TO: IAPD Member Agencies, Board Members, Professionals and Associate Members
FROM: Peter Murphy, J.D., CAE, IAPD President and CEO
Jason Anselment, IAPD Legal/Legislative Counsel
Legal News is also available to IAPD members only under the "Legal Assistance” section of the IAPD's website.
ELECTRONIC COMMUNICATIONS ON PRIVATE EQUIPMENT ARE SUBJECT TO FOIA ACCORDING TO PUBLIC ACCESS COUNSELOR
Last week, the Illinois Attorney General's Public Access Counselor (PAC) issued a binding opinion with respect to an area of FOIA some have considered gray. According to the PAC, electronic records such as e-mails and text messages that are generated on a public official's private computer or cell phone are "public records” that are subject to disclosure under FOIA to the extent the communications relate to the transaction of public business.
The decision comes in response to a request for review by a Champaign News Gazette reporter who sought electronic communications, including text messages and e-mails, that were sent and received by the City of Champaign's mayor and aldermen during city council meetings.Because the communications were sent and received from personal accounts and were maintained on private cell phones and computers, the City did not possess them and asserted they were not "public records” under FOIA.
While the PAC "strongly agreed” with the City thatcommunications regarding personal business meetings or family matters need not be disclosed, thePAC took a different view where the electronic recordscontained informationabout public business. If the matter pertains to public business, the PAC opines that it must be disclosed under FOIA notwithstanding that only private equipment was used to transmit and store the messages. According to the PAC, "accepting the City's argument that it is not required to produce these records under FOIA simply because they are not in the City's actual physical custody or possession would allow any public body or public official to completely circumvent the requirements of FOIA by conducting their public business on personal equipment.”
The lesson is one that IAPD has often reminded its members: when using electronic resources such as e-mail and text messages to discuss public business, it is best to assume that the public may ultimately gain access. While many may disagree with the decision and may find fault with its reasoning, public officials should be mindful that using electronic communications to transact public businessmeans that it will be in thepublic domain.
The opinion is Public Access Opinion No. 11-006 (2011 PAC 15916).
PUBLIC INPUT SOUGHT ON MODEL AQUATIC HEALTH CODE
Public comments are being sought on the latest modules that have been posted in connection with the effort to develop a Model Aquatic Health Code (MAHC). The latest modules posted on October 31, 2011, relate to the Facility Maintenance and OperationandHygiene Facilities and may be accessed through theU.S. Centers for Disease Control and Prevention (CDC) website. Support information for theFacility Maintenance and Operation and Hygiene Facilities modules is also available.
The MAHC is being designed to serve as a model and guide for local and state agencies needing to update or implement swimming pool and spa codes, rules, regulations, guidance, law, or standards governing the design, construction, operation, and maintenance of swimming pools, spas, hot tubs, and other treated or disinfected aquatic facilities. Some aquatic design professionals have encouraged the Illinois Department of Public Health to consider moving toward national standardization in the regulation of aquatic facilities in Illinois. The Model Aquatic Health Code may be one such model. Therefore, members are encouraged to review the proposals and provide public comment through the process if desired.
The comment period for these latest modules closes on December 29, 2011.
FEATURED MEMBER INQUIRY
The IAPD often receives legal inquiries from member agencies that may be of interest to other members. We have recently received the following question from several member agencies.
Q. What is the CPI to be used for computing the extension limitation for 2011 tax extensions (taxes payable in 2012), how is it calculated, and where can additional information be found.
A. For 2011 extensions (taxes payable in 2012), the CPI to be used for computing the extension limitation is 1.5%. The CPI is measured from December 2009 to December 2010. The U.S. City Average CPI for December 2009 was 215.949 and 219.179 for December 2010. The CPI change is calculated by subtracting the 2009 CPI of 215.949 from the 2010 CPI of 219.179. That amount, 3.23, is then divided by the 2009 CPI of 215.949, resulting in 1.49%, which is rounded up to a 1.5% CPI.
You can find information about this and other topics on the Practice Tools page under the Legal Assistance section of the IAPD website. We frequently update the Legal Assistance section with new content, so visit this page frequently.
RECENT COURT DECISIONS
First Amendment
Marcavage, et al v. City of Chicago et al., Nos. 09-3335 & 09-4079 (7th Cir. October 4, 2011)
This case contains a summary of general First Amendment principles as applied to public places like parks, streets and sidewalks.
The facts occurred at three different venues during the 2006 summer Gay Games (Games) held in Chicago. Plaintiffs, who are members of the group Repent America and desired "to proclaim the Gospel of Jesus Christ in the public square,” traveled to Chicago to share their message with attendees and supporters of the Games. During the Games at Soldier Field, police directed plaintiffs to a gravel area adjacent to a sidewalk because plaintiffs were blocking the sidewalk. The plaintiffs claimed that the adjacent area was insufficient to allow them to engage in one-on-one contact. At Navy Pier and GatewayPark, security officers told plaintiffs they could not demonstrate without a permit, which they did not have. At Wrigley Field one of the plaintiffs was told by police that he could not stand at a busy intersection and must "keep walking.” Plaintiffs alleged each of these rules or directives violated their First Amendment right to free speech.
The exercise of First Amendment speech is protected in places like streets, sidewalks and parkswhere itgenerally cannot be absolutely prohibited. However, government can typically regulate the time, place and manner of a speaker's activities in these locations as long as the restrictions are content-neutral, narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. As the Court in this case noted, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.” (internal citations omitted)
Applying these principles, the Court held in favor of the defendants with respect to their regulations at Soldier Field and Wrigley Field. The Court noted that there was no evidence that the officers showed any hostility toward the plaintiffs' message; thus, the regulations applied were content-neutral. Moreover, the regulations were designed to ensure the free flow of traffic, and the alternative locations near the area being regulated were narrowly tailored to deal with the problem. While they were not the preferred locations, the alternative venues offered to plaintiffs to deliver their message were adequate according to the Court. There was no evidence that similarly situated individuals were treated differently than plaintiffs. With regard to the permit requirements at Navy Pier, the Court also considered the policy reasonable and viewpoint neutral because the Pier's commercial nature makes it a nonpublic forum.
An issue unresolved by the case, however, is whether GatewayPark's blanket requirement that requires a permit for groups as small as five is constitutional. The park is a public forum, and the Court noted that unlike streets and sidewalks, open spaces like parks may not necessarily require permits fortraditional reasons like regulating traffic flow, regulating competing uses, and notifying officials of the need for additional public safety and other services where a group is so small. The Court remanded the case to the trial court to determine whether there were legitimate reasons for requiring a permit for a group as small as five.
The case contains a useful analysis of the application of First Amendment principles to gatherings in parks and other public places. The outcome of the trial court's decision with respect to permit requirements for small groups will be interesting.
DID YOU MISS THE LEGAL SYMPOSIUM?
OSLAD hearings, Veto Session, board meetings. . . . October 27 was a busy day! If you missed the Legal Symposium but would like a copy of the materials that were provided, you may still purchase a copy. Materials include:
- Employment and Labor Law Updates
- Current Issues in Construction Contracts and the New Design-Build Option
- Private Users and Private Payments... Are Your Tax-Exempt Bonds in Jeopardy?
- Handling FMLA Scenarios and Recent Court Decisions
- Legislative Year in Review: New Laws Affecting IAPD Member Agencies
- Is Your Agency Protected? 2011 Tort Liability Cases that Provide the Guideposts