Citizen Advocacy Center 2006 Municipal Study Executive Summary

Citizen Advocacy Center Study on Municipal Internet Communications,

The Freedom of Information Act, and the Open Meetings Act

Executive Summary

Ms. Terry Pastika, Executive Director/ Community Lawyer;

Ms. Katrina Kleinwachter, Legal Intern; M. Monika Narayen, Intern

I. Overview

When the Illinois Open Meetings Act and Freedom of Information Act were passed in 1957 and 1984, respectively, few legislators could have foreseen the extent to which government would increase its reliance on technology over the next fifty years. The Citizen Advocacy Center (“Center”) sought to review the practical and legal implications of these laws as applied to today’s technology in the realm of Internet communications. [1] In response to public concern over how public bodies are addressing the integration of technology into the business of governing, and the potential implications with regard to the Open Meetings Act, the Freedom of Information Act, and the preservation of substantive electronic communications, the Center conducted a study of municipal policies to explore what kinds of policies, if any, public bodies have adopted to ensure that local government entities comply with open records laws as technology advances in the 21^st Century.

II. Study Methodology

The Center made 161 FOIA requests via facsimile and five FOIA requests via U.S. mail (as required by those municipalities) for policies, resolutions, and legal opinions from the municipalities of DuPage and Cook Counties. The FOIA requests called for:

[A]ny and all policies, resolutions, or legal opinions regarding Internet communications among elected or appointed public officials. This request includes any reference to the applicability of the Freedom of Information Act and the Open Meetings Act to e-mail and other forms of Internet communications and any reference to the preservation of those communications pursuant the Illinois Local Records Act.

The Center received responses from 113 municipalities out of 161 requests.

III. Findings

The Center separated the municipalities’ responsiveness to the requests into six categories:

1.) The Most Comprehensive Policies

· Only five of the 113 responsive municipalities (4.4%) have policies that directly address the applicability of either or both the FOIA and the Open Meetings Act to elected officials.

o DuPage County: Bartlett

o Cook County: Park Ridge, Northfield, Wilmette, and Arlington Heights

· These policies addressed either or both the FOIA and the Open Meetings Act as applied to elected officials.

2.) Minimally Relevant Policies

· Thirteen of the 113 responsive municipalities (11.5%) have policies that the Center categorized as “minimally relevant.”

DuPage County Cook County

Burr Ridge	Streamwood
Aurora	Norridge
Bolingbrook	Palatine
Oak Brook	Hoffman Estates
Oak Brook Terrace	Forest Park
Warrenville
Willowbrook
Woodridge

· The majority of these policies provided some indication that electronic mail might be accessed by a municipality, but they did not explicitly address the Open Meetings Act nor the applicability of FOIA to elected officials. The policies were instead directed towards municipal employees.

· Five of these thirteen policies (38.5% of the category) contain some discussion of FOIA, but none address the Open Meetings Act.

3.) Municipalities with Memoranda but No Policy

· Seventeen of the 113 responsive municipalities (15%) have at some point addressed the application of FOIA and the Open Meetings Act to e-mail by circulating a memorandum to public officials or hosting a presentation by an attorney on the subject.

DuPage County Cook County

Westmont	Des Plaines Park Forest
Lombard	Niles Forest View
Elmhurst	Deerfield Alsip
Darien	Barrington Richton Park
Clarendon Hills	Inverness Flossmoor
	LaGrange Hazel Crest

· The Center generally did not analyze the memoranda, as the main focus of our study was whether the municipalities have a binding policy.

4.) Municipalities That Withheld Memoranda under Attorney-Client Privilege

· Five additional responsive municipalities (4.4%) would seemingly have fallen into the “Municipalities with Memoranda but No Policy” category, because they had memoranda but no binding policy. However, these public bodies claimed an exemption from FOIA under attorney-client privilege, pursuant to Section (7)(1)(n), and therefore did not disclose the memoranda.

DuPage County Cook County

Downers Grove	Lincolnwood
	Glenview
	Northbrook
	Tinley Park

5.) Municipalities with No Such Policies or That Provided Us with a Non-Relevant

Policy

· Seventy-three of the 113 responsive municipalities (64.6%) have no policy or memoranda on this subject.

· A few municipalities within this category provided the Center with policies on Internet usage that bore no relevance to open records laws, and instead focused on such issues as appropriate use and avoiding computer viruses on municipal computers. As such, these policies were classified as municipalities having no policy for the purpose of the Center’s survey.

DuPage County Cook County

Bensenville	Evanston Westchester Orlando Hills
Bloomingdale	Rosemont River Forest Orland Park
Carol Stream	Glencoe North Riverside Palos Park
Elk Grove Village	Winnetka Chicago Heights Stickney
Glen Ellyn	Niles Crete Glenwood
Glendale Heights	Skokie Homewood Sauk
Hanover Park	South Barrington Steger
Roselle	Hanover Park Country Club Hills Chicago Ridge
Villa Park	Elmwood Park Markham Crestwood
Wayne	Franklin Park Midlothian Hometown
West Chicago	Northlake Oak Forest Merrionette Park
Wheaton	Brookfield Posen Palos Heights
Winfield	Countryside Calumet Park Matteson
St. Charles	Hodgkins Riverdale Worth
	Indian Head Park Summit East Hazel Crest
	Forest Park Calumet City Maywood
	Melrose Park Lansing LaGrange Park
	South Holland Stone Park Thornton

6.) Municipalities That Did Not Respond

· Fifty-three municipalities of the 166 originally surveyed (32%) did not respond to the Center’s FOIA request.

DuPage County Cook County

Addison	Kenilworth Oak Lawn Robbins
Hinsdale	Golf Blue Island Crestwood
Itasca	Barrington Hills Olympia Fields Dixmoor
Lisle	East Dundee Dolton University Park
Naperville	Elgin Burnham Harvey
Lemont	River Grove Lynwood Phoenix
	Schiller Park Hickory Hills Palos Hills
	Harwood Heights Bedford Park
	Buffalo Grove Evergreen Park
	Mount Prospect So. Chicago Heights
	Prospect Heights Ford Heights
	Wheeling Riverside
	Cicero Maywood
	Bedford Park Broadview
	Hickory Hills Berkeley
	Justice Bellwood
	Lyons Oak Park
	McCook Willow Springs
	Riverside Western Springs

· Under the FOIA, government bodies have seven working days within which to respond to a request by providing the requested information, denying the request and informing the requestor of the denial, or requesting an extension for an additional seven working days to respond. The Center set August 3rdas the cutoff date for responding to the requests, so even those municipalities that received the request on the last day it was sent, July 11th, had more than fourteen business days to respond. The Center made follow-up telephone calls to municipal clerk’s offices after the statutory response period had expired. While thirteen public bodies’ employees stated that they had no knowledge of receiving the request, the remaining municipalities generally stated that they had not yet issued a response, despite being required to do so by law. Other municipalities never responded to the Center’s follow-up calls.

The Local Records Act

· Only eight of the 113 responsive municipalities (7.1%) have a written policy that specifically addresses how substantive e-mails should be preserved. The remaining public bodies did not specifically indicate how e-mail that constitutes public records shall be preserved, significantly diminishing the public’s capacity to access public information under FOIA. Information cannot be accessed if it has not been preserved.

Methods of Preservation

	Most Comprehensive Policies	Minimally Relevant Policies
Print		Burr Ridge
Save to Server		Norridge (Cook County) Forest Park (Cook County) Aurora (DuPage County)
Print or Save		Hoffman Estates (Cook County)
Print and Save	Bartlett (DuPage County)	Willowbrook (Cook County) Oak Brook (DuPage County)
None specified in policy	Park Ridge (Cook County) Wilmette (Cook County) Northfield (Cook County) Arlington Heights (Cook County)	Streamwood (Cook County) Palatine (Cook County) Bolingbrook (DuPage County) Oakbrook Terrace (DuPage County) Warrenville (DuPage County) Woodridge (DuPage County)

VI. Recommendations for Reform

The adoption of a policy is a necessary tool to provide public officials with guidance on how the Internet impacts the business of governance, as well as to have a standard of accountability. The following are issues that should be addressed in the creation of model policy, which incorporates the best aspects of the most comprehensive policies obtained by the Center, and additional suggestions developed by the Center to address issues of public concern.

Significant provisions of the model policy include:

Explicit application beyond e-mail to include other Internet communications such as chat rooms and instant messaging;
Clarification that the policy applies to both the public body and its subsidiary bodies;
Enumeration of the number of members required to constitute a majority of a quorum for the particular body;
A ban on forwarding, “reply all,” “cc” or “bcc” messaging on matters of public business;
A requirement that the municipality “print and file,” as well as save on a server, Internet communications that are public records;
Explicit application of the Open Meetings Act and FOIA to public business engaged in on a personal computer; and
A requirement that public officials receive a government e-mail address upon becoming a member of a public body, and thereafter using that address predominately for public business to aid in the separation of e-mail regarding public business from that which is personal.

Additional considerations include:

The consideration of fines or other enforcement measures to ensure that municipalities respond to FOIA requests in a timely manner;
A discussion by public bodies regarding how best to preserve e-mail and other electronic communications; and
Mandated open records training for municipal employees and elected officials.

VII. Conclusion

While the Center was surprised to find such a large number of municipalities without any comprehensive policy addressing the applicability of the Freedom of Information Act, the Open Meetings Act, and the Local Records Act to e-mail, a limited number of municipalities should be commended for implementing policies to address this challenging area at the intersection of law and technology. Public bodies need to adopt comprehensive policies that address new forms of communication and new methods by which public officials conduct public business. The Freedom of Information Act and the Open Meetings Act mandate that government must operate in an open and transparent manner. The adoption of policies that are forward looking are essential to maintaining a healthy democracy, and ensuring citizen access to public documents and the deliberation of public business.

[1] The phrase “Internet communications” was used with the intent of capturing policies relevant not only to e-mail, but also to related technologies such as online bulletin boards, blogs, and instant messaging. As very few municipalities have policies addressing Internet communications outside of e-mail, the remainder of this article refers specifically and solely to e-mail policies. Other forms of Internet communications are addressed separately and only where addressed in a municipality’s policy.