In a nonbinding opinion, the Illinois Attorney General’s Public Access Counselor found that the Village of Orland Park improperly denied a FOIA request for the lists of users who had been banned or blocked from the Village’s social media feeds. The Village initially denied the FOIA request, stating that it did not possess the responsive records. The requestor shared a screenshot with the Village that showed he had been blocked on the social media page and explained to the Village how it could access the list of blocked users via its social media accounts. The Village continued to deny the request and then allegedly unblocked the social media accounts.
The Village argued that the lists of blocked users were not public records because the records were prepared, maintained, possessed, and controlled by the third-party social media provider and therefore were not required to be provided under FOIA. The PAC disagreed, concluding that these types of records were indeed under the control of the Village because, as the account owner of the social media pages, the Village chooses which users to block. The PAC also rejected the Village’s argument that disclosing the lists would require the creation of new records because the Village merely needed to access existing information within its social media accounts.
While not addressed by the PAC, this opinion also is a reminder that there are First Amendment considerations when blocking or banning users on a public body’s social media accounts, as a federal appellate court concluded in a case about President Trump’s blocking of Twitter users who criticized him.
Finally, it is important to note that the PAC once again asserted that a public body has a duty to preserve records and inferred that the Village may have violated FOIA by unblocking users instead of preserving the record when it received the FOIA request.
Source: Public Access Counselor Nonbinding Determination Letter 2020 PAC 63566 (Sept. 16, 2020)
