserve records created via Internet usage are complying with the Local Records Act. The Village of Bartlett, which was the only municipality to have a comprehensive policy, required a print and save to a server method of preservation. Of the municipalities within the "Minimally Relevant Policies" category: The Village of Burr Ridge required the printing and filing of electronic communications; the City of Aurora required the saving of electronic communications to a server; the villages of Willowbrook and Oak Brook required the printing of a hard copy and the saving of electronic communications on to a server. The villages of Bolingbrook and Woodridge and the cities of Oakbrook Terrace and Warrenville failed to specify any method of retention for electronic communications.
VI. Recommendations for Reform
The Center’s study indicated that at the time of this study, an overwhelming majority of municipalities did not have an effective policy to regulate Internet communications among public officials and to make public officials aware of potential implications of the FOIA and the OMA. Moreover, very few municipalities had policies to ensure long-term preservation of electronic communication. In a world where technology has become an indispensable tool in the business of governing, it is essential that public officials have a working knowledge of how technology can be utilized within the confines of the letter and spirit of the law. To help public officials and concerned citizens become proactive in developing comprehensive policies, all policies reviewed in the study are available at the Center. In addition, below is a compilation of the most effective provisions found through the Center’s research, as well as additional suggestions to help public officials and the public to be proactive in complying with the FOIA, the OMA, the Local Records Act for the purpose of building democracy and strengthening the citizenry’s capacity to participate in the democratic process.
· Explicit application that the policy applies beyond electronic mail. Internet communications such as chat rooms and instant messaging should be included in the policy;
· An attempt by the public body to define what "contemporaneous interactive communication" qualifies as under the OMA;
· Clarification that the policy applies to the public body as well as subsidiary bodies;
· Enumeration of the number of members required to constitute a majority of a quorum for the public body and subsidiary public bodies;
· A ban on forwarding, "reply all," "cc" or "bcc" messaging on matters of public business;
· A requirement that the municipality adopt a preservation method for Internet communications;
· Explicit notation that FOIA and OMA apply to public business engaged in on a personal computer;
· 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.
· Enforcement measures to ensure public body compliance with FOIA requests
· Implement mandatory training for elected officials regarding open record laws and how the Local Records Act applies to Internet communications.
Only one out of 34 municipalities in DuPage County at the time of this survey had a comprehensive policy to guide public officials in regards to their electronic communications and potential impact on open records laws and how to preserve those communications. While the realm of technology and governing is still being navigated, recent changes in the Open Meetings Act have provided some clarity to this murky area of the law and should be an impetus for public bodies to be proactive in adopting policies related to Internet communications. The adoption of comprehensive policies benefits public officials and the citizenry. Comprehensive policies on Internet communications are standards to guide public officials in their actions associated with public business and protect and ensure citizen access to public documents and the deliberation of public business.
1 Public Act 94-1058.
2 5 ILCS 120/2.02
3 5 ILCS 120/2.01
4 5 ILCS 140/1
5 5 ILCS 120/1
6 50 ILCS 205/4
7 "Internet communications" was used to capture policies relevant to e-mail and 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.
8 Municipalities identified within DuPage County are those referenced in the DuPage County’s Government Resource Guide. To view the full report that includes Cook County contact the Citizen Advocacy Center or visit www.citizenadvocacycenter.org. Copies of all policies referred to in this study can be obtained at the Citizen Advocacy Center.
9 5 ILCS 140/3
10 City of Bartlett Resolution 2004-14-R
11 5 ILCS 140/7(1)(n)
Katrina Kleinwachter, second year student, Northwestern University Law School, student intern at Citizen Advocacy Center.
Terry Pastika, Executive Director and Community Lawyer, Citizen Advocacy Center. Ms. Pastika received her B.A. from Marquette University in 1992 and her J.D. from Creighton University School of Law in 1997. She is licensed in Illinois, California, and Nebraska, and regularly facilitates seminars for the benefit of citizens regarding enforcement of First Amendment rights, and law relating to public access and governmental transparency.