Callinan v. Prisoner Review Bd.

• Decision Date: 07 February 2007
• Docket Number: No. 3-05-0644.,3-05-0644.
• Citation: 862 N.E.2d 1165,308 Ill.Dec. 962
• Parties: William CALLINAN, Plaintiff-Appellant, v. PRISONER REVIEW BOARD, Defendant-Appellee and Illinois Department of Corrections, Intervening Defendant-Appellee.
• Court: United States Appellate Court of Illinois

862 N.E.2d 1165

308 Ill.Dec. 962

William CALLINAN, Plaintiff-Appellant, v. PRISONER REVIEW BOARD, Defendant-Appellee and Illinois Department of Corrections, Intervening Defendant-Appellee.

No. 3-05-0644.

Appellate Court of Illinois, Third District.

February 7, 2007.

Alan Mills (argued), Uptown People's Law Center, Chicago, for William Callinan.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Paul Racette (argued), Assistant Attorney General, Chicago, Eric Rieckenberg, Assistant Attorney General, Springfield, for Prisoner Review Board.

Presiding Justice LYTTON delivered the opinion of the court:

Plaintiff, William Callinan, filed a complaint for declaratory judgment against defendant Prisoner Review Board pursuant to the Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 2002)) to obtain his parole file. Defendant Illinois Department of Corrections intervened, alleging that plaintiff was not entitled to certain documents contained in his file. The court ordered defendants to provide plaintiff a copy of his entire parole file. Plaintiff then filed a petition for attorney fees and costs. The trial court denied the petition. We reverse and remand.

In 2002, William Callinan was incarcerated at Western Illinois Correctional Center serving an indeterminate prison sentence. Prior to a parole hearing, plaintiff's attorney attempted to review plaintiff's file maintained by the Board. The Board allowed plaintiff's counsel to inspect a portion of the file but withheld certain documents from him. Following his examination of the file, plaintiff's counsel requested copies of approximately 500 pages. The Board notified plaintiff's attorney that each page would cost $1, for a total cost of $502.

Thereafter, plaintiff, through his counsel, requested that the Board provide him with a copy of his entire parole file pursuant to the Act (5 ILCS 140/3 (West 2002)) and reduce the copying costs to 5 to 10 cents per page. The Board failed to respond to plaintiff's request. Plaintiff then filed a declaratory judgment action against the Board, requesting the trial court to find that the Board violated the Act by failing to provide him copies of his entire file and charging him $1 per copied page. In its answer, the Board denied both claims.

At this point, the Department intervened because some of the documents plaintiff requested were in its custody and control. The Department asserted that certain documents in plaintiff's file were exempt from disclosure under the Act.

Plaintiff filed a motion for summary judgment. The trial court partially granted the motion, finding that plaintiff's attorney was entitled to the contested documents. However, the court held that there were genuine issues of material fact regarding the reasonableness of the copying charges.

Thereafter, in response to plaintiff's interrogatories, the Board explained that its copying costs were calculated by taking into account the salary of the chief legal counsel who would be making the copies and also assumed a postage charge of 37 cents per page. Plaintiff filed a renewed motion for summary judgment, arguing that the copying costs were unreasonable and in violation of the Act. The trial court granted plaintiff's motion and ordered defendants to charge plaintiff no more than $35.10 to copy 500 pages of plaintiff's file. The parties later agreed that defendants would charge plaintiff $75 for copying the entire file.

In 2005, plaintiff filed a petition for approval of fees, requesting that the court award him attorney fees and costs in the amount of $10,979.81, pursuant to section 11(i) of the Act. See 5 ILCS 140/11(i) (West 2002). According to his affidavit, plaintiff's attorney spent a total of 54.4 hours on plaintiff's case, 34 hours of which he expended in 2004 and 2005. Based on an hourly rate of $200, plaintiff requested a total of $10,880 in attorney fees. Plaintiff also requested $99.81 in costs that his attorney incurred by staying overnight in a hotel prior to a 2004 court hearing.

In its response, the Board noted, among other things, that section 11(i) had been amended in 2004, and that the amended version should apply to plaintiff's petition.

The trial court denied plaintiff's petition. The court explained that it was not inclined to award fees "[a]bsent fraud, malice, or wilful lack of compliance with the Freedom of Information Act." According to the court, plaintiff was not entitled to his attorney fees because "there was no finding of contempt or such an egregious violation of the Act to justify awarding attorney fees." Plaintiff appeals the trial court's denial of his petition for fees.

ANALYSIS

I.

Section 11(i) of the Act, which allows an award of attorney fees for a successful plaintiff, was amended on January 1, 2004. Under the original statute, plaintiffs were entitled to fees when they proved that (1) they substantially prevailed, (2) the record or records in question clearly were of significant interest to the general public, and (3) the public body lacked any reasonable basis in law for withholding the record. See 5 ILCS 140/11(i) (West 2002); Duncan Publishing, 304 Ill.App.3d at 786, 237 Ill. Dec. 568, 709 N.E.2d at 1287. Defendants contend that the original version of the statute applies and allows plaintiff to recover fees only if it satisfied all three conditions:

"If a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys' fees if the court finds that the record or records in question were of clearly significant interest to the general public and that the public body lacked any reasonable basis in law for withholding the record." 5 ILCS 140/11(i) (West 2002).

Under the January 1, 2004 amendment, plaintiffs without a commercial interest need only prove that they have substantially prevailed in the action, while parties with a commercial interest must still prove that their request also serves a public interest and that defendants lacked a reasonable basis for withholding the records. See 5 ILCS 140/11(i) (West 2004). The amended statute provides:

"If a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys' fees and costs. If, however, the court finds that the fundamental purpose of the request was to further the commercial interests of the requestor, the court may award reasonable attorneys' fees and costs if the court finds that the record or records in question were of clearly significant interest to the general public and that the public body lacked any reasonable basis in law for withholding the record." 5 ILCS 140/11(i) (West 2004).

In deciding which version of the statute applies, we must first determine whether the legislature has expressly prescribed the statute's temporal reach. See Allegis Realty Investors v. Novak, 223 Ill.2d 318, 307 Ill.Dec. 592, 860 N.E.2d 246 (2006). If the statute contains no express provision regarding its temporal reach, we must then determine if the statutory amendment is procedural or substantive. See Allegis, 223 Ill.2d 318, 307 Ill.Dec. 592, 860 N.E.2d 246. Those that are procedural may be applied retroactively, while those that are substantive may not. Caveney v. Bower, 207 Ill.2d 82, 92, 278 Ill.Dec. 1, 797 N.E.2d 596 (2003).

Nothing in the 2004 amendment to section 11(i) of the Act indicates that the attorney fees provision should not be applied to cases pending at the time of its enactment. Thus, we need to determine if the statutory provision is procedural or substantive.

Illinois generally characterizes attorney fees as procedural for retroactivity purposes and applies new attorney fees statutes to pending cases. See Songer v. State Farm Fire and Casualty Co., 91 Ill.App.3d 248, 254, 46 Ill.Dec. 715, 414 N.E.2d 768, 773 (1980); People v. Frieder, 90 Ill.App.3d 116, 120, 45 Ill.Dec. 954, 413 N.E.2d 432 (1980). However, Illinois courts will not give retroactive application to an attorney fees statute where (1) liability did not exist prior to enactment of the legislation; (2) the conduct giving rise to possible liability occurred before the effective date; and (3) the party against whom expenses were sought could not avoid or limit its liability by any action taken after the statute's effective date. See Board of Education of School Dist. No. 170 v. Illinois State Board of Education, 122 Ill. App.3d 471, 477, 77 Ill.Dec. 944, 461 N.E.2d 567, 572 (1984).

The amended attorney fees provision contained in the Act satisfies none of the elements outlined in Board of Education. The pre-amendment version placed defendants on notice that their refusal to disclose the requested documents could subject them to liability. The 2004 amendment did not create new liability for attorney fees; it only altered plaintiff's burden of proof. Defendants incurred liability for plaintiff's attorney fees initially by refusing plaintiff's requests for documents and continued to incur substantial liability after the amendment became effective when they continued to deny plaintiff the requested documents. Defendants, who notified the court and plaintiff of the amendment, were clearly aware of its existence and should have realized that it may have subjected them to greater liability. Defendants could have significantly reduced their liability, considering the 34 hours of work plaintiff's attorney incurred after the statute was amended, by providing plaintiff with the requested documents soon after the amendment became effective. Thus, we conclude that the 2004 amendment to section 11(i) applied to plaintiff's petition for fees.

II.

A court should award attorney fees pursuant to a statutory fee provision where the objectives of the statute and fee provision will be promoted. See King v. Illinois State Board of...