Chi. Tribune Co. v. Cook Cnty. Assessor's Office

• Decision Date: 29 June 2018
• Docket Number: No. 1–17–0455,1–17–0455
• Parties: CHICAGO TRIBUNE COMPANY, Plaintiff–Appellee/Cross–Appellant, v. COOK COUNTY ASSESSOR'S OFFICE, Defendant–Appellant/Cross–Appellee.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 170455
109 N.E.3d 872

CHICAGO TRIBUNE COMPANY, Plaintiff–Appellee/Cross–Appellant,
v.
COOK COUNTY ASSESSOR'S OFFICE, Defendant–Appellant/Cross–Appellee.

No. 1–17–0455

Appellate Court of Illinois, First District, FIRST DIVISION.

June 29, 2018

Kimberly A. Jansen, of Hinshaw & Culbertson, LLP, of Chicago, for appellant.

Eric Stephen Mattson, of Sidley Austin LLP, of Chicago, for appellee.

JUSTICE GRIFFIN delivered the opinion of the court.

¶ 1 The Chicago Tribune requested records from the Cook County Assessor's Office under Illinois' Freedom of Information Act ( ( 5 ILCS 140/1.1 et seq. (West 2016) ). The Tribune requested records that pertain to the valuation of residential, commercial, and industrial property in Cook County for purposes of taxation. The Assessor's Office denied the FOIA request, maintaining that the information sought was exempt from disclosure under the Act (see 5 ILCS 140/7(1)(f) (West 2016) ). The Tribune filed this case, and the trial court ruled in its favor holding that the requested information was subject to disclosure under FOIA and not subject to any exemptions. The Assessor's Office appeals, and we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff the Chicago Tribune Company sent a Freedom of Information request to defendant the Cook County Assessor's Office seeking to compel the Assessor's Office to produce records regarding its valuation of properties in Cook County. Specifically, the Tribune requested that the Assessor's Office turn over the spreadsheets and other records it uses to determine the value of properties for taxation purposes. The Assessor's Office denied the Tribune's Freedom of Information request, claiming that the "deliberative process exemption," sometimes also called the "preliminary records exemption," allowed the government to withhold the documents.

109 N.E.3d 876

¶ 4 The Assessor's Office is responsible for valuing approximately 1.8 million parcels of Cook County property each year for taxation purposes. The Tribune requested that the Assessor's Office produce the spreadsheets used in the assessment of commercial and industrial properties and also that it produce residential property valuation reports that, in the Assessor's Office, are known as 65D reports. Both the spreadsheets and the 65D reports include the Assessor's Office's value of properties in Cook County for taxation purposes.

¶ 5 The Tribune subsequently also requested 65A reports which are township-level summaries of the 65D reports. The 65D reports contain information about a parcel of property such as the type of residence (townhouse, etc.), the square footage, and various other characteristics. After an analysis is done by the Assessor's Office, a value is assigned to the property and that value is put into the 65D report. The 65A reports take a more macro-level view; providing a breakdown by neighborhood and by class. The Tribune maintains that the preliminary records exemption claimed by the Assessor's Office does not apply to any of the requested records and, thus, that the documents have been improperly withheld.

¶ 6 In denying the FOIA requests by letter, the Assessor's Office maintained that the records sought by the Tribune amounted to the Office's "opinion of value." The Assessor's Office also stated that the requests sought "essentially our Office's employees' thought processes."

¶ 7 The Assessor's Office has a multi-step process for calculating and arriving at a property valuation. The first step conducted by the valuation department is that it runs a computerized regression model that compares a subject property to similar properties that have recently been sold. The result of running the models is a spreadsheet-type record in which properties are broken down by individual characteristics—attributes such as square footage, number of bathrooms, number of fireplaces, and the property's prior market value. Using the compiled data of sales files and characteristic files, a multiple regression analysis is conducted. The sales data and the characteristic data are all ultimately merged and all of that information is used in the subsequent analytical steps to arrive at the final valuation.

¶ 8 The next step after aggregating all the data and running it through the regression model is to look for outliers. "Outliers," for purposes of the analysts' review, are comparative properties where something looks out of the ordinary for valuation purposes, where the comparative property does not fit with the characteristics of the home being evaluated. Only approximately three to five percent of the properties register some type of an outlier. But if the Assessor's Office compares a property with another like property that has the same relevant characteristics but twice the estimated value, the outliers are edited out. The regression analysis is then rerun without any outlier data in order to create what the Assessor's Office deems to be the property's market value for taxation purposes. The newly-calculated proposed market values are included in the 65D report.

¶ 9 The 65D reports, with all fields filled in at this point, are hand checked by an analyst. Changes are made by an analyst to roughly 20 or 25% of the properties, but once that analysis is completed, the 65D report and the newly-calculated current market value therein are considered final. The process for assessing the value of commercial and industrial properties is similar, and the results from assessing non-residential property are contained in

109 N.E.3d 877

spreadsheets that the Tribune also requested.

¶ 10 After its FOIA request was rejected, the Tribune filed its complaint alleging that the Assessor's Office was improperly withholding information that the public is entitled to view under FOIA. The Assessor's Office filed a motion to dismiss supported by the affidavits of two of its analysts, Alfonso Sarro and Mark Dwyer. Sarro and Dwyer were subsequently deposed about the processes for valuing property in Cook County. The deposition testimony and the affidavits generally describe the process set forth above regarding the Assessor's Office's valuation process. For both commercial and residential properties, the Assessor's Office maintains worksheets where data is contained about the character of the property. Recent sales data from nearby similar properties is also considered. Then, after an analyst reviews the proposed assessment and considers other factors such as appraisal tools, adjustments are made and a property value is set.

¶ 11 Based on the deponent-analysts' affidavits and deposition testimony and some other documentary evidence on file, cross-motions for summary judgment were presented to the trial court. The cross-motions called on the trial court to resolve the question of whether the spreadsheets valuing commercial and industrial property, the 65A reports, and the 65D reports are covered by the "deliberative process exemption" to FOIA.

¶ 12 The Assessor's Office took the position that, as one of its witnesses Mark Dwyer testified, the information requested by the Tribune is "the result of the analysts' research, data collection, thoughts, impressions and experience." The Tribune on the other hand stated that "far from revealing the give-and-take of a deliberative process, [the requested documents] reflect factual data."

¶ 13 In a detailed written order, the trial court held that the records were not exempt from disclosure. The trial court explained that, even in light of the affidavits and deposition testimony, the requested documents do not contain any information that supports that the documents fall within the deliberative process exemption. The trial court further explained that the requested documents "do not in any way reveal the subjective personal position or opinion of any individual in the [Assessor's Office]" such that the preliminary records exemption would apply. The trial court found, in fact, that none of the documents revealed "any debate" or "deliberation," but instead found that the documents "contain factual information and the results of the [Assessor's Office's] valuation which are not covered under the deliberative privilege."

¶ 14 The trial court also awarded attorney fees to the Tribune. FOIA provides that a party that prevails in court when challenging the government's denial of a FOIA request is entitled to reasonable attorney fees and costs. 5 ILCS 140/11(i) (West 2016).

¶ 15 In a final order, the trial court awarded the Tribune the full amount of attorney fees and costs that were sought. The trial court also ordered that the summary judgment briefing, the evidence submitted therewith, and the transcripts of the testimonial evidence remain sealed pending appeal. An order was entered by this court sealing the briefs and the record submitted on appeal.

¶ 16 The Assessor's Office appeals the entry of summary judgment in the Tribune's favor. It requests that we reverse that order and enter judgment in its favor. The Assessor's Office also argues that we should set aside the award of attorney fees

109 N.E.3d 878

and costs because the petition was not supported by sufficient evidence, and because the amount awarded was not calculated based on the prevailing market rate or the other factors that trial courts are...