This was the issue to be decided in THE CITY OF CHAMPAIGN v. LISA MADIGAN; PATRICK WADE; and THE NEWS-GAZETTE, INC.
On July 15, 2011, Patrick Wade, a reporter for defendant Champaign News-Gazette, filed a FOIA request with the City, seeking the following records:
"All electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3. Please note that this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts."Defendant Wade requested copies of electronic communications sent and received during city council meetings from members of the Champaign city council as well as the mayor, (collectively, the City). The City partially denied Wade's request, explaining personal communications on privately owned electronic devices are not within the scope of FOIA, even when they relate to city business. The Attorney General issued a binding opinion, finding texts and emails sent or received from a council member's personal electronic device during public meetings, concerning city council business, are public records and subject to FOIA. The City sought administrative review in the circuit court, which affirmed the decision.
The City appealed, arguing (1) the requested electronic communications are not public records as defined by FOIA; (2) public officials have a reasonable expectation of privacy; (3) the circuit court erred in awarding Wade fees; and (4) the court did not have jurisdictionf. This Court affirmed in part and reversed in part.
The public policy underlying the General Assembly's adoption of FOIA is expressly set forth in section 1 of the Act as follows:
"Pursuant to the fundamental philosophy of the American constitutional form of government, it 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 and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. 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."The General Assembly hereby declared that it is the public policy of the State of Illinois that access to public records promotes the transparency and accountability of public bodies. It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.
The General Assembly further recognized that technology may advance at a rate that outpaces its ability to address those advances legislatively. To the extent that this Act may not expressly apply to those technological advances, this Act should nonetheless be interpreted to further the declared policy of this Act that public records shall be made available upon request except when denial of access furthers the public policy underlying a specific exemption." 5 ILCS 140/1 (West 2010)."
n this case, the City argues communications on privately owned electronic devices are not subject to FOIA.
Section 2(c) of FOIA defines "public records" as follows:
"[A]ll 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 beenprepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." (Emphases added.) 5 ILCS 140/2(c) (West 2010)."Finally, the Court noted that the language in the statute's preamble recognizes "technology may advance at a rate that outpaces its ability to address those advances legislatively." 5 ILCS 140/1 (West 2010). The instant cause of action presented jsuch a situation. If the General Assembly intends for communications pertaining to city business to and from an individual city council member's personal electronic device to be subject to FOIA in every case, it should expressly so state. It is not the court's function to legislate. Indeed, such issues are legislative matters.
While section 11.5 provides for administrative review of the Attorney General's opinion, it is a separate and distinct section from section 11(i). Section 11.5 does not provide for attorney fees. Compare 5 ILCS 140/11.5 (West 2010), with 5 ILCS 140/11(i) (West 2010). Under these facts, the trial court erred in awarding Wade $7,500 in attorney fees and costs.
For the reasons stated, the Court dismissed appeal No. 4-12-0662 for lack of jurisdiction, affirmed the portion of the circuit court's judgment in case No. 4-12-0751 affirming the Public Access Counselor's binding opinion. The Court reversed the part of the court's judgment allowing the counterclaim and awarding attorney fees.
http://scholar.google.com/scholar_case?case=3087819941824928703&q=Twitter&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2013
