Nelson v. Kendall Cnty.

Decision Date22 May 2014
Docket NumberNo. 116303.,116303.
PartiesLarry NELSON, et al., Appellants, v. KENDALL COUNTY, et al., Appellees.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Grant S. Wegner, R. Peter Grometer and Laura L. Malinowski, of Mahoney, Silverman & Cross, LLC, of Joliet, for appellants.

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

Eric Weis, State's Attorney, of Yorkville (Leslie J. Johnson, Assistant State's Attorney, of counsel), appellee.

Donald M. Craven and Esther J. Seitz, of Donald M. Craven, P.C., of Springfield, for amici curiae Illinois Broadcasters Association et al.

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

Anita Alvarez, of Chicago, et al. (Paul A. Castiglione, Alan J. Spellberg and Jeffrey S. McCutchan, Assistant State's Attorneys, of counsel), amici curiae.

OPINION

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

¶ 1 The issue on this appeal is whether the office of the State's Attorney of Kendall County is exempt from the disclosure requirements of the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)) on the grounds that the State's Attorney's office is part of the judicial branch of Illinois government and therefore beyond the reach of the FOIA. The circuit court answered this question in the affirmative and, on that basis, dismissed two related causes of action brought by plaintiffs to compel disclosure of certain public records generated by personnel in the Kendall County State's Attorney's office. The appellate court affirmed. 2013 IL App (2d) 120635, 371 Ill.Dec. 859, 990 N.E.2d 1237. We granted plaintiffs' petition for leave to appeal. Ill. S.Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, we reverse and remand to the circuit court for further proceedings.

¶ 2 BACKGROUND

¶ 3 Larry Nelson is an employee of various media companies, including WSPY radio in Plano, Illinois. On September 2, 2010, he submitted a request to Kendall County under this state's Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) on behalf of his employers to inspect and copy all emails and attachments sent and received by two county employees from January 1, 2010, to January 31, 2010, via “county email and or internet.” The two employees in question, Michael Ready and Robert Dore, both worked as assistant State's Attorneys.

¶ 4 By letter dated October 4, 2010, Kendall County's Freedom of Information Officer advised Nelson that the records he requested “would be in the charge of the Office of the State's Attorney for Kendall County and advised him to submit his FOIA request directly to that office. Contact information for the State's Attorney's office and its FOIA officers was included in the letter.

¶ 5 Nelson challenged how his request was being handled. In an Oct. 5, 2010, letter to Kendall County's FOIA officer, he charged that Kendall County Administrative Services was in possession of the documents he requested; that, by the State's Attorney's own admission, Kendall County's policies on “use of computers, email, and personal use of county property” had been violated by the State's Attorney's office; and in light of that violation it was inappropriate for Kendall County to refer Nelson to the State's Attorney's office. Nelson demanded that Kendall County comply with his FOIA request within 5 days of the original request and requested a waiver of all fees on the grounds that the information requested was for public dissemination.

¶ 6 On October 6, 2010, Kendall County's FOIA officer notified Nelson in writing that because there was “a need for consultation * * * with another public body or among two or more components of a public body [which] have a substantial interest in the determination or in the subject matter of the request,” Kendall County would be unable to respond to the request within the 5–day period and would, instead, respond on or before October 14th.

¶ 7 When no response was forthcoming, Nelson submitted a request for review to the Public Access Counselor in the Office of the Illinois Attorney General, a procedure authorized by section 9.5 of the FOIA (5 ILCS 140/9.5 (West 2012)). The Attorney General's office declined to take further action on the grounds that Nelson had previously submitted an identical request to the Kendall County State's Attorney's office; the State's Attorney's office had responded; and that although some information was denied in part on the grounds that it was exempt, the State's Attorney had received approval for that decision and Nelson had not asked the Attorney General to review it.

¶ 8 After the Attorney General declined to take action, Nelson filed an action in circuit court against Kendall County and its administrator, Jeff Wilkins, to compel release of the emails and attachments sent and received by Ready and Dore during the period specified in Nelson's FOIA request. The case was docketed as 10–MR–143. Kendall County and Wilkins moved to dismiss. Nelson thereupon filed an amended complaint which included as additional plaintiffs his corporate employers, Nelson Multimedia, Inc.; WSPY AM, Inc.; WSPY, Inc., and WSPY–TV, Inc. In addition, the Kendall County State's Attorney sought and was granted leave to intervene in the case.

¶ 9 The State's Attorney's office filed a motion to dismiss the case pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2010)) contending that none of the named plaintiffs in the amended complaint had standing to bring it. A separate motion to dismiss was brought by Jeff Wilkins. As grounds for his motion, Wilkins argued that none of the substantive allegations of the amended complaint were directed against him and that, in any case, he could not be held liable under the FOIA because the Act applies only to “public bodies” and does not extend to individuals like him who merely work for public bodies. In addition, a joint motion to dismiss was filed by Kendall County and Wilkins raising the same standing arguments asserted in the motion to dismiss filed by the State's Attorney.

¶ 10 In an order filed November 17, 2011, the circuit court granted Wilkins' motion to dismiss and dismissed him from the case. In a separate order filed the same day, it took under advisement the motions to dismiss for lack of standing asserted by Kendall County and the State's Attorney's office. Those motions were subsequently denied, and no further question regarding plaintiffs' standing has been raised.

¶ 11 While the litigation proceeded, Nelson submitted a new FOIA request to the State's Attorney's office seeking the same emails that were the subject of his request to Kendall County itself, plus emails from the same time period from two additional members of the State's Attorney's office, including the State's Attorney himself. The request excluded any emails the subject of which was “limited only to discussions with law enforcement personnel with relations to pending cases or investigations,” or “limited only to discussions with defense counsel in pending cases,” or “limited to correspondence with county board members or elected county officials.”

¶ 12 Shortly after the State's Attorney's office received Nelson's request, it denied the request in its entirety on the grounds that State's Attorneys are part of the judicial branch of State government and, as such, are exempt from the provisions of the FOIA. The denial letter went on to state that this was the third request Nelson had made for the same documents; that despite the fact that it was exempt from the FOIA, and with certain redactions approved by the Attorney General's office, it had previously furnished over 1,000 pages of emails to him; that he had been given a detailed index of all records that could not be produced; and that if there was a particular email and/or attachment that he had not yet received and would like to review, he should please let the office know and it would determine whether it could be disclosed to him.

¶ 13 After receiving this response, Nelson filed a second FOIA action in circuit court, this one directed solely against the State's Attorney's office. It was docketed as 11–MR–146. The State's Attorney moved to dismiss pursuant to section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2010)). As grounds for that motion, the State's Attorney repeated his claim that his office was part of the judicial branch and, as such, was not subject to the FOIA's provisions. He further argued that notwithstanding the fact that his office was outside the reach of the Act, it had voluntarily produced approximately 2,700 pages of the requested emails to him, withholding only documents the State's Attorney was ethically prohibited from disclosing, and the cause of action should therefore be dismissed as moot.

¶ 14 In response, Nelson contended that under Illinois law, the State's Attorney is an executive rather than a judicial officer; that the State's Attorney's office constitutes a public body within the meaning of the FOIA and is therefore subject to the Act's disclosure requirements; and that through its public pronouncements and staffing (it has three designated FOIA officers), the State's Attorney's office has acknowledged that it is subject to the provisions of the law and should be precluded from claiming otherwise here. Nelson further contended that his cause of action is not moot because, while some documents have been furnished, the State's Attorney has continued to withhold others without properly showing that they fall within one of the FOIA's narrow exemptions to disclosure.

¶ 15 At the same time the State's Attorney's office was seeking dismissal in 11–MR–146, case, it filed a second motion to...

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