On November 15, 2011, the Public Access Counselor in the Office of the Attorney General issued Opinion No. 2011-006, holding that electronic records relating to the transaction of public business are "public records" within the meaning of the Freedom of Information Act (FOIA) - even when they are generated on a public official's private equipment and/or maintained on personal electronic accounts.
The FOIA request that gave rise to this Opinion was a request from a reporter at The News Gazette for "all electronic communications, including cell phone text messages, sent and received by members of the [Champaign] city council and the mayor during city council meetings..." The City of Champaign took the position that communications stored or maintained in the private email accounts and private mobile phone accounts of council members were not "public records" required to be disclosed under FOIA, even if those messages contained the discussion or transaction of public business.
The Opinion emphasizes that "where, how or on what device that record was created" was not determinant as to whether a record is a "public record", but rather "whether that record was prepared by or used by one or more members of the public body in conducting the affairs of government." The Opinion also makes clear that "only those communications on private equipment that pertain to public business" are subject to disclosure under FOIA, and are subject to the same potential exemptions as any other public record. The City of Champaign has indicated that it intends to appeal this decision.
As always, members of public bodies, including school personnel and school board members, should exercise great caution when discussion school district business on personal devices or using personal email. To avoid the difficulties inherent in complying with FOIA requests of this nature, it is advisable to only use school-based communication methods (including school-based email) to conduct public business.