Hamer v. Lentz
| Decision Date | 25 October 1989 |
| Docket Number | No. 67401,67401 |
| Citation | 138 Ill.Dec. 222,547 N.E.2d 191,132 Ill.2d 49 |
| Parties | , 138 Ill.Dec. 222, 17 Media L. Rep. 1268 Brian A. HAMER, Appellee, v. Norman E. LENTZ et al., Appellants. |
| Court | Illinois Supreme Court |
Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Solicitor Gen., and Karen Michels Caille, Asst. Atty. Gen., Chicago, of counsel), for appellants.
Brian A. Hamer, pro se, Herbert L. Zarov, Mayer, Brown & Platt, Chicago, for appellee.
James C. Craven, Donald M. Craven, Springfield, for amici curiae Attorneys for Illinois Press Association and Illinois Newsbroadcasters Association.
Barry A. Miller, Malcolm C. Rich, Chicago, for amicus curiae Chicago Council of Lawyers.
Plaintiff brought this action in the circuit court of Cook County for injunctive and declaratory relief pursuant to the Illinois Freedom of Information Act (FOIA) () against Norman E. Lentz, administrative secretary of the General Assembly Retirement System (GARS), and the board of trustees of GARS. In his complaint, plaintiff sought an order directing defendants to make available to plaintiff certain public records in the possession of GARS, and an award of attorney fees and costs. The trial court ordered defendants to disclose some but not all of the requested information, and denied plaintiff's petition for attorney fees.
The appellate court affirmed in part, reversed in part and remanded, ruling (1) that the FOIA requires all of the records requested by plaintiff to be disclosed, and (2) that plaintiff is entitled to an award of fees. The appellate court remanded the cause for a hearing on the reasonableness of the amount of fees requested. 171 Ill.App.3d 888, 121 Ill.Dec. 738, 525 N.E.2d 1045.
We allowed defendants' petition for leave to appeal pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315). Defendants raise the following issues: (1) whether plaintiff's status as an attorney proceeding pro se precludes an award of attorney fees under the FOIA; (2) whether the appellate court applied the appropriate standard of review in reversing the trial court's denial of attorney fees; and (3) whether the appellate court erred in ordering defendants to release to plaintiff all of the requested information.
We granted leave to the Illinois Press Association, the Illinois News Broadcasters Association, and the Chicago Council of Lawyers to file amicus curiae briefs. Amici urge us to affirm the judgment of the appellate court.
The facts giving rise to this appeal, which are not in dispute, are fully set forth in the appellate court's opinion and need not be repeated at length here. Briefly, on September 19, 1984, plaintiff, Brian A. Hamer, an attorney, submitted a written request for certain records to defendant Norman E. Lentz, the administrative secretary of the General Assembly Retirement System (GARS). The information sought concerns State pension payments received by former members of the Illinois General Assembly. The two categories of information that remain in dispute are the following: (1) the length of service in the General Assembly of all former members of the General Assembly who are currently receiving pension payments under GARS; and (2) the cumulative pension received by each former member from the date of retirement to the most recent practicable date.
Over the next 11 months, the parties exchanged correspondence, but the records requested by plaintiff were not released. On August 15, 1985, plaintiff filed this action seeking an injunction ordering defendants to make available the requested records, a declaration that their continuing failure to do so constituted a violation of the FOIA, and an award of attorney fees and costs. In their answer to the complaint, defendants asserted as affirmative defenses (1) that they denied the request in the good-faith belief that, as trustees of the pension funds, they had a fiduciary duty to the beneficiaries not to disclose confidential financial information, and (2) that the information was exempt from disclosure under the FOIA because the information, if disclosed, "would constitute a clearly unwarranted invasion of personal privacy." Ill.Rev.Stat.1987, ch. 116, par. 207(b)(ii).
The trial court granted plaintiff's motion for summary judgment, ruling that the information requested was not exempt from disclosure under the FOIA. The court also ruled that the defendants were only obligated to produce records maintained by them in the ordinary course of business. The trial court subsequently held a hearing, during which defendants explained the recordkeeping system of GARS. Following the hearing, the trial court entered an order directing defendants to produce some, but not all, of the information plaintiff had requested; the trial court did not expressly state the basis for its ruling. In a later proceeding, the trial court denied plaintiff's petition for attorney fees brought under the FOIA.
Plaintiff appealed, contending that the trial court erred in failing to order defendants to provide records showing the cumulative pension of each retiree and the lengths of service upon which those pensions are based. Plaintiff also appealed from the denial of his petition for attorney fees. The appellate court affirmed in part, reversed in part, and remanded, ruling in favor of plaintiff on both the merits and on the attorney fees issue.
The information that remains in dispute is the cumulative pension of each former member of the General Assembly and the length of service of each former member. Defendants do not dispute that their records contain this information. Nor do they contend in this court that the records fall within any of the statutory exemptions set out in section 7 of the FOIA (Ill.Rev.Stat.1987, ch. 116, par. 207). Their sole contention in resisting disclosure is that "the appellate court erroneously concluded that the trial court did not release [this material] to plaintiff because [the material] contained information which was exempt from disclosure." Defendants maintain that the trial court properly declined to order disclosure of the disputed records "since that information would require defendants to go through two different types of ledgers for each former member and create a new document." See Ill.Rev.Stat.1987, ch. 116, par. 201 (no duty is imposed on a public body to create a new record in order to comply with a FOIA request).
Before turning to an examination of the records in dispute, we note, first, that the trial court never made the finding the defendants claim the court made. Second, the defendants' position seems to be that if information is located in two different places, producing that information involves the creation of a new record. Such a position is supported neither by legal authority nor by logic.
We conclude that the appellate court correctly ruled that defendants must disclose all of the requested information.
In the trial court, in response to the court's order to make a presentation to the court indicating the manner in which records are maintained by GARS, the defendants, on February 26, 1986, filed a memorandum (February memorandum). The February memorandum states that an annuitant ledger sheet maintained by defendants for each retired member "shows the total benefit received for the fiscal year and the total benefit received"--in other words, the cumulative pension received. A copy of one such ledger sheet was attached to the memorandum as an exhibit. We fail to understand how defendants can resist disclosure of the cumulative pension information. The information is maintained by defendants in the ordinary course of business and it is not exempt from disclosure; accordingly, defendants must release it to plaintiff.
Defendants' contention that the appellate court erroneously relied on section 8 of the FOIA is meritless. (Ill.Rev.Stat.1987, ch. 116, par. 208 (where a public record contains both exempt and nonexempt material, "the public body shall separate the exempt material and make the non-exempt material available for inspection and copying").) The appellate court correctly noted that the annuitant ledger sheets contain information that is not relevant to plaintiff's request--that is, information that was not requested by plaintiff. The appellate court further noted that some of this unrequested information may be exempt from disclosure on privacy grounds. The appellate court correctly ruled that if some of the information on the ledger sheets is not subject to disclosure either because plaintiff did not request it, or because it falls within a statutory exemption, the FOIA provides for such a situation in section 8.
The record is somewhat unclear as to the manner in which the length of service information is maintained. What is clear, however, is that defendants have this information and, as we have noted, defendants do not dispute this. The February memorandum explains that certain GARS information is stored on computer tapes which are operated by and are in the possession of the State Employees' Retirement System (SERS). Each month, GARS submits data input sheets to SERS. SERS personnel enter the data on computer tapes, and GARS receives a monthly printout from SERS. This printout, according to the memorandum, apparently does not include the length of service information. However, the memorandum states that one of the items of information stored on computer tapes is months of service, but that, according to SERS computer personnel, a Neither of the parties, nor the appellate court, addressed the question whether, assuming the information is located only on computer tape, defendants must prepare a computer program which would generate the months of service information onto hard copy. We have previously answered this question in the affirmative. Family Life League v....
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