work during a public meeting beats the definition of public record freedom of information act the second issue is whether a party of interest to administrative review harry of the attorney general finding opinion in a foyer case be allowed to that the document is a public record for the purposes of point and that is so because only records in the custody or possession of the public body are presumed to be public records so what analysis do we engage and to determine whether a record which electronic communications pertaining to the transaction of public business having been prepared for having been or being used i received by in the possession or under the control any public body so a test landing in a council members personal cell phones invites during a public meeting is had a public record so we can't presume it's a public record because it's not in custody or possession of the public post to increase the sales tax or the council member spouse may send a tax council member such a jerk i can't be set out about storm water sewer so if the answer is yes but that pertains to the transaction of public business then we proceed to the next question with the prepared buyer for the public body or the individual council member was it received by the public body or the individual council member is it in the possession or control of the public body or the individual council member a lot of energy was spent trying to turn a council member into a public body but this issue was decided by the first district and when the stone you which can be found on line stated an individual officer who is a member of the greater public body isn't however a separate public body and she cites to quint support this the term public body is not is that we don't know what messages were being texted between the council members and if you had meeting except that they're not doing that okoye and that's my concern here and that concern your honor we would address in conjunction with the open meetings act because o were required to do that publicly if you would see someone i know you're required publicly but what i'm suggesting is what if it's not being done publicly it's being done by text message between the various council mem and they're sitting there you know they've got their little devices which i don't use and they're there you know their phones are working here and we have no idea what's going on i don't know how to answer that exact state we don't know necessarily what influences a councilman we don't know use paper you know magazine articles to text messages outside at the public meeting on tats you can text each other council members can discuss public business if there's fewer than a majority of a quorum they can discuss public business so arguably they can discuss public business if you're not discussing it as a quorum so you have that issue in there but with these i always go back to the definition of public record because you have to show that those attacks were meet that criteria being used by or in the possession of the public body and that the nature of records used by the public and i guess is that there's no there's no record of what texas can take i mean it's each each council person would have their own  communicating but you know the kids you know they're just their thumbs are working and you have no idea what's being said when they ask a question what about the fact that the city council's actually in session and functioning as if the public  and people are receiving texts are sending texts during the meeting itself that's where i've and less going back to that statue i  communication devices during that time with me if you can hear back isn't it a public record that's what we're here to decide what the issue is to me and i think twenty sided that individual council member is not a public  individual council member isn't equivalent to a public when the individual council members come together in a public meeting to function as the city council isn't that a different situation than looking at their personal phone records when they're home talking about business i think that's the distinguishing thing for me and i don't think the statute provides for that i do well that's the other thing that's not a problem when it's in our control and possession now you have to go to another layer of analysis because we don't have it and that was our original argument was that we don't have these we don't have possession of them we don't have control over them but through since my predecessor but through thinking through the statute maybe these are text messages and let's think about this it's like we're here now but because we can presume anything not or control or a text message you have to kind of a step further to analyze ok well maybe this is a public record but we have to complete the analysis and i argue that analysis is the type criteria meanwhile else would it be received by i say it's received by the individual council members who may have a personal interest in it but it doesn't mean it's the public bodies now sometimes yes but traditional letters  certainly created this it's a difficult situation that we find ourselves in so i think  you know to say that these texts you know agendas are set way in advance so everyone knows what's being discussed everyone is prepared ahead of time the documents are produced so to say that some random text message during the council meeting would have some kind of disproportionate influence on the council member or their vote because that is what the attorney general said in her opinion was that it's very likely that city council members receive communications that aid in the elected officials formulation of commuting consequently affect their vote and i don't think that's what for it's designed to deal with because it doesn't affect council members opinions many things do this w you know i ask is it really as simple as i'm putting forward and i know that we grapple with this i can see that sea of faces but i'm arguing that it is because but gets past the attorney general and perhaps to others is this mistake council back to what just spoke was indicating does the analysis change when one city council member receives a text important to the majority of the other council members that change the analysis way it's written and what is a public record is is the position of the city of champagne because not only that we wouldn't necessarily know either that they did that  and i say i know you're actually no good you know hand over your emails and they say no then when we do we have control how do we get them you have to sue our own council members so i think that's a you don't have any further questions the second issue involves the filing of the counter claim and the petition for attorney's fees by the news is that which kind of turned this proceeding on its head and you can set out what they wanted through the attorney general and get your proceeding as if the attorney general did nothing under the statute to further their case by allowing the counterclaim and the injunction to issue especially that created two parallel causes of action asking for the same relief denial by the public body was to the head of the public body and if you didn't get satisfaction there then you could file a lawsuit for injunction the two thousand and nine amendment repealed that section and replaced it with section nine point five which is  another troubling aspect of the counterclaim attorney fees issue is that news because that sudden order compelling the city to release the requested records after the court affirms the pats administrative decision this is troubling because the standard of review is more per se rule that would make the freedom of information act almost entirely obsolete under the city's approach the roadmap for updating disclosure under foil is exceedingly simple a public body need only instruct all of its members all of its employees to conduct public business using their personal like trying to vices and their personal email accounts and the documents they create need never see th statute needs to be amended because you know when i've looked at some of the statutory history and the discussions on the floor of the senate they were concerned about the fact that personal devices might be able to be substantial deference by the court and can only be overturned if unreasonable were essentially irrational and so this legislative history of and would have to be so compelling to us at so as to essentially demonstrate that the attorney general has acted reasonably here my second response to that is that while i take your point that there was some discussion in the legislative history about personal life on it devices it was not the argument here that were that the city is really offering is one that i think flies in the face of what the ordinary meaning of a public body would be we are talking as you pointed out about individuals sitting in the front of a room during a formally convened meeting unlike the illinois one there is no federal statutory exception for contractors organizations that contract with the government to perform government functions on behalf of the guy and what the federal courts have said is that because those entities are centrally performing the acts of government they are performing the actions of government they are in sense an instrument of the government but they are therefore a part of the government for purposes of the freedom of information or statute includes section seven two which makes contractors a part of the government for purposes of oil it would be strange indeed to say that a completely private entity who has contracted to perform certain functions for the government is considered a part of the government for purposes of four but the actual individuals who are representatives of the public of the people and who sit on a public or are not is this in our language capacity and government business to further to further the interests of the government ever surely practical and pragmatic point of view it is difficult to say see how you can draw a line between the individuals who act on behalf of the government from the government itself it under the city's argument if an individual were to send a complaint about something to the head of the street to stand taters streets and sanitation department at their home address that  document and that individual put it in their briefcase carried it back to work every day read it remind them that they needed to address this that it that document would not be a public record according to the city that document would inherently be a private document simply by virtue of the fact that it was sent to this head of the department's home address that is not the wall that is not the law that the general simply identified and if you go go back to the canon of construction section one the statute is to be construed in favor of disclosure the appropriate methodology here is to interpret this threshold determination whether a document is a public record in a way that advances the values and the purposes of the statute that should be sure that definition will screen out some material and it will be that material which is genuinely private which does not bear upon government work but there nothing either in the statute either in the legislative history or in the structure of the law to suggest that this definition is meant to screen out a lot of material what is clear is that the general simply envision that most of the work here was to be done by the section seven exemptions individualized exemptions and that it is the burden of the public body to review documents individual by case by case or rather document by document bas document was either prepared by or for use by by a public body received by a public body or in the possession or control public body so to accept that argument is to elevate those last two elements above the other three clearly the statute envisions that there will be responsive documents that are not in the possession or control of the city and so it seems to me that if you're going to give in the ordinary princip construction and to treat those perves as co equals it can't be the case that possession or control is simply dispositive what the city has asked the court to do is take the presumption in section one point two which says that if it is in the possession or or text messages about an electronic document by a stamp so again it is an electronic record it would be in any form of civil discovery in every corporation america will tell you that these are perfectly reasonable viable record  that the term public body does not incorporate the individual members of a public body that the members are not a part of that institution and that's simply what about the case if you haven't discussed that the queen case if i can for if i can briefly address it the queen a public body under the old regime or only the head of the public body or the institution can be sued whether that individual can be so how to proceed against directly in court rather than against the institution and to take that language out of the context of discussing miss esther cites and i'm here on behalf of the champagne is set and it's reporter patrick wade the question of whether the text messages concerning city business center received in use by city council members the city did actually concede that it had asked the question records in fact there's no question that the city council members provided records to the city when the city asked for those records and significant is the limited scope of my client's request in the limited scope of the pac opinion it is very clear that both apply only to records that actually pertain to city business the legislative function of the affairs and that is because that's what my client patrick great specifically requested we don't have only a question is how do you know either have to trust that or right that's absolutely true and i think that is inherent in most communications that occur during an actual city council meeting that's right city council meetings in their study sessions right study sessions too but other than that would you agree that eight individual council members personal cell phone text messaging and e mail even if it related to city business it was not received or so during a city council meeting would not be subject to for you that's absolutely right because this is an administrative review opinion about whether or not boy it would apply to personal cell phone text messaging of city council members not conducted during a city council that question is simply not raised right understanding and i don't have i don't have an the path determination that the requested records are public records is not clear no need us and that is the standard of review here because the text messages were sent received in use by public officials during those public it had to construe the extent of my clients for a request and secondly and this is probably more important it had to look at the text messages that were forwarded by the city to that were at least in part concerning public and private payers and that those were not covered so it's clear that the pac and you took an analysis that that actually because of the factual nature of the text messages we did some have a readout some of those text messages are not as not being subject and we don't have a right to those portions of the text messages under deepak opinion and we're simply asking th would be responsive to the requests if they were required to be produce that's right in then later on in the pinion she goes on to describe who cares she can describe whatever she wants but that's not you should be for us  really no discretion to the trial court and it says that all the questioner has to do is prevail and news because that clearly her paled now the case law and legislative debates are clear it's certainly true that a public body consists of its members but i don't think that the individual members ever a public body the binding opinion also with a blanket disclosure on all messages received during a public meeting and this it's important and it speaks to the issues you raise that if that's going on in the expects really appropriate meetings issue his deliberations have to be public and if there is a suspicion that that is not going on and then there is in first proceeding through the state's attorney's office or the attorney general if there is a way to deal with that they can subpoena records if they suspect imagine they would have to be a standard they doesn't exist it's not used by the public body and part of this is relying on the public body to do the right thing the records are requested we gather them from where we gather them from we review we can't force the council members in the scenario as you phrased to release records if we don't we can't make them and i think that's what stops the analysis that we have some kind of control because