2:140-AP1 Guidance for Board Member Communications, Include Email Use

The Open Meetings Act (OMA) requires the School Board to discuss District business only at a properly noticed Board meeting.  5 ILCS 120/). Other than during a Board meeting, a majority or more of a Board-quorum may not engage in contemporaneous interactive communication, whether in person or electronically, to discuss District business. This Guidance assumes a Board has seven members and covers issues arising from Board policy 2:140, Communications To and From the Board.

Communications Between or Among Board Members and/or the Superintendent Outside of a Properly Noticed Board Meeting

1. The Superintendent or designee is permitted to email information to Board members. For example, the Superintendent may email Board meeting agendas and supporting information to Board members. When responding to a single Board member’s request, the Superintendent should copy all other Board members and include a do not reply/forward alert to the group, such as: “BOARD MEMBER ALERT: This email is in response to a request. Do not reply or forward to the group but only to the sender.”
2. Board members are permitted to discuss any matter except District business with each other, whether in person or by telephone or email, regardless of the number of members participating in the discussion. For example, they may discuss league sports, work, or current events.
3. Board members are permitted to provide information to each other, whether in person or by telephone or email, that is non-deliberative and non-substantive. Examples of this type of communication include scheduling meetings and confirming receipt of information.
4. A Board member is not permitted to discuss District business with more than one other Board member at a time, whether in person or by telephone or email. Stated another way, a Board member may discuss District business in person or by telephone or email with only one other Board member at a time. However, a Board member should not facilitate interactive communication by discussing District business in a series of visits with, or telephone calls or emails to, Board members individually.
5. A Board member should include a do not reply/forward alert when emailing a message concerning District business to more than one other Board member. The following is an example of such an alert: “BOARD MEMBER ALERT: This email is not for interactive discussion purposes. The recipient should not reply to it or forward it to any other individual.”
6. Board members should not forward email received from another Board member.

When Must the Electronic Communications Sent or Received by Individual Board Members Be Disclosed Pursuant to a Freedom of Information Act (FOIA) Request?

An electronic communication must be disclosed if it is a public record as defined by FOIA, unless a specific exemption applies. A public record is any recorded information “pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.” 5 ILCS 140/2. Email sent or received by an individual Board member may be, depending on the content and circumstances, subject to disclosure as a public record (unless a FOIA exemption is applicable).

If a Board member uses a District-provided device or email address to discuss public business, the email is subject to disclosure under FOIA, barring an applicable exemption. If a Board member uses a private device and email address, the communication is subject to FOIA if it satisfies this test:

• First, the communication pertains to the transaction of public business, and
• Second, the communication was: (1) prepared by a public body, (2) prepared for a public body, (3) used by a public body, (4) received by a public body, (5) possessed by a public body, and/or (6) controlled by a public body.

This test is from the appellate court decision in City of Champaign v. Madigan, 992 N.E.2d 629 (Ill.App.4th, 2013).

The following examples describe FOIA’s treatment of electronic communications:

1. If an electronic communication does not pertain to public business, it is not a public record and is not subject to a FOIA request.
2. An electronic communication pertaining to public business that is:
   1. Sent and/or received by an individual Board member using a personal electronic device and personal email address while he or she is at home or work would not be a public record. Individual Board members, alone, cannot conduct school District business. As stated earlier, emails among a majority or more of a Board-quorum violate OMA and, thus, are subject to disclosure during proceedings to enforce OMA.
   2. Sent and/or received by an individual Board member on a District-issued device or District issued email address will be a public record and subject to FOIA. The electronic communication is under the control of the District.
   3. Received by an individual Board member on a personal electronic device and then forwarded by the Board member to a District-owned device or server will be a public record and subject to FOIA. The electronic communication is under the control of the District.
   4. Received by an individual Board member using a personal electronic device and personal email address, and then forwarded by the Board member to enough members to constitute a majority or more of a Board-quorum will be a public record and subject to FOIA. The electronic communication is in the District’s possession.
   5.  Either sent to or from a Board member’s personal electronic device during a Board meeting will be a public record and subject to FOIA. The electronic communication is in the District’s possession because Board members were functioning collectively as a public body. The District’s Freedom of Information Officer and/or Board Attorney will help determine when a specific communication must be disclosed pursuant to a FOIA request.

When Must Electronic Communications Be Retained?

Email that qualifies under FOIA as a public record will need to be stored pursuant to the Local Records Act (LRA), only if it is evidence of the District’s organization, function, policies, procedures, or activities or contains informational data appropriate for preservation.  50 ILCS 205/. An example is any email from a Board officer concerning a decision made in his or her capacity as an officer. If a Board member uses his or her personal email, he or she must copy this type of email to the appropriate District office where it will be stored. If made available, Board members should use their email accounts provided by the District and the District will automatically store the official record messages. The District will delete these official record messages as provided in an applicable, approved retention schedule. Of course, email pertaining to public business that is sent or received by a Board Member using a District-issued device or email address will be subject to FOIA, even if the email does not need to be retained under the LRA.

Important: Do not destroy any email concerning a topic that is being litigated without obtaining the Board attorney’s direction. In federal lawsuits, there is an automatic discovery of virtually all types of electronically created or stored data that might be relevant. This is referred to as a litigation hold.  Attorneys will generally notify their clients at the beginning of a legal proceeding not to destroy any electronic records that might be relevant. For more discussion of a litigation hold, see 2:250-AP2, Protocols for Record Preservation and Development of Retention Schedules. In addition, any person who knowingly with the intent to defraud any party destroys, removes, or conceals any public record commits a Class 4 felony. 50 ILCS 205/4.  

Date Amended:  August 20, 2019