Harwood v. McDonough
| Decision Date | 17 October 2003 |
| Docket Number | No. 1-02-2714.,1-02-2714. |
| Citation | 799 N.E.2d 859,279 Ill.Dec. 56,344 Ill. App.3d 242 |
| Parties | Bradley HARWOOD, Plaintiff-Appellant, v. Pam McDONOUGH, Director, Michael D. Rosenfeld, General Counsel, Cathy Hauger, Freedom of Information Act Officer, all three in their official capacities in the Illinois Department of Commerce and Community Affairs, and the Illinois Department of Commerce and Community Affairs, an executive branch agency of the State of Illinois, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Dolores C. Pino, Morton Grove (Dolores C. Pino, of counsel), for Appellant.
Shefsky & Froelich Ltd., Chicago (Patricia S. Spratt, Howard A. Davis, of counsel), for Appellee.
Plaintiff, Bradley Harwood, filed this action on July 26, 2001, pursuant to the Illinois Freedom of Information Act (the Act) (5 ILCS 140/1 et seq. (West 2000)) against several defendants, including the Illinois Department of Commerce and Community Affairs (DCCA). The other defendants are employees of the State of Illinois, who, in their official capacities, are responsible for complying with the requirements of the Act at DCCA. Plaintiff made an initial request for records under the Act on May 16, 2001. He requested two items: (1) "a copy of the report prepared by the consulting firm of Arthur Andersen (Andersen) concerning the relocation of the Boeing Company's headquarters to Illinois" (the Andersen report) and (2) "copies of all invoices concerning the cost to the state of this report."
After the plaintiff received no answer to his initial request, he sent an appeal letter, dated June 11, 2001. The defendants responded to plaintiff's appeal letter by producing a copy of a one-page "Executive Summary" of the Andersen report, claiming the rest of the report was exempt from disclosure under exemptions in sections 7(1)(f) and (g) of the Act, and also by stating that "no invoice from Arthur Andersen has been remitted to the department as of this date." This action followed. In his complaint, plaintiff sought a permanent injunction against defendants prohibiting them from withholding the requested public records and an order for the production of these public records.
Defendants answered the complaint regarding the Andersen report by again claiming it was exempt from disclosure under the previously claimed exemptions in sections 7(1)(f) and (g), as well as the additional exemptions in sections 7(1)(i) and (r) of the Act and by producing a copy of the contract between DCCA and Andersen. Ultimately, the parties filed cross-motions for summary judgment.
On August 1, 2002, the trial court denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment. On August 13, 2002, plaintiff filed a "Motion for Clarification of Court's August 1, 2002 Ruling or for Summary Judgment on Plaintiff's Outstanding Claims for a Redacted Andersen Study and Improper Withholding of Invoices and for Attorneys Fees for Work Required to Obtain Redacted Report and Invoices." This motion was denied on August 19, 2002. Plaintiff now appeals the orders of August 1, 2002, and August 19, 2002.
We review de novo the trial court's grant of summary judgment. In re Estate of Hoover, 155 Ill.2d 402, 411, 185 Ill.Dec. 866, 615 N.E.2d 736 (1993). Summary judgment is a drastic means of disposing of litigation. Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 186, 262 Ill.Dec. 815, 766 N.E.2d 1118, 1123 (2002). Therefore, summary judgment is appropriate only when "`the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Happel, 199 Ill.2d at 186, 262 Ill.Dec. 815, 766 N.E.2d 1118, quoting 735 ILCS 5/2-1005(c) (West 2000); see also Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995). Because the parties here filed cross-motions for summary judgment, they have agreed that no genuine issue of material fact exists and invite the court to decide the issues presented as questions of law. Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958). Nevertheless, where genuine issues of fact exist precluding summary judgment in favor of either party, the mere filing of cross-motions for summary judgment does not require that the court grant the requested relief to one of the parties. Hagen v. Distributed Solutions, Inc., 328 Ill.App.3d 132, 137, 262 Ill.Dec. 24, 764 N.E.2d 1141, 1145-46 (2002).
Under the Illinois Freedom of Information Act, public records are presumed to be open and accessible. Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill.2d 456, 462-63, 274 Ill. Dec. 430, 791 N.E.2d 522, 526 (2003), citing Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 407, 223 Ill.Dec. 641, 680 N.E.2d 374 (1997). "[I]f the party seeking disclosure of information under the Act challenges the public body's denial in circuit court, the public body has the burden of proving that the records in question fall within the exemption it has claimed." Illinois Education Ass'n,204 Ill.2d at 464,274 Ill.Dec. 430,791 N.E.2d at 527, citing Lieber, 176 Ill.2d at 408, 223 Ill.Dec. 641, 680 N.E.2d 374, and 5 ILCS 140/11 (West 2000). "`To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.'" (Emphasis in original.) Illinois Education Ass'n,204 Ill.2d at 464,274 Ill.Dec. 430,791 N.E.2d at 527, quoting Baudin v. City of Crystal Lake, 192 Ill.App.3d 530, 537, 139 Ill.Dec. 554, 548 N.E.2d 1110 (1989).
Here, defendants raised four affirmative defenses1 asserting that the Andersen report was exempt under four separate exemptions of section 7 of the Act. 5 ILCS 140/7 (West 2000). Section 7 and the relevant exemptions state as follows:
Defendants concede that they have the burden of proving that a withheld document falls within an exemption. Defendants also note correctly that this court need only conclude that one of the four exemptions applies to plaintiff's request in order for defendants to prevail. We conclude that section 7(1)(f) applies to plaintiff's request and exempts the Andersen report from public disclosure.
Section 7(1)(f) of the Act is the equivalent of the "deliberative process" exemption found in section 552(b)(5) of the federal Freedom of Information Act, which exempts from disclosure inter- and intra-agency predecisional and deliberative material. See 5 U.S.C. § 552(b)(5)(2000). As the Illinois Supreme Court explained: "The existence of an FOIA exemption for predecisional materials is evidence of a public policy favoring the confidentiality of such communications." People ex rel. Birkett v. City of Chicago, 184 Ill.2d 521, 528-29, 235 Ill.Dec. 435, 705 N.E.2d 48, 51 (1998). We agree with defendants' interpretation of the Birkett case as evincing recognition by our supreme court that, as a matter of public policy, section 7(1)(f) exempts from disclosure predecisional materials used by a public body in its deliberative process.
In Birkett, the City of Chicago had argued that information exempt from disclosure to the general public under the Act's deliberative process exemption should also be undiscoverable by a civil litigant as a deliberative process litigation privilege. The Birkett court refused to recognize such a deliberative process privilege, but only after recognizing that the exemption did exist. Thus, to the extent plaintiff relies on Birkett as standing for the proposition that Illinois does not recognize a deliberative process exemption under the Act, his reliance is misplaced. The actual issue addressed by the Birkett court was "whether the legislature sought to create an analogous evidentiary privilege." (Emphasis added.) Birkett, 184 Ill.2d at 529, 235 Ill.Dec. 435, 705 N.E.2d at 51. The Birkett court did not hold that a deliberative process exemption did not exist in Illinois.
Plaintiff contends, however, that section 7(1)(f) is inapplicable to the Andersen report...
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CHAPTER 2
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