Larry Nelson, Nelson Multimedia, Inc. v. Kendall County

• Decision Date: 30 May 2013
• Docket Number: 2–12–0636.,Nos. 2–12–0635,s. 2–12–0635
• Citation: 371 Ill.Dec. 859,2013 IL App (2d) 120635,990 N.E.2d 1237
• Parties: Larry NELSON, Nelson Multimedia, Inc., WSPY AM, Inc., WSPY, Inc., and WSPY–TV, Inc., Plaintiffs–Appellants, v. The COUNTY OF KENDALL, Defendant–Appellee (Eric Weis, Kendall County State's Attorney, Intervenor–Appellee). Larry Nelson, Plaintiff–Appellant, v. The Office of the Kendall County State's Attorney, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120635

990 N.E.2d 1237

371 Ill.Dec. 859

Larry NELSON, Nelson Multimedia, Inc., WSPY AM, Inc., WSPY, Inc., and WSPY–TV, Inc., Plaintiffs–Appellants,

v.The COUNTY OF KENDALL, Defendant–Appellee (Eric Weis, Kendall County State's Attorney, Intervenor–Appellee).

Larry Nelson, Plaintiff–Appellant,

v.The Office of the Kendall County State's Attorney, Defendant–Appellee.

Nos. 2–12–0635, 2–12–0636.

Appellate Court of Illinois,

Second District.

May 30, 2013.

Grant S. Wegner, R. Peter Grometer, Mahoney, Silverman & Cross, LLC, Joliet, for appellants.

Charles M. Colburn, State's Attorneys Appellate Prosecutor's Office, Springfield, Lawrence M. Bauer, Scott Jacobson, State's Attorneys Appellate Prosecutor's Office, Elgin, for appellee County of Kendall.

Eric C. Weis, State's Attorney, Yorkville (Leslie J. Johnson, Assistant State's Attorney, of counsel), for appellee Office of Kendall County State's Attorney.

Donald M. Craven, Esther J. Seitz, Donald M. Craven, P.C., Springfield, for amicus curiae Illinois Broadcasters Association.

Lisa Madigan, Attorney General, Chicago (Michael A. Scodro, Solicitor General, Jane Elinor Notz, Deputy Solicitor General, of counsel), for amicus curiae Attorney General of Illinois.

Justice ZENOFF delivered the judgment of the court, with opinion.

[371 Ill.Dec. 860]¶ 1 Plaintiff, Larry Nelson, filed separate actions in the circuit court of Kendall County against Kendall County (county) (No. 10–MR–143) and the office of the Kendall County State's Attorney (State's Attorney) (No. 11–MR–146).¹ Pursuant to section 11(a) of the Illinois Freedom of Information Act (Act) ( 5 ILCS 140/11(a) (West 2010)), Nelson sought injunctions requiring the county and the State's Attorney to turn over emails that Nelson contended were responsive to records requests that Nelson had submitted to the two entities. The trial court dismissed Nelson's actions with prejudice, finding that the county could not be compelled to turn over emails generated by the State's Attorney's office and that the State's Attorney, as a member of the judicial branch of state government, was not a “public body” as defined in section 2(a) of the Act ( 5 ILCS 140/2(a) (West 2010) (defining “[p]ublic body,” in pertinent part, as “all legislative, executive, administrative, or advisory bodies of the State”)). For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The Act requires every public body in Illinois to make available to any person for inspection or copying all public records, subject to a long list of exceptions. 5 ILCS 140/3(a), 7 (West 2010). Pertinent to our case, the Act's definition of “public records” includes “all * * * electronic communications * * * pertaining to the transaction of public business * * * having been prepared by or for, or having been used by, received by, in the possession of, or under the control of any public body.” 5 ILCS 140/2(c) (West 2010). If a public body denies a request for public records, it must notify the requestor in writing and explain in detail the reasons for the denial. 5 ILCS 140/9(a) (West 2010). An individual whose request for public records is denied may either (1) file within 60 days a request for review with the public access counselor in the Attorney General's office (5 ILCS 140/ 9.5(a) (West 2010)), or (2) file an action in the circuit court for injunctive or declaratory relief (5 ILCS 140/11(a) (West 2010)). In the former situation, the Attorney General may issue a binding opinion (5 ILCS 140/9.5(f) (West 2010)), which will be considered a final decision of an administrative agency subject to administrative review (5 ILCS 140/11.5 (West 2010)). In the latter situation, the circuit court considers the matter de novo and has the power to enjoin a public body from withholding public records. 5 ILCS 140/11(d), (f) (West 2010).

¶ 4 Nelson filed two actions in the circuit court, seeking injunctive relief under section 11(a) of the Act. In the first action (No. 10–MR–143), filed against the county, Nelson alleged that the county had improperly denied a September 28, 2010, request for emails sent or received during January 2010 by two assistant State's Attorneys. After the State's Attorney intervened in the action, both the county and the State's Attorney filed motions to dismiss pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(9) (West 2010)). The county argued that it could not be compelled to turn over emails that were generated by the State's Attorney's office. The State's Attorney argued that his office was not a “public body” but was part of the judicial branch of state government, which is not subject to the Act.

¶ 5 In the second action (No. 11–MR–146), filed against the State's Attorney, Nelson alleged that the State's Attorney had improperly denied a November 17, 2011, request for all emails sent or received during January 2010 by the State's Attorney and by three assistant State's Attorneys. As in case No. 10–MR–143, the State's Attorney filed a motion to dismiss pursuant to section 2–619(a)(9) of the Code, arguing that his office was not a “public body” subject to the Act.

¶ 6 On May 11, 2012, the trial court granted the county's and the State's Attorney's motions and dismissed both of Nelson's actions with prejudice. The court concluded that the county could not be compelled to disclose emails generated by the State's Attorney's office. The court further concluded that the State's Attorney is a member of the judicial branch of state government and is not a “public body” subject to the Act. Nelson timely appealed.

¶ 7 ANALYSIS

¶ 8 On appeal, Nelson does not challenge the trial court's determination that the county cannot be compelled to turn over emails generated by the State's Attorney's office. Nelson's only contention is that the trial court erred when it determined that the State's Attorney is a member of the judicial branch of state government and, thus, is not a “public body” subject to the Act. Whether a State's Attorney is a “public body” subject to the Act is an issue of first impression.

[371 Ill.Dec. 862] ¶ 9 As an initial matter, we address Nelson's argument that the State's Attorney effectively admitted to being a “public body” under the Act when he partially approved a prior records request from Nelson in April 2010 that sought the same emails as Nelson's September 28, 2010, request that was the subject of case No. 10–MR–143. Nelson cites no authority to support his position, so his argument is forfeited. See Ill. S.Ct. R. 341(h)(7) (eff. July 1, 2008) (requiring the argument section of an appellant's brief to “contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on”). Even if the argument were not forfeited, however, the issue before us involves a question of law, and we fail to see how the State's Attorney's response to an earlier records request bears upon that question.

¶ 10 Our primary objective in interpreting the Act is to ascertain and give effect to the intent of the legislature. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill.2d 390, 415, 300 Ill.Dec. 329, 844 N.E.2d 1 (2006). The Act's plain language is the most reliable indicator of the legislature's intent. Southern Illinoisan, 218 Ill.2d at 415, 300 Ill.Dec. 329, 844 N.E.2d 1. In determining the legislature's intent, we must construe words and phrases not in isolation but in light of the statute's other provisions. Southern Illinoisan, 218 Ill.2d at 415, 300 Ill.Dec. 329, 844 N.E.2d 1. Because the issue before us involves a matter of statutory interpretation, and because Nelson appeals from section 2–619(a)(9) dismissals, our review is de novo. Lacey v. Village of Palatine, 232 Ill.2d 349, 359, 328 Ill.Dec. 256, 904 N.E.2d 18 (2009) ( de novo review of a section 2–619(a)(9) dismissal); Southern Illinoisan, 218 Ill.2d at 421, 300 Ill.Dec. 329, 844 N.E.2d 1 ( de novo review of an issue of statutory construction).

¶ 11 The Act defines “public body,” in pertinent part, as “all legislative, executive, administrative, or advisory bodies of the State, * * * counties, * * * [and] any subsidiary bodies of any of the foregoing.” 5 ILCS 140/2(a) (West 2010). Notably absent from the definition is the word “judicial” or the phrase “judicial bodies.” In Copley Press, Inc. v. Administrative Office of the Courts, 271 Ill.App.3d 548, 207 Ill.Dec. 868, 648 N.E.2d 324 (1995), which involved a records request submitted to the Lake County pretrial services agency, the court addressed the absence of the word “judicial” from the Act's definition of public body. Copley Press, 271 Ill.App.3d at 554, 207 Ill.Dec. 868, 648 N.E.2d 324. The court determined as a matter of first impression that, because the legislature specifically referenced the legislative and executive branches of government, without referencing the judicial branch, it must have intended to exclude the judiciary from the Act. Copley Press, 271 Ill.App.3d at 554, 207 Ill.Dec. 868, 648 N.E.2d 324. The court went on to conclude that, because the Lake County pretrial services agency performed a clearly judicial function and was an arm of the court accountable to the chief judge, the agency belonged to the judicial branch and was not subject to the Act. Copley Press, 271 Ill.App.3d at 549, 554, 207 Ill.Dec. 868, 648 N.E.2d 324. In support of its holding, the court explained that the Act does not narrowly define (or define at all) the judiciary. Copley Press, 271 Ill.App.3d at 554, 207 Ill.Dec. 868, 648 N.E.2d 324.

¶ 12 Both Nelson and the amici curiae² argue that, under the functional approach used in Copley Press ( i.e., the approach of looking to a governmental entity's functions to determine to which branch of government the entity belongs), the State's Attorney is not a member of the judicial branch of government. According to Nelson and the amici curiae, the relevant considerations...