Technology and Illinois' Sunshine Laws

Technology and Illinois' Sunshine Laws:

The Open Meetings Act and the Freedom of Information Act

Scott F. Uhler and Janet N. Petsche

Illinois' "Sunshine Laws" provide citizens with tools for learning about and keeping abreast of developments in local government. Local governments need to know how to comply with these laws, which include the Open Meetings Act and the Freedom of Information Act, when they make use of technology, such as teleconferencing, electronic record keeping and e-mail. This article addresses the application of existing provisions in these acts and points out questions that cannot be answered by current law.

The Open Meetings Act:

Electronic or Telephone Meetings

In 1995, the Fourth District Appellate Court addressed the following question: Does the Open Meetings Act require that members of an administrative agency have to be in each other's physical presence to constitute a quorum for the conduct of public business? Freedom Oil Company v. Illinois Pollution Control Board, 275 Ill.App.3d 508 (4th Dist. 1995). The Freedom Oil court held that members of an administrative agency need not be in each other's physical presence to constitute a quorum. In reaching its decision, the court noted an opinion of the Illinois Attorney General (1982 Op. Att'y. Gen. 124), which held that telephone conferences were within the definition of a public meeting under the Open Meetings Act (5 ILCS 120/1 et seq.). The court also noted that administrative agencies do not require specific statutory authority to conduct meetings through the use of telephonic or other electronic communication, because they have authority to make rules for their own governance. The Freedom Oil court, found that the Pollution Control Board's failure to make such rules did not constitute a waiver of the Pollution Control Board's authority to hold telephonic meetings.

However, the court also made clear that the best practice would be to have rules in place for the procedures to follow in holding such meetings. The lesson to be garnered from the Freedom Oil case is that any public body that attempts to hold telephonic or electronic meetings and has authority to make rules governing its meetings should first have rules and procedures in place to cover the conduct of such meetings.

Although boards of library trustees are legislative bodies and not administrative agencies, authority for library boards to make rules governing their meetings can be found in the grant of authority given to trustees to adopt rules and regulations for their own guidance and for the government of the library, 75 ILCS 5/4-7 and 75 ILCS 16/30-55.5.

Therefore, libraries should consider adopting such rules to be prepared in the event circumstances occur that might require one or more meetings to be held with some, or all, trustees present only by telephonic or electronic means.

Libraries should consider the following items before preparing such rules and regulations:

1. Length of time required by the administrative offices to make arrangements for a telephone conference call using a speaker phone, video or other electronic conferencing, so that trustees will know when notice of an expected absence must be given.

2. Circumstances under which attendance by telephonic or electronic means will be allowed (vacations, illness, or only when a quorum will not otherwise be present, etc.).

3. Whether all trustees may attend the meeting without being physically present.

4. Whether public participation can be allowed considering the system used.

5. How libraries plan to avoid dominance of debate by a trustee participating by speaker phone.

6. Whether the public should be notified that participation by one or all trustees will be without their physical presence.

7. Whether certain methods of electronic meetings will allow the public to attend the meetings at places other than the place where the meetings would ordinarily be held if trustees were physically present.

8. Whether all votes should be taken by roll call to ensure that non-physically present members are casting their own votes if they cannot be seen.

9. Whether two or more trustees may participate telephonically or electronically from the same remote location.

10. Whether the presiding officer of the board should conduct the meeting if he or she is not physically present.

11. Whether bond counsel may require a quorum be physically present when votes are taken on ordinances authorizing the issuance of bonds.

12. Whether the public's ability to assess the demeanor of a non-physically present trustee will dictate using only systems that allow for visual presence as well as audio presence.

Consideration of these and other factors will help the library adopt rules to protect them should any challenge be brought regarding votes taken when a quorum of the board is not physically present at a public meeting.

In addition, it should be noted that the Freedom Oil court expressed no opinion on whether the Pollution Control Board's inherent authority to conduct some meetings by telephonic methods would permit the board to conduct all its meetings by telephone conferencing. That caveat would suggest it would be wise for a library to have its rules and regulations limit the use of technology to times when circumstances make the use necessary, rather than allowing use indiscrimanently for any reason.

The Freedom of Information Act:

Although the Freedom of Information Act is the vehicle through which the "Sunshine Laws" provide access to public documents, those documents would not be available for access if they could be immediately destroyed. Therefore, ancillary to our discussion of releasing electronic documents or e-mail must be a discussion of the need to store those documents under the Local Records Act.

Availability And Storage of Electronic Records

When determining whether electronic records must be made public under the Freedom of Information Act (5 ILCS 140/1 et seq.) or whether disposal must be handled under the Local Records Act (50 ILCS 205/1 et seq.), the definition of a "public record" should be examined under each Act in the same manner that the definition would be examined for hard copy records. If the record in question does not fit the definition of a public record, or if in the case of the Freedom of Information Act it is exempt from disclosure, the provisions of those particular Acts will not apply whether the record is maintained electronically or as a hard copy.

The following are the definitions of "public records" contained in each Act.

Local Records Act

"Public record" means any book, paper, map, photograph, digitized electronic material or other official documentary material, regardless of physical form or characteristics, made, produced, executed or received by any agency or officer pursuant to law or in connection with the transaction of public business and preserved or appropriate for preservation by such agency or officer, or any successor thereof, as evidence of the organization, function, policies, decisions, procedures or other activities thereof, or because of the informational data contained therein. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included within the definition of public record.

50 ILCS 205/3

Freedom of Information Act

"Public records" means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, mircofilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics, having been prepared, or having been or being used, received, possessed or under the control of any public body. "Public records" includes, but is expressly not limited to: (i) administrative manuals, procedural rules, and instructions to staff, unless exempted by Section 7(p) of this Act;

(ii) final opinions and orders made in the adjudication of cases, except an educational institution's adjudication of student or employee grievance or disciplinary cases; (iii) substantive

rules; (iv) statements and interpretations of policy which have been adopted by a public body; (v) final planning policies, recommendations, and decisions; (vi) factual reports, inspections reports, and studies whether prepared by or for the public body; (vii) all information in any account, voucher, or contract dealing with the receipt or expenditure of public or other funds of public bodies; (viii) the names, salaries, titles, and dates of employment of all employees and officers of public bodies; (ix) materials containing opinions concerning the rights of the state, the public, a subdivision of state or a local government, or of any private persons; (x) the name of every official and the final records of voting in all proceedings of public bodies; (xi) applications for any contract, permit, grant, or agreement except as exempted from disclosure by subsection (g) of Section 7 of this Act; (xii) each report, document, study, or publication prepared by independent consultants or other independent contractors for the public body; (xiii) all other information required by law to be made available for public inspection or copying and (xiv) information relating to any grant or contract made by or between a public body and another public body or private organization.

5 ILCS 140/2(c)

Because electronic records that fit the definitions of "public" records, whether they are stored on computer diskette or CD-ROM, retained in e-mail or contained on audio or video tape (including voice mail tapes), are subject to both Acts, it would be wise for libraries to adopt a policy to designate appropriate items as public records so that they can be kept separate from the time of their creation and never stored with non-public records. Under that system, it will be easier to answer a Freedom of Information Act request and to decide which records may be destroyed.

When a FOIA request is received for records stored electronically, the first thing a library should do is review the material to determine whether it fits any of the exemptions to disclosure. Of course, material not required by other statutes to be kept confidential or not dealing with personal privacy matters can be released, even if it is legally exempt from disclosure under the Act; however, each request should be considered separately to determine whether release could be detrimental to the library. There are currently 31 exemptions covering items such as documents that are preliminary drafts, personnel records (which might constitute an invasion of personal privacy), library circulation records, which identify users with specific materials, and many others. 5 ILCS 140/7. Also keep in mind that although access to material in the format requested must be provided, some electronic documents may be contained in software programs protected by copyrights or patents and exempt from disclosure under Section 7(g) of the Freedom of Information Act.

E-Mail

As most computer literate people realize, the contents of e-mail can be intercepted and monitored. Therefore, the use of e-mail by public officials and employees should be restricted to non-confidential material. If the library trustees or employees send e-mail containing material not exempt from disclosure under FOIA, that material would have to be released if requested. Persons using e-mail should be educated about which items will be disclosable under FOIA and they should understand that material that may be exempt from release under FOIA could be discoverable if it is relevant to a lawsuit. It should also be kept in mind that e-mail messages thought to be detected from computer tapes or disks can sometimes be retrieved.

Questions also arise regarding the need to store e-mail messages.

The following is a response dated July 1996, given to a local government official by Mark Sorenson, Assistant Director, Illinois State Archives, concerning the use and retention of electronic mail records and other records that might be created and/or stored in a digitized format.

1. The current retention for correspondence from any source is:

"Retain for one year and dispose of records no longer possessing any further value."

If the record is received via electronic mail, it may be saved in that format or on paper. Legally, it should be kept for a minimum of one year.

2. Records that have been created or received electronically may be stored for their entire retention in a digitized format, such as CD-ROM or floppy disk. There is no law requiring them to be converted to paper or microforms for the extent of their retention period. However, please note that if you have records with a retention of more than 10 years, it would be prudent to consider creating another copy in microfilm.

3. Under each Local Record Commission's current rules, you may transfer records you create or receive in paper format to a digitized format and dispose of the original paper if: 1) the retention for those records is less than 10 years and b) you file a Records Disposal Certificate with the Commission. If you want to destroy records with a value of more than 10 years, (before their retention is completed) you must first transfer the

information onto microfilm before the commissions will approve the action.

There are still several questions regarding electronic records and e-mail that have no clear answers under current law. For instance:

1. Does the release of an e-mail message by a public body in response to FOIA request violate the privacy of the employee who drafted the message?

2. Are public bodies required to treat requests for public records sent through e-mail as written requests?

3. If so, when is a request sent through e-mail considered received? Is it received when it is sent or when the staff person reads the request? If e-mail is not read for several days, does that advance the time the public body has to answer the request?

4. Are public bodies required to upload documents onto a Web site in response to a request?

5. Are public bodies required to provide remote access to their computer networks to permit persons to access public records?

6. If public records are more quickly and easily furnished to computer owners, are there accessibility questions public bodies must address regarding those who do not have computers or cannot use them?

7. May a public body charge for computer time if access to computer records is requested under FOIA?

8. Should local governments be protected from excessive costs that may be generated if they are required to provide the public access to electronic records?

These and other questions associated with the use of technology by public bodies with respect to open meetings and disclosing public records will eventually have to be addressed by state and federal legislators. Currently, the Local Government Section Council of the Illinois Bar Association is considering amendments to the Illinois Open Meetings Act and the Illinois Freedom of Information Act to answer some of these questions.

* Scott F. Uhler is a partner and Janet N. Petsche is an associate with the firm of Klein, Thorpe and Jenkins, Ltd., which has offices in Orland Park and Chicago. The firm represents many library clients in Illinois as well as other local governments.