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Garlick v Office of Public Access Counselor

Case No. 1-12-2444 (IL Dist. 1 App., Dec. 31, 2013)

When Oak Park-River Forest High School District No. 200 (the District) denied Warren Garlick's request for some unredacted public documents, Garlick asked the Attorney General, through its Office of the Public Access Counselor (the PAC), to review the decision. The PAC issued a letter in which it found that the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)) permitted the District's redactions from the copies of the public documents sent to Garlick. Garlick then sued the District and the PAC in circuit court. The circuit court held that the PAC's letter qualified as a binding opinion, subject to review only under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). The court then held that Garlick had not met the applicable standard for showing that the PAC erred, so the court dismissed the complaint. On appeal, we find that the PAC did not issue a binding opinion, and therefore, Garlick may sue the District directly, without filing an administrative review action. We modify the dismissal of Garlick's complaint to make it a dismissal with prejudice of only the claim against the PAC, and we remand to allow Garlick to amend his complaint to state a cause of action against the District for injunctive or declaratory relief. See 5 ILCS 140/11(a) (West 2010).

BACKGROUND



On March 4, 2010, Garlick, a resident of River Forest, asked the District to give him copies of "All school monthly accounting statements reflecting charges incurred in connection with the disbursement vouchers reflecting payments to the law firm Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer (Ancel Glink) for the last six months." The District sent the requested documents, but it made significant redactions from the documents. In a letter accompanying the documents, the District wrote:

"The redacted information is exempt from disclosure under the [FOIA] as it includes communications between the School District and an attorney representing the School District that would not be subject to discovery in litigation. Thus, the information is exempt from disclosure under Section 7(1)(m) of the [FOIA] and may be redacted by the School District. 5 ILCS 140/7(1)(m) [(West 2010)]."

 

 

Judge(s): Aurelia Pucinski
Jurisdiction: Illinois Court of Appeals, First District
Related Categories: Communications , Government / Politics
 
Trial Court Judge(s)
Neil Cohen

 
Court of Appeals Judge(s)
Michael Hyman
Scott Neville
Aurelia Pucinski

 
Appellant Lawyer(s) Appellant Law Firm(s)
Warren Garlick

 
Appellee Lawyer(s) Appellee Law Firm(s)
Mark Heinle Ancel Glink Diamond Bush DiCianni & Krafthefer PC
Paul Keller Ancel Glink Diamond Bush DiCianni & Krafthefer PC
Clifford Berlow Office of the Illinois Attorney General
Lisa Madigan Office of the Illinois Attorney General
Michael Scodro Office of the Illinois Attorney General

 

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only under the administrative review law, with its limitations on the court's review of the first district, third division findings. garlick's request for some unredacted public documents, garlick asked the attorney general, for a judgment declaring that his office had no duty to disclose the documents. the trial court and an attorney representing the school district that would not be 5 ilcs 140/11 (west 2010). the court cannot review the pac's decision not to issue a binding be the basis for a lawsuit or subject to enforcement in a court of opinion," within the meaning of the foia. 5 ilcs 140/9.5(f) (west 2010). the district ¶ 8 analysis seq. (west 2010)) permitted the district's redactions from the copies of the public documents injunctive or declaratory relief or request a second review from the no. 1-12-2444 based on this analysis, we have determined that [the ¶ 5 garlick filed a lawsuit against the pac and the district, seeking a judgment declaring that in responding to any request under this section 9.5, the district] *** may withhold the documents." attorney general, which may have prompted the issuance of a our legislature has prescribed the proper procedure for lawsuit ***. grosskopf and fagel. when the pac issues a letter that it does not characterize as a binding held that the pac's letter qualified as a binding opinion, subject to review only under the school district no. 200, ) honorable binding opinions issued by the pac in the office of the illinois ¶ 7 garlick amended his complaint to state a claim against the pac and the district under the subject to administrative review. 5 ilcs 140/11.5 (west 2010) effect of advisory opinions may be summarized as follows: '[t]he copies of "all school monthly accounting statements reflecting charges incurred in connection conclusions of law, and shall issue to the requester and the public grosskopf had the right to file a lawsuit against brown for was a 'nonbinding' opinion under the statute. under foia, only while we note that several of the redactions contain references to foia (5 ilcs 140/1.2 [(west 2010)]), '[a]ll records in the custody inc. v. department of employment security, 198 ill. 2d 380, 395 (2001). garlick now appeals. no. 1-12-2444 the claim under the administrative review law. the pac claims that it issued a non-binding subject to discovery in litigation. thus, the information is exempt madigan or grosskopf. a nonbinding or advisory opinion cannot with the disbursement vouchers reflecting payments to the law firm ancel, glink, diamond, ¶ 11 under the foia, when the pac issues a binding opinion, the parties can seek review "unless the [pac] *** decides to address the matter without the any further litigation concerning the request for public documents. the foia also does not limit administrative review law. instead, if the parties seek to litigate the issue further, they must no. 1-12-2444 lisa madigan, attorney general state of illinois either obtain a binding opinion from the attorney general (see grosskopf, 2013 il app (4th) opinion" to processes like mediation, because the statute specifies only mediation as an example office, and oak park-river forest high ) - 8 - garlick on remand to amend his complaint as an action for an injunction or for declaratory relief fagel here, who is denied access by a public body to inspect or ¶ 4 garlick asked the pac to review the redactions. the district sent the pac unredacted was not subject to administrative review under section 11.5 of counsel for appellee ¶ 10 under section 9.5 of the foia, when a public body denies a request for a copy of a public dismissed the complaint. on appeal, we find that the pac did not issue a binding opinion, and ) *** [u]pon brown's denial of grosskopf's request, person for inspection or copying all public records, except as brown should produce or allow the inspection of the information district a letter in which the pac said: we recommend that the pac could expressly identify all of its binding opinions as binding ) neil h. cohen, administrative review law. the circuit court reviewed the pac's decision deferentially, and ¶ 18 finally, the district points out that the pac did not clarify, in its letter, whether it 2013 il app (1st) 122444 sarah pratt, in her official capacity as public ) circuit court of pac's september 12, 2011 ruling, in which it stated that [the appeal from the circuit court of cook county. plaintiff-appellant, standards for injunctions and declaratory judgment actions, without deference to the pac's - 12 - garlick's complaint against the district to make it a dismissal without prejudice, and we permit advisory opinion, rather than a binding opinion. 5 ilcs 140/9.5(f) no. 1-12-2444 no. 1-12-2444 although the court noted that the pac did not label its letter as a binding opinion, the court held contends that the foia must mean to limit the "means other than the issuance of a binding more useful. fagel, 2013 il app (1st) 121841, ¶ 4. fagel asked the pac to review the opinion. see 5 ilcs 140/9.5(f) (west 2010). instead, when the pac issues no binding opinion, unenforceable statement on the matter. the assistant public access no. 1-12-2444 we agree with the district that the pac could clarify in all of its letters resolving disputes computerized records of public data. the department provided the information, but in a locked ¶ 14 the district candidly admits that no appellate decisions directly support its interpretation held that garlick did not meet his burden of creating in the court a "definite and firm conviction" - 7 - upon review of the unredacted copy of the legal bills, this grosskopf asked the pac to review brown's decision. the pac issued a letter directing brown document, the requester may ask the pac to review the public body's decision. the foia (emphasis added.) warren r. garlick, of river forest, il counsel for appellees section 11.5 of foia. see 5 ilcs 140/11.5 (west 2010) ***; see ancel, glink, diamond, bush, dicianni & krafthefer, p.c., of chicago, il warren r. garlick, ) appeal from the copies of the documents it sent to garlick. on january 25, 2011, the pac sent garlick and the upon the services of ancel glink to develop a course of action with no. 1-12-2444 copying.' this section further states that '[a]ny public body that presented. two decisions appear to support the pac's interpretation of the foia. letter rather than a binding opinion, and the courts can review only binding opinions of the pac - 2 - *** therefore, garlick may sue the district directly, without filing an administrative review action. to disclose the documents to grosskopf. grosskopf, 2013 il app (4th) 120402, ¶ 3. brown sued therefore garlick should not have included the pac as a party to the action for declaratory relief. requester to file an original lawsuit for an injunction or for declaratory relief. in such a program that did not permit fagel to select, sort or filter the data in ways that would make it provide fagel the data in an unlocked format. fagel, 2013 il app (1st) 121841, ¶ 16. the references to a particular subject matter. [the district] has relied meaning of a state law.' state v. superior court, 229 cal. rptr. 74, no. 1-12-2444 redacted by the school district. 5 ilcs 140/7(1)(m) [(west matters that were not underlying lawsuits, they do contain we modify the dismissal of garlick's complaint to make it a dismissal with prejudice of only the no. 1-12-2444 ¶ 15 in brown v. grosskopf, 2013 il app (4th) 120402, grosskopf asked brown, the state's advisory opinions but none to participate as advisor or amicus binding opinion. either way, at that point, the issue of whether permitted under the administrative review law, or leave the court to decide the case under the no. 1-12-2444 - 9 - - 5 - no. 1-12-2444 access counselor for the illinois attorney general's office, as support, brown has no ripe action or controversy against concerning disclosure of public documents. we agree with the parties and the courts in court, and the circuit court entered a judgment in favor of fagel, requiring the department to omitted.) grosskopf, 2013 il app (4th) 120402, ¶¶ 11-15. leaving grosskopf with merely the attorney general's advisory and general must participate in the review, as a defendant, if he or she issued a binding opinion, but issuance of a binding opinion, the attorney general shall examine of a public body are presumed to be open to inspection and 394-95. if the pac ends its involvement without issuing a binding opinion, the requester may does not limit the attorney general's discretion as to whether he or she wishes to participate in department's response to his request under the foia. the pac issued a letter stating that the the issues and the records, shall make findings of fact and counselor's letter has no legal effect. documents. no. 1-12-2444 department had fully complied with fagel's request. fagel then sued the department in circuit review law. (735 ilcs5/3-101 et seq. (west 2010)). see 5 ilcs 140/11.5 (west 2010). december 31, 2013 requested would properly be before the court." (emphasis ¶ 2 background review of the binding opinion or review of the public body's decision in the absence of a binding "the redacted information is exempt from disclosure under the curiae, let alone defendant, in every lawsuit questioning the (oak park river forest high school) v. presiding justice hyman and justice neville concurred in the judgment and opinion. bush, dicianni & krafthefer (ancel glink) for the last six months." the district sent the cannot qualify as an attempt to resolve the dispute by "means other than the issuance of a binding provisions concerning review of a public body's decision on a request for disclosure of - 10 - access counselor for the illinois attorney general’s ) declaratory relief in the circuit court. see 5 ilcs 140/11(a), (b) ¶ 3 on march 4, 2010, garlick, a resident of river forest, asked the district to give him provides that '[e]ach public body shall make available to any clifford w. berlow, assistant attorney general) opinions subject to review only under the administrative review law, and all of its nonbinding agency's decision. see 735 ilcs 5/3-110 (west 2010); afm messenger service, 198 ill. 2d at that the letter qualified as a binding opinion, subject to review only under the administrative reporter of decisions - illinois appellate court issued a letter in which it found that the freedom of information act (foia) (5 ilcs 140/1 et to issue a nonreviewable, nonbinding, and nonfinal opinion, particular subject matters would be comparable to the filing of a appellate court of illinois 75-76 (cal. ct. app. 1986) ***. opinion garlick had not met the applicable standard for showing that the pac erred, so the court counsel for appellant letters resolving the disclosure disputes, but the pac did not make the letters binding opinions. (michael a. scodro, solicitor general made findings of fact, and drew a legal conclusion that the district had not violated the foia. opinion from the attorney general. see 5 ilcs 140/11, 11.5 (west 2010). the attorney and oak park-river forest high school district (west 2010). the foia required disclosure of the redacted information. the pac moved to dismiss the claim - 13 - - 6 - intended to issue a binding opinion or a nonbinding letter. while the foia does not require the the attorney general's discretion to decide whether to subject the ruling to the limited review the attorney general need not participate in the review when he or she has not issued a binding dismissed the complaint. the appellate court said: in the case at bar was not a binding opinion under the statute, it ¶ 13 we disagree. the foia expressly grants the attorney general discretion to decide to against it, arguing that the pac did not issue a binding opinion subject to judicial review, and plaintiff-appellant, ) cook county. resolve a request for review by mediation or by a means other than "all parties acknowledge that the assistant public access law. see 5 ilcs 140/11.5 (west 2010) ***. borrowing language binding opinion shall not be reviewable." 5 ilcs 140/9.5(f) "section 3(a) of foia (5 ilcs 140/3(a) [(west 2010)]) foia provides that the attorney general may choose to issue an requester and the public body, subject to administrative review 2013 il app (1st) 122444 office concludes that [the district] has met its burden and that the ¶ 6 the circuit court found that the pac reviewed the documents and the parties' arguments, [foia] as it includes communications between the school district of the foia as forbidding the pac from issuing letters as nonbinding resolutions of the issues through its office of the public access counselor (the pac), to review the decision. the pac ¶ 21 affirmed as modified. attorney general may exercise his or her discretion and choose to ¶ 16 in fagel v. department of transportation, 2013 il app (1st) 121841, fagel sought pac or the attorney general to specify whether it has issued a document as a binding opinion, regard to these subject matters. the underlying references to the provides: ____________________________________________________________________________________ defendants-appellees. ) judge presiding. ***. thus, in this case, all parties agree the attorney general chose and the district, the administrative review law does not apply to the dispute. we affirm the body an opinion in response to the request for review within 60 warren r. garlick, (paul n. keller, mark r. heinle) - 4 - requested documents, but it made significant redactions from the documents. in a letter the office of the public access counselor, the court can directly review the public body's decision to deny the request for copies of public sent to garlick. garlick then sued the district and the pac in circuit court. the circuit court foia. rather, section 11 of foia permits any person, such as seek relief under section 11 of the foia (5 ilcs 140/11(f) (west 2010)), which permits the dismissal with prejudice of garlick's complaint against the pac, but we modify the dismissal of sarah pratt, in her official capacity as public ) asserts that a record is exempt from disclosure has the burden of the issuance of a binding opinion. the decision not to issue a claim against the pac, and we remand to allow garlick to amend his complaint to state a cause defendant-appellees. justice pucinski delivered the judgment of the court, with opinion. - 11 - attorney for livingston county, for certain public documents. brown denied the request, and 120402, ¶ 15), or proceed under section 11 of the foia. 5 ilcs 140/11(a), (b) (west 2010); of action against the district for injunctive or declaratory relief. see 5 ilcs 140/11(a) (west with nothing more than an advisory or nonbinding opinion from disclosure under section 7(1)(m) of the [foia] and may be under section 11.5 attorney general are subject to administrative review under information is exempt from disclosure under section 7(1)(m). (west 2010)***. [citation.] *** however, a binding opinion is honorable neil h. cohen, judge presiding. resolve an issue without issuing a binding opinion. the foia then establishes the method for 2010)]." ¶ 20 because the pac issued a nonbinding opinion concerning the dispute between garlick justice pucinski delivered the judgment of the court, with opinion. under the administrative review law. the argument requires an interpretation of the foia opinion, and the courts found that the administrative review law did not apply to the decisions "initially, we note that the parties do not dispute that the presiding justice hyman and justice neville concurred in the judgment and opinion. 2010). under section 11 of the foia. v. ) fagel, 2013 il app (1st) 121841, ¶ 24. - 3 - opinion. see 5 ilcs 140/11, 11.5 (west 2010); 735 ilcs 5/3-107(a) (west 2010). the foia opinion concerning the dispute brought to the pac, the parties cannot seek review under the proceeding, the court owes no deference to the pac's nonbinding resolution of the request. see whether the pac considers the letter a binding opinion or a nonbinding resolution of the issues. (office of the public access counselor and sarah pratt) administrative review law (735 ilcs 5/3-101 et seq. (west 2010)). the court then held that ¶ 9 we first address the pac's argument that the circuit court lacked jurisdiction to decide accompanying the documents, the district wrote: opinions as nonbinding and not subject to review. third division from a similar controversy in the state of california, we find the (west 2010)." fagel, 2013 il app (1st) 121841, ¶ 24. ¶ 19 conclusion appellate court said: no. 200, challenging a public body's denial of a foia request. *** ¶ 12 the district argues that the pac here issued a binding opinion, and the letter it sent december 31, 2013 of an acceptable means for resolving a dispute without issuing a binding opinion. copy any public record, to file an action for injunctive or no. 1-12-2444 proving by clear and convincing evidence that it is exempt.' that the pac erred in finding the redacted information privileged. see afm messenger service, also 5 ilcs 140/9.5(f) (west 2010) ***. because the pac's ruling in both cases, the parties and the courts accepted the pac's decision not to issue a binding the office of the public access counselor, ) no. 11 ch 7587 otherwise provided in section 7 of this act.' under section 1.2 of department] had fully complied with the requirements of foia, documents. see 5 ilcs 140/11 (west 2010). ) ¶ 17 in both grosskopf and fagel, the pac considered arguments about disclosure and issued office of the attorney general has a general obligation to prepare ¶ 1 when oak park-river forest high school district no. 200 (the district) denied warren days after its receipt. the opinion shall be binding upon both the counselor's letter is a nonbinding opinion. indeed, section 9.5(f) of


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