309-788-2800 mcfe@mcfe-law.com

A “public record” is a “record that a governmental unit is required by law to keep,” and is “generally open to view by the public.” Public records are an important part of American government because they allow the public to become aware of intergovernmental workings. Public records increase transparency in the government decision-making process. Increased transparency also increases government officials’ accountability and increases public confidence in government.

Sunshine laws across the country have helped increased transparency in governmental decision-making. The Open Meetings Act and Freedom of Information Act are both examples of these sunshine laws. There are certain items that have always been part of public record, such as land deeds or transcripts of court proceedings. Marital records and voting records are also included in the definition of public records. Any time that a government official is doing something in their official capacity (such as in city council meetings), then, there is likely some public record involved.

Defining public record, however, is not always easy. Although the Freedom of Information Act provides a general definition of public record, that definition does not cover every situation and occasionally requires court interpretation. The Freedom of Information Act defines public record as documents “pertaining to the transaction of public business, regardless of physical form or characteristic having been prepared by or for, or having been or being used, received by, in the possession of, or under the control of any public body.”

An Illinois court recently expanded the definition of public records. The Open Meetings Act requires that city officials have open meetings so that the public can have easy access to the governmental decision-making process. This case started when a reporter attended the Champaign City Council meeting and noticed that several councilmembers were using their personal cell phones and electronic devices during the meeting. That reporter was curious about the messages that the councilmembers were sending and receiving, so the reporter requested that the city release copies of the messages pertaining to public business. However, the councilmembers protested, claiming that the messages were on their private devices, which excluded the messages from public view.

Nonetheless, the Illinois Appellate Court for the Fourth District determined that the messages that pertained to public business should be part of the public record. They concluded that it made little sense to hold open meetings if the councilmembers were going to discuss public matters via their private electronic devices. The Court determined that an individual councilmember constituted a “public body” for purposes of the Freedom of Information Act’s definition of public record.

Therefore, the Court not only ordered the messages released, but they also went a bit further. The Court reasoned that any communication that the councilmembers engaged in during the meeting is a matter of public record. They reasoned that when the councilmembers are acting as a pubic body, then all of their communications are a matter of public record. This ruling is interesting in that even if a councilmember were engaging in a private conversation during the meeting, that private conversation will now be an addition to the public record.

The ruling also has interesting implications for the officials because they must keep public records for a certain amount of time. That implies that officials need to keep e-mails, text messages, tweets, etc. for that same amount of time if they relate to public business or were made when they are acting as a “public body.” Advances in technology create unique twists in the open meeting and sunshine laws.

To learn more about how this case may affect you, contact McCarthy, Callas & Feeney at 309-788-2800. We would be happy to discuss your legal options regarding municipal and open meetings laws.


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