{"dedup_key":"pre1996-128527","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"179 ill-app-3d 161","case_name":"Gosnell v. Hogan","court_level":"Appellate","appellate_district":"5th","year":1989,"county":null,"appellate_docket":"5-87-0554","circuit_docket":null,"published":1,"authoring_justice":"Welch","statute":["OMA"],"exemptions_cited":["2(c)"],"public_body":"Board of Education for Community Unit School District Number 9","requesting_party":"David Gosnell and East Side Publications","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of an injunction against a school board, holding that topics not specifically excepted under the Open Meetings Act may be discussed in closed session if they are germane and integral to an excepted topic, such as real estate acquisition. The court emphasized a practical, substantial compliance approach to interpreting the Act's exceptions.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=128527","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.121370","site_category":"Closed Sessions","date_decided":"1989-01-24","site_url":"/cases/pre1996-128527/","text_url":"/case-text/pre1996-128527.txt","full_text":"DAVID GOSNELL et al., Plaintiffs-Appellants, v. KELLY HOGAN et al., Defendants-Appellees.\nFifth District\nNo. 5—87—0554\nOpinion filed January 24, 1989.\nRobert B. Hoemeke and Mary B. Schultz, both of Lewis & Rice, of St. Louis, Missouri, for appellants.\nWilliam W. Schooley, of Law Offices of William W. Schooley, of Granite City, for appellees.\n\nPRESIDING JUSTICE WELCH\ndelivered the opinion of the court:\nThis appeal is from a judgment entered July 2, 1987, in the circuit court of Madison County, denying plaintiffs’ motion for preliminary injunction and petition for permanent injunction to prohibit defendants from continuing their alleged violations of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, pars. 41 through 46).\nThis action was initiated by plaintiffs David Gosnell and East Side Publications. East Side Publications is a publisher of a newspaper circulated in and near Granite City, Illinois, and David Gosnell is a reporter for the newspaper. The defendants are members of the Board of Education for Community Unit School District Number 9, with the exception of Gilbert Walmsley, who is the superintendent of schools. Plaintiffs filed suit seeking to enjoin defendants from holding closed meetings during which defendants allegedly discussed topics not within the exceptions enumerated in the Open Meetings Act.\nDuring the school year, the Board of Education for Community Unit School District Number 9 (hereinafter the Board or Board of Education) holds regular public meetings on the first and third Tuesday of every month. Additional meetings are arranged when necessary. A written agenda is made available to the public prior to each meeting, whether regular or special. Each agenda makes reference to executive sessions, providing in general terms that during executive session, if necessary, the Board will discuss personnel, negotiations and legal matters. The executive sessions may occur as part of either a regular meeting or a special meeting. In either case, the executive sessions are not open to the public and often last longer than that portion of the meeting which is open to the public. Plaintiffs bring into issue three separate meetings, held on December 16, 1986, January 20, 1987, and February 3, 1987, in support of their claim that the bulk of the business undertaken by the Board of Education is executed during closed sessions in violation of the Open Meetings Act.\nThe first meeting at issue occurred on December 16, 1986. A special meeting was scheduled for this date to discuss the issuance of bonds and an amendment to the district’s tax levy. During the open portion of this meeting, the employment of a certain architect was brought into issue, but was not discussed in detail because it was considered appropriate to hold the discussion of this matter for closed session. When the Board of Education voted to retire into executive session, plaintiff David Gosnell, who was attending the meeting in his capacity as a reporter, objected to the Board of Education's closed discussion concerning the hiring of an architect and stated that he considered this a violation of the Open Meetings Act. Gosnell’s objection notwithstanding, the Board continued the meeting in executive session.\nDuring the executive session on December 16, 1986, which lasted approximately 2 hours and 30 minutes, the Board and superintendent discussed several topics, two of which are brought into issue in this appeal. The first topic objected to by plaintiffs is the Board’s discussion of an architect hired to perform services for the school. The Board’s discussion focused on problems concerning work previously performed for the school by an incorporated architecture business located in Granite City, Illinois. The Board discussed whether, in performing the services under a given contract, the architecture business had completed all services for which it was hired, and whether it had done so within the time provided in the contract.\nThe relationship established between the school and the architecture business is such that the architecture business does not work exclusively for the school district, although the school entered into several contracts with this architecture business between 1960 and 1980. In performing the services under a contract with the school district, the owner of the architecture business retains complete control over the design of the particular project. During the evidentiary hearing on plaintiffs’ motion to enjoin defendants’ compliance with the Open Meetings Act, the owner of the architecture business testified that in performing his services, he does not work under the supervision of any other party.\nIn ruling on whether the discussion of the architecture business’ performance of its contracts was appropriate for executive session, the trial court found that the architecture work was discussed and evaluated by the Board in conjunction with the discussion of whether the architecture business’ service should be retained for future developments. During executive ■ session, the district director of school grounds and maintenance expressed to the Board some dissatisfaction with the work being performed by the architecture business. The trial court ruled that this was not a violation of the Open Meetings Act because it was within the exception enumerated in section 2 of the Act, which provides that information regarding appointment, employment or dismissal of an employee or officer may be considered in closed session. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe second topic plaintiffs contend was improperly discussed by the Board during the closed portion of the meeting held on December 16, 1986, is the policy goals and proposed evaluation of Superintendent Walmsley. During executive session, an evaluation form used in another school district was distributed among members of the Board to be used as a guideline in evaluating the superintendent’s goals. The trial court found that the evaluation form was discussed by the Board in expectation of further evaluations of Walmsley’s performance as superintendent of schools, and held this was not prohibited by the Act as it fell within the exception of the Act pertaining to discussion of the employment or dismissal of employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe second Board meeting at issue in this appeal was held on January 20, 1987. At this meeting, the agenda enumerated 41 items for consideration. During the open portion of the meeting, approximately seven items were held for executive session. The minutes of the meeting indicate that approximately 16 topics were discussed during executive session. Plaintiffs contend that eight of the topics considered in closed session should not have been so considered; instead, these eight topics, according to plaintiffs, should have been discussed in a meeting open to the public. The eight contested topics are as follows:\n(1) Contract with the Granite City School of Beauty Culture;\n(2) In-service teacher training program;\n(3) Continuing education requirement for administrators;\n(4) Policy change for reimbursement of teachers’ seeking further education;\n(5) Recall rights of dismissed teachers;\n(6) Enrollment statistics from 1967 to 1987;\n(7) Hiring of speaker; and\n(8) District staff needs.\nBeginning with the first topic listed above, plaintiffs contend defendants again violated the Open Meetings Act when they discussed in executive session the terms of a contract the school has with the owner of Granite City School of Beauty Culture. Specifically, defendants reviewed and discussed a memorandum prepared by the district director of vocational and career education which listed various beauty schools in the area and their fees for teaching students from various school districts. Since 1969 or 1970 Granite City School District has entered into annual contracts with Granite City School of Beauty Culture (hereinafter the beauty school) whereby the beauty school agrees to teach high school students beautician skills. Under the contract in existence on January 20, 1987, the students from the school district attend classes at the beauty school along with regular students of the beauty school. The school district does not dictate or retain daily control of the instruction given to the high school students at the beauty school, although the beauty school staff takes attendance, reports absentees and grades the performance of the high school students it agrees to teach.\nThe memorandum discussed by defendants in executive session was not a summary of bids from other beauty schools and was to be used for comparison only. The owner of the beauty school had requested a substantial increase in the amount paid for each student instructed. The trial court found that the district director of vocational and career education and an attorney representing the school district negotiated an agreement with the owner of the beauty school outside the Board’s closed meeting, and then returned to the closed meeting and explained the agreement. The Board approved the agreement in open session. The trial court ruled that the discussions during executive session concerning the renewal of the contract with the beauty school fell within the exception in the Act pertaining to the appointment, employment or dismissal of an employee or officer. El. Rev. Stat. 1987, ch. 102, par. 42.\nThe second topic plaintiffs argue should not have been discussed during the executive session on January 20, 1987, is a program of instruction on effective teaching. The discussion of the proposed program was of a general nature and did not relate to any teachers in particular. The school district desired an amendment to its agreement with the teachers’ union requiring nontenured teachers to perform in-service training. The Board and the school administration discussed such an amendment during executive session. The trial court found that the Board instructed the administration to prepare a memorandum proposing an amendment to the agreement between the school district and the teachers’ union. No final action was taken at this time because the amendment proposed by the administration was subject to the approval of the teachers’ union and the school district. The trial court ruled that the discussion of this topic in executive session was consistent with the Open Meetings Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next topic alleged to have been improperly discussed during the January 20, 1987, executive session is whether the Board should require school district administrators to acquire a certain number of hours of continuing higher education. Although certain administrators were identified, and their qualifications discussed, the proposal itself was general in nature and included all persons in administrative positions. Again, the trial court found this discussion consistent with the Act in that it related to the appointment, employment or dismissal of an employee or officer. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next topic plaintiffs considered inappropriate for executive session is a tuition reimbursement program which obligates the school district to reimburse teachers the expense of enrolling in college courses, provided the teacher receives a specified grade. Although individual teachers were named during the discussion, the program was discussed primarily in general terms. Superintendent Walmsley testified during the evidentiary hearing that under a new article in the contract between the teachers’ union and the school district, only teachers attending classes taught at Southern Illinois University at Edwardsville would be reimbursed. This created a problem for some teachers who were already enrolled at other schools and would be forced either to attend Southern Illinois University at Edwardsville or forfeit any tuition reimbursement. The Board discussed during executive session the possibility of extending the life of the prior agreement which reimbursed tuition paid to other schools. This would apply only to five or six teachers who were then enrolled in programs at other universities, and only so long as they remained in the same program. The trial court held that the discussion of tuition reimbursement fell within two exceptions provided in the Open Meetings Act. In addition to the exception for discussions relating to the appointment, employment or dismissal of an employee or officer, the court ruled that this also fell within the exception for collective negotiations between a public employer and its employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nIn the same executive session, the Board discussed the recall rights of five teachers who were offered teaching positions for one semester rather than on a full-time basis. The district and the teachers’ union had previously negotiated a method of recalling teachers based on the relative seniority of teachers who had been honorably dismissed for economic reasons. Five of the teachers so dismissed were recalled on a part-time basis. The teachers’ union threatened to initiate a grievance procedure on behalf of the five teachers recalled on a part-time basis. During executive session, the Board and the school district administration discussed the employment of the five teachers, and the administration explained to the Board the administration’s dispute with the teachers’ union. At that time, the administration presented a proposed amendment to the existing agreement under which the teachers worked. This proposed amendment was approved after the Board returned to open session. The trial court held that the discussion of recall rights fell within the “appointment, employment or dismissal of employee or officer” exception in the Act, and the “collective negotiating matters between public employers and their employees or representatives” exception in the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe sixth topic alleged by plaintiffs to have been inappropriate for executive session at the January 20, 1987, meeting is the Board’s discussion of school enrollment statistics from 1967 to 1987. Superintendent Walmsley testified that the statistics were considered in assessing the school district’s future property needs. The trial court found that the statistics were discussed in relation to a possible sale of school property and ruled that this fell within the exception provided in the Act for meetings where the acquisition of real property is being considered or where the selling price of real estate is being considered by the school board of a public school district. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next contested topic is the discussion of whether to hire a speaker to make a presentation to the teachers of the school district entitled “Positive Things About Teaching.” The proposed speaker was not an employee of the school district. The trial court held that the Board’s discussion of this topic during executive session was a violation of the Act and ruled that this violation was unintentional and of minor importance to the overall operation of the school district.\nThe final contested topic discussed at the January 20, 1987, meeting is the needs of the district staff. During closed session, Superintendent Walmsley and the Board discussed expected vacancies in certain staff positions and the need to fill those vacancies. The possibility of upgrading certain noncertified teachers to certified status was discussed, -with individual teachers being identified and discussed by name. The court held that this discussion fell within the exception in the Act for appointment, employment or dismissal of an employee or officer. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nContinuing with the third Board meeting at issue in this appeal, plaintiffs allege that certain topics discussed during the executive session of a regularly scheduled meeting held on February 3, 1987, meeting were discussed in violation of the Open Meetings Act. Similar to the previous meetings, the agenda of this meeting referred to an executive session wherein the Board would discuss any personnel, negotiations or legal matters as necessary. Of the 38 items enumerated in the agenda for Board consideration, four were held for executive session. Plaintiffs contend that the following topics should not have been discussed in closed session:\n(1) Manpower study;\n(2) Proposal to prohibit administration communication with the news media;\n(3) Request for mediation with teachers’ union; and\n(4) Extension of contract with bus company.\nTaking these topics in the order listed, the Board discussed a memorandum prepared by district administrators which recommended the transfer of certain personnel within the administrative staff. The circuit court found that this discussion involved the consideration of qualifications, personalities and skill levels of certain individuals, and therefore the discussion was appropriately undertaken during executive session. In addition to the exception for discussions of “appointment, employment or dismissal of an employee or officer,” the court noted that the discussion also came within the exception allowing testimony on a complaint lodged against an employee or officer to determine its validity. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe second topic listed began as a discussion of a special education student enrolled in a Granite City school. After discussing the student, the Board discussed the negative effects that might result from revealing to the media the discussion of the special education student. This developed further into a discussion of recent confrontations between members of the school administration and the media. These confrontations interrupted the work of the school administrators who were questioned by the media, and one Board member suggested that administrators be prohibited from talking to the news media without having the media first consult the superintendent of schools. This proposition was rejected by the Board. The trial court held that the discussion of media contacts with the school administration fell within the exception of the Act regarding the appointment, employment or dismissal of an employee or officer, and another exception in the Act which frees from the open action requirement discussion regarding “litigation when an action against, affecting, or on behalf of the particular public body has been filed and is pending in a court or administrative tribunal, or when the public body finds that such an action is probable or imminent.” Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe next contention brings into issue the Board’s decision to request mediation with the teachers’ union. During the February 3 executive session, the administration explained to the Board the advantages and disadvantages of such mediation. During executive session, and without ratification during subsequent open session, the Board agreed to make a joint request for mediation. The trial court held that the Board’s decision to request mediation was not a final action within the realm of the Open Meetings Act and ruled that the discussions fell within the collective negotiating exception provided in the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nThe final topic alleged to have been inappropriate for discussion during executive session is the school district’s contract with a bus company. During the February 3 executive session, the superintendent and Board discussed the advantages and disadvantages of extending an existing contract between a bus company and the school district. The Board and superintendent decided to extend the then existing contract rather than accept bids from other companies. The trial court recognized that public knowledge of this decision would be disadvantageous to the school district when it negotiated with the bus company. The court ruled that this discussion fell within the appointment, employment or dismissal of an employee or officer exception of the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nIn addition to the numerous topics we are asked to consider as allegedly having been inappropriately discussed during executive session, plaintiffs also contend that defendants failed to comply with the procedural requirements under the Act. In holding an executive session pursuant to the exceptions enunciated in the Open Meetings Act, it is necessary to abide by the procedural dictates of the Act. Plaintiffs assert that the three meetings discussed above are typical of all Board meetings and violative of the Act in the following measures:\n(1) The Board adjourned from each open meeting and went into executive session by referring during open session to “personnel, negotiations, and legal matters.” The subjects which the Board had voted to be held for executive session were not repeated specifically.\n(2) Topics which the Board did not specifically vote to be held for executive session were considered during executive session.\n(3) The exceptions of the Act, pursuant to which the Board discussed matters in executive session, were not cited during the open portion of the meeting.\n(4) The executive sessions last at least as long, and usually longer, than the open portion of the meeting of which they are a part.\n(5) The Board reaches decisions by consensus during executive session, without a formal roll call vote, and acts on that decision without making reference to or offering ratification of its executive session deliberations and decisions after returning to open session.\n(6) Following the Board’s closed meetings, the discussions undergone during a closed meeting are not revealed to the public.\nThe first issue we are asked to consider is whether the trial court erred in liberally construing certain exceptions provided in the Act. The court held that the exceptions encompass matters collateral to the specifically excepted subjects, so long as those matters are relevant to, bear on, and are incidental to the specifically excepted subjects. It is the plaintiffs’ contention that this interpretation emasculates the Act and is contrary to public policy, case law, and the express language of the Act. We disagree.\nThe cardinal rule of statutory construction is that a statute must be construed so as to give effect to the legislative intent. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 536, 332 N.E.2d 649, 658.) Statutes must be given sensible interpretation by the courts, and a strict construction means only that it must be confined to such subjects or applications as are obviously within its terms and purposes, and it does not require such an unreasonably technical construction that the words used cannot be given their fair and sensible meaning in accord with the obvious legislative intent. (DuBois v. Gib bons (1954), 2 Ill. 2d 392, 410-11, 118 N.E.2d 295, 305.) The Open Meetings Act provides that public agencies exist to aid in the conduct of the people’s business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly. Ill. Rev. Stat. 1987, ch. 102, par. 41.\nWhile we are aware of the ruling that the exceptions allowing closed meetings must be narrowly construed because they derogate the general policy of open meetings (Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App. 3d 226, 228, 317 N.E.2d 288, 290), we do not consider it judicious to apply this ruling blindly and technically such that every instance wherein a public body’s actions do not fall squarely within the language of the exceptions provided in the Act constitutes a violation of the Act. Instead, the language of the Act, and the intent of the legislature expressed therein, must be interpreted and applied on the facts of each case. See People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 538, 332 N.E.2d 649, 660.\nWhile we keep in mind that the purpose of the Act is to promote the openness of public business, we must not overlook the larger, overriding purpose of the Act within which the promotion of openness is subsumed and made a constituent part — aiding the conduct of the people’s business, or, in other words, securing public advantage. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) In promoting the ultimate goal of requiring public bodies to carry out their business in the manner most beneficial to the public they represent, there are occasions on which it is not to the public’s advantage that a public body carry on its business in a meeting open to the public. Therefore, it is not always possible for both of the above-stated purposes of the Act to be promoted in harmony. It is our belief that where the purposes of the Act cannot be promoted in harmony, priority should be given to the more dominant or overriding purpose.\nThis is particularly true in the instant case, where the purpose of promoting openness is not separate and distinct from the overriding purpose of promoting the ultimate goal of public advantage. Openness is in most circumstances an element fundamental in furthering public advantage; however, in some instances openness simply prevents or defeats public advantage.\nFor example, consideration of topics concerning matters such as personal information, bargaining position and negotiating strategy makes it necessary that a public body meet in private, lest it run the risk that the business undertakings will be rendered, for all practical purposes, ineffective and meaningless. Public knowledge of their officials’ intentions and actions resulting from compulsory public deliberative sessions when considering matters such as the purchase of real estate would destroy any advantage to be gained from negotiation and work a severe detriment upon the officers and the public they represent. (Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 603, 283 N.E.2d 718, 720-21.) Likewise, forcing public officers to discuss sensitive issues in meetings open to the public may result in these topics being intentionally overlooked, at the public’s expense. Premised by a familiarity with the common use of discretion which results in many sensitive issues being better left alone, especially when the audience is large and confidence is wanting, consider the negative effects resulting from open discussion of personal problems that might impede upon the work place of a public office, such as alcohol abuse, tardiness, poor hygiene or cigarette smoking. While these problems might be resolved if the appropriate public body were able to discuss the matter freely, it is unlikely that this will occur when such matters cannot be discussed in confidence. As a result, work quality continues to wane, at the public’s expense.\nRestricting public officials’ ability to discuss sensitive issues freely may also breed contempt. The supreme court in People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731, recognized that there are obvious problems of enforcement inherent in the Act. (83 Ill. 2d at 202, 414 N.E.2d at 735.) The facts in Difanis can be summarized, for the limited purpose of this discussion, as a city council holding an informal caucus prior to a regularly scheduled meeting in order to discuss some of the matters which were to be considered at the upcoming meeting. A dispute over whether the informal caucus was actually a meeting within the scope of the Act ensued. In confronting the problem of determining what constitutes a “meeting” in terms of the Act, the Difanis court quoted Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 50-51, 69 Cal. Rptr. 480, 487, which stated in part that “ ‘[a]s operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent.’ ” (83 Ill. 2d at 200, 414 N.E.2d at 734.) In Difanis the supreme court ruled that, regardless of the informal or formal appearance, officials are required, pursuant to the Act, to speak of public business with their fellow officials only when they are in an open forum. (83 111. 2d at 210, 414 N.E.2d at 739.) The supreme court adopted the reasoning of the appellate court in Difanis in holding that public officials’ desire to consult privately must give way to the open conduct of the public’s business “or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest.” 83 Ill. 2d at 211, 414 N.E.2d at 739, citing People ex rel. Difanis v. Barr (1979), 78 Ill. App. 3d 842, 845, 397 N.E.2d 895.\nIn the case before us, we are not asked to consider whether the school Board evaded the proscriptions of the Act by meeting informally, but rather, whether the Board violated the Act by discussing during executive session matters not excepted in the Act, and whether the Board failed to comply with the formal requisites of the Act. We are cautious to observe and protect the same public interest that the dictates of Difanis place in high regard, and we interpret the Act such that its application will not choke and inhibit the Board to the extent that its duties cannot be fulfilled. We recognize the delicate balance between interpreting the Act too broadly, thereby running the risk that the public interest will take second seat to the interest of private individuals, and interpreting the Act too narrowly, thereby overwhelming the public officials with time-consuming formalities and public exposure in sensitive areas. Therefore, we agree with the holding that the Act only requires that a public body “substantially” comply with the Act’s provisions (Argo High School Council of Local 571, IFT, AFT, AFL-CIO v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 583, 516 N.E.2d 834, 837.) Accordingly, we are unable to find that the trial court erred in not interpreting the Act in the strict manner proposed by plaintiffs.\nTurning to other issues raised by plaintiffs, we are unable to find that the trial court erred in interpreting the term “employee” as used in the exceptions provided in the Act. (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Plaintiffs contend that the court erred in interpreting “employee” to include independent contractors. Construing the Act and the exceptions provided therein, giving plain and sensible meanings to the words used by the legislature, and interpreting the Act’s provisions consistently with the expressed intention of the legislature, we find that the exception providing that closed meetings are permissible to consider information regarding appointment, employment or dismissal of an employee or officer may properly be interpreted to include independent contractors where the facts of a given case make such a determination consistent with the underlying intention of the Act.\nThe Act does not elaborate qualifications or definitions for determining whether someone is an employee or officer. Strictly construed in a legal sense, the term employee does not include independent contractors, and the two classifications may be distinguished by considering the manner and method in which anyone so classified performs the duties for which they are hired. (Kouba v. East Joliet Bank (1985), 135 Ill. App. 3d 264, 481 N.E.2d 325.) However, we find it unnecessary in the present case to delve into a determination of whether certain speakers, architects, beauty school operators and other persons hired by the school district performed services in the capacity of employee or independent contractor. Instead, we focus on the intention of the legislature in excepting discussions of matters relating to employment and decide whether the legislature intended a strict legal construction of the term employee so as not to include independent contractors.\nIn the instant case, we are not persuaded that there exists a compelling reason to distinguish between an employee and an independent contractor for purposes of determining whether the Board may properly discuss in closed session the hiring, performance or other matters relating to a person or persons in either classification. In balancing the public’s right to know against the Board’s need to discuss matters in confidence, we find that the narrow, legal definition of employee urged by plaintiffs is inconsistent with the rule that in construing a statute the words must be given their fair and sensible meaning in accord with the legislature’s intent. Taking a more workable approach, we find that the legislature did not intend to exclude independent contractors from the exception providing for discussion of information regarding the appointment, employment or dismissal of employees. The need to discuss in privacy the hiring and performance of an independent contractor is generally the same as that for any other employee. In fact, because an independent contractor may be hired relatively frequently, and usually under a new and separate contract for each job, there is arguably a greater need to preserve confidence in discussing such hiring because each contract may be approached with a varied strategy, whereas, on the average, there is less need for negotiating strategy when hiring personnel. Therefore, we are unable to find that the court erred in finding that the exception for employees and officers also applies to independent contractors under the facts of this case.\nThe next issue raised by plaintiffs is that the court erred in concluding that the superintendent and board did not violate the Act when they considered during executive session educational goals, policy and programs and school district statistics. Plaintiffs argue that the host of policy issues that were discussed in executive session related to the conduct of the people’s business and therefore should have been discussed in open session. Superintendent Walmsley testified at the evidentiary hearing conducted in the trial court that he and the Board discussed in executive session his goals as superintendent. Because the district had been in turmoil for over a year, goals were set for the superintendent’s office in attempt to improve his performance and relationship with the school district in general. Plaintiffs concede that, because Walmsley is an officer of the school district, the discussion of matters relating to his employment may be held in executive session. Plaintiffs dispute the propriety of the formulation during executive session of general policy, such as the goals of the superintendent’s office. Plaintiffs assert that even if discussion of the superintendent’s goals arose in the context of an evaluation of Walmsley’s particular job performance, the Act requires that only those portions of any meeting expressly enumerated in the exceptions to the open meeting requirement may be discussed during executive session. Therefore, according to plaintiffs, the discussion of the superintendent’s goals should have been separated from any particular complaint regarding Walmsley’s performance and discussed in open session.\nIn another subject falling under this issue, plaintiffs argue that the exception for “collective negotiating matters” must be limited to preparation by the Board for actual negotiations with the various unions; the possibility that unions may take advantage of information revealed in open meetings is irrelevant. The possibility that matters discussed during open session may be used by the unions to the people’s detriment is very relevant in considering whether the legislature intended that particular topics be discussed openly.\nFurther, not only would such a strict interpretation of the Act work to the public’s disadvantage, thereby undermining the intentions of the Act, it also results in time-consuming technicalities for which the benefit does not offset the burden. Common experience dictates that discussions of matters relating to complaints against an officer and goals developed in attempting to resolve the complaints can become one and the same. An attempt to discuss only the complaints in closed session and then the proposed goals in open session would be tedious and frustrating when the goals are in direct response to and interrelated with the complaints they are intended to resolve. In order to discuss the goals effectively, it is necessary to consider simultaneously the complaints which prompted the need for the goals. The complaints present problems, and the goals the intended solutions. Forcing the Board to discuss the solutions in public would result in one of two equally unfavorable outcomes. First, the Board would run the risk of exposing personal information regarding the superintendent to the public. In discussing the solutions in public, it is likely that reference will be made to the problems. Second, if the Board were to attempt discussion of the solutions without making reference to the problems, the discussion would be inhibited by the precaution given to avoiding the mention of confidential information in public. Neither of these results is consistent with the Act’s purpose of protecting the public’s business and therefore should not be promoted.\nPlaintiffs’ next issue presented to this court is that the trial court erred in finding that a joint request for mediation was not a final action under the Act. In their closed meeting on February 3, 1987, the Board and superintendent discussed the advantages and disadvantages of engaging in mediation to resolve an impasse in contract negotiations between the Board and the secretaries’ union. Plaintiffs argue that this constituted a “final action” within the contemplation of the Act and should have been discussed in open session, or, at a minimum, reported as a final action in open session. We disagree.\nThe section of the Act which enumerates the exceptions to the open meeting requirement also expressly states that no final action may be taken at a closed meeting. (Ill. Rev. Stat. 1987, ch. 102, par. 42.) In the instant case, the Board chose mediation as an alternative to unsuccessful negotiations with the secretaries’ union. The circuit court found this to be within the exception for discussion of “collective negotiating matters between public employers and their employees or representatives.” (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Plaintiffs argue to the contrary that the Board’s decision to request mediation was unilateral and not a collective negotiation falling within this exception. We agree with the circuit court and find that the request for mediation was part of the process of reaching a final action with the secretaries union. Mediation, similar to negotiating, is not an end in itself, but rather, a means to an end. Negotiations and mediations are made up of many “unilateral” decisions, such as what to offer or counteroffer, and to hold that each of the unilateral strategical decisions that make up the constituent parts of a negotiation is in and of itself a final action is unreasonable.\nNext, plaintiffs argue that the court erred in holding that the superintendent and Board did not violate the Act when it discussed whether to prohibit district administrators from speaking with the media. The underlying action was initiated on January 28, 1987, and the allegedly violative discussion was had on February 3, 1987. Plaintiffs contend that the trial court wrongfully categorized this discussion under the exception for discussion of “litigation when an action against, affecting, or on behalf of the particular body has been filed and is pending in a court or administrative tribunal.” Although the discussions were of a general nature, attending to the relationship between the newspaper and the Board and attempting to resolve plaintiffs’ attempts to question school administrators, we find that a fair interpretation of the Act brings these discussions within the exception of the Act.\nThe final issue requires that this court determine whether the Board failed to comply with the procedural requirements of the Act. We find that the Board substantially complied with the Act consistent with Illinois law. (Argo High School Council of Local 571 IFT, AFT, ALF-CIO v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834; Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385.) For example, plaintiffs complain that the Board’s inclusion in the agenda preceding each meeting of a general reference to “Executive Session — personnel, negotiations and legal matters” is insufficient to give notice to the public of what topics will be discussed during closed session. However, the Act does not require notice in the agenda of topics to be considered in closed session. The Act provides:\n“At any open meeting of a public body, for which proper notice under this Act has been given, the body may, without additional notice under Section 2.02, hold a closed meeting in accordance with this Act. Only topics specified in the vote to close under this Section may be considered during the closed meeting.” (Ill. Rev. Stat. 1987, ch. 102, par. 42a.)\nAccording to the record, the topics to be discussed in closed session were included in the minutes of each meeting prior to the Board’s voting to go into closed session. In instances when a topic not specifically held for closed session was discussed during closed session, the relationship between the items held for closed session and the items not specifically held for closed session is such that the Board’s discussion of these items is in compliance with the Act. It is to be expected that during the discussion of a given topic, other related topics germane to the primary topic may be brought into discussion. In instances when a related topic plays an integral part in the discussion of the original topic to be considered in closed session, business practicality and efficiency dictate that the related topic be discussed along with the primary topic. For example, the trial court held that school enrollment statistics, a topic not falling within any exception to the Act, could be discussed during closed session when discussed collateral to the discussion of offers to purchase real estate — a topic excepted under subsection (c) of section 2 of the Act. This section provides that “meetings where the acquisition of real property is being considered or where the selling price of real estate is being considered by the school board of a public school district” need not be open to the public. Ill. Rev. Stat. 1987, ch. 102, par. 42.\nConstruing the exceptions to the Act applying the fair and sensible statutory interpretation stated in DuBois above, and applying the substantial compliance requirement stated in Argo, we are unable to find merit in plaintiffs’ arguments, and we therefore affirm the judgment of the trial court.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.\nAffirmed.\nHARRISON and GOLDENHERSH, JJ., concur.\nJustice Goldenhersh replaces Justice Calvo, who was elected to the Illinois Supreme Court after this cause was taken under advisement."}
{"dedup_key":"pre1996-136213","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"229 ill-app-3d 459","case_name":"Workmann v. Illinois State Board of Education","court_level":"Appellate","appellate_district":"2nd","year":1992,"county":null,"appellate_docket":"2-91-0889","circuit_docket":null,"published":1,"authoring_justice":"Bowman","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois State Board of Education / Joint Committee on Secondary and Elementary School Sports","requesting_party":"Francis Workmann","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that a plaintiff does not 'substantially prevail' under the FOIA for the purpose of recovering attorney fees when the requested records do not exist and the public body was under no legal obligation to create them. Consequently, the denial of attorney fees was affirmed.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=136213","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.631494","site_category":"Fees & Burdensome Requests","date_decided":"1992-05-21","site_url":"/cases/pre1996-136213/","text_url":"/case-text/pre1996-136213.txt","full_text":"FRANCIS WORKMANN, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants (Emil Jones, Jr., et al., Defendants-Appellees).\nSecond District\nNo. 2—91—0889\nOpinion filed May 21, 1992.\nJohn T. Jursich, of North Chicago, for appellant.\nRoland W. Burris, Attorney General, of Springfield (Kathleen McCabe and Deborah L. Ahlstrand, Assistant Attorneys General, of Chicago, of counsel), for appellees.\n\nJUSTICE BOWMAN\ndelivered the opinion of the court:\nPlaintiff, Francis Workmann, appeals from an order of the circuit court which denied his motion for the imposition of attorney fees against defendants, Emil Jones, Jr., and Richard Mulcahey. Pursuant to the Freedom of Information Act (Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.), plaintiff sought an injunction to compel defendants to deliver certain records. The issue in this appeal is whether the trial court erred in determining that plaintiff did not “substantially prevail” in his action so as to warrant the award of attorney fees to plaintiff under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)).\nWe will summarize briefly only the relevant facts. Following a bench trial, the court issued its findings in a written order, as follows:\n“1. That a Joint Committee on Secondary and Elementary School Sports was created for the purpose of studying and making recommendations to the General Assembly on sports and athletic programs conducted in the States [sic] Secondary and Elementary Schools, by reason of a Joint Resolution Number 166, passed by the Illinois Senate and House of Representatives ***.\n2. That Senator Emil Jones and Representative R. Mulcahey were made Co-Chairman [sic] of said Joint Committee.\n3. That considerable public money was used to study the abuses of school sports in the Secondary and Elementary Schools in Illinois, as a result of said Joint Resolution.\n4. That evidence was introduced at five hearings held throughout the State of Illinois by the Joint Committee; and, that the evidence and the contents of the records of same, were of clearly significant interest to the general public.\n5. That various outside groups had endeavored to influence the decisions and recommendations of the Joint Committee.\n6. That the Joint Committee was unable to make a decision or make recommendations to the House and the Senate by reason of the Joint Committee being unable to agree on any recommendations, and accordingly the Joint Committee never made a final report to the House and Senate.\n7. That by reason of the Joint Committee not asking for an extension of time to make a final report, and further by reason of the House and Senate not extending time for the extensions of same, the Joint Committee ceased to exist by operation of law on June 30,1987.\n8. That all of the records of the hearings in the personal possession of Senator Emil Jones, or in the possession of the Senate Records Keeper could not be found and accordingly are deemed to be lost.\n9. That the Plaintiff had made an appropriate request, as required under the Freedom of Information Act [citation], and that said requests were received by Senator Emil Jones and Representative R. Mulcahey, all as contemplated by said Act.\n10. That Senator Emil Jones and Representative R. Mulcahey furnished no records to the Plaintiff, and failed to advise the Plaintiff as to why the records were not furnished; and, further failed to advise the Plaintiff that he had a right to Administrative Appeal under the statute; that Senator Emil Jones and Representative R. Mulcahey had not contacted the Plaintiff in any manner whatsoever, by letter, telephone or otherwise after receiving the Plaintiff’s request for information.\n11. That the Plaintiff had exhausted his administrative remedies, and accordingly this Court has jurisdiction of this cause.\n12. That by reason of the records being lost, which is the subject matter of this cause, there is no remedy to afford to the Plaintiff, as the Court can not [sic] compel the performance of an impossible act, namely the furnishing of lost records.”\nThe court denied plaintiff’s request for an injunction. The court also granted plaintiff leave to dismiss voluntarily his claim against the Illinois State Board of Education and Leininger.\nWithin 30 days of the order, plaintiff filed a petition for the imposition of attorney fees against defendants. Plaintiff alleged that he had “substantially prevailed” in the proceeding and was therefore entitled to attorney fees to be paid by defendants pursuant to section ll(i) of the Act. There is no transcript or bystander’s report from the hearing on the petition. The court denied the petition because it found that “plaintiff did not substantially prevail on the merits of this cause.” Although the record is unclear regarding whether the count against Leininger and the Board was ever dismissed, the order provided the required language regarding appealability as set forth in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Plaintiff’s timely appeal followed.\nPlaintiff contends that the trial court erred in failing to award him attorney fees. In support of this contention, plaintiff cites to section ll(i) of the Act, which provides that a court may award attorney fees to a plaintiff who “substantially prevails” on a claim under the Act. (Ill. Rev. Stat. 1989, ch. 116, par. 211(i).) According to plaintiff, he “substantially prevailed” in his cause, despite the trial court’s inability to impose an injunction, because defendants refused to furnish the records and did not inform plaintiff that the records were lost. Plaintiff argues that, by denying his request for fees, the trial court has encouraged public officials who refuse to furnish records requested pursuant to the Act to claim that the records in question were lost.\nDefendants respond that plaintiff did not “substantially prevail” on the merits and, therefore, is not entitled to attorney fees under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)). Defendants make several arguments in support of their assertion; however, most of these arguments are irrelevant or are waived because defendants did not cross-appeal from the trial court’s finding that plaintiff exhausted his administrative remedies (see People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 852-53). Defendants’ point regarding the purpose of the fee award has merit, however. As defendants argue, awarding attorney fees pursuant to section ll(i) of the Act for purposes of punishing a public body is improper. The fee provision of the Act was not “intended as either a reward for successful plaintiffs or as a punishment against the government.” Hamer v. Lentz (1989), 132 Ill. 2d 49, 62.\nWe note, initially, that the trial court found that plaintiff had not “substantially prevailed.” Plaintiff has not argued why the trial court’s finding in this regard is erroneous, but he has merely ignored this finding. Plaintiff argues that the court could not have found that defendants had a reasonable basis in law for withholding the records. Plaintiff evidently is relying on section 7 of the Act, which establishes exceptions a public body may invoke to refuse to furnish documents. (See Ill. Rev. Stat. 1989, ch. 116, par. 207.) The problem which plaintiff fails to account for is that, although there was no reasonable basis in law for the refusal to furnish the records, defendants had a reasonable basis in fact for the refusal, namely, the records did not exist because they were lost.\nNeither party cites any authority regarding a request for lost or destroyed documents, nor has our research uncovered any such Illinois cases. We turn, then, to Federal cases which interpret the Federal Freedom of Information Act (Federal Act). (Hamer, 132 Ill. 2d at 58.) In Kissinger v. Reporters Committee for Freedom of the Press (1980), 445 U.S. 136, 63 L. Ed. 2d 267, 100 S. Ct. 960, the United States Supreme Court held that a public agency did not “withhold” documents that were not in its possession as the Federal Act “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Kissinger, 445 U.S. at 150-52, 63 L. Ed. 2d at 281-82, 100 S. Ct. at 968-69; see also National Security Archive v. Archivist of the United States (D.C. Cir. 1990), 909 F.2d 541.\nSimilarly, in Safecard Services, Inc. v. Securities & Exchange Comm’n (D.C. Cir. 1991), 926 F.2d 1197, 127 documents that were the subject of a request under the Federal Act mistakenly were destroyed. The district court granted the agency’s motion for summary judgment. The reviewing court noted that an agency is not required to recreate a document that no longer exists, explaining, “[i]f the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document.” Safecard Services, 926 F.2d at 1201.\nApplying these principles to the facts herein, we conclude that defendants did not refuse to furnish the documents because they did not have possession of them. Plaintiff has not appealed the court’s denial of the injunction; thus, he cannot challenge the implicit finding that the reason the records cannot be found is not suspect. Moreover, there was no evidence to suggest that the records were lost after plaintiff made the request for them.\nAside from the above authority, we will also consider the statutory authority applicable in this cause and apply the standard rules for statutory construction. The objective of statutory construction is to ascertain and give effect to the legislature’s intent in enacting the statute. (People ex rel. LeGout v. Decker (1992), 146 Ill. 2d 389, 394.) Where the language of the statute is clear and unambiguous, the court must enforce the statute as enacted without resorting to other aids of statutory construction. Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 207.\nThe records of a hearing before a commission of the General Assembly are governed by “An Act in relation to hearings before commissions” (Ill. Rev. Stat. 1989, ch. 63, par. 13.1 et seq.). Section 4 of that act provides, in relevant part:\n“An accurate record *** may be kept of the proceedings of any hearing. Upon his written request *** a witness shall be furnished at a reasonable charge with a transcript of the record insofar as it pertains to him or his testimony, if such record was taken at a public hearing ***.” (Ill. Rev. Stat. 1989, ch. 63, par. 13.4.)\nIn most circumstances, the word “may” is used in the permissive sense (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298), and this meaning fits within the context of section 4. We conclude that the making of a record of a hearing before a commission of the General Assembly is not mandatory.\nIf the commission was not required to make a record in the first instance, it could not be found liable under the Freedom of Information Act for refusing to furnish a copy of the nonexistent record to plaintiff, since there is no duty on a public body to create a record for purposes of the Act (Kenyon v. Garrels (1989), 184 Ill. App. 3d 28, 32). By analogy, then, it is clear that since the commission was not required to make a record, its refusal to furnish a lost record which it was not required to make could not violate the Act.\nThus, under either the applicable Illinois statutory sections or Federal case law, the trial court correctly found that plaintiff did not “substantially prevail” on the merits and was therefore not entitled to attorney fees under section ll(i) of the Act (Ill. Rev. Stat. 1989, ch. 116, par. 211(i)).\nThe judgment of the circuit court is affirmed.\nAffirmed.\nINGLIS, P.J., and DUNN, J., concur."}
{"dedup_key":"pre1996-134167","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"214 ill-app-3d 945","case_name":"Board of Education School District No. 67 v. Sikorski","court_level":"Appellate","appellate_district":null,"year":1991,"county":null,"appellate_docket":"1-90-1353","circuit_docket":null,"published":1,"authoring_justice":"McMorrow","statute":["OMA"],"exemptions_cited":["2(c)(5)"],"public_body":"Board of Education School District No. 67","requesting_party":null,"disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the Board violated the Open Meetings Act by holding an executive session to discuss the postponement of a property sale. However, the court determined that the violation was cured and ratified by subsequent public meetings held by the Board.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=134167","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.631593","site_category":"Closed Sessions","date_decided":"1991-05-31","site_url":"/cases/pre1996-134167/","text_url":"/case-text/pre1996-134167.txt","full_text":"BOARD OF EDUCATION SCHOOL DISTRICT NO. 67, Plaintiff-Appellee, v. MARGARET SIKORSKI, as a Representative of all Taxpayer Residents of School District No. 67, Defendant-Appellee (Niles Township Trustees of Schools, Defendant-Appellee; Bernard Katz and Company, Inc., Defendant-Appellant).\nFirst District (4th Division)\nNo. 1—90—1353\nOpinion filed May 31, 1991.\nRobert Marks, of Marks, Marks & Kaplan, Ltd., of Chicago, for appellant.\nDavid Schachman, Michael K. Fridkin, and Julia A. Fenton, of Sachnoff & Weaver, Ltd., of Chicago, for appellee Board of Education School District No. 67.\n\nJUSTICE McMORROW\ndelivered the opinion of the court:\nThe instant appeal questions whether the Board of Education of School District No. 67 (the Board) violated certain provisions of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.) and the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 1—1 et seq.) in the public sale of certain Board property to defendant Bernard Katz & Co., Inc. (Katz), and whether these violations were grounds to render the sales contract between the Board and Katz unenforceable as void ab initio. We conclude that the Board’s holding of an executive session to decide that the sale of school property should be postponed by three days violated the Open Meetings Act. (Ill. Rev. Stat. 1989, ch. 102, par. 42(c).) However, we also determine that the Board cured and ratified its violation of the Open Meetings Act when the Board held subsequent public meetings regarding sale of the property. In addition, we find that the Board’s failure to provide additional publication of the rescheduled date of sale did not violate the School Code. (Ill. Rev. Stat. 1989, ch. 122, par. 5—22.) We also conclude that, assuming arguendo the Board had violated the School Code, the Board is nevertheless estopped from raising its violation as ground to render void its contract with Katz. We find the Board’s argument regarding the trustees’ delegation to the Board of the authority to enter into a contract with Katz insufficient basis, on this record, to affirm the trial court’s judgment. Accordingly, we reverse the trial court’s ruling and remand the matter for further proceedings consistent herewith.\nThe following facts are undisputed in the record and derive from the parties’ cross-motions for summary judgment. On September 21, 1989, the Board adopted a resolution directing the Niles Township Trustees of Schools to sell property comprising the Hynes Elementary School (hereinafter the Hynes School property) upon terms specified in the resolution and in a trustees’ notice of sale attached thereto. The notice of sale provided that sealed bids would be received on October 19, 1989, and that the Board, at its October 26, 1989, meeting, would accept one bid and execute a sales contract for not less than $2 million net. The notice of sale also required an earnest money deposit of 20% of the bid, and stated, inter alia, that the Hynes School property would revert to the Board if the property were not rezoned for multifamily residential use by the Village of Morton Grove.\nThe Board received several requests for information concerning the sale and on October 2, 1989, sent bid packages in response thereto. Defendant Katz was among those who requested and received a bid package. The trustees’ notice of sale was timely published as required by the School Code, i.e., publication was given in a local newspaper for three consecutive weeks regarding the terms, conditions, and date of public sale of the property. See Ill. Rev. Stat. 1989, ch. 122, par. 5—22.\nThree days before the anticipated public sale, on October 16, 1989, a neighbor to the Hynes School property filed suit to enjoin the sale, arguing that the sale should be postponed pending the election of new school board members. (Spatz v. Board of Education, No. 89—CH—9249 (hereinafter Spatz).) On October 18, 1989, the trial court entered a temporary restraining order that precluded the Board from accepting bids on the scheduled date of public sale, which was set for the following day, i.e., October 19. The Board informed those who had requested bid packages, including defendant Katz, that the public sale would not be held on the set date because of the temporary restraining order. The Board also posted public notice that it would hold an executive meeting at 1 p.m. on October 20 to determine whether the date of public sale of the Hynes School property should be rescheduled to a particular date and time.\nOn the morning of October 20, 1989, the trial court dissolved the temporary restraining order in the Spatz case that had prohibited the Board’s holding of a public sale of the Hynes School property. In the afternoon, the Board met in executive session to determine whether the public sale of the Hynes School property should be rescheduled. At the end of its executive session, the Board voted to receive bids at 1 p.m. on October 23, 1989. The Board also voted to accept a bid and execute a contract of sale on October 26, 1989, the date originally set in the published notice of sale. The Board posted public notice at its offices indicating that this vote had been reached at its executive session. The Board also notified persons who had requested bid packages, as well as those who had appeared for the original public sale on October 19, that the date of public sale had been rescheduled to October 23. The Board did not publish notices in local newspapers regarding the rescheduled date of the public sale.\nOn the date and time of the rescheduled public sale of the Hynes School property, defendant Katz appeared and submitted a bid for the minimum amount stated in the notice of sale, i.e., $2 million. No other person or entity appeared to submit a bid for the property. At a duly convened meeting on October 24, 1989, the trustees adopted a resolution approving the Board “as designee for the purpose of the sale of the Hynes School.” A day later, a neighbor of the school, Margaret Sikorski, filed a declaratory judgment action seeking to enjoin the sale on the ground that the Board had violated the Open Meetings Act and the School Code. (Sikorski v. Niles Township Trustees of Schools, No. 89—CH—09605 (hereinafter Sikorski).) This suit was consolidated with the earlier action, Spatz, which remained pending in the circuit court.\nOn October 26, 1989, i.e., the date designated in the original notice of sale, the Board accepted the Katz bid and signed the real estate contract with Katz for sale of the Hynes School property. Katz deposited with the Board the $400,000 earnest money required by the contract, and complied with the contract’s requirement that Katz initiate proceedings to have the Hynes School property rezoned for multifamily residential use.\nAn election of new Board members was held in November 1989, and four new members were elected to the seven-person Board. The new Board, a majority of which apparently disfavored sale of the Hynes School property, filed suit against Katz for a declaratory judgment that the prior Board’s actions with respect to the public sale of the Hynes School property violated the Open Meetings Act and the School Code. The Board’s suit was consolidated with the Sikorski and Spatz litigation. Thereafter, the parties filed cross-motions for summary judgment with respect to the Board’s declaratory judgment action.\nThe trial court determined that the Board violated the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)) when the Board held an executive session, rather than a public session, to determine that the public sale date should be rescheduled to a particular date. The trial court also determined that the Board violated the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 5—22) when the Board failed to publish additional public notice in local newspapers to indicate that the public sale had been continued to a later date. On these bases, the trial court declared the contract between the Board and Katz void ab initio and unenforceable. Katz appeals from this ruling.\nWe consider first whether the record shows, as a matter of law (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005; Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867 (standard for summary judgment)), that the Board violated the Open Meetings Act on October 20, 1989, when it held an executive session, rather than a public session, to choose a new date for public sale of the Hynes School property. We note that there is no dispute that the Board’s meeting was an executive session, i.e., one closed to the public.\nThe parties’ disagreement focuses on whether this closed session was governed by certain provisions of the Open Meetings Act. Specifically, the Board and Katz disagree with respect to whether the Board’s executive meeting pertained to the selling price of the Hynes School property. The parties also dispute whether the executive session was held to discuss the impact of the Spatz litigation upon the intended sale of the Hynes School property.\nThe Open Meetings Act states in pertinent part that “[a]ll meetings of public bodies shall be public meetings except for *** (c) meetings where the *** selling price of real estate is being considered by the school board of a public school district, [or] *** (h) meetings held to discuss litigation when an action against, affecting, or on behalf of the particular body has been filed and is pending in a court.” Ill. Rev. Stat. 1989, ch. 102, pars. 42(c), (h).\nWe cannot say, as a matter of law, that the Board’s October 20, 1989, executive session meeting came within the provisions of the Open Meetings Act that exempt sessions held to discuss either the sale price of real property or litigation pending against the Board. The minutes of the Board’s meeting, the contents of which were the subject of a stipulation between the parties, simply state that the Board voted to move into executive session “to discuss the sale of the School.” The Board then voted to hold “a public auction *** on Monday, October 23, 1989, for the purpose of selling Hynes Elementary School.” There is nothing in the record to show that the executive meeting related to the selling price of the Hynes School property, as required by subsection (c) (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)) as quoted above. Consequently, this subsection did not justify the Board’s holding of an executive session on October 20, 1989.\nThe record also does not demonstrate that the Board’s executive meeting was designed to discuss the pending Spatz litigation against the Board, as required in subsection (h) (Ill. Rev. Stat. 1989, ch. 102, par. 42(h)) above. Katz asserts that the Board could have discussed any matter, such as the Spatz litigation, that was germane to the Board’s intended topic of discussion regarding whether to reschedule the date of public sale of the Hynes School property. (See Argo High School Council of Local 571 v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834.) On this basis, Katz argues that we should infer, from the circumstances surrounding the Board’s executive meeting, that the Board probably discussed the Spatz litigation during its executive session.\nHowever, the record does not disclose that the Board actually discussed the Spatz litigation, and we decline to speculate on whether the Board did, in fact, discuss this matter during its executive meeting. We note that Katz could have requested that the trial court “examine in camera any portion of the minutes of a meeting at which a violation of the Act is alleged to have occurred,” or that Katz could have asked that the trial court “take such additional evidence as it deems necessary,” in order to prove Katz’ allegation regarding the scope of the Board’s executive session. (Ill. Rev. Stat. 1989, ch. 102, par. 43(b).) Katz did not pursue either of these alternatives to provide factual support for his position that the Board discussed the Spatz litigation during its executive meeting on October 20, 1989. Under these circumstances, we find insufficient ground to disturb the trial court’s determination that the Board’s holding of an executive session on October 20, 1989, violated the Open Meetings Act.\nHowever, we further determine that the Board’s violation of the Open Meetings Act was inadequate basis to render the sales contract between the parties void ab initio and unenforceable, since the Board’s decision to reschedule public sale of the Hynes School property was ratified in subsequent public meetings of the Board.\nThe Open Meetings Act states that the trial court, when confronted with a violation of the Open Meetings Act, may choose from a variety of remedies, including a mandamus that meetings be open, an injunction against future violations of the Act, an order that meeting minutes be made public, or a declaration that voids final action taken at a closed meeting in violation of the Act. (Ill. Rev. Stat. 1989, ch. 102, par. 43(c).) Thus, the trial court is not required to declare a final action null and void, but is permitted to choose an “appropriate” remedy that satisfies “orderly administration and the public interest, as well as for the interests of the parties.” (Ill. Rev. Stat. 1989, ch. 102, par. 43(c); see, e.g., Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385; Betts v. Department of Registration & Education (1981), 103 Ill. App. 3d 654, 431 N.E.2d 1112.) Moreover, it has been held improper to declare a public body’s decision null and void when its initial decision, although reached during an improper executive session, has been subsequently ratified by additional public meetings. See, e.g., Argo High School Council of Local 571 v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834; Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 468 N.E.2d 1019; Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 283 N.E.2d 718.\nBased upon this precedent, we conclude that the Board’s subsequent actions, taken during public meetings, ratified and cured the Board’s previous decision during executive session to reschedule the date for public sale of the Hynes School property. According to the record, after the Board’s closed session, the Board held public meetings to: (1) receive bids for purchase of the property; (2) determine which bid, if any, to accept for sale of the property; and (3) decide if it should enter into a contract for sale of the property to the chosen bidder. In light of these circumstances, the Board’s earlier violation of the Open Meetings Act was cured and ratified by its subsequent public meetings, each of which provided the public with a forum to air their views with respect to sale of the Hynes School property. As a result, the trial court erred when it declared the parties’ sale contract null and void because of the Board’s violation of the Open Meetings Act. See Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 283 N.E.2d 718; see also Bethune v. Larson (1989), 188 Ill. App. 3d 163, 544 N.E.2d 49.\nWe further determine that the Board’s failure to publish additional public notice in local newspapers regarding the rescheduled date of public sale of the Hynes School property did not violate the School Code. The Code states in relevant part that the trustees “shall *** sell the property at public sale, by auction or sealed bids, after first giving notice of the time, place, and terms thereof by notice published once each week for 3 successive weeks prior to the date of the sale *** in a newspaper published in the district.” Ill. Rev. Stat. 1989, ch. 122, par. 5—22.\nThe School Code does not explicitly anticipate the type of factual pattern presented in the instant cause, where a Board must reschedule its public sale because of the entry of a temporary restraining order that prohibits the public sale on the date originally scheduled. Because of this lack of specific reference to circumstances such as those presented in the case at bar, the Board contends that section 5 — 22 of the Code quoted above, regarding publication of public sale of school property, is mandatory and recognizes no exception to its publication requirements.\nWe cannot accept the Board’s argument that section 5—22 admits to no exceptions in its publication requirements. In addition to the rules regarding publication cited by the Board, section 5—22 also provides that if “a reasonable minimum selling price *** is not met or if no bids are received,” the Board may renew its efforts to sell the property, and “may raise the minimum selling price without repeating the public sale procedures.” (Ill. Rev. Stat. 1989, ch. 122, par. 5—22.) Similarly, the Board is permitted to take further steps to sell the property, without repeating the public sale procedures of this provision of the Act, where the original selling price is left unaltered. Harrisburg Community Unit School District No. 8 v. Steapleton (1990), 195 Ill. App. 3d 1020, 553 N.E.2d 76.\nWe find that the failure of section 5—22 to explicitly provide for the instant factual pattern created an ambiguity regarding the proper method of public notice once the Board’s original, properly published notice of public sale was temporarily enjoined by the circuit court because of the filing of the Spatz litigation. When a statute is ambiguous, its terms must be interpreted according to the purposes of the legislation and the evils sought to be remedied. (See, e.g., American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 537 N.E.2d 284.) Particularly where public notice of official action is concerned, the ultimate inquiry is whether all interested parties are adequately informed of the actions taken by the public body. See Jacobson v. Village of Wilmette (1949), 403 Ill. 250, 85 N.E.2d 753; City of Carbondale v. Walker (1909), 240 Ill. 18, 88 N.E. 296.\nThe parties do not dispute that the Board’s original notice of public sale was properly published under section 5—22 of the School Code. The record demonstrates that all parties who expressed an interest in the original public sale were promptly and fully notified of the rescheduled date for sale of the Hynes School property. The record also indicates that public notice of the rescheduled date of sale was plainly posted by the Board for public viewing. Moreover, the necessity for rescheduling the date of public sale was created by litigation that was not instituted by the Board, and the new date chosen by the Board was only three days after the initially scheduled date. Given all of these circumstance, we cannot say that the Board’s actions in the instant cause violated the publication requirements of section 5 — 22 of the School Code.\nThe cases cited by the Board are inapposite to the instant cause, as they pertain to judicial sales of foreclosed property, which are not governed by the School Code and are specifically regulated by particular procedures that must be followed when a judicial sale is rescheduled. (See City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 479 N.E.2d 1040; First Federal Savings & Loan Association v. Chapman (1983), 116 Ill. App. 3d 950, 452 N.E.2d 660.) Similarly, the reported decisions cited by the Board regarding a candidate’s failure to comply with mandatory provisions of the Election Code are factually inapposite. See Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 509 N.E.2d 509; Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292.\nMoreover, assuming arguendo that the Board’s failure to publish the rescheduled date of sale violated the School Code, we conclude that the Board is estopped from asserting its own violation as ground to render the parties’ sale contract null and void ab initio. As Katz asserts, the Board cannot set up its own violation of the School Code in order to retain the Hynes School property and render void ab initio the contract between the parties. See, e.g., DeKam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550; A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, 450 N.E.2d 1356.\nBranigar v. Village of Riverdale (1947), 396 Ill. 534, 72 N.E.2d 201, illustrates this point. In that case, the Village of Riverdale entered into a contract with a private company, Branigar, whereby the village would pay to Branigar a percentage of the village’s water revenues in exchange for Branigar’s construction of a water supply system for certain residences to be built in the village. After the system was constructed and became operational, the village refused to pay Branigar pursuant to the parties’ contract. The village claimed that the agreement was void because the village had failed to publish notice of the contract to its residents. The Illinois Supreme Court rejected the village’s argument, reasoning that where “contracts are irregularly made, and the city accepts the benefits of the contracts, it is estopped from setting up or relying on its own irregularity to defeat recovery. [Citation.]” (396 Ill. at 546.) The court noted that Branigar had “acted in good faith and parted with value for its benefit,” and that the village’s defense pertained to “mere irregularities in the exercise of power conferred [regarding] *** failure to make publication” of the contract. (396 Ill. at 546.) The court observed that “to permit a city *** to say that it neglected publication [under these circumstances] *** would be a fraud which the law ought not to permit.” 396 Ill. at 546.\nSimilar to the argument made by the village in Branigar, the Board in the instant cause has attempted to set up its own failure to publish adequate notice of sale of the Hynes School property as ground to void its contract with Katz. Katz, like the private contractor in Branigar, has parted with value in reliance on his agreement with the Board, by depositing $400,000 earnest money with the Board and by instituting proceedings to have the property rezoned for multifamily residential use. In accordance with the Illinois Supreme Court’s decision in Branigar, we conclude that, assuming arguendo the Board’s actions violated the School Code, the Board is estopped from asserting its violation of the School Code as ground to render void its contract with Katz.\nThe Board also argues that its contract with Katz is void, because the trustees lacked the legal authority to delegate to the Board the power to execute the contract selling the Hynes School property to Katz. To support this position, the Board cites exclusively to the language of section 5—22 which states that “trustees of schools *** shall *** sell the property.” (Ill. Rev. Stat. 1989, ch. 122, par. 5—22.) The Board refers to no further legal authority to support its claim on this issue.\nWith respect to the duties of the trustees and the School Board in the sale of school property, section 5 — 22 states in pertinent part as follows:\n“When in the opinion of the school board, a school site *** has become unnecessary or unsuitable or inconvenient for a school, or unnecessary for the uses of the district, the school board *** may direct that said property be sold ***. The school board shall forthwith notify the trustees of schools *** of the terms upon which they desire the property to be sold. *** [T]he trustees of schools *** shall, within 60 days after receiving such notice, sell the property at public sale ***. ***\n* * *\n*** The board may accept a written offer equal to or greater than the established minimum selling price for the described property. ***\nThe deed of conveyance shall be executed by the president and clerk or secretary ***.” Ill. Rev. Stat. 1989, ch. 122, par. 5-22.\nInitially we note that there is nothing in this provision that explicitly directs whether the contract for sale of school property shall be executed by the trustees or the School Board. Because the trustees are deemed the legal title owners to school property (Ill. Rev. Stat. 1989, ch. 122, par. 5—21), it has been held that the School Board does not possess the inherent authority to sell or lease school property to a third party. (Carter Oil Co. v. Liggett (1939), 371 Ill. 482, 21 N.E.2d 569.) However, it has also been recognized that a municipal corporation or body politic may, at least as a general rule, delegate a purely ministerial function to its subordinate. (See 63 C.J.S. Municipal Corporations §962, at 514 (Supp. 1950 & 1990).) The trustees in the case at bar are deemed a body politic. (Ill. Rev. Stat. 1989, ch. 122, par. 5—2.) Although the trustees hold legal title to school property, the statute designates the Board as the entity which must accept or reject any bids for purchase of school property. Thus, the trustees perform the nondiscretionary task of executing the sales contract pursuant to the directions of the Board. In the case at bar, the trustees simply delegated to the Board the ministerial function of executing the sales contract with Katz. The Board asserts no harm or prejudice to school interests because of this delegation of ministerial power. On this record, we find the Board’s argument insufficient ground to affirm the trial court’s ruling.\nFor the reasons stated, the judgment of the circuit court of Cook County is reversed, and the cause remanded for further proceedings consistent herewith.\nReversed and remanded.\nJIGANTI, P.J., and JOHNSON, J., concur."}
{"dedup_key":"pre1996-39455","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"132 ill-2d 49","case_name":"Hamer v. Lentz","court_level":"Supreme","appellate_district":null,"year":1989,"county":null,"appellate_docket":null,"circuit_docket":null,"published":1,"authoring_justice":"Stamos","statute":["FOIA"],"exemptions_cited":[],"public_body":"General Assembly Retirement System (GARS)","requesting_party":"Brian A. Hamer","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The Supreme Court held that records held by the General Assembly Retirement System are subject to disclosure under FOIA. However, the Court further ruled that an attorney representing themselves pro se in a FOIA action is not entitled to recover attorney fees under the statute.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=39455","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:40.631865","site_category":"Fees & Burdensome Requests","date_decided":"1989-10-25","site_url":"/cases/pre1996-39455/","text_url":"/case-text/pre1996-39455.txt","full_text":"(No. 67401.\nBRIAN A. HAMER, Appellee, v. NORMAN E. LENTZ et al., Appellants.\nOpinion filed October 25, 1989.\nRehearing denied December 4, 1989.\nMORAN, C.J., took no part.\nNeil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellants.\nBrian A. Hamer, pro se, and Herbert L. Zarov, of Mayer, Brown & Platt, of Chicago, for appellee.\nJames C. Craven and Donald M. Craven, of Springfield, for amici curiae Attorneys for Illinois Press Association and Illinois Newsbroadcasters Association.\nBarry A. Miller and Malcolm C. Rich, of Chicago, for amicus curiae Chicago Council of Lawyers.\n\nJUSTICE STAMOS\ndelivered the opinion of the court:\nPlaintiff brought this action in the circuit court of Cook County for injunctive and declaratory relief pursuant to the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.) 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.\nThe 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.\nWe 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.\nWe granted leave to the Illinois Press Association, the Illinois NewsBroadcasters Association, and the Chicago Council of Lawyers to file amicus curiae briefs. Amici urge us to affirm the judgment of the appellate court.\nFACTS\nThe 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.\nOver 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).\nThe trial court granted plaintiffs 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 record-keeping 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 plaintiffs petition for attorney fees brought under the FOIA.\nPlaintiff 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.\nDISPUTED DOCUMENTS\nThe 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).\nBefore 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.\nWe conclude that the appellate court correctly ruled that defendants must disclose all of the requested information.\nIn 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.\nDefendants’ 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.\nThe 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 single program does not exist to print out such information for all annuitants. In addition, the active-member ledger sheets maintained by GARS show the months of service of each active member of the General Assembly. However, plaintiff requested months of service for each retiree, not each active member.\nNeither 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. Department of Public Aid (1986), 112 Ill. 2d 449 (in order to provide plaintiff with the requested information, defendant was ordered to develop a special computer program which would delete exempt information); see also Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373.\nIt may be that a special computer program will not be necessary. Since GARS personnel prepare the data input sheets that are submitted to SERS, and the input sheets include months of service, it is apparent that GARS itself has this information somewhere.\nIn sum, the length of service information is maintained by defendants in the ordinary course of business, is nonexempt, and thus must be disclosed. Disclosure of the information in no way involves the creation of a new record.\nWe hold that the records reflecting the cumulative pensions and lengths of service of retirees must be made available to plaintiff for inspection or copying.\nATTORNEY FEES\nSection 11(h) of the FOLA provides as follows:\n“If a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys’ fees but only if the court finds that the record or records in question were of clearly significant interest to the general public and that the public body lacked any rational basis in law for withholding the record.” Ill. Rev. Stat. 1987, ch. 116, par. 211(h).\nDefendants contend, first, that plaintiff is ineligible for an award of fees under this provision because of his status as an attorney proceeding pro se. Second, defendants contend that plaintiff is not entitled to fees because defendants had a rational basis in law for withholding the requested records. The appellate court rejected both of these contentions.\nA. Plaintiff’s Status as a Pro Se Attorney\nThe plain language of section 11(h) does not preclude an award of fees to a pro se attorney. The legislative history of the statute does not address the issue directly. Statements by the FOIA’s chief sponsor indicate that the broad purpose of the fee provision is to enforce the statute. Representative Currie stated: “The point of the attorneys’ fees Section is really to encourage citizens to act rather like a private attorney general. The concept *** really encourages the public to ... to have the opportunity to make sure that this Bill, freedom of information, can be enforced.” (83d Ill. Gen. Assem., House Proceedings, Oct. 20, 1983, at 44 (statements of Representative Currie).) No Illinois case has addressed the issue presented. In addition, no Illinois case has addressed whether a non-lawyer plaintiff proceeding pro se may recover attorney fees.\nIn the absence of express language on the issue in either the statute itself or its legislative history, we look to the fee provision of the Federal Freedom of Information Act, which provides: “The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. §552(a)(4)(E) (1982).\nFour of the circuit courts of appeals have considered the question whether pro se attorneys may recover fees under the Federal FOIA; the cases are evenly divided. Compare Aronson v. United States Department of Housing and Urban Development (1st Cir. 1989), 866 F.2d 1 (fees denied); Falcone v. Internal Revenue Service (6th Cir. 1983), 714 F.2d 646 (same), with Cazalas v. United States Department of Justice (5th Cir. 1983), 709 F.2d 1051 (fees granted); Cuneo v. Rumsfeld (D.C. Cir. 1977), 553 F.2d 1360 (same).\nInitially we note that with the exception of the Court of Appeals for the District of Columbia, all of the circuit courts of appeals that have considered the question have held that a nonlawyer pro se litigant is not entitled to fees. (See Aronson, 866 F.2d at 4 (collecting cases).) Those circuits that have denied fees to pro se lawyers in FOIA cases conclude that there is “no good reason for treating pro se lawyers any differently than pro se laypersons.” (Aronson, 866 F.2d at 5; accord Falcone, 714 F.2d at 647.) Whether a nonlawyer pro se litigant may recover attorney fees under the Illinois FOIA is a question that is not before us, and we express no opinion on the matter.\nThe courts in Aronson and Falcone reached their conclusions for essentially the same reasons. First, the award of fees is intended to relieve plaintiffs of the burden of legal costs; it is not intended as either a reward for plaintiffs or a penalty against the government. Since a pro se lawyer incurs no legal costs, the intent of the fee provision would not be served by granting fees to pro se lawyers. Second, the fee provision encourages plaintiffs to seek out legal advice in order to prevent unwarranted litigation. Although a pro se lawyer may have the requisite legal skills, he or she may lack the objectivity necessary to meet the aims of the statute. Third, the fee provision might be used by lawyers with an inactive practice solely to generate fees. Aronson, 866 F.2d at 4, citing Falcone, 714 F.2d at 647-48.\nThe court in Aronson also addressed the rationales given by those courts that have reached the opposite result. First, the court did not agree that the purpose of the fee provision is to deter and punish the government for wrongfully withholding information. (Aronson, 866 F.2d at 5.) Moreover, those persons making the decision to refuse to release information will not be punished, since the fees will come out of public funds. Aronson, 866 F.2d at 5.\nSecond, the court in Aronson was unpersuaded by the argument that an attorney incurs legal costs to the extent the attorney is unable to devote time to his or her own practice. A nonlawyer pro se litigant in a FOIA case must also devote time to his or her case, and there is no reason to treat lawyers differently from other professionals “whose stock in trade is time and advice.” 866 F.2d at 5.\nThird, the court was of the opinion that allowing fees to a pro se lawyer would be to allow the lawyer to recover for a “non-performed service.” 866 F.2d at 6.\nFinally, the court thought it unseemly to treat pro se lawyers differently from pro se nonlawyers, since to allow the former but not the latter to recover fees creates the appearance that courts are “especially solicitous for the economic welfare of lawyers.” 866 F.2d at 6.\nThe Fifth Circuit in Cazalas reached the opposite conclusion. First, the court addressed the argument that the policy of access to government records is not furthered by an award of fees since a pro se attorney will not have out-of-pocket legal expenses that will deter the attorney from pursuing a FOIA action. The court responded that the attorney in the case before it amply demonstrated the costs she incurred, both from other work forgone and in terms of personal energy. These were “precisely the sort of expenses that might deter a less determined litigant.” Cazalas, 709 F.2d at 1056.\nSecond, the court in Cazalas found little evidence to support the argument that the fee provision’s purpose is to ensure objective legal representation. Rather, according to the court, the legislative history supports the view that the fee provision is “designed to promote vigorous advocacy on behalf of citizens seeking government information.” (Emphasis in original.) 709 F.2d at 1056, citing S. Rep. No. 854, 93d Cong., 2d Sess. 17-19 (1974).\nThird, the court rejected the notion that granting fees to pro se lawyers will engender abusive fee generation. Where a FOIA request is legitimate, the government should promptly release the information and no fee will be necessary. On the other hand, where the government has a colorable basis for withholding documents, the plaintiff ordinarily will not be entitled to fees. 709 F.2d at 1056; see Blue v. Bureau of Prisons (5th Cir. 1978), 570 F.2d 529, 533 (one of the criteria for allowing fees is whether the government had a reasonable basis in law for withholding requested records).\nFourth, the court cited several reasons for treating pro se lawyers differently from nonlawyer pro se litigants. Congress sought to encourage legal representation; thus, it makes sense to compensate lawyers for the legal work they perform when they represent themselves. In addition, it is relatively simple to measure the fees incurred where the pro se litigant is an attorney, for the work forgone is of the same nature as that actually performed. This is not the case for nonattorney pro se litigants. 709 F.2d at 1057.\nFinally, the contrary view “fail[s] to come to terms with the fee provision’s raison d’etre.” (709 F.2d at 1057.) The court identified three policies served by the fee provision. First, it acts as an incentive for private individuals to pursue vigorously their requests for information by removing barriers, particularly the need for legal fees and legal expertise, that the government may erect in an effort to avoid complying with the law. This same incentive is necessary where an attorney seeking information utilizes his or her own skills. Second and third, the provision is designed to deter the government from opposing justifiable requests, and to punish the government where such opposition is unreasonable. 709 F.2d at 1057.\nThe appellate court in the case at bar reviewed the foregoing arguments. It then concluded, without analysis, that the reasoning of the Cazolas court was more cogent than that of the Falcone court. It added that it saw nothing in the fee provision of the Illinois FOIA which would render the Cazalas court’s reasoning inapplicable to petitions for fees brought by pro se attorneys under that statute. (171 Ill. App. 3d at 900.) We disagree.\nFirst, as we have explained, the legislative history of the Illinois fee provision shows that the purpose of the provision is to ensure enforcement of the FOIA. This is accomplished by removing the burden of legal fees, which might deter litigants from pursuing legitimate FOIA actions. We do not think the provision was intended as either a reward for successful plaintiffs or as a punishment against the government. (See Falcone, 714 F.2d at 647.) A lawyer representing himself or herself simply does not incur legal fees. Thus legal fees do not present a barrier to a pro se lawyer seeking to obtain information.\nSecond, we think it is self-evident that one of the goals of the Illinois fee provision is to avoid unnecessary litigation by encouraging citizens to seek legal advice before filing suit. (See Falcone, 714 F.2d at 647.) We agree with the courts in Aronson and Falcone that the lack of objectivity that results from self-representation will not further this goal.\nFinally, we think that the fear of abusive fee generation is not unreasonable. We do not suggest that plaintiff in the case at bar has engaged in such fee generation. Plaintiff attempted to avoid litigation for nearly a year, even though, under the terms of the statute, he could have brought suit much earlier. Moreover, there is no evidence that plaintiff, a member of a large Chicago law firm, has an inactive practice.\nNevertheless, we do not think it advisable to leave the door open for unscrupulous attorneys. We recognize that under section 11(h) of the statute, in order to be awarded fees, it must be shown that the plaintiff has substantially prevailed, that the records are of clearly significant interest to the general public, and that the public body lacked any rational basis in law for withholding the records. However, we do not think that these “safeguards” against fee generation, as plaintiff terms these provisions, address the potential problem directly. The most effective way to deter potential abusive fee generation is to deny fees to lawyers representing themselves.\nFor these reasons, we hold that an attorney proceeding pro se in an action brought under the Illinois FOIA is not entitled to an award of fees under that statute. In light of this disposition, we need not address defendants’ second contention concerning the attorney fees issue.\nCONCLUSION\nFor the foregoing reasons, we find that the appellate court did not err in concluding that plaintiff is entitled to the information requested by him which the trial court had declined to order defendants to disclose. On the attorney fees issue, we hold that plaintiff’s status as an attorney proceeding pro se precludes him from recovering attorney fees. Therefore we need not address defendants’ contention that the appellate court applied an incorrect standard of review to the question whether defendants had a rational basis in law for withholding the requested information.\nThe judgment of the appellate court is affirmed in part and reversed in part.\nJudgment affirmed in part; reversed in part.\nCHIEF JUSTICE MORAN took no part in the consideration or decision of this case."}
{"dedup_key":"pre1996-132128","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"200 ill-app-3d 240","case_name":"Healey v. Teachers Retirement System","court_level":"Appellate","appellate_district":"4th","year":1990,"county":null,"appellate_docket":"4-89-0781","circuit_docket":null,"published":1,"authoring_justice":"Lund","statute":["FOIA"],"exemptions_cited":["7(1)(b)"],"public_body":"Teachers Retirement System of the State of Illinois","requesting_party":"Robert M. Healey and Illinois Federation of Teachers","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a FOIA request for detailed enrollee information, including names, addresses, and pension data. The court held that the requested information was exempt from disclosure under the personal information exemption of the FOIA.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=132128","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:41.460528","site_category":"General Records Exemptions","date_decided":"1990-08-02","site_url":"/cases/pre1996-132128/","text_url":"/case-text/pre1996-132128.txt","full_text":"ROBERT M. HEALEY, Indiv. and as President of the Illinois Federation of Teachers, et al., Plaintiffs-Appellants, v. TEACHERS RETIREMENT SYSTEM OF THE STATE OF ILLINOIS et al., Defendants-Appellees.\nFourth District\nNo. 4—89—0781\nOpinion filed August 2, 1990.\nLawrence A. Poltrock, of Witwer, Burlage, Poltrock & Giampietro, of Chicago (James M. Pietz, of counsel), for appellants.\nJoan T. Hancock, of Teachers Retirement System, of Springfield, and Gregory J. Malovance and Stephen S. Morrill, both of Winston & Strawn, of Chicago, for appellees.\n\nJUSTICE LUND\ndelivered the opinion of the court:\nDefendants Teachers Retirement System (TRS) and Samuel Anderson refused to provide certain information regarding their enrollees which plaintiffs Robert M. Healey and the Illinois Federation (IFT) had requested pursuant to the Freedom of Informaí'OIA) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.). Plain-suit requesting declaratory and injunctive relief. Appellants m and we affirm the order of the circuit court of Sangamon aying plaintiffs’ request.\nly 18, 1986, Robert M. Healey, as president of IFT, sent a quest to TRS asking that TRS provide the following inforjarding all of its enrollees: “Names, addresses (including zip looI district of employment, school name and address, home numbers, number of years (and credit years) in TRS and mrollee (active retired, other).” TRS denied IFT’s request. ’s request was again denied in an appeal to the executive : TRS, IFT filed a complaint seeking declaratory and injuncin the circuit court of Cook County.\nf after plaintiffs filed their complaint, defendants sought a 3r forum non conveniens to the circuit court of Sangamon sfendants’ motion was granted, and the cause proceeded to Lai in the circuit court of Sangamon County.\n•d Geppert, Jr., the assistant to the president of IFT, testi;half of the plaintiffs. He discussed in detail the nature of iffs’ request and the purposes for which the information uld be used. Geppert explained that 96% of all teachers in •garten- through twelfth-grade system are currently under bargaining agreements. He stated that IFT often engages in gainst the Illinois Education Association (IE A), which is the large teachers’ union in the State.\nquestioned regarding IFT’s purpose for requesting such inGeppert stated that TRS “is the — to our knowledge, the where the body of information exists.” He stated that IFT ¡en able to communicate directly with those teachers outside irship, but rather has “had to suffer through a series of rs.” Geppert explained that those teachers outside IFT ip are primarily members of the IEA, and contended that significant differences between the two organizations that communicated.\nrt described information IFT has sent to State University t System (SURS) enrollees. He stated that this information aple of the type of information IFT would send to TRS en-t could obtain their names and addresses. Plaintiffs’ exhibits ough 7, which are examples of items mailed to SURS enrollle a brochure entitled “Discover the IFT Advantage,” which outlines the benefits of IFT membership. The brochure stresses that IFT bargains more effectively than IEA and strikes less frequently, and emphasizes that IFT’s affiliate costs are less than IEA’s. Another item, entitled “Opinion Survey,” asks teachers to rate their job satisfaction, to express their opinion of various labor unions including IFT and the National Education Association, and to rate the performance of their current labor union. A third piece, entitled “Stay in Touch with the World of Public Employment,” describes the benefits of an “Emeritus Membership” designed for retired public employees. Stated benefits include, “Insurance plans, buying services, group travel services *** even the AFT VISA card ***.” Geppert stated that an “Emeritus Bulletin,” which would accompany the “Stay in Touch” brochure, would “provide legislative information about the emeritus program *** which we think is timely and important to retired public employees.” The “Emeritus Bulletin” introduced at trial reiterated the benefits of emeritus membership in the IFT. Geppert admitted that “Discover the IFT Advantage” and the IFT “Opinion Survey” have been described as “organizing tools” in reports to the IFT executive board.\nThe trial court entered an order in favor of defendants, denying plaintiffs’ request for declaratory and injunctive relief. We affirm the trial court’s finding that the information sought by plaintiffs is exempt from disclosure, pursuant to section 7(b)(i) of the FOIA. (Ill. Rev. Stat. 1989, ch. 116, par. 207(b)(i).) While the trial court did not rely upon section 7(b)(ii) of the FOIA as a basis for its ruling, this exemption also prohibits disclosure of the requested information. Ill. Rev. Stat. 1989, ch. 116, par. 207(b)(ii).\nSection 3(a) of the FOIA sets forth the act’s general rule of disclosure, requiring that “[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” (Ill. Rev. Stat. 1989, ch. 116, par. 203(a).) Section 2 of the FOIA provides the definitions for all terms used therein. Included within the subsection (a) definition of “public body” are “administrative, or advisory bodies of the State” and “school districts.” (Ill. Rev. Stat. 1989, ch. 116, par. 202(a).) The subsection (c) definition of “public records” includes “all records *** having been prepared, or having been or being used, received, possessed or under the control of any public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 202(c).) Therefore, TRS, as well as all school districts, are “public bodies” and the information plaintiffs seek is a \"public record.”\nSection 7 lists the various exemptions from disclosure and provides, in relevant part:\n“(1) The following shall be exempt from inspection and copying:\n* * *\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:\n(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies;\n(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for such positions; ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 116, pars. 207(1)(b)(i), (1)(b)(ii).)\nThis court has consistently recognized that the exemptions contained within the subsections of section 7(b) are per se exemptions and do not require courts to determine whether disclosure of the information described in each exemption would constitute a “clearly unwarranted invasion of personal privacy.” (Staske v. City of Champaign (1989), 183 Ill. App. 3d 1, 5, 539 N.E.2d 747, 750; Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 372-73, 493 N.E.2d 127, 128.) The information plaintiffs seek constitutes “files and personal information maintained with respect to *** individuals receiving *** financial *** services” directly from a public body, and is therefore per se exempt from disclosure under the plain language of section 7(b)(i). As “personnel files and personal information maintained with respect to employees *** of [a] public body,” the subject of plaintiffs’ informational request is similarly exempt under section 7(b)(ii).\nNondisclosure of the requested information also comports with the public policy and legislative intent underlying the FOIA. Section 1 of the FOIA provides, in relevant part:\n“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.\nThis Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.” Ill. Rev. Stat. 1989, ch. 116, par. 201.\nAlthough plaintiffs contend that the information they seek is directly relevant to the operation of government, we fail to see how the disclosure of names, addresses, telephone numbers, and the enrollment status of TRS members would reveal anything about the affairs of government or the official acts and policies of the public officials who administer TRS.\nPlaintiffs further insist that, once given the information they seek, they will inform TRS enrollees of relevant legislation and collective-bargaining issues, thereby helping to fulfill FOIA’s stated objective of enabling “the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.) However, plaintiffs’ testimony at trial suggests that IFT’s primary objective is to enlarge its membership rather than inform the public.\nBy plaintiffs’ own admission, 96% of the teachers in the kindergarten- through twelfth-grade system are currently under collective-bargaining agreements. Plaintiffs’ exhibits Nos. 4 through 7, which are examples of the type of information IFT would send TRS members, contain little discussion of relevant legislation and collective-bargaining issues. The information is largely self-promotional and is focused on attracting potential members to the IFT. In short, neither the information IFT requests, nor the information it plans to send TRS members if its request is granted, tends to reveal much at all about the operation of government. IFT is merely seeking to expand its enterprise. Nondisclosure of information sought for this purpose is consistent with the public policy expressed in section 1 of the FOIA.\nWe recognize that our per se interpretation of section 7(b) exemptions differs from that of the First and Third District Appellate Courts. These courts reject a per se application of exemptions in favor of a case-by-case balancing of interests in which the court must determine if disclosure would “constitute a clearly unwarranted invasion of personal privacy.” (Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 1089, 536 N.E.2d 827, 829-30; City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 226, 494 N.E.2d 896, 898.) Now, as in the past, we decline to follow their reasoning.\nMuch like the First and Third District Appellate Courts, Federal courts balance the privacy interest in nondisclosure against the public interest in disclosure when applying certain exemptions contained \"within the Federal act. (See National Association of Retired Federal Employees v. Horner (D.C. Cir. 1989), 879 F.2d 873, 874.) However, the exemptions contained within the Federal Freedom of Information Act (5 U.S.C. §552(b) (1988)) are often not categorical in nature and compel Federal courts to determine whether the release of information would invade the personal privacy of those persons who are the subject of such information. For example, the Federal corollary to the Illinois FOIA’s exemption 7(b)(i) states that the Federal act’s disclosure requirements do not apply to “personnel and medical files *** the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. §552(b)(6) (1988).) Contrastingly, the Illinois FOIA sets forth categorical examples of information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, thereby relieving courts of the task of case-by-case balancing. The State and Federal acts are sufficiently different in their construction that we are not compelled to follow the Federal court’s balancing approach.\nOur decision to apply section 7(b) exemptions in a categorical manner finds further support in United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), 489 U.S. _, _, 103 L. Ed. 2d 774, 797-98, 109 S. Ct. 1468, 1483, where the United States Supreme Court recognized that the exemptions contained within the Federal act may be applied in a per se fashion:\n“Our cases provide support for the proposition that categorical decisions may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction.”\nGiven the fact that the information plaintiffs seek says little or nothing about the operation of government, we find the Court’s language compelling in this case. The trial court properly construed the section 7(b) exemptions in a per se manner.\nWhile we decline to adopt a balancing approach, we are not convinced that the result of this case would be any different even if we chose to do so. At least two Federal cases suggest that the information sought by plaintiffs would be exempt from disclosure under any approach.\nIn Horner (879 F.2d 873), the District of Columbia Circuit reversed the judgment of the district court ordering the Office of Personnel Management to disclose to the National Association of Retired Federal Employees (NARFE) the names and addresses of retired Federal employees. Much like the plaintiffs in this case, NARFE sought the list in order to recruit new members through mailings. After balancing the public interest in disclosure against the privacy interest in nondisclosure, the Horner court concluded that disclosure of the requested records would infringe upon a modest privacy interest and would serve no public interest. Hence, the court reasoned, disclosure of the records was prohibited by exemption 6 of the Federal act (5 U.S.C. §552(b)(6) (1988)) as a clearly unwarranted invasion of personal privacy. (Horner, 879 F.2d at 879.) The Horner court’s reasoning suggests that if we chose to apply a balancing test, we would reach a similar conclusion:\n“The lesson for this case, mutatis mutandis, is that unless the public would learn something directly about the workings of the Government by knowing the names and addresses of its annuitants, their disclosure is not affected with the public interest. *** The simple fact is that those records say nothing of significance about ‘what theQ Government is up to.’ ” Horner, 879 F.2d at 879.\nFederal courts applying the balancing test advocated by plaintiffs have also recognized that nondisclosure is warranted when “any benefits flowing from disclosure of the information sought would inure primarily to the union, in a proprietary sense, rather than to the public at large.” (American Federation of Government Employees, AFL-CIO, Local 1923 v. United States Department of Health & Human Services (1983), 712 F.2d 931, 932.) This is precisely such a case.\nAlthough Federal precedent suggests that the outcome of this case would be no different if we undertook a balancing test, plaintiffs advocate three principal arguments in support of their contention that the trial court erred in applying exemption 7(b)(i) in a per se manner. Plaintiffs first contend that the trial court was legally bound to apply the first district’s balancing approach.\nThe plaintiffs originally filed this action in Cook County, where the first district’s balancing approach is binding on the circuit court. Defendants were then granted a motion to transfer for forum non conveniens, and the cause proceeded to trial in Sangamon County, where the court followed our per se interpretation of the FOIA. When a defendant obtains a transfer for forum non conveniens in the Federal courts pursuant to section 1404(a) (28 U.S.C. §1404(a) (1988)), the law of the transferor forum applies. (Van Dusen v. Barrack (1964), 376 U.S. 612, 639, 11 L. Ed. 2d 945, 962-63, 84 S. Ct. 805, 821.) Plaintiffs reason that the same choice-of-law principles that are applied in Federal forum non conveniens cases should be applied at the State level. However, plaintiffs cite and we know of no authority for this proposition. Further, we do not view this as an appropriate case in which to apply the choice-of-law principles utilized in Federal forum non conveniens cases.\nThe primary rationale for applying the law of the transferor forum in Federal cases is to discourage “forum shopping” by the defendant in an attempt to obtain a State law advantage. There is little in this case to suggest that defendants sought transfer in order to obtain an advantage through the application of fourth district law. Defendants sought transfer to Sangamon County because TRS, the information plaintiffs seek, and all of the potential TRS witnesses are located there. Additionally, as we previously suggested, it seems unlikely that the result of this case would be any different if the first district’s balancing approach had been applied by the trial court. Hence, it is not apparent that defendants actually obtained an advantage even if one was sought.\nPlaintiffs further contend that the trial court’s per se construction of section 7(b) violates the first amendment of the United States Constitution. (U.S. Const., amend. I.) Plaintiffs reason that the first amendment requires the State to show that any denial of the public’s right of access to information about the operation of government is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. Plaintiffs assert that by construing the section 7(b) exemptions in a per se manner, the trial court relieved the State of its burden of showing a compelling governmental interest and thus rendered the FOIA unconstitutionally overbroad. Plaintiffs cite Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613, and Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814, as authority for their constitutional challenge.\nThis court’s interpretation of the FOIA withstood a similar challenge in Copley Press (143 Ill. App. 3d 370, 493 N.E.2d 127). There, the plaintiff also relied upon Globe and Richmond as the basis for its first amendment argument. This court distinguished the two United States Supreme Court cases from the facts of Copley Press as follows:\n“Globe and Richmond concern the right of media representatives to be present at ongoing criminal trials. The Globe court explained that the right to such access to court proceedings was grounded in a tradition of accessibility and the need to permit public scrutiny of the judicial process. There is no such tradition of accessibility to applications for licenses and less need to permit public scrutiny of the background of people receiving licenses.” (Copley Press, 143 Ill. App. 3d at 374, 493 N.E.2d at 129.)\nThe distinctions we set forth in Copley Press are equally applicable to this case. There is by no means a tradition of accessibility to the type of information plaintiffs seek. Further, there is little need to permit public scrutiny of such information because it reveals practically nothing about the operation of government. Our per se interpretation of the section 7(b) exemptions does not run afoul of the first amendment.\nFinally, plaintiffs contend that the Illinois Supreme Court decision in Hamer v. Lentz (1989), 132 Ill. 2d 49, 547 N.E.2d 191, recognizes that section 7(b) does not create per se exemptions and mandates disclosure of the information they request. Although the facts of Hamer are similar to those of this case, we do not view the Hamer holding so expansively.\nIn Hamer, the plaintiff submitted a written request for certain records to Norman Lentz, the administrative secretary of the Illinois General Assembly Retirement System (GARS). Plaintiff sought information regarding the identity of all former members of the Illinois General Assembly currently receiving pension payments under GARS, the annual pension received by each former member, the salary received by each former member immediately prior to retirement, the date of retirement, the length of service in the General Assembly, and the cumulative pension received by each former member from the date of retirement. After GARS refused to release the records plaintiff requested, he brought an action for declaratory and injunctive relief pursuant to the Illinois FOIA. The trial court ordered defendants to disclose some, but not all of the requested information. The appellate court held that the FOIA required all the records requested by plaintiff to be disclosed. (Hamer v. Lentz (1988), 171 Ill. App. 3d 888, 525 N.E.2d 1045.) Defendants appealed to the Illinois Supreme Court, contending that to produce the length-of-service and cumulative pension information requested by plaintiff would require defendants to “create a new record,” a duty the FOIA expressly declines to impose upon public bodies. (Hamer, 132 Ill. 2d at 54, 547 N.E.2d at 194.) Defendants did not contend that the information the appellate court ordered them to disclose was exempt under section 7 of the FOIA.\nWithout citing any of the FOIA exemptions, the court held that the cumulative pension and length-of-service information “is maintained by defendants in the ordinary course of business and it is not exempt from disclosure.” (Hamer, 132 Ill. 2d at 55, 547 N.E.2d at 194.) Whether or not these records were exempt was not at issue in defendants’ appeal. Further, the court stated no rationale whatsoever for its comment in dicta that the information plaintiff sought was “not exempt from disclosure.” For these reasons, we do not view the Hamer dicta as explicitly or implicitly indicating that it is improper to construe section 7(b) exemptions in a per se fashion. Nor do we view Hamer as mandating disclosure of the information requested in this case. Although this case and Hamer are factually similar, the Hamer decision addresses a completely different legal issue. Our decision is not controlled by Hamer.\nFor these reasons, the judgment of the circuit court of Sangamon County is affirmed.\nAffirmed.\nGREEN and McCULLOUGH, JJ., concur."}
{"dedup_key":"pre1996-124964","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"156 ill-app-3d 521","case_name":"Pecora Oil Company v. Johnson","court_level":"Appellate","appellate_district":"2nd","year":1987,"county":null,"appellate_docket":"2-86-0908","circuit_docket":null,"published":1,"authoring_justice":"Dunn","statute":["FOIA"],"exemptions_cited":[],"public_body":"Department of Revenue","requesting_party":"Pecora Oil Company","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the trial court's order compelling the Department of Revenue to produce records under the FOIA. The court held that the records were not exempt from disclosure under the Retailers' Occupation Tax Act and were also subject to inspection under the State Records Act.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=124964","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:41.754016","site_category":"General Records Exemptions","date_decided":"1987-05-12","site_url":"/cases/pre1996-124964/","text_url":"/case-text/pre1996-124964.txt","full_text":"PECORA OIL COMPANY et al., Plaintiffs-Appellees, v. J. THOMAS JOHNSON, Director of Department of Revenue, Defendant-Appellant.\nSecond District\nNo. 2—86—0908\nOpinion filed May 12, 1987.\nRehearing denied July 16, 1987.\nNeil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart and Rosalyn B. Kaplan, Assistant Attorneys General, of Chicago, of counsel), for appellant.\nEdward T. Graham, of Wheaton, for appellees.\n\nJUSTICE DUNN\ndelivered the opinion of the court:\nPlaintiffs, Ted Pécora and Pécora Oil Company (Pécora), filed an action for a writ of mandamus, declaratory relief, and an injunction against defendant, J. Thomas Johnson, Director of the Department of Revenue (Director). The trial court issued an order granting the request for a writ of mandamus and an injunction compelling the production of certain records sought by Pécora pursuant to the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). The Director appeals from the trial court’s ruling, asserting that the requested records are exempt from disclosure under the Retailers’ Occupation Tax Act (ROTA) (Ill. Rev. Stat. 1985, ch. 120, par. 440 et seq.) and under the FOIA.\nPécora purchases motor fuel from various refineries and distributes the fuel to retailers for sale to consumers. Under section 2d of the ROTA (Ill. Rev. Stat. 1985, ch. 120, par. 441d), Pécora is required to prepay to each of its suppliers the retailers’ occupation tax on the motor fuel received from that supplier and distributed to a retailer. Section 2e of the ROTA (Ill. Rev. Stat. 1985, ch. 120, par. 441e) requires suppliers and distributors to file monthly statements of taxes paid for each of their fuel purchasers showing the amount of motor fuel sold or distributed to that purchaser during the preceding month and the amount collected from that purchaser.\nIn its brief on appeal, Pécora states that deficiencies were assessed against it by the Department of Revenue for a 34-month period from January 1983 until October 1985. Pécora challenged these deficiencies in an administrative proceeding and sought the records in question in connection with that proceeding. Pécora made its FOIA request to the Department by letter dated May 20, 1986, and sought the following:\n“1. Copies of records which reflect the invoiced gallons of motor fuel that refiners, suppliers, or producers have reported as sold to Pécora Oil Co. for the thirty-four calendar months of January 1983 through October 1985.\n2. Copies of records which reflect the invoiced gallons of motor fuel which were reported by Pécora as purchased from refiners, suppliers, or producers for the thirty-four calendar months of January 1983 through October 1985.\n3. Copies of records which purports [sic] to show the reconciliation between the invoiced gallons of motor fuel that refiners, suppliers or producers have reported as sold to Pécora Oil Company and the invoiced gallons of motor fuel that were reported by Pécora Oil Company as purchased from refiners, suppliers, or producers for each of the thirty-three calendar months of January 1983 through September 1985.”\nThe Department only granted the request with respect to the records sought in item two. The Department cited section 7(b)(iv) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)(iv)) as the basis for its denial of access to the records sought in items one and three. After its appeal to the Director was denied, Pécora filed the instant action pursuant to section 11 of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 211) in the circuit court of Du Page County.\nThe Director never filed an answer to Pécora’s complaint. A hearing was held on the return date of July 29, 1986, during which the trial court ordered the parties to submit memoranda of law and set the matter for a further hearing. At the second hearing, held on September 2,1986, the trial court issued its ruling in favor of Pécora.\nThere is no report of proceedings in the record on appeal, nor is there a substitute pursuant to Supreme Court Rules 323(c) or (d) (87 Ill. 2d Rules 323(c), (d)). As the appellant, the Director has the burden of presenting a sufficiently complete record of the proceedings in the trial court to support its claim of error; in the absence of such a record we will presume that the trail court’s ruling was in conformity with the law and had a sufficient factual basis. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Any doubts which arise from the incompleteness of the record will be resolved against the appellant. (99 Ill. 2d 389, 392.) This court may, however, review any issues whose resolution does not depend upon the matter omitted from the record on appeal. Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 809, 459 N.E.2d 1164.\nThe Director first contends that the requested records are exempt as a matter of law under section 7(b)(iv) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)(iv)) from public inspection and copying. The relevant portions of section 7 of the FOIA read as follows:\n“The following shall be exempt from inspection and copying: ***\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subject of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:\n* * *\n(iv) information required of any taxpayer in connection with the assessment or collection of any tax unless disclosure is otherwise required by State statute.” (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)(iv).)\nThe Director maintains that any records falling within any of the five subsections of section 7(b) are automatically exempted from disclosure under the FOIA, citing the Appellate Court for the Fourth District’s holding in Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 493 N.E.2d 127. Pécora disagrees, citing the Appellate Court for the Third District’s holding in City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, for the proposition that, even if records fall within one of the subsections of section 7(b), the governmental entity must still show that disclosure of the records would constitute a clearly unwarranted invasion of personal privacy in order to justify any refusal to disclose the records. 144 Ill. App. 3d 224, 228.\nWe need not decide this issue, however, since the Director has failed to demonstrate that the requested records are covered by section 7(b)(iv) of the FOIA. The Director admits that Pecora’s suppliers are not subject to the retailers’ occupation tax on the fuel sold to Pe-cora. Since the records in question do not contain information required of Pecora’s suppliers in their status as taxpayers, section 7(b)(iv) of the FOIA is inapplicable.\nThe records would still be exempt under section 7(b) of the FOIA if they contained information “which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy.” (Ill. Rev. Stat. 1985, ch. 116, par. 207(b).) Under these circumstances, disclosure would not result in any invasion of the privacy of Pecora’s suppliers, especially since the requested information relates solely to sales made to Pécora. The records requested by Pécora are not exempt from disclosure under section 7(b) of the FOIA.\nUnder section 7(a) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 207(a)), information which is specifically prohibited from disclosure by State or Federal law or any rules or regulations promulgated thereto is exempt from disclosure under the FOIA. The Director contends that information sought by Pécora is barred from disclosure by section 11 of the ROTA (Ill. Rev. Stat. 1985, ch. 120, par. 450) and is therefore exempt from disclosure under section 7(a) of the FOIA.\nThe first paragraph of section 11 of the ROTA states as follows:\n“All information received by the Department from returns filed under this Act, or from any investigation conducted under this Act, shall be confidential, except for official purposes, and any person who divulges any such information in any manner, except in accordance with a proper judicial order or as otherwise provided by law, shall be guilty of a Class B misdemeanor.” (Ill. Rev. Stat. 1985, ch. 120, par. 450.)\nThe eighth paragraph of this section states as follows:\n“Where an appeal or protest has been filed on behalf of a taxpayer, the furnishing upon request of the attorney for the taxpayer of returns filed by the taxpayer and information re lated thereto under this Act is deemed to be an official purpose within the meaning of this Section.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 120, par. 450.\nIt is quite clear that the monthly statements filed by Pecora’s suppliers under section 2e of the ROTA (Ill. Rev. Stat. ch. 120, par. 441e) concerning sales to Pécora are closely related to the returns filed by Pécora under the Act. Accordingly, if Pécora has filed an appeal or protest of a tax assessment under the ROTA, it is entitled to receive the requested records for the relevant period, since the furnishing of those records to Pécora would be deemed an official purpose and the disclosure of the records to Pécora would not be barred by the confidentiality provisions of section 11 of the ROTA.\nThe record on appeal neither supports nor refutes the contention made in Pecora’s brief that it challenged the Department of Revenue’s deficiency assessments in an administrative proceeding. Since the Director has failed to provide this court with a sufficiently complete record on appeal to determine this issue, we presume that the trial court’s order was in conformity with the law and had a sufficient factual basis, and we resolve all doubts arising from the incompleteness of the record against the Director. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) We shall therefore presume that Pécora did file an appeal or protest from the Department of Revenue’s tax assessment and that the confidentiality provisions of section 11 of the ROTA are thus inapplicable to the records sought by Pécora.\nThe FOIA became effective July 1, 1984. Some of the records requested by Pécora date back to January 1983. In Carrigan v. Harkrader (1986), 146 Ill. App. 3d 535, 496 N.E.2d 1213, it was held that the FOIA applies to all disclosure requests initiated after its effective date, even if the requested records were prepared or received prior to that date. (146 Ill. App. 3d 535, 537.) Although the Carrigan holding seems to conflict with section 26 of the State Records Act (SRA) (Ill. Rev. Stat. 1985, ch. 116, par. 43.29), which states that the SRA will only apply to inspection and copying of records prepared or received prior to July 1, 1984, and the FOIA shall apply to all other records, it is not necessary to determine whether Carrigan was correctly decided since Pécora is entitled to copies of the requested records under the SRA as well.\nSection 3 of the SRA (Ill. Rev. Stat. 1985, ch. 116, par. 43.6) states that “[r]eports and records of the obligation, receipt and use of public funds of the State are public records available for inspection by the public, except as access to such records is otherwise limited or prohibited by law or pursuant to law.” The records sought by Pécora relate to the receipt of public funds and are therefore subject to inspection under the SRA. While section 3 also states that the State shall not be required to invade or assist in the invasion of any person’s privacy, we have already determined that no invasion of privacy will result if Pécora receives copies of the requested records.\nThe State argues that access to the records in question is otherwise limited as a result of section 11 of the ROTA (Ill. Rev. Stat. 1985, ch. 120, par. 450). We have already rejected this argument in connection with the FOIA, and we reject it again. Pecora’s right to inspect the records under section 3 of the SRA is supplemented by its right to obtain copies of the records under section 4 (Ill. Rev. Stat. 1985, ch. 116, par. 43.7). The result under the FOIA and the SRA is the same; Pécora is entitled to obtain copies of the requested records. The judgment of the circuit court of Du Page County is therefore affirmed.\nAffirmed.\nNASH and INGLIS, JJ., concur."}
{"dedup_key":"pre1996-140846","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"260 ill-app-3d 765","case_name":"Cremer v. City of Macomb Board of Fire and Police Commissioners","court_level":"Appellate","appellate_district":"3rd","year":1994,"county":null,"appellate_docket":"3-93-0647","circuit_docket":null,"published":1,"authoring_justice":"Breslin","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Macomb Board of Fire and Police Commissioners","requesting_party":"Jay Cremer","disposition":"reversed_in_part","relevance":"mention_only","summary_source":"generated","summary":"The court distinguished the Freedom of Information Act from the plaintiff's discovery request, noting that the plaintiff sought his own examination results for litigation purposes rather than public disclosure. The court held that the records were discoverable under the Administrative Review Law rather than governed by FOIA exemptions.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=140846","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:41.849862","site_category":"Public Records Definition","date_decided":"1994-04-14","site_url":"/cases/pre1996-140846/","text_url":"/case-text/pre1996-140846.txt","full_text":"JAY CREMER, Plaintiff-Appellant, v. CITY OF MACOMB BOARD OF FIRE AND POLICE COMMISSIONERS et al., Defendants-Appellees.\nThird District\nNo. 3—93—0647\nOpinion filed April 14, 1994.\nMarcia F. Straub, of Peoria, for appellant.\nLucie & Carper, of Macomb (Jim D. Lucie, of counsel), for appellees.\n\nJUSTICE BRESLIN\ndelivered the opinion of the court:\nThe defendant, City of Macomb Board of Fire and Police Commissioners (Board), refused to hire the plaintiff, Jay Cremer, as a firefighter because he allegedly failed a mental examination administered after he was placed on the eligibility list. The plaintiff sued the Board and the City of Macomb, alleging that this action violated his statutory rights under the Illinois Municipal Code (65 ILCS 5/10 — 2.1—1 et seq. (West 1992)). The plaintiff’s claims against the City of Macomb were dismissed and the City is not involved in this appeal. The Board moved to dismiss the plaintiff’s complaint for failure to state a cause of action. The trial court granted the Board’s motion and further ruled that the Board properly withheld from the plaintiff the results of the mental examination. We hold that the plaintiff has stated a cause of action for failure to follow the hiring procedures outlined in the Illinois Municipal Code.\nThe plaintiff’s first amended complaint alleged that the plaintiff successfully completed the written, oral, physical and mental examinations conducted by the Board and was placed second on the eligibility list posted by the Board. It further alleged that when a vacancy arose, the Board required the plaintiff to submit to a second mental examination. On the basis of the second mental examination, the Board refused to hire the plaintiff for the firefighter vacancy and struck his name from the eligibility list. Finally, the complaint alleged that the Board refused to provide the plaintiff with the results of the second mental examination and thus deprived him of his right to a fair and meaningful hearing before the Board.\nThe first issue on appeal is whether the plaintiff’s complaint states a cause of action.\nSection 10 — 2.1 — 14 of the Illinois Municipal Code provides that the Board must keep a list of persons who have passed the examination for positions as firefighters and who are otherwise eligible. (65 ILCS 5/10—2.1—14 (West 1992).) This section further provides that appointment to a vacancy \"shall be subject to a final physical examination.” (65 ILCS 5/10—2.1—14 (West 1992).) The posting of an eligibility list carries legal significance. (People ex rel. Gaynor v. Board of Fire & Police Commissioners (1957), 14 Ill. App. 2d 329, 144 N.E.2d 763.) While it does not give a candidate a vested right to a position, it does give the candidate standing to assert that the procedure created by the statute has not been followed. Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167, 430 N.E.2d 636.\nIn the case at bar, the plaintiff alleged that he was placed on the eligibility list for the position of firefighter with the City of Ma-comb. Thus, he may challenge any alleged failure to follow the statutory procedure for the appointment of firefighters. He alleges that such a failure occurred because he was ordered to take a second mental examination when the statute calls only for a final physical examination. Therefore, it is clear that the plaintiff is asserting a failure to follow the statutory procedures to which he is entitled by virtue of his placement on the eligibility list. Based on this, we hold that the plaintiff has stated a cause of action.\nThe final issue is whether the Board must produce for the plaintiff the results of the second mental examination.\nThe trial court decided that the plaintiff was not entitled to the results of the mental examination based on Roulette v. Department of Central Management Services (1986), 141 Ill. App. 3d 394, 490 N.E.2d 60. In Roulette the plaintiff brought an action under the Freedom of Information Act (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 201 et seq.) in an effort to learn the results of a psychological examination given to him pursuant to his application for a position as a police officer. The court held that the examination results were exempt from disclosure under the Act.\nRoulette is distinguishable from the case at bar because that decision was based, on the Freedom of Information Act. That act is concerned with making government records available to the public. The plaintiff here is not claiming that the results of his examination should be made public. Further, it is the duty of the court to \"protect the rights of applicants for employment and to make certain that denial of employment is predicated upon proper legal principles.” (Murbach v. Anderson (1981), 96 Ill. App. 3d 1015, 1019, 422 N.E.2d 41, 44.) If the Board were allowed to withhold the results of the plaintiff’s examination, the court could not fulfill this duty.\nSection 3 — 108 of the Administrative Review Law provides that the Board must file an answer to the plaintiff’s complaint which consists of the \"entire record of proceedings” before the Board including the evidence heard by it. (735 ILCS 5/3—108(b) (West 1992).) Since the results of the plaintiff’s examination were part of the evidence before the Board, we hold that those results must be provided to the plaintiff as part of the Board’s answer.\nAccordingly, the judgment of the circuit court of McDonough County is reversed and the cause is remanded with directions to proceed according to this opinion.\nReversed and remanded with directions.\nLYTTON and STOUDER, JJ„ concur."}
{"dedup_key":"pre1996-39495","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"133 ill-2d 413","case_name":"Stratton v. Wenona Community Unit District No. 1","court_level":"Supreme","appellate_district":null,"year":1990,"county":null,"appellate_docket":null,"circuit_docket":null,"published":1,"authoring_justice":"Calvo","statute":["OMA"],"exemptions_cited":[],"public_body":"Wenona Community Unit District No. 1","requesting_party":"Anthony M. Stratton","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court addressed allegations of Open Meetings Act violations during a student expulsion proceeding. The Supreme Court held that the purpose of the Act was upheld because the plaintiffs were provided adequate notice and an opportunity to be heard, despite their decision not to participate.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=39495","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:42.773165","site_category":"Meeting Conduct & Participation","date_decided":"1990-02-16","site_url":"/cases/pre1996-39495/","text_url":"/case-text/pre1996-39495.txt","full_text":"(No. 67693.\nANTHONY M. STRATTON, a Minor, by Richard Stratton, his Father and Next Friend, Appellee, v. WENONA COMMUNITY UNIT DISTRICT No. 1 et al., Appellants.\nOpinion filed February 16, 1990.\nRYAN, J., took no part.\nJeffrey C. Taylor and Everett E. Nicholas, Jr., of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for appellants.\nWilliam C. Zukosky, of Urbana, and Edward Zukosky, of Wenona, for appellee.\n\nJUSTICE CALVO\ndelivered the opinion of the court:\nAnthony Stratton, by his father, Richard Stratton, filed a petition in the circuit court of Marshall County seeking a writ of certiorari, declaratory relief, and an injunction to prevent Anthony’s expulsion from Wenona Community Unit District No. 1 (District). The circuit court issued the writ of certiorari, denied the Strattons’ request for injunctive relief, and entered judgment in favor of the District and its board members. The Strattons appealed, and the appellate court reversed, citing procedural error in the circuit court and a denial of due process in the District’s expulsion proceeding. (171 Ill. App. 3d 640.) We granted the District leave to appeal.\nPursuant to a March 26, 1987, vote of the District’s board of education, Anthony Stratton was expelled from high school for “gross misconduct.” Thereafter, on April 2, 1987, Anthony, by his father, filed a petition in the circuit court alleging that the District, and the individual members of the board, “willfully disregarded” various constitutional and statutory provisions in the proceedings which culminated in Anthony’s expulsion.\nThe petition alleged, in essence, that (1) notice of the expulsion hearing was inadequate in that (a) the letter required by statute was handed to one parent, rather than sent by registered or certified mail to both, (b) Anthony was not notified, (c) the notice stated “no facts” to support expulsion, and (d) the notice allowed insufficient time in which to prepare a defense; (2) a continuance — not conditioned upon Anthony’s continued suspension from school — should have been granted (a) to allow the Strattons time to prepare for the hearing, and (b) to obtain a court reporter or recording device; (3) the “grounds” for expulsion should have been “stated with particularity”; (4) the superintendent was using the expulsion hearing for personal reasons; (5) the board violated the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.); and (6) the District failed to comply with statutory procedures concerning Anthony’s truancy. The Strattons requested, inter alia, that the court (1) declare the expulsion null and void; (2) issue an injunction commanding the District to readmit Anthony; and (3) enter an order directing that the suspension and expulsion be expunged from Anthony’s school records. The Strattons requested, and were granted, a preliminary injunction, gaining Anthony’s readmittance to school pending the outcome of proceedings in the circuit court.\nOn April 22, 1987, the date set for hearing, the Strattons were granted leave to amend their petition. The amended petition identified two bases for the action which were not included in the Strattons’ original petition. The amended petition stated in pertinent part:\n“This action is brought requesting the Court to grant certiorari and grant declaratory relief and an injunction pursuant to Illinois Code of Civil Procedure §11 — 101 et seq. This action is also brought pursuant to 42 U.S.C. §1983.”\nIn preliminary argument, counsel for the Strattons moved to strike references in the District’s answer to anything beyond the minutes of the board meeting of March 26, 1987. Counsel explained the “two-fold” nature of the Strattons’ petition which he claimed justified his motion. First, the Strattons requested the court to “grant certiorari” and review the proceedings of the board solely upon an inspection of its record, i.e., the board’s minutes or matters incorporated therein. No evidence beyond the board’s minutes would be considered. In the event the certiorari proceeding failed to resolve disputed issues, the Strattons contended, evidence could then be taken on the civil rights count.\nThe District’s counsel noted that the answer the District had filed was in response to the original petition, not the amended petition raising certiorari; therefore the motion to strike was inappropriate. Further, counsel argued that the Strattons had to prove the board acted arbitrarily or capriciously, regardless of the type of action involved.\nThe court rejected the Strattons’ position, ruling that evidence would not be limited to the “record.” The court defined “record” as “the record of the school district in the proceedings recorded at the school in the transcript.”\nThe Strattons then had four exhibits marked for identification. Exhibit No. 1 was the minutes of the board’s executive session held on March 26, 1987, wherein matters relating to expulsion were considered; Exhibit No. 2 was the minutes of the open meeting held on the same date, wherein the vote on expulsion was announced; Exhibit No. 3 was an authorization and request for Anthony’s school records; and Exhibit No. 4 was a letter, signed by Superintendent Fred Sams, .informing Mr. and Mrs. Stratton of the impending expulsion hearing. The exhibits were admitted into evidence, and the Strattons rested.\nThe Strattons then moved for a directed verdict. Contending that the entire record of the expulsion proceeding was before the court for purposes of certiorari review, the Strattons argued that the board of education acted without jurisdiction and proceeded illegally “under the Fourteenth Amendment, the Open Meetings Act, and the Illinois School Code.” The Strattons challenged the sufficiency of the minutes in that the letter providing notice of the expulsion hearing was never incorporated into the minutes, and the minutes noted only that certain witnesses were called and failed to incorporate the substance of their testimony. Counsel concluded, “There is absolutely no evidence in the minutes as to why he [Anthony] was expelled.”\nThe circuit court took the Strattons’ motion under advisement and proceeded to hear additional evidence pursuant to section 3(b) of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 43(b)), which provides that a court “may examine in camera any portion of the minutes of a meeting at which a violation of the Act is alleged to have occurred, and may take such additional evidence as it deems necessary.” The District proceeded to call witnesses who testified regarding matters referred to in the minutes of the board of education and subjects beyond the minutes.\nFred Sams, district superintendent, testified that he prepared and kept the minutes of the board of education. Sams identified the official board minutes for March 9, 17, 23 and 26, 1987, July 14 and August 20, 1986, and November 11, 1985. Superintendent Sams identified a parent/student handbook which set forth rules of student conduct and which had been adopted by the board as evidenced by the board’s August 20 minutes. Sams also identified the District’s policy manual which had been adopted by the board at its November 11,1985, meeting.\nSuperintendent Sams then identified a packet of documents which, he testified, had been presented at the expulsion hearing for the board’s consideration and, among other things, included a chronological history of Anthony Stratton’s behavior problems as compiled by Principal Lorin Stevens and Superintendent Sams, as well as various letters to Anthony’s parents pertaining to Anthony’s behavioral problems. The Strattons objected to consideration of the materials in the packet to the extent that there was “no reference in the minutes to [the] packet or any part of it.” The objection was overruled and Mr. Sams thereafter testified extensively regarding documents in the packet, the manner of compilation thereof, and meetings he and Principal Stevens had with the Strattons concerning disciplinary problems referred to therein. The superintendent, in his testimony, recounted the events which transpired at the March 26, 1987, expulsion hearing. Stevens also testified that supportive services were provided for Anthony for truancy.\nDuring the course of Sams’ testimony, the circuit court granted a writ of certiorari, but held that formal requirements were not necessary and proceeded to hear evidence beyond the board’s minutes.\nRobert Sanders, the district guidance counselor, testified that he had appeared at the March 26, 1987, meeting of the board of education and had recounted an incident involving Anthony which had occurred approximately one week earlier. Sanders provided Anthony counseling for truancy.\nLorin Stevens, the district principal, testified as to what he had told the board on the evening of March 26, 1987. Stevens related three incidents of misconduct and rule violations involving Anthony. The first incident arose from a confrontation between Anthony and another student in a physical education class on December 4, 1986. Stevens was summoned by Mr. Beckman, Anthony’s teacher. When Stevens requested that Anthony come over to where Stevens was standing, Anthony walked away from him, and stated, “I don’t have to kiss anybody’s ass just because I’m on probation.” When Stevens told Anthony to go home and get his mother, Anthony responded by saying, either to Stevens or Beckman, “If I go back to jail, I’ll get even with you.” Stevens told Anthony he had a witness to that statement, referring to a student nearby. Anthony went face-to-face with the student and said, “You didn’t hear anything, did you[?]” Anthony then walked away. The second incident occurred on February 20, 1987, when Anthony was involved in a fight with Brett Sams, the superintendent’s son. The third incident occurred on March 19, 1987, when Anthony was asked to come to Stevens’ office to discuss absences on March 16 through 18. In the course of the discussion, voices were raised and Anthony walked out of Stevens’ office stating, “I won’t spend any fucking time in this office.” Anthony’s mother was apprised of the incident by telephone. Anthony was later informed that his “gross misconduct and behavior” could not be tolerated and that he would spend the rest of the day in the superintendent’s office, after which he would serve a four-day out-of-school suspension. Anthony left and did not return. Stevens then recommended expulsion to the superintendent.\nOn March 24, 1987, Stevens met with Anthony’s father. At the meeting, Mr. Stratton was given a letter, serving notice of a March 26 hearing to consider expulsion of Anthony. Stevens had been meeting regularly with Mr. Stratton to discuss Anthony’s conduct.\nStevens testified that Anthony had received the parent/student manual and he identified a document bearing Anthony’s signature attesting to that fact. Mr. Stevens also identified suspension notices he had issued to Anthony and letters he had sent to Anthony’s parents apprising them of the suspensions. Stevens further testified regarding various other meetings with the Strattons wherein their son’s misconduct was discussed.\nSharon Stratton, Anthony’s mother, was called as an adverse witness by the District. She acknowledged that she had been notified of Anthony’s out-of-school suspension on March 20, 1987, and that she had actual notice as of March 25 of the impending March 26 expulsion hearing. She, her husband, and their attorney attended the March 26 board meeting. They walked out when the board refused to grant a continuance unless Anthony remained out of school and suspended during the intervening time. •\nThe District rested its case and moved for admission of its exhibits. The Strattons objected on grounds that many of the exhibits were beyond the minutes of the board meeting. The exhibits were admitted.\nThe Strattons presented rebuttal evidence, after noting that the court had “gone way beyond” the scope of certiorari proceedings. The court noted the Strattons’ continuing objection regarding the limits of certiorari review, following which the' Strattons presented evidence of their own beyond the board’s minutes.\nThe board secretary, Sam Kimpling, testified that the meeting of March 26 began as a special meeting within which there was an executive session dealing with Anthony. However, all votes were recorded in the open session of the special meeting. The board had decided on March 23 to proceed with an expulsion hearing on March 26 and had authorized the superintendent to give notice to the parents. At the inception of the meeting, board members received an informational packet and a copy of the notification letter to Anthony’s parents. Kimpling said he voted for expulsion because of Anthony’s defiance and disobedience. Prominent in his decision to vote for expulsion was the incident in the physical education class.\nThe board president, Vaun Meinhold, agreed that the superintendent had been authorized to give notice to Anthony’s parents. Meinhold considered the entire informational packet in his decision, but he was primarily concerned about the three incidents of misbehavior addressed by Stevens in his testimony before the board. Stevens said he had lost control over Anthony.\nBoard members Tom Lutz and Beverly Hart testified that they based their decisions to expel Anthony primarily on the three incidents related by Stevens. Lutz echoed the testimony of Kimpling and Meinhold, testifying that the board had authorized the superintendent to “set the framework in motion” for an expulsion hearing.\nAnthony Stratton was called as a witness. The District objected on relevancy grounds, claiming that the issue was the propriety of the board’s decision and, since Anthony did not testify before the board at the expulsion hearing, his testimony should not be considered. Counsel for the Strattons noted that review should have been confined to the record on certiorari, but that, given the court’s ruling in that regard, Anthony should be allowed to testify. The District reiterated its position that evidence should be confined to that which was before the board. The court ruled Anthony’s testimony irrelevant and immaterial. The Strattons’ counsel continued to argue the point, contending that Anthony’s testimony would be relevant as it related to the circumstances surrounding the imposition of suspensions which formed part of the basis for his expulsion. If the suspensions were arbitrary, counsel argued, the expulsion based upon the suspensions must have been arbitrary. The court allowed Anthony’s testimony as an offer of proof and, in the course of the testimony, the court “reversed its position” and “allowed everything that [had] been said by [the] witness to be introduced into evidence.”\nAnthony was allowed to testify regarding incidents which formed the basis for his expulsion. Anthony claimed that he was absent March 16 through 18 because he was counseling a friend who was contemplating suicide. He tried to explain the reason for his absence to Stevens, but Stevens would not listen. Anthony admitted the use of profanity on March 19, but said he did not know Stevens was in the area. He testified he was aware of the suspensions he received in March of 1987, but he took no steps to seek review before the board. He did not appear at the March 26 board meeting to explain his actions, although he knew of the meeting scheduled for that evening.\nSharon Stratton was recalled as a witness, testifying concerning support services provided to her son by the District. She also testified, in the form of an offer of proof, regarding a change in school officials’ attitudes toward Anthony which she perceived after a fight involving Anthony and Brett Sams, the superintendent’s son.\nVictor Lenkaitis, a probation officer, was allowed to testify concerning certain conversations he had with Anthony in March of 1987. The conversations centered on Anthony’s concern about teenage suicide, a matter which Anthony addressed in his own testimony.\nFollowing Lenkaitis’ testimony, some of which was admitted only as an offer of proof, closing arguments were heard. Counsel for the Strattons again raised the issue of the limited scope of review on certiorari and then proceeded to argue evidence beyond the board’s minutes. The District’s counsel confined his argument primarily to whether the board’s expulsion decision was arbitrary and whether Anthony was afforded due process. Counsel briefly addressed review by certiorari, suggesting that the “record” could be amended “right up in the hearing on the certiorari.”\nThe court found that the board’s decision was not arbitrary and that due process was afforded to Anthony. The court entered judgment for the District. The Strattons appealed.\nThe appellate court reversed. After delineating what it believed to be the proper scope of inquiry under review by a writ of certiorari, the appellate court found that the trial court had erred in allowing extrinsic evidence beyond the board’s minutes to be admitted. Although the court found that procedural error alone was “probably grounds for reversal,” the court proceeded to address “the fundamental issue of whether the plaintiff was afforded sufficient due process.” (171 Ill. App. 3d at 642.) It concluded that he was not.\nWe disagree with the appellate court, both with respect to the appropriate scope of circuit court review and the school board’s compliance with the requirements of due process. We believe the Strattons could not, given the facts of this case, restrict the circuit court’s review to the school board’s minutes by invoking common law certiorari. Moreover, we find the Strattons were not denied due process of law.\nThe common law writ of certiorari was developed to provide a means whereby a petitioner who was without avenue of appeal or direct review could obtain limited review over action by a court or other tribunal exercising quasi-judicial functions. (People ex rel. Loomis v. Wilkinson (1852), 13 Ill. 660, 663.) The purpose of the writ was, and is, to have the entire record of the inferior tribunal brought before the court to determine, from the record alone, whether that body proceeded according to the applicable law. If the circuit court, on the return of the writ, finds from the record that the inferior tribunal proceeded according to law, the writ is quashed; however, if the proceedings are not in compliance with the law, the judgment and proceedings shown by the return will be quashed. (Funkhouser v. Coffin (1921), 301 Ill. 257, 260.) Where the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) has not been expressly adopted, the writ of common law certiorari survives as an available method of reviewing the actions of agencies and tribunals exercising administrative functions. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 540-41.) Where a final administrative decision has been rendered and the circuit court may grant the relief which a party seeks within the context of reviewing that decision, the circuit court has no authority to entertain independent actions regarding the actions of an administrative agency. Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 499.\nHowever, there is no absolute right to review by certiorari. As in equity, where the sound discretion of the court is the controlling guide of judicial action in every phase of a suit (Chicago v. Fieldcrest Dairies, Inc. (1942), 316 U.S. 168, 172, 86 L. Ed. 1355, 1358, 62 S. Ct. 986, 988; 30 C.J.S. Equity §10 (1965)), issuance of a writ of certiorari is within the discretion of the court (Deslauries v. Soucie (1906), 222 Ill. 522, 524; People ex rel. Fosse v. Allman (1946), 329 Ill. App. 296, 299), the purpose of the writ being to prevent injustice (Board of Supervisors v. Magoon (1884), 109 Ill. 142, 147; Allman, 329 Ill. App. at 299). The writ should not issue where it would operate inequitably or unjustly, or in the absence of substantial injury or injustice to the petitioner. (14 C.J.S. Certiorari §§13, 14 (1939).) The writ will not issue where another adequate remedy is available. First National Bank & Trust Co. v. Rosewell (1982), 93 Ill. 2d 388, 396.\nThe Strattons brought their action, in part, under 42 U.S.C. §1983 (1988). Unlike a certiorari proceeding, a section 1983 action is not a review proceeding even when, as here, it challenges administrative action that has an adjudicative component (Hameetman v. City of Chicago (7th Cir. 1985), 776 F.2d 636, 640); it is an independent, original action (Hameetman, 776 F.2d at 640). Thus, with respect to Federal due process questions, the circuit court could take testimony regarding the school board’s actions and the evidence it considered, and was not limited to the board’s record. Williams v. Day (8th Cir. 1977), 553 F.2d 1160, 1161-62.\nIn this case, the Federal due process issues raised in the Strattons’ petition by means of section 1983, and the issues to be determined where review is by certiorari— jurisdiction, legality of procedure, and evidentiary basis for the board’s decision — substantially overlapped in most respects. For example, an action taken without jurisdiction over the person affected thereby results not only in a violation of State rights, but also rights to Federal due process. (Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228; Gert v. Elgin National Industries, Inc. (7th Cir. 1985), 773 F.2d 154, 159.) Violations of State procedures pertaining to notice and hearing often entail violations of Federal due process as well, since a State’s procedural rules are usually enacted to ensure that claims are adjudicated in a manner consistent with basic principles of due process. An evidentiary basis, justifying a decision rendered by a tribunal, is necessary if the decision is to be upheld under certiorari review (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 15; Superior Coal Co. v. O’Brien (1943), 383 Ill. 394, 400-01; Zenith Vending Corp. v. Village of Schaumburg (1989), 180 Ill. App. 3d 354, 361-62), and has been required in section 1983 actions (Green v. Board of Regents (5th Cir. 1973), 474 F.2d 594, 595; Simcox v. Board of Education (7th Cir. 1971), 443 F.2d 40, 42) in order to avert a finding of arbitrary and capricious action (Gutzwiller v. Fenik (6th Cir. 1988), 860 F.2d 1317, 1328; Davis v. Stamler (3d Cir. 1981), 650 F.2d 477, 480; Stebbins v. Weaver (7th Cir. 1976), 537 F.2d 939, 943).\nGiven the overlap of issues and the inconsistent procedural posture of the case, we believe the circuit court was warranted in exercising its discretion and hearing evidence beyond the school board’s minutes. Since the presence of the section 1983 claim warranted the taking of additional, but substantially similar, evidence (Hameet man, 776 F.2d at 640), there was no need for strict adherence to procedures normally applicable to certiorari review. The scope of inquiry here was broader than would have been the case had the Strattons challenged only the board’s decision. Thus, the restrictions announced in Dubin do not apply here. Issuance of the writ of certiorari in this case does not alter our opinion since, given the procedural posture of the case, the court could have denied' the writ in the first instance and heard evidence beyond the board’s record.\nBefore we address the merits of this case, a few words regarding the scope of review are in order. The Strattons filed a notice of appeal from the circuit court’s judgment finding that the board’s expulsion of Anthony was not “arbitrary and capricious” and that the requirements of due process were met in the expulsion proceedings. Although the Strattons apparently argued other matters as well before the circuit and appellate courts, as they now do before us, the circuit court decided only the aforementioned issues and the appellate court addressed only certiorari and due process. We will similarly restrict the scope of our review, addressing other matters raised by the Strattons only as those matters relate to the issues properly before us. We believe a party who has received an adverse decision in the circuit court has a responsibility to obtain a court ruling upon those matters which he wishes to raise on appeal. (See Belfield v. Coop (1956), 8 Ill. 2d 293, 312.) Recently, in People v. Schmitt (1989), 131 Ill. 2d 128, 137, we held that a movant has a responsibility to obtain a ruling on his motion if he wishes to raise a question pertaining thereto on appeal. That rationale applies here as well. The Strattons could have sought specific rulings at trial on the matters not decided, or they could have pointed up the omission after the court rendered judgment. They did neither. The fact they took no action in this regard indicates they considered these matters to be peripheral to the central questions in the case and abandoned them for purposes of appeal. They have, therefore, waived issues other than those identified in the court’s order.\nWe will, however, briefly address at this juncture the Strattons’ contention that the school board lacked jurisdiction to expel Anthony. We have reviewed the authorities cited by the Strattons (The Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115; People ex rel. Mark v. Hartquist (1924), 311 Ill. 127; Southworth v. Board of Education (1909), 238 Ill. 190; Betts v. Regional Board (1986), 151 Ill. App. 3d 465; Litin v. Board of Education (1979), 72 Ill. App. 3d 889), and yet conclude that the board had jurisdiction to act. Homefinders states a general proposition with which we have no quarrel, while Southworth, Hartquist and Betts are so factually inapposite that they do not require our comment. We reject the Strattons’ argument that notice by “registered or certified mail” as provided by statute (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.6) is a jurisdictional prerequisite and that notice which is hand delivered is insufficient to vest the board with jurisdiction to act. Notice by means other than registered mail can be valid under Illinois law and actual notice is deemed satisfactory. Glover v. Board of Education (1975), 62 Ill. 2d 122, 126; Matthiessen v. Board of Education (7th Cir. 1988), 857 F.2d 404, 408-09.\nThe Strattons cite Litin in support of an alternative jurisdictional contention: that the board lacked jurisdiction to act because the superintendent, rather than the board, served notice on them. While the Strattons’ citation to Litin provides a refreshing interlude, in that it is factually similar to this case and actually stands in support of the proposition for which it is cited, we believe Litin is distinguishable on its facts. In Litin, the sole issue was whether a written notice, warning a teacher of causes which might result in charges against him, could be sent by a principal in lieu of the school board. The court in Litin held that the board could not delegate authority to the principal to issue such a notice. In Litin, there is no indication that the board was aware or approved of the principal’s action prior to the sending of notice. In this case, board members testified they authorized Superintendent Sams to proceed with the expulsion process, which necessarily entailed the giving of notice. The Strattons’ reliance upon Litin is unavailing.\nWe now turn to the due process question and, thereafter, the issue of whether the board’s expulsion of Anthony was arbitrary and capricious.\nA student’s legitimate entitlement to a public education is a property interest which is protected by due process guarantees and which may not be arbitrarily taken away without adherence to minimal procedural safeguards. (Goss v. Lopez (1975), 419 U.S. 565, 574, 42 L. Ed. 2d 725, 734-35, 95 S. Ct. 729, 736.) Due process entails an orderly proceeding lyherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 417-18.) A fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information. (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 314-15, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657; Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 411.) Due process does not require useless formality in the giving of notice (In re J.W. (1981), 87 Ill. 2d 56, 62), requiring only reasonable assurance that notice will actually be given and the person whose rights are to be affected will be given reasonable time to appear and defend (People ex rel. Loeser v. Loeser (1972), 51 Ill. 2d 567, 572). There must be an opportunity, at a meaningful time and in a meaningful manner, for a hearing appropriate to the nature of the case. Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 71 L. Ed. 2d 265, 279, 102 S. Ct. 1148,1158-59.\nProcedural due process in an administrative setting does not always require application of the judicial model (Dixon v. Love (1977), 431 U.S. 105, 115, 52 L. Ed. 2d 172, 181-82, 97 S. Ct. 1723, 1729), and in fact, not all procedures traditionally associated with due process in judicial proceedings are appropriate in administrative proceedings (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 299, citing Hannah v. Larche (1960), 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502). The procedural safeguards mandated by due process in a particular case vary, depending upon: (1) the significance of the private interest which will be affected by the official action, (2) the risk of the erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards, and (3) the significance of the State interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural safeguards would entail. People v. Orth (1988), 124 Ill. 2d 326, 334.\nEssentially, the Strattons contend that notice was neither timely given, nor sufficiently specific. We disagree. Neither the timing nor specificity of the notice denied the Strattons their rights to due process.\nTwo days’ notice gave the Strattons sufficient time to prepare for the hearing in view of the fact that both the parents and Anthony were well aware of the instances of Anthony’s misconduct leading up to the expulsion. School officials had diligently kept the Strattons apprised of the incidents as they occurred. A summary of evidence to be presented was given the Strattons upon their arrival at the hearing. Moreover, the board indicated on the night of the March 26 expulsion hearing that additional time would be granted the Strattons to prepare if they agreed to a continuation of Anthony’s suspension from school pending a new hearing date. We believe this condition was reasonable, given Anthony’s disruptive behavior. Even with this extension, the suspension still would have fallen within the 10-day suspension period which can be imposed by school officials. (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.6(b).) We are not dealing here with criminal principles of double jeopardy, as the Strattons’ counsel seemed to suggest at trial, so the condition placed upon the granting of a continuance was not improper. It is not our role to question the board’s wisdom or compassion (Wood v. Strickland (1975), 420 U.S. 308, 326, 43 L. Ed. 2d 214, 227, 95 S. Ct. 992, 1003) where there is a basis in the record to support its decision. In sum, notice to the Strattons was timely.\nNotice was also sufficiently specific. The notice given to the Strattons indicated that the board would consider expelling Anthony “for gross misconduct, disobedience, and-disrespect,” substantially tracking the language of the statute providing for expulsion (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 22.6(a)), which employs the terms “gross disobedience and misconduct.” At the March 24, 1987, meeting with school officials, wherein he was given notice of the expulsion hearing, Mr. Stratton was brought up to date on Anthony’s most recent acts of misconduct. There were no acts of misconduct of which the Strattons were unaware. The Strattons knew that the proceeding represented the culmination of a pattern of misbehavior by Anthony, rather than punishment for any particular incident. Anthony’s misconduct had simply reached a point where school officials considered him unmanageable. While not as serious as the misconduct at issue in Betts v. Board of Education (7th Cir. 1972), 466 F.2d 629, Anthony’s undisputed pattern of disobedience and misconduct was “truly gross by any standard” (Betts, 466 F.2d at 635) so that references in the notice to specific incidents or definitional rules of the school authority were unnecessary.\nThe Strattons were given adequate notice of the expulsion hearing and an opportunity to attend. It was their choice, apparently on the advice of their counsel, not to participate in the evidentiary portion of the hearing. Thus, the testimony before the board consisted primarily of that given by Principal Stevens, who related essentially three incidents of Anthony’s misconduct, upon which board members placed great weight in deciding to expel Anthony. We have previously set forth Stevens’ testimony at length and need not reiterate it here; however, we believe Stevens’ testimony furnished an evidentiary basis to support the decision to expel Anthony. Therefore, the decision is sustainable under either the section 1983 standard or the standard employed in certiorari cases since it is supported by evidence and is thus neither arbitrary nor capricious.\nWe believe the Strattons were accorded their rights to due process of law. Those issues which the Strattons have raised, and which we have heretofore declined to address, would not alter our decision because they did not result in substantial prejudice and therefore cannot be used to establish a denial of procedural due process. (Keough v. Tate County Board of Education (5th Cir. 1984), 748 F.2d 1077, 1083.) This observation applies with equal force to both the issue the Strattons raise regarding the judge’s absence for a 20-minute period during an offer of proof and to the alleged violations of the Open Meetings Act. We have thoroughly examined the record and are well acquainted with the conduct of the Strattons’ counsel in the circuit court. We can fully appreciate the court’s frustration and irritation with counsel’s actions; however, the actual personal presence of a judge is an essential element in the constitution of a court. (City of West Frankfort v. A.C. Marsh Lodge No. 496 (1924), 315 Ill. 32, 39.) The procedure the court employed was improper, but not prejudicial. The judge ruled the proffered evidence inadmissible before he left the courtroom. While the judge cannot certify the record as to what occurred in his absence, the Strattons do not claim that the record is inaccurate with respect to matters which transpired in the judge’s absence during their offer of proof, nor do they attempt to demonstrate prejudice. The same is true of the alleged violations of the Open Meetings Act. The Strattons were given adequate notice and an opportunity to be heard and participate in the expulsion hearing. They declined. The purpose of the Act was nonetheless upheld, “having due regard for orderly administration and the public interest, as well as for the interests of the parties” (Ill. Rev. Stat. 1987, ch. 102, par. 43(c)).\nFor all the foregoing reasons, the judgment of the appellate court is reversed and that of the circuit court affirmed.\nAppellate court judgment reversed; circuit court judgment affirmed.\nJUSTICE RYAN took no part in the consideration or decision of this case."}
{"dedup_key":"pre1996-148558","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"48 ill-app-3d 797","case_name":"Pope v. Parkinson","court_level":"Appellate","appellate_district":"4th","year":1977,"county":null,"appellate_docket":"13602","circuit_docket":null,"published":1,"authoring_justice":"Reardon","statute":["OMA"],"exemptions_cited":[],"public_body":"University of Illinois Assembly Hall Advisory Committee","requesting_party":"Richard Pope","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the University of Illinois Assembly Hall Advisory Committee was not subject to the Open Meetings Act because it functioned as an advisory body rather than a decision-making body. Additionally, the court affirmed the denial of the plaintiff's request for financial records, finding that the University's public disclosure of summary revenue and expenditure reports satisfied constitutional requirements.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=148558","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:42.773379","site_category":"Public Body Definition","date_decided":"1977-05-23","site_url":"/cases/pre1996-148558/","text_url":"/case-text/pre1996-148558.txt","full_text":"RICHARD POPE, Plaintiff-Appellee and Cross-Appellant, v. THOMAS P. PARKINSON et al., Defendants-Appellants and Cross-Appellees.\nFourth District\nNo. 13602\nOpinion filed May 23, 1977.\nCharles L. Palmer, of Champaign (Franklin, Flynn & Palmer, and James J. Costello and Timothy Madigan, both of Office of University Counsel, of counsel), for appellants.\nHarold A. Baker, of Hatch & Baker, of Champaign, for appellee.\n\nMr. PRESIDING JUSTICE REARDON\ndelivered the opinion of the court:\nIn this case, we are presented with questions involving the applicability of the Open Meetings Act (Ill. Rev. Stat. 1971, ch. 102, par. 41 et seq.) to the deliberations of the University of Illinois Assembly Hall Advisory Committee (hereinafter referred to as the Committee) and with the public’s need to be informed of the financial operations of the Assembly Hall. The defendants appeal the circuit court’s judgment in favor of the plaintiff which directs the issuance of a writ of mandamus commanding the defendants to open and give public notice of the Committee’s meetings. The plaintiff cross-appeals from a judgment in favor of the defendants in another mandamus action seeking the public disclosure of all financial reports and accounts related to the Assembly Hall operations.\nOn February 13,1973, the plaintiff, a student reporter for the university newspaper, The Daily Illini, attended a meeting of the Committee in Champaign. After the members of the Committee voted to exclude the plaintiff from the meeting, plaintiff refused to leave and the Committee, as a consequence, moved the meeting to the office of the director of the Assembly Hall, Thomas Parkinson. The Committee then bolted the office door, effectively excluding the plaintiff.\nOn February 14, 1973, the plaintiff filed a two-count complaint against the Assembly Hall director, the chairman of the Committee and the University Board of Trustees. In count I, plaintiff sought a writ of mandamus commanding the defendants to open and give public notice of the Committee’s hearings. In count II, plaintiff sought a writ of mandamus compelling the financial disclosure of Assembly Hall operations.\nAfter separately hearing evidence on the two counts of the complaint, the circuit court, on June 21,1974, entered an order directing the issuance of a writ of mandamus commanding that the Committee’s meetings be opened to the public. On September 2,1975, the court entered judgment in favor of the defendants on count II, the financial disclosure count, and on September 23, 1975, the court stayed enforcement of the writ of mandamus pending the outcome of this appeal.\nThe public policy of the State of Illinois regarding the meetings of public agencies is expressed in section 1 of the Open Meetings Act which provides:\n“It is the public policy of this State that the public commissions, committees, boards and councils and other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1971, ch. 102, par. 41.)\nSection 2 of the Act also provides:\n“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings * ” Ill. Rev. Stat. 1971, ch. 102, par. 42.\nThe Committee consists of four faculty and four student members appointed by the chancellor of the University. At trial, Thomas Parkinson, the Assembly Hall director, testified that the Committee advises him on all policy questions concerning the administration of the Assembly Hall and that, on occasion, the Committee reports directly to the chancellor. Parkinson also testified that the Committee functions solely as an advisory body to the chancellor and Assembly Hall director and that he is never bound by any decision or advice given by the Committee.\nThe Committee, by its very nature, does not have deliberations which fall within the scope of the Open Meetings Act, because it is not formally appointed by, or accountable to, any public body of the State. Rather, the Committee is an internal committee within the University whose sole function is to advise University administrators on matters pertaining to internal university affairs. No statute creates the Committee or defines the limits of its authority. The Committee’s unpaid members are not “officially” appointed by the chancellor, although they are informally appointed by the chancellor to an annual term and can be dismissed by the chancellor at any time. In the event of such a dismissal, the public tax burden will be neither increased nor decreased.\nRecently, our brothers in the Second District were presented with a question relating to the applicability of the Open Meetings Act to the deliberations of an advisory committee established by the Kane County Board of Supervisors. (People ex rel. Cooper v. Carlson (1975), 28 Ill. App. 3d 569, 328 N.E.2d 675.) In Cooper, a development committee had been established by the Board to make recommendations to the Board in the area of land use regulation and planning. The development committee than created a five-division department to provide technical assistance to the development committee. The division directors voluntarily arranged for technical staff meetings out of which were developed recommendations that were eventually submitted to the development committee. The petitioner in Cooper filed suit after being excluded from a “staff” meeting with representatives of a land developer, but the cause was dismissed after the circuit court found that:\n“ ® ® ® the staff members did not negotiate with land developers any binding agreements as alleged in the complaint, that the staff is not a ‘body’ within the meaning of the Illinois open meetings act and is not subject to its provisions; that it does not take ‘actions’ or have ‘deliberations’ within the meaning of that act, and that it would unnecessarily burden the staff to construe the act so as to include it within the meaning of the act.” 28 Ill. App. 3d 569, 571, 328 N.E.2d 675, 677.\nOn appeal, the petitioner also directed the court’s attention to a provision in section 2 of the Act (Ill. Rev. Stat. 1971, ch. 102, par. 42) which permits closed advisory committee meetings relating to the discussion of professional ethics or performance where the committee provides professional consultation to a public body. In holding that section 2 was inapplicable, the court stated:\n“That provision, on the contrary, emphasized the applicability of the act only to ‘an advisory committee appointed’ to provide such consultation, not to employees who voluntarily, and in the interest of efficiency or ‘good staff work,’ meet together periodically in the performance of their duties, preliminarily to providing their recommendations.\nIf petitioner’s argument were to be followed to its logical conclusion, a director of any county office or department who voluntarily decided to hold periodic meetings of his employees for the purpose of formulating recommendations to the County Board concerning improvement of the efficiency of his unit in its advisory process, would find that he would be bound to comply with the open meetings act. It is clear to us that such result was not intended.” 28 Ill. App. 3d 569, 572, 328 N.E.2d 675.\nThe Act is intended, as expressed in its statement of public policy, to apply to meetings of “ ® ® ® public commissions, committees, boards and councils and the other public agencies * ° ®,” but is not intended to open to the public the deliberations of merely informal advisory committees who discuss internal university affairs. A public administrator like the Assembly Hall director should be permitted to sample public opinion or to engage in reasonable inquiry regarding the acceptability of Assembly Hall programs. Similarly, the chancellor should be able to appoint an advisory committee to assist him in his oversight of the director’s stewardship.\nAccording to defendant’s exhibit number one, the university has 294 advisory committees and it would be an intolerable burden for this court to require that each of those committees open their doors to the general public. Whether or not every university committee is merely informal and advisory in nature and whether they deal with internal university affairs is a question which we do not decide. We, therefore, restrict the application of this opinion to this case, and we reverse the circuit court’s judgment directing the issuance of a writ of mandamus commanding the defendants to open and give notice of the Committee’s meetings.\nIn regard to the issue raised in the cross-appeal, we note that information concerning the contracts and profit or loss statements for performances staged at the Assembly Hall have been publicly released in a form totaling all Assembly Hall events without giving a breakdown reflecting the financial data for individual performances.\nSection 1(c) of article VIII of the 1970 Illinois Constitution provides:\n“Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.”\nIn explaining the impact of this provision on the floor of the convention, Delegate David Kenney, a member of the Revenue and Financial Committee which drafted the provision, stated:\n“Those terms, ‘reports and records,’ are intended in the general sense and are not intended to extend to every working paper, every paper that may bear upon the financial transactions of state and local government. * * * Rather, the general reports which might be said to recapitulate or to summarize the general records which might do the same thing are those which are intended by this section. In the same way, the terms, ‘receipt, expenditure, and use,’ are terms which are generally employed. The purpose here is to require that reports and records of the receipt of public funds be such reports and records as would indicate the — in general, not in particular — not as to individuals, but in general — the source of revenue. Likewise, the intent is that reports and records bearing upon expenditures be those, perhaps, of a summary nature of expenditures, not bearing on a particular transaction, perhaps, though it is conceivable that that might be the case, but — more significantly — bearing upon the broad and general direction to which expenditures go.” (Emphasis added.) 2 Record of Proceedings, Sixth Constitutional Convention 1872.\nCounsel for the plaintiff has conceded that the State Records Act (Ill. Rev. Stat. 1971, ch. 116, par. 43.4 et seq.) is inapplicable in this cause. Plaintiff, however, also relies on sections 3 and 3a of the Local Records Act (Ill. Rev. Stat. 1971, ch. 116, par. 43.103; 1972 Supp., ch. 116, par. 43.103a) which contain substantially the same language as the constitutional provision quoted above.\nHere, it is clear that the University is not a unit of local government or a school district to which section 3a of the Local Records Act (Ill. Rev. Stat. 1972 Supp., ch. 116, par. 43.103a) might apply. Rather, the University is an arm of the State of Illinois (Kane v. Board of Governors (1976), 43 Ill. App. 3d 315, 319, 356 N.E.2d 1340, 1345). Since we hold that the University has complied with the requirements of section 1(c) of article VIII of our 1970 Constitution by publicly disclosing a summary of Assembly Hall revenue and expenditures, we, accordingly, affirm the judgment of the circuit court which is challenged in the cross-appeal.\nReversed in part; affirmed in part.\nMILLS and HUNT, JJ., concur."}
{"dedup_key":"pre1996-127568","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"171 ill-app-3d 888","case_name":"Hamer v. Lentz","court_level":"Appellate","appellate_district":"1st","year":1988,"county":null,"appellate_docket":"87-2429","circuit_docket":null,"published":1,"authoring_justice":"Sullivan","statute":["FOIA"],"exemptions_cited":[],"public_body":"General Assembly Retirement System","requesting_party":"Brian A. Hamer","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that an attorney representing themselves in a FOIA action is not barred from recovering reasonable attorney fees under the Illinois FOIA. The case was remanded to the trial court to determine the reasonableness of the fees requested by the plaintiff.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=127568","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:43.100660","site_category":"Fees & Burdensome Requests","date_decided":"1988-06-10","site_url":"/cases/pre1996-127568/","text_url":"/case-text/pre1996-127568.txt","full_text":"BRIAN A. HAMER, Plaintiff-Appellant, v. NORMAN E. LENTZ, Administrative Secretary, General Assembly Retirement System, et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 87—2429\nOpinion filed June 10, 1988.\nBrian A. Hamer, of Chicago, appellant pro se.\nNeil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Jill A. Deutsch, Assistant Attorney General, of Chicago, of counsel), for appellees.\n\nJUSTICE SULLIVAN\ndelivered the opinion of the court:\nPlaintiff appeals from an order in an action for declaratory judgment and injunctive relief (1) directing defendants to disclose some, but not all, of the information he requested under the Freedom of Information Act (FOIA) (111. Rev. Stat. 1985, ch. 116, par. 201 et seq.), and (2) denying his request for attorney fees.\nA previous appeal in this case was dismissed by us for lack of jurisdiction where plaintiff’s claim for attorney fees was still pending and the trial court’s order relating to the disclosure of the information at issue did not contain the requisite finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal. Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 508 N.E.2d 324.\nAs we stated therein, the record discloses that on September 19, 1984, plaintiff, Brian Hamer, an attorney, submitted a written request for certain records in the possession of defendants, Norman Lentz, the administrative secretary of the General Assembly Retirement System (GARS), and the Board of Trustees thereof (defendants), relating to State pension payments received by former members of the Illinois General Assembly. Specifically, plaintiff requested the following information:\n(1) the identity of all former members of the Illinois General Assembly currently receiving pension payments under the GARS;\n(2) the annual pension received by each former member during the most recent fiscal year;\n(3) the (a) salary received by each former member immediately prior to retirement, (b) date of retirement from the General Assembly, and (c) length of service in the General Assembly;\n(4) the cumulative pension received by each former member from the date of retirement to the most recent practicable date.\nIn a letter dated October 1, defendant Lentz stated that an extension of time was necessary to respond to plaintiff’s request, but that in accordance with subsections (v) and (vi) of section 3(d) of the FOIA, a response would “be completed with all practicable speed.” On October 22, Lentz advised plaintiff that he did not have the authority to release the requested information but would present the request to the Board at a meeting scheduled for November 14 and thereafter inform plaintiff of the decision reached. After two postponements of that meeting, Lentz notified plaintiff that the Board had considered the request at its meeting on December 13 and had directed him to refer the matter to the Attorney General. Plaintiff responded with a letter of appeal on December 18, in which he asserted that defendants had violated the FOIA by (1) denying him access to public records covered by it and (2) failing to comply with section 9 thereof requiring them to supply (a) the reasons for the denial, (b) the names and titles of the persons responsible for the denial and (c) the procedure for appealing the denial to the head of the agency. In a letter dated January 4, 1985, Lentz informed plaintiff that he had not had the opportunity to review plaintiff’s letter with the chairman of the Board of Trustees but planned to do so the following week. However, in a February 21 responsive letter to plaintiff’s attorney, Lentz stated that the Board had not yet received a reply from the Attorney General on the matter. On March 6, Lentz informed plaintiff’s attorney of the name of the individual to whom the matter had been referred in the Attorney General’s office, but, according to plaintiff’s complaint, numerous attempts by his attorney to contact that individual were unsuccessful.\nOn 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 costs and attorney fees. In an answer filed on October 3, defendants asserted as affirmative defenses (1) that they denied the request on 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 section 7(bXii) of the FOIA, as being “personnel files and personal information maintained with respect to *** elected officials of [a] public body.” 111. Rev. Stat. 1985, ch. 116, par. 207(bXii).\nOn November 22 and December 13, 1985, respectively, plaintiff filed a motion for summary judgment and a memorandum in support thereof arguing, as he does on appeal, that defendants failed to demonstrate the existence of a fiduciary duty which would override the disclosure requirements of the FOIA; that the disclosure of the information would not result in an unwarranted invasion of the personal privacy of the recipients as to be exempted under section 7(bXii) of the FOIA; and that their continuing failure to make the information available constituted a violation of section 3(c), which requires that the public body from which the information is requested “promptly, either comply with or deny a written request for public records within 7 working days after its receipt.” (111. Rev. Stat. 1985, ch. 116, par. 203(c).) Defendants filed a memorandum in opposition to summary judgment reasserting their affirmative defense and adding that in any event, no documents or reports existed containing the exact information requested.\nFollowing a hearing on January 7, 1986, the trial court orally granted plaintiff’s motion for summary judgment, ruling that the information regarding the amount and computation of the pensions of former legislators was not exempt from disclosure under the FOIA, but the court further ruled that defendants were not obligated to compile, or otherwise prepare for inspection, information not maintained by them in the ordinary course of business. A written, agreed order was entered on February 3, stating that the information was subject to disclosure but that final ruling on plaintiff’s motion for summary judgment was reserved until February 13, by which date defendants were ordered to demonstrate to the court “whether the information is kept by [them] in the usual and ordinary course of business and is readily available by reason of their statistical accounting method.” On February 26, following presentation by defendants of a memorandum of “Compliance with the Court’s February 3, 1986 Order” explaining its record-keeping system, the trial court entered a “final and appealable” order directing defendants to disclose by March 19, 1986, “the most recent monthly printout [in its possession] which sets forth the identity of persons receiving pension benefits through the [GARS] as well as the monthly benefit payable for each such pension” and “a document which sets forth the retirement date for each such person receiving pension benefits.”\nPlaintiff appealed from the trial court’s failure to order defendants to provide records showing the cumulative pension of all retirees from the dates of retirement to the present and the length of service upon which those pensions are based. However, as stated earlier, we dismissed the appeal, ruling that the trial court’s order was not final and appealable by reason of the pendency of plaintiff’s claim for attorney fees and the absence of an express finding, as required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal. (Hamer, 155 Ill. App. 3d 692, 508 N.E.2d 324.) Upon further proceedings, plaintiff’s petition for an award of attorney fees and costs was denied, and this appeal followed.\nOpinion\nPlaintiff first contends that he is entitled under the FOIA to all of the information he requested and that the trial court improperly declined to order the disclosure of records showing the cumulative pension received by each former legislator and the length of service upon which the pension is computed. Among the arguments he advances in support of his right to access to the information are that the Illinois Constitution states that “[r]eports and records of the obligation, receipt and use of public funds of the State *** are public records available for inspection by the public (Ill. Const. 1970, art. VIII, § 1(c)); that the intent of the legislature is clearly expressed in section 1 of the FOIA, which provides that “it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees *** [so as] to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest” (Ill. Rev. Stat. 1985, ch. 116, par. 201); that the mechanisms for implementation of that policy are set forth in section 3 of the FOIA, which provides that “(a) [e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7” and “(b) [s]ubject to the fee provisions of Section 6 *** each public body shall promptly provide, to any person who submits a written request, a copy of any public record required to be disclosed by subsection (a)” (111. Rev. Stat. 1985, ch. 116, par. 203(a)(b)); that in addition to the above-quoted passage, section 1 further provides that “[the] restraints on information access should be seen as limited exceptions to the general rule that people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people [and] [t]he provisions of this Act shall be construed to this end” (111. Rev. Stat. 1985, ch. 116, par. 201); and that under Illinois case law the disclosure of information regarding financial benefits from the State is not considered an unwarranted invasion of the personal privacy of the recipients as to be exempt from disclosure. See, e.g., Mid-America Television Co. v. Peoria Housing Authority (1981), 93 Ill. App. 3d 314, 417 N.E.2d 210 (disclosure of the names of private landlords receiving Federal funding from the public housing authority for participating in a low-income housing subsidy program, the addresses of their properties and the amounts received was not an unwarranted invasion of the privacy of either the landlords or the tenants; People ex rel. Recktenwald v. Janura (1978), 59 Ill. App. 3d 143, 376 N.E.2d 22 (the names and total compensations paid to all persons employed by the Cook County Forest Preserve are public records, the disclosure of which does not constitute an invasion of the privacy of the employees).\nWe agree with plaintiff that the information he seeks is subject to the disclosure provisions of the FOIA, but we find it unnecessary to engage in a lengthy discussion thereof, since, as noted earlier, the trial court also expressly found that to be so. Although it is not entirely clear from the record, it appears that the reason the cumulative pension and length of service of each retired legislator were not ordered disclosed was that the trial court was persuaded by defendants’ assertion that the data are not maintained on one document or computer program but rather are incorporated into numerous documents which also contain “extraneous” information neither requested by plaintiff nor subject to disclosure; and that, therefore, to accommodate plaintiff, it would be necessary to create a “new record” which, under section 1 of the FOIA stating “[t]his Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body *** when this Act becomes effective” (111. Rev. Stat. 1985, ch. 116, par. 201), it is not obligated to do.\nAccording to defendants they maintain a “packet” on each former legislator concerning entitlements, beneficiaries and insurance information; both “active member” and “annuitants” ledger sheets — samples of which were submitted in compliance with the court’s order. Each “active member” ledger shows the contributions made, the months of service and the salary earned by the retiree as of the last fiscal year. The “annuitants ledger sheets” show “the amounts by which benefits are automatically increased, the gross and net monthly benefit payable, the total benefit received for the fiscal year and the total benefit received”; and a computer printout received from the State Employees’ Retirement System from data supplied by the GARS which contains, inter alia, the gross and net amount of monthly benefits payable to each annuitant.\nAlthough it appears, as defendants argued, that the ledger sheets, disclosure of which the trial court declined to order, also contain information not relevant to plaintiff’s request — some of which is, arguably, exempt from disclosure as personal information — the FOIA drafters, apparently anticipating such situations, specifically provided in section 8 that “[i]f any public record that is exempt from disclosure *** contains any material which is not exempt, the public body shall separate the exempt material and make the non-exempt material available for inspection and copying.” (Ill. Rev. Stat. 1985, ch. 116, par. 208.) As was observed in People ex rel. Recktenwald v. Janura (1978), 59 Ill. App. 3d 143, 376 N.E.2d 22, citing Department of the Air Force v. Rose (1976), 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592, “selective disclosure,” by deletion of unrequested, irrelevant or exempt information, is not uncommon. Similarly, in Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 493 N.E.2d 1054, the Illinois Supreme Court rejected an argument nearly identical to defendants’ in this case and directed the trial court to enter an order setting a reasonable amount of time for the defendants to prepare a special computer program which would satisfy plaintiffs’ request under the State Records Act (Ill. Rev. Stat. 1985, ch. 116, par. 43.4 et seq.) for the names of providers of abortion services to Medicaid recipients without also disclosing other information determined to be confidential data.\nThe Janura court further stated that while a denial of a request for information might be justified where compliance would cause disruptions of great magnitude to the workings of the public agency, mere administrative inconvenience is not enough to override the statutory provisions and public policy considerations granting the right of access to public records. Likewise, the cost of providing the information is not itself a valid basis for denial since the FG7A provides that the public agency may charge “fees reasonably calculated to reimburse its actual cost for reproducing *** public records.” (111. Rev. Stat. 1985, ch. 116, par. 206.) As was done in Family Life League, the court may order the payment by plaintiff of “the reasonable cost of exercising [his] rights.” Family Life League, 112 Ill. 2d at 459-60, 493 N.E.2d at 1059.\nLike the court in Janura, we are of the opinion that the reasons expressed by defendants for not producting all of the information requested are matters of administrative inconvenience which do not suffice under the FOIA to justify their denial of plaintiff’s right to access to those records. Thus, we hold that plaintiff is entitled to the information requested by him which the trial court previously declined to order defendants to disclose.\nPlaintiff also contends that he is entitled to attorney fees pursuant to section 11(h) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 211(h)), which provides:\n“If a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys’ fees, but only if the court finds that the *** records in question were of clearly significant interest to the general public and that the public body lacked any rational basis in law for withholding the record.”\nDefendants argue that the trial court’s denial of plaintiff’s petition for attorney fees was a proper exercise of its discretion because (1) plaintiff did not substantially prevail in the proceedings to compel disclosure; (2) they had a rational basis in law for withholding the requested information, and (3) in any event, a pro se litigant is not entitled to attorney fees even if he is an attorney.\nPreliminarily, we note that defendants did not assert, either in their memorandum in opposition to plaintiff’s petition or at the hearing thereon, that he had not substantially prevailed in the litigation. Indeed, the only argument of the three raised in this appeal also made by them in the trial court, and the sole basis on which the trial court denied the petition, was that defendants had a rational basis in law for withholding the documents requested by plaintiff.\nIn any event, even without regard to our ruling in this appeal that the data not previously ordered disclosed be made available to plaintiff, we believe that by reason of the trial court’s determination that information regarding State pension benefits received by former members of the General Assembly is subject to disclosure under the FOIA and its order directing defendants to produce documents disclosing the identity and date of retirement of each retiree receiving benefits and the current monthly amount thereof, plaintiff had already substantially prevailed in the litigation so as to satisfy the first of the statutory prerequisites for an award of attorney fees. In light of our determination on appeal, defendants’ argument wholly fails.\nAs to whether there was a rational basis for withholding the information, defendants assert that the trial court correctly found that they had a reasonable basis to believe that as trustees of the pension funds, they were under a duty not to disclose personal, financial information relating to the beneficiaries; and that because the final salary and cumulative pension of the former legislators were exempt from disclosure “by the section 7(bXii) privacy exemption” of the FOIA they “properly denied” plaintiff’s request for disclosure thereof.\nInitially, we note that defendant’s representation of the trial court’s findings contains material inaccuracies which are clearly refuted by even a cursory reading of the transcripts of the proceedings. At the first hearing on plaintiff’s motion for summary judgment, the trial court remarked, “[w]hile I agree that [defendants] are in a fiduciary capacity, I fail to perceive what right the> have to refuse to disclose information sought pursuant to the *** FOIA” and twice stated that the information “is subject to the disclosure provisions of the FOIA.” In denying plaintiff’s petition for attorney fees, the trial court first stated, “The record is absolutely clear, reaffirmed my decision made earlier with respect to disclosure here ***.” The court then made the following remarks:\n“I find that in the instant case, [defendants] *** had a rational basis in law for withholding the documents sought.\nIn the instant case, [defendants] served as trustees of these funds. They served in a fiduciary capacity. The disclosure of these funds may have breached a fiduciary duty they have toward their clients, the beneficiaries of this trust, and inasmuch as that may be the fact, there was no other way to resolve it without coming to Court and securing a court order for direct release of this information which was done pursuant to [plaintiff’s] complaint.\nAccordingly, while I agree that the recordfs] might be of significant interest to the general public, I do believe that the actions of [defendants] in resisting disclosure were in accord with their duty as a fiduciary, and this was a proper and rational basis for withholding the record.”\nNowhere in the record did the trial court even discuss section 7(bXii) much less find, as defendants repeatedly misstate, that the pension recipients’ “privacy outweighed the plaintiff’s request for information” or that “it was exempt” from disclosure thereunder. Rather, it is clear from the above-quoted passage that the trial court’s sole reason for refusing to award attorney fees was its acceptance of defendants’ assertion that they denied plaintiff’s request on the good-faith belief that releasing the information might violate their fiduciary obligations to the pension recipients.\nFurthermore, as plaintiff points out, at no time over the course of nearly one year prior to the filing of his action — during which time he made numerous requests for the information or the specific reason(s) it was being withheld — did defendants state either the grounds on which they now rely or any other as the bases for their refusal to furnish it as is required by section 9 of the FOIA, which provides as follows:\n“(a) Each public body *** denying a request for public records shall notify by letter the person making the request of the decision to deny such, the reasons for the denial, and the names and titles or positions of each person responsible for the denial. ***\n(b) When a request for public records is denied on the grounds that the records are exempt under Section 7 ***, the notice of denial shall specify the exemption claimed to authorize the denial.” 111. Rev. Stat. 1985, ch. 116, par. 209(aXb).\nIn our view, defendants’ failure to process or respond to plaintiff’s repeated requests that they comply with the dictates of the FOIA seriously undermines their professions following the filing of this action that they acted in good faith or that they genuinely believed the defenses first raised by them only after plaintiff instituted these proceedings were, in fact, rational bases in law for their refusal to provide the information. Cf. Cuneo v. Rumsfeld (D.C. Cir. 1977), 553 F.2d 1360, (to defeat a claim for attorney fees by a successful plaintiff in an action under the Federal Freedom of Information Act (5 U.S.C. §552(a)(4)(E) (1982)), the government must show, inter alia, that it had a reasonable basis in law for concluding that the information at issue was exempt and that it had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior).\nMoreover, subjective motivation aside, from an objective standpoint, we do not find the defenses proffered by defendants to have satisfied the “rational basis in law” requirement. We agree with plaintiff that section 1 of article VIII of the Illinois Constitution, the broad disclosure and narrow exemption provisions of the FOIA, as well as various judicial decisions (e.g., Oberman v. Byrne (1983), 112 Ill. App. 3d 155, 445 N.E.2d 374; Mid-America Television Co. v. Peoria Housing Authority (1981), 93 Ill. App. 3d 314, 417 N.E.2d 210; People ex rel. Recktenwald v. Janura (1978), 59 Ill. App. 3d 143, 376 N.E.2d 22), make clear that records regarding the affairs of government, the acts of public officials and the expenditure of public funds are public records which are to be made available to any person who submits a request to inspect them; and that even assuming initial uncertainty by defendants as to their legal obligations, it should have become clear long before institution of this action that they were not justified in withholding information concerning the disbursement of State pension monies to former State legislators on the ground that it was confidential or that its release would result in an unwarranted invasion of the recipients’ privacy.\nFinally, defendants argue — for the first time on appeal — that as a pro se litigant, plaintiff is not entitled to an award of attorney fees. Plaintiff responds that because he is an attorney, the fact that he proceeded pro se in this action does not render him ineligible for compensation of reasonable fees and costs.\nThe parties have not cited, nor has our research disclosed, any Illinois case addressing this issue in the context of the FOIA. Rather, plaintiff and defendants rely primarily on the conflicting holdings in Falcone v. I.R.S. (6th Cir. 1983), 714 F.2d 646, and Cazalas v. United States Department of Justice (5th Cir. 1983), 709 F.2d 1051, respectively, as support for their positions. In both Falcone and Cazólas, the plaintiffs were attorneys who had prevailed as pro se litigants in actions for disclosure of information under the Federal Freedom of Information Act (5 U.S.C. §551 et seq. (1982)), and thereafter sought attorney fees under the fee authorization section, which provides that “[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed” (5 U.S.C. §552(a)(4)(E) (1982)).\nIn Falcone, the Sixth Circuit Court of Appeals set forth three reasons for its determination that attorneys who proceed pro se in a Federal FOIA action are not entitled to attorney fees. First, the court stated that the provision for attorney fees was not intended to reward successful plaintiffs or to penalize the government, but to relieve plaintiffs with legitimate claims of the burden of legal costs, and that since claimants who choose to proceed without legal representation had not “incurred” any legal costs, they are not entitled to compensation therefor. The court noted that a second intendment of the fee provision was to encourage potential claimants to seek objective legal advice prior to instituting an action so as to prevent unnecessary litigation and opined that “[a]n attorney who represents himself *** may have the necessary legal expertise but is unlikely to have the ‘detached and objective perspective’ necessary to fulfill the aims of the Act.” (Falcone, 714 F.2d at 647.) The final reason given was that awarding attorney fees to pro se plaintiffs could result in attorneys “using the Act solely as a way to generate fees rather than to vindicate personal claims.” 714 F.2d at 648.\nPresented with essentially the same arguments as those raised in Falcone, the Fifth Circuit Court of Appeals in Cazólas held that the FOIA does not automatically preclude an award of attorney fees to an attorney representing herself in an action thereunder. As to the argument that an attorney does not incur out-of-pocket legal expenses which might serve as a deterrent to potential nonattomey litigants and that an award of fees is thus tantamount to nothing more than a punishment of the government, the court observed that in the case of an attorney, it is relatively simple to value, and the plaintiff had amply demonstrated, the costs she incurred both from work foregone and in terms of personal energy due to her pro se work; and that compensation for those expenses amounts to a punishment only to the extent that the government should be liable for unreasonably failing to comply with its own laws. Cazalas, 709 F.2d at 1056.\nThe court also disagreed with the argument that the purpose of the fee provision is to insure objective representation, opining that its purpose was, rather, to promote vigorous advocacy on behalf of citizens seeking public information so as to prevent the government from wrongfully withholding such data. With respect to the potential for abusive fee generation, the court stated that where the government has a colorable basis in law for withholding the documents most courts will be reluctant to grant fees; however, if a request for information is justified and the government provides the information promptly, no fees will be awarded. The Cazalas court thus concluded that the. underlying policy of the Federal FOIA of open government and the goals of the fee provision are not threatened but, in fact, furthered by awards of attorney fees and that having employed her legal skills to vindicate an important public right, plaintiff was entitled to compensation for the work she performed. 709 F.2d at 1056-57.\nOf these two conflicting lines of reasoning, we find that of the Cazatas court to be the more cogent and we see nothing in the fee provision of the Illinois FOIA which would render that reasoning inapplicable to or otherwise bar the granting of petitions by attorneys who represent themselves in FOIA actions for awards of reasonable attorney fees.\nWe note, however, that because the petition in this case was denied on the ground that defendants had a rational basis in law for refusing to disclose the information, no determination was made as to whether the fees requested by plaintiff were reasonable. Thus, it is necessary to remand this case for a rehearing on his petition for attorney fees.\nFor the reasons stated, the order of the trial court is reversed in part and the cause is remanded for further proceedings not inconsistent with the views expressed herein.\nAffirmed in part; reversed in part and remanded.\nLORENZ, P.J., andPINCHAM, J., concur."}
{"dedup_key":"pre1996-151634","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"63 ill-app-3d 495","case_name":"Davis v. Board of Education of Farmer City-Mansfield Community Unit School District No. 17","court_level":"Appellate","appellate_district":null,"year":1978,"county":null,"appellate_docket":"14755","circuit_docket":null,"published":1,"authoring_justice":"Green","statute":["OMA"],"exemptions_cited":["2(c)(1)"],"public_body":"Board of Education of Farmer City-Mansfield Community Unit School District No. 17","requesting_party":"Richard C. Davis","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether a school board violated the Open Meetings Act by holding a closed session to discuss the superintendent's employment. The court held that the board's actions regarding the superintendent's contract termination and salary reduction did not violate the Act's requirements for public meetings or final action procedures.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=151634","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:43.121874","site_category":"Closed Sessions","date_decided":"1978-08-25","site_url":"/cases/pre1996-151634/","text_url":"/case-text/pre1996-151634.txt","full_text":"RICHARD C. DAVIS, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF FARMER CITY-MANSFIELD COMMUNITY UNIT SCHOOL DISTRICT NO. 17 et al., Defendants-Appellees.\nFourth District\nNo. 14755\nOpinion filed August 25, 1978.\nMonroe, Wilson, Dyar, Houchen, McDonald & Taylor, of Decatur, for appellant.\nHerrick, Rudasill & Moss, of Clinton (A. J. Rudasill, of counsel), for appellees.\n\nMr. PRESIDING JUSTICE GREEN\ndelivered the opinion of the court:\nThis case primarily concerns the question of whether a public school district effectively terminated the contract under which plaintiff Richard C. Davis was employed as its superintendent. At issue is the interpretation of and relationship between legislation requiring the meetings of public bodies to be open to the public and legislation prescribing the procedure for dismissal of a school superintendent.\nThe crucial portions of these statutes are the following:\nSection 2 of the Open Meetings Act which provides in part,\n“All meetings of any legislative, executive, administrative or advisory bodies of * * * school districts * * ® which are supported in whole or in part by tax revenue, * * * shall be public meetings * 0 °.\nThis Section does not prevent any body covered by this Act from holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity, but no final action may be taken at a closed session” (Ill. Rev. Stat. 1977, ch. 102, par. 42),\nand section 10 — 21.4 of The School Code which concerns employment of superintendents and states in part,\n“Notice of intent not to renew a contract must be given in writing stating the specific reason therefor by April 1 of the contract year unless the contract specifically provides otherwise. Failure to do so will automatically extend the contract for an additional year. Within 10 days after receipt of notice of intent not to renew a contract, the superintendent may request a closed session hearing on the dismissal. At the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal.” Ill. Rev. Stat. 1977, ch. 122, par. 10— 21.4.\nPlaintiff Richard C. Davis sued the Board of Education of Farmer City-Mansfield Community Unit School District No. 17, De Witt, Piatt and McLean Counties, and the members of that Board in the circuit court of De Witt County seeking a declaratory judgment that he was superintendent of that district for the 1976-77 school year and thereafter and that he was entitled to 85 days unused vacation time with full pay. He also sought to enjoin the defendants from dismissing him until they complied with certain statutory provisions. Subsequently, the trial court granted the defendants a summary judgment dismissing plaintiff’s amended complaint. Plaintiff appeals.\nThe facts stated in the next two paragraphs are shown in the record and not disputed by the parties.\nAt meetings of the defendant board on January 12 and 19, 1976, a portion of the meeting was held in closed session in which a discussion occurred concerning plaintiff’s performance as superintendent and the continuation of his employment. At the January 19 closed session, a resolution was adopted finding plaintiff’s performance to be unsatisfactory for reasons specified in detail and reciting a “tentative opinion and judgment” of the Board that he not be rehired. The secretary of the Board was directed to privately deliver a notice of the Board’s actions and reasons for the same to plaintiff within 24 hours. Final action upon the Board’s tentative decision was set for the regular board meeting on February 2, 1976. The minutes of the two closed sessions were kept separate from those of the open sessions. The minutes of the open sessions recited that the Board had met in closed session to consider an evaluation of plaintiff’s work and that the same had not been completed but would be further considered at the next meeting.\nA notice of the Board’s tentative decision made in the closed session on January 19 was personally served on plaintiff on that date. The notice set forth in detail specific reasons for the Board’s action. After meeting in closed session on February 2, 1976, the Board returned to open session and unanimously passed a resolution stating that “in the best interest of the education system” of the district, the board determines that plaintiff not be reemployed as superintendent for the coming year but that if an unfilled position exists which he was certified and qualified to fill he be assigned to that position “the exact assignment, if any, to be hereafter determined by” the Board.\nSection 10 — 21.4 of The School Code requires that in order to terminate a superintendent’s employment as superintendent, the district’s board must form an intent not to renew the superintendent’s contract and then give him timely notice of that intent by a written document which sets forth the specific reasons for the board’s action. The only written notice given plaintiff which meets those requirements was the notice of the Board’s “tentative decision” given pursuant to the resolution of the Board enacted at the January 19 closed session.\nThe provision of the law on open meetings which permits closed sessions to consider the discharge of an official (Ill. Rev. Stat. 1977, ch. 102, par. 42) does not say whether a resolution may be passed at such a session and no case has been called to our attention ruling upon the question. If the passage of a resolution of a tentative intent to terminate a contract with an employee is “final action,” then the notice subsequently given here was without authority and invalid. It would logically follow that absent a valid notice as required by section 10 — 21.4, the Board’s subsequent action discharging plaintiff as superintendent would be void. However, the statement in the statute that “final action” may not be taken in a closed session indicates that action that is not final may be taken. Here, the action taken at the January 19 closed session, stating an intent to terminate plaintiff’s employment as superintendent and ordering notice, did not dispose of the question of whether that employment should be terminated and, therefore, was not final action. The action at that closed session did not violate the statute concerning open meetings. By that action, the intent of the Board was validly established and the subsequent notice to plaintiff was authorized.\nThe final action terminating plaintiff’s status as superintendent was taken in an open meeting on February 2,1976. The January 19 notice had adequately set forth the specific reasons for the Board’s intent not to renew the contract and the notice had been timely served. Defendants had not requested a closed meeting. The procedure followed was sufficient to terminate plaintiff’s position as superintendent.\nThe allegations upon which plaintiff’s other claims for relief were based were stricken from the original complaint upon defendants’ motion and were not realleged in the amended complaint. Defendants contend that therefore they were waived (Smith v. Nauer (1949), 338 Ill. App. 43, 86 N.E.2d 670; Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 277 N.E.2d 748). However, we need not consider the waiver question because we do not find the contentions meritorious.\nPlaintiff’s contract with the district provided,\n“[A]ll Board Policies of this Unit are a definite part of this contract.\nIt is further agreed that this contract is subject to the School Laws of Illinois and the reasonable and lawful regulations of the said Board, ” ”\nA policy adopted by the Board stated:\n“At the January meeting each year, the Board shall appoint or reappoint a Superintendent of Schools for a term of one or more years from July 1st to June 30th.”\nPlaintiff maintains that the incorporation of this policy into his contract creates a situation within the exception to section 10 — 21.4 of The School Code which designates April 1 as the last day for giving notice of intention to renew the superintendent’s contract “unless the contract specifically provides otherwise.” A dismissal of the superintendent after January would be inconsistent with the Board policy of renewing contracts at the January meeting. Thus, it can be strongly argued that plaintiff’s contract, with the Board policies incorporated therein, by reference, implies a different time limit for giving notice of intent to terminate the contract than that set forth in section 10 — 21.4. However, the contract does not “specifically” so provide. The statutory time limit for giving notice of intention to terminate prevails. That notice was timely given.\nPlaintiff also maintains that his rights were violated under sections 24— 11 and 24 — 12 of The School Code (Ill. Rev. Stat. 1975, ch. 122, pars. 24— 11 and 24 — 12). Those sections deal with the procedural rights of teachers in contractural continued service (tenure). As a teacher, plaintiff had tenure but as a superintendent he had no tenure unless his rights under section 10 — 21.4 be so defined. (Lester v. Board of Education (1967), 87 Ill. App. 2d 269, 230 N.E.2d 893, appeal denied (1968), 37 Ill. 2d 627.) As we have indicated, his rights under the latter section were properly terminated.\nThe resolution by which this was done also provided that for the next year if a position existed which he was “certified and qualified to fill,” he was to be assigned to that position. Under section 24 — 12, the Board could have discharged him as a teacher for cause only after a notice and a hearing of a type that was not given here. The Board could also have discharged him as a teacher because of the unavailability of a position for him only after a notice not given here and after previously discharging all nontenured teachers of similar qualifications. Section 24 — 11 required that his salary not be reduced unless it was to an amount based upon a reasonable classification for the teaching he was doing.\nThe resolution making plaintiff’s future employment as a teacher contingent was not within the Board’s statutory authority. The Board had not complied with the provisions of section 24 — 12 empowering the district to terminate his employment as a full-time teacher. Plaintiff therefore was entitled under section 24 — 11 to a salary based upon a reasonable classification for the work to which he was assigned and was entitled to be assigned to work for which he was qualified regardless of the availability of such a position. If the Board did not comply with these rights, however, plaintiff’s remedy was to mandamus the Board to do so and not to require the District to reinstate him as superintendent.\nPlaintiff calls our attention to our decision in Taylor v. State Board of Education (1978), 56 Ill. App. 3d 387, 372 N.E.2d 129, where we ruled that when a school district takes action to reassign a tenured teacher and reduce his salary, sets a hearing on that issue and gives the teacher notice within the terms set forth in section 24 — 12 of the Code, the State Board of Education is, upon request, required to send out a list of possible hearing officers as provided for in that section. Section 24 — 11 states that when a district reduces a teacher’s salary “unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals.” The State Board of Education argued that the foregoing required the holding of a hearing only if the salary reduction was neither uniform nor based upon a reasonable classification. We concluded that one of the purposes of holding the hearing was to determine whether the salary reduction was of the described nature and stated that when a salary reduction was made, the tenured teacher has a right to a notice and hearing as set forth in section 24 — 12.\nPlaintiff correctly points out that no such notice was given nor hearing held here. Our decision in Taylor was rendered while this case was on appeal. Apparently neither side in the instant case placed the same interpretation upon the language as we did. Defendants gave no such notice and set no such hearing for plaintiff although his salary was being reduced. Although plaintiff’s original complaint alleged an improper discharge, no allegation was made in either the original or the amended complaint that his salary had been reduced without compliance with the particular provisions. Accordingly, we rule the issue not to be before us.\nPlaintiff’s latest written contract attached to the original complaint stated in part, “Payment for extra duties not included in above are: School calendar holidays and vacations and four week vacation.” The original complaint alleged that by the terms of his contract as renewed plaintiff was given a four-week vacation each year, that at the time of the complaint he had 85 unused vacation days and that an actual controversy existed between the parties concerning these days. The prayer of the complaint requested that plaintiff be entitled to 85 days of vacation with full pay.\nThe trial court did not err in striking this allegation. The complaint alleged neither an express nor implied agreement for accumulation of vacation time nor a custom that it be given. In the absence of such an allegation, no award could be made. (See Annot., 91 A.L.R.2d 1078 (1963).) In Olson v. Rock Island Bank (1975), 33 Ill. App. 3d 914, 339 N.E.2d 39, relied upon by plaintiff, the award was apparently based upon a custom of the employer.\nFor the reasons stated, we affirm.\nAffirmed.\nREARDON and TRAPP, JJ., concur."}
{"dedup_key":"pre1996-39539","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"136 ill-2d 334","case_name":"American Federation of State, County & Municipal Employees v. County of Cook","court_level":"Supreme","appellate_district":null,"year":1990,"county":null,"appellate_docket":null,"circuit_docket":null,"published":1,"authoring_justice":"Ryan","statute":["FOIA"],"exemptions_cited":[],"public_body":"County of Cook","requesting_party":"American Federation of State, County & Municipal Employees (AFSCME)","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The Supreme Court held that under the Illinois Freedom of Information Act, a public body is not required to provide public records in a specific electronic format (computer tape) if it provides the information in a reasonably accessible format (printout). The court affirmed the appellate court's ruling that the defendants fulfilled their disclosure obligations.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=39539","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:43.866904","site_category":"Search & Production","date_decided":"1990-05-23","site_url":"/cases/pre1996-39539/","text_url":"/case-text/pre1996-39539.txt","full_text":"(No. 68677.\nAMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, Appellant, v. COUNTY OF COOK et al., Appellees.\nOpinion filed May 23, 1990.\nSTAMOS, J., joined by CALVO, J., concurring in part and dissenting in part.\nMelissa J. Auerbach, of Cornfield & Feldman, of Chicago, for appellant.\nCecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Deputy State’s Attorney, and Susan Condon, Assistant State’s Attorney, of counsel), for appellees.\n\nJUSTICE RYAN\ndelivered the opinion of the court:\nThis is an appeal from a decision of the first district of the appellate court that reversed the ruling of the circuit court of Cook County. The circuit court determined that defendants, Cook County and George Dunne, as president of the county board, must furnish plaintiff, the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), with certain information requested pursuant to the Illinois Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) (Act), in the form of a computer tape, which plaintiff wanted, rather than a printout, which defendants furnished.\nThe appellate court reversed this ruling, holding that the furnisher of information need only provide the requested information in a reasonably accessible format, and that the computer printout sufficed. (182 Ill. App. 3d 941.) We granted plaintiff’s petition for leave to appeal (107 Ill. 2d R. 315). While we agree with the appellate court’s conclusion that the circuit court did not properly decide this case, we cannot concur with the appellate court’s reasoning.\nOn several occasions during October and November 1986, representatives of AFSCME made requests for information pursuant to the Act to Thomas P. Beck, Cook County comptroller. The requests were made using preprinted forms on which the requester typed the following sentence above the line requiring a specific identification of the information being requested: “See attached list: Names of employees by department with job title, rate of pay, and work locations.” Attached to the requests was a list of several departments that are under the control of the Cook County board. The requesters checked the portion of the form asking the furnisher to copy the information and signed the portion of the form authorizing a $0.10 copying charge per page and a $1 document certification fee. Defendants furnished the requested information shortly thereafter in the form of a computer printout.\nOn November 26, 1986, Robert Lawson, a representative of AFSCME, sent a letter to Mr. Beck asking for essentially the same information, with the apparent addition of the offices of State’s Attorney, county clerk, chief administrator, and highway safety, and several federally funded programs, on computer tape or diskette, offering to pay any reasonable costs incurred in providing the information. Mr. Beck denied the request in a letter dated December 1,1986, stating as follows:\n“In reply to your request of November 26, 1986, for information on computer tape or diskette, your request is denied.\nThe majority of the information you requested was already supplied to your union by my office within the last two weeks and I know your union is also requesting the same information from various elected officials.”\nMelissa Auerbach, counsel for Mr. Lawson, repeated the request in a letter dated December 17, 1986. Ms. Auerbach urged Mr. Beck to supply the information because, she stated, “[ijnformation maintained by your agency on computer tape or diskette is *** clearly subject to release under [the Act], and must be made available for inspection and copying pursuant to a proper request.” In response to this inquiry, Mr. Beck sent a letter to Ms. Auerbach, dated December 31, 1986, again denying the request. Mr. Beck stated that the information had already been provided, that the information was not stored in the format requested and that the State’s Attorney’s office advised him that he was not required to furnish the information on computer tape or diskette. Ms. Auerbach then sent a letter, dated January 5, 1987, to William M. Doyle, chief administrative officer, appealing Mr. Beck’s denial. (Ill. Rev. Stat. 1985, ch. 116, par. 210.) Mr. Doyle responded, in a letter dated February 11,1987, as follows:\n“Having reviewed this matter with our attorneys, we take the position that we have already complied with the Freedom of Information Act by providing your client, AFSCME, the information requested in hard copy.\nIt is our continued position that the Act does not require us to now provide that same information on computer tape.”\nPlaintiff filed its complaint for injunctive relief on March 5, 1987, alleging essentially that defendants failed to respond to plaintiff’s November 26, 1986, request,- and that defendants had a duty to do so because information stored on computer tape is subject to inspection and copying pursuant to the Act. (Ill. Rev. Stat. 1985, ch. 116, par. 203(a).) Defendants answered the complaint by admitting most of plaintiff’s allegations, but further stating that defendants had supplied all of the information in printed format before plaintiff filed suit and that, as a matter of law, the Act does not require that the provider of information furnish the same information in the form of a computer tape or diskette.\nPlaintiff filed a motion for summary judgment, stating that the issue to be decided was “whether, when certain information is maintained by a public body on computer tape, a person is entitled, under the Freedom of Information Act, to obtain a copy of that tape.” Plaintiff’s motion was accompanied by an affidavit by Roy M. Heffner, a data processing systems consultant, who stated that the cost of entering the data on computer would be $900, most of which could be avoided if the computer tape was provided.\nDefendants responded by stating that “the Freedom of Information Act [citation] creates no right to receive information on computer tape where the requested information has been previously provided in a reasonably accessible format.” Defendants’ response was accompanied by an affidavit from Mr. Beck stating that his office’s practice was to respond to requests such as plaintiff’s by providing a printout so to “ensure the accuracy and consistency of the material; and because a visually readable print-out is the most generally accessible format.” Defendants also filed a motion for judgment on the pleadings to the same effect.\nAfter conducting hearings and analyzing the memoranda accompanying the parties’ motions, the circuit court granted plaintiff’s motion for summary judgment and denied defendants’ motion for judgment on the pleadings. The court, in applying a balancing test, found that there was no greater burden on defendants in providing the information on computer tape, but the inconvenience to plaintiff in having to physically transfer the data to its computer rather than merely copying the tape was great.\nThe appellate court reversed both rulings. It held, adopting the standard set forth in Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, that the agency that is asked to provide the information “need only provide responsive, nonexempt information in a reasonably accessible form,” and that defendants complied by providing the information in the form of a printout. (182 Ill. App. 3d at 946.) We hold that the appellate court erred by applying the standard set forth in Dismukes to the Illinois Act. However, we are also not satisfied that the circuit court heard sufficient evidence or made sufficient findings of facts to dispose of this matter.\nThe initial inquiry is whether the computer tape that plaintiff requested is generally within the scope of the Act. The Illinois Act is a clearly stated statute. It provides generally that “persons are entitled to full and complete information regarding the affairs of government.” (Ill. Rev. Stat. 1985, ch. 116, par. 201.) The Act is not designed, though, to provide access to information to the extent that it disrupts the efficient functioning of a government agency. The Act, therefore, creates a simple mechanism whereby a public body must comply with a proper request for information unless it can avoid providing the information by invoking one of the narrow exceptions provided in the Act.\nThe Act states that, upon receiving a request, “[e]ach public body [must] make available to any person for inspection or copying all public records.” (Ill. Rev. Stat. 1985, ch. 116, par. 203.) “Public records” means, among other things, “tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics.” (Ill. Rev. Stat. 1985, ch. 116, par. 202(c).) This definition, therefore, includes computer tapes within its scope. See also Long v. United States Internal Revenue Service (9th Cir. 1979), 596 F.2d 362, 365 (Federal Freedom of Information Act applies to computer tapes).\nAs such, upon receiving a proper request for a copy of a computer tape, defendants were obligated either to comply or state clearly upon ,what exception it was relying to avoid compliance. Section 7 of the Act (Ill. Rev. Stat. 1985, ch. 116, par. 207) enumerates several exceptions under which a public body may avoid information disclosure. None of these appear relevant to this case. Section 3 of the Act, however, which creates the duty to make public records available for inspection and copying, contains its own internal exception. Subsection (f) states that a public body may avoid compliance if it would prove to be “unduly burdensome,” and the burden cannot be avoided. (Ill. Rev. Stat. 1985, ch: 116, par. 203(f).) This subsection also states that repeated requests for the same public record are presumed to be unduly burdensome. As stated earlier, the term “public records” means, among other things, “recorded information.” Therefore, if one generally requests recorded information, as may have been the case here, that person may not request the same recorded information soon thereafter, even if the requester asks for the recorded information in a different physical format.\nHaving reviewed the statute and the record in this case, we can attempt to apply the facts, to the extent that they were presented in the lower court, to the law. As indicated earlier in this opinion, defendants complied with plaintiff’s original request for information. Defendants rejected plaintiff’s subsequent request that specified the form in which plaintiff was requesting the information, however. Defendants have provided several reasons for their denial of plaintiff’s request. Some that are found in the correspondence and some that defendants raised after plaintiff filed suit might have merit, some clearly do not.\nFirst, defendant contended that the information requested in the November 26, 1986, letter had been provided in the form requested two weeks prior to that request. While the record indicates that this is substantially true, the trial court did not address this factual issue, or whether the November 26, 1986, letter constituted a “repeated request” for the purpose of the Act.\nDefendant also contended that the information requested was not stored in the format requested. While this might also provide a valid reason for denying plaintiff’s request, because the provider of information is not required to prepare its records in a new format merely to accommodate a request for certain information, it was also not presented to the circuit court, nor did the circuit court address it.\nAnother one of defendants’ responses to plaintiff’s request for information stated that they were not required to furnish information on computer tape. This is not correct. If plaintiff has properly made a request for a copy of the computer tape, which as we stated earlier is a public record, and defendants cannot properly invoke an exception to their duty to make the computer tape available for copying, the plaintiff’s request should be honored. To avoid the defense of “repeated requests” the plaintiff should have in the first request asked for a copy of the computer tape.\nSimilarly, defendant now argues, and a majority of the appellate court specifically found, that a public body may choose the format in which it releases information so long as the requester is provided reasonable access to the information, regardless of the format that was requested. This is likewise incorrect. The Act states that public bodies must make public records available for inspection and copying, unless they can avoid doing so by invoking an exception that is provided in the Act. Computer tapes are public records and must, therefore, be made available to the public. The Act does not state that a public body may reply to information requests by supplying different public records than those for which the requester asked. Rather, the public body must make the public record available, including computer tapes, unless it can properly invoke an exception. It is the public body’s burden, moreover, to establish that an exception applies.\nBoth parties, and the appellate court, cite several cases in support of their positions. While we think that the Illinois Act speaks for itself, and none of the cases that the parties cite construe the Illinois Act, we will nevertheless examine the significance of the various authorities cited.\nPlaintiff first calls this court’s attention to Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116. This case was brought by a college professor pursuant to New Hampshire’s “right to know law” to force the defendant to make a computer tape available. The Menge court first found that computer tapes are public records for the purpose of the New Hampshire law. It further stated that, “[t]aking into account the practical realities of the situation, we believe it not only possible, but in accord with our law and what seems to be its basic philosophy, to so construe the statute as to permit plaintiff to have the reproduced tapes at his expense.” (Menge, 113 N.H. at 538, 311 A.2d at 119.) While this and other cases plaintiff cites support its general position, which we addressed earlier in this opinion, that computer tapes are public records, they do not shed light on the factual questions to be decided in the present case. See also Whorton v. Gaspard (1965), 239 Ark. 715, 393 S.W.2d 773 (voting lists available for copying); Direct Mail Service, Inc. v. Registrar of Motor Vehicles (1937), 296 Mass. 353, 5 N.E.2d 545 (right to inspect and copy automobile registrations); Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500 (affidavits of registration on magnetic tape subject to copying); Lorain County Title Co. v. Essex (1976), 53 Ohio App. 2d 274, 373 N.E.2d 1261 (microfilm is a public record).\nThe case upon which defendants and the appellate court primarily rely, Dismukes v. Department of Interior (D.D.C. 1984), 603 F. Supp. 760, is more on point, but we decline to interpret the Illinois Act as narrowly as the Dismukes court interpreted the Federal Freedom of Information Act and as the appellate court in this case interpreted the Illinois Act. In Dismukes, the plaintiff specifically requested certain information in the form of a computer tape. Defendant responded by denying the request for a copy of the computer tape, but offered the same information in the form of microfiche cards. Plaintiff brought suit seeking to enforce its original request. The court granted defendant’s motion for summary judgment. The court found that the requester of information may not dictate the format in which the information will be provided, and that the furnishing public body “need only provide responsive, nonexempt information in a reasonably accessible form.” (603 F. Supp. at 763.) The reasons that the Dismukes court gave for adopting this rule, while perhaps consistent with the Federal Freedom of Information Act, are clearly not applicable to the Illinois Act.\nThe Dismukes court first reasoned that the agency furnishing the information can provide it in a form that varies from that which was requested if the different form does not alter the content of the information. The court came to this conclusion because it found that what was important was the information content of the record and not the record itself for the purpose of the Federal Freedom of Information Act. The Federal statute appears to require only that “public information” be made available. (5 U.S.C. §552 (Supp. I 1976).) The Illinois Act, however, requires that “public records,” which include computer tapes, be made available. That is, the Illinois Act is not solely concerned with content, it also requires that information be made available in the form in which it is normally kept.\nBecause the focus of the Federal statute is on the content of the information, the Dismukes court essentially shifted the burden to the plaintiffs to demonstrate that the form in which the information was provided in some way changed its content: “[N]either plaintiff nor any document in the record suggests that the quantum of information contained in the microfiche varies in any way from that recorded on the computer tape.” (603 F. Supp. at 762.) The Illinois Act, however, does not contemplate such burden-shifting. Under the Illinois Act, having received a proper request to inspect or copy a public record, the public body must either comply or state why it cannot comply. It is not sufficient in Illinois for a public body to furnish a public record that does not conform and then force the requester to explain why the record furnished is inadequate.\nThe Dismukes court also concluded that the furnisher of information may choose the form in which it provides it so long as the form chosen does not, as a practical matter, deny access to the information. That is, for the purpose of the Federal statute, according to the Dismukes court, only if the public body provides the information in an extremely inconvenient form has it failed to comply with the request. Again, in Illinois the focus is different. Under the Illinois Act, once a proper request has been made, the public body must either comply, or explain why it cannot. One legitimate reason for choosing not to comply is that the burden on the public body in producing a specific public record is too great, in which case the two parties can agree to, or a court can impose, a more manageable solution, such as providing an alternate public record that contains substantially the same information. A public body may not in Illinois, however, as it did in Dismukes, provide a public record that does not conform to the request and then force the requester to explain why it will not suffice.\nThe Dismukes court also accepted the defendant’s contention that it was providing the information in the form of microfiche because “microfiche is the format more likely to be readable by the largest number of requesters.” (603 F. Supp. at 762.) So too, in the present case, defendants argue that a computer printout is the most accessible form. The Dismukes court does not address the question, however, of why information cannot be provided in a different form to different requesters. In Illinois, the Act requires an individualized determination for each request. While it might be excusable for a public body not to provide information in a specified form if its historic policy has been to provide the same information in a different form and to deviate would create a burden, it is not excusable for a public body to set its policy after receiving a request with which it chooses not to comply, as appears to be the case here. Again, though, this is a factual question that has not yet been addressed below.\nBecause of the many distinctions raised above between Dismukes and the Illinois law, we find that the appellate court erred in adopting the standard set forth in Dismukes for the Illinois Act. We cannot, however, merely reinstate the circuit court’s ruling. While we hold here that computer tapes are public records and, therefore, subject to inspection and copying, the circuit court must still determine if defendants properly invoked any exception to their general duty to make public records available for inspection and copying. One obvious possible exception is that the November 26, 1986, request constituted a repeated request and was, therefore, unduly burdensome. There may be other valid reasons why defendants should not furnish the information on computer tape. For instance, at oral argument it was suggested that the means of verifying the accuracy of the information contained on the computer tape was more difficult than on the printout. These and other matters may be considered by the circuit court in determining whether or not the request for a computer tape should be honored.\nAs such, we affirm the appellate court’s judgment reversing the circuit court’s granting of plaintiff’s motion for summary judgment. We do so for different reasons, however. While we think that the circuit court has yet to decide whether defendants properly invoked a statutory exception to their duty to make public records available for inspection and copying, we reject the conclusion of the appellate court that the circuit court erred in granting plaintiff’s motion for summary judgment because, as a matter of law, a public body has complied with the Act by providing reasonable access to nonexempt information. We also disagree with the appellate court as to its reversal of the circuit court’s denial of defendants’ motion for judgment on the pleadings. We remand the cause to the circuit court and direct it to conduct further proceedings consistent with this opinion.\nAppellate court affirmed; cause remanded with directions.\n\nJUSTICE STAMOS,\nconcurring in part and dissenting in part:\nI concur with the majority’s determination that the computer tape which plaintiff requested is within the scope of the Illinois Freedom of Information Act (Act). (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.; see Note, AFSCME v. County of Cook: Access to Information Beyond Reach as Computer Tape Lengthens Bureaucratic Red Tape, 3 Software L.J. 775, 785-87 (1989) (Illinois Act defines computer tape as public record and, because it was designed to protect requesters of information who lack computer skills, should not penalize those who are computer-literate).) I also agree that defendants would be required to comply with the Act and provide plaintiff with a copy of the tape if such compliance would not be “unduly burdensome.” (Ill. Rev. Stat. 1987, ch. 116, par. 203(f).) The majority is also correct in distinguishing the Federal case law in this area, particularly the Dismukes case (see Note, AFSCME v. County of Cook: Access to Information Beyond Reach as Computer Tape Lengthens Bureaucratic Red Tape, 3 Software L.J. 775, 787-91 (1989) (determining that appellate court in case at bar misconstrued Dismukes)). However, I must dissent with respect to the majority’s reasons for partially affirming the appellate court’s judgment.\nThe proper construction of a statute and its application to undisputed facts are questions of law subject to independent determination by a court of review. (People v. Blair (1972), 52 Ill. 2d 371, 373). The facts in the case at bar are undisputed. Plaintiff first made a general request to defendants for certain public records, using preprinted forms which did not clearly state in what format the requester expected the information to be provided. Defendants complied with this request by sending a typed computer printout of desired information. After receipt of the printout of the information, plaintiff made a second request for the same information, this time in a computer tape format. Because these facts are undisputed and because the language of section 3(f) of the Act (Ill. Rev. Stat. 1987, ch. 116, par. 203(f)) is plain and unambiguous, we can determine as a matter of law whether this second request qualifies as a “repeated request” for the same “public record” which would require us to find it “unduly burdensome” under the Act.\nSection 3(f) specifically states:\n“Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. If any body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body. Such a response shall be treated as a denial of the request for information. Repeated requests for the same public records by the same person shall be deemed unduly burdensome under this provision.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 116, par. 203(f).\nThe majority misfocused its analysis by concentrating on the term “recorded information” when it recited the definition of what a “public record” is. (See 136 Ill. 2d at 341-42.) Section 3(f) emphasizes repeated requests for the same public record. After analyzing the Act under the accepted principles of statutory construction in light of the undisputed facts, I conclude that the Act clearly indicates that a computer tape and a typed printout which contain essentially the same information are not the same “public record” for purposes of the statute.\n“Public records” are defined in section 2(c) of the Act as “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 116, par. 202(c).) The emphasis in section 2(c) is on the different formats or media a public body may use to preserve information and which qualify as “public records.” The kind of information which may be included in a public record, regardless of the format in which it is preserved, is addressed in the next portion of section 2(c).\nThe key to determining the difference between the Act’s definitions of “public records” and “information” is seen in the verbs which follow the term “public records” in section 2(c). The list of the various formats is tied to what the term “public records” “means.” These formats are then identified as “[including], but *** expressly not limited to” the different types of information. Thus, a “public record” is defined by its format, and can contain a myriad of different kinds of information. We can logically conclude from the plain language of section 2(c) that the General Assembly intended the availability of all the different formats and media to be the predominant concern under the Act. See Maloney v. Bower (1986), 113 Ill. 2d 473, 479 (courts, when interpreting a statute, must give the language of that statute its plain and ordinary meaning); County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151 (courts should first look to the statutory language as the best indication of the intent of the drafters).\nThe majority appears to recognize the precedence of format over information when it distinguishes Dismukes from the case at bar. According to the majority, the Federal standard allows the public body to provide the information in any format, as long as all the pertinent information is included and the form is not extremely inconvenient. The majority correctly states that under the Illinois Act, the public body must release the information in the format requested, unless it can explain why such a format would be overly burdensome. (136 Ill. 2d at 345-48.) I find it inconsistent for the majority to note the difference between “records” and “information” under the Federal law, but fail to similarly apply this analysis to section 3(f).\nTherefore, I would interpret the statutory phrase “same public records” in section 3(f) to refer to the form of the public record as opposed to the information included in the public record. A request for a computer tape containing specific information does not seek the same public record that a request for a typed printout of the same information does. With the explosion of electronic information in business and government today, I can easily imagine how one could legitimately require two records, in different formats, which contain partly or wholly duplicative information. This analysis leads me to conclude that the “repeated request” language of section 3(f) is inapplicable to the case at bar.\nThe majority’s focus on the term “recorded information” in section 3(f) further magnifies its failure to recognize the Act’s clear distinction between what a “public record” is and the “information” such a record may contain. Specifically, the majority states that “the term ‘public record’ means, among other things, ‘recorded information.’ Therefore, if one generally requests recorded information, as may have happened here, that person may not request the same recorded information soon thereafter, even if the requester asks for the recorded information in a different physical format.” (136 Ill. 2d at 342.) Thus, the majority apparently defines both the typed printout plaintiff received and the computer tape plaintiff requested as being examples of “recorded information” under the Act, and expressly states that a duplicative request for “recorded information” “soon thereafter” is prohibited under the Act.\nThis analysis violates several basic principles of statutory interpretation. “Recorded information” is only one of several enumerated formats that the General Assembly recognizes as public records. (Ill. Rev. Stat. 1987, ch, 116, par. 202(c).) When construing a legislative act, a court must determine the legislative intent from the entire statute, not just an isolated passage. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318.) By concentrating on only one of several enumerated examples of public records, the majority uses the term “recorded information” out of context, and misconstrues the legislative intent underlying the Act.\nThe maxim “noscitur a sociis,” a canon of statutory construction which means “[i]t is known from its associates” (Black’s Law Dictionary 956 (5th ed. 1979)), is applicable here. Noscitur a sociis allows a court to ascertain the meaning of terms in a statute by reference to words associated with them in the statute. (Virginia v. Tennessee (1893), 148 U.S. 503, 519, 37 L. Ed. 537, 543, 13 S. Ct. 728, 734.) Thus, when two or more words are grouped together, and generally have a similar meaning but are not equally inclusive, the general term is limited and qualified by the special term. (2A N. Singer, Sutherland on Statutes and Statutory Construction §47.16 (Sands 4th ed. 1984).) This maxim is often applied where a word is capable of many meanings in order to avoid giving the statute a meaning that the legislature did not intend. Jarecki v. G.D. Searle & Co. (1961), 367 U.S. 303, 307, 6 L. Ed. 2d 859, 863, 81 S. Ct. 1579, 1582.\nAs I have already stated, section 2 defines public records in terms of formats. Specifically, section 2 lists “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics” as qualifying as “public records.” (Ill. Rev. Stat. 1987, ch. 116, par. 202(c).) The legislature, by specifically naming most of the common formats which public bodies use to store information, has indicated its intent to have all formats accessible to the public. Most of the terms in the list which describe modern technological methods of storing information are very specific and concrete (e.g., “microfilms” and “electronic data processing records”). The other terms, which are slightly more general in scope, define more traditional formats (e.g., “writings” and “records”). Thus, the plain language of section 2(c) manifests an intent to provide for access to specific electronic formats. See Ill. Rev. Stat. 1987, ch. 116, par. 202(c).\nFurther, the last two items in the list, “recorded information and all other documentary materials,” are general and all-inclusive, unlike the previous terms. Under noscitur a sociis, the context in which these last two terms appear compels the court to interpret them in light of the others. This leads to one of two conclusions. The court could view these last two terms as a single clause which the legislature intended as a “catch all,” covering any possible format not already in the list. In the alternative, we could view the words “all other documentary materials” as the “catch all,” and view “recorded information” as a format which the legislature intended to be a separate and distinct category.\nIn either case, the result in the case at bar should be the same. The undisputed facts show that plaintiff filled out a form requesting a public record containing certain information. The form provided no means for the plaintiff to specify a particular format. Plaintiff, however, did sign the portion of the form which indicated it would pay $0.10 per page for the copying of the record. Defendants responded to this request by sending the typed printout of the record. (136 Ill. 2d at 338.) Plaintiff then made a second request for the same information, this time specifying a computer tape format. (136 Ill. 2d at 338.) After plaintiff filed suit, it requested the information in computer tape format four more times. On each occasion, defendant provided a copy of the typed printout. (182 Ill. App. 3d 941, 943.) The majority believes this scenario creates a question of fact which the trial court failed to address. (See 136 Ill. 2d at 347.) Nevertheless, the majority further intimates that if the trial court determines on remand that plaintiff’s initial request was for “recorded information,” the subsequent requests for the same information in a different format qualified as a “repeated request” under section 3(f) of the Act. See 136 Ill. 2d at 342.\nI cannot agree. Whether this court interprets plaintiff’s initial request as ambiguous, or as a specific request for a typed printout, the undisputed facts show that plaintiff’s initial request was for a public record containing specific information. Defendants responded by sending a typed printout of that information, a public record which clearly fits \"within at least one of the specific formats listed in section 2(c). The facts also show that, regardless of what this court interprets the plaintiff’s initial request to mean, the printout objectively fulfills the request as contained on the form.\nPlaintiff’s subsequent requests were not for printouts, but for computer tapes — a format category distinct and separate from the terms which would include a typed printout in section 2(c). No matter how the majority defines the general terms contained in section 2(c) under which the printout might be included (“records, reports, *** writings, *** papers”), there is no way to define “tapes” or “electronic data processing records” in a way that includes typed printouts. The legislature clearly intended public records such as the computer tape in the case at bar to be a distinct category under the Act, and therefore a separate and different public record from the printout — despite the fact that both public records contain substantially the same information. To accept the majority’s view that both the typed printout and the computer tape qualify as “recorded information” under section 2(c) would not only violate the maxim of noseitur a sociis, but would make the listing of other formats prior to “recorded information” meaningless (Niven v. Siqueira (1985), 109 Ill. 2d 357, 365 (statutes should be construed so that no term is rendered superfluous or meaningless)) and would frustrate the manifest legislative intent to specifically require the disclosure of electronic data processing formats. Further, such a limiting construction of the statute violates the express purpose of the Act, which is to limit restraints on the public’s access to information. See Ill. Rev. Stat. 1987, ch. 116, par. 201.\nI have further misgivings about the majority’s statement that a person who requests recorded information “may not request the same recorded information soon thereafter, even if the requester asks for the recorded information in a different physical format.” (136 Ill. 2d at 342.) Not only do I find fault with the majority’s interpretation of the term “recorded information” and its failure to recognize the legislative distinction of format from information, I find insertion of the word “soon” into the analysis to be erroneous. Section 3(f) merely states that repeated requests are to be deemed unduly burdensome under the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 203(f).) There is nothing in the statutory language to indicate that the passage of time has any bearing on what is a “repeated request.” In fact, the majority’s determination that a second request for the same information in a different format “soon” after the original request is a “repeated request” under the Act serves only to add confusion to the analysis. For example, after how long a time period is “soon”? Had plaintiff waited six months instead of a few weeks to make the second request, would that have eliminated the perceived “repeated request” problem? If the information were to change slightly on a day-to-day basis, would a second request on the following day be too “soon” — or a repeated request for the “same” record at all? I submit that the plain language of section 3(f) focuses on whether compliance with a request actually is unduly burdensome for the public body involved, and not on how long it has been since a requester last asked for a particular collection of information. See Ill. Rev. Stat. 1987, ch. 116, par. 203(f).\nHaving determined that the request for the computer tape was not a “repeated request” under section 3(f), this court could then apply the rest of section 3(f)’s language to the undisputed facts in the case at bar to determine, as a matter of law, whether the request for the computer tape was “unduly burdensome” for defendants. The record reveals, and the parties stated at oral argument, that defendant regularly stores the information in the public record in question on computer tape. Plaintiff had agreed to pay all copying expenses. (See Ill. Rev. Stat. 1987, ch. 116, par. 206.) Plaintiff made no demand for the record to be produced in a specific computer program; plaintiff’s request only required defendants to copy a computer tape, which was already a part of their record-keeping system, and give the copy to plaintiff. Also, the record reveals that defendants sent a new copy of the typed printout every time plaintiff submitted a new request for the computer tape. The undisputed facts show that the cost in time, materials, and labor to repeatedly send out a typed printout of the same record far outweighs the cost of sending a single copy of the record on computer tape. In light of this, I determine that plaintiff’s request is anything but “unduly burdensome.” I would hold as a matter of law that defendants are required to provide plaintiff with a copy of the computer tape under section 3(f).\nBut even if this court did determine that plaintiffs request somehow was an undue burden to defendants and that the request was “categorical” (see Ill. Rev. Stat. 1987, ch. 116, par. 203(f)) rather than (as here) for a discrete, existing compilation of records — or even if the request were actually a “repeated request” and hence presumed to be “unduly burdensome” — section 3(f) then requires us to determine if plaintiff’s request was as narrowly drawn as possible and to balance the burdens placed on the public body in producing the record against the public’s interest in the information in the record. The burden on defendants here is so minimal as to be inconsequential. The effort required to reproduce the computer tape is minimal, and is far less than that required to produce a typed printout of the same information. Neither party disputes the fact that the information in computer tape format is infinitely easier and cheaper for plaintiff to process and use than the typed printout is. (See 182 Ill. App. 3d at 943.) Use of this information is essential to the operation of plaintiff’s organization. Thus, in light of the undisputed facts, I would hold that as a matter of law plaintiff’s request is as narrowly drawn as possible, and that plaintiff’s interest in the public record requested far outweighs any burden that plaintiff’s request places upon defendants. Accordingly, any hypothetical “undue burden” would still not suffice to justify noncompliance with plaintiff’s request.\nI also disagree with the majority’s conclusion that the case must be remanded to determine if defendants properly invoked any exception to their general duty to make public records available for inspection and copying. (136 Ill. 2d at 348.) My prior analysis regarding “repeated requests” proves that section 3(f) does not provide an exemption on that account from providing records under the Act (despite the majority’s characterization of it as doing so), and that, for the case at bar, the question of undue burden is a matter of law, which allows this court to decide the issue. A list of what is exempt from inspection and copying is found in section 7 of the Act (Ill. Rev. Stat. 1987, ch. 116, par. 207). However, section 7 is essentially a list of information which is exempt from disclosure — not formats. Because defendants have already disclosed the information in the public record to plaintiff, it seems pointless to remand the cause for a determination whether the information, already disclosed once, is in fact exempt from inspection.\nAlso, the defendants, at oral argument before this court, suggested that verifying computer tape for accuracy is more difficult than verifying the printout. Specifically, the defendants argued that, because the content of computer tapes cannot be determined without a computer, the wrong computer tape could be released by mistake, while anyone preparing a public record for distribution can check a typed printout to determine if the proper record is being sent. The majority states that this is another factual question which needs to be settled on remand. (136 Ill. 2d at 347-48.) Again, I cannot agree.\nThe computer tape’s accuracy can be checked by anyone with a compatible computer equipped with the proper program. It is clear in the record that both parties regularly use computers to store and verify information. It is no more difficult than in the case of the printout for the staff of either party to verify the information on the tape through use of their own computer terminals. Indeed, because of automation, it is undoubtedly easier. As for the argument that a typed printout can be checked more readily before being sent out, I submit that both the tapes and the containers used to ship them can be properly labeled by the person copying and verifying contents of the tape without creating an undue burden on a public body such as Cook County. Also, the claim that defendants must'allow plaintiff access to only a typed printout because it is easier to verify is tied to the “general accessibility” argument in the Dismukes case (see 136 Ill. 2d at 340-41), which the majority properly distinguished from the Act. Besides, the Illinois Act’s focus on format rather than information makes this a hollow argument.\nFurther, defendants’ failure to follow the Act’s procedures in denying plaintiff’s request for the computer tape also supports the trial court’s determination that defendants did not comply with the Act and therefore are required to supply plaintiff with a copy of the computer tape. The undisputed facts show that defendants failed to comply with several express requirements of the Act, refuting defendants’ claim that they complied with the Act when they provided plaintiff the typed printout.\nI have already explained that, even if plaintiff’s subsequent requests were “repeated requests,” the “repeated request” language of section 3(f) of the Act is not itself an exemption for public bodies from complying with a request for a public record. This language can form the basis for an exemption only if other specified conditions and procedural requirements are met, and the record shows that defendants did not comply with the Act’s express instructions, whether or not plaintiff’s request is deemed “repeated.”\nFirst, before a public body can invoke the “unduly burdensome” exemption under section 3(f), that body “shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions.” (Ill. Rev. Stat. 1987, ch. 116, par. 203(f).) Defendant never extended such an invitation, and I submit that the record reveals that such a conference would have proven that compliance with the request for the computer tape would not be unduly burdensome.\nSecond, section 3(f) requires:\n“[i]f any body responds to a categorical request by stating that compliance would unduly burden its operation and the conditions described above are met, it shall do so in writing, specifying the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 116, par. 203(f).)\nThe record shows that, while defendants responded in writing (see 136 Ill. 2d at 339 (defendants’ letter stated that the printout served as compliance)), they failed to comply with the rest of section 3(f)’s requirements. We could interpret defendants’ statement in the letter that the printout fulfilled plaintiff’s request for a computer tape as invoking the “repeated request” language of section 3(f), but this is not entirely clear. However, if so, defendants failed to explain the extent to which sending a copy of the computer tape would burden their operations. I suggest that this is because the undisputed facts show that compliance with the request could not have burdened defendants’ operation.\nThird, section 9 of the Act describes specific procedures a public body must follow when it denies a request for a public record. These procedures include notice by letter, an explanation of the reasons for denial, the names and positions of persons responsible for the denial, and an explanation of the requester’s right to appeal the decision. (Ill. Rev. Stat. 1987, ch. 116, par. 209(a).) It appears from the record that defendants also failed to follow several of these procedures.\nThus, the undisputed facts show that, even if we do not consider the issues already discussed involving whether plaintiff’s request was a “repeated request” under section 3(f) or whether the computer printout fulfilled defendants’ obligations to disclose public records under the Act, defendants failed to follow the basic procedures of the Act. When I combine this analysis with what I have already explained regarding the clear language and intent of the Act, I see no reason to remand this case to determine if the evidence shows that defendants’ response complied with the Act. Clearly, it did not, and defendants, as a matter of law, are required to comply with plaintiff’s request for a computer tape.\nFor these reasons, I would reverse, the judgment of the appellate court insofar as it reversed the circuit court’s entry of summary judgment for plaintiff, and I would affirm the judgment of the circuit court. Thus, on that issue and on the issue of remanding the cause at bar for further factual determinations, I respectfully dissent.\nJUSTICE CALVO joins in this partial concurrence and partial dissent."}
{"dedup_key":"pre1996-123009","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"144 ill-app-3d 224","case_name":"City of Monmouth v. Galesburg Printing and Publishing Co.","court_level":"Appellate","appellate_district":"3rd","year":1986,"county":null,"appellate_docket":"3-85-0515","circuit_docket":null,"published":1,"authoring_justice":"Barry","statute":["FOIA"],"exemptions_cited":["7(1)(b)"],"public_body":"City of Monmouth","requesting_party":"Galesburg Printing and Publishing Company","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the City of Monmouth failed to state a cause of action because it did not allege that the specific requested information constituted a clearly unwarranted invasion of personal privacy under the FOIA. The court further affirmed the constitutionality of the FOIA exemption, noting that a case-by-case analysis is required rather than a blanket exemption for all crime victim records.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=123009","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:44.225429","site_category":"General Records Exemptions","date_decided":"1986-06-17","site_url":"/cases/pre1996-123009/","text_url":"/case-text/pre1996-123009.txt","full_text":"THE CITY OF MONMOUTH, Plaintiff-Appellant and Cross-Appellee, v. THE GALESBURG PRINTING AND PUBLISHING COMPANY, d/b/a The Register Mail, et al., Defendants-Appellees and Cross-Appellants.\nThird District\nNo. 3-85-0515\nOpinion filed June 17, 1986.\nRonald C. Tenold, of Standard & Tenold, of Monmouth, for appellant.\nRichard L. Thies and Mark A. Durmmond, both of Webber & Thies, P.C., of Urbana, for appellees.\n\nJUSTICE BARRY\ndelivered the opinion of the court:\nThe city of Monmouth appeals from the dismissal of its complaint for declaratory judgment and injunction against a Galesburg newspaper and one of its reporters in a dispute over the disclosure of the names, ages, and addresses of the victims of crimes occurring within the city. Defendants cross-appeal from that part of the dismissal order which held that section 7(b)(v) of the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)(v) is constitutional.\nSection 3 of the Freedom of Information Act provides that every public body shall make available all public records to any person for inspection and copying except as otherwise provided in section 7. Section 7 specifies certain exemptions from inspection and copying, including the following:\n“(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information ex-under this subsection (b) shall include but is not limited\n* * *\n(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies.” Ill. Rev. Stat. 1985, ch. 116, par. 207(b)(v).\nAfter the Freedom of Information Act took effect on July 1, 1984, the city of Monmouth refused to disclose to the Galesburg Register Mail newspaper and its reporter Carol Clark the identities of the vietims of crimes occurring within the city. The city did make public the fact that a crime, such as burglary or theft, occurred at a general location, such as the 100 block of Third Avenue. When Clark presented written requests for additional information, such as name, age, sex, and address of the victims, the city clerk refused on the ground that such information was exempt from disclosure under section 7(b)(v) of the Freedom of Information Act. In each case, Clark and the newspaper appealed that decision to the mayor who affirmed the denial of information.\nAfter more than 37 such requests were made and denied between July 9 and August 7, 1984, the city filed a complaint for declaratory judgment and an injunction against Clark and the Register Mail. The city sought to have the circuit court of Warren County declare that, under the statute, the identities of persons who file complaints with or provide information to the Monmouth police department were per se exempt from disclosure under the statute. The city also asked the court to enjoin defendants from making requests for such exempt information. Defendants filed a motion to strike and dismiss the complaint on the ground that the statute was unconstitutional and that the statute did not intend a per se determination that all criminal complainants and informants were exempt from disclosure.\nThe trial court ruled that the statutory provision in question does not violate either the Constitution of Illinois or the first and fourteenth amendments to the Constitution of the United States and that the statute does not authorize a categorical determination of exemption; rather, the city must show how each claim of exemption is a clearly unwarranted invasion of personal privacy. The court dismissed the complaint with prejudice, and this appeal followed.\nWe are presented with three issues. (1) Did the trial court interpret the statute correctly? (2) Does the statute violate the constitutional guarantees of freedom of the press? (3) Does the complaint state a cause of action?\nIn our view, the determinative question is that of statutory interpretation. The city contends that section 7(b)(v) of the Freedom of Information Act grants exemption from disclosure as to the identity of all informants and complainants in criminal cases. In other words, the city interprets the statute as stating that, as to all persons in the category of informants and complainants, disclosure of identity would be an unwarranted invasion of their right to personal privacy. It is argued that the plain and ordinary meaning of the language used by the legislature was to specify certain categories of exempt information since paragraph (b) made the broad statement relating to right to privacy and subparagraphs (i) through (v) contain some types of information which are included.\nDefendants, on the other hand, argue that paragraph (b) contains a general requirement that information entitled to exemption must be a clearly unwarranted invasion of personal privacy and that this general requirement qualifies subsections (i) through (v). That is, an informant or complainant would be entitled to an exemption from disclosure if disclosure would constitute a clearly unwarranted invasion of personal privacy in that particular case.\nDefendants’ interpretation is the one adopted by the trial court and is consistent with the public policy stated by the legislature in section 1 of the Act:\n“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.\nThis Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.\nThis Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.\nThese restraints on information access should be seen as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed to this end.” Ill. Rev. Stat. 1985, ch. 116, par. 201.\nThis statement of public policy and legislative intent indicates that the people’s “right to know” what the government is doing is a broad general rule containing only limited exceptions, and the provisions of the Freedom of Information Act are to be construed accordingly. Courts called upon to interpret the Act, as we are, must be cognizant of the legislative intention that public access to information be construed broadly and that exemptions to disclosure be construed narrowly. The city’s position is not consistent with that legislative intent.\nAdditionally, it is a basic rule of construction that the legislature is presumed to have intended a statute to be constitutional and consequently that, given a choice, courts should construe a statute in such a way as not to invalidate it. That brings us to the question of the constitutionality of section 207(b)(v). Defendants argue that this provision is a prior restraint on their right to gather news for which there must be a showing of a compelling governmental interest and which must be narrowly tailored to serve that interest. Defendants cite Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613, where the United States Supreme Court held that a Massachusetts statute excluding press and public from the trials of specified sexual offenses involving a victim under the age of 18 violated the first amendment as applied to the States through the fourteenth amendment. The court found that there was a compelling State interest in safeguarding the physical and psychological well-being of a minor but that closure was not a narrowly tailored means of serving that interest. The court stated:\n“But as compelling as that interest is, it does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of the minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. [The statute], in contrast, requires closure even if the victim does not seek the exclusion of the press and general public, and would not suffer injury by their presence.” (Emphasis in original.) (457 U.S. 596, 607-08, 73 L. Ed. 2d 248, 258, 102 S. Ct. 2613, 2620-1.)\nThe Supreme Court went on to hold that the State’s interest in protecting a minor victim could be served just as well by requiring the trial court to determine on a case-by-case basis whether closure was necessary and that such an approach would ensure that the constitutional right of the press and public to gain access to criminal trials would not be restricted except where necessary to protect the State’s interest. In the same opinion, the court rejected the argument that minor sex victims would be more likely to come forward and cooperate with authorities if the trial would be closed to the public and press. The court observed that the claim was speculative and of doubtful logic since there would be other sources that could provide information to the press concerning the testimony at trial.\nApplying the test used in the Globe case, the Freedom of Information Act as interpreted by the city was not narrowly tailored to serve a compelling governmental interest and, hence, would be unconstitutional if construed to give a blanket exemption from disclosure to all victims of crimes. Clearly, a case-by-case approach could be used to narrow the application of the State’s interest in protecting persons whose right to privacy might be invaded without warrant. For example, where an informant’s life could be endangered by revealing his or her identity, the city would be able to establish a justifiable right to privacy.\nAlthough the city argues that this statute will be unworkable if the right to privacy of each criminal victim must be justified in order to prevent disclosure, the city’s attorney admitted during oral argument that, if we affirm the trial court, the city will again supply the names of the victims of crimes to the press as it did before the Freedom of Information Act was enacted. Presumably informants and other special situations would be handled as contemplated by the statute.\nWe hold that the trial court was correct in its interpretation of the statute and in its finding that the statute, as interpreted, is constitutional. Accordingly, since the complaint did not allege that each request for information was a clearly unwarranted invasion of privacy, the city’s complaint did not state a cause of action under the statute. The order of dismissal is affirmed.\nAffirmed.\nSCOTT, P.J., and HEIPLE, J., concur."}
{"dedup_key":"pre1996-157830","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"95 ill-app-3d 254","case_name":"Richardson v. Dunbar","court_level":"Appellate","appellate_district":"3rd","year":1981,"county":null,"appellate_docket":"80-255","circuit_docket":null,"published":1,"authoring_justice":"Alloy","statute":["OMA"],"exemptions_cited":[],"public_body":"Knoxville city police committee","requesting_party":null,"disposition":"affirmed","relevance":"mention_only","summary_source":null,"summary":"The court referenced the Open Meetings Act to clarify that the statute encourages open meetings and does not mandate closed sessions for hearing complaints against employees. The OMA was cited only to address the plaintiff's argument regarding the defendants' conduct at a public meeting, not as the primary subject of the litigation.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=157830","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:44.345846","site_category":"Meeting Conduct & Participation","date_decided":"1981-04-03","site_url":"/cases/pre1996-157830/","text_url":"/case-text/pre1996-157830.txt","full_text":"MICHAEL D. RICHARDSON, Plaintiff-Appellant, v. LOLA DUNBAR et al., Defendants-Appellees.\nThird District\nNo. 80-255\nOpinion filed April 3, 1981.\nRehearing denied May 21, 1981.\nMichael D. Richardson, of Galesburg, pro se.\nDwayne I. Morrison, of Barash & Stoerzbach, of Galesburg, for appellees.\n\nMr. JUSTICE ALLOY\ndelivered the opinion of the court:\nThe plaintiff Michael D. Richardson appeals from the dismissal of his second amended complaint by the Circuit Court of Knox County. Count I of the complaint sought recovery for defamatory statements allegedly made by defendant Lola Dunbar at a meeting of the Knoxville city police committee. Defendant Donald Moffitt is chairman of the police committee and defendant Dean Whitworth is a member of that committee, as well as mayor of the City of Knoxville. Count II of the complaint sought recovery against Moffitt and Whitworth on the basis of alleged breaches of their duties, established by the Knoxville City Code, to discharge their municipal offices in good faith. The circuit court, on motions to dismiss by the defendants, dismissed both counts of the complaint, under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) for failure to state a claim upon which relief may be granted. Richardson, on appeal, alleges error in the dismissal of his complaint, arguing that sufficient causes of action were stated in each count of the complaint.\nThe standards to be applied when reviewing a motion to dismiss are well established. As noted concisely in Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 756, 391 N.E.2d 133:\n“A motion to dismiss admits such allegations as are well pleaded together with all reasonable inferences which could be drawn from the facts. [Citations.] Upon review, a court must determine whether the allegations of the complaint when interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief may be granted. [Citations.] A complaint will not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. [Citations.]”\nWith these rules in mind, we turn to the allegations contained in the second amended complaint filed by Richardson in this action.\nCount I states that plaintiff Richardson made sworn complaint to the Knoxville City Council about certain actions by the police chief of Knoxville. As a result of Richardson’s complaint, defendant Whitworth, the mayor of Knoxville, ordered defendant Moffitt, chairman of the Knoxville City Council police committee, to conduct an investigation into the complaint. It is further alleged in the pleadings that Whitworth and Moffitt held a meeting of the police committee on August 8,1978. It is also alleged that during the meeting, Lola Dunbar, defendant in this action, stated that plaintiff Richardson had grabbed the police chief by the shoulder. Richardson’s complaint further states that the implication of Dunbar’s remarks is that he violated the aggravated-battery statute by striking the police chief. It is then stated that Dunbar’s statement was made in bad faith, that it was false and knowingly false, that it was made with the intent of harming Richardson, and that it was thereby defamatory.\nThe complaint also alleges that the statement by Dunbar was made with knowledge that excessive publication would occur and that such excessive publication did occur. A story about the Dunbar statement was on the front page of the following day’s Galesburg Register-Mail. The first count of the complaint concludes with an allegation of harm to Richardson from the publication and an allegation of his own reasonable conduct in the matter. It is obvious from the factual allegations contained in count I that Richardson seeks recovery against Dunbar for allegedly defamatory statements made by her during a meeting of the police committee. The trial court, in its order of dismissal, found that the complaint’s count I was insufficient to state a claim upon which relief could be granted. The basis for that conclusion was the court’s finding that the meeting of the police committee was a quasi-judicial proceeding.\nIt is the established law of Illinois that statements made during quasi-judicial proceedings are absolutely privileged. (Parker v. Kirkland (1939), 298 Ill. App. 340, 346-52, 18 N.E.2d 709 (Cook County Board of Appeals); Kimball v. Ryan (1936), 283 Ill. App. 456 (Chicago Board of Election Commissioners); Krumin v. Bruknes (1930), 255 Ill. App. 503 (Naturalization Bureau of the Department of Labor).) The privilege adhering to testimony given in quasi-judicial proceedings encompasses testimony given before administrative agencies or other governmental bodies when such agencies or bodies are performing a judicial function. (298 Ill. App. 340, 346; Restatement (Second) of Torts §§585, 588 (1977).) Commentators include within the quasi-judicial group proceedings before licensing boards or agencies and proceedings to remove or discipline public officers or employees. (See, e.g., 1 Hanson, Libel and Related Torts §109.) While no conclusive agreement has yet been reached upon a definition of “quasi-judicial proceeding,” the court in Parker v. Kirkland (1939), 298 Ill. App. 340, 346, indicated that historically the privilege had attached to all proceedings before any tribunal which exercises “judicial functions, that is to say has power to determine the legal rights and to effect the status of the parties who appear before it.” The court in that case found that the County Board of Appeals was quasi-judicial in that it had a duty to review an assessment, upon the filing of a complaint. Further, the board, in filling that duty, had the power, by statute, to summon witnesses and administer oaths. It also entered orders of record with supporting reasons in writing. (298 Ill. App. 340, 348.) In Kimball v. Ryan the court found that the Chicago Board of Election Commissioners was a quasi-judicial body, relying for that finding upon the fact that the board was created by statute, empowered to hear evidence under oath, and empowered to subpoena witnesses. (283 Ill. App. 456, 464-65.) Whether any given proceeding by an administrative or executive body is quasi-judicial, so that a privilege applies, depends, of course, upon the circumstances of the case. Specifically, it depends upon the powers and duties of the body conducting the proceeding and upon the nature of the proceedings themselves. A committee or board with quasi-judicial powers is not, as a matter of law, a quasi-judicial body at all times. At those times when it is not performing its quasi-judicial functions, or at those times when, purporting to perform those functions, it nevertheless fails to follow judicial procedures, it can be said that it is not acting as a quasi-judicial body.\nIn the case at bar we are confronted with contrary allegations concerning the functions of the Knoxville police committee and its proceedings of August 8,1978. In its brief to this court, the defense states that the police committee “handles” rule setting for the police department, investigation of police improprieties, and the hiring and firing of police personnel. The defense brief also states that the committee takes complaints about police misconduct and conducts hearings on such complaints. The plaintiff Richardson, on the other hand, states in his brief that the committee employs no judicial procedures and that it makes no final determination. It is also stated that the committee has no power to administer oaths or to subpoena witnesses and that it is merely an investigative subcommittee of the Knoxville City Council. The August 8, 1978, session of the police committee is referred to as both a hearing and a meeting.\nThe problem with all of these allegations concerning the nature of the police committee and its activity on the night of August 8, 1978, is that they are made by the parties in briefs to this court, without support in the record. The only mention of the police committee and its activity on August 8, 1978, in the record is that contained in the allegations of the complaint. No answer has been filed at this time. In the complaint it is alleged that the police committee was ordered to conduct a full investigation into Richardson’s complaint against the police chief. It is also stated that the police committee held a meeting on August 8, 1978, and heard statements from various people, including defendant Dunbar. These scanty allegations of fact, which must be taken as true at this time, are insufficient to establish that the meeting on August 8, 1978, was a quasi-judicial proceeding before the police committee. There is nothing stated with respect to the powers, authority, or procedures of the police committee, either generally or specific to the night of August 8,1978.\nThe defense has filed no answer, nor has it submitted other documents setting forth factual statements indicating the nature of the proceeding that was conducted by the police committee on August 8, 1978. The court was without sufficient basis in the record before it to conclude that the police committee was acting in a quasi-judicial capacity on the night of August 8,1978. The only affidavit filed in the matter is one filed by plaintiff Richardson, in which a transcript of the first part of the meeting on August 8, 1978, is set forth. It was during the first part of the meeting that the allegedly defamatory remark by Dunbar was made. There is little in the transcript to support the court’s conclusion that the police committee was performing a quasi-judicial function on the night of August 8,1978, when Dunbar’s statement was made. It appears from that part of the transcript in the record, which may not be complete, that the police committee meeting was an informal, sometimes light-hearted affair, with Whitworth and Moffitt discussing the incident under consideration with a variety of people, including Dunbar, in the audience. There is no indication that Dunbar was called as a witness or that she was under any oath when she made her statement. Nor is there indication in the record at this time that the committee, on August 8, 1978, employed any judicial procedures or operated under any judicial or quasi-judicial structure when holding the meeting to allegedly investigate the complaint against Richardson.\nIn conclusion, the record which was before the court on this motion to dismiss is insufficient to support the court’s conclusion that the police committee was acting as a quasi-judicial body on the night of August 8, 1978, at the meeting wherein the allegedly defamatory statements were made. It may be that with further factual development the defense would be able to demonstrate the quasi-judicial nature of the proceedings that night.\nWhile rejecting the trial court’s stated basis for dismissing count I against Lola Dunbar, we nevertheless affirm that dismissal on different grounds. We find that the count in defamation is insufficient substantively, as a matter of law, in that the defamatory construction placed upon the actual words of Dunbar is unreasonable. Furthermore, the count in defamation is insufficient, as a matter of law, for failure to allege special damages.\nAffirmance of the dismissal of count I is based upon our conclusion that the construction placed upon Dunbar’s alleged statement by plaintiff Richardson is an unreasonable one, under all the circumstances. Dunbar’s statement, as set forth in the complaint, is that “he grabbed Danny by the shoulder and tried to turn him around.” We find it unreasonable to conclude, as plaintiff asserts, that Dunbar, by that statement, intended to imply that Richardson had committed aggravated battery. Such a construction assumes a familiarity with the criminal statutes which Dunbar is not alleged to have possessed. We find that plaintiff’s construction of Dunbar’s statement strays too far from any reasonable understanding of the meaning of the words she is alleged to have used. It is established that a motion to dismiss will be sustained if the words claimed to be defamatory are not reasonably or fairly capable of the construction placed upon them by the plaintiff. Also, it is for the courts to decide whether the allegedly defamatory statement was reasonably capable of the meaning ascribed to it in the innuendo. (Kulesza v. Chicago Daily News (1941), 311 Ill. App. 117, 125, 35 N.E.2d 517.) We find that the construction placed upon Dunbar’s words by the plaintiff is unreasonable and that his complaint was insufficient to state a claim for defamation.\nTurning next to the deficiencies of the complaint with respect to allegations of damages, we note that there are four categories of defamatory statements, whether slander or libel, which are considered defamatory per se, wherein damage is presumed and no allegations or proof of special damages is necessary. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 371 N.E.2d 874; Kirk v. Village of Hillcrest (1975), 31 Ill. App. 3d 1063, 335 N.E.2d 535.) These include the speaking of words which impute (1) the commission of a criminal offense or (2) an infection with a communicable disease which, if true, would exclude one from society, or (3) inability to perform or want of integrity in the discharge of duties of office or employment or (4) are such as to prejudice a particular person in his profession or trade. (31 Ill. App. 3d 1063, 1065.) If an allegedly defamatory statement does not fall into one of the four categories, then it is not considered defamatory per se, but rather defamatory per quod, that is, with explanation. In actions for defamation per quod, special damages must be alleged with particularity, and general allegations as to damages are insufficient. 56 Ill. App. 3d 260, 266; Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 361 N.E.2d 74.\nIn the instant case, the allegedly defamatory statement, “he grabbed Danny by the shoulder and tried to turn him around,” is clearly not defamatory per se. Richardson argues that the statement implies commission of the offense of aggravated battery, since Danny refers to the police chief. As noted in Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 484:\n“However, where words do not of themselves import commission of a crime, they may not be so construed by reference to antecedent circumstances or words not part of the language complained of and thus, are not slanderous per se. [Citation.]”\nThe allegedly defamatory statement does not import commission of a crime in the language used, and requires explanation of surrounding circumstances to even suggest the meaning alleged to it. That explanation is necessary is evident from the fact that plaintiff Richardson, in the following paragraphs of the complaint, alleges that the Danny referred to is the police chief, that striking a police officer is aggravated battery, and that Dunbar’s statement implied that Richardson committed aggravated battery. Thus, it is clearly a case wherein plaintiff attempts to base a claim upon defamation per quod and, therefore, it is necessary for recovery that plaintiff allege and prove special damages with particularity. Here, the only allegation concerning damages was that excessive publication of the statement in the newpaper harmed Richardson. Actual damages in the amount of $1 and punitive damages of $100,000 were prayed for to the court. Based upon the lack of allegations of special damages, we affirm the dismissal of count I by the trial court.\nWe turn next to count II of Richardson’s complaint, that based upon Whitworth and Moffitt’s alleged negligence in the way they handled the police committee meeting. We affirm the dismissal of count II, finding no sufficient allegation of a duty imposed upon Whitworth and Moffitt which they breached. The duty alleged in the second count of the amended complaint is the duty owed by both men, under section 2 — 56 of the Knoxville City Code, to discharge their municipal offices in good faith. It is clearly established that the violation of a statute or ordinance may be the basis for a negligence action. That is the case when it is shown that the statute or ordinance prescribes a duty for the protection and safety of persons or property (Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 1067, 398 N.E.2d 80) and that the plaintiff suffered the kind of harm that the statute or ordinance was intended to prevent (Galayada v. Penman (1980), 80 Ill. App. 3d 423, 428-29, 399 N.E.2d 656.) There is no indication or allegation that the city ordinance set forth in the complaint was one designed for the protection of human life or property or that plaintiff Richardson suffered the kind of harm the ordinance was intended to protect against. Without a duty arising from a health or safety ordinance or statute, a complaint in negligence must allege sufficient facts showing that the harm complained of was a reasonably foreseeable consequence of the action by the defendants. As stated by the court in Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 907, 398 N.E.2d 1007:\n“The supreme court has made it clear that in determining whether a legal duty exists, the occurrence must have been reasonably foreseeable; more than a mere possibility of occurrence is required. [Citation.] ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ (Prosser, Torts §31, at 146 (4th ed. 1971).) The existence of a legal duty is not dependent on the factor of foreseeability alone but includes consideration of public policy and social requirements. [Citations.]”\nThe allegedly negligent action and conduct by the defendants Whitworth and Moffitt is their holding the meeting of the police committee and their permitting press coverage of the meeting. There is no allegation of conspiracy to defame Richardson, nor is there any allegation that the defendants had prior knowledge that Dunbar was going to make the statements she made at the meeting. Thus, there is nothing in the record, either in the complaint or the affidavit filed in support, to indicate that Dunbar’s utterance of the remark was a reasonably foreseeable consequence of holding the meeting and permitting the presence of the press. We are unable to find any unreasonable risk to the plaintiff Richardson in the defendants’ holding of the meeting and permitting press coverage. The possibility of someone making defamatory utterances would seem to be present at all public meetings, and there is nothing indicating anything more than a possibility was present in this case.\nAs to the public policy considerations, it is to be noted that it is the policy in Illinois to encourage open and public meetings by governmental bodies. (Ill. Rev. Stat. 1979, ch. 102, par. 41 et seq. (Open Meetings Act).) There is no allegation in the complaint that the defendants were under a duty to hold a closed meeting, nor is such a duty imposed by the statute. (Ill. Rev. Stat. 1979, ch. 102, par. 42.) Section 2 (par. 42) permits a governmental body to hold a closed meeting to hear testimony on a complaint lodged against an employee or officer, but it does not mandate a closed meeting. Nor is there in the complaint any indication or allegation as to how the defendants could have guarded against the utterance of the allegedly defamatory statements made at the meeting. In summary, the second amended complaint, in its count II, failed to allege a sufficient duty that was breached by defendants, which allegation was necessary to support an action for negligence. The trial court did not err in dismissing count II for failure to state a claim upon which relief could be granted.\nAccordingly, the judgment and decision of the Circuit Court of Knox County is affirmed.\nAffirmed.\nBARRY and HEIPLE, JJ., concur."}
{"dedup_key":"pre1996-133778","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"211 ill-app-3d 809","case_name":"Quinn v. Stone","court_level":"Appellate","appellate_district":"1st","year":1991,"county":null,"appellate_docket":"1-89-2638","circuit_docket":null,"published":1,"authoring_justice":"Coccia","statute":["FOIA"],"exemptions_cited":[],"public_body":"Alderman of the City of Chicago","requesting_party":"Jeanne Quinn","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that an individual alderman of the City of Chicago does not constitute a \"public body\" as defined under the Illinois Freedom of Information Act. Consequently, the court affirmed the dismissal of the plaintiff's complaint seeking records of travel allowance expenditures from the defendant.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=133778","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:44.818781","site_category":"Public Body Definition","date_decided":"1991-03-26","site_url":"/cases/pre1996-133778/","text_url":"/case-text/pre1996-133778.txt","full_text":"JEANNE QUINN, Indiv. and as Executive Director of the Chicago Metro Ethics Coalition, Plaintiff-Appellant, v. BERNARD L. STONE, Alderman, The City of Chicago, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1—89—2638\nOpinion filed March 26, 1991.\nRehearing denied April 25, 1991.\nAugustine & Kern, Ltd., of Chicago (Terrance A. Norton, of counsel), for appellant.\nAnthony J. Fornelli, of Chicago, for appellee.\n\nJUSTICE COCCIA\ndelivered the opinion of the court:\nPlaintiff Jeanne Quinn, individually and as executive director of the Chicago Metro Ethics Coalition, appeals from a circuit court order dismissing her complaint for injunctive relief which sought to compel defendant Bernard L. Stone, alderman, City of Chicago, to produce records of expenditures of monthly travel allowance funds. On appeal, plaintiff contends the trial court erred in determining that defendant is not a “public body” under the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.).\nOn January 6, January 19, and February 1, 1989, plaintiff wrote to defendant, requesting access to records reflecting expenditures of public funds received by defendant as alderman, including funds used for travel allowance. Defendant did not respond to the letters. On April 3, 1989, plaintiff filed a complaint for injunctive relief pursuant to section 11 of the FOIA. (Ill. Rev. Stat. 1989, ch. 116, par. 211.) The complaint alleges that plaintiff “appealed the denial of her request for records by letters to Eugene Sawyer, Mayor of Chicago *** and to Alderman Anna Langford, Chairman, Committee on Committees, Rules and Ethics.”\nOn August 28, 1989, the trial court ruled that defendant’s motion to dismiss the complaint was granted on the grounds that defendant is not a governmental body under the FOIA and is not the proper recipient of a request under that Act.\nThe FOIA provides that “[e]ach public body shall make available to any person for inspection or copying all public records,” with certain exceptions not applicable here. (Ill. Rev. Stat. 1989, ch. 116, par. 203(a).) The Act defines “public body” as follows:\n“ ‘Public body’ means any legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue.” Ill. Rev. Stat. 1989, ch. 116, par. 202(a).\nUnder the Act, a “public body or head of a public body” must notify the requesting person of a denied request, reasons therefor, and his right to “appeal to the head of the public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 209.) The person denied access to public records may then “appeal the denial by sending a written notice of appeal to the head of the public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 210.) When records are still denied, the person may file suit for injunctive or declaratory relief. (Ill. Rev. Stat. 1989, ch. 116, par. 211(a).) The circuit court may then “enjoin the public body from withholding public records.” Ill. Rev. Stat. 1989, ch. 116, par. 211(d).\nPlaintiff here failed to pursue her request for these records to the right person. Instead of suing defendant individually, she must pursue her remedy against the head of the public body, pursuant to the Act. The Act defines “[h]ead of the public body” as the “president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 202(e).) Plaintiff, therefore, must pursue her remedy in the circuit court by filing for injunctive or declaratory relief against the mayor and against the city council, of which defendant is a member. Despite a successful argument by defendant in the trial court that this was the proper avenue for relief, plaintiff has apparently chosen not to proceed in that fashion.\nAn exhaustive review of both State and Federal law defining “public body” reveals no case which would include an individual alderman in that definition. In fact, Illinois statutes using the term either define it in a manner similar to the FOIA or specifically include a reference to individual officers of a public body. Cf, e.g., Ill. Rev. Stat. 1989, ch. 5, par. 127 (“public body” under Soil and Water Conservation Districts Act provisions is a soil and water conservation district); Ill. Rev. Stat. 1989, ch. 24, par. 11—12—4.1 (“public body” under Illinois Municipal Code includes no reference to individual persons); Ill. Rev. Stat. 1989, ch. 67½, par. 8.18 (“public body” under housing and redevelopment provisions includes no reference to individual persons); Ill. Rev. Stat. 1989, ch. 68, par. 101 (“public body” under Human Rights Act includes no reference to individual persons); Ill. Rev. Stat. 1989, ch. 102, par. 41.02 (“public body” under Open Meetings Act includes no reference to individual persons); with Ill. Rev. Stat. 1989, ch. 67½, par. 30 (housing and redevelopment provisions distinguish “public body” from “governing body,” which can include a president of entity); Ill. Rev. Stat. 1989, ch. 85, par. 1232 (Metropolitan Pier and Exposition Authority Act refers to “public bodies, and public officers of any thereof”); Ill. Rev. Stat. 1989, ch. 121, par. 10—715 (Illinois Highway Code refers to “public bodies, and public officers *** thereof”).\nWe note the important purpose of the FOIA to provide persons with “full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees” and the Act’s recognition that “people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.) By holding that plaintiff has pursued her statutory remedy against the wrong person, we do not in any way intend to decide whether or not plaintiff has a right to the information requested.\nThe trial court properly dismissed plaintiff’s complaint, however, on the basis that defendant is not a “public body” as defined under the FOIA and is not the proper recipient of the request for records.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nSCARIANO, P.J., and DiVITO, J., concur."}
{"dedup_key":"pre1996-143000","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"276 ill-app-3d 714","case_name":"Local 1274, Illinois Federation of Teachers v. Niles Township High School, District 219","court_level":"Appellate","appellate_district":null,"year":1995,"county":null,"appellate_docket":"1-94-4304","circuit_docket":null,"published":1,"authoring_justice":"Hoffman","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Niles Township High School District 219","requesting_party":"Local 1274, Illinois Federation of Teachers","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The appellate court reversed a summary judgment that had required the plaintiff to exhaust collective bargaining grievance procedures before seeking records under the Freedom of Information Act. The court held that the trial court erred by failing to reach the merits of the FOIA request, remanding the case for further proceedings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143000","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:45.381951","site_category":"FOIA Response Process","date_decided":"1995-11-22","site_url":"/cases/pre1996-143000/","text_url":"/case-text/pre1996-143000.txt","full_text":"LOCAL 1274, ILLINOIS FEDERATION OF TEACHERS, AFT, AFL-CIO, Plaintiff-Appellant, v. NILES TOWNSHIP HIGH SCHOOL, DISTRICT 219, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1—94—4304\nOpinion filed November 22, 1995.\nCornfield & Feldman, of Chicago (Gilbert Feldman, of counsel), for appellant.\nSeyfarth, Shaw, Fairweather & Geraldson, of Chicago (Fay Hartog and Lisa A. Rapacz, of counsel), for appellee.\n\nPRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe plaintiff, Local 1274, Illinois Federation of Teachers, AFT, AFL-CIO, brought this action against the defendant, Niles Township High School District 219 (the District), seeking to obtain information regarding the District’s parents and students pursuant to the Freedom of Information Act (the Act) (5 ILCS 140/1 et seq. (West 1992)). On cross summary judgment motions, the court granted judgment for the defendant on the basis that the plaintiff had failed to exhaust grievance procedures under its collective bargaining agreement. The plaintiff appeals, contending that (1) the court erred in ruling that it must attempt to obtain the desired information under its collective bargaining agreement prior to bringing suit under the Act; and (2) it is entitled to the desired information under the provisions of the Act.\nIn its complaint, the plaintiff alleged that in written correspondence, it had requested that the defendant make available a computer disc containing all the names and addresses of the parents and students comprising District 219. The plaintiff alleged that it needed this information in order to conduct surveys and otherwise communicate with the school community \"in the preparation of [the plaintiff’s] collective bargaining proposals.” The defendant allegedly denied the plaintiff’s request on the grounds that (1) a computer disc containing such information did not currently exist; (2) the defendant did not consider the information subject to disclosure, because the board of education had not designated it as \"directory information” under the Illinois School Student Records Act (105 ILCS 10/6 (West 1992)); and (3) the Illinois Educational Labor Relations Act (115 ILCS 5/1 et seq. (West 1992)) precluded the plaintiff from entitlement to the information. Claiming that these reasons were insufficient to refuse production under the Act, the plaintiff sought a court order that the requested information be produced.\nThe parties submitted cross-motions for summary judgment. (735 ILCS 5/2 — 1005 (West 1992).) The defendant’s motion raised several defenses under the Act. Specifically, the defendant argued that the requested information was not maintained as a \"public record” within the meaning of Act section 2(c) (5 ILCS 140/2(c) (West 1992)); that the desired relief was outside the court’s jurisdiction as defined in section 11(a) of the Act; and that the release of such information would be an unwarranted invasion of the students’ privacy. Alternatively, the defendant alleged that the plaintiff had failed to exhaust remedies under its collective bargaining agreement. In particular, the agreement provided for the plaintiff’s right to obtain information for use in collective bargaining and contained a four-step grievance procedure in the event of any \"violation or misinterpretation” of its provisions.\nFollowing a hearing, the trial court entered an order granting summary judgment for the defendant. Without reaching the merits of the claim under the Act, the court determined that access to the information sought by the plaintiff was controlled under the collective bargaining agreement (hereinafter the agreement) and that, therefore, the plaintiff was required to exhaust its contractual remedies before proceeding with its claim under the Act. The instant appeal followed.\nOn appeal, the plaintiff argues that the court erred in determining that its right to information under the Act was contingent upon it first seeking relief under the agreement. Specifically, the plaintiff points out that (1) the Act contains no requirement for exhaustion of remedies prior to the initiation of a claim, and (2) the plaintiff’s claim under the Act constitutes a separate and independent statutory claim that is not subject to the terms of the agreement.\nAt the time in question, the agreement contained the following relevant provisions:\n\"ARTICLE XV\n* * *\nSection 1. Grievance — Purpose. The primary purpose of this procedure is to secure the lowest level possible equitable solution to the problem of the parties.\nSection 2. Grievance — Defined. A grievance shall mean a complaint that there has been a violation or misinterpretation of any of the provisions of this AGREEMENT.\n^ ^ ^\nARTICLE XVI\n* * *\nSection 14. UNION’S Right to Information. The BOARD shall furnish the UNION with the following documents and kinds of information as they are received, completed or compiled or as otherwise indicated:\n* * *\nI. The BOARD shall *** make available to the UNION, upon request, any and all information, statistics and records which may he relevant to negotiations or necessary for the proper enforcement of the terms of this AGREEMENT.” (Emphasis added.)\nAccording to the plaintiff’s original request, the information was sought for \"the preparation of [collective] bargaining proposals.” It is undisputed that when the defendant refused to tender the requested information, the plaintiff did not undertake grievance proceedings prior to filing its complaint. The defendant maintains that the above underscored language makes clear that requests for information for use in bargaining were covered under the agreement. Therefore, the plaintiff must endeavor to obtain it under the agreement prior to proceeding under the Act. We disagree.\nIt is true that an employee covered by a collective bargaining agreement must exhaust contractual remedies for all labor disputes prior to resorting to judicial remedies. (Carnock v. City of Decatur (1993), 253 Ill. App. 3d 892, 895, 625 N.E.2d 1165; Uehlein v. Schwach man (1987), 156 Ill. App. 3d 274, 277, 509 N.E.2d 493.) In a civil action, in order to state a valid claim for a dispute arising under a collective bargaining agreement, the employee must allege that he has exhausted the grievance and arbitration procedures set forth in the contract. (See Republic Steel Corp. v. Maddox (1965), 379 U.S. 650, 652-53, 13 L. Ed. 2d 580, 583, 85 S. Ct. 614, 616; see also 115 ILCS 5/10(c) (West 1992) (requiring that grievance procedures be established for all disputes \"concerning the administration or interpretation of the agreement”).) The exhaustion requirement is inapplicable, however, to claims not arising under the agreement, but that derive instead from State laws that \" 'proscribe conduct, [and establish] rights and obligations, independent of a labor contract.’ ” Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 13, 503 N.E.2d 308, quoting Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 212, 85 L. Ed. 2d 206, 216, 105 S. Ct. 1904, 1912.\nGonzalez involved two discharged employees covered by a collective bargaining agreement that precluded termination other than for \"just cause” and established a grievance procedure to contest a discharge claimed to be invalid. The employees bypassed these grievance procedures and instead filed separate civil suits for retaliatory discharge. The employer moved to dismiss the suits, contending the employees’ claims were preempted by the Labor Management Relations Act (29 U.S.C. § 185(a) (1982)) and that the employees were compelled to exhaust grievance procedures under their contract prior to bringing a State civil suit. Gonzalez, 115 Ill. 2d at 4.\nThe supreme court disagreed, finding that a retaliatory discharge claim was separate and distinct from anything encompassed under the collective bargaining agreement and that it was not subject to the preemptive power of Federal labor laws. The court adopted the test in Allis-Chalmers, that a cause of action will not be preempted where the asserted claim arises from nonnegotiable State-law rights conferred upon employees independent of any right established by contract. (Gonzalez, 115 Ill. 2d at 8-9.) On the other hand, preemption will bar a separate State action where \" 'evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.’ ” (Gonzalez, 115 Ill. 2d at 8, quoting Allis-Chalmers, 471 U.S. at 213, 85 L. Ed. 2d at 216, 105 S. Ct. at 1912; see also Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877.) The court reaffirmed this rule in Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 530 N.E.2d 431, pointing out that the right to challenge a retaliatory discharge arises out of fundamental State policy that \"cannot be bargained away” in a collective bargaining agreement. Ryherd, 124 Ill. 2d at 430, 433; see also Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483, 530 N.E.2d 468 (applying this analysis to permit separate State claim for malicious defamation).\nAlthough the case at bar does not concern the question of preemption, we find the logic of the above cases applicable. As is clear from the complaint, this case will turn upon whether or not the desired information is subject to disclosure under the provisions of the Act, and the Act alone. There is no reference to the collective bargaining agreement, and resolution of the claim will not require analysis of the agreement’s terms. Further, the plaintiffs claimed right to information derives not from the agreement but from a statute reflecting a policy that all persons are entitled to reasonable access to government information, with no restriction based upon intended use of that information. See 5 ILCS 140/1, 2(b) (West 1992).\nWe recognize that section 14(1) of the agreement also addresses the right to obtain information for use in collective bargaining. However, nothing in the agreement suggests that the parties intended a waiver of the right to seek information independently under the Act, even if such a provision were enforceable. Certainly, the Act itself contains no requirement that administrative remedies be exhausted prior to bringing a claim. Accordingly, the court erred in dismissing the plaintiff’s complaint.\nThe plaintiff next proceeds to its substantive claim, arguing that it was entitled to the requested information under the Act. A review of the transcript and court order of November 30, 1994, reveals that the court did not reach this issue, but instead granted summary judgment for the defendant purely on the basis of failure to exhaust contractual remedies.\nOn review from a grant of summary judgment, this court’s inquiry is limited to the record as it existed at the time the trial court ruled (McCullough v. Gallaher & Speck (1993), 254 Ill. App. 3d 941, 947, 627 N.E.2d 202), and to a determination of whether a genuine issue of fact existed, and if not, whether the judgment was correct as a matter of law. Northbrook National Insurance Co. v. Nehoc Advertising Service, Inc. (1989), 196 Ill. App. 3d 448, 452, 554 N.E.2d 251.\nThe judge unequivocally stated that he was not reaching the merits of the underlying claim, the plaintiff’s right to the information under the Act. Indeed, a determination of this question would involve resolution of clearly disputed factual issues, such as whether the plaintiff’s request is exempt from disclosure as an unnecessary violation of the students’ personal privacy. (See 5 ILCS 140/7 (West 1992); see Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.) Accordingly, we do not reach the merits of the claim under the Act.\nFor the aforementioned reasons, the summary judgment granted by the court is reversed and this cause remanded for proceedings consistent with this opinion.\nReversed and remanded.\nCAHILL and THEIS, JJ., concur.\nAs the plaintiff points out, it has failed to include a copy of its motion in the record on appeal, although the record does contain the supporting memorandum."}
{"dedup_key":"pre1996-120477","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"13 ill-app-3d 418","case_name":"City of Champaign v. Williams","court_level":"Appellate","appellate_district":"4th","year":1973,"county":null,"appellate_docket":"12018","circuit_docket":null,"published":1,"authoring_justice":"Simkins","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Education of Community Unit School District No. 4","requesting_party":null,"disposition":"reversed","relevance":"mention_only","summary_source":null,"summary":"The court reversed a conviction for disturbing an assemblage, noting that it did not need to decide whether the Illinois Open Meetings Act granted the defendant a right to attend the meeting to conclude that his presence did not constitute a criminal disturbance.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=120477","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:45.382002","site_category":"Meeting Conduct & Participation","date_decided":"1973-08-01","site_url":"/cases/pre1996-120477/","text_url":"/case-text/pre1996-120477.txt","full_text":"The City of Champaign, Plaintiff-Appellee, v. Roy Allan Williams, Defendant-Appellant.\n(No. 12018;\nFourth District —\nAugust 1, 1973.\nFrank J. Kopecky, of Springfield, (Dennis J. Jacobsen, Senior Law Student, of counsel,) for appellant.\nAlbert Tuxhorn, City Attorney, of Champaign, and James W. Evans, Assistant City Attorney, for appellee.\n\nMr. JUSTICE SIMKINS\ndelivered the opinion of the court:\nThe defendant appeals from his conviction for violating a Champaign City Ordinance (sec. 22.207 of the Champaign City Code 1964) entitled “Disturbing Assemblages”.\nThe conduct of the defendant which lead to his arrest and conviction on the charge arose out of his uninvited attendance at a meeting on December 3, 1971, of the Board of Education of Community Unit School District No. 4 of Champaign County and a substantial number of the faculty and staff of Centennial High School. Since there is no controversy as to the facts of the case, a very brief résumé of the occurrence will suffice.\nDue to some disciplinary difficulties at Centennial High School and the failure of the school board to take as firm a stand as some of the teachers felt was warranted, the teachers or administrators of the high school requested a meeting with the board of education to discuss the disciplinary problems and faculty discontent.\nThe entire board of education appeared at a meeting at the close of school on the day in question, as did the majority of the teaching and administrative personnel. The meeting was held in the Centennial High School cafeteria and was not a regularly scheduled school board meeting as to time, place, or the giving of notice.\nSeveral other persons appeared but all except defendant complied with a request to leave. It appears that the defendant was asked to leave by the city community relations director (who himself left upon request), several teachers and board members individually; and upon the defendant’s request, the school board voted 7 to 0 to exclude the defendant. The school board attorney advised the defendant that under the Illinois “open meeting law”, the meeting could be closed to the public, but the defendant adamantly refused to leave. Although he did not interrupt the meeting by his entry nor did he make any verbal or physical disruption, the meeting was delayed for approximately one hour until the defendant was arrested by the Champaign city police and charged with disturbing a lawful assemblage.\nOn May 3, 1972, the defendant was tried, found guilty, and fined $20 plus costs.\nThe trial court, after finding that the defendant had created no disturbance under the undisputed facts, found that the meeting was a lawful assemblage within the meaning of the Champaign City Ordinance, and that even if the meeting was of the kind subject to the state statute on “Meetings of Public Agencies”, that statute does not declare a meeting not held in compliance with it to be unlawful. The court further found that the meeting was held at the request of employees— both teachers and administrators — with the employer-school board to discuss grievances, so was a teachers’ meeting and not a school board meeting. However, the court found that there was no collective bargaining such as to exempt the meeting from the “open meeting law”, nor did it come -under any of the other specified exemptions of the law, but rather, the meeting was not covered by the statute since it was not held as a school board meeting, its purpose not being to deliberate nor to take board action, and the meeting was not unlawful within the meaning of either the City Ordinance or the state “open meeting” statute, so was lawful.\nThe ordinance involved provides: “[I]t shall be unlawful for any person to disturb any lawful assemblage or gathering in the City.” The defendant’s contention is that the gathering in the high school cafeteria was a school board meeting, subject to the Illinois statute on “Meetings of Public Agencies” (Ill. Rev. Stat., ch. 102, pars. 41-44), and that by excluding the defendant, the meeting was rendered unlawful, so that defendant could not be convicted under the ordinance which only prohibits disturbing lawful assemblages. The parties frame the issue on appeal almost entirely around the status of the meeting, arguing whether or not the school board was “conducting business”, or “taking action”, or “deliberating”, as is required to be done openly by paragraph 41 of the statute, and whether or not the gathering was a meeting as defined in paragraph 42, and if so, whether or not the subject matter of the meeting entitled it to an exception to the “open meeting law”.\nWe feel that this issue is not determinative in light of the particular ordinance involved and the findings of the trial court.\nThe evidence to the effect that the meeting was initiated by the teachers or school administrators, with the school board members attending as a matter of courtesy to explain their policy on expulsion of students, clearly supports the trial court’s finding that the gathering was not a regular school board meeting. That finding alone would not necessarily exempt the gathering from the confines of paragraphs 41 and 42 of chapter 102, but it is unnecessary to delve deeper into the precise status of the meeting as to what actions could be taken or matters discussed. The Champaign Ordinance is not concerned with whether particular actions taken at a meeting would be lawful or not. Regardless of whether or not the gathering at the school would constitute a legal meeting so that the school board could legitimately hire and fire employees or buy and sell property, the assemblage of the teachers and board members was lawful. Neither the propriety of the meeting nor the conduct of the defendant was tried under chapter 102, paragraph 41, et seq. in this case. The issue before the trial court was whether or not defendant was guilty of disturbing a lawful assemblage.\nThe court found no “disturbance” — apparently meaning in a physical or verbal sense — but yet found the defendant guilty of disturbing an assemblage. The silent, passive presence of the defendant which resulted in the participants of the meeting delaying their discussion could be the only basis of that finding of guilty. Since the ordinance does not define “disturb” it must be construed as in its ordinary usage.\nIn State v. Davis, 21 Ohio App.2d 261, 257 N.E.2d 79, the court turned to Webster’s Unabridged Dictionary for the definition of “disturb” saying that the definition and meaning was of common understanding. The term “disturb” as used in the New York Statute prohibiting the wilful disturbance of any assembly or meeting, means to throw into disorder; to move from a state of rest or regular order; to interrupt; to throw out of course or order. (People v. Malone, 141 N.Y.S. 149, 156 App. Div. 10.) Other cases state that some noise, indecent behavior, or other act is required (Nix v. State, 27 Ala.App. 388, 173 So, 98), and the disturbance or interruption of the meeting must be great enough to have such effect without voluntary cooperation on the part of those present. Fowler v. State, 93 Ga.App. 883, 93 S.E.2d 183.\nWithout reaching the constitutionality of the Champaign City Ordinance, the United States Supreme Court cases, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471, and Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, should be noted for the proposition that mere noise or presence or the fact that the defendant’s activity bothers or agitates someone else is not sufficient to constitute disturbing the peace or breaching the peace.\nCity of Chicago v. Meyer, 44 Ill.2d 1, 253 N.E.2d 400, involved a conviction for disorderly conduct, which provides that doing any act in such an unreasonable manner as to alarm or disturb another will constitute the offense, but held that mere eccentric or unconventional conduct, no matter how-irritable to others, is not enough. (Ill. Rev. Stat., ch. 38, par. 26 — 1.) In referring to the section on alarming or disturbing another, it has been held that a spectator’s activity (jumping to his feet and shouting) which prevents orderly continuation of a public hearing falls within the prohibition of the statute. U.S. v. Woodard (7th Cir.) 376 F.2d 136.\nGregory v. Chicago, 394 U.S. Ill, 89 S.Ct. 946, 22 L.Ed.2d 134, involved a city ordinance on disorderly conduct. The defendants were peaceful and orderly — it was the onlookers who became unruly. The Supreme Court said “There is no evidence in this record that petitioners’ conduct was disorderly. Therefore, under the principle first established in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, 80 A.L.R.2d 1355 (1960), convictions so totally devoid of evidentiary support violate due process.” Other language of that case may have some bearing on defendant Williams’ conviction for disturbing a meeting after a finding that there was no disturbance. There, the Illinois Supreme Court had suggested that the petitioners were convicted not for the manner in which they conducted their march, but rather for their refusal to disperse when requested to do so by the police. However, they were only charged with disorderly conduct in holding a demonstration, and not with refusal to obey a police officer. The United States Supreme Court held that: “‘[I]t is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction.’ [citation.]”\nIn Chicago v. Perez, 45 Ill.2d 258, 259 N.E.2d 4, defendants were convicted under the City “Disorderly Conduct” ordinance where they had congregated in the building in which the welfare offices were located and refused to leave even after closing hours. The conviction was reversed because there was no evidence that defendants made any improper noise, riot, disturbance, or breach of the peace, as were elements of the ordinance. The IHinois Supreme Court said that whHe the defendants’ conduct in remaining in the building after it closed and they had been asked to leave might constitute criminal trespass or some other offense, it did not amount to disorderly conduct. Likewise, in the instant case, defendant’s conduct may have been in some way wrongful, but did not constitute disturbing an assemblage.\nTherefore, regardless of the status of the meeting under the so-called “open meeting” statute, it clearly was a lawful assemblage or gathering under the Champaign City ordinance. The trial court found that “[A]t no time did the defendant cause a disturbance whffe in the cafeteria # * *” and yet convicted him on the charge of disturbing a lawful assemblage because the persons meeting chose not to continue simply because of the presence of the defendant. It need not be decided whether or not the IHinois “open meeting” statute gave defendant the right to be at the meeting to determine that his conviction for disturbing a lawful assemblage was improper in the face of the court’s finding no disturbance as that term is normally used. Therefore, defendant’s conviction must be reversed.\nConviction reversed.\nCRAVEN, P. J., and TRAPP, J., concur."}
{"dedup_key":"pre1996-143018","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"276 ill-app-3d 912","case_name":"Paxson v. Board of Education of School District No. 87","court_level":"Appellate","appellate_district":null,"year":1995,"county":null,"appellate_docket":"1-94-4294","circuit_docket":null,"published":1,"authoring_justice":"O'Brien","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Education of School District No. 87","requesting_party":"City of Northlake and its mayor","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the dismissal of a complaint alleging violations of the Open Meetings Act, holding that the plaintiffs failed to file their action within the 45-day statute of limitations. The court rejected the plaintiffs' attempt to apply the discovery rule to toll the limitations period based on the discovery of the violation by a third party.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143018","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:45.554917","site_category":"Other","date_decided":"1995-12-08","site_url":"/cases/pre1996-143018/","text_url":"/case-text/pre1996-143018.txt","full_text":"REID M. PAXSON, Mayor of the City of Northlake, et al., Plaintiffs-Appellants, v. THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 87 et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1—94—4294\nOpinion filed December 8, 1995.\nSamuel V.P. Banks, Robert J. Weber, and Anne T. Bottini, all of Chicago, for appellants.\nRobert H. Ellch and John M. Izzo, both of Scariano, Kula, Ellch & Himes, Chartered, of Chicago Heights, for appellees.\n\nJUSTICE T. O’BRIEN\ndelivered the opinion of the court:\nPlaintiffs, the City of Northlake and its mayor, filed a one-count complaint against the Board of Education of School District No. 87 (School Board) and its various board members. Plaintiffs sought injunctive and declaratory relief under the Illinois Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 1992)). The circuit court dismissed plaintiffs’ action with prejudice on the grounds that (i) plaintiffs lacked standing, and (ii) plaintiffs did not file their complaint within the 45-day period of limitations set forth in the Act. We affirm the order of dismissal on the basis of the late filing.\nBACKGROUND\nBecause the circuit court dismissed the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 1992)), the factually competent allegations, in the complaint are taken as true.\nOn November 18, 1993, the mayor of Northlake issued a letter to the School Board regarding, in part, the City of Northlake’s tax increment financing. The letter was sent in response to comments made by a board member, Jeffrey Storck, which were published in a local newspaper. Storck apparently suggested that School District No. 87 suffered a loss of revenue as a result of the City of Northlake’s financing. In the letter, the mayor indicated that not only had the school district not lost any revenue on account of the city’s tax increment financing, but that, in fact, the City of Northlake had enacted certain ordinances which resulted in a net increase in school funding.\nIn a second letter, dated January 10, 1993, the mayor questioned the propriety of the School Board’s approval of a staff seminar held in San Francisco, California. The mayor believed that the City of Northlake was \"footing the bill” for the trip because the city provided the School District with monetary incentives for other expenditures. He then requested an explanation as to why, among other things, \"staff seminars cannot be kept local, and why the City should not discontinue providing the District with these monetary incentives until the District can assure the City that its dollars will be spent on the children of the District, and not on the people of San Francisco.”\nThe complaint further alleges that the School Board held a regular meeting at its administrative office on January 24, 1994. At the conclusion of the regular meeting, a member of the board moved to recess to a closed executive session in order \"to consider information regarding appointment, employment [or] dismissal of an employee or officer.” The motion carried.\nDuring the closed meeting, board members discussed the mayor’s letters and decided upon a course of action. The School Board agreed to send the mayor and city aldermen a written reply addressing the issues raised by the mayor.\nShortly thereafter, Peg O’Connell, the School Board president, issued the written reply. In her letter, O’Connell responded to each of the points raised by the mayor, including the tax increment financing, city ordinances and the out-of-State seminar. As to this last issue, O’Connell explained that \"the information and expertise gleaned from nationally prominent experts in the field of education at a national conference translate into improved learning programs and procedures in our district which, in turn, directly impact on the quality of education this district can offer its students.” A copy of the letter was delivered to the Press Publication Newsletter.\nOn April 29, 1994, plaintiffs notified the \"Illinois [sic] State’s Attorney” of the closed meeting and on that same day filed the instant complaint. Plaintiff's claimed that the aforementioned actions of the School Board during the closed session did not concern \"information regarding appointment, employment [or] dismissal of an employee or officer” and therefore violated the Illinois Open Meetings Act. (5 ILCS 120/1 et seq. (West 1992).) In their prayer for relief, plaintiff's requested the court to (i) enjoin the School Board from future violations of the Act, (ii) declare null and void the School Board’s actions in discussing and approving the response letter, (iii) direct the School Board to issue the appropriate recantation to be released to the Press Publication Newspaper, and (iv) assess attorney fees and costs.\nDefendants thereafter moved to dismiss the complaint under section 2 — 615 of the Code of Civil Procedure, arguing that plaintiffs lacked standing under the Act and that the complaint was not filed within 45 days of the meeting. The court granted the motion to dismiss with prejudice.\nOn appeal, plaintiffs submit that they do have standing and that they timely filed their action. They further assert that the circuit court should not have dismissed their complaint under section 2 — 615; rather, because standing and \"statute of limitations” constitute affirmative defenses, defendants should have filed a section 2 — 619 motion to dismiss. (735 ILCS 5/2 — 619(a)(5) (West 1992).) For these reasons, plaintiffs seek a reversal of the circuit court’s order of dismissal.\nWe agree with plaintiff in part and reverse the circuit court with regard to standing; nevertheless, we affirm the circuit court with regard to the late filing and therefore affirm the order of dismissal.\nANALYSIS\nThe Illinois Open Meetings Act mandates that all meetings of public bodies must be open to the public, subject to certain enumerated exceptions not relevant here. (5 ILCS 120/3 (West 1992).) In order to ensure compliance, the Act provides in pertinent part:\n\"Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 45 days after the meeting alleged to be in violation of this Act or within 45 days of the discovery of a violation by the State’s Attorney.” (Emphasis added.) 5 ILCS 120/3 (West 1992).\nAt issue here is whether the phrase \"any person, including the State’s Attorney of the county in which such noncompliance may occur,” authorizes a municipality or a public official, or both, to file a civil suit to enforce compliance with the Act. This is a matter of first impression.\nThe fundamental objective in construing the Act is to ascertain and give effect to the intent of the legislature. (Kraft, Inc. v. Edgar (1980), 138 Ill. 2d 178, 189, 561 N.E.2d 656.) Ordinarily, the language used in the statute is the primary source for determining this intent. (People v. Markovich (1990), 195 Ill. App. 3d 999, 1004, 552 N.E.2d 1232.) Absent statutory definitions indicating a contrary intent, words in a statute are to be given their ordinary and popularly understood meaning. People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 15, 585 N.E.2d 51.\nIn this case, although the Act specifically defines \"meetings” and \"public bodies” (5 ILCS 120/1.02 (West 1992)), the word \"person” is not defined. We do note, however, that the Illinois Statute on Statutes specifies that a \" '[pjerson’ or 'persons’ as well as all words referring to or importing persons, may extend and be applied to bodies politic and corporate as well as individuals.” (Emphasis added.) (5 ILCS 70/ 1.05 (West 1992).) Unfortunately, the Statute on Statutes does not require a mandatory application of its definition; therefore, it is not conclusive as to whether a municipality or public official is a \"person” for purposes of the Open Meetings Act. We turn, then, to the legislature’s intent and consider the use of the word \"person” in light of the Act’s objectives.\nThe Illinois General Assembly adopted the Open Meetings Act in 1957 as a compromise between the expediency of having public officials meet privately and the people’s right of access to public information. (Ill. Rev. Stat. 1957, ch. 102, par. 41 et seq. (Illinois Meetings of Public Agencies Act).) As the court explained in People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 536, 332 N.E.2d 649, \"[t]he people’s access to information is the basis of public understanding of governmental decisions so that their elected representatives will be responsive to them and under their ultimate control. But disclosure of all forms of information preliminary to decision-making may prevent the efficient administration of governmental functions and thus adversely affect the public interest. The balancing of these countervailing factors is the basic problem.” See also Gosnell v. Hogan (1989), 179 Ill. App. 3d 161, 171-73, 534 N.E.2d 434, appeal denied (1989), 126 Ill. 2d 558, 541 N.E.2d 1106.\nAgainst this backdrop, the legislature carefully drafted the Act which, as its name suggests, grants the public the opportunity to scrutinize the actions and deliberative processes of certain public bodies. The General Assembly itself set forth the public policy behind the Act when it stated:\n\"It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” 5 ILCS 120/1 (West 1992).\nThus, the express purpose of the Act is to require public bodies to deliberate and act openly. (People ex rel. Hartigan v. Illinois Commerce Comm’n (1985), 131 Ill. App. 3d 376, 378, 475 N.E.2d 635.) Consistent with that purpose, we find no compelling reasons to limit the word \"person” to an individual as opposed to a body politic. Indeed, creating an impediment to the explicit command of the statute that actions of public bodies be taken openly, solely on the basis that a political body is not an individual person, ill serves the intent of the legislature and frustrates the principles underlying the Act. The deterrence of official misconduct is no less important simply because it is the office of the mayor which challenges the infraction rather than the mayor in his or her individual capacity.\nMoreover, there may be instances where a purported transgression of the Act affects the interests peculiar to the political body and not the individual constituents. On the other hand, there may be instances where the actions taken at closed meetings affect the constituents indirectly, and thus they may be either unaware of the violations or without enough interest to institute a civil action. In each of these cases, it is unlikely that the allegedly improper meeting will be challenged by anyone other than the holder of the particular office, whose duty may be to safeguard against, or to respond to, the improper actions. As an example, we need look no further than to the case at hand.\nIn this case, the purported violation of the Act occurred when members of the School Board met in a closed executive session and decided to send a written reply to the mayor. In its reply, the School Board questioned the mayor about the City of Northlake’s tax increment financing scheme:\n\"How are the tax increment monies being utilized by the City of Northlake for the following T.I.F. [tax increment financing] districts: North Avenue and Railroad, North Avenue and Wolf, and North Avenue and 46th?”\nIn regard to the city ordinances, the School Board asked:\n\"Do other school districts serving the students of Northlake receive monetary incentives from the City of Northlake? If so, would you please send us copies of the ordinances or resolutions that established these incentives?”\nFinally, as to the out-of-State conference, the School Board wrote:\n\"Do you also monitor the participation of School District No. 21 or School District No. 83 staff members or School Board Members in national educational conferences? Have they also been notified by the City of Northlake that their participation in educational conferences should be restricted to the local level?”\nAs the above excerpts demonstrate, the School Board’s written reply raises matters which relate directly to the mayor in his official capacity as the elected representative of the citizens of Northlake. Clearly, the reply calls upon the mayor to answer the School Board’s \"questions” concerning the utilization of tax increment funds, the enactment of certain ordinances, and the oversight of staff conferences. Consequently, it is unlikely that any particular citizen of Northlake, to the extent that he or she even knows about the closed meeting, would institute legal proceedings to declare the reply null and void.\nIn addition, the reply appears in the form of an official response to the mayor. Common sense suggests that it is unlikely that an individual constituent would review each official correspondence sent to the mayor’s office in order to ferret out whether the correspondence is the improper byproduct of a closed meeting. It is even more unlikely that such a person would then file suit.\nAs a result, were we to deny the mayor, or for that matter the City of Northlake, an opportunity to challenge the reply, and instead hold that only an individual person has standing under the Act, we would effectively insulate the School Board’s actions from review. In short, we would undermine the very goals sought to be accomplished by the Act.\nDefendants contend, however, that a \"more logical reading of this provision [i.e., 'any person, including the State’s Attorney of the county in which such noncompliance may occur’] is that the one State’s Attorney expressly authorized to file suit is the only public body or public official authorized to file suit.” (Emphasis in original.) Defendants apparently advance the proposition founded upon the maxim expressio unius est exclusio alterius, or,, the expression of one thing is the exclusion of another. We find defendants’ argument unpersuasive.\nIn Zebulon Enterprises, Inc. v. County of Du Page (1986), 146 Ill. App. 3d 515, 496 N.E.2d 1256, the court had occasion to consider the use of the word \"including” in a zoning ordinance that set forth certain categories of special uses for recreation and amusement establishments. The County of Du Page charged the operator of an adult video and book store with violating the ordinance. Specifically, the ordinance required special use permits for the following:\n\" \"Recreation and amusement establishments; including archery ranges, bowling alleys, pool halls, dance halls, gymnasiums, swimming pools, skating rinks, golf driving ranges, miniature golf courses, miniature railroads, merry-go-rounds and other mechanical rides.’ ” 146 Ill. App. 3d at 518.\nThe store operator argued that \"the word 'including’ should be construed as a term of limitation on the antecedent general classification.” (146 Ill. App. 3d at 519.) In rejecting such an argument, the Zebulon court noted that \"[t]he term 'include’ does not necessarily imply the exclusion of items not specifically enumerated. In fact, the weight of authority ordinarily interprets 'include’ as a term of enlargement.” (Zebulon Enterprises, 146 Ill. App. 3d at 519, citing People v. Valley Steel Products, Inc. (1978), 71 Ill. 2d 408, 419, 375 N.E.2d 1297; Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 727-28, 321 N.E.2d 293; People v. Hall (1964), 55 Ill. App. 2d 255, 204 N.E.2d 473.) Finding no reason to depart from the general rule, the court concluded that the word \"including” was merely used to preface illustrative examples of the general classification of recreation and amusement establishments.\nWe, too, find the word \"including,” in its most commonly understood meaning, to be a term of enlargement, not of limitation. (Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 727-28, 321 N.E.2d 293.) Thus, the fact that the Act qualifies the word \"person” as including the \"State’s Attorney of the county in which such noncompliance may occur” does not mandate defendants’ conclusion that the inclusion of one body politic is to the exclusion of all others. Here, the inclusion of the State’s Attorney merely recognizes that the State’s Attorney is the one public official who may commence and prosecute suits on behalf of the people of the State of Illinois. (55 ILCS 5/3 — 9005 (West 1992).) Such a construction of the term is proper despite the maxim expressio unius est exclusio alterius. In fact, it is generally improper to conclude that entities not specifically enumerated are excluded when the legislature uses the word \"including.” (See 2A N. Singer, Sutherland on Statutory Construction §47.23 (5th ed. 1992).) Moreover, the maxim expressio unius est exclusio alterius is only a rule of construction and not a rule of law and should never be applied to defeat the purpose of a statute. Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 727, 321 N.E.2d 293.\nAccordingly, we hold that the City of Northlake and its mayor have standing under the Act to challenge the propriety of the School Board’s meeting of January 24, 1995.\nWe next address whether plaintiffs have filed their complaint in timely fashion. As with standing, this issue turns on section 3 of the Illinois Open Meetings Act. In particular, as of the time plaintiffs filed suit, the Act stated in relevant part:\n\"Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the County in which such noncompliance may occur, may bring a civil action *** prior to or within 45 days after the meeting alleged to be in violation of this Act or within 45 days of the discovery of a violation by the State’s Attorney.’’ (Emphasis added.) 5 ILCS 120/3 (West 1992).\nSince plaintiffs’ complaint was filed on April 29, 1994, more than 45 days after the meeting, the sole issue here is whether persons other than the State’s Attorney may bring an action within 45 days of the State’s Attorney’s discovery of a violation of the Act. Relying almost entirely on Safanda v. Zoning Board of Appeals (1990), 203 Ill. App. 3d 687, 561 N.E.2d 412, appeal denied (1991), 136 Ill. 2d 554, 567 N.E.2d 342, plaintiffs contend that the \"plain language does not measure the opportunity to file from the time of the complainant’s discovery, but from the time of discovery by the State’s Attorney.” We agree with plaintiffs’ general statement that the statute speaks in terms of a discovery of a violation by the State’s Attorney; however, we find that the \"discovery rule” inures only to the benefit of the State’s Attorney and is inapplicable to the instant case. We therefore respectfully decline to follow Safanda.\nIn Safanda, plaintiff, a private individual, filed suit pursuant to the Open Meetings Act more than 194 days after the meeting alleged to be in violation of the Act. The circuit court held that action was not timely filed. On appeal, the Second District Appellate Court reversed and held:\n\"The statute allows a person to file a complaint within three time periods: (1) before the violative meeting is held; (2) within 45 days of the violation; or (3) within 45 days of discovery of the violation by the State’s Attorney. In the case before us, plaintiff filed her complaint 194 days after the Board’s allegedly violative meeting, clearly beyond the limits of the first two periods. However, the record contains no evidence that the State’s Attorney ever discovered the occurrence of the meeting.[ ] Therefore, the 45-day period after such discovery had not run, and plaintiff’s complaint was filed within the statutory time limit.” Safanda, 203 Ill. App. 3d at 690-91.\nContrary to the court in Safanda, we find that the plain language of the Act requires persons other than the State’s Attorney to file suit either prior to or within 45 days of the meeting. If, as contemplated by plaintiffs, any person could file suit as late as 45 days after the State’s Attorney’s discovery of a violation of the Act, then the 45-day limitations period from the date of the meeting is rendered superfluous. In other words, it is illogical for the legislature to provide a period of limitations which is either 45 days from the date of the meeting or 45 days from the date of the discovery of a violation by the State’s Attorney, unless the legislature intended the two periods to apply to two different entities, i.e., the office of the State’s Attorney and all other persons. It is illogical because the 45-day period from the date of discovery of a violation by the State’s Attorney is always at least equal to, but in no event less than, the 45-day period from the date of the meeting. The former period of limitations subsumes the latter.\nOn the other hand, if the Act is properly read as limiting the effect of the \"discovery rule” to the State’s Attorney, the 45-day limitations period from the date of the meeting is not rendered superfluous. Only then does the language of the Act become sensible. Rules of statutory construction provide that where the language of a statute admits of two constructions, one of which would make the enactment absurd and illogical, while the other renders it reasonable and sensible, that construction which leads to the absurd result must be avoided. (People v. Stanciel (1992), 153 Ill. 2d 218, 233-34, 606 N.E.2d 1201.) In this case, we decline to countenance an absurd result and, consequently, find that under the plain language of the Act the discovery rule inures only to the benefit of the State’s Attorney.\nMoreover, in holding that all persons other than the State’s Attorney must file within 45 days of the meeting, and not within 45 days of a discovery of a violation by the State’s Attorney, we fulfil the legislature’s express intent in enacting section 3. (5 ILCS 120/3 (West 1992).) The prior version of the Act did not contain the phrase \"or within 45 days of the discovery of a violation by the State’s Attorney.” (Ill. Rev. Stat. 1987, ch. 102, par. 43.) During the House Debates in the Illinois General Assembly, Representative McCraken offered floor amendment No. 1 to House Bill 2004, a bill to amend the Open Meetings Act. Representative McCraken stated, in part, \"[a]mendment # 1 deletes the underlying Bill and amends the Open Meetings Act in three respects. *** [I]n addition [it] extends the time in which the States [sic] Attorney may bring an action for violation of the Act to the greater of the current limitation or 45 days within the discovery thereof by the States [stc] Attorney.” In light of Representative McCraken’s floor comments, as well as the subsequent adoption of amendment No. 1, it is beyond dispute that the legislature intended the newly added language \"or within 45 days of the discovery of a violation by the State’s Attorney” to apply only in favor of the State’s Attorney.\nWe acknowledge, of course, that persons other than the State’s Attorney have a very short and definite period of time in which to bring a civil action. However, we also note that one of the remedies for a violation of the Act is the nullification of any action taken at the meeting. (5 ILCS 120/3(c) (West 1992).) The voidance of governmental actions is indeed a powerful and drastic remedy that carries with it the enormous potential for upsetting the stability of government. Consequently, we find that the restriction placed on the remedy is more than reasonable.\nIn addition, nothing prohibits a person who is aggrieved by an allegedly improper action from notifying the State’s Attorney even after 45 days of the meeting and requesting the State’s Attorney to file suit ex relatione, or upon relation. On the other hand, to allow that same person to file suit in his or her own name solely upon notification to the State’s Attorney would, no doubt, condone dilatory practices. In fact, it would confer upon persons other than the State’s Attorney the opportunity to delay filing an action ad infinitum by simply not notifying the State’s Attorney of the alleged violation until some future date.\nFinally, despite the fact that plaintiffs may have relied upon Safanda in regard to the period of time in which to file their cause of action, we, as an intermediate court of review, have no authority to apply our decision prospectively. \"[0]nly the supreme court has the inherent power to make rulings prospective or retroactive.” Hahn v. Norfolk & Western Ry. Co. (1993), 241 Ill. App. 3d 97, 103, 608 N.E.2d 683, appeal denied (1993), 151 Ill. 2d 563, 616 N.E.2d 333.\nFor these reasons, we hold that any person other than the State’s Attorney must file suit prior to or within 45 days of the meeting alleged to be in violation of the Open Meetings Act.\nRegardless of the foregoing analysis, plaintiffs argue that the circuit court should not have dismissed their complaint under section 2 — 615 since standing and \"statute of limitations” are affirmative defenses. (See Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 524 N.E.2d 561 (lack of standing is an affirmative defense); In re Joseph B. (1994), 258 Ill. App. 3d 954, 630 N.E.2d 1180 (statute of limitations is an affirmative defense).) However, plaintiffs themselves pied the very facts upon which defendants attack the complaint, and thus the only issue is whether under the facts alleged plaintiffs’ cause of action is barred as a matter of law. (See, e.g., Lissner v. Michael Reese Hospital & Medical Center (1989), 182 Ill. App. 3d 196, 206, 537 N.E.2d 1002 (statute of limitations is an affirmative defense unless it appears from the face of the complaint that the cause of action is legally barred).) Moreover, plaintiffs suffered no prejudice in this case because the circuit court did not consider any affidavits, documents (other than those which were attached to the complaint and incorporated therein), testimony or other evidentiary materials. In fact, the circuit court merely construed a statute in light of plaintiffs’ own allegations. Construction of a statute is a question of law. O’Neill v. Brown (1993), 242 Ill. App. 3d 334, 339, 609 N.E.2d 835.\nMore important, however, plaintiffs mischaracterize the statutory limitations period in this case as a general statute of limitations. It has long been the law of this State that where a person seeks relief under a cause of action which is wholly statutory in nature, that person must allege facts which clearly bring him or her within the prescribed requirements necessary to confer the right of action. (Sharp v. Sharp (1904), 213 Ill. 332, 72 N.E.2d 1058.) Furthermore, if the statute which gives rise to the cause of action also fixes a time period for commencing the action, then the prospective plaintiff must likewise affirmatively allege that he or she filed the complaint within the period of time allowed. (Hartray v. Chicago Rys. Co. (1919), 290 Ill. 85, 124 N.E.2d 849.) As the Hartray court noted, \"[s]ince the right of action for death by wrongful act is wholly statutory and must be taken with all the conditions imposed upon it, the burden being upon the plaintiff to bring himself within the requirements of the statute, it is almost universally held that a provision in the statute creating the right, requiring an action thereon to be brought within a specified time, is more than an ordinary statute of limitations and goes to the existence of the right itself. It is a condition attached to the right to sue at all. [Citations.]” Hartray, 290 Ill. at 86.\nThe court in Hartray further explained that in these cases it is incumbent upon the plaintiff to state facts showing that the action is timely because \"[u]nlike the general Statute of Limitations, this special statute creating the right and giving the remedy does not merely confer the privilege upon the defendant to interpose a definite time limitation as a bar to the enforcement of a distinct and independent liability, but it defines and limits the existence of the right itself.” (Hartray, 290 Ill. at 87.) Thus, although the defendant must raise a general statute of limitations as an affirmative defense, \"the reasoning that leads to that result as a matter of pleading has no application when, as in this case, the statute confers upon the plaintiff a peculiar right which, if not exercised, ceases to exist by its own limitations.” Hartray, 290 Ill. at 87.\nIn this case, the Open Meetings Act itself set forth the 45-day period of limitations, and thus the time in which to file is a condition of liability. Therefore, since plaintiffs’ cause of action necessarily exists subject to that limitation, plaintiffs must allege that they have filed their suit within the prescribed period. As such, defendants may properly challenge this complaint on the basis of late filing pursuant to section 2 — 615 of the Code of Civil Procedure. (735 ILCS 5/2 — 615 (West 1992).) Accordingly, we assign no error to the circuit court’s dismissal of plaintiffs’ complaint with prejudice solely because defendants moved for dismissal under section 2 — 615.\nFor the foregoing reasons, we reverse the circuit court with regard to standing, affirm the circuit court with regard to the late filing, and therefore affirm the order of dismissal.\nReversed in part and affirmed in part.\nCOUSINS, P.J., and GORDON, J., concur.\nThe order of dismissal does not indicate the basis upon which the circuit court granted defendants’ motion to dismiss. Nor does the record on appeal contain a transcript of a hearing, if, in fact, the circuit court entertained oral argument. However, the parties addressed both substantive issues in their briefs before this court, and therefore we shall assume that the circuit court granted the motion upon each of the reasons raised by defendants.\nFor purposes of the Act, \" '[p]ublic body’ includes all legislative, executive, administrative or advisory bodies of the state, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.” 5 ILCS 120/1.02 (West 1992).\n\"Meetings” are defined in the Act as \"any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business.” 5 ILCS 120/1.02 (West 1992).\nPerhaps this explains why the courts in Illinois have previously reviewed cases where bodies politic have sued under the Act. (See, e.g., Board of Education of Community Unit School District No. 337 v. Board of Education of Community Unit School District No. 338 (1995), 269 Ill. App. 3d 1020, 647 N.E.2d 1019; Bromberek School District No. 65 v. Sanders (1988), 174 Ill. App. 3d 301, 528 N.E.2d 1336, appeal denied (1989), 124 Ill. 2d 553, 535 N.E.2d 912; Board of Education of Community Unit School District No. 300 v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054.) However, the issue of standing was not raised in any of these cases; hence, they offer little by way of precedence in resolving the matter before this court.\nAccord Schwab v. Ariyoshi (1977), 58 Haw. 25, 35, 564 P.2d 135, 141 (\"[a] statutory definition of a thing as 'including’ certain things does not necessarily impose a meaning limited to the inclusion”), citing People v. Western Air Lines, Inc. (1954), 42 Cal. 2d 621, 638-39, 268 P,2d 723, 733; United States v. Gertz (9th Cir. 1957), 249 F.2d 662.\nThe fact that the Illinois Supreme Court denied leave to appeal in Safanda carries \"no connotation of approval or disapproval of the appellate court action, and signiffies] only that four members of [the supreme] court, for reasons satisfactory to them, have not voted to grant leave.” People v. Vance (1979), 76 Ill. 2d 171,183, 390 N.E.2d 867.\nAlthough it is not dispositive of the issue, we do note that the Safanda court incorrectly considered the discovery of the \"occurrence” of the meeting as controlling, rather than the discovery of a \"violation” of the Act. See 5 ILCS 120/3 (West 1992).\nThere are at least two reasons — in addition to the language of the statute — why the State’s Attorney alone should enjoy the equitable tolling of the limitation period until his or her discovery of a violation. First, it is doubtful that the State’s Attorney will be immediately aware of each and every meeting that does not comply with the requirements of the Act. Second, as previously noted, the State’s Attorney is authorized by statute to sue on behalf of all the people in this State. 55 ILCS 5/3 — 9005 (West 1992).\nThis assumes, of course, that the State’s Attorney has not had notice of a violation of the Act within the previous 45 days and has in the exercise of his discretion elected not to file suit.\nWe note that plaintiffs have not cited a single case which has made the equitable tolling of a limitations period contingent upon the \"discovery” by a third party, particularly where the third party is not a party to the litigation. This is not surprising, since the \"discovery rule” is intended to mitigate the harsh result which may occur where a plaintiff — not some third party— fails to discover all of the elements of his or her cause of action prior to the expiration of a statute of limitations."}
{"dedup_key":"pre1996-147117","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"40 ill-app-3d 819","case_name":"People v. Board of Education of District 170","court_level":"Appellate","appellate_district":null,"year":1976,"county":null,"appellate_docket":"75-285","circuit_docket":null,"published":1,"authoring_justice":"Rechenmacher","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Education of District 170 of Lee and Ogle Counties","requesting_party":"State's Attorney of Lee County","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether a school board violated the Open Meetings Act by holding a closed session to discuss employment contracts. The appellate court reversed the trial court's ruling, holding that the board's actions regarding employment compensation did not violate the Act's provisions as interpreted by the court.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=147117","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:45.981088","site_category":"Closed Sessions","date_decided":"1976-08-09","site_url":"/cases/pre1996-147117/","text_url":"/case-text/pre1996-147117.txt","full_text":"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOARD OF EDUCATION OF DISTRICT 170 OF LEE AND OGLE COUNTIES et al., Defendants-Appellants.\nSecond District (2nd Division)\nNo. 75-285\nOpinion filed August 9, 1976.\nE. E. Nicholas and Allen D. Schwartz, both of Robbins, Schwartz, Nicholas & Lifton, of Chicago, for appellants.\nPatrick Ward, State’s Attorney, of Dixon, for the People.\n\nMr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nOn October 24,1974, the State’s Attorney of Lee County filed a suit for declaratory judgment against the Board of Education of District 170 of Lee and Ogle Counties (Board) and its six members, asking the court to declare void and of no effect (1) a “closed executive session” of the Board held August 16, 1974, (2) a regular, open meeting held October 16,1974, and (3) employment contracts formally ratified on October 16, on the ground of defendants’ alleged violation of the so-called “Open Meetings Act” (entitled “An Act in relation to meetings, Ill. Rev. Stat. 1973, ch. 102, pars. 41-46). Defendants’ answer denied any violation. The controversy was presented to the trial court upon the pleadings and stipulation of facts entered into by the parties. On April 1, 1975, the trial court entered an order declaring that the Board acted in violation of the Act in having a closed session, and that the contracts ratified by the Board on October 16, 1974, were void and of no effect. On May 13 the trial court denied the defendants’ motion to vacate that order.\nThe stipulated facts can be summarized as follows: In late June and early July, 1974, the Board’s superintendent of schools prepared and delivered to the Board, pursuant to his “customary duties,” a wage and salary report covering various Board employees, including himself, who were not within the collective bargaining unit, which contained his recommendations as to salaries for such personnel for the school year 1974-75. The Board members decided not to act on his recommendation until after settlement of a collective bargaining agreement with the Dixon Teachers’ Association (Association). On August 16, the Association and the Board entered into mediation under the auspices of the office of the Superintendent of Public Instruction to settle their collective bargaining dispute. During mediation, held in executive session, the Board’s final offer was submitted to the “teacher team,” with a request “to reply by the next regular Board meeting August 21.” At the conclusion of the mediation session the Board agreed to meet in closed session on August 21, one hour prior to the regular meeting to continue their collective bargaining meeting, to discuss alternatives in the event of a negative response from the Association, and to discuss nonassociation salaries so that all salaries would be acted upon during the regular Board meeting if the Association’s response was affirmative.\nThe Board met in closed session on August 21 (prior to its regular public meeting) to discuss the collective bargaining matters. The Board’s “consensus” was that if the Association rejected the Board’s offer the Board would not discuss salaries at the open session. After a “general discussion on the salaries and suggestions” in the superintendent’s report and particularly of the job performance of the superintendent and assistant superintendents, the Board “reached a tentative concensus [sic] as to personnel retention and salaries for the ensuing school year.”\nAt the regular Board meeting immediately following that closed session, the Board was advised that the Association rejected the Board’s salary offer. The Board took no action on any salaries at that meeting.\nThereafter, the Board and the Association “went into fact finding to resolve their differences” and met with the “fact finder” on September 16, 1974, when written and oral testimony was presented. The fact finder’s report was filed with both parties on October 8, 1974.\nOn October 8, during the Board’s regular meeting it “approved contracts for non-association employees who are not certified,” i.e., secretaries, cafeteria workers and custodians. “No action was then taken on certified staff members, including Association members, nor on the salaries” of seven other named staff employees or those of “substitute teachers and tutors.”\nAt the Board’s regular meeting on October 16 the Association advised the Board of its acceptance of the Board’s salary offer. “At this meeting the Board took up the issues of salaries and approved a written contract with the * * * Association. After a discussion of the salaries of non-association certified personnel, the Board ” * ” passed, by an aye and nay vote, employment contracts for [the seven staff employees], and increased the pay for substitute teachers and tutors.”\nIn holding that the Board violated section 2 of the Open Meetings Act (ch. 102, par. 42) the court found that the Board held a closed meeting “for the purpose of setting the salaries of the employees,” and concluded that “recontracting with certain employees 000 is not a matter of employment as such, and the term employment does not encompass recontracting with existing employees.”\nSection 2 provides in pertinent part as follows:\n“All meetings of * * * school districts and all other 000 boards ° ° 0 of this State \" ” e shall be public meetings except for (a) collective negotiating matters between public employers and their employees or representatives, * * * .\n“This Section does not prevent any body covered by this Act from holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity, but no final action may be taken at a closed session.” (Ill. Rev. Stat. 1973, ch. 102, par. 42.)\nThe question presented in this case is whether the Board’s “general discussion” at its closed session of August 21 of the superintendent’s salary report and recommendations for the upcoming school year covering employees who were not within a coUective bargaining unit, and the Board’s having reached thereat a “tentative” consensus as to personnel retention and salaries, were in violation of the provisions of the Act. To answer the question we must construe the legislative intent of the provision of section 2 stating that it “does not prevent 000 holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer * * * but no final action may be taken at a closed session.”\nIn ascertaining this intent the entire statute must be considered, as weU as the evil to be remedied and the object to be attained; and in doing so words may be modified or supplied to carry out the purpose of the legislature. (People v. Bratcher, 63 Ill. 2d 534, 543.) In People ex rel. Oak Supply & Furniture Co. v. Department of Revenue, 62 Ill. 2d 210, 214-15, the supreme court said:\n“Legislative intent is not to be ascertained by a myopic concentration upon a single word, 000 and, as we said in Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561, * ° it wiU be presumed the legislature did not intend absurdity, inconvenience or injustice.’ ”\nSee also Chicago & Illinois Midland Ry. Co. v. Department of Revenue, 63 Ill. 2d 474, 484.\nThe second paragraph of section 2 of the Act (Ill. Rev. Stat. 1973, ch. 102, par. 42) permits closed sessions “to consider information regarding 000 employment * * * of an officer or employee,” and adds “but no final action may be taken at a closed session.” At the Board’s closed session on August 21, the defendants considered the superintendent’s wage and salary report of those of his staff, including substitute teachers and others, who were not represented by the coUective bargaining unit, i.e., Dixon Teachers’ Association. During most of the summer of 1974 the defendants were faced with the problem of the negotiation of a coUective bargaining agreement with the Association. On August 21 when they held their closed session they were awaiting a response from the Association on its acceptance or rejection of the “final offer” submitted by the Board after mediation was resorted to under the auspices of the Superintendent of Public Instruction. At that closed session the Board considered “information regarding * ° * employment” of its nonassociation personnel. Public disclosure of such information could well have adversely affected the collective bargaining efforts then in progress. Obviously, in making any final offer the Board would have to have some idea of the burdens on its budget of the compensation of all personnel, including those not represented by a collective bargaining unit, and the information and particulars regarding it. We therefore hold that their “general discussion” of such information at that closed session, and their “tentative” consensus regarding the retention and salaries of personnel, was not repugnant to nor inconsistent with the legislative intention. The defendant did not take any final action on such “general discussion” or “tentative” consensus at the closed session. It was not until the Board’s regular public meeting of October 8 when the Board approved contracts for nonassociation employees who were not certified, i.e., secretaries, cafeteria workers and custodians, and not until its regular public meeting of October 16 (after being notified of the acceptance by the Association of the Board’s salary offer), that a public “discussion” was held of the salaries of other nonassociation personnel that “the Board passed, by an aye or a nay vote” the employment contracts of 7 staff employees and “increased the pay of substitute teachers and tutors”.\nWe reject as “absurd” the construction of the word “employment” urged by the State, to mean only “initial hiring” of an employee. In Webster’s Third New International Dictionary the word “employment” is defined as “[t]he act of employing someone * * * or the state of being employed 0 * * .” In Ballentine’s Law Dictionary (3d ed. 1969) “employment” is defined as “[t]he act of employing or being employed ” * * . This comprehends [for purposes of the Social Security Act] not only work actually done, but the entire employer-employee relationship for which compensation is paid 0 ° 0 .” The normal import of the word “employment” comprehends renewal or continuance of employment as well as compensation. In the recent case of Chicago & Illinois Midland Ry. Co. v. Department of Revenue, 63 Ill. 2d 474, 481, the supreme court cited with approval the following statement in People ex rel. Carruthers v. Cooper, 404 Ill. 395, 400:\n“ ‘The function of this court is to construe the statute in accordance with the normal import of the words used ***.’”\nFor the reasons stated in this opinion the judgment of the circuit court of Lee County is reversed.\nJudgment reversed.\nT. J. MORAN, P. J., and DIXON, J., concur.\nIndeed, as the stipulation shows, the Association rejected the Board’s “final” salary offer at the regular Board meeting of August 21 (following the closed session), and both sides “went into fact finding.”"}
{"dedup_key":"pre1996-115376","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"100 ill-app-3d 1008","case_name":"WSDR, Inc. v. Ogle County","court_level":"Appellate","appellate_district":"2nd","year":1981,"county":null,"appellate_docket":"81-267","circuit_docket":null,"published":1,"authoring_justice":"Lindberg","statute":["OMA"],"exemptions_cited":[],"public_body":"Ogle County Board","requesting_party":"WSDR, Inc.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Open Meetings Act requires public bodies to conduct votes openly rather than by secret ballot. While the court affirmed the order for disclosure of the votes, it noted that the Act does not provide for the invalidation of official actions taken during meetings that violate the statute.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=115376","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:46.572530","site_category":"Meeting Conduct & Participation","date_decided":"1981-10-15","site_url":"/cases/pre1996-115376/","text_url":"/case-text/pre1996-115376.txt","full_text":"WSDR, INC., et al., Petitioners-Appellees, v. OGLE COUNTY, Respondent-Appellant.\nSecond District\nNo. 81-267\nOpinion filed October 15,1981.\nDennis Schumacher, State’s Attorney, of Oregon (Kevin Corr, Assistant State’s Attorney, of counsel), for appellant.\nThomas Kavadas, Jr., of Pignatelli and Kavadas, of Sterling, for appellees.\n\nMr. JUSTICE LINDBERG\ndelivered the opinion of the court:\nRespondent, Ogle County Board (Board), appeals from a writ of mandamus of the Circuit Court of Ogle County ordering that its members at the next regular or adjourned session announce publicly for whom they voted in the election for county board chairman held on December 1, 1980. We affirm.\nOn December 1, 1980, the Board held an organizational meeting including the election of a Board chairman. Two members of the Board had been nominated for the position, William Motter and Robert Gingerich. Following the nominations there was a motion that the vote be by written ballots, which motion was approved by voice vote.\nThe vote of each individual member was by secret written ballot. William Motter was elected chairman by a vote of 14 to 10. He took office and is currently serving a two-year term. All activities, procedures, discussions and motions of the Board occurred in public and in the presence of several news media personnel.\nThe issue presented for review, which appears to be one of first impression, is whether the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 41 et seq.) was violated by the Ogle County Board when it elected its chairman by secret written ballot. Section 1 of the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 41) states:\n“It is the public policy of this State that the public commissions, committees and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.”\nThe provision of the statute which follows this statement of public policy offers greater specificity wherein it provides in relevant part in section 2:\n“All meetings of any legislative 600 bodies of the 000 counties * * 0 which are supported in whole or in part by tax revenue, or which expend tax revenue shall be public meetings * e (Ill. Rev. Stat. 1979, ch. 102, par. 42.)\nThereafter follow numerous specific exceptions of which county board organizational meetings or election of officers is not included.\nA secret ballot for the election of chairman of the county board is the antithesis of an open meeting even though the vote was conducted in the presence of the public. The chairman wields significant public and political power. The person to whom each of the representatives of the public delegates that power can be highly indicative to their voters and the public of the quality of their public service.\nThe respondent contends that the chairman of the board can be elected by secret ballot by all the voters under section 7 of “An Act relating to the composition and election of county boards * * °” (Ill. Rev. Stat., 1980 Supp., ch. 34, par. 837). We are asked to find an analogy between a general election of county board chairman by the voters at large and a secret ballot cast by the elected representatives. The analogy fails. If the Board desires to have its chairman elected at large by the public at an election it can pass the appropriate resolution pursuant to the new statute cited above. Until that issue is properly presented and approved, the board members stand as representatives of the district from which they were elected and are bound by the provisions of the Open Meetings Act.\nThe respondent indicated that its purpose in selecting a secret ballot was to avoid subsequent antagonism between the board members. The Board reasoned that its members could work more harmoniously if their differences as to choices for chairman were secret. However, this admirable goal ignores the principles of a representative democracy. The voters who elected these board members are no longer in a position to judge the competency of their representatives. The Attorney General of Illinois in 1975 addressed this problem. He stated in pertinent part:\n“I understand that secret balloting serves to protect public officials from criticism and that this may have been the reason for the secret ballot in this case. However, public officials are subject to criticism for action they take in fulfilling their duties as public officials and anyone who undertakes a public office or membership on a public body should be aware that his actions will be subject to criticism. Anyone who is unwilling to subject himself to such criticism by the public should not accept public office or membership of a public board. The public has a right to know how their public officials and representatives vote on issues, not only so they may try to persuade them to change their position or congratulate them on actions they have taken, but also that they may have the necessary information to decide whether they want to retain that person in public office. Secret voting by members of public bodies, can only contribute to further deterioration of public confidence in government and undermine the very bases of representative democracy.” (1975 Ill. Op. Att’y Gen. 138-39.)\nAlthough the precise issue in this case is one of first impression, concern over board elections by secret ballot was articulated as early as 1933. The Attorney General of Illinois in that year stated in relevant part:\n* * If the board can secretly elect a chairman, they can take secret action on other matters and they are numerous, other than the appropriation of money. Of what avail is an open door to the public if the proceedings are secret. The eye can see, the ear can hear, but secrecy conceals all. It is no advantage to the citizen to see a member write a name secretly on a ballot unless he is privileged to read what is thereon written. If the vote were taken by whispering in tones so low the attending citizen could not hear, how would he know what was being done. If no record is made of how the individual members vote, of what avail is the statute providing for a meeting with open doors.” (1933 Ill. Op. Att’y Gen. 335.)\nWhile the opinion of the Attorney General may not be binding on this court, it is persuasive. (Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 292, 134 N.E.2d 292; Long v. Long (1957), 15 Ill. App. 2d 276, 145 N.E.2d 509.) In the absence of judicial authority on point we choose to follow the policy considerations expressed by these two opinions.\nAccordingly, we agree with the trial court’s conclusion that the secret ballot for the election of the Ogle County Board Chairman taken on December 1, 1980, was in violation of the public policy of this State as well as its statutory enactment under the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 41 et seq.). While the election was in violation of the law we need not invalidate it. The Open Meetings Act does not allow the court to invalidate official actions taken at proceedings held in a manner violative of the Act. This court in In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 66, 385 N.E.2d 67, 71, stated:\n“However, although the open meetings act provides for the issuance of a mandamus to compel meetings to be open and even provides criminal penalties, under some circumstances, for public office holders who refuse to comply with the act, nothing in the act or elsewhere, invalidates official actions taken at proceedings held in a manner violative of the open meetings act.”\nSee Board of Education v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054.\nWe conclude that even though the election should not be invalidated public interest can still be served by a disclosure by the individual board members of their vote on December 1, 1980. In People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 531, 332 N.E.2d 649, 655, we stated:\n“However, even where the relief sought in a petition for mandamus becomes moot it does not necessarily follow that the cause should be dismissed when the issues presented are of substantial public interest.”\nIn view of the foregoing considerations, the judgment of the Circuit Court of Ogle County is affirmed.\nAffirmed.\nSEIDENFELD, P. J„ and HOPF, J., concur."}
{"dedup_key":"pre1996-119984","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"127 ill-app-3d 413","case_name":"Lindsey v. Board of Education of the City of Chicago","court_level":"Appellate","appellate_district":"1st","year":1984,"county":null,"appellate_docket":"84-1869","circuit_docket":null,"published":1,"authoring_justice":"Linn","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Education of the City of Chicago","requesting_party":"Earlean Lindsey","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that a trial court's preliminary injunction against the Board of Education was overbroad because it prohibited the Board from exercising its lawful power of appointment. The court clarified that while the Open Meetings Act allows for the voiding of final actions taken in violation of the Act, it does not authorize a blanket injunction against future lawful meetings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=119984","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:46.620246","site_category":"Meeting Conduct & Participation","date_decided":"1984-09-12","site_url":"/cases/pre1996-119984/","text_url":"/case-text/pre1996-119984.txt","full_text":"EARLEAN LINDSEY, Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants-Appellants.\nFirst District (4th Division)\nNo. 84—1869\nOpinion filed September 12, 1984.\nPatricia Whitten, of the Board of Education of the City of Chicago, and C. Richard Johnson, Hugh R. McCombs, Jr., Steven R. Gilford, Denise L. Jarrard, and Janice S. Loughlin, all of Isham, Lincoln and Beale, both of Chicago, for appellants.\nPatrick A. Lucansky, James P. Bartley, Terrence M. Barnicle, and Michael J. Duggan, all of Klein, Thorpe and Jenkins, Ltd., of Chicago, for appellee.\nRichard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and David S. Allen, Assistant State’s Attorneys, of counsel), for intervenor-appellee People of the State of Illinois.\n\nPRESIDING JUSTICE LINN\ndelivered the opinion of the court:\nDefendant ad hoc committee, created by and composed of members of defendant Board of Education of the city of Chicago (Board) for the purpose of negotiating an employment contract for the position of general superintendent of schools with Dr. Hanford Byrd, called a special meeting on July 25, 1984, to effectuate its purpose. Public notice of this meeting was posted less than 24 hours prior to the meeting, in alleged contravention of the general notice provision of the Illinois Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 42.02(a)).\nPlaintiff, Earlean Lindsey, filed a complaint and emergency motion for injunction, asking the court to enjoin defendants from continuing the July 25 meeting and from future violations of the Act.\nThe trial court issued a preliminary injunction, enjoining the Board from “appointing anyone,” and specifically Dr. Byrd, to the position of general superintendent pending a full hearing on the merits.\nDefendants filed an interlocutory appeal, praying that the preliminary injunction be vacated.\nWe vacate the preliminary injunction.\nFactual And Procedural Background\nOn July 23, 1984, the Board voted not to reappoint Dr. Ruth Love as general superintendent of schools but rather to negotiate with Dr. Hanford Byrd, Jr., to assume the position at the conclusion of Dr. Love’s term in March 1985. The president of the board appointed a three-member ad hoc committee for the purpose of negotiating with Dr. Byrd the terms and conditions of the proposed contract.\nOn July 25, 1984, the chairman of the ad hoc committee called a special meeting to convene at 3:30 p.m. on that same afternoon. Public notice of this special meeting was not posted at the Board’s office until the morning of July 25, the same day the meeting was to take place. The notice did not name Dr. Byrd as the offeree of the proposed contract but stated only that the agenda of the meeting was to consist of “discussion re Contractual Agreement/General Superintendency.” Some four hours before the meeting was scheduled to begin, telephone notice was given to select community organizations and members of the news media.\nWhen the meeting convened at 3:30 p.m., the committee voted to go into closed session to discuss “personnel matters.” When it came out of closed session, it voted to reconvene the following day. Subsequent to the adjournment of that session, one of the committee members announced to the news media that the two members of the committee who had been present at the meeting were in substantial agreement with Dr. Byrd as to the terms of the proposed contract. •\nOn July 26, while the reconvened committee meeting was in progress, plaintiff, Earlean Lindsey, filed a complaint and emergency motion for injunction, alleging that the July 25 meeting was held in violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1983, ch. 102, pars. 41 through 46) and asking, inter alia, that the circuit court enjoin the Board, the ad hoc committee, and the individual committee members from continuing the July 25 meeting and from continuing to violate the Act.\nA hearing on plaintiff’s complaint and motion for injunction was held before the Honorable Joseph Wosik on the afternoon of July 26. Instead of filing a verified answer, defendants filed a motion for summary judgment, asserting that the “volatile situation that was developing in the community,” based on the belief that Dr. Byrd was not being considered as Dr. Love’s successor, had given rise to an emergency such as to trigger the emergency notice provision of the Open Meetings Act, which dispenses with the 24-hour notice requirement and requires only that notice be given “as soon as practicable.” (Ill. Rev. Stat. 1983, ch. 102, par. 42.02(a).) Alleging the existence of an emergency and that the facts were undisputed, defendants moved for summary judgment in their favor.\nAt a hearing held on July 27, after allowing both parties an opportunity to be heard, the court found that the issue of whether an emergency had existed such as to dispense with the 24-hour notice requirement was a factual one, mandating a full hearing on the merits. So finding, the court denied defendants’ motion for summary judgment. In response to plaintiff’s complaint and motion, the court issued an order that provided in paragraph 5 the following preliminary injunction:\n“5. A preliminary injunction is issued against the Board of Education enjoining them from appointing anyone to the position of General Superintendent of Schools and specifically enjoining them from appointing Manford Byrd, Jr. until the Court has had a full hearing in this matter.”\nAt the same hearing, the trial court granted the State’s Attorney of Cook County leave to file its motion to join as plaintiff-intervenor, denied defendants’ request to stay the order, and continued the matter for hearing to August 2,1984.\nOn August 1, 1983, one day before hearing of the matter was set to continue, defendants filed a verified answer stating, inter alia, that on July 31, 1984, the president of the board announced that the ad hoc committee had been dissolved and that all future discussions of the general superintendency would be conducted by the Board as a whole at meetings noticed in accordance with the nonemergency procedures of the Open Meetings Act. In its answer, defendants admitted that public notice of the July 25 meeting was not given at least 24 hours before the meeting, but denied that the notice given was not otherwise in the manner and form required by the Act. Defendants neither admitted nor denied the allegation that the July 25 meeting of the ad hoc committee was held in violation of the Open Meetings Act.\nThe parties next appeared before Judge Wosik on August 2, 1984, at which time defendants sought leave to file a verified motion to dissolve paragraph 5 of the July 27 order and to file a motion for judgment on the pleadings. At this same hearing, Dr. Alice Blair petitioned the court for leave to intervene and moved for a temporary restraining order to issue against defendants, alleging that they had violated the Open Meetings Act and had denied her her right to apply for the position of general superintendent, in violation of the Board’s announced policy.\nFinding that the parties had not been given adequate time to consider and respond to these various motions, the court did not hear argument on the merits. In its order entered August 2, 1984, the court granted the State’s Attorney leave to intervene and granted Dr. Blair leave to file her petition for intervention. The court also granted defendants leave to file their motion to dissolve paragraph 5 of the July 27 order, their motion for judgment on the pleadings, and time to file any written objections they might have to Dr. Blair’s intervention petition. The court further granted plaintiff until August 10 to respond to defendants’ motions, left the July 27 order in full force and effect, and set the matter for a hearing on the merits on August 17,1984.\nOn August 3, 1984, defendants, pursuant to Supreme Court Rule 307(a)(l)(73 Ill. 2d R. 307 (a)(1)), filed this interlocutory appeal.\nSubsequent to the filing of the notice of appeal, on August 7, 1984, the Board filed an emergency motion to dissolve the preliminary injunction and a motion for entry of an agreed order. The agreed order suggested an agreement between the State’s Attorney and the Board in which a judgment would be entered, stating that the ad hoc committee had been dissolved and that the Board would henceforth comply with the 24-hour notice requirement set forth in the Open Meetings Act. The trial court declined to hear either of these motions on the grounds that it lacked jurisdiction.\nWith this factual and procedural background before us, we consider defendants’ interlocutory appeal.\nOpinion\nSupreme Court Rule 307(a)(1) provides for interlocutory appeals as of right from orders “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (73 Ill. 2d R. 307(a)(1).) The purpose of this rule is to permit interlocutory review of the trial court’s exercise of its equitable discretion and to prevent the abuse of that discretion by assuring that the order issued was necessary to maintain the status quo and preserve the rights of the parties. (Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 415 N.E.2d 625.) An appeal allowed under Rule 307 does not open the door to a general review of all orders entered by the trial court in the underlying case (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316), nor does it divest the trial court of jurisdiction to hear and determine matters in the pending litigation which arise independently of the interlocutory order at issue (Home Savings & Loan Association v. Samuel T. Isaac & Associates, Inc. (1981), 99 Ill. App. 3d 795, 425 N.E.2d 985). The effect of the filing of a notice of appeal is, however, to restrain the trial court from either changing or modifying the order as entered. Home Savings & Loan Association v. Samuel T. Isaac & Associates, Inc. (1981), 99 Ill. App. 3d 795, 425 N.E.2d 985.\nApplying this law to the instant case, we note that because the July 27 order issued by Judge Wosik granted a preliminary injunction against defendants, it falls within the purview of Rule 307(a)(1), which provides for interlocutory appeals as of right. Accordingly, this appellate court has jurisdiction to review this matter. The jurisdiction of this court attached immediately upon defendants’ filing of the notice of appeal on August 3, 1984. From that time on, the trial court was without jurisdiction to take any further action in regard to the interlocutory order granting injunctive relief. All proceedings instituted in the trial court subsequent to August 3 which had as their subject the preliminary injunction were therefore improperly brought. Judge Wosik’s refusal to hear defendants’ emergency motion to dissolve the preliminary injunction and motion for entry of an agreed order, both filed several days after the notice of appeal, was therefore proper.\nHaving thus determined our jurisdiction to hear this interlocutory appeal, we must determine the scope of our review. The only question before a reviewing court on interlocutory appeal is whether there was a sufficient showing made to the trial court to sustain its order granting or denying the relief sought. (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 437 N.E.2d 26.) As an appellate court, we look to the sufficiency of the evidence, not to determine controverted rights or to decide the merits of the case, but only for the limited purpose of ascertaining whether the trial court has abused its discretion in entering the interlocutory order. (G.A. Carney, Ltd. v. Brzeczek (1983), 117 Ill. App. 3d 478, 453 N.E.2d 756.) Thus, the merits of this case, namely, whether there has been a violation of the Open Meetings Act, are not before us. The sole issue on appeal is whether the trial court, in issuing the preliminary injunction contained in paragraph 5 in the order of July 27, abused its discretion. For the reasons that follow, our judgment is that in issuing the injunctive relief, as granted, the concerned trial court erred.\nA preliminary injunction is an extraordinary remedy, to be granted with the utmost care only after plaintiff has established by a preponderance of evidence (1) the existence of a protectable right, (2) irreparable harm should the injunction not be forthcoming, (3) no adequate remedy at law, and (4) a likelihood of success on the merits. (G.A. Carney, Ltd. v. Brzeczek (1983), 117 Ill. App. 3d 478, 453 N.E.2d 756.) In showing likelihood of success on the merits, the plaintiff is not required to make out a case which will in all events warrant relief at a final hearing; petitioner need only raise a fair question as to the existence of the right claimed. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418.) A preliminary injunction serves the purpose of preserving the status quo until the trial court can consider the case on its merits. (Hill v. Village of Pawnee (1973), 16 Ill. App. 3d 208, 305 N.E.2d 740.) The status quo is the last, actual, peaceable, uncontested status that preceded the pending controversy. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.\nAt the time the trial court issued the July 27 order containing the preliminary injunction, it had before it plaintiff’s verified complaint, a copy of the notice posted at the Board’s office on July 25, defendants’ motion for summary judgment, and plaintiff’s response to defendants’ motion.\nIn addition to the pleadings and documents considered by the trial court in determining whether to issue the preliminary injunction, a hearing was held on July 27, 1984. The record clearly shows that at this hearing both parties had an opportunity to and did present argument regarding the issuance of the preliminary injunction as well as defendants’ motion for summary judgment. Nevertheless, the Board objects that the injunction was issued without an evidentiary hearing and that a preliminary injunction cannot be entered without reaching the merits when an answer has been filed.\nIn response to the Board’s contention, we note that a trial court is given wide discretion with respect to the kind and extent of hearing on a motion for preliminary injunction. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 445 N.E.2d 418.) We note that while an evidentiary hearing on an application for a preliminary injunction is generally required where a verified answer has been filed denying material allegations in the complaint (Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 453 N.E.2d 740), here, defendants had filed no verified answer prior to the issuance of the preliminary injunction. What defendants had filed was a motion for summary judgment, clearly asserting that there were no genuine issues as to any material facts presented in plaintiff’s complaint. A prior evidentiary hearing is required only where questions of material fact exist. (Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484.) Where, as here, the trial court has been presented not with a verified answer that denies material allegations in the complaint, but rather with a motion for summary judgment, explicitly claiming that no genuine issue of material fact exists, it is not manifestly erroneous for that court to hold some kind of hearing which is not evidentiary in nature.\nMoreover, while the trial court did find that a factual issue existed, namely, whether an emergency had triggered the emergency notice provision of the Open Meeting Act such as to dispense with the necessity of 24-hour notice, the court noted that that issue was not presented as a factual denial or even as a factual defense but rather as a conclusory sentence in defendants’ summary judgment motion. Because this factual issue was at the core of the merits of the underlying dispute, the trial court set the matter for a full hearing on August 17, 1984, a specified date in the immediately foreseeable future. (Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 442 N.E.2d 633.) Thus, in accordance with the prohibitions set forth in Bullard v. Bullard (1978), 66 Ill. App. 3d 132, 383 N.E.2d 684, a case relied on by defendants, the trial court did not grant the injunction for an indefinite period of time and refuse to hold hearings on the propriety of its actions. The trial court plainly set forth in its order of July 27 that the preliminary injunction would remain in place only “until the Court has had a full hearing in this matter.” And, at the August 2 hearing, when defendants’ verified answer was first presented to the court, the court set the matter for a full hearing to be held shortly thereafter. For these reasons, the trial court’s failure to hold an evidentiary hearing prior to the issuance of the preliminary injunction or upon the filing of the verified answer was not manifestly erroneous.\nIn addition to the pleadings and motions the trial court had before it prior to ruling on plaintiff’s complaint for injunctive relief, the court had before it the critical provisions of the Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, pars. 42 through 46), which provide in pertinent part as follows:\n“Sec. 2.02(a). ***\n(a) *** Public notice of any special meeting except a meeting held in the event of a bona fide emergency, or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 24 hours before such meeting ***.”\n“Sec. 3. (a) Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncomplianee may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged non-compliance has occurred or is about to occur ***\n* * *\n(c) The court, having due regard for orderly administration and the public interest *** may grant such relief as it deems appropriate, including *** granting an injunction against future violations of this Act, ordering the public body to make available to the public such portion of the minutes of a meeting as is not authorized to be kept confidential under this Act, or declaring null and void any final action taken at a closed meeting in violation of this Act.”\nConsidering these statutory provisions, the transcript of proceedings of the July 27 hearing, the pleadings, and the motions and responses to motions that the trial court had before it, we cannot find that the trial court’s determination that plaintiff made a sufficient showing to warrant issuance of the relief sought was manifestly erroneous.\nThe relief sought was not, however, the relief granted. Thus, while there may have been a sufficient showing to sustain the order of the trial court granting the relief sought, where, as here, there is a discrepancy between the relief sought and the relief granted, this reviewing court must determine whether the relief as granted was a proper exercise of the trial court’s discretionary power. (Home Savings & Loan Association v. Samuel T. Isaac & Associates, Inc. (1981), 99 Ill. App. 3d 795, 425 N.E.2d 985.) In this instance, we find that it was not.\nPlaintiff, in her complaint for injunction, prayed as follows:\n“1. That the Court may immediately enter an injunction order pursuant to Section 43 of Chapter 102 Illinois Revised Statutes, (or a preliminary injunction pursuant to 11 — 102 of the Code of Civil Procedure) commanding Defendants and each of them to Desist and Refrain from continuing the July 25th meeting of the Ad-Hoc Committee, and to cease and refrain from any future violations of the provision of the Open Meetings Act.”\nPlaintiff, in her emergency motion for injunction, moved for essentially the same relief. Despite this narrow prayer, the trial court, in paragraph 5 of its July 27 order, gratuitously enjoined the Board from “appointing anyone” to the position of general superintendent of schools and specifically enjoined the appointment of Dr. Byrd.\nThe issuance of a preliminary injunction is not proper where it tends to alter the status quo of the parties rather than preserve it. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.) Courts are to exercise caution in issuing preliminary injunctions, especially where defendants seek to exercise a lawful right. (Knuppel v. Adams (1973), 12 Ill. App. 3d 708, 298 N.E.2d 767.) Accordingly, the general rule is that injunctive relief will not be granted against public officials with respect to their official acts unless such acts are either outside their authority or unlawful. Rocke v. County of Cook (1978), 60 Ill. App. 3d 874, 377 N.E.2d 287.\nIn the case at bar, plaintiff prayed for the trial court to generally enjoin defendants from continuing to violate the Open Meetings Act and to specifically enjoin them from continuing the July 25 meeting. Such relief would have been duly authorized under section 3(c) of the Open Meetings Act, which empowers the court to grant injunctions against future violations thereof. (Ill. Rev. Stat. 1983, ch. 102, par. 43(c).) However, rather than issuing a narrowly drawn injunction conforming to the relief authorized by the Open Meetings Act and to the general law governing the issuance of injunctive relief against public officials, the trial court issued an overly broad order, enjoining the Board not from the continuance of unauthorized or unlawful acts but rather from the lawful exercise of its statutorily delegated power. (Ill. Rev. Stat. 1983, ch. 122, par. 34—6.) In so doing, the trial court unnecessarily and impermissibly altered the status quo.\nAny prior violation of the Open Meetings Act by defendants cannot prevent the Board from calling a subsequent meeting, noticed in full compliance with the requirements of the Act, and there taking identical action. Should a superintendent be appointed at such a subsequent closed meeting, and should that meeting later prove to be violative of the Act, the court would then be authorized to exercise the power granted to it under section 3(c) and void such final action. (Ill. Rev. Stat. 1983, ch. 102, par. 43(c).) We find, however, that the broad prohibition set forth in the preliminary injunction far exceeds both the letter and the intent of the Open Meetings Act.\nFor all of the foregoing reasons, we find that the equitable relief granted against defendants in paragraph 5 of the July 27 order was overbroad and an unwarranted encroachment on the Board’s lawful power of appointment. Accordingly, we vacate paragraph 5 of the July 27 order and return the matter to the trial court for such further proceedings as may be required.\nVacated and remanded.\nJOHNSON and ROMITI, JJ., concur."}
{"dedup_key":"pre1996-142011","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"269 ill-app-3d 1020","case_name":"Board of Education of Community Unit School District No. 337 v. Board of Education of Community Unit School District No. 338","court_level":"Appellate","appellate_district":null,"year":1995,"county":null,"appellate_docket":"3-94-0422","circuit_docket":null,"published":1,"authoring_justice":"Breslin","statute":["OMA"],"exemptions_cited":[],"public_body":"Regional Board of School Trustees of Hancock/McDonough Counties","requesting_party":null,"disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Regional Board of School Trustees did not violate the Open Meetings Act regarding notice requirements for a rescheduled meeting. The court found that the Board provided sufficient public notice and that the petitioner failed to demonstrate any prejudice resulting from the change in meeting time.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=142011","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:46.652955","site_category":"Meeting Notices & Agendas","date_decided":"1995-02-10","site_url":"/cases/pre1996-142011/","text_url":"/case-text/pre1996-142011.txt","full_text":"BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT No. 337, Hancock, McDonough, Adams and Schuyler Counties, et al., PlaintiffsAppellants, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT No. 338, Hancock County, et al., Defendants-Appellees (Regional Board of School Trustees of Hancock/McDonough Counties et al., Petitioners; Ralph Grimm et al., Petition Supporters; David Roberts, Petition Objector).\nThird District\nNo. 3—94-0422\nOpinion filed February 10, 1995.\nRehearing denied April 18, 1995.\nJames A. Rapp, of Hutmacher, Rapp & Ortbal, P.C., of Quincy, for appellants.\nDavid M. Smith, of Springfield, for appellee Regional Board of School Trustees of Hancock/McDonough Counties.\nSamuel Naylor VI, State’s Attorney, of Carthage, appellee pro se.\nDavid Roberts, of Plymouth, appellee pro se.\n\nJUSTICE BRESLIN\ndelivered the opinion of the court:\nThe Board of Education of Community Unit School District No. 337 (Southeastern) appeals from a circuit court order which affirmed an administrative order of the Regional Board of School Trustees of Hancock / McDonough Counties (Regional Board or Board). The Regional Board’s order granted a petition to detach certain territory from Southeastern for annexation to Community Unit School District No. 338 (District 338). Southeastern raises the following issues on appeal: (1) whether the detachment petition was a successive petition filed in violation of section 7 — 8 of the School Code (105 ILCS 5/7 — 8 (West Supp. 1993)); (2) whether the Regional Board’s decision to grant the detachment petition was against the manifest weight of the evidence; and (3) whether alleged procedural errors by the Regional Board constitute reversible error. For the reasons that follow, we affirm.\nFACTS\nThe detachment petition at issue in this case was filed on February 11, 1993. It affected 10 students in a territory of approximately 5,635 acres. The territory’s assessed valuation was $459,610, which constituted 2% of Southeastern’s total assessed valuation. If passed, the detachment would allow the affected students to attend a District 338 school in Carthage, Illinois.\nThe Regional Board convened a hearing on the petition on April 5, 1993. Nine parents of affected students testified in support of the petition. The primary reasons they gave for favoring detachment were the availability of day care in Carthage, Carthage’s proximity to U.S. Route 136, the availability of extracurricular activities at Carthage schools, and the availability of medical attention in Carthage. One parent testified that his property values suffered because his property was located within Southeastern’s borders.\nTerry Robertson, Southeastern’s superintendent, testified in opposition to the petition. Robertson disclosed that Southeastern was in the process of accommodating territory it acquired in 1992 when the Plymouth school district dissolved. The majority of the territory in this detachment petition included property acquired in the Plymouth dissolution. Southeastern had assumed Plymouth’s debt obligations upon Plymouth’s dissolution. Robertson argued that Southeastern should be given the opportunity to adjust to the Plymouth dissolution without having to face the effects of a detachment. On cross-examination, Robertson admitted that the detachment would not threaten Southeastern’s recognition status or cause the district to lay off teachers.\nAt the close of evidence, the Regional Board voted to grant the petition. In its written order the Board found that proximity to U.S. Route 136 and to medical attention favored detachment. It also found that the detachment would not threaten Southeastern’s recognition status and that the 2% drop in assessed valuation would not threaten the district’s financial stability. The Board found further that the detachment would favor the territory’s property values and would limit disruptions to the affected parents’ workplaces.\nSoutheastern then filed a request for rehearing along with a motion to dismiss the detachment petition. The basis for the motion to dismiss was that the petition was a successive petition brought in violation of section 7 — 8 of the School Code. Section 7 — 8 generally prohibits consideration of a detachment petition involving the same territory that was involved in a petition that was denied within the previous two years. It was disclosed that a detachment petition was filed with the Regional Board in August of 1991 to detach territory from the then-existing Plymouth school district for attachment to District 338. That petition, which was denied, affected 16 students in a territory consisting of approximately 7,480 acres. The territory’s assessed valuation was $734,234, which was 8% of Plymouth’s total assessed valuation. The subject territory of the 1993 petition was contained within the subject territory of the 1991 petition.\nBoth parties submitted written arguments on section 7 — 8’s applicability and the Regional Board heard oral arguments on June 3, 1993. After hearing arguments, the Board voted to deny the request for rehearing and the motion to dismiss. Southeastern then requested an opportunity to make an offer of proof of the evidence it would submit at a rehearing. The Board refused that request as well.\nSoutheastern sought administrative review in the circuit court of Hancock County. The court affirmed the Regional Board in all respects. It first found that the 1993 petition was not barred under the terms of section 7 — 8. The court ruled that although the petition did fall within section 7 — 8’s purview, the 1993 petition was substantially different from the 1991 petition, thereby bringing the 1993 petition within an exception to section 7 — 8’s two-year ban. In support of this ruling the court noted that the 1991 petition was brought against Plymouth, not against Southeastern, and that the 1993 petition sought detachment of territory that was smaller in terms of land, assessed valuation, and number of affected students than the territory involved in the 1991 petition.\nThe trial court also ruled that the Regional Board’s decision to grant the detachment petition was supported by the evidence and that the Regional Board’s alleged procedural errors did not warrant remand. This appeal followed.\nSTANDARD OF REVIEW\nThe Regional Board’s orders are administrative decisions for purposes of the Administrative Review Law. (See 105 ILCS 5/7 — 7 (West 1992).) Accordingly, our scope of review extends to all questions of law and fact presented by the record. The factual findings of an administrative agency are held to be prima facie true and correct. (735 ILCS 5/3 — 110 (West Supp. 1993).) However, where the findings of fact are against the manifest weight of the evidence and it is clearly evident that the board should have reached the opposite conclusion, the reviewing court may reverse the agency’s findings of fact. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 554 N.E.2d 155.) The courts need not defer to the administrative agency’s decisions on questions of law, such as the proper interpretation of a statute. City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 538 N.E.2d 1146.\nSUCCESSIVE PETITION ISSUE\nSoutheastern argues first that section 7 — 8 of the School Code barred the Regional Board from considering the 1993 detachment petition. Before addressing the merits of this argument, we must first consider a related procedural issue. Southeastern contends that remand is necessary because the Regional Board failed to consider section 7 — 8’s applicability and because the trial court resolved the issue without first remanding to the Board for relevant findings. We do not agree that the Board never considered section 7 — 8’s applicability. Moreover, we find that the trial court was sufficiently apprised of the relevant factors to render effective judicial review of this issue.\nThe record does not show that the Regional Board failed to consider the successive petition issue. Terry Robertson raised the issue on Southeastern’s behalf at the April 5,1993, hearing. The Board also considered written and oral arguments on the issue before denying the motion to dismiss. Thus, even though the Regional Board did not make an explicit finding, it is obvious that the Board considered the matter and found that section 7 — 8 did not bar consideration of the 1993 petition.\nAn administrative agency need not make extensive findings of fact in detachment and annexation proceedings. (Dresner v. Regional Board of School Trustees (1986), 150 Ill. App. 3d 765, 501 N.E.2d 983.) The orders issued in such proceedings need only contain sufficient findings to permit adequate judicial review. (Board of Education of Community Unit School District No. 300 v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054.) In this case the facts relevant to the successive petition issue {e.g., the substance and dates of the petitions) were not in dispute. Moreover, section 7 — 8’s applicability is a question of law, and the trial court was not constrained to accept the Board’s legal conclusions. Therefore, the Board’s failure to make explicit findings did not impair the trial court’s ability to determine whether section 7 — 8 barred the 1993 petition.\nWe now turn to the merits of the successive petition issue. Section 7 — 8 provides in relevant part:\n\"§ 7 — 8. Limitation on successive petitions. No territory, nor any part thereof, which is involved in any proceeding to change the boundaries of a school district by detachment from or annexation to such school district of such territory, and which is not so detached nor annexed, shall be again involved in proceedings to change the boundaries of such school district for at least two years after final determination of such first proceeding unless during that 2 year period a petition filed is substantially different than any other previously filed petition during the previous 2 years ***.” (Emphasis added.) (105 ILCS 5/7 — 8 (West Supp. 1993).)\nHere there is no dispute that the 1993 petition was filed within two years of the 1991 petition, or that the 1993 petition included territory that was also the subject of the 1991 petition. Therefore, our resolution of this issue turns on whether the 1993 petition was \"substantially different” from the 1991 petition. No other court has passed on the meaning of \"substantially different” in this context.\nWhen interpreting a statute, a court must ascertain and give effect to the legislature’s intent in enacting the statute. (Kararo v. Ruiz (1990), 201 Ill. App. 3d 61, 559 N.E.2d 275.) In doing so the court should consider first the statutory language (Cunningham v. Huffman (1993), 154 Ill. 2d 398, 609 N.E.2d 321), and should also examine the statute as a whole, taking into consideration its nature and purposes, as well as the evil it was intended to remedy. (Knox County Board of Review v. Illinois Property Tax Appeal Board (1989), 185 Ill. App. 3d 530, 541 N.E.2d 794.) Finally, the courts are required, where possible, to give statutory language its plain and ordinary meaning. In re Board of Library Trustees of the Milan-Blackhawk Area Public Library District Annexation (1992), 237 Ill. App. 3d 835, 604 N.E.2d 1025.\nIn construing a prior version of section 7 — 8, this court held that the legislature’s purpose in limiting successive petitions for a period of time was to prevent harassment of \"County Boards, School Boards of affected districts, and interested persons.” (Hall Township High School District No. 502 v. County Board of School Trustees (1967), 80 Ill. App. 2d 475, 477, 225 N.E.2d 28, 29.) As construed in Hall, section 7 — 8 barred successive petitions for a one-year period without exception. The legislature amended section 7 — 8 in 1992 to lengthen the prohibition period from one year to two years. The amendment also added several exceptions, including the \"substantially different” exception at issue here.\nThe House and Senate floor debates do not indicate why the legislature lengthened the prohibition period subject to exceptions. It is safe to surmise, however, that the one-year period was found to be insufficient to protect the relevant groups from harassment. By subjecting the expanded prohibition period to exceptions, the legislature recognized that, in appropriate circumstances, successive petitions were warranted despite the two-year ban. One such circumstance is where a petition is \"substantially different” from a previously filed petition involving the same territory. The legislature’s failure to define \"substantially different” indicates that it intended for regional boards and the courts to construe the term in a manner consistent with its plain meaning and with section 7 — 8’s underlying purpose.\nOur task, then, is to determine whether a finding that the 1993 petition was substantially different from the 1991 petition comports with the plain meaning of \"substantially different” and is consistent with section 7 — 8’s underlying purpose.\nOne meaning of \"substantial” is \"considerable in quantity.” (Webster’s New Collegiate Dictionary 1153 (1981).) The trial court noted several quantitative differences between the two petitions. The 1993 petition involved 25% less land, 37% less assessed valuation, and six fewer students than the 1991 petition. Whether these figures are \"substantial” depends, we think, upon one’s perspective. From the perspective of this reviewing court, these quantitative differences are not so blatantly insignificant as to require reversal.\nSoutheastern contends that quantitative differences should not factor into the determination of whether one detachment petition is \"substantially different” from another. It cites City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 554 N.E.2d 155, for the proposition that \"substantially different” should be measured only by qualitative differences. We find City of Freeport to be inapposite to the case before us.\nThe issue in City of Freeport was whether the Illinois State Labor Relations Board erred in determining that certain fire and police department employees were not supervisors under section 3(r) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1603(r)). Section 3(r) defines \"supervisor” in part as one whose principal work is \"substantially different” from that of his subordinates. The court held that the applicable test under section 3(r) required a qualitative analysis of the employee’s powers and duties, rather than a quantitative analysis of the time spent by the employee in the exercise of such duties. City of Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164-65.\nSoutheastern’s reliance on City of Freeport is misplaced. The qualitative analysis required under City of Freeport was appropriate because differences among jobs are measured, for the most part, in qualitative terms. By contrast, any differences between the subject territories of two petitions are necessarily quantitative. We think quantitative differences between subject territories are helpful in determining whether one petition is substantially different from another. Therefore, we do not accept Southeastern’s contention that quantitative factors are irrelevant to an analysis under section 7 — 8.\nIt is true, however, that there may be qualitative differences between detachment petitions. For example, two petitions may differ in terms of the identity of the petitioners and their purposes in seeking detachment. Petitions may also differ in terms of the school districts against which they are directed. In this case, the trial court found it significant that the 1991 petition was directed against the Plymouth district, whereas the 1993 petition was directed against Southeastern. We agree that this is significant. Since Southeastern was not required to expend resources in resisting the 1991 petition, the 1993 petition cannot be seen as harassment of Southeastern. Therefore, the Regional Board’s consideration of the 1993 petition was not inconsistent with section 7 — 8’s underlying purpose.\nWe are unwilling to supply a bright-line test to determine when quantitative differences between subject territories are \"substantial” for purposes of section 7 — 8. Nor can we pinpoint a sufficient mix of quantitative and qualitative factors which would categorically satisfy the \"substantially different” requirement. Regional boards and reviewing courts must consider, on a case-by-case basis, whether a petition is so similar to a previously denied petition that the affected parties’ resources would be unduly taxed by consideration of the subsequent petition. In this case the trial court found sufficient quantitative and qualitative factors to determine that the 1993 petition was substantially different from the 1991 petition. Accordingly, section 7 — 8 was no bar to the Regional Board’s consideration of the 1993 petition.\nMERITS OF THE PETITION\nWe next turn to Southeastern’s claim that the grant of the 1993 petition was against the manifest weight of the evidence. Section 7 — 6 of the School Code provides that a regional board:\n\"shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted.” (105 ILCS 5/7 — 6(i) (West Supp. 1993).)\nPetitions for detachment and annexation should be granted only where the overall benefit to the annexing district and the detachment area clearly outweighs the resulting detriment to the losing district and the surrounding community as a whole. (Carver v. Bond/ Fayette/ Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 586 N.E.2d 1273.) The factors to be applied under this test include differences between school facilities and curricula, the distances from the petitioners’ homes to the respective schools, the effect detachment would have on the ability of either district to meet State standards of recognition, and the impact of the proposed boundary change on the tax revenues of both districts. (Bowman v. County Board of School Trustees (1974), 16 Ill. App. 3d 1082, 307 N.E.2d 419.) In determining whether detachment would be in the best interests of the pupils’ educational welfare, a regional board may consider the \"whole child” by examining the likelihood of participation in school and extracurricular activities. (Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240.) When the record indicates that the board has considered the applicable statutory factors and its decision is supported by substantial evidence, the decision must be affirmed. Carver, 146 Ill. 2d at 363, 586 N.E.2d at 1280.\nWe agree with the trial court that the Regional Board’s findings of fact are supported by the record and that it weighed the applicable statutory factors. Although the Board found that Southeastern and District 338 were essentially equal in terms of facilities and curricula, and that detachment would not have a meaningful financial impact on either district, it found that Carthage’s proximity to U.S. Route 136 would improve the affected children’s chances to participate in extracurricular activities. Moreover, the Board found that Carthage offered close proximity to medical services. In view of these findings, the trial court’s grant of the detachment petition was not against the manifest weight of the evidence.\nSoutheastern argues that the Regional Board should have given weight to the fact that Southeastern had assumed Plymouth’s territory and debt obligations in 1992. Southeastern argues that a school district should not be subject to detachment proceedings so soon after assuming responsibilities as a result of a dissolution. We note, however, that, unlike section 7 — 8’s ban on successive detachment petitions, nothing in the School Code prohibits consideration of a detachment petition for a period following dissolution proceedings. In addition, the evidence adduced by the Regional Board showed that Southeastern’s financial position would not be threatened by the detachment, even in view of the obligations Southeastern assumed as a result of the Plymouth dissolution. Therefore, Southeastern’s involvement in the Plymouth dissolution did not require the Regional Board to reject the detachment petition.\nPROCEDURAL ERRORS\nFinally, Southeastern contends that remand is proper because of several procedural errors made by the Regional Board. Specifically, Southeastern claims that the Board erred by: (1) not having rules regarding rehearings; (2) refusing to allow Southeastern to make an offer of proof at the June 3, 1993, hearing; (3) deliberating in private at both the April 5, 1993, and June 3, 1993, hearings in violation of the Illinois Open Meetings Act (5 ILCS 120/1 et seq. (West 1992)); and (4) failing to give proper notice of the April 5, 1993, hearing as required by the Open Meetings Act. None of these alleged errors require remand.\nSoutheastern first argues that the Regional Board erred by not having procedural rules for rehearings. Yet Southeastern fails to indicate what rules the Regional Board should have followed. Nor did Southeastern indicate what prejudice it suffered as a result of the Board’s failure to follow such rules. We are convinced upon review of the record that Southeastern was given ample opportunity to present its case at both hearings. Therefore, this argument is without merit.\nSecond, the Regional Board did not err in denying Southeastern’s request to make an offer of proof. An offer of proof is designed to preserve error in the exclusion of evidence by disclosing the nature of offered evidence to which an objection is successfully interposed. (Little v. Tuscola Stone Co. (1992), 234 Ill. App. 3d 726, 600 N.E.2d 1270.) It appears from the transcripts of the hearing that Southeastern was given an adequate opportunity to present its case and that it offered no evidence which the Regional Board refused to consider. Moreover, Southeastern made its offer of proof after both sides had argued and the Board had made its decision to deny the motion to dismiss. Therefore, Southeastern’s offer of proof served no purpose and was untimely.\nThe third error alleged by Southeastern appears to be accurate, but it does not constitute reversible error. Section 2 of the Open Meetings Act requires all meetings of public bodies to be held in public. (5 ILCS 120/2 (West 1992).) The Act allows certain exceptions to this rule, none of which are applicable here.\nThe record discloses that the Regional Board adjourned to deliberate in private after the close of evidence at both hearings. The Board then reconvened and voted in open forum. Although this procedure may have been in violation of the Open Meetings Act, it does not render the proceedings null and void. (See Betts v. Department of Registration & Education (1981), 103 Ill. App. 3d 654, 431 N.E.2d 1112; Board of Education of Community Unit School District No. 300 v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054.) Although we do not condone violations of the Open Meetings Act, we are unwilling to remand on the basis of this error.\nFinally, Southeastern claims that the Regional Board failed to give adequate notice of the April 5, 1993, hearing as required by section 2.02 of the Open Meetings Act (5 ILCS 120/2.02 (West 1992)). Southeastern claims that the Board’s regular meetings were scheduled for 8 p.m., but that the April 5, 1993, meeting was rescheduled to 7 p.m., \"resulting in confusion.” Southeastern fails to disclose how this rescheduling violated the Open Meetings Act. The record, moreover, discloses that the Regional Board published extensive notices of the meeting, including the 7 p.m. meeting time, in both the Augusta Eagle and Tri-County Scribe newspapers. These notices were published for a one-week period beginning March 24, 1993. Both parties, and a quorum of the Board, were present at the meeting at 7 p.m. Therefore, we find that the Regional Board did not violate section 2.02 of the Open Meetings Act.\nCONCLUSION\nIn sum, we find that the 1993 petition was substantially different from the 1991 petition for the purposes of section 7 — 8 of the School Code. We also find that the Regional Board’s order granting the petition was not against the manifest weight of the evidence. Finally, any procedural errors by the Regional Board did not prejudice Southeastern and are not an adequate basis for remand.\nFor the foregoing reasons, the decision of the circuit court of Hancock County is affirmed.\nAffirmed.\nSTOUDER, P.J., and HOLDRIDGE, J., concur."}
{"dedup_key":"pre1996-151739","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"64 ill-app-3d 94","case_name":"Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism and Drug Dependence","court_level":"Appellate","appellate_district":"2nd","year":1978,"county":null,"appellate_docket":"77-422","circuit_docket":null,"published":1,"authoring_justice":"Guild","statute":["OMA"],"exemptions_cited":[],"public_body":"Northern Illinois Council on Alcoholism and Drug Dependence (NICADD)","requesting_party":"Rockford Newspapers, Inc.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that a private, not-for-profit corporation receiving government funding and subject to government regulation is not a 'public body' subject to the Open Meetings Act. The court reasoned that government supervision and the performance of public welfare services under contract do not transform a private entity into a subsidiary of the government.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=151739","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:47.352142","site_category":"Public Body Definition","date_decided":"1978-09-15","site_url":"/cases/pre1996-151739/","text_url":"/case-text/pre1996-151739.txt","full_text":"ROCKFORD NEWSPAPERS, INC., Plaintiff-Appellant, v. NORTHERN ILLINOIS COUNCIL ON ALCOHOLISM AND DRUG DEPENDENCE et al., Defendants-Appellees.\nSecond District\nNo. 77-422\nOpinion filed September 15, 1978.\nThomas D. Luchetti, of Miller, Hickey & DeBruyne, of Rockford, for appellant.\nBruce C. Erickson, of Gilbert, Powers, Mateer & Erickson, of Rockford, for appellees.\n\nMr. JUSTICE GUILD\ndelivered the opinion of the court:\nThe question presented herein is whether a private, not-for-profit organization, funded primarily by government agencies and required to comply with numerous government regulations, is subject to the provisions of “An Act in Relation to Meetings” (Ill. Rev. Stat. 1975, ch. 102, par. 41 et seq.), commonly known as the Open Meetings Act. The trial court found that the organization in this case was not subject to the provisions of the Act. We agree.\nDefendant, Northern Illinois Council on Alcoholism and Drug Dependence (hereinafter known as NICADD) is a corporation organized under the provisions of the General Not for Profit Corporation Act (Ill. Rev. Stat. 1975, ch. 32, par. 163a et seq.) and administers a number of drug and alcohol treatment programs in Winnebago and Boone counties.\nOn September 15, 1976, plaintiff’s reporter was excluded from a regularly scheduled meeting of NICADD. As a result plaintiff filed a petition for a writ of mandamus in the circuit court of Winnebago County requesting that NICADD, its president and directors be required to hold open meetings pursuant to the “Act in Relation to Meetings.” The trial court granted defendant’s motion for summary judgment on the ground that NICADD was not subject to the provisions of the Act. Plaintiff appeals.\nThe relevant part of the Act is as follows:\n“§2. All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings # ° Ill. Rev. Stat. 1975, ch. 102, par. 42.\nPlaintiff admits that NICADD is not a legislative, administrative, executive or advisory body of State or local government. Rather, it contends that NICADD is a subsidiary of such a body or bodies. Plaintiff maintains that NICADD is a government subsidiary because 90% of its funding comes from government grants and contracts and because its activities and programs are regulated and monitored by Federal, State and local governments. Plaintiff also contends that defendant should be subject to the Open Meetings Act because it operates programs that are the statutory responsibility of the Illinois Dangerous Drug Commission.\nDefendant argues that it is not a subsidiary because of its formal status as a private corporation and because its personnel have no direct relationship with the governments in question. NICADD is incorporated as a private, not-for-profit organization. Its board of directors is selected pursuant to its own bylaws and is neither elected nor appointed by any government official. The board has full authority to employ or discharge any employee and employees are not subject to State regulatory practices concerning public employees nor are they eligible for State retirement or insurance benefits.\nThe statute itself does not define subsidiary. Dictionary definitions of the word also fail to provide any significant guidance. Moreover, none of the cases cited by plaintiff or defendant relate directly to the question of whether a private corporation can be a subsidiary for purposes of the Act. Only one of these cases, Town of Palm Beach v. Gradison (Fla. 1974), 296 So. 2d 473, deals directly with the issue of what a subsidiary is. That case is easily distinguishable as it involved a Citizen’s Planning Commission created by a resolution of a municipal government. That commission, unlike the private, not-for-profit corporation in the instant case, had no legal existence independent of this government resolution. Although defendant relies on People ex rel. Cooper v. Carlson (1975), 28 Ill. App. 3d 569, 328 N.E.2d 675, and Pope v. Parkinson (1977), 48 Ill. App. 3d 797, 363 N.E.2d 438, neither case deals direcdy with how to define subsidiary. They merely hold that informal or advisory committees of admittedly public entities are not subject to the provisions of the Act.\nWe find defendant’s arguments to be convincing. NICADD’s formal legal nature and the independence of both its board of directors and its employees from direct government control are extremely significant factors.\nPlaintiff’s emphasis on the governmental sources of defendant’s funding is misplaced. The amount or percentage of governmental funding of a private entity should have no bearing on whether that entity is characterized as a subsidiary for purposes of the Open Meetings Act. Although the Act itself provides that a particular entity need not be publicly funded in order to be required to hold open meetings, it does not state that public funding alone will make a particular entity subject to the Act. To imply such a statutory intent would effect large numbers of completely private entities that receive a large portion of their funding from the State. For example, a construction company that does a significant amount of road building would normally build roads pursuant to contracts with some government body. Such a company might receive up to 100% of its income from State contracts. Nevertheless, we believe that the legislature did not intend to require this type of company to open its business meetings to the public.\nPlaintiff’s arguments relating to the degree of government control and the nature of the functions performed by NICADD do go to potentially relevant factors but are very weak as to this particular case. The delegation from and regulation by the government in the present case does not lead us to the conclusion that NICADD is a subsidiary for purposes of the Open Meetings Act. Governmental bodies normally contract with private companies to perform services for the public welfare, and these contracts often involve a delegation of some statutory duties to the private party. For governments to insist upon a voice in the general manner in which these services are carried out is not only normal but may be part of their responsibilities to their constituents. Such general supervision does not transform the supervised company into a subsidiary of the government. Nor does the fact that the private company’s acts may be connected with a governmental function create a public body where none existed before. If it were to do so most parties contracting with the State would be subsidiaries. We cannot infer from the Act that the legislature intended such a result.\nFor the reasons stated above, we conclude that the trial court correctly held that NICADD was not subject to the Open Meetings Act and subsequently affirm the judgment of the trial court.\nAffirmed.\nSEIDENFELD, P. J., and NASH, J., concur."}
{"dedup_key":"pre1996-135361","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"222 ill-app-3d 496","case_name":"Scott v. Illinois State Police Merit Board","court_level":"Appellate","appellate_district":"1st","year":1991,"county":null,"appellate_docket":"1-90-2840","circuit_docket":null,"published":1,"authoring_justice":"McMorrow","statute":["OMA"],"exemptions_cited":["2(c)(1)"],"public_body":"Illinois State Police Merit Board","requesting_party":"David R. Scott","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Board's meeting to discuss disciplinary action against the plaintiff fell within the Open Meetings Act exception for considering information regarding the employment or dismissal of an employee. Consequently, the Board did not violate the Act by conducting the meeting in the manner it did.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=135361","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:47.728050","site_category":"Closed Sessions","date_decided":"1991-11-21","site_url":"/cases/pre1996-135361/","text_url":"/case-text/pre1996-135361.txt","full_text":"DAVID R. SCOTT, Plaintiff-Appellant, v. THE ILLINOIS STATE POLICE MERIT BOARD et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1—90—2840\nOpinion filed November 21,1991.\nThomas E McGuire & Associates, Ltd., of Long Grove, for appellant.\nRoland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John E. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellees.\n\nJUSTICE McMORROW\ndelivered the opinion of the court:\nPlaintiff, Master Sergeant David Scott (Scott), a member of the Department of State Police (the Department), appeals from the order of the circuit court denying Scott’s petition for administrative review of the decision of the Illinois State Police Merit Board (the Board) which dismissed Scott’s petition for review of his three-day disciplinary suspension. Scott contends that (1) he was denied due process and equal protection by the Board’s dismissal of his petition for review of his suspension; (2) the Board erred in deciding that there was no substantial basis for a hearing on the suspension; and (3) the Board violated the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.) by the manner in which it reached its decision to deny Scott’s petition.\nOn August 31, 1989, the Deputy Director of the Department notified Scott of his decision to impose a three-day suspension without pay for certain violations by Scott of Department rules and regulations on January 31, 1989. On September 8, 1989, Scott petitioned the Board for review of the disciplinary action. On September 18, the Board posted a public notice at its Springfield office that it would conduct a meeting by teleconference call on September 20 to discuss Scott’s petition for review of his suspension.\nOn September 20, 1989, the teleconference was held, and, accord-, ing to the minutes, after discussion of the matter, the Board unanimously voted to deny Scott’s petition for review. Scott was notified, in a letter dated September 20, that the Board had unanimously decided to uphold the Deputy Director’s decision to suspend Scott for three days and dismiss his petition for further review.\nScott filed a complaint seeking administrative review of the Board’s decision and charged the Board with violating the Open Meetings Act. On September 14, 1990, after briefing and argument by the parties, the circuit court ruled that Scott’s constitutional rights were not violated by the Board’s actions or its decision to deny his petition for review. The court thus dismissed Scott’s complaint, and this appeal followed.\nOpinion\nScott first contends that he was denied his constitutional rights to due process and equal protection by the Board’s refusal to grant him a hearing on his three-day suspension. Matters relating to discipline of State police officers are governed by sections 13 and 14 of the State Police Act (Ill. Rev. Stat. 1987, ch. 121, par. 307.13, 307.14) (the Act). Section 13 provides in pertinent part:\n“Disciplinary measures prescribed by the Board *** may be taken by the Director *** for the punishment of infractions of the rules and regulations *** as promulgated by the Department. Such disciplinary measures may include suspension of any such officer for a reasonable period, not exceeding 30 days.\nAny officer so suspended, within 10 days after suspension, may petition the Board in writing to review the suspension, and upon the filing of such petition with the Board, the Board shall within a reasonable amount of time, but no later than 30 days after the date of request for review set the written petition for hearing before the Board upon not less than 10 days’ notice at a place to be designated by the chairman [of the Board]. *** The Board may, by unanimous decision, dismiss the petition if it has determined that there is no substantial basis for its review of the suspension.” (Ill. Rev. Stat. 1987, ch. 121, par. 307.13.)\nSection 14 governs discharges, demotions and suspensions in excess of 30 days.\nScott urges that we declare section 13 to be unconstitutional because it does not afford him his due process rights of notice and an opportunity to be heard. He also argues that section 13 denies him equal protection under the law because statutes governing county and municipal law enforcement officers contain the due process protections absent from section 13 of the Act.\nWe have examined the statutes referred to by Scott and find his assertion that they afford greater due process protections than section 13 provides to him to be incorrect. Section 10 — 1—18(a) of the Illinois Municipal Code, which applies in municipalities of 500,000 or more inhabitants, provides:\n“Except as hereinafter provided *** no officer or employee in the classified civil service *** may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. *** Nothing in this Division 1 limits the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days except that any employee suspended for more than 5 days or suspended within 6 months after a previous suspension shall be entitled, upon request, to a hearing before the civil service commission concerning the propriety of such suspension.” (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—18(a).)\nSection 10 — 1—18(b) of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—18(b)), applicable to cities of 500,000 or fewer inhabitants, contains nearly identical language concerning hearings for suspensions exceeding five days, as does section 10 — 2.1—17 (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17), which applies in municipalities with fewer than 5,000 inhabitants and those between 5,000 and 250,000 population which are not subject to section 10 — 1—18(b).\nSection 3 — 7011 of the Counties Code provides that Cook County sheriff’s officers may be suspended for a reasonable period up to 30 days without compliance with section 3 — 7012, which requires written charges and a hearing in cases of removal, demotion or suspensions exceeding 30 days. See Ill. Rev. Stat. 1989, ch. 34, pars. 3 — 7011, 3— 7012.\nIn Wagner v. Kramer (1985), 108 Ill. 2d 413, 484 N.E.2d 1073, the court, citing Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793, stated that the public policy of this State has generally required some form of review of suspensions, and that if a statutory provision authorizing summary suspension for a period of 30 days or less is to survive constitutional attack on due process and equal protection grounds, it must provide for some type of review of such suspensions. In holding that some method of review of suspensions was required to be provided by .the former Sheriff’s Merit System Act (Ill. Rev. Stat. 1983, ch. 125, par. 163), the court observed that the Illinois Municipal Code provisions quoted above and section 13 of the State Police Act, the provision at issue here, all provide for a right to a review of an order of suspension.\nNeither Wagner nor Kropel held that an officer suspended for 30 days or less is entitled, either constitutionally or under the public policy of Illinois, to a hearing on the suspension. The supreme court has specifically held that all that is required is “some method of review” for disciplinary suspensions of 30 days or less which, as the Wagner court expressly noted, section 13 accords by way of a petition to the Board.\nMoreover, none of the statutes governing Scott’s counterparts in county and municipal law enforcement provide for a hearing on a suspension of five days or less. Scott was suspended for three days. Thus, contrary to Scott’s argument, he would not have greater rights to a review of his suspension if he were a county or municipal officer than are afforded him under section 13. Consequently, Scott’s argument that the dismissal of his request for a trial-like hearing before the Merit Commission of the State Police deprived him of equal protection under the law must fail.\nUnder the same reasoning and on the same authority, we reject Scott’s argument that the absence of requirements in section 13 for notice and an opportunity to be heard at a hearing violates his due process rights. Once again, we note that in Wagner, the court stated that “some method of review” must be provided to satisfy due process requirements, and that the court observed that section 13 does provide for a right of review.\nAdditionally, however, section 13 was specifically found not to be violative of due process rights in Clark v. Morris (1968), 99 Ill. App. 2d 24, 240 N.E.2d 515. In Clark, the plaintiff, a member of the Illinois State Highway Police, was suspended for 30 days. He appealed from the dismissal of his complaint for a declaration that section 13 was unconstitutional on the ground that the absence of any requirement of notice and a hearing on the charges underlying the suspension constituted a deprivation of due process.\nThe Clark court initially noted that due process is not an inflexible, technical concept with a fixed content unrelated to time, place and circumstances, and that in cases of disciplinary suspensions, the “procedures required to provide due process follow determination of the governmental function, as well as the private interest that is affected.” (99 Ill. App. 2d at 27.) Citing numerous statutes governing various public employees, the court observed that the legislature has consistently authorized suspensions for limited periods as appropriate disciplinary measures and has determined that a suspension of up to 30 days without written charges and a hearing is reasonable. The Clark court stated this legislative decision has a rational basis in internal administration and discipline in public employment. Thus, the court ruled that the absence of any requirement for notice and a hearing on suspensions of 30 days or less did not violate State or Federal requirements of due process.\nIn People ex rel. Blanks v. Ruddell (1971), 1 Ill. App. 3d 662, 274 N.E.2d 835, a municipal jail guard suspended for six days challenged the constitutionality of a former version of section 10 — 1—18(a), quoted earlier, of the Illinois Municipal Code which provided for notice and hearing only when the suspension exceeded seven days (now five). The defendants argued that the power of department heads to suspend employees for short periods of time for minor infractions without notice and a formal hearing is necessary for the efficient and effective functioning and administration of governmental departments. The Blanks court agreed, citing Clark and other authorities, and held that the absence of any provision in the statute for review by a hearing of suspensions under seven days did not violate the plaintiff’s due process rights.\nIn this case, Scott was suspended for three days. He filed with the Board a timely petition for review, as permitted by section 13. And, in accordance with the procedures set out in section 13, the five-member Board considered the petition in which Scott presented a brief explanation of his version of the events relative to the alleged infractions and his denial of any wrongdoing. After discussion of the matter, the Board unanimously decided to uphold the suspension and dismiss Scott’s petition for further review. Thus, Scott was accorded the opportunity for review of his suspension as is required under constitutional principles and the public policy of Illinois. Wagner v. Kramer (1985), 108 Ill. 2d 413, 484 N.E.2d 1073; Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793; Clark v. Morris (1968), 99 Ill. App. 2d 24, 240 N.E.2d 515.\nScott alternatively contends that the Board erred in ruling that there was no “substantial basis” for review of his suspension. He argues that without a hearing, which he requests we grant him, the Board did not have sufficient reliable data to reach that conclusion.\nIt is well settled that findings of an administrative agency on questions of fact are considered prima facie true and correct (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110) and will not be disturbed on judicial review unless they are contrary to the manifest weight of evidence. (Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 406 N.E.2d 863.) A decision is against the manifest weight of the evidence if an opposite conclusion is clearly evident from the record. Sheehan v. Board of Police & Fire Commissioners (1987), 158 Ill. App. 3d 275, 509 N.E.2d 467.\nAlthough there was no hearing in this case, the record contains the written notice to Scott of his three-day suspension in which Scott was advised by the Deputy Director, William O’Sullivan, that O’Sullivan had reviewed the reports and statements concerning Scott’s conduct on the day in question, and had conferred with Scott’s commanding officers regarding their evaluation of that conduct. O’Sullivan also noted that in July 1989, Scott had appeared before and made statements to the Disciplinary Review Commission concerning the matter, and that he, O’Sullivan, had thoroughly reviewed those statements. O’Sullivan then advised Scott which rules had been violated and by what misconduct on Scott’s part. The record does not contain any memorialization of what transpired during Scott’s meeting with the Disciplinary Review Commission. In light of his arguments, however, it must be presumed that the statements he made were in his own defense. Further, his petition to the Board for review of the suspension contained, as noted earlier, a brief statement of his version of the events on which the suspension was based and his denial of any wrongdoing.\nBased on the above, it does not appear that Scott’s suspension was either summarily imposed by the Deputy Director or arbitrarily upheld by the Board without any opportunity for Scott to be heard. Thus, we cannot say that the Board’s decision was contrary to the manifest weight of the evidence, i.e., that an opposite conclusion was clearly evident from the record.\nNeither do we agree with Scott’s conjecture that our affirmance of the Board’s decision will serve as encouragement for the Board to dismiss any petition for review with the conclusory statement that the Board finds no substantial basis for review of the suspension. As was recognized in People ex rel. Blanks v. Ruddell (1971), 1 Ill. App. 3d 662, 274 N.E.2d 835, courts cannot intrude into every discretionary imposition of disciplinary penalties for minor infractions of agencies’ rules; however, repeated abuses of discretion in the imposition and upholding of unwarranted suspensions would serve as the basis for the removal of persons in charge from their positions of authority.\nFinally, Scott contends that the Board violated the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.) by ruling on his petition for review by way of a teleconference call. He argues that the teleconference meeting contravened public policy, as expressed in section 1 of the Open Meetings Act, that such deliberations should be conducted openly. We disagree.\nFirst, nothing in section 13 requires that the Board conduct an open meeting. It simply requires that the Board “shall *** no later than 30 days after the date of request for review set the written petition for hearing before the Board upon not less than 10 days’ notice at a place to be designated by the chairman.” (Ill. Rev. Stat. 1987, ch. 121, par. 307.13.) Here, the petition was filed September 8, 1989, and notice was posted on September 18, at the Board’s office, that it would conduct “a special meeting via telecommunication conference on Wednesday, September 20, 1989, at 9 a.m. [at the Board’s office in Springfield] to discuss disciplinary action for Master Sergeant David Scott.” The Board’s actions were in compliance with the requirements of section 13.\nFurther, section 2 of the Open Meetings Act does not prohibit:\n“any body covered by this Act from holding closed meetings to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity.” (Ill. Rev. Stat. 1989, ch. 102, par. 42.)\nHere, the Board met to discuss the evidence relating to Scott’s suspension for conduct alleged by Scott’s superiors and found by the Deputy Director to have constituted violations of Department Rules warranting discipline. The meeting therefore fell within the above exception to the Open Meetings Act. See, e.g., Ealey v. Board of Fire & Police Commissioners (1989), 188 Ill. App. 3d 111, 544 N.E.2d 12.\nFor the reasons stated, the order of the circuit court denying plaintiff’s petition for review of the Board’s decision is affirmed.\nAffirmed.\nJIGANTI, P.J., and JOHNSON, J., concur."}
{"dedup_key":"pre1996-135880","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"226 ill-app-3d 704","case_name":"Osran v. Bus","court_level":"Appellate","appellate_district":"2nd","year":1992,"county":null,"appellate_docket":"2-91-0643","circuit_docket":null,"published":1,"authoring_justice":"Bowman","statute":["FOIA"],"exemptions_cited":[],"public_body":"Kane County","requesting_party":"Thomas Osran","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that documents related to a county's solid waste management plan were not exempt from disclosure under the Freedom of Information Act. The court ordered the defendants to produce the withheld documents, finding that the policy of openness in the Solid Waste Act supported disclosure.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=135880","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:47.930329","site_category":"General Records Exemptions","date_decided":"1992-03-20","site_url":"/cases/pre1996-135880/","text_url":"/case-text/pre1996-135880.txt","full_text":"THOMAS OSRAN, Plaintiff-Appellant, v. PHILLIP BUS, Executive Director of Kane County Development Department, et al., Defendants-Appellees.—BOARD OF TRUSTEES OF RUTLAND TOWNSHIP et al., Plaintiffs-Appellants, v. THE COUNTY OF KANE et al., Defendants-Appellees.\nSecond District\nNos. 2—91—0643, 2—91—0652 cons.\nOpinion filed March 20, 1992.\nHoward B. Levy, of St. Charles, and G. Alexander McTavish, of Myler, Ruddy & McTavish, of Aurora, for appellants.\nGary V. Johnson, State’s Attorney, of Geneva, and Julie L. Murphy, of Bullaro & Carton, Chartered, of Chicago (James Bryan Sullivan and J. Patrick Jaeger, Assistant State’s Attorneys, of counsel), for appellees.\n\nJUSTICE BOWMAN\ndelivered the opinion of the court:\nThis matter involves consolidated actions brought against defendants, the County of Kane (County), the Kane County Board of Supervisors, and a Kane County employee. Plaintiffs in one of the suits are nine townships, one municipality, and two private citizens (collectively, Townships), all located or residing in Kane County. Thomas Osran is plaintiff in the other action. All of the plaintiffs seek disclosure of certain documents in the possession of Kane County, the Townships pursuant to a consent decree between themselves and the County, and Osran pursuant to the Freedom of Information Act (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.).\nEarly in 1990 the Kane County Board of Supervisors (Board) adopted a policy favoring landfilling over incineration for disposal of the County’s solid waste. The Board publicly announced in April 1990 that it intended to acquire property and construct a new landfill of some 2,000 acres on one of five potential sites located in several of the plaintiff Townships.\nIn mid-May the County let it be known it was ready to pick a site and start acquiring the land. On May 25, three of the Townships filed a complaint (No. 90 — CH—0163) requesting that the County be restrained from siting the landfill within the County until the County had prepared and received approval of a comprehensive solid waste management plan as required by the Solid Waste Planning and Recycling Act (Solid Waste Act) (Ill. Rev. Stat. 1989, ch. 85, par. 5951 et seq.). A similar complaint (No. 90 — MR—0162) had been filed previously by a Kane County corporation and its principal stockholder. The two actions were subsequently consolidated. Also, the complaint was amended to add the remaining Townships and municipality.\nIn July 1990 the parties entered into a consent decree. Under the decree the County was prohibited from taking any further steps toward siting the landfill, or acquiring land for it, until the solid waste management plan was prepared, adopted, and submitted to the Illinois Environmental Protection Agency, as mandated by the statute. The decree also provided that the defendants would produce documents which had previously been requested by the plaintiffs and were subject to disclosure. Some, but not all, of the documents sought by plaintiffs had already been produced.\nIn August the plaintiffs made a written inquiry regarding production of the remaining documentation. Defendants offered additional materials but added that there remained several “very site specific” exhibits which would not be made available. Plaintiffs then moved for a rule to show cause against defendants, asserting that their refusal to produce the requested records was a violation of the consent decree. Following a hearing on the rule, the court ordered that the documents sought by plaintiffs were not subject to disclosure and, therefore, there had been no violation of the consent decree. The Townships appeal from that order.\nShortly before the Townships filed their complaint, Thomas Osran had submitted two requests to Kane County pursuant to the Freedom of Information Act (Information Act or Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.) for substantially the same documents as those sought by the Townships. Phillip Bus, the County development director, denied the requests, citing exemptions provided within the Information Act for certain real estate matters (hereinafter, real estate exemption) and for proposals and bids. Osran appealed to the County board chairman, Frank Miller, who upheld the denials. On July 10, 1990, Osran filed a complaint (No. 90 — MR—0208) for declaratory judgment seeking to compel disclosure of the documents. Osran’s case was ultimately consolidated with the action brought by the Townships.\nIn September 1990 Osran moved for an in camera inspection by the court of the records sought from the County. In October the defendants filed an “Amended and Restated Index of Exempt Records,” which was a list, including detailed descriptions, of the documents they claimed were exempt. In May 1991 the trial court entered an order indicating that, after a de novo hearing and an in camera review of the documents, it found the records withheld by the County to be exempt from disclosure under the real estate exemption that the County had relied on. Osran appeals from that order.\nThe Townships assert that the exemptions in the Information Act cannot be used to preclude disclosure of the records to them because their consent decree with the County provides for discovery of those records. They further argue, along with Osran, that, even if the provisions of the statute could properly be invoked, the records withheld by the County do not fall within any of the exceptions established by the Act. The County responds that the trial court correctly found the real estate exemption to be applicable and that the other exemptions it cited also effectively shield the records from disclosure. With regard to the Townships’ discovery argument, defendants posit that the trial court correctly interpreted the consent decree to mean that the County was allowed to assert any legally recognized privilege against disclosure. According to the County, the exemptions in the Information Act constitute just such a privilege. Inasmuch as the effectiveness of all of the parties’ contentions depends initially on whether the exemptions established by the Information Act apply to the withheld documents, we will decide that question first.\nThe County indicated on its amended index of exempt records that every one of the records listed was being withheld pursuant to several of the exemptions set forth in the Information Act. However, the trial court made clear in its orders that it relied only on section 7(lXs) of the Act to find that the documents were exempt from disclosure. That section states:\n“§7. (1) The following shall be exempt from inspection and copying:\n* * *\n(s) The records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding *** records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court.” Ill. Rev. Stat. 1989, ch. 116, par. 207(1)(s).\nIn its order discharging the rule to show cause against the County, the court found that the documents it had reviewed in cam era “relate to parcels involved in ‘... reasonably contemplated emminent [sic] domain proceedings.’ ” The final order entered in Osran’s case reflects the court’s finding that the exhibits “relate to ‘real estate purchase negotiations’ not yet completed or terminated or to an ‘actual or reasonably contemplated emminent [sic] domain proceeding.’ ”\nUnlike the trial court, we do not have the undisclosed records themselves to review. However, the index filed by the County, which describes the nature of each document in considerable detail, reflects that the County withheld: aerial photos of proposed sites with names of owners of individual parcels indicated; maps and overlays showing the factors determining the location of the proposed sites; site-specific documents including site maps, road maps, landmark maps, and landfill concept plans; various maps showing property ownership, legal descriptions, and, in some cases, names and addresses of individual owners in proposed sites; and real estate tax information and appraisals of values of parcels in proposed sites. The initial question before us is whether these materials fall within the scope of the section 7(l)(s) exemption. The trial court found that they did. We think the lower court gave the exception to the rule too expansive an interpretation.\nThe purpose of the Information Act is to open governmental records to the light of public scrutiny. (Ill. Rev. Stat. 1989, ch. 116, par. 201; Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378; Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 534-35.) The Act facilitates public access to full information regarding the affairs of government (Ill. Rev. Stat. 1989, ch. 116, par. 201) and, thus, fosters governmental accountability and an informed citizenry (Bowie, 128 Ill. 2d at 378). As expressed in the Act, it is the public policy of the State of Illinois to encourage the free flow of information from the government to the people. (Bowie, 128 Ill. 2d at 378.) The Information Act is to be liberally construed to achieve this goal. Ill. Rev. Stat. 1989, ch. 116, par. 201; Bowie, 128 Ill. 2d at 378.\nWhile there is a presumption that public records are open and accessible, the court must be cautious, among other things, about disrupting the functions of government by requiring disclosure beyond what is imposed by law. (Ill. Rev. Stat. 1989, ch. 116, par. 201; Bowie, 128 Ill. 2d 373.) This caution is initially established in the Act itself, where it sets forth exemptions to the general rule of disclosure. Those exceptions, however, are to be narrowly read. Bowie, 128 Ill. 2d 373; Baudin, 192 Ill. App. 3d at 535.\nUnder the Information Act the burden of proof is on the public body to establish that the material withheld is exempt from disclosure. (Ill. Rev. Stat. 1989, ch. 116, par. 211(e); Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 476.) However, a governmental agency may not clothe its records with an exemption from disclosure by bare assertions that the material is exempt. Baudin, 192 Ill. App. 3d at 535; Hoffman, 158 Ill. App. 3d at 475-76.\nAccording to section 7(lXs), an exemption from inspection and copying applies to materials relating to “real estate purchase negotiations” or relating to a parcel involved in a “pending or actually and reasonably contemplated” eminent domain proceeding. The County does not maintain that it was involved in actual, ongoing negotiations for the purchase of particular real estate or that there was any relevant condemnation proceeding pending at the time plaintiffs requested documents. In fact, Phillip Bus, Kane County development director, gave deposition testimony that, as far as he knew, during 1990 no offers were extended and no landowners were contacted regarding sale of their land to the County for a landfill. Nor, to his knowledge, had the County board or the solid waste subcommittee authorized discussions with owners about the sale of land for a landfill. Bus further testified that he knew of no real estate condemnations which were actually proceeding at the time Osran made his freedom of information requests. Similar testimony was given by then current County board chairman, Warren Kammerer, at his deposition.\nThe absence of actual negotiations is not seen by the defendants as fatal to their position, however. Rather, the County claims that the real estate exemption does not require that negotiations must be currently pending. Even if the County was “merely contemplating entering into negotiations” for the purchase of land, according to the County’s argument, the exemption would apply. We think defendants overestimate the reach of the statutory exception.\nWe first observe that defendants cite no authority for the position they take. More significantly, the language of the statute exempts materials relating to real estate purchase negotiations. The word “negotiation” is defined as “the action or process of negotiating or of being negotiated.” “[NJegotiate,” in turn, means “to communicate or confer with another so as to arrive at the settlement of some matter: meet with another so as to arrive through discussion at some kind of agreement or compromise about something.” (Webster’s Third New International Dictionary 1514 (1986).) Too, the material is exempted only “until those negotiations have been completed or otherwise terminated.” (Ill. Rev. Stat. 1989, ch. 116, par. 207(1)(s).) That sounds to us very much like an indication that negotiations should be underway or, at the very least, imminent, in the sense that the governmental body is, for example, delineating a negotiating strategy, or actually formulating an offer, for a site it wishes to acquire. (Cf. People ex rel. Ryan v. Village of Villa Park (1991), 212 Ill. App. 3d 187 (regarding the real estate acquisition exception to the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 42)).) At any rate, in our opinion, “real estate purchase negotiations” requires something more than the site analysis and evaluation activity the County was involved in here, as reflected in the descriptions of the undisclosed documents.\nCollectively, the County’s documents constitute the kind of material that would be needed, initially, in order to locate sites within the County suitable for a landfill. They further reflect the development and analysis of data, and at least some value/cost information, which would facilitate evaluation of each site individually, as well as comparison to the sites to one another. In sum, the records withheld by the County address site selection, not purchase negotiations.\nSite selection is a process which precedes acquisition of a specific site, particularly in a case like this where the County is still focused on five possible locations. Judging by the kinds of materials described in the index, the County had not even put together a plan for acquiring the site it ultimately chose, much less engaged in purchase negotiations for any targeted parcels. Consequently, as we see it, the materials are not related to real estate purchase negotiations and, thus, are not exempt from disclosure under the real estate purchase negotiations language of the exemption.\nWe do not find that the documents could be properly withheld under the “pending or actually and reasonably contemplated” eminent domain proceeding language, either. As we mentioned, the County does not dispute that there is no such proceeding pending. The County instead invokes the “reasonably contemplated” portion of the provision. Placed in context, however, the phrase defendants rely on reads “actually and reasonably contemplated” eminent domain proceeding. (Emphasis added.) Moreover, the statute refers to “a parcel” involved in such a proceeding and indicates that materials relating to “that parcel” are exempt. The statutory language appears to contemplate an actual or imminent condemnation of a particular parcel. However, at his deposition, Phillip Bus testified that he thought the County board contemplated condemnation proceedings, although it had not passed any resolutions to that effect. He did not remember if the solid waste subcommittee had passed any resolutions or otherwise expressed an intent to condemn property for a landfill. When asked about the basis for his opinion that the board was reasonably contemplating condemnation, defense counsel objected on the ground that the information was privileged, and Bus was advised not to answer. Again, Warren Kammerer gave answers similar to Bus’ but added that, in his opinion, condemnation was not contemplated for a thousand-acre landfill in western Kane County.\nWhile the County undoubtedly recognizes that it may have to resort to its power of eminent domain in order to acquire the land it seeks, neither the withheld documents themselves nor any other evidence in the record shows that the County is actually and reasonably contemplating acquisition of “a parcel” through condemnation. The County needs only one site, no site has been chosen, and acquisition of the site has not, therefore, been initiated. At best the County can only speculate that it may have to resort to condemnation. In our view, the statute contemplates much closer and more intense focus on condemnation of desired real estate than the vague and speculative assertion made by the County here that it may at some time use its power of eminent domain to acquire one of the five sites scrutinized in the materials sought by plaintiffs. The County did not show the necessary focus. We conclude that the contemplated condemnation language of the exemption does not justify the withholding of the particular documents at issue here.\nThe County apparently perceives the documents as related to both real estate purchase negotiations and reasonably contemplated condemnation proceedings in the sense that the information contained in the documents provides a sound basis for choosing a site and is one of many steps leading up to the actual purchase or condemnation of a site. However, the language of the exemption — “purchase negotiations” and “actually and reasonably contemplated” condemnation-does not, on its face, include the investigation, fact finding, analysis, and other background activities which must be done before a purchase can be negotiated or a condemnation can be actually and reasonably contemplated. Since the statute directs that they are to be narrowly construed (see Bowie, 128 Ill. 2d 373), we do not believe the exemptions should be expanded and extended beyond the language creating them in order to accommodate the withholding of the documents in this case, documents which, in themselves, speak nothing of actual purchase negotiations or of the imminent condemnation of any particular parcel. Thus, as described by the legislature, the exemptions remain “limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.) The trial court should have directed the defendants to disclose the documents.\nAlthough the trial court based its decision only on the real estate acquisition exemption, both Osran and the Townships address the other exemptions claimed by the County for the documents listed on its amended index. The County responds only in a cursory fashion regarding these other exemptions. All of defendants’ arguments are, at best, sketchy, highly speculative, or based on unsupported assertions. With one unremarkable exception the arguments are devoid of both authority and citation to the pages of the record relied on, both elements required by Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). We decline to make defendants’ arguments for them and will not address the remaining exemptions.\nAs a final matter we note that the Townships’ complaint sought to compel the County’s compliance with the Solid Waste Act. We have reviewed that statute and observe that it requires the County to prepare and adopt a solid waste management plan which, among other things, must identify the locations of potential sites for the processing and disposal of waste, or explain how the sites will be chosen. (Ill. Rev. Stat. 1989, ch. 85, par. 5954.) It also provides (see generally Ill. Rev. Stat. 1989, ch. 85, par. 5955) that, prior to adopting a plan, the County must form an advisory committee composed of representatives of the municipalities, citizen organizations, the private waste management industry, recyclers, and others the County deems appropriate. The committee is to review and suggest improvements to the plan while it is being prepared. The County must give written notice to interested members of the public when plan development begins, as well as provide progress reports. Finally, before adoption the plan must be made available for a 90-day period for public review and comment.\nThe provisions just described leave no doubt that the legislature intended for the public to be informed and to participate fully in every stage of the development of county solid waste management plans. We are confident that, sooner or later, such plans must pinpoint the locations of waste disposal sites. The public participation policy of the Solid Waste Act would certainly seem to suggest that those locations should be made known to the public. With this thought in mind, we cannot ignore the following directive in the policy statement of the Information Act:\n“This Act shall be the exclusive State statute on freedom of information, except to the extent that other State statutes *** or other laws in Illinois might create additional obligations for disclosure of information to the public.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.)\nReading this provision together with the Solid Waste Act’s policy of encouraging an informed public is persuasive that the materials withheld by Kane County should not be exempt from disclosure.\nThe Solid Waste Planning and Recycling Act (Ill. Rev. Stat. 1989, ch. 85, par. 5951 et seq.) became effective on January 1, 1989, long after the July 1, 1984, effective date of the Freedom of Information Act. Had the legislature intended that the Information Act exemptions should apply even to the kinds of information shared with the public under the Solid Waste Act, it could have incorporated such a limitation, either directly or by reference, into the latter act. It appears to us that, if anything, the legislature did just the opposite. The policy of openness in the Solid Waste Act, which, in fact, is in pari materia with the Information Act as a whole, seems to suggest that the scope of permissible limitations on disclosure of information regarding a county’s plan for solid waste management should be minimized as much as possible. The decision we reach today is in keeping with the interplay between the two statutes.\nSince we have concluded that the documents withheld by the County are not exempt from disclosure under the Freedom of Information Act, we need not address the Townships’ further contention that the Information Act exemptions do not render the documents privileged from discovery.\nFor the reasons stated, the judgment of the circuit court of Kane County is reversed. Under the authority granted to us in Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we order the defendants to produce and make available to the plaintiffs the documents withheld, as they are listed on defendants’ “Amended and Restated Index of Exempt Records,” within 14 days.\nReversed.\nINGLIS, P.J., and WOODWARD, J., concur."}
{"dedup_key":"pre1996-137418","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"237 ill-app-3d 569","case_name":"Williams v. Klincar","court_level":"Appellate","appellate_district":"3rd","year":1992,"county":null,"appellate_docket":"3-91-0809","circuit_docket":null,"published":1,"authoring_justice":"Haase","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois Prisoner Review Board","requesting_party":"Martin R. Williams","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the Prisoner Review Board failed to provide an adequate justification for denying a FOIA request for a parole progress report. The case was remanded for an in camera inspection to determine if the requested material falls under a valid statutory exemption.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=137418","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:47.930513","site_category":"FOIA Response Process","date_decided":"1992-11-13","site_url":"/cases/pre1996-137418/","text_url":"/case-text/pre1996-137418.txt","full_text":"MARTIN R. WILLIAMS, Plaintiff-Appellant, v. PAUL J. KLINCAR, Chairman, Illinois Prisoner Review Board, Defendant-Appellee.\nThird District\nNo. 3—91—0809\nOpinion filed November 13, 1992.\nMartin Williams, of Galesburg, appellant pro se.\nRoland W. Burris, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellee.\n\nJUSTICE HAASE\ndelivered the opinion of the court:\nThe plaintiff, Martin R. Williams, appeals from the trial court’s denial of his petition for writ of mandamus. We reverse the trial court’s decision and remand this cause for proceedings consistent with this opinion.\nThe record shows that the plaintiff asked the clinical services supervisor of the Hill Correctional Center for a copy of his parole progress report. This report contained information used by the Illinois Prisoner Review Board (Board) in determining the plaintiff’s eligibility for parole. The Board denied his request, finding that the information requested was exempt from disclosure. The plaintiff appealed this decision to the Chairman of the Board, defendant Paul J. Klincar.\nFollowing Klincar’s denial of his appeal, the plaintiff filed a petition for writ of mandamus with the circuit court of Knox County requesting that the Board be ordered to release the information. He argued that he was entitled to the information under the Freedom of Information Act (Act) (Ill. Rev. Stat. 1991, ch. 116, par. 201). In addition, he noted that the Board’s rules and regulations stated that “[a] parole candidate shall have access to all documents which the Board considers in denying parole.” 20 Ill. Adm. Code §1610.40 (1985); see also Etten v. Lane (1985), 138 Ill. App. 3d 439, 485 N.E.2d 1177; Walker v. Prisoner Review Board (7th Cir. 1982), 694 F.2d 499.\nIn response, the defendant filed a motion to dismiss, arguing that the information the plaintiff sought was specifically exempt from disclosure under section 7(a) of the Act (Ill. Rev. Stat. 1991, ch. 116, par. 207(a)) and section 1610.30(b) of the Board’s rules and regulations (20 Ill. Adm. Code § 1610.30(b) (1991)).\nAt the hearing, it was determined that the rules and regulations were amended on October 10, 1985, and now provide:\n“(b) Access to Records by the Inmate\n1) The inmate shall have access to all evidence considered by the Board unless the evidence is specifically found to:\nA) Include information which, if disclosed, would damage the therapeutic relationship between the inmate and a mental health professional;\nB) Subject any person to the actual risk of physical harm.\nC) Threaten the safety or security of the Department or an institution.” 20 Ill. Adm. Code §1610.30(b) (1991).\nRelying on this change and an affidavit filed by the defendant, the trial court denied the plaintiff’s motion. The defendant’s affidavit stated in relevant part that “all documents considered by the Board in its parole consideration are provided to him at his file review, except for those found to be specifically exempted by section 1610.30(b) of Board Rules. Some documents in his file are considered to be exempt under the Rules.”\nOn appeal, the plaintiff first argues that the amendment to section 1610.30(b) constitutes an ex post facto law. He contends that the change deprives him of a substantial right that was previously afforded him.\nThe application of a new parole provision to an inmate constitutes ex post facto punishment only if the new law constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) However, the ex post facto prohibition has no application to changes which are merely procedural and which do not disadvantage the inmate in a substantial right. Hanrahan v. Klincar (1988), 167 Ill. App. 3d 464, 521 N.E.2d 583.\nIn the case at hand, we note that the plaintiff was incarcerated prior to 1985. However, we find that the changes made to the section in question were merely procedural. As our resolution of the next issue makes clear, there are sufficient safeguards in the law which insure that the plaintiffs substantial rights are protected. Accordingly, we find no violation of the ex post facto prohibition.\nWe now consider the issue of whether the court erred in failing to require the State to prove that the material in question was actually exempt from disclosure. The plaintiff, pursuant to section 7(a) of the Act, sought disclosure of “any and all progress reports submitted to the Board via Clinical services, objection letters from the victim’s relatives or friends, and any and all objection letters submitted to the Board by the State which conclusively beyond any reasonable doubt contain erroneous information.”\nSection 7(a) of the Act provides that any information specifically prohibited from disclosure by Federal or State law or rules and regulations shall be exempt from inspection or copying. (Ill. Rev. Stat. 1991, ch. 116, par. 207(a).) As previously mentioned, section 1610.30(b) of the Board’s rules and regulations specifically prohibits the disclosure of certain information. Based on these statutes, the trial court denied the plaintiff’s petition. Because of the facts of this case, however, we find this decision to be erroneous.\nUnder the Act, in any action considered by the court, the court shall consider the matter de novo, and shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of the Act. The burden shall be on the public body to establish that its refusal to permit public inspection or copying is in accordance with the provisions of the Act. (Ill. Rev. Stat. 1991, ch. 116, par. 211(f).) 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. (Antonelli v. Drug Enforcement Administration (7th Cir. 1984), 739 F.2d 302.) When an agency meets its burden by means of affidavits, in camera review is not necessary. However, the affidavits will not suffice if the agency’s claims are conclusory, merely recite statutory standards, or are too vague or sweeping. Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 548 N.E.2d 1110.\nIn the case at hand, the defendant submitted an affidavit which we find to have been merely conclusory. The defendant did not provide a detailed justification for his claim of exemption. Instead, he just stated that the material was exempt under section 1610.30(b) of the Board’s rules and regulations. He did not even detail which section of 1610.30(b) he considered the material to be exempt under. In short, the defendant stated that the material was exempt because he said it was exempt.\nWe find that the affidavit was completely inadequate to sustain the defendant’s burden of proof. As such, we remand this case to the trial court and direct the court to conduct an in camera inspection to determine if the material fits within one of the statutory exemptions.\nFinally, we address the defendant’s contention that the plaintiff is precluded from the relief he seeks. The defendant argues that the plaintiff improperly filed a petition for writ of mandamus instead of a petition for injunctive or declaratory relief as required by section 11(a) of the Act. See Ill. Rev. Stat. 1991, ch. 116, par. 211(a).\nWe find the defendant’s argument to be waived since he failed to raise it below. Furthermore, we note that mandamus is a proper remedy in this case. (See Hanrahan v. Klincar (1988), 167 Ill. App. 3d 464, 521 N.E.2d 583.) Accordingly, the plaintiff is not precluded from relief because of the form of his petition.\nThe decision of the circuit court of Knox County is reversed and the cause remanded for proceedings consistent with this decision.\nReversed and remanded.\nGORMAN and STOUDER, JJ., concur."}
{"dedup_key":"pre1996-143565","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"28 ill-app-3d 569","case_name":"People ex rel. Cooper v. Carlson","court_level":"Appellate","appellate_district":"2nd","year":1975,"county":null,"appellate_docket":"74-408, 75-3","circuit_docket":null,"published":1,"authoring_justice":"Rechenmacher","statute":["OMA"],"exemptions_cited":[],"public_body":"Kane County Development Committee","requesting_party":"Richard L. Cooper","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Open Meetings Act applies to meetings of public bodies, such as committees and boards, but does not extend to voluntary meetings of staff or department heads who meet to coordinate their work and formulate recommendations. Consequently, the court affirmed the dismissal of the petitioner's suit seeking to compel public access to staff meetings of the Kane County Development Committee.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143565","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:48.618888","site_category":"Public Body Definition","date_decided":"1975-05-22","site_url":"/cases/pre1996-143565/","text_url":"/case-text/pre1996-143565.txt","full_text":"The People ex rel. Richard L. Cooper, Petitioner-Appellant, v. Carl M. Carlson, Respondent-Appellee.\n(Nos. 74-408, 75-3 cons.;\nSecond District (2nd Division)\nMay 22, 1975.\nStephen M. Cooper, of Geneva, for appellant.\nGerry Dondanville, State’s Attorney, of Geneva, and Marvin D. Dunn, of Aurora, for appellee.\n\nMr. PRESIDING JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nPetitioner filed suit in the Circuit Court of Kane County seeking a writ of mandamus to compel defendant to permit petitioner (the publisher of a weekly newspaper in the Village of Elburn) and all members of the general public to attend meetings of the staff of the Kane County Development Committee, relating to a proposed development by Mark VII Corporation. The petition also requested an injunction prohibiting any such meetings in the future without giving the required prior public notice. This appeal is taken from an order dissolving a preliminary injunction (restraining order) and from the judgment entered after trial dismissing the suit.\nThis case presents a construction of the “Act in relation to meetings” (Ill. Rev. Stat. 1973, ch. 102, par. 41 et seq.), which is usually referred to as the open meetings act.\nThe Kane County Board of Supervisors established a Development Committee (formerly Zoning Committee) composed of nine members of the Board, for the purpose of considering and making recommendations to the entire Board in regard to zoning and land planning and development. That Board approved subdivision regulations which had been adopted by the Development Committee. Those regulations include provisions which set forth a procedure for submission of subdivision plats in three stages: (1) informal, preapplication conference, (2) preliminary plan, and (3) final plat; it also established subdivision standards.\nTo enable it to perform its functions and because its members are not necessarily technically experienced in the various fields the Development Committee created a Development Department, and engaged personnel divided into five divisions: (1) Administrative, (2) Urban Development, (3) Planning and Zoning, (4) Environmental and (5) Building Permits and Inspections. Each of these divisions is headed by a director and includes clerical and, in some instances, technical employees. The directors of tire various departments have voluntarily arranged for what are called “technical staff, meetings” which are scheduled most frequently on Monday of each week and occasionally on Fridays. There is no requirement for such meetings either by the County Board or the Development Committee. The meetings are held for “intradepartrnental convenience” and are intended as “good staff work, so that we don’t waste the time of the Development Committee” and to “assure them that * * * the rules and regulations and the law” have been complied with. From time to time one or more of these division heads go out in the field with or without developers to check boundaries and terrain of given projects. No secretary was appointed by this group to keep minutes of any of these periodic meetings or conferences. Instead, an employee of the Planning and Zoning Department who volunteered to do so takes notes at these meetings, usually in longhand but occasionally reduced to typewritten form. The only record of what transpires is “in the memories of those attending and these notes.” No motions or resolutions are presented and no votes are recorded. The recommendations seem to be the result of consensus. The staff meets “most frequently on Mondays” because “the Development Committee meets every second Tuesday” and the staff has to “prepare * * * for that.” Based on the discussions and other details arrived at at these meetings, it makes recommendations to the Development Committee.\nIt is conceded by the parties that the meetings of. the Board of Supervisors and of its committees, including its Development Committee, are held in compliance with the so-called open meetings act.\nTire petitioner, on October 24, 1974, learned that the “staff” of the Development Committee had scheduled a meeting for Monday, October 25, at 9 A.M. with the representatives of Mark VII Corporation, a developer of a proposed “New Town” in Kane County, and requested permission to attend that meeting. His request was denied, and it is admitted that petitioner and members of the public were excluded from that meeting. This suit followed.\nThe trial court on December 20, 1974, after considering all of the evidence, entered its order dismissing the action. In doing so the court held that the staff members did not negotiate with land developers any binding agreements as alleged in the complaint, that the staff is not a “body” within the meaning of the Illinois open meetings act and is not subject to its provisions; that it does not take “actions” or have “deliberations” within the meaning of that act, and that it would unnecessarily burden the staff to construe the act so as to include it within tire meaning of the act. Petitioner contends that the trial court erred in so holding.\nSection 1 of the open meetings act (ch. 102, par. 41) declares it to be the public policy that “the public commissions, committees, boards and councils and other public agencies * * # exist to aid in the conduct of the people’s business” and declares “the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.”\nSection 2 of the act (ch. 102, par. 42) provides in part as follows:\n“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties * * * and all other * * * boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, * * * shall be public meetings * *\nThe exceptions from its provisions which follow are not relevant here except one which will be referred to later.\nThere is no statute, ordinance or resolution or other official action by the County Board, or by its Development Committee, or by any committee of the County Board, designating or appointing the directors of the five divisions of the County Development Department (technical staff) as a public body or a subsidiary body. Their periodic meetings or conferences are intended to provide more efficient service to the Development Committee and to the County Board whose meetings are held in compliance with the act. Petitioner conceded during oral argument, and there is no question, that any one of the directors could freely and without application of the act meet with the chairman of the Development Committee or of the County Board or any of its members and convey his recommendations. Likewise he, or any of them, could meet with representatives of any subdivider or developer whether it be Mark VII Corporation or any other, without being subject to the act, in the performance of his duties. However, petitioner takes the position that if any number of them, presumably three or more, meet periodically, they automatically become an “advisory committee” or “public body” giving professional advice. He calls attention to one of the exceptions specified in section 2 of the act which provides as follows:\n“This Section does not prevent an advisory committee appointed to provide a public body with professional consultation on matters germane to its field of competence from holding a closed session to consider matters of professional ethics or performance.”\nPetitioner argues that therefore, except as to consideration of matters of professional ethics and performance, the legislature intended by this provision to make it clear that the meetings of the technical staff of the Kane County Development Department are subject to the act.\nWe disagree. That provision, on the contrary, emphasizes the applicability of the act only to “an advisory committee appointed” to provide such consultation, not to employees who voluntarily, and in the interest of efficiency or “good staff work,” meet together periodically in the performance of their duties, preliminarily to providing their recommendations.\nIf petitioner’s argument were to be followed to its logical conclusion, a director of any county office or department who voluntarily decided to hold periodic meetings of his employees for the purpose of formulating recommendations to the County Board concerning improvement of the efficiency of his unit in its advisory process, would find that he would be bound to comply with the open meetings act. It is clear to us that such result was not intended.\nThe act is directed, as expressed in the statement of the public policy of this State, to meetings of “public commissions, committees, boards and councils and the other public agencies,” and not to voluntary meetings, conferences, or whatever they may be called, of department heads or employees who seek to improve with dispatch their performance or function of assisting in the conduct of the people’s business.\nThe California, Florida, and other cases cited by petitioner are in-apposite because they all concern duly constituted public “bodies.” In view of our holding here we find it unnecessary to consider other questions raised in the briefs.\nTherefore, the judgment of the circuit court of Kane County is affirmed.\nJudgment affirmed.\nT. MORAN and DIXON, JJ., concur."}
{"dedup_key":"pre1996-133838","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"212 ill-app-3d 187","case_name":"People ex rel. Ryan v. Village of Villa Park","court_level":"Appellate","appellate_district":"2nd","year":1991,"county":null,"appellate_docket":"2-90-0535","circuit_docket":null,"published":1,"authoring_justice":"Dunn","statute":["OMA"],"exemptions_cited":["2(c)(5)"],"public_body":"Village of Villa Park Board of Trustees","requesting_party":"James E. Ryan, State’s Attorney","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Village of Villa Park violated the Open Meetings Act by holding closed sessions to discuss matters, such as traffic and infrastructure improvements, that did not fall under the real estate acquisition exception. The court reversed the summary judgment for the defendants and remanded with instructions to grant the plaintiff's motion for summary judgment, including injunctive and declaratory relief.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=133838","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:48.621619","site_category":"Closed Sessions","date_decided":"1991-04-10","site_url":"/cases/pre1996-133838/","text_url":"/case-text/pre1996-133838.txt","full_text":"THE PEOPLE ex rel. JAMES E. RYAN, State’s Attorney for the County of Du Page, Plaintiff-Appellant, v. THE VILLAGE OF VILLA PARK et al., Defendants-Appellees.\nSecond District\nNo. 2—90—0535\nOpinion filed April 10, 1991.\nRehearing denied May 14, 1991.\nJames E. Ryan, State’s Attorney, of Wheaton (Keith E. Letsche, Assistant State’s Attorney, of counsel), for appellant.\nJohn N. Pieper, Village Attorney, of Villa Park, for appellees.\n\nJUSTICE DUNN\ndelivered the opinion of the court:\nJames E. Ryan, the State’s Attorney of Du Page County, brought an action on behalf of the People of the State of Illinois for injunctive and declaratory relief against the Village of Villa Park (Village) and several members of its board of trustees (Board), alleging that the Board held a closed meeting on February 22, 1988, in violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.). The circuit court of Du Page County granted summary judgment to defendants on the basis that an exception to the Act applied because the acquisition of real estate was considered at the meeting. On appeal, plaintiff contends that the above exception, found in section 2(c) of the Act (Ill. Rev. Stat. 1983, ch. 102, par. 42(c)), only applies if a public body is involved in actual negotiations to purchase specific real estate; if the body is formulating the terms of an offer to acquire real estate; or if the body is conducting deliberations about an offer it intends to make, or an offer from a prospective seller. We reverse.\nThe relevant facts are not in dispute. On or about January 7, 1988, the Village manager of Villa Park, Paul Wenbert, found out about a program sponsored by the Forest Preserve District of Du Page County (Forest Preserve District) in which the district would consider proposals from municipalities to purchase land for flood control and recreational purposes. Within the next month, Wenbert found out that the Forest Preserve District expected participating municipalities to make financial contributions for land acquisition under the program. While Wenbert was attending a meeting with Forest Preserve District staff members during this period, he was told that no proposal from the Village would be considered unless it contained a commitment of Village funds.\nThe Villa Park Board of Trustees met in closed session on February 1, 1988, to discuss the Forest Preserve District conservancy program and areas of the Village that might be suitable for the program. Wenbert and William Boyd, the Village director of public works, told the Board about the requirements for participation which included submission of a proposal by the end of the month, payment of a portion of the costs of buying the property involved, committing Village funds for the proposal, and jointly developing any proposal with the City of Elmhurst.\nThe Board also discussed areas of the Village that might be included in the program. The discussion centered around a strip of land along Route 83 between the Illinois Prairie Path and Madison Street. The trustees spoke of preserving this area as a “greenbelt” and constructing an earthen berm along it which would hold back flood waters from the Salt Creek. An eight-foot-wide recreational path would be built atop the berm for walking, biking, jogging, and cross-country skiing. Boyd estimated that the fair market value of the property that would have to be acquired was $335,000. One trustee stated, however, that it could cost as much as $600,000 to obtain the land, a lengthy narrow strip which contained three houses. One member of the Board stated that, at a minimum, the Village would have to propose paying 25% of the land acquisition costs.\nAt the February 1 closed session, the trustees also talked about the possibility of closing off access to two streets from Route 83 near the site of the proposed “greenbelt berm” and the potential traffic problems that could result. They also discussed the possibility of having noise barriers constructed by the Department of Transportation along Route 83.\nThe Board held another closed meeting on February 22, 1988, during which it again discussed possible participation in the Forest Preserve District conservancy program. At this meeting, a report was presented from Village engineer Kenneth Magnus regarding the proposed greenbelt berm along Route 83.\nThe report concerning the greenbelt berm project states as follows. The berm was intended to protect 56 homes between Route 83 and Riverside Drive from flooding from the Salt Creek. A recreational path atop the berm could be used for various activities including jogging and bicycling. The berm would be approximately three-quarters of a mile long with a maximum height of six feet. It would be located along the west edge of the land to be obtained, which would total 7xk acres. This land consisted of 45 parcels of property, including 19 subdivided lots, and portions of the backyards of some homes located on Riverside Drive. The land contained three homes. The estimated market value of the land, including the homes, was $457,287.\nThe report further states that the greenbelt land would provide a location for the installation of a noise barrier along Route 83 and a visual barrier between the highway and the nearby residences. Additionally, it would be necessary to install a flap gate in a storm sewer on Highland Avenue to prevent Salt Creek backup past the berm. Total construction cost for the greenbelt berm project was estimated at $180,180. The Board directed that the greenbelt berm proposal as outlined in the report be submitted to the Forest Preserve District.\nIt is undisputed that there was no discussion at the February 1 or February 22 meetings as to how the property in question would be acquired or what titled interest, if any, the Village would receive. Village representatives did not discover until March 10, 1988, that they would be responsible for obtaining title to the property.\nIn plaintiff’s amended complaint, it was alleged that defendants violated the Act by holding the closed session on February 22. Plaintiff sought a declaratory judgment to that effect along with injunctive relief to prohibit future violations. Plaintiff and defendants filed cross-motions for summary judgment. The trial court denied plaintiff’s motion and granted defendants’ on the basis that a closed session was proper under section 2(c) of the Act (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)) because potential land acquisition was discussed. Plaintiff now appeals.\nAlthough summary judgment is a drastic remedy which should only be employed if the right of the movant is free from doubt (Purtill v. Hess (1986), 111 Ill. 2d 229, 240), it is appropriate when the parties agree on the material facts, and they only dispute the legal effect of those facts. (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) In the present case, the parties do not dispute the relevant facts; they only differ as to whether, under that state of facts, defendants violated the Act. Therefore, this was a proper case for summary judgment although a question remains as to whether plaintiff should have been granted summary judgment instead of defendants.\nSection 2 of the Act states in relevant part as follows:\n“All meetings of public bodies shall be public meetings except for *** (c) meetings where the acquisition of real property is being considered ***.\n* * *\nOnly those portions of any meeting expressly enumerated herein as exceptions may be closed. No final action may be taken at a closed meeting.” (Ill. Rev. Stat. 1989, ch. 102, par. 42.)\nSection 1 states it is the intent of the Act that public bodies conduct their deliberations and take their actions openly. (Ill. Rev. Stat. 1989, ch. 102, par. 41.) Since the exceptions set forth in section 2 to the general rule of open meetings are in derogation of this expressed intent these exceptions should be construed narrowly. Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App. 3d 226, 228.\nPlaintiff contends that the exception set forth in section 2(c) of the Act only applies if a public body is formulating the terms of an offer to acquire real estate, deliberating on the terms of an offer to sell real estate made to that body, discussing strategies for acquiring real estate, or discussing pending negotiations for the purchase of real estate by that body. According to plaintiff, a narrow construction of section 2(c) is in accord with the intention expressed in section 1.\nDefendants argue that such a narrow construction of section 2(c) would hamper the public in many instances. With regard to the instant case, defendants contend that disclosing the Village’s potential interest in the real estate may have led to land speculation which would have increased its fair-market value. Additionally, defendants note that the Board discussed estimates of the fair-market value of the land on February 1 and 22, and disclosure of the Board’s estimates may have affected its negotiating position.\nA statute should be construed to give effect to the intention of the legislature. (Gosnell v. Hogan (1989), 179 Ill. App. 3d 161, 170.) Since the language of a provision is the best indication of the drafters’ intent, if that language is unambiguous, the plain and ordinary meaning of that language will be given effect. (See Maloney v. Bower (1986), 113 Ill. 2d 473, 479.) If there is an ambiguity, however, other aids in construction may be considered, including the reason for the law, the purpose sought to be achieved through its passage, and the evils sought to be remedied. See American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 239; Chastek v. Anderson (1981), 83 Ill. 2d 502, 511.\nThe parties appear to agree that the language of section 2(c) which exempts from the general rule of public meetings, “meetings where the acquisition of real property is being considered” (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)), is ambiguous. In our view, this exception can reasonably be construed in the more expansive manner suggested by defendants. This would permit closed meetings to be held whenever specific real estate was to be discussed in connection with a proposed governmental program or project which was being considered that would require the acquisition of real estate.\nThe language can also reasonably be construed in the manner suggested by plaintiffs. Under this interpretation, since the Board in its February 1988 closed meetings did not discuss how it would try to obtain the property, or the terms of any offer or potential offer to purchase it, the exception would not apply. Thus, under this interpretation, while the Board discussed including the land in the conservancy program, and may have considered attempting to acquire it, the Board did not yet consider actually acquiring it at this preliminary stage in the absence of a discussion of the aforementioned matters. We therefore conclude that section 2(c) is ambiguous.\nIn light of this ambiguity, we will consider which interpretation best achieves the objectives the legislature sought to attain in passing the Act, and which interpretation best remedies the evils the legislature sought to be eliminated. As we have seen, section 1 states it is the intent of the Act that deliberations of public bodies be conducted openly (Ill. Rev. Stat. 1989, ch. 102, par. 41). Furthermore, after section 2 lists the exceptions to the general rule of open public meetings, it states, “[o]nly those portions of any meeting expressly enumerated herein as exceptions may be closed.” (Ill. Rev. Stat. 1989, ch. 102, par. 42.) The legislature clearly sought to permit closed meetings only when absolutely necessary.\nWhen public bodies hold closed meetings, the possibility of citizen input on the matters discussed at the meeting is eliminated. Closed meetings may also make it easier for public officials to shield themselves from public accountability for views expressed or actions taken at the meeting. The drafters of the Act recognized the value of citizen input and participation in government in a democratic society and therefore sought to remedy the above evils.\nIn the case at bar, the Board discussed matters at the February 1 and 22 closed sessions that were of great significance to Villa Park citizens. The proposed construction of the greenbelt berm, the proposed sewer flap gate, and the potential land acquisition would have involved a large expenditure of Village funds. Obviously, efforts at flood control in regions such as the Salt Creek area where flooding is a major concern are of tremendous importance to affected landowners. The Board also discussed other matters of interest to the citizenry such as potentially closing off access from a couple of side streets to Route 83 and having a noise barrier constructed along Route 83.\nDefendants argue that the closed meetings were necessary because disclosure of the Village’s potential interest in obtaining the land in question may have led to land speculation which could have driven up the value of the property. Although there is some validity to this concern, we believe it is outweighed by other concerns. If a public agency decides to try to purchase property, it must eventually disclose this desire to the owner. This makes it impossible to eliminate the potential danger of land speculation. Furthermore, such disclosure does not necessarily drive up the value of property; it may have the opposite effect, or no effect.\nAdopting defendants’ position would mean that public agencies could hold closed meetings any time they discussed programs or projects that necessarily involve land acquisition, as long as they mentioned specific parcels that might be obtained. This is precisely what occurred in this case, as the Village trustees went behind closed doors, discussed participation in a significant intergovernmental program, and decided to submit a proposal for participation in the program. Defendants’ logic could lead to foreclosure of public debate on significant matters such as airport expansion and construction of stadia for sports franchises. This is completely contrary to the objectives of the Act.\nMoreover, in some instances, disclosure of the location of land that might be obtained for a project or program could serve the public interest by spurring public debate over matters such as whether the land is suitable for the project, whether other land may be less expensive or more suitable, and whether other concerns exist which indicate the present use of the land should be maintained. Because of these factors, we conclude plaintiff’s interpretation of section 2(c) is consistent with the Act’s objectives, and we therefore adopt that interpretation. The exemption in section 2(c) of the Act only applies if public agencies are discussing formulating the terms of an offer to purchase specific real estate or discussing the seller’s terms, or if it is considering strategy for obtaining specific real estate. Our position is consistent with the holding of the Missouri Appellate Court in Tipton v. Barton (Mo. App. 1988), 747 S.W.2d 325. In Tipton, the court interpreted a similar exception in the Missouri Open Meetings Act and stated, “the actual terms of any real estate transaction or a negotiating position of the city is not disclosed ***, and a mere reference to a real estate transaction is not sufficient to trigger [the exception].” Tipton, 747 S.W.2d at 331.\nIt is undisputed that the aforementioned matters were not discussed at the February 1 or February 22 meetings. Therefore, defendants violated the Act, and summary judgment should have been granted to plaintiff. We therefore reverse the order of the circuit court of Du Page County granting summary judgment to defendants and remand the cause with instructions to grant plaintiff’s motion for summary judgment. The relief granted shall include a declaration that the Board violated the Act by holding a closed meeting on February 22, 1988, and an injunction prohibiting future violations of the Act by the Board and any individual defendants who are still trustees.\nDefendants assert that such relief is not appropriate because, even if they violated the Act, the exception set forth in section 2(c) is somewhat vague. We conclude, however, that the two February 1988 closed sessions in which vital matters were discussed clearly contravened the objectives of the Act. Moreover, defendants in this case made no attempt to comply with the Act by limiting their closed session discussion to matters they may have believed were within the section 2(c) exception. Instead, they were discussing matters clearly outside the exception, such as closing off access to Route 83 from certain streets, having a noise barrier built along Route 83, and installing a sewer flap gate. For these reasons, we find that declaratory and injunctive relief is necessary.\nReversed and remanded with directions.\nUNVERZAGT and NICKELS, JJ., concur."}
{"dedup_key":"pre1996-130767","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"192 ill-app-3d 530","case_name":"Baudin v. City of Crystal Lake","court_level":"Appellate","appellate_district":"2nd","year":1989,"county":null,"appellate_docket":"2-89-0240","circuit_docket":null,"published":1,"authoring_justice":"Dunn","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Crystal Lake","requesting_party":"William Baudin","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The appellate court held that the trial court erred in granting summary judgment to the City without conducting an in camera inspection of the disputed records. The court emphasized that trial courts should generally perform an in camera review to verify claims of exemption rather than relying solely on the public body's affidavits.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=130767","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:48.737253","site_category":"FOIA Response Process","date_decided":"1989-12-15","site_url":"/cases/pre1996-130767/","text_url":"/case-text/pre1996-130767.txt","full_text":"WILLIAM BAUDIN, Plaintiff-Appellant, v. THE CITY OF CRYSTAL LAKE, Defendant-Appellee.\nSecond District\nNo. 2—89—0240\nOpinion filed December 15, 1989.\nMcLAREN, J., concurring.\nW. Randal Baudin, of Madsen, Baudin, Stolfi & Sugden, of Crystal Lake, for appellant.\nJohn L. Cowlin, of Cowlin, Ungvarsky, Kukla & Curran, of Crystal Lake, for appellee.\n\nJUSTICE DUNN\ndelivered the opinion of the court:\nOn June 20, 1988, plaintiff, William Baudin, filed an information request with defendant, City of Crystal Lake (City), regarding the policies and procedures of the Crystal Lake police department in the handling of information and the follow-up of a hit-and-run accident. Defendant denied plaintiff’s request, claiming that the information was exempt from disclosure under Illinois law. After plaintiff unsuccessfully appealed to the City, he then sought disclosure pursuant to the Illinois Freedom of Information Act (Information Act or Act) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.) by filing a complaint for a declaratory judgment and injunctive relief on July 21, 1988. Plaintiff specifically sought a de novo review and an in camera inspection of the disputed material to determine what must be disclosed to him under the Act. Ill. Rev. Stat. 1987, ch. 116, par. 211(e).\nOn February 8, 1989, the trial court, after hearing the arguments of counsel, denied plaintiff’s request for an in camera inspection and granted defendant’s motion for summary judgment. Plaintiff, an attorney acting pro se, appeals, contending that it was error for the trial court to refuse to inspect the materials in camera and to grant summary judgment to defendant because the trial court could not have made an independent, de novo determination of discloseable matter based only on the conclusory affidavits of defendant. We agree that the affidavits are merely conclusory and that the trial court had an inadequate factual basis for granting summary judgment for defendant. We reverse the judgment of the circuit court and remand the cause with instructions.\nPlaintiff originally sought information concerning the policies and procedures of the police department with respect to: (a) handling and receiving information from telephone callers regarding automobile accidents (hit-and-run); (b) receiving information in person concerning an accident; (c) follow-up on information received concerning automobile accidents; and (d) investigation guidelines with respect to automobile accidents, including hit-and-run accidents. Plaintiff also sought excerpts of radio tapes of the City’s police department for June 17, 1988, for the period between 8 p.m. and 8:30 p.m., and for June 18, 1988, from 9:15 a.m. to 9:45 a.m.\nIn response to plaintiff’s request, defendant, through its freedom of information officer, Martin K. Vanags, sent a letter to plaintiff on June 23, 1988, denying plaintiff’s request and claiming that items (a) through (d) were exempt from disclosure under section 7(w) of the Information Act, which exempts information “related solely to the internal personnel rules and practices of a public body.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(w).) Vanags’ letter also stated that the radio tapes were exempt from disclosure under section 7(e) of the Act, which exempts records of “State and local law enforcement agencies and correctional agencies that are related to the detection and investigation of crime.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(e).) Plaintiff appealed the decision to the city manager, Joseph Misurelli, as head of the public body. Misurelli affirmed the decision to deny disclosure, stating the same reasons for the denial.\nPlaintiff sought review in the circuit court. On July 28, 1988, the circuit court entered an agreed order which denied plaintiff’s request for injunctive relief concerning preservation of the tape excerpts, based on the representation and assurance by the City that the tape excerpts and the policies and procedures would be preserved during the pendency of the court proceedings and that they were to be tendered to the court for an in camera inspection as the court or plaintiff requested and as “otherwise provided by law.”\nOn August 18, 1988, the City filed its answer and sought dismissal of plaintiff’s action. On August 30, 1988, Baudin filed a motion to compel the City to produce the disputed materials for purposes of an in camera inspection by the trial court.\nOn September 12, 1988, the City filed a motion for summary judgment. Plaintiff filed his motion to strike the City’s motion for summary judgment as well as the supporting affidavits which plaintiff claimed were conclusory; in the alternative, plaintiff moved to deny the defendant’s motion for summary judgment.\nThe hearing to address these motions was periodically continued, and, on January 13, 1989, an order was entered setting the cause for further arguments on plaintiff’s motion to compel, defendant’s motion for summary judgment, and plaintiff’s motion to strike defendant’s affidavits and motion for summary judgment. Ultimately, the circuit court denied plaintiff’s request for an in camera inspection and granted defendant’s motion for summary judgment.\nThe central issue to be determined is whether the procedures utilized by the circuit court were sufficient to provide plaintiff an adequate due novo determination of whether the requested information was discloseable under the Act; as a corollary, it must be determined whether the City met its burden of showing that the materials requested were exempted under the Act.\nThe purpose of the Information Act is to open governmental records to the light of public scrutiny. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) In order to foster governmental accountability and an informed citizenry, the public policy of this State encourages a free flow and disclosure of information between the government and the people; the Information Act is to be liberally construed to achieve this goal, and there is a presumption that public records are open and accessible, subject only to exemptions that are to be read narrowly. Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378, 538 N.E.2d 557.\nThe restraints on access to information are to be regarded as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of governmental activity that affect the conduct of government and the lives of people. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) If any public record is exempt from disclosure under section 7 of the Act (Ill. Rev. Stat. 1987, ch. 116, par. 207) and it contains material which is not exempt, the public body shall delete the exempted material and make the remaining information available for inspection and copying. Ill. Rev. Stat., 1988 Supp., ch. 116, par. 208.\nUnder the Information Act, the burden of proof is on the City to establish that the material in question is exempt from disclosure; however, governmental agencies cannot clothe material regarding the affairs of government with an exemption from public disclosure by ipse dixit statements that the material is exempt. (Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 475-76, 511 N.E.2d 759.) Reliance upon self-determination by public officials and employees as to what should or should not be disclosed to the public would frustrate the purposes of the Information Act. 158 Ill. App. 3d at 476.\nSection 11(f) of the Act requires the circuit court to consider the matter de novo and requires the court to conduct whatever in camera inspection of the requested records it finds appropriate to determine whether the records or any part of them may be withheld under the Act. (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 211(f).) Whether the material is exempt under the Act is necessarily a factual determination to be made by the court based on its examination of the affidavits and, if required, based on an examination of the documents themselves in camera. Hoffman, 158 Ill. App. 3d at 476-77.\nIn determining whether matter is exempt under the Act, a case-by-case approach is clearly warranted. (See City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 228, 494 N.E.2d 896; Reinstein v. Police Commissioner (1979), 378 Mass. 281, 290-91, 391 N.E.2d 881, 886.) An agency such as a police department cannot simply take the position that, since it is involved in investigatory work and some of its records are exempt from disclosure under the Act, every document in its possession somehow comes to share in that exemption. (See Bougas v. Chief of Police (1976), 371 Mass. 59, 66, 354 N.E.2d 872, 878.) The classification of information as “law enforcement” or “investigatory” does not necessarily foreclose access unless it can be shown, in a particular case, that disclosure would interfere with law enforcement and would, therefore, not be in the public interest. (McClain v. College Hospital (1985), 99 N.J. 346, 355-57, 492 A.2d 991, 996.) Routine review of governmental functions is not sheltered, but when the inquiry departs from the routine and focuses with special intensity upon a particular party, an investigation is under way. 99 N.J. at 355-57, 492 A.2d at 996.\nBased on its particular facts, this case is one of first impression in this court. There is a paucity of Illinois case law dealing \"with the exemptions claimed by the City in the present case. We shall attempt to fill this void. Where necessary, we have considered persuasive decisions from other jurisdictions; in particular, we have considered decisions of the Federal courts, where the Illinois Act closely parallels Federal law. Griffith Laboratories U.S.A. v. Metropolitan Sanitary District (1988), 168 Ill. App. 3d 341, 345, 522 N.E.2d 744.\nPlaintiff contends that the City failed to meet its burden of showing that it was entitled to the exemptions based on the City’s conclusory affidavits; plaintiff argues that, in the absence of an in camera inspection of the requested materials, the court could not have made an informed decision to grant summary judgment to the City. Summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The trial court is to construe the record before it strictly against the movant. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055, 374 N.E.2d 1302.) Summary judgment is a drastic remedy and, as such, must be granted only when the movant’s right to judgment as a matter of law is clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867; Allstate Insurance Co. v. Tucker (1989), 178 Ill. App. 3d 809, 812, 533 N.E.2d 1004.\nThe City’s motion for summary judgment alleged that the information requested by plaintiff (items (a) through (d)) was exempt from disclosure under section 7(e) of the Act because the information concerns records of “State and local law enforcement agencies that are related to the detection and investigation of crime or the security and operations of correctional institutions.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(e).) Alternatively, the City’s affidavits allege that the information requested was exempt from disclosure because it concerns matter “related solely to the internal personnel rules and practices of a public body.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(w).) In support of its motion, the City appended the affidavit of Martin K. Yanags. He stated that plaintiff’s request for information (items (a) through (d)) related entirely to the “internal investigative rules and practices of the Crystal Lake Police Department regarding automobile accidents,” because the information “specifically” concerned “the proper use of complaint memo forms and reporting procedures, the procedures for communications and record department personnel, and the proper procedure for preparing departmental reports subsequent to investigations by police personnel.” The radio tapes (item (e)) were characterized as containing “the verbal reports of alleged criminal activity that is or has occurred in the City of Crystal Lake and are used for investigative purposes by the Police Department.” The affidavit of Joseph Misurelli, who affirmed Yanags’ decision to deny disclosure, was essentially a reiteration of Yanags’ affidavit.\nWe find from our examination of the City’s affidavits that they were entirely conclusory and merely recite or paraphrase the language of the statute without giving any clue as to the discloseability of the requested documents. As such, they provided an insufficient factual basis to permit the trial court to grant summary judgment to the City, particularly in the absence of an in camera inspection of the disputed material. The burden is on the governmental agency to prove that specific documents fit within one of the statutory exemptions. 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. Antonelli v. Drug Enforcement Administration (7th Cir. 1984), 739 F.2d 302, 303, citing Vaughn v. Rosen (D.C. Cir. 1973), 484 F.2d 820, 826-28 (Vaughn I).\nAs the Vaughn court explained, it is obvious that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information. (484 F.2d at 823.) Therefore, aside from legal argument,, where the sole support regarding the contents of documents and their exemption is contained in a conclusory affidavit, courts must no longer accept such conclusory or generalized allegations of exemption and must require a relatively detailed analysis of the documents in manageable segments. Vaughn, 484 F.2d at 823, 826.\nWhen an agency meets its burden by means of affidavits, in camera review is not necessary. (Hayden v. National Security Agency (D.C. Cir. 1979), 608 F.2d 1381, 1387.) However, the affidavits will not suffice if the agency’s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. 608 F.2d at 1387.\nWe observe that, in the present case, one of the exemptions claimed by defendant was embodied in a statutory provision which has been amended during the pendency of this case in the trial court, a fact apparently unnoticed by the parties. (Pub. Act 85 — 1357, eff. Jan. 1, 1989 (amending Ill. Rev. Stat. 1987, ch. 116, par. 207(e)).) The case must be disposed of by the reviewing court under the law as it exists at the time its decision is rendered. To the extent that defendant claims an exemption under section 7(e) regarding the “investigation and detection of crime,” defendant’s claim is mooted by the deletion of that language that formerly applied to law enforcement agencies, and that aspect of the former statutory provision is no longer at issue. (See People v. B.D.A. (1984), 102 Ill. 2d 229, 233, 464 N.E.2d 1073, 1075.) If the City is to sustain its burden of showing that it is entitled to an exemption because the material pertains specifically to the detection and investigation of crime, it must undoubtedly do so under one of the specific provisions of section 7(c) of the amended Act (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 207(c)). On remand defendant will have to demonstrate what, if any, provision in that section is applicable. We decline to assume the role of advocate for the government on appeal, and we will act only on the record as it presently exists. See People v. Bartlett (1988), 175 Ill. App. 3d 686, 691, 530 N.E.2d 90.\nThough we have determined that the City’s affidavits were conclusory and that the trial court had an insufficient basis to grant summary judgment for defendant, our inquiry is not yet complete. Because the trial court must hold further proceedings consistent with the views expressed in this opinion, we believe that a recurring question will necessarily arise regarding the standard by which the circuit court is to determine the applicability of the remaining exemption claimed by defendant under section 7(w) of the Act, information related solely to the “internal personnel rules and practices of a public body,” in this case, a law enforcement agency.\nDefendant contends that the affidavits in support of its motion for summary judgment established that the information requested in items (a) through (d) of plaintiff’s request is related to the internal personnel rules and practices of a public body and that the material involved the detection, investigation, evaluation, and processing of automobile accident complaints filed with the City. Furthermore, defendant argues that the policies and procedures are not written to regulate the public and do not embody any “secret law” of the police department; rather, the withheld information refers to investigative techniques in the form of prescribed rules and practices. Defendant maintains that the documents requested by plaintiff are internal, directional regulations which have no public utility. Defendant’s characterization of the materials as investigative, internal personnel practices is, of course, conclusory. Defendant cites no authority for the proposition that such a characterization, even if valid, automatically confers an absolute exemption on the disclosure.\nThe Illinois exemption for “internal personnel rules and practices” is similar to the Federal Freedom of Information Act provision commonly known as “Exemption 2.” (5 U.S.C.A. §552(b)(2) (West 1977); see Hardy v. Bureau of Alcohol, Tobacco & Firearms (9th Cir. 1980), 631 F.2d 653, 655.) The Hardy court determined that materials instructing law enforcement agents on how to investigate violations concerned internal personnel practices. 631 F.2d at 656. But see Hawkes v. Internal Revenue Service (6th Cir. 1972), 467 F.2d 787, 796-97 (internal personnel rules and practices refer only to employee-employer relations and working conditions; however, exemption found in other provisions of the Act).\nIn interpreting the coverage of Exemption 2, the Hardy court held:\n“[L]aw enforcement materials, disclosure of which may risk circumvention of agency regulation, are exempt from disclosure. In so ruling we recognize the distinction between ‘law enforcement’ and ‘administrative’ materials. See, e.g., Hawkes v. Internal Revenue Service, 467 F.2d 787, 794-95 (6th Cir. 1972). ‘Law enforcement’ materials involve methods of enforcing the laws, however interpreted, and ‘administrative’ materials involve the definition of the violation and the procedures required to prosecute the offense. All administrative materials, even if included in staff manuals that otherwise concern law enforcement, must be disclosed unless they come under one of the other exemptions of the act. Such materials contain the ‘secret law’ which was the primary target of the act’s broad disclosure provisions.” 631 F.2d at 657.\nFinding certain law enforcement materials of the Internal Revenue Service discloseable under section (a)(2)(C) of the Federal Act (5 U.S.C.A. §552(a)(2)(C) (West 1977)), which concerns administrative staff manuals and instructions to staff, the Hawkes court described the law enforcement process and the limits of disclosure in the following terms:\n“Law enforcement is the process by which a society secures compliance with its duly adopted rules. Enforcement is adversely affected only when information is made available which allows persons simultaneously to violate the law and to avoid detection. Information which merely enables an individual to conform his actions to an agency’s understanding of the law applied by that agency does not impede law enforcement and is not excluded from compulsory disclosure under (a)(2)(C).\nFar from impeding the goals of law enforcement, in fact, the disclosure of information clarifying an agency’s substantive or procedural law serves the very goals of enforcement by encouraging knowledgeable and voluntary compliance with the law. Such clarifying information is found in agency rulings made public; it is also found in many cases in manuals and instructions like those sought here which are addressed specifically to agency personnel. It may be found in the criteria for investigative action; in standards for evaluation and so forth. Materials providing such information are administrative in character and clearly discloseable ***.\nThe exception for law enforcement materials contained in (a)(2)(C) is, as suggested above, a very narrow one and is to be applied only where the sole effect of disclosure would be to enable law violators to escape detection. Thus, for example, there is reason to exempt from compulsory revelation details of a selective enforcement policy made necessary by a lack of sufficient investigatory personnel. Similarly interrogation techniques or the mechanics of an F.B.I. ‘stakeout’ arrangement properly could be excluded from disclosure ***.” (Emphasis in original.) Hawkes v. Internal Revenue Service, 467 F.2d at 795.\nIn Hawkes, the United States Court of Appeals for the Sixth Circuit announced a variation of the test for excluding law enforcement materials from mandatory disclosure. The court stated that only “information which, if known to the public, would significantly impede the enforcement process” falls within the exemption in section (a)(2)(C). (Emphasis in original.) 467 F.2d at 795.\nIn Crooker v. Bureau of Alcohol, Tobacco & Firearms (D.C. Cir. 1981), 670 F.2d 1051, a definitive test has been applied to “Exemption 2” regarding personnel rules and practices of an agency. Crooker traced the evolution and development of the law regarding the disclosure of investigatory and law enforcement materials. The United States Court of Appeals for the District of Columbia Circuit held in Croolcer that certain portions of the Bureau’s agents’ training manual entitled “Surveillance of Premises, Vehicles and Persons — New Agent Training” were exempt from disclosure under the internal personnel rules and practices exemption because they were developed predominantly for internal use and disclosure would significantly risk circumvention of the agency’s regulations or statutes. (670 F.2d at 1075.) In so holding, the court observed that the manual was used for predominantly internal purposes; it was designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques; it involved no “secret law” of the agency; and, it was conceded that public disclosure would risk circumvention of the agency’s regulations.\nIn formulating a two-pronged test of “predominant internality” and disclosure significantly risking circumvention of an agency’s regulations or statutes, the court relied on the Supreme Court’s language in Department of the Air Force v. Rose (1976), 425 U.S. 352, 364, 369-70, 48 L. Ed. 2d 11, 23, 26, 96 S. Ct. 1592, 1600, 1603, as well as on the expression “predominant internality” used by Judge Leventhal in Jordan v. United States Department of Justice (D.C. Cir. 1978), 591 F.2d 753, 783-84 (en banc) (Leventhal, J., concurring). See also Vaughn v. Rosen (D.C. Cir. 1975), 523 F.2d 1136, 1150-51 (Vaughn II) (Leventhal, J., concurring).\nJudge Leventhal stated:\n“Exemption 2 is applicable where the document consists of internal instructions to such government officials as investigators and bank examiners. In such a case disclosure would permit circumvention of the law, and there is no substantial, valid external interest of the community at large in revelation. That composite presents a matter that involves solely internal personnel rules and internal practices of an agency for purposes of making Exemption 2 applicable.” Jordan, 591 F.2d at 783 (Leventhal, J., concurring).\nJudge Leventhal further explained:\n“[W]hen what is involved are internal instructions to such officials ***, and revelation would permit circumvention of law and regulations by the regulated and there is no substantial valid external interest, there is the essential quality of predominant internality ***.” 591 F.2d at 783 (Leventhal, J., concurring).\nThe Crooker test has been adopted by several appellate courts. (See cases cited in Hobart Corp. v. Equal Employment Opportunity Comm’n (S.D. Ohio 1984), 603 F. Supp. 1431, 1450, vacated (1985), 716 F. Supp. 307.) The United States Court of Appeals for the Seventh Circuit has cited the Crooker test with approval, pointing out that it has now been codified at 5 U.S.C. § 552(b)(7)(E) (1988). (Kaganove v. Environmental Protection Agency (7th Cir. 1988), 856 F.2d 884, 889.) We find the Crooker test applicable to the present case and hereby adopt it as the standard to determine whether investigatory or law enforcement materials should be disclosed under section 7(w) of the Illinois Information Act (Ill. Rev. Stat. 1987, ch. 116, par. 207(w)). It is likely that the Crooker test may also be applicable to certain provisions of section 7(c) of the Act (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 207(c)). However, that precise question is not presently before us.\nTo summarize, we hold that: (1) the City has not met its burden of showing that it was entitled to the claimed exemptions; (2) the City’s affidavits were conclusory and constituted an insufficient basis for the trial court to grant summary judgment for the City; and (3) when a governmental agency such as defendant here believes that materials sought under our Freedom of Information Act are within an exempt category of investigatory or law enforcement materials as described herein, it should submit to the circuit court a detailed affidavit describing how disclosure significantly risks circumvention of the law or of the agency’s regulations. Where “investigatory” or “law enforcement” materials are involved, if the agency claims an exemption under the internal policies and practices provision, the test to determine whether the material is to be disclosed is the Crooker test. If a document for which disclosure is sought meets the test of “predominant internality” and if the disclosure significantly risks circumvention of the agency’s regulations or of statutes, the material is exempt from mandatory disclosure.\nUpon remand, the trial court must make a de novo review of the agency’s classification decision, and the burden is on the agency to justify nondisclosure. The trial court shall require the agency to create as full a public record as possible concerning the nature of the documents and the justification for nondisclosure without compromising the secret nature of the information. If the affidavits show with reasonable specificity why the documents fall within the claimed exemption under the test announced here, then summary judgment is appropriate without in camera review. The affidavits must be sufficient to allow adversarial testing. If the agency fails to make a sufficient showing by affidavit to permit a responsible de novo review, the trial court may order in camera review of the documents. In such a case, those portions not covered by affidavit or containing “secret law” may be ordered disclosed. (See Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d at 657.) The circuit court shall order the release of segregable portions of documents that do not fall within the claimed exemption. (See Hayden v. National Security Agency, 608 F.2d at 1384.) The indexing of documents is not required unless the plaintiff brings a motion to that effect under the new provisions found in section 11(e) of the Act (Ill. Rev. Stat., 1988 Supp., ch. 116, par. 211(e)).\nFor the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded -with directions.\nReversed and remanded with directions.\nUNVERZAGT, RJ., concurs.\n\nJUSTICE McLAREN,\nconcurring:\nI concur in the majority opinion. However, I believe one aspect of the opinion needs greater emphasis. The placement of detailed information in an affidavit is necessary if the trial court is to be sufficiently apprised of the nature and extent of the information contained in the contested documentation. Disclosure of such information in an affidavit may foreseeably result in disclosure of the information sought by the plaintiff. The defendant, in attempting to keep such information from the plaintiff, will find it extremely difficult to prepare affidavits that give the court sufficient information to determine that a privilege exists while simultaneously constricting the information to safeguard nondisclosure via the affidavit.\nThe trial court should be hesitant in determining a privilege exists based solely on the affidavits submitted by the defendant, for without an in camera review there is no external means to verify the truthfulness of the affidavits submitted by the defendant. I therefore believe that trial courts, except in rare instances, should not determine that a privilege exists without an in camera review of the contested documentation.\n“The proof of the pudding is in the tasting.”"}
{"dedup_key":"pre1996-126160","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"163 ill-app-3d 578","case_name":"Argo High School Council of Local 571 v. Argo Community High School District 217","court_level":"Appellate","appellate_district":null,"year":1987,"county":null,"appellate_docket":"86-2408","circuit_docket":null,"published":1,"authoring_justice":"Murray","statute":["OMA"],"exemptions_cited":[],"public_body":"Argo Community High School District 217","requesting_party":"Argo High School Council of Local 571, IFT, AFT, AFL-CIO","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the school board's meeting held on a legal holiday complied with the Open Meetings Act, as the notice provided was sufficient and the actions taken were germane to the agenda. Furthermore, the court noted that any alleged violation was cured when the successor board subsequently affirmed the actions taken at the meeting in question.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=126160","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:49.214313","site_category":"Meeting Notices & Agendas","date_decided":"1987-11-20","site_url":"/cases/pre1996-126160/","text_url":"/case-text/pre1996-126160.txt","full_text":"ARGO HIGH SCHOOL COUNCIL OF LOCAL 571, IFT, AFT, AFL-CIO, et al., Plaintiffs-Appellants, v. ARGO COMMUNITY HIGH SCHOOL DISTRICT 217, Defendant-Appellee.\nFirst District (5th Division)\nNo. 86—2408\nOpinion filed November 20, 1987.\nGilbert Feldman, of Cornfield & Feldman, of Chicago, for appellants.\nJames C. Franczek, Jr., and Andrea R. Waintroob, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.\n\nJUSTICE MURRAY\ndelivered the opinion of the court:\nPlaintiffs, Argo High School Council of Local 571, IFT, AFT, AFL-CIO, Helen Pluta, and Wendy Thompson (the union), appeal from an order of the circuit court of Cook County dismissing their amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—615) in which they sought relief under the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.) against defendant, Argo Community High School District 217 (the district). For the reasons set forth below, we affirm.\nOn October 21, 1985, the district rescheduled its regular board meeting day of November 11 for November 12 and, at the same time, scheduled a special meeting for November 11; November 11 fell on Veterans Day and was a legal holiday. On November 5, a school board election was held and two incumbent board members were defeated for reelection, thereby changing the previous majority on the seven-member board enjoyed by the district superintendent. On November 7, the secretary of the “lame duck” board (the predecessor of the November 5 board) posted and published notice of the special meeting to be held on November 11. The stated agenda for the special meeting was “[rjeview and discussion of salaries involving administrators, supervisors and other personnel not covered by agreements.” At the meeting, the “lame duck” board adopted certain motions providing the following: (1) extension of the superintendent’s contract for one year through the 1986-87 school year; (2) a change in the appointment of department chairpersons from a permanent basis to a three-year rotational basis; and (3) the posting and receiving of applications for the position of athletic director for the 1986-87 school year.\nOn December 26, the union filed a complaint contending that the November 11 special meeting violated the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.). Its complaint sought a declaratory judgment voiding the actions taken at the special meeting. After the trial court struck the original complaint on the district’s motion, the union filed an amended complaint on June 6, 1986. The amended complaint was stricken on August 6, and this appeal followed.\nThe union contends on appeal that the special meeting was in violation of the Open Meetings Act (the Act) because (1) it was held on a legal holiday in violation of section 2.01 and (2) the meeting’s agenda violated section 2.02 of the Act requiring the agenda to be listed. Ill. Rev. Stat. 1985, ch. 102, pars. 42.01, 42.02.\nWe first address the union’s claim that the special meeting violated section 2.01 of the Act. Section 2.01 provides:\n“All meetings required by this Act to be public shall be held at specified times and places which are convenient to the public. No meeting required by this Act to be public shall be held on a legal holiday unless the regular meeting day falls on that holiday.” (Ill. Rev. Stat. 1985, ch. 102, par. 42.01.)\nThe trial court concluded that the second sentence of the above provision permitted two interpretations. One interpretation was that no meeting can be held on the legal holiday unless the meeting is a “regular” meeting falling on the holiday. The second interpretation was that no meeting (regular, special, rescheduled or reconvened meeting) could be held on a holiday unless the legal holiday was the same day as the regular meeting day and the regular meeting was not held on that day. The trial court relied on the second interpretation, reasoning that the legislature could have, if it wanted to preclude a special or other meeting from being held on a legal holiday, used language specifically indicating that intent. More particularly, the court stated as follows:\n“[A] special meeting cannot be held on a legal holiday unless that legal holiday is a day where a regular meeting day ordinarily occurs, even though the regular meeting may not be held on that day.\nNow, why do I say that? I say that because the legislature would not have had to use the word day. They could have simply said unless the regular meeting falls on that holiday, but they didn’t. They inserted the word day[.]\n*** To me that contemplates that some other meeting could be held on a legal holiday pursuant to notice if the regular meeting day falls on that holiday. It does not require the regular meeting also to be held on that holiday.”\nWe agree with the trial court. Instead of the language used by the legislature, it could have provided, in accordance \"with the union’s interpretation, no special, rescheduled or reconvened meeting may ever be held on a holiday; only a regular meeting which falls on the holiday may be held on that day. We also briefly note that we find the union’s argument unpersuasive that the trial court’s interpretation of the language contravenes the legislature’s intent to make meetings convenient to the public and that, by holding the special meeting on a holiday, public members who might otherwise have attended a special meeting would not do so because it was held on a holiday. The objected-to agenda business, i. e., the three motions submitted and approved by the “lame duck” board, could have been considered at a regular meeting as well as at a special meeting. It is only a matter of serving proper notice of a meeting and the anticipated agenda of such a meeting that is required by the Act — any one particular agenda is not relegated to being discussed at only a regular meeting. Thus, the fact that the special meeting of November 11 was held to discuss these motions prior to the successor board’s taking office does not change the right of the “lame duck” board to take action on matters where proper notice is given. We therefore find no contravention of the intent of the legislature to make public meetings convenient to the public where the special meeting happened to be scheduled on a regular meeting day, a day that any interested party would have attended the regular meeting or could have attended the special meeting in its stead, where properly notified.\nAccordingly, since it is not within the province of this court to enlarge the meaning of a statute aimed at correcting any supposed defect or omission (In re Estate of Swiecicki (1984), 121 Ill. App. 3d 705, 460 N.E.2d 91, aff’d (1985), 106 Ill. 2d 111, 477 N.E.2d 488), we affirm the trial court’s decision on this issue.\nThe union’s final argument, that the notice of the special meeting violated section 2.02 of the Act (Ill. Rev. Stat. 1985, ch. 102, par. 42.02) because some of the items considered and voted upon at the meeting were not germane to the listed agenda, must also be rejected. As previously discussed above, the agenda listed in the notice of the special meeting was stated as “review and discussion of salaries involving administrators, supervisors, and other personnel not covered by an agreement.” The motions presented and adopted at the meeting, which the union urges are null and void, included (1) an extension of the superintendent’s term, (2) a change in the appointment of department chairpersons from a permanent to a three-year rotational basis, and (3) the posting and receiving of applications for the position of athletic director for the 1986-87 school year.\nSection 2.02 provides, in pertinent part:\n“Public notice of any special meeting *** or of any rescheduled regular meeting, or of any reconvened meeting, shall be given at least 24 hours before such meeting, which notice shall also include the agenda for the special, rescheduled, or reconvened meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 102, par. 42.02.\nWe note that the word “germane” literally means having the same parents. (Webster’s Third New International Dictionary 951 (1981).) Like other words, the law has expanded the literary definition to mean matters never conceived of by the person or persons who originally conceived the word. According to Black’s Law Dictionary 618 (5th ed. 1979), “germane” is defined as “in close relationship, appropriate, relative, pertinent.” Courts have expanded the meaning of the word even further, holding that where the title of an act is general, anything germane to the subject matter passes the constitutional prohibition against special legislation. (Ill. Const. 1970, art. IV, §13; People v. Calcaterra (1965), 33 Ill. 2d 541, 213 N.E.2d 270.) Additionally, in a recent case our court held that the offense of hunting without the permission of both a tenant and landlord was germane to an act entitled “Wildlife Code” (Ill. Rev. Stat. 1985, ch. 61, par. 1.1 et seq.). People v. Fenwick (1985), 137 Ill. App. 3d 457, 484 N.E.2d 915.\nHere, the union, in arguing that the passed upon motions were not germane to the listed agenda, contends that these matters were controversial and that they therefore should have been specifically detailed in the notice. The basis for the union’s contention appears to be that the “lame duck” board scheduled the special meeting to rule on matters which the successor board, with its two new members, would not have approved.\nWe briefly note that the term “lame duck” means an elected officer or group holding political office during the interim between defeat at a reelection and inauguration of a successor(s). (Webster’s Third New International Dictionary 1266 (1981).) We are aware of no law in Illinois which precludes political or nonpolitical “lame ducks” from legally acting until termination of office. In fact, it is axiomatic that public boards are continuing and that changes in composition do not affect the legality of actions taken by predecessor boards. (Libertyville Education Association v. Board of Education (1977), 56 Ill. App. 3d 503, 371 N.E.2d 676.) Accordingly, whether the district board at the time of the special meeting was a “lame duck” board or not is immaterial in this case. Therefore, if the board’s special meeting on Veterans Day consisting of the “lame duck” members was in compliance with the requirements of the Open Meetings Act, its actions on that date were not null and void as contended by the union.\nIn light of the above, we find the union’s argument unpersuasive that the actions taken by the “lame duck” board were not germane to the listed agenda statement. Discussions of who can authorize salary increases (the rotation system), who will receive a salary, and the length of the superintendent’s contract are “closely related” and “pertinent” to a discussion of salaries of personnel not covered by agreements. Moreover, the Act only requires that a public body “substantially” comply with the Act’s provisions. (Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385; In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.) Here, the meeting was held on a proper day, as discussed above, timely notice was given and, at the least, the Board took actions which were not specifically detailed but which were “closely related” to the agenda listed in the notice. Accordingly, we find no lack of substantial compliance with the Act or that the motions passed were not germane to the agenda listed in the district’s notice.\nFinally, it is well established that where there has been a prior violation of the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.), a board is not prevented from calling a subsequent meeting, noticed in full compliance with the requirements of the Act, and there taking the identical action (see Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 468 N.E.2d 1019). Although we found no violation of the Act in the present case, we note that at a meeting of the district held after the “lame duck” Veterans Day meeting, the successor board affirmed the actions taken by the “lame duck” board. Obviously, such a meeting cured the charged violation of the Act asserted by the union. We further note that, contrary to the union’s argument, the successor board would not have opposed the actions taken by the “lame duck” board, notwithstanding whether the special meeting was held on the holiday or otherwise.\nFor the foregoing reasons, the trial court’s order granting the district’s motion to dismiss the union’s amended complaint with prejudice is affirmed.\nAffirmed.\nSULLIVAN, P.J., and PINCHAM, J., concur."}
{"dedup_key":"pre1996-143064","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"277 ill-app-3d 181","case_name":"Roehrborn v. Lambert","court_level":"Appellate","appellate_district":"1st","year":1995,"county":null,"appellate_docket":"1-93-2983","circuit_docket":null,"published":1,"authoring_justice":"Tully","statute":["FOIA"],"exemptions_cited":[],"public_body":"Village of River Grove Police Department","requesting_party":"Daniel Roehrborn","disposition":"affirmed","relevance":"mention_only","summary_source":"generated","summary":"The plaintiff filed a complaint alleging violations of the Freedom of Information Act and constitutional rights regarding the disclosure of police training test results. The court focused its analysis on the section 1983 liberty interest claim and affirmed the dismissal of the complaint without substantively ruling on the FOIA claim.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143064","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:49.214518","site_category":"Police & Investigative Records","date_decided":"1995-12-29","site_url":"/cases/pre1996-143064/","text_url":"/case-text/pre1996-143064.txt","full_text":"DANIEL ROEHRBORN, Plaintiff-Appellant, v. THOMAS LAMBERT, Chief of Police of the Village of River Grove, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1 — 93—2983\nOpinion filed December 29, 1995.\nStanley H. Jakala, of Chicago, for appellant.\nDean W. Krone, of Chicago, for appellee.\n\nJUSTICE TULLY\ndelivered the opinion of the court:\nPlaintiff, Daniel Roehrborn, filed this action against defendant, Thomas Lambert, chief of police of the Village of River Grove, Illinois, asserting claims under the Freedom of Information Act (hereinafter Act) (Ill. Rev. Stat. 1991, ch. 116, par. 201 et seq. (now 5 ILCS 140/1 (West 1994))), and Title VII of the Civil Rights Act of 1964 (see 42 U.S.C. § 1983 (1988)), for allegedly violating his rights to privacy in addition to violating his liberty interest under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). Defendant moved to strike plaintiff’s complaint and dismiss the action pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615 (now 735 ILCS 5/2 — 615 (West 1994))). The circuit court granted defendant’s motion. Plaintiff now appeals to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).\nSTATEMENT OF FACTS\nThe following facts are undisputed. Prior to the filing of this suit, August 8, 1991, Roehrborn was employed as a probationary officer by the Village of River Grove. Lambert had arranged for Roehrborn to attend the Police Training Institute (hereinafter Institute) in Cham-paign, Illinois. Before attending the Institute, the Board of Fire and Police Commissioners (hereinafter Board) required Roehrborn to take polygraph and psychological testing evaluations. Shortly afterwards, the examiners informed the Board and Lambert that Roehrborn had failed both the polygraph and the psychological tests. Subsequently, on August 8, 1991, Lambert wrote a letter to Jim Whitmore, the administrator at the Institute, informing him that Roehrborn had failed these tests and he would be withdrawing Roehrborn from the Institute. Roehrborn withdrew from the Institute. The Board sent Roehrborn a letter, dated August 8, 1991, dismissing him as a probationary officer.\nFor the reasons which follow, we affirm.\nISSUES PRESENTED\nOn appeal, plaintiff argues that: (1) the circuit court erred in holding that his complaint did not state a cause of action for the common law tort of invasion of privacy; (2) the circuit court erred in holding that defendant’s disclosure of plaintiff’s test results did not violate the Act; and (3) the circuit court erred in holding that plaintiff’s complaint did not state a cause of action under 42 U.S.C. § 1983 (1988).\nOPINION\nWe begin our analysis by noting that a motion to dismiss under section 2 — 615 challenges the legal sufficiency of the complaint. (Urbaitis v. Commonwealth Edison (1981), 143 Ill. 2d 458, 575 N.E.2d 548.) The relevant inquiry is whether sufficient facts are contained in the pleadings which, if proved, would entitle a plaintiff to relief. (Urbaitis, 143 Ill. 2d at 475.) Upon review of an order granting a section 2 — 615 motion, all well-pleaded facts are taken as true. (Boyd v. Travelers Insurance Co. (1995), 166 Ill. 2d 188, 652 N.E.2d 267.) In reviewing orders on a motion to dismiss, we apply a de novo standard of review. Dace International, Inc. v. Apple Computer, Inc. (1995), 275 Ill. App. 3d 234, 237, 655 N.E.2d 974.\nPlaintiff’s first contention is that the trial court erred in dismissing his complaint for failing to state a cause of action for the common law tort of invasion of privacy. He asserts that the claim set forth a violation of the public disclosure of private facts. We disagree.\nThe Restatement (Second) of Torts enumerates the following types of an invasion of privacy: (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3) a public disclosure of private facts; and (4) publicity which reasonably places another in a false light before the public. (Restatement (Second) of Torts §§ 652B, 652C, 652D, 652E, at 378-94 (1977); W. Keeton, Prosser & Keeton on Torts § 117, at 849-69 (5th ed. 1984).) Plaintiff alleges public disclosure of private facts, wherein \"[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” (Restatement (Second) of Torts § 652D, at 383 (1977).) Comment a explains that the \"publicity” requirement for this tort is different from the \"publication” requirement for defamation; \"publication” in defamation requires only that the matter be communicated to a third person; \"publicity” in this invasion of privacy tort means communicating the matter to the public at large or to so many persons that the matter must be regarded as one of general knowledge. Restatement (Second) of Torts § 652D, Comment a, at 384 (1977).\nIn the case at hand, plaintiff did not meet the requirements needed to state an action for the invasion of privacy tort based on the disclosure of private facts, because he failed to satisfy the publicity requirement. Plaintiff relies on Miller v. Motorola, Inc. (1990), 202 Ill. App. 3d 976, 650 N.E.2d 900, wherein the court held that the plaintiff stated a cause of action for public disclosure of private facts by alleging that her employer had disclosed her mastectomy surgery to coworkers. The Miller court articulated that the public disclosure requirement can be met where a plaintiff has a special relationship with the \"public” to whom the information was disclosed. (Miller, 202 Ill. App. 3d at 980.) The Miller court justified its flexible application of the requirement by stating that the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people, rather than the public at large. Miller, 202 Ill. App. 3d at 980.\nThe case sub judice is actually more similar to Midwest Glass Co. v. Stanford Development Co. (1975), 34 Ill. App. 3d 130, 339 N.E.2d 274. In Midwest Glass, the plaintiff had installed mirrors in some of defendant’s condominium units and had not yet received payment. The plaintiff subsequently wrote a letter to the tenants and potential purchasers of the units informing them that they were subject to a mechanics lien notice because of the defendant’s nonpayment. (Midwest Glass Co., 34 Ill. App. 3d at 132.) The plaintiff brought an action, suing for payment, while the defendant counterclaimed alleging public disclosure of private debts. The Midwest Glass court held that the defendant did not state a cause of action for invasion of privacy because the plaintiff sent the notices \"only to a limited number of persons who had a natural and proper interest in the ability and reputation of [the defendant] to pay its debt.” Midwest, 34 Ill. App. 3d at 135.\nIn this case, defendant did not disclose the test results to plaintiff’s co-workers, but rather disclosed the test results and evaluations to one person, Jim Whitmore, the administrator at the Institute. The disclosure consisted of one letter dated August 8, 1991, addressed to one person, Whitmore. Whitmore was working at the Institute, which had a legitimate interest in the training and performance of police officers. Thus, it is clear that the disclosure was limited to the Institute, which had a natural and proper interest in knowing the performance of potential applicants, such as plaintiff, on the psychological and polygraph tests. Accordingly, we find that plaintiff did not satisfy the publicity requirement for public disclosure of private facts.\nNext, plaintiff maintains that defendant’s disclosure of the test results was in violation of the Act. However, it is difficult to determine from the complaint whether plaintiff is claiming a private right of action for violation of the Act or whether he is claiming that defendant’s disclosure of the test results to the Institute was an invasion of privacy since the Act did not authorize it.\nThe Act provides, in pertinent part:\n\"[It is] the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. ***\n[However, this] Act is not intended to be used to violate individual privacy ***.” (Ill. Rev. Stat. 1991, ch. 116, par. 201 (now 5 ILCS 120/1 (West 1994)).)\nThe Act also enumerates various exemptions where information can be exempt from inspection and copying, including but not limited to \"[i]nformation that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Ill. Rev. Stat. 1991, ch. 116, par. 207(b) (now 5 ILCS 140/ 7(b) (West 1994)).\nIt is clear that the Act is intended to ensure access to information as well as to provide for remedies in cases where an individual is unreasonably denied access to information. There are no explicit remedies for disclosing personal information. The purpose of the Act is to ensure disclosure of information, not to protect information from disclosure. Plaintiff was a probationary officer who wanted to become a police officer. A law enforcement officer is undoubtedly a public employee and, thus, disclosure of his test results would not be considered an invasion of personal privacy. The Institute had a legitimate interest in knowing that plaintiff failed to pass the psychological and polygraph testing and, therefore, disclosure of this information to Whitmore was not improper. Plaintiff cannot now claim that defendant violated the Act because this \"personal” information was exempted from the Act. The exemptions cannot be read to prohibit dissemination of such information, but rather are simply cases where disclosure is not required. Accordingly, we find that the disclosure of plaintiff’s test results did not fall in the exempted category or violate the Act.\nStill to be considered is plaintiff’s third contention, that his complaint stated a cause of action under 42 U.S.C. § 1983 (1988). Plaintiff submits that he was deprived of a liberty interest protected by the United States Constitution when he was denied a position as a police officer.\nUnder the fourteenth amendment to the United States Constitution, \"[no] State [shall] deprive any person of life, liberty, or property, without due process of law.” (U.S. Const., amend. XIV.) Violations of the due process clause of the fourteenth amendment are remediable under section 1983, wherein \"[any person that deprives a party of] any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.” (42 U.S.C. § 1983 (1988).) In addition, to state a claim under the clause one must show that: (1) that he was deprived of life, liberty, or property; and (2) the deprivation was brought about without due process of law. (Bigby v. City of Chicago (7th Cir. 1985), 766 F.2d 1053.) Neither element is present in this case.\nPlaintiff relies on the following case law to support his position. First, in Ratliff v. City of Milwaukee (7th Cir. 1986), 795 F.2d 612, the plaintiff was a probationary police officer discharged for poor performance on the job, who brought a section 1983 action against the Milwaukee police department. She alleged that she was discharged because she reported an officer’s use of excessive force and then resisted efforts at a cover-up. The department stated that she was discharged due to her unsatisfactory performance as a probationary employee, as well as her inability to write, since she had trouble with spelling, word usage and verb tenses. The trial court held that the plaintiff was fired because of her poor performance on the job, not because of her race. (Ratliff, 795 F.2d at 615.) It further held that as a probationary employee, the plaintiff did not have a property interest in her job, yet could still maintain a section 1983 claim for a deprivation of a liberty interest. A government employee’s liberty interests are implicated where (1) the government makes any charge that might seriously damage the employee’s standing or association in the community, or (2) the government imposes a \"stigma or other disability that forecloses” the employee’s freedom to take advantage of other employment opportunities. (Ratliff, 795 F.2d at 625.) On appeal, the Ratliff court held that the plaintiff’s termination satisfied the first requirement of change of status in the community as well as the second requirement of imposing stigma because the charges made it virtually impossible for the plaintiff to find new employment as a police officer. {Ratliff, 795 F.2d at 625.) The Ratliff court nevertheless held that there was no deprivation of plaintiff’s liberty interest because (1) according to the trial court’s factual findings, no false charges were made against her and (2) there was no evidence that the charges were publicized beyond the police department prior to plaintiff’s filing suit. Ratliff, 795 F.2d at 626-27.\nSimilarly, in the present case, plaintiff has not demonstrated that he had a liberty interest in a position with the River Grove police department. Plaintiff was a probationary officer, who could have become a police officer had he done well on the testing evaluations. The test results were only disclosed to the Board, defendant, and the administrator of the Institute. Plaintiff did not show that his test results were publicized to co-workers or the general public. Plaintiff did not claim that the tests results were false. These results were simply evaluation tests given to every potential police officer in training. The poor performance on these tests did not stigmatize plaintiff to the extent that it foreclosed his freedom to take advantage of other employment opportunities. Accordingly, we find that plaintiff did not state a section 1983 claim for deprivation of a liberty interest.\nIn light of the foregoing, we affirm the judgment of circuit court of Cook County.\nAffirmed.\nRIZZI and CERDA, JJ., concur."}
{"dedup_key":"pre1996-117473","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"112 ill-app-3d 81","case_name":"Potter v. Judge","court_level":"Appellate","appellate_district":"3rd","year":1983,"county":null,"appellate_docket":"82-175","circuit_docket":null,"published":1,"authoring_justice":"Scott","statute":["OMA"],"exemptions_cited":[],"public_body":"City of Princeton","requesting_party":"John Potter and E. P. Becker, Inc.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the dismissal of a complaint alleging violations of the Open Meetings Act, holding that applying amendments to the Act retroactively would unconstitutionally impair vested contract rights. The plaintiffs sought to challenge the issuance of industrial revenue bonds based on alleged procedural defects under the OMA.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=117473","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:49.819410","site_category":"Other","date_decided":"1983-01-06","site_url":"/cases/pre1996-117473/","text_url":"/case-text/pre1996-117473.txt","full_text":"JOHN POTTER et al., Plaintiffs-Appellants, v. EUGENE JUDGE et al., Defendants-Appellees.\nThird District\nNo. 82—175\nOpinion filed January 6, 1983.\nMatthew A. Maloney, of Pierson & Maloney, of Princeton, for appellants.\nDonald C. Martin, of Johnson, Martin & Russell, and John Isaacson, of Trimble, Angel, Hornbaker & Isaacson, both of Princeton, for appellees.\n\nJUSTICE SCOTT\ndelivered the opinion of the court:\nThis action involves the appeal from an order granting judgment on the pleadings based upon a complaint for declaratory judgment filed by John Potter and E. P. Becker, Inc., an Illinois corporation, against the city of Princeton, a municipal corporation, Eugene Judge, Helen L. Judge and Citizens First National Bank of Princeton, a banking corporation, requesting that the trial court decide that the “Industrial Project Revenue Bond Act,” as applied and alleged in the complaint filed, was unconstitutional and further seeking a determination that the “Open Meetings Act” was likewise violated in certain particulars. The trial court allowed the joint motion for judgment on the pleadings filed by all defendants.\nOn December 7, 1981, the city of Princeton adopted an ordinance which authorized the issuance of its Industrial Project Revenue Bonds (IRBS), at the request of Eugene and Helen L. Judge, for the acquisition and construction of a “Convenient Food Mart” within the city of Princeton; the project was to be financed by Citizens First National Bank of Princeton. The initial meeting of the Princeton City Council to consider this request occurred on November 27, 1981, the day after Thanksgiving. The meeting was later continued until the date at which the ordinance in question was adopted. John Potter and E. P. Becker, Inc. (Beckers) claimed that the proposed “Convenient Food Mart” would be in direct competition with their existing retail businesses and filed a complaint for declaratory judgment, alleging what they believed to be certain constitutional violations by the ordinance and also claiming that the ordinance was adopted, in part, in violation of the Open Meetings Act.\nThe statute which plaintiffs challenge provides as follows:\n“Whenever used in this Division 74, unless a different meaning clearly appears from the context:\n(1) ‘Industrial project’ means any (a) capital project, including one or more buildings and other structures, improvements, machinery, and equipment whether or not on the same site or sites now existing or hereafter acquired, suitable for use by any manufacturing, industrial, research or commercial enterprise including, but not limited to, use as a factory, mill, processing plant, assembly plant, packaging plant, fabricating plant, office building, industrial distribution center, warehouse, repair, overhaul or service facility, freight terminal, research facility, test facility, commercial facility, and including also the sites thereof and other rights in land therefor whether improved or unimproved, site preparation and landscaping, and all appurtenances and facilities incidental thereto such as utilities, access roads, railroad sidings, truck docking and similar facilities, parking facilities, dockage, wharfage, and other improvements necessary or convenient thereto; or (b) any land, buildings, machinery or equipment comprising an addition to, or renovation, rehabilitation or improvement of any existing capital project.\n(2) ‘Municipality’ includes any city, village or incorporated town in this State.” Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—2.\n“It is hereby determined and declared that the purpose of this Division 74 is to relieve conditions of unemployment, to maintain existing levels of employment, to aid in the rehabilitation of returning veterans, and to encourage the increase of industry and commerce within this State, thereby reducing the evils attendant upon unemployment, to increase the tax base of the various municipalities of this State and to permit municipalities in this State to take as much advantage of the provisions of Section 103 of the United States Internal Revenue Code as is possible, which are all declared and determined to be public purposes and for the public safety, benefit and welfare of the residents of this State.” Ill. Rev. Stat. 1981, ch. 24, par. 11— 74-3.\nThe plaintiffs’ constitutional arguments allege that the Industrial Project Revenue Bond Act (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—1 et seq.) contravenes rights guaranteed by the fourteenth amendment of the United States Constitution, and by article I, section 2 of the Constitution of the State of Illinois. These constitutional provisions, of course, guarantee the fundamental rights to due process of law and to equal protection of the laws.\nThe plaintiffs frame their constitutional arguments exclusively in terms of equal protection. Notwithstanding this premise, however, the plaintiffs offer no authority or analysis which is based on equal protection. The authorities upon which they rely appear to focus on the wholly different question of whether municipal bond financing of private industry embodies a public purpose.\nThe “public purpose” analysis rests, in part, upon the long-settled principle that the imposition of taxes for nonpublic purposes contravenes due process of Jaw. (Green v. Frazier (1920), 253 U.S. 233, 64 L. Ed. 878, 40 S. Ct. 499; Schuler v. Board of Education (1938), 370 Ill. 107, 18 N.E.2d 174.) The analysis also rests in part upon State constitutional provisions, which typically prohibit the extension of public funds or public credit for private purposes. The Illinois Constitution of 1970, article VIII, section 1(a), provides:\n“Public funds, property or credit shall be used only for public purposes.”\nNeither basis for the “public purpose” analysis appears in the case at bar. The due process issue is not presented, because the Act does not in any way involve the use of tax revenues. (People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 291 N.E.2d 807.) The “use of public funds, property, or credit” issue is not presented, because the plaintiffs did not plead that section of the State Constitution in their complaint.\nThe plaintiffs have therefore failed to argue the only constitutional issue (that of equal protection) which is presented by their complaint. They have argued a separate constitutional issue (that of “public purpose”) which has no basis in their complaint, and which therefore is not germane to a judgment on the pleadings. This court must therefore reject summarily the contention of the plaintiffs that the Act, or any portion of the Act, is unconstitutional. Bare contentions unsupported by argument or by citation of authority are waived on appeal. 87 Ill. 2d R. 341(e)(7); Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423, 243 N.E.2d 242; cf. Ill. Rev. Stat. 1977, ch. 110A, par. 341(F); L. D. Brinkman & Company-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221.\nNotwithstanding our holding that inquiry into the actual constitutional validity of the Act is unwarranted, given the plaintiffs’ arguments, nevertheless we believe that it can be affirmatively shown that the Act is constitutional. Illinois case law, strongly supported by law in other jurisdictions, shows conclusively that the Act is valid under both a “public purpose” and an “equal protection” analysis.\nThe Illinois Supreme Court has expressly noted the general state of the common law on this issue. In People ex rel. City of Salem v. McMackin the court stated:\n“It appears that as of this time (1972) the courts of approximately 31 States have found that industrial-project-revenue-bond statutes serve a public purpose. Legislatures in 48 States have adopted legislation to provide financing of this type. To date, court decisions in only 5 States have held such legislation invalid.” (53 Ill. 2d 347, 355, 291 N.E.2d 807, 813.)\nSee also the citation of authority from other jurisdictions compiled in People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 368 N.E.2d 915.\nThe Illinois courts have taken in our view a forthright and strongly articulated position directly opposed to that which is argued by the plaintiffs here. In Cremer v. Peoria Housing Authority (1948), 399 Ill. 579, 78 N.E.2d 276, the court considered an attack on the validity of a statute which empowered municipal authorities to buy real estate, and to sell it to private developers, for the stated purpose of helping to relieve a shortage of housing. The court determined that the statute was designed for a public purpose, and that it was therefore constitutional, notwithstanding the fact that private parties might profit as a result.\nTen years ago, the Illinois Supreme Court applied the Cremer doctrine specifically to the Industrial Project Revenue Bond Act, in People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 291 N.E.2d 807. McMackin was a mandamus action, brought by a city council to compel its mayor to issue industrial development bonds which were authorized under the Act. The mayor contended that the Act was unconstitutional, primarily on the ground that its principal purpose was to benefit private interests. The court rejected this argument. It noted, first, the preponderance of authority in other States upholding similar statutes. It concluded:\n“[T]he Supreme Courts of these States approved their respective industrial-development acts and recognized that the consensus of modern legislative and judicial thinking is to broaden the scope of activities which may be classed as involving a public purpose. They all acknowledge that the broadest expansion is perhaps reached in the areas of economic welfare.” 53 Ill. 2d 347, 356, 291 N.E.2d 807, 813.\nHaving found the Act constitutional under the “public purpose” analysis, the court in McMackin went on to reject a number of other constitutional challenges. It found that (since the revenue bonds involve no pledge or encumbrance of public funds) there can be no argument that the Act entails due process violations. It also rejected an argument based upon an equal protection analysis. The mayor had contended that since the Act at that time spoke only of “industrial” projects, it discriminated arbitrarily between manufacturing plants and commercial establishments. The court replied:\n“In limiting this course of financing to industrial and manufacturing plants, the legislature might reasonably have determined that the competitive harm suffered by the presence of another local commercial or service business would more than offset the gain in employment and economic development otherwise intended under the Act. Also, the amount of investment customarily required by industrial or manufacturing plants, as opposed to commercial establishments, presents a rational basis for the classification. We agree that in those communities which presently are rural in character and lack economic development, the first step towards providing employment and growth is most apt to be found in establishing an industrial base from which service and commercial enterprises may follow.” People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 364-65, 291 N.E.2d 807, 817-18.\nThe plaintiffs in the present case have seized on the foregoing language to contend that recent amendments to the Act are unconstitutional. Those amendments (enacted in 1980, by Pub. Act 81 — 1376), expanded the statute’s statement of purpose to include “the increase of *** commerce” and included under the definition of an “industrial project,” inter alia, “commercial enterprise,” “office building,” and “commercial facility.” The plaintiffs urge that, under the analysis in McMackin, municipal bonding of commercial establishments cannot be construed as a “public purpose.” We believe this argument has no merit.\nIn People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 368 N.E.2d 915, a mandamus proceeding was brought to compel a city’s mayor to execute general obligation bonds for the purchase of certain land. The land was to be used for the construction of a “commercial center” by a private developer, with space provided for retail stores, for offices, and for a bank. The justification for the bond issue was to promote the redevelopment of a downtown area suffering from serious urban blight. The mayor, however, urged that the bonds were “designed to bring financial reward to private developers,” and therefore were not for a “public purpose.” The supreme court, however, rejected this contention. Citing McMackin and the prevailing rule of law in other States, it held that private benefits properly could be reaped from public funds, so long as the project’s primary purpose was a public one. It specifically held, in this context, that “[sjtimulation of commercial growth” was a proper public purpose. 68 Ill. 2d 62, 75, 368 N.E.2d 915, 921.\nA recent decision which reinforces McMackin and Paley is Marshall Field & Co. v. Village of South Barrington (1981), 92 Ill. App. 3d 360, 415 N.E.2d 1277. In Marshall Field the court construed the constitutionality of revenue bond financing of two retail stores. It held that, under Paley and McMackin, such a project clearly has a “public purpose.” It rejected a restrictive test proposed by an objector, which would have required a showing that the private party had been “induced” to locate in the area by the issuance of bonds. Likewise, defendants’ arguments on equal protection may be presented summarily, since the plaintiffs have raised no authority on this issue. Under both the State and Federal constitutions, basic equal protection analysis examines whether the government action in question rationally furthers some legitimate, articulated State purpose. Confederation of Police v. City of Chicago (N.D. Ill. 1980), 481 F. Supp. 566, 568; People v. Finley (1980), 82 Ill. App. 3d 307, 402 N.E.2d 769; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278; People v. Grant (1978), 71 Ill. 2d 551, 377 N.E.2d 4.\nSince the Act promotes legitimate State purposes in a rational manner, it does not pose a denial of equal protection. Bond-funded projects will undoubtedly create a competitive impact on already existing businesses in the State. This impact does not constitute arbitrary or invidious discrimination against such businesses. It is an incidental side effect in accomplishing the legislative purposes of the Act — reducing unemployment, expanding commerce, and enlarging municipal tax bases.\nIn our opinion the Act discriminates against no one. The plaintiffs are capable of applying for municipal bond financing to expand or improve their businesses, exactly as the defendants have done. Their allegation that the Act denies them equal protection is groundless, and we believe their complaint was properly dismissed.\nFinally, the plaintiffs’ complaint alleges that, prior to approving the issuance of the bonds, the Princeton City Council held meeting to discuss the matter without giving public notice of those meetings. The plaintiffs alleged that, if such unannounced meetings occurred, they were in violation of the Illinois Open Meetings Act (Ill. Rev. Stat. 1981, ch. 102, par. 41 et seq.). The plaintiffs sought a declaratory judgment that such meetings were in violation of law.\nThe circuit court ruled, in entering judgment on the pleadings, that any such violations would not invalidate the issuance of the bonds. We believe this ruling was correct, on the basis of the law in effect when the cause of action arose. Recent decisions provide that actions taken by a public agency at meetings held in violation of the Open Meetings Act were not invalid. Board of Education v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054; In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67; Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, 407 N.E.2d 108; People ex rel. Byron v. Board of Trustees (1980), 90 Ill. App. 3d 88, 412 N.E.2d 1188; Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.\nThe rule of these decisions has since been modified by a statutory amendment which took effect on January 1, 1982. The amendment (Pub. Act 82 — 378) provides as follows:\n“(c) The court, having due regard for orderly administration and the public interest, as well as for the interests of the parties, may grant such equitable relief as it deems appropriate, including issuance of a writ of mandamus requiring that a meeting be open to the public, granting an injunction against future violations of this Act, ordering the public body to make available to the public such portion of the minutes of a meeting as is not authorized to be kept confidential under this Act, or declaring null and void any final action taken at a closed session in violation of this Act.” (Ill. Rev. Stat. 1981, ch. 102, par. 43(c).)\nPlaintiffs admit that their cause of action arose before this amendment took effect, but urge that it should be given retroactive application.\nWe note, however, that in the absence of express language declaring otherwise, an amendatory act is ordinarily construed as being prospective in operation. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034.) The amendment to the Open Meetings Act in question here contains no express declaration that the law should work retroactively, and therefore we believe the standard presumption should apply. Moreover, the legislature provided an effective date four months after the law was passed, thus indicating its purpose that the amendment should apply prospectively only. See Pub. Act 82-378.\nA prospective application of the amendment is further necessitated by the potentially disruptive effects of retroactivity. In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.\nIt is apparent here that the defendants have entered into a tripartite agreement whereby the city of Princeton promised to issue bonds, the Citizens First National Bank of Princeton promised to purchase those bonds, and the Judges promised to use the proceeds of the sale of the bonds to construct a specified facility. Each of these parties can enforce the obligations of the others. Thus, they all enjoy vested contract rights, which could be destroyed if this court grants retroactive application to the amendments to the Open Meetings Act. Such impairment of contract rights, we believe, is unconstitutional under both the State and Federal constitutions. Ill. Const. 1970, art. I, sec. 16; U.S. Const, art. I, sec. 10, cl. 1; McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d Ill. 419 N.E.2d 608.\nFor the foregoing reasons the judgment of the circuit court of Bureau County is affirmed.\nAffirmed.\nALLOY and STOUDER, JJ., concur.\nThe Act allows municipalities to finance industrial and other projects by issuing their tax-free bonds in return for investment capital. Low rates of interest thus can be obtained on borrowed money, for the purpose of encouraging local development. The Act provides (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—7) that repayment of the bonds may be secured through the terms of rent charged for use of the project, once developed, through a pledge of income and revenues from the project, or through a mortgage of the project to the bondholders. However, the Act explicitly provides that there is no obligation on the part of the municipality itself to guarantee payment of the bonds (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—10)."}
{"dedup_key":"pre1996-134883","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"22 ill-app-3d 226","case_name":"Illinois News Broadcasters Association v. City of Springfield","court_level":"Appellate","appellate_district":"5th","year":1974,"county":null,"appellate_docket":"73-140","circuit_docket":null,"published":1,"authoring_justice":"Moran","statute":["OMA"],"exemptions_cited":[],"public_body":"Springfield Human Relations Commission","requesting_party":"Illinois News Broadcasters Association","disposition":"dismissed","relevance":"relevant","summary_source":"generated","summary":"The court dismissed the appeal as moot because the underlying personnel issues were resolved and the statutory requirements for open meetings had been clarified by subsequent legislative amendments. The court declined to issue a declaratory judgment, finding that the case did not meet the criteria for the public interest exception to the mootness doctrine.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=134883","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:50.135553","site_category":"Meeting Conduct & Participation","date_decided":"1974-05-16","site_url":"/cases/pre1996-134883/","text_url":"/case-text/pre1996-134883.txt","full_text":"Illinois News Broadcasters Association et al., Plaintiffs-Appellees, v. The City of Springfield, Defendant-Appellant—(Lowell Turley et al., Separate Defendants-Appellants.)\n(No. 73-140;\nFifth District\nMay 16, 1974.\nRehearing denied September 26, 1974.\nHowarth & Howarth, of Springfield (Nelson Howarth, John E. Howarth, and David N. Howarth, of counsel), for appellants Turley and Bonds.\nD. Bradley Blodgett, Corporation Counsel, of Springfield, for appellant City of Springfield.\nLongrigan, Potter & Billington, of Springfield, for appellees.\n\nMr. PRESIDING JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nDefendants appeal from an order of the Circuit Court of Madison County which found them in violation of the Illinois open meetings law (Ill. Rev. Stat. 1971, ch. 102, par. 41 et seq.).\nOn March 13, 1972, the Springfield Human Relations Commission, an advisory body to the City of Springfield, held a closed meeting. The purpose of the meeting was to discuss whether the Commission should recommend to the mayor (1) retention of its executive director, and (2) salary increases for the Commissions four paid positions. The Commission failed to give any notice to the public or the public information media that it was holding this meeting. Media representatives who learned of the meeting were refused admission on the grounds that the meeting’s purpose was to discuss personnel. Minutes of this closed meeting revealed that 16 of the 25 Commission members were present and constituted a quorum to carry on business. In addition, some of the Commission’s salaried staff were present, presumably because the Commission’s order of business that evening concerned them personally. After discussion, the Commission voted to recommend to the mayor (1) that the executive director of the Commission be discharged and (2) that the salaries paid to the Commission’s four employees be increased. Subsequently, the mayor did discharge the executive director, but the salary increases were not all approved.\nPlaintiffs sued for a writ of mandamus and a declaratory judgment. This case was tried in Madison County after a change of venue. The trial court, after considering the pleadings, admissions, affidavits, exhibits, briefs and arguments, decided there was no genuine issue of fact, but there was an issue of law concerning whether the Illinois open meetings law was constitutional and applicable to the City of Springfield, a home rule unit. In a summary judgment, the court declared the open meetings law constitutional and applicable to tire City of Springfield and its advisory Human Relations Commission. Specifically, the court held the Springfield Human Relations Commission, on March 13, 1972, violated the open meetings law insofar as discussion and action on salaries and action (but not discussion) on the dismissal of its executive director were held behind closed doors. Because the issues were moot, the court denied mandamus, but issued a declaratory judgment because it thought a substantial public interest would be served.\nSpecifically at issue was whether the open meetings law applied to the City of Springfield since it was a home rule unit, and whether the Springfield Human Relations Commission could hold a closed meeting under the exceptions provided in the open meetings law to discuss and make recommendations concerning dismissal of its executive director and salary increases for its four paid positions. These issues are moot. There is a well established exception in Illinois to the mootness rule; it allows a declaratory judgment on moot issues if the issues are of substantial public interest. (People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769; Partney v. Dallas, 111 Ill.App.2d 261, 250 N.E.2d 166.) However, this exception is applied narrowly and courts are very reluctant to render advisory opinions on moot questions. (Johnson v. Board of Education, 79 Ill.App.2d 22, 223 N.E.2d 434; Hill v. Murphy, 14 Ill.App.3d 668, 303 N.E.2d 208.) The public interest must be very clear to prevent the dismissal of an appeal involving only moot questions. In determining whether there is sufficient public interest, three criteria are to be considered in deciding to bring the moot case within the public interest exception: (1) the public nature of the question, (2) the desirability of an authoritative determination for the future guidance of public officers, and (3) the likelihood of future recurrence of the question.\nIn Johnson v. Board of Education, 79 Ill.App.2d 22, 223 N.E.2d 434, the court held that the open meetings law is so clear and unequivocal that there is not sufficient public interest in a judicial interpretation of that statute to bring the issues within the public interest exception to the mootness rule. We agree. The open meetings law clearly applies to the City of Springfield by virtue of Public Act 78-448 (Ill. Rev. Stat. 1973, ch. 102, par. 46). The plain language of the open meetings law says public bodies, including advisory bodies to home rule units such as the Springfield Human Relations Commission, must meet publicly unless they are authorized by statute to hold closed sessions in certain instances; the exceptions allowing closed meetings are few and must be narrowly construed because they derogate the general policy of open meetings.\nIn summary, the issues of this case are moot and do not call for a judicial opinion. The recent amendment to the open meetings law specifically makes the provisions of the Act the minimum requirements for home rule units; therefore, the open meetings law does apply to the City of Springfield and its Human Relations Commission even if it did not before. The executive director is long gone and the salary changes for fiscal year 1972-73 are merely part of the city’s budget history and are of no consequence today. We agree with the trial court that it would be absurd to say the Commission must now hold a new meeting to consider these matters in public. In addition, we are of the opinion that this case has not met the three criteria to allow the application of the public interest exception to the mootness rule. Although the questions involved are public in nature, the present law is so clear that an authoritative determination for future guidance is not needed and the likelihood of future recurrence of these same questions is improbable. Therefore, this court will not render a declaratory judgment.\nThis case is now moot and therefore this appeal is dismissed.\nAppeal dismissed.\nEBERSPACHER and CREES, JJ., concur."}
{"dedup_key":"pre1996-131303","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"197 ill-app-3d 592","case_name":"Swanson v. The Board of Police Commissioners of the Village of Lake in the Hills","court_level":"Appellate","appellate_district":"2nd","year":1990,"county":null,"appellate_docket":"2-89-0654","circuit_docket":null,"published":1,"authoring_justice":"Dunn","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Police Commissioners of the Village of Lake in the Hills","requesting_party":"Paul Swanson","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Open Meetings Act does not provide a private cause of action for the disclosure of information from a closed session. Consequently, the trial court's dismissal of the plaintiff's OMA claim with prejudice was affirmed.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=131303","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:50.500472","site_category":"Closed Sessions","date_decided":"1990-05-09","site_url":"/cases/pre1996-131303/","text_url":"/case-text/pre1996-131303.txt","full_text":"PAUL SWANSON, Plaintiff-Appellant, v. THE BOARD OF POLICE COMMISSIONERS OF THE VILLAGE OF LAKE IN THE HILLS et al., Defendants-Appellees.\nSecond District\nNo. 2—89—0654\nOpinion filed May 9, 1990.\nMadsen, Baudin, Stolfi & Sugden, of Crystal Lake (W. Randal Baudin, of counsel), for appellant.\nZukowski, Rogers, Flood & McArdle, of Crystal Lake (David W. McArdle, of counsel), for appellees.\n\nJUSTICE DUNN\ndelivered the opinion of the court:\nPlaintiff, Paul Swanson, appeals from a decision of the circuit court affirming the decision of the board of police commissioners (Board) of the Village of Lake in the Hills (Village) to terminate his employment as a sergeant of the Village’s police force.\nOn appeal, Swanson raises the following issues: (1) whether the decision of the Board is void because a member of the Board had not been properly appointed; (2) whether the proceedings before the Board were unfair because the legal counsel to the Board was from the same firm as an attorney who took part in an interview of Swanson on a charge later brought to the Board; (3) whether the decision of the Board was supported by the manifest weight of the evidence and whether there was sufficient cause to warrant termination of employment; (4) whether Swanson’s right to due process was violated when the commission failed to allow him to present evidence in mitigation; and (5) whether the trial court erred in dismissing count II of Swanson’s complaint alleging a violation of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.). For the reasons stated below, we affirm.\nSwanson was discharged from his employment as a sergeant with the Village police department after the Board unanimously found him guilty of the three charges brought against him by Police Chief James Wales. In count I Swanson was charged with incompetency for his handling of a shooting incident. In count II he was charged with conduct unbecoming an officer and setting a poor example of loyalty, discipline, morale, and esprit de corps, as demonstrated by numerous incidents with other officers. In count III he was charged with incompetency based on a clinical psychologist’s evaluation that concluded Swanson should not be placed in a situation where he could cause harm to himself or others.\nWe will discuss the remaining relevant facts to this case within the discussion of each issue.\nInitially, we address the Board’s motion to strike Swanson’s brief and dismiss the appeal. The Board first argues plaintiffs brief should be stricken because he violated Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)) by failing to cite to the record for factual allegations made in his brief on pages 17, 35, 36, 38, 40, 41, 42, 44, 52, 59, and 60. While counsel does cite to the record in many instances, 8 of the 11 pages cited by the Board fail to properly cite to the record. The Board also argues that counsel violated Supreme Court Rule 342 (107 Ill. 2d R. 342) by attaching as an appendix to his brief an abstract of evidence from the case. Supreme Court Rule 342(b) clearly provides that an abstract of the record shall not be filed unless it is ordered by the court. Since this court did not order an abstract, this attachment is improper and, therefore, is stricken. Consequently, we need not address the Board’s argument that Swanson, by attaching an abstract, has exceeded the 75-page limit for a brief. Finally, the Board argues Swanson violated Rule 341(e)(1) (113 Ill. 2d R. 341(e)(1)) by not listing headings of subpoints raised in his brief and by failing to cite the pages of the brief for each heading.\nThe Board’s objections to Swanson’s brief are proper. Counsel’s failure to abide by the rules certainly is not condoned; however, the rules are not a limitation upon the jurisdiction of a court of review. They are only an admonishment to the parties. (Brown v. Brown (1978), 62 Ill. App. 3d 328.) In the interest of justice, we will consider all the arguments raised by Swanson. We trust we will not see such failures from counsel in the future.\nSwanson first argues the Board’s decision is null and void because one of the commissioners, Douglas Noyes, had not been properly appointed to the commission. Swanson contends Noyes was not a legal commissioner because of the following: (1) the Village did not approve his appointment until January 8, 1987, though Noyes had sat on the Board in regard to Swanson before this time; (2) the Village clerk was not authorized to administer an oath to Noyes; (3) Noyes’ oath came before he was approved by the Village; and (4) there was no evidence to prove Noyes had posted a fidelity bond.\nIt is not necessary to consider Swanson’s contentions because Noyes’ actions were at least valid as a de facto officer. “A person actually performing the duties of an office under color of title is an officer de facto, and his acts as such officer are valid so far as the public or third parties who have an interest in them are concerned.” (People ex rel. Chillicothe Township v. Board of Review (1960), 19 Ill. 2d 424, 426.) The evidence shows Noyes was appointed to the Board by the Village president on December 13, 1986. He was sworn in by the Village clerk on December 20, 1986, and Noyes stated the Village posted a bond for him. On December 20, 1986, he sat on the Board to decide whether Swanson should be temporarily suspended pending his hearing. Thus, at this time, Noyes was performing the duties of office under color of title. Moreover, on January 8, 1987, Noyes was approved by the Village. The Board did not hear any evidence against Swanson until January 15, 1987. Thus, we find Noyes’ votes valid against Swanson.\nWe also reject Swanson’s contentions in regard to Noyes for a second reason which was offered by the trial court. The trial court ruled that, regardless of Swanson’s contentions, the Board was comprised of two other legal commissioners, and under the rules and regulations of the board of police commissioners of the Village of Lake in the Hills, State of Illinois, section 5, Quorum, effective November 22, 1985, the other two commissioners made up a quorum. Thus, since they voted against Swanson on all counts, Swanson would have lost even without Noyes’ votes. Swanson, citing Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 485, argues that Noyes’ participation on the committee is enough to contaminate the process. Mank, however, is distinguished. In Mank, the court was concerned with the appearance of bias or prejudice where the commissioner was the father of the police chief; the court held that his participation affected the whole board. (Mank, 7 Ill. App. 3d at 485.) There is no similar concern in this case. Swanson does not argue that Noyes was biased against him in any way; nor does he argue that the outcome might have been different had Noyes not participated.\nSwanson next contends that he did not receive a fair hearing because the attorney who represented the Board was associated in the same law firm with an attorney who participated in an informal inquiry of Swanson prior to the hearing. The evidence shows David McArdle represented the Board at the hearing, and Thomas McGuire, who is not associated with McArdle, was hired by the Village to represent Chief Wales and prosecute Swanson. Prior to the hearing, Swanson was questioned at an informal inquiry by Chief Wales and Richard Flood, who Swanson contends is a member of the same law firm as McArdle. The inquiry related to the shooting incident which was the subject of count I against Swanson. Swanson argues that Flood was representing Chief Wales and acting in a prosecutorial role against him. The Board contends that there is no evidence in the record to establish that Flood represented Chief Wales at this proceeding. We disagree. A tape recording of the informal inquiry establishes that Flood was present at the inquiry and asked several questions. Also, the prosecutor at the official hearing, Thomas McGuire, in response to Swanson’s motion on this issue, stated that a member of the law firm employing McArdle did represent the chief at the informal inquiry.\nSwanson does not cite to any case law in support of his contention that Flood’s and McArdle’s participation violated his right to due process. We are not aware of any case with similar facts, though we do find a line of cases addressing unfair hearings helpful to a review of this issue. It has been held that where the advisor to the Board also acts as the prosecutor, the hearing is not fair and impartial. (Gigger v. Board of Fire & Police Commissioners (1960), 23 Ill. App. 2d 433, 439.) In Gigger, the same attorney prosecuted the case and ruled on questions of law and evidence. Not one ruling was made by the Board, and members of the Board asked only one question. (Gigger, 23 Ill. App. 2d at 437.) The court stated:\n“When an attorney representing an administrative agency appears at a hearing conducted by the agency, his acts and conduct are those of the agency. It is not his responsibility to prove guilt, but his task is to assist the agency in arriving at the facts, whether they prove the charges or not. He must display the same respect for fairness as *** the agency.” Giqqer, 23 Ill. App. 2d at 439.\nCourts have distinguished Gigger and found no denial of due process in cases where the attorney for the Board and the prosecutor were different people acting in separate roles. (Rizzo v. Board of Fire & Police Commissioners (1970), 131 Ill. App. 2d 229, 236-37; Finin v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879, 883; Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App. 3d 394, 402.) In Rizzo, the Board was represented by its own independent attorney, and the complainant was represented by his own choice of attorney, who prosecuted the case. The court found that, where the attorney for the Board merely advised the chairman as to the law, the chairman ruled on all questions of law and evidence, and the Board fully participated in the questioning, the process was fair and impartial. Rizzo, 131 Ill. App. 2d at 237.\nIn the instant case, the prosecutor and the advisor to the Board at the hearing were different people acting in separate roles, and they were not associated. Thus, this case is not like Gigger. Here, we have an association between the advisor to the Board and an attorney who took part in an informal inquiry prior to the hearing. We find on the facts of this case that Flood’s participation prior to the hearing did not create an unfair hearing for Swanson. We do not condone a practice where law firm associates act in dual roles at any stage of an administrative proceeding; however, as we will elaborate below, we are satisfied from a review of the hearing that Swanson did receive a fair and impartial hearing.\nIn Gigger the court stated the fundamental concepts of a fair hearing are the opportunity to be heard, the right to cross-examine adverse witnesses, and the right to impartiality in rulings upon the evidence. (Gigger, 23 Ill. App. 2d at 439.) We are convinced the hearing provided these rights to Swanson. McArdle’s role was limited to advising the Board on procedure and evidentiary questions. He rarely made decisions for the Board; normally, he advised the Board, and the Board made its own decision after considering his advice. Contrary to Swanson’s assertions, the record demonstrates McArdle was fair and impartial; both parties were favored and disfavored by his recommendations. Finally, the lengthy record reveals that Swanson was given wide latitude in cross-examination and the presentation of his case. The record clearly establishes that the process was fair and impartial.\nSwanson also argues that McArdle’s law firm acted as the municipal attorneys and prosecuting attorneys for the Village; therefore, under the Illinois Municipal Code, McArdle should not have been allowed to represent the Board. Section 10 — 2.1—25 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—25) provides:\n“The municipal attorney, in the event there is a separate attorney designated as a prosecutor for such municipality, shall represent the Board unless the Board is authorized by the municipality to employ its own attorney, and such attorney shall handle prosecutions before the Board, but in the event that the municipal attorney shall both represent the municipality and be prosecutor in such municipality, then and in such event the governing body is hereby authorized to employ an attorney of its own choosing to represent said Board.”\nSwanson contends this statute requires McArdle and his firm to prosecute in administrative hearings, and, therefore, the Board should have hired its own attorney in this case. The Board argues there is no evidence in the record to show exactly what McArdle’s or his firm’s standing relationship was with the Village. We agree. Since there was no competent evidence on this point, we find the record fails to establish the exact relationship between the Village and McArdle’s firm.\nAssuming arguendo that McArdle’s law firm did in fact function as the Village attorney and as a prosecutor in the early stages of the investigation, the statute indicates that McArdle’s law firm should have prosecuted at the hearing, and the Village should have hired another attorney for the Board. This would have been the preferred practice. Nonetheless, we do not believe a failure to follow this statute to the letter in this case requires reversal. The true concern in this case is whether Swanson received a fair hearing. As stated in O’Malley v. Board of Fire & Police Commissioners (1989), 182 Ill. App. 3d 1019, 1022-23, “[t]he statute seeks to avoid real or apparent conflicts of interest, where the attorney who represents the interests of the Board, and advises the Board on the law, is the same person who presents the case against the respondent; the statute seeks to prevent having the judge be the prosecutor.” Here, the same person did not act as prosecutor and judge at the hearing. Since the same person or persons associated in the same law firm did not act as the advisor to the Board and the prosecutor at the hearing, we find that any failure to follow the letter of the statute did not prejudice Swanson.\nFinally, on this issue, we find no merit to Swanson’s contention that under Rule 5 — 105 of the Code of Professional Responsibility (107 Ill. 2d R. 5 — 105), McArdle and Flood could not participate in the proceedings against him. Section 5 — 105 requires an attorney to refuse to represent a client where that representation will present a conflict of interest with another client. (107 Ill. 2d R. 5 — 105(a).) We find that since Swanson was not a client of either Flood or McArdle, he has no standing to assert a violation of Rule 5 — 105.\nSwanson next contends the findings against him were trivial and insufficient to terminate his employment. The review of an administrative agency’s decision regarding discharge is a two-step process. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105.) The court must first determine whether the agency’s finding of guilt is contrary to the manifest weight of the evidence. Second, it must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that there is cause for discharge. (Walsh, 96 Ill. 2d at 105.) The record demonstrates that the findings of the court were not against the manifest weight of the evidence.\nThe first charge against Swanson involved his failure to properly handle a shooting incident. Swanson responded to a report of a shooting at approximately 2 a.m. He met with the complainant, Raymond Kemp, who told him his wife had gone to James Kessel’s house, and he attempted to enter Kessel’s house through the window when Kessel shot at him six times with a .44 magnum, trying to kill him. Swanson went to the house to talk with Kessel. Kessel admitted he fired a gun, but he stated he fired it only one time as a warning shot, pointing the gun up in the air out the window. He also stated the gun was a nine millimeter pistol. A sheriff deputy from McHenry County found a nine millimeter casing outside the window. Swanson told Kessel he was under arrest and brought him to the police station. Kemp’s wife was brought to the station in another car, and Mr. Kemp drove to the station in his own car. Kemp’s six-year-old daughter accompanied him.\nDriving to the station, Swanson learned from Kessel that Kemp was driving on a suspended license. After corroborating this information, Swanson charged Kemp with driving with a suspended license. He issued Kessel a ticket for discharging a firearm within the Village.\nSwanson had been told by Chief Wales to contact him if anything unusual happened while he was on duty; Swanson did not call him after this incident. He also did not call the State’s Attorney’s office. Swanson testified he believed the incident was merely a domestic situation. He did not believe Kessel tried to kill Kemp with several shots as Kemp stated; he believed Kessel fired one shot as a warning. Therefore, he saw no need to call the chief or the State’s Attorney’s office in the middle of the night.\nThe Board found Swanson failed to notify the chief as instructed, failed to contact a representative of the State’s Attorney, failed to conduct an appropriate crime scene search, failed to seek or obtain the gun used in the shooting, failed to interview a six-year-old witness, failed to obtain a written statement, and failed to make an arrest for attempted murder, aggravated assault or reckless conduct. Swanson does not contest these findings. He stated during a preliminary investigation in regard to his handling of the incident that he “blew it.”\nOn appeal, however, he argues that his handling of the incident was reasonable. Swanson argues that it was reasonable to determine that this was merely a domestic disturbance that did not require further action. Chief Wales, and even Swanson himself, however, testified that a shooting in a domestic situation was an unusual incident. Thus, the evidence was sufficient for the Board to conclude that Swanson’s inaction demonstrated incompetency and a failure to report or take appropriate action as defined in the Village’s rules and regulations.\nUnder count II, the Board found Swanson guilty of several incidents involving comments and actions toward his fellow officers that violated the Village’s rules and regulations pertaining to loyalty, esprit de corps, discipline, morale, and conduct unbecoming an officer.\nThese violations were based on the following incidents: (1) after another officer told Swanson he was upsetting residents with the 10-day notices he was serving, Swanson replied that it was Chief Wales’ problem; (2) Swanson told a tow truck operator he would pay a tow truck bill from his own pocket in order to keep a patrol officer from any possible reprimand for getting the car stuck; (3) Swanson told Officer Howell to investigate an incident so it would not have to be handled by Officer Bokowski; (4) Swanson, after telling Officer Bokowski he would return some street signs, told another officer to leave the signs alone and stated he knew nothing about them; (5) while on active street duty for six days, Swanson was taking Centrax, a prescribed tranquilizer, without informing Chief Wales; and (6) after arriving at a scene where Officer Hówell and a new officer had their car stuck, Swanson commented to Howell that he was training the new officer the same way Howell drives and asked Howell how many days off he thought he would get for the incident; he then falsely stated to Howell that Officer Bokowski was thrown off a task force.\nSwanson argues that many of these matters are trivial, and as far as the street sign incident and his taking medication, he committed no wrongdoing. The Board responds that the incidents, taken in accumulation, demonstrate that Swanson was trying to disrupt the police department. As we will explain below, we find the evidence supports the findings of the Board.\nConcerning the first incident, a patrol officer testified he stated to Swanson that the residents were going to be angry about the 10-day notice tickets he had written. Swanson responded, “Yeah, but I will show Wales.” The officer took this comment as a display of the problems between Swanson and Wales. Another officer testified that Swanson said, “That is Wales’ problem.” This officer reported the comment to Chief Wales because he felt Swanson was writing the tickets in an effort to irritate the residents and place Chief Wales in a “trick bag.” Swanson did not recall the incident. We find the officers’ testimony provides a sufficient basis for the Board to conclude that this was not just a trivial matter, but proof that Swanson was causing disruption.\nTestimony of the second incident showed that a new patrol officer on probationary status had his car stuck when Swanson arrived at the scene. The officer stated to Swanson he was concerned that, if the tow bill was too high, he would lose his job. Swanson responded that, before he would let that happen, he would pay the bill himself. A tow truck operator testified Swanson told him he would pay the bill to keep the patrol officer from being reprimanded. Swanson testified he never offered to pay the bill and merely made a statement to show his support to the officer. We find the Board was in the best position to judge these conflicting facts. The tow truck operator’s testimony provides a sufficient basis for the Board to conclude that Swanson’s conduct was disloyal to the department and set a poor example to a fellow officer.\nThe third incident concerns a request made by Swanson to Officer Howell to investigate a blow gun dart incident. Howell testified Swanson asked him to investigate the incident instead of turning it over to Sergeant Bokowski. Howell stated he was surprised by this request because he was not an investigator but Bokowski was. Swanson testified he was merely apprising a fellow officer of a possibly dangerous situation. Again, we find the Board was in the best position to decide whether Swanson acted improperly.\nThe fourth incident involves a dispute between Sergeant Bokowski and Swanson. Bokowski testified he asked Swanson to return some signs that had been turned into the station, and Swanson agreed to do so. Later, Bokowski learned the signs were not being returned. When he inquired why, he was told by another officer that Swanson told that officer not to touch the signs because a property report had not been filed. Swanson testified that a report had to be filed for all property coming into the station. Swanson’s argument that this incident does not involve wrongful conduct is well taken. There is little evidence that this incident was anything more than a misunderstanding over proper procedure, and it appears Swanson was the one who followed proper procedure.\nThe fifth incident charges Swanson took a tranquilizer while on duty for approximately one week. Chief Wales testified normal procedure dictated that an officer should not be working under the influence of a tranquilizer. He stated Swanson should have told him he was taking the drug, though there was no specific written policy requiring this. Swanson stated he took the tranquilizer after working hours only; he was not under the influence of the drug during duty. He took the drug for headaches, which he stated resulted from the job stress he felt due to harassment from Chief Wales. He did not tell Chief Wales about the drug because he did not want him to know his mind games were working.\nThe Board found this act violated the rule proscribing conduct unbecoming an officer, which included any act or conduct not specifically mentioned that brought the department or individual disrepute. There existed no stated policy or rule in the department pertaining to an officer taking prescribed medication. Moreover, there is no evidence that the prescribed medication taken by Swanson did or could adversely affect him in the performance of his duties. In the absence of such policy or rule to guide an officer in this regard, we find it was against the manifest weight of the evidence for the Board, in this instance, to find that Swanson’s taking tranquilizers without the knowledge of the police department brought him disrepute.\nThe final incident concerns a conversation between Swanson and Officer Howell. After finding Howell and a new officer with their car stuck, Swanson told Howell he was teaching the new officer to drive the way Howell drove. Howell took the comment as offensive; Swanson stated he was kidding. Swanson also asked Howell how many days off he thought he would get for the incident. Howell was offended by the comment. He said it made no sense because no one was suspended for getting a car stuck. Swanson said he was joking; he and the other officers often joked this way. Finally, Howell said Swanson asked why no one from the department had been assigned to a regional task force and then falsely stated that Sergeant Bokowski had been thrown off the task force. Swanson said he was joking, and Howell was also joking about Bokowski, stating, “Well, we sent Bokowski down there.” Howell interpreted Swanson’s comments in front of a new officer as an attempt at dissension.\nThis is another example where the Board was in the best position to decide whom and what to believe from the conflicting evidence. Though we find some merit to Swanson’s argument that this incident is trivial, we do not discount it completely since it shows another example of a fellow officer who believed Swanson was causing dissension among the force.\nWe conclude that the Board’s decision on count II was not against the manifest weight of the evidence. Though discounting the Board’s finding that Swanson’s taking tranquilizers brought him disrepute, we find the evidence, taken in its entirety, is, nevertheless, sufficient to find that Swanson’s conduct was perceived as disruptive and divisive by his fellow officers and thus violated the rules and regulations of the Village.\nSwanson also challenges the findings of count III, which reflected the findings of a clinical psychologist. The Board concluded from these findings that Swanson was incompetent to be a police officer.\nDr. David Simmons, a clinical psychologist specializing in people with emotional problems, met with Swanson for approximately Wk hours. For approximately two hours, Swanson took tests designed to evaluate intelligence and personality. During the clinical interview, Swanson told Dr. Simmons he had been on disability for three months due to a neck problem and headaches. He felt Chief Wales was against him, and he lost sleep worrying about his job. As a result of the clinical interview and Swanson’s tests, the psychologist found the following: (1) Swanson was overly aggressive with problems with impulse control and episodic acting out; (2) he has a low tolerance for frustration, and he may become irritable or angry; (3) he has little patience and tends not to accept responsibility for his difficulties, preferring instead to blame others; (4) he is likely to manipulate others to his own ends; (5) he attempts to control other people through intimidation; (6) he has a very high level of stress and is not coping well with stress at the present time. The psychologist concluded that Swanson should not be placed in a situation where he could cause harm to himself or others.\nSwanson attacks the findings of the expert by attempting to show the tests were not sound and the psychologist’s conclusions unwarranted. Swanson did not, however, put on his own expert to rebut the Village’s expert. The reliability of the psychologist’s evaluation presents a question of fact for the Board. We find the evidence sufficient to support the Board’s findings.\nHaving determined that the evidence was sufficient to support the Board’s findings in all three counts, the next question is whether the findings provide sufficient cause for the Board’s decision to terminate Swanson’s employment. “Cause” is defined as some substantial shortcoming, recognized by law and sound public opinion as a good cause for termination, which renders the employee’s continued employment in some way detrimental to the discipline and efficiency of the service. (Walsh, 96 Ill. 2d at 105; Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360.) An administrative review’s determination of cause demands the respect of the court and is only to be overturned if it is arbitrary and unreasonable or unrelated to the requirements of service. (Walsh, 96 Ill. 2d at 105.) The question is not whether the court would decide upon a more lenient sanction than discharge were it to make the initial determination. The question is whether the Board acted arbitrarily or unreasonably. Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 411.\nThough Swanson attacks each count as insufficient to terminate his employment, we find it unnecessary to determine whether one count alone would have been sufficient since all counts have been proved by the evidence. We find the Board’s decision to terminate Swanson’s employment is not arbitrary or unreasonable. A summary of the findings against Swanson shows an officer who acted below professional standards in handling a shooting incident, who was disruptive and caused dissension among fellow officers, who was admittedly under a great deal of stress over his relationship with his commanding officer, so much so that he suffered debilitating headaches and took tranquilizers, and who, according to a psychologist, should not be placed in a position where he might endanger his own life or someone else’s life. Taken as a whole, these findings provide a sufficient basis to terminate Swanson’s employment.\nSwanson argues that his psychological evaluation should not be a basis for dismissal. He contends Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, supports this position. In Walsh, a police officer, while on disability leave for psychological problems, committed the acts which resulted in his discharge. (96 Ill. 2d at 107.) The appellate court reversed the order of discharge, stating that the misconduct was a manifestation of the conduct for which he was placed on disability. (96 Ill. 2d at 107.) The supreme court held that because the evidence pertaining to the officer’s psychological problems was so vague and because the Board’s decision to dismiss for cause may jeopardize the officer’s pension, the cause would be remanded for a more thorough examination of the officer’s psychological problems. (96 Ill. 2d at 108.) Furthermore, the court held if it was determined the officer’s misconduct was related to his psychological problems, the sanction against him should be other than discharge for cause. 96 Ill. 2d at 108.\nSwanson contends Walsh stands for the proposition that an officer cannot be discharged for cause based on a psychological disability. This is not what Walsh held. Walsh held that where an officer’s misconduct, which formed the basis for discharge for cause, is a manifestation of the psychological problems for which he had been placed on a medical disability leave, then that officer should not be discharged for cause. Here, Swanson was not placed on disability for psychological problems, and he does not allege on appeal that the other misconduct charges were a manifestation of his psychological problems. Walsh does not address the different question in this case, whether a psychological disability in and of itself may be considered as a basis for discharge.\nIn Simpson v. Illinois Civil Service Comm’n (1980), 86 Ill. App. 3d 733, 736, the court held that a physical disability that was not the fault of the employee could provide a legitimate basis for termination. Noting that no Illinois court had addressed the issue, Simpson quoted a Vermont case which held:\n“The more precise question, therefore, is whether ‘cause’ may be interpreted to include physical disability. We do not hesitate to answer this question in the affirmative. The discharge of public employees physically or mentally unable to perform the duties of their offices has been upheld in numerous decisions.” (Gadue v. Village of Essex Junction (1975), 133 Vt. 282, 283, 336 A.2d 182, 183.)\nIn Simpson, the court held that a woman who had an admitted inability to return to work for an indefinite period of time constituted a sufficient basis for termination. (Simpson, 86 Ill. App. 3d at 736.) We find, under Simpson, the Board properly considered Swanson’s psychological problems. Swanson admitted he had filed for disability pension, and he did not know when he would be able to return to work. Swanson argues that it would not be fair to allow termination on this basis because this resulted in the termination of his pension. Swanson did not raise below an issue in regard to his pension, and there is no basis in the record to determine whether Swanson lost his pension. Thus, we do not address Swanson’s objection in this appeal.\nNext, Swanson argues the Board violated his rights by not allowing him to present evidence in mitigation. Swanson has failed to cite any authority in support of this contention. Thus, it is waived. In re Marriage of Anderson (1985), 130 Ill. App. 3d 684, 688-89.\nMoreover, there is no merit to the contention. The Board did not prevent Swanson from presenting mitigating evidence; rather, it denied Swanson’s motion for a continuance. The record shows that when the Board stated that it would consider matters of mitigation and aggravation, Swanson did not object. Shortly thereafter, when it came time for his evidence, however, Swanson asked for a continuance, stating the proceedings had been going for 12 hours, and he and his client were exhausted. The Village objected and stated it had informed Swanson they would be proceeding on mitigation and aggravation. Administrative agencies are vested with broad discretion to grant or deny continuances. (Lindeen v. Illinois State Police Merit Board (1962), 25 Ill. 2d 349, 351.) Swanson was informed to be ready to present evidence in mitigation, and the record does not reflect that there would have been undue hardship in requiring Swanson to proceed. Thus, there was no abuse of discretion.\nSwanson’s final contention alleges the trial court erred in dismissing with prejudice count II of his complaint alleging a violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.). Swanson asked the court to declare the Board’s acts null and void as a result of a violation of the Act. We find the trial court correctly ruled count II failed to allege a cause of action. Swanson contends the Board violated the Act because it made various disclosures to the public concerning information made in closed session. Swanson fails to include one specific example of such a disclosure in his complaint. At any rate, there is no provision in the Open Meetings Act that applies to the action about which Swanson complains. The Open Meetings Act is aimed at guaranteeing public access to meetings of governmental bodies. (Ill. Rev. Stat. 1987, ch. 102, par. 41.) It also allows governmental bodies to meet in closed session in certain situations. (Ill. Rev. Stat. 1987, ch. 102, par. 42a.) There is nothing in the Act that provides a cause of action against a public body for disclosing information from a closed meeting.\nThe court did not err in dismissing this count with prejudice. A trial court has discretion to allow the amendment of pleadings or to terminate the litigation. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615(d).) The trial court’s decision will not be reversed absent an abuse of discretion. (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749.) A complaint is properly dismissed with prejudice only where the plaintiff is entitled to no relief on the facts alleged. (Westgate Terrace Community Associates, Inc. v. Burger King Corp. (1978), 66 Ill. App. 3d 721, 729.) Since Swanson clearly has no cause of action under the Open Meetings Act, the trial court properly dismissed this count with prejudice. We also note that Swanson did not contest the judge’s order or move to file an amended pleading; nor is there any record that Swanson responded to the Board’s motion to dismiss. Thus, Swanson made no effort to attempt to plead a proper cause of action.\nFor the foregoing reasons, the decision of the circuit court is affirmed.\nAffirmed.\nREINHARB and INGLIS, JJ., concur."}
{"dedup_key":"pre1996-141552","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"266 ill-app-3d 421","case_name":"Copley Press, Inc. v. City of Springfield","court_level":"Appellate","appellate_district":"4th","year":1994,"county":null,"appellate_docket":"4-93-0999","circuit_docket":null,"published":1,"authoring_justice":"McCullough","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"City of Springfield and Illinois State Police","requesting_party":"Copley Press, Inc.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that records of an internal investigation into sexual harassment allegations against a police chief were exempt from disclosure under the FOIA exemption for personal information that would constitute a clearly unwarranted invasion of personal privacy. The court affirmed the denial of the request, finding the privacy interest of the subject outweighed the public interest in disclosure.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=141552","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:50.788936","site_category":"Personnel & Student Records","date_decided":"1994-08-23","site_url":"/cases/pre1996-141552/","text_url":"/case-text/pre1996-141552.txt","full_text":"COPLEY PRESS, INC., Plaintiff-Appellant, v. THE CITY OF SPRINGFIELD et al., Defendants-Appellees (Long Nine, Inc., Plaintiffs; Police Benevolent and Protective Association Unit No. 5, Intervenor).\nFourth District\nNo. 4 — 93—0999\nArgued July 19, 1994.\nOpinion filed August 23, 1994.\nGREEN, J., specially concurring.\nBarry O. Hines (argued) and R. Kurt Wilke, both of Barber, Segatto, Hoffee & Hines, of Springfield, for appellant.\nJames K. Zerkle (argued) and Robert M. Rogers, Corporation Counsel, of Springfield, for appellee City of Springfield.\nRoland W. Burris, Attorney General, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General (argued), of counsel), for appellee Department of State Police.\nRonald J. Stone, of Stratton, Dobbs & Nardulli, of Springfield, for Police Benevolent and Protective Association Unit No. 5.\nWayne M. Klocke, of Illinois Fraternal Order of Police Labor Council, of Countryside, and Robert J. Isaacson, of Sonnenschein, Nath & Rosenthal, of St. Louis, Missouri, for amicus curiae.\n\nPRESIDING JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nThe plaintiff, Copley Press, Inc. (Copley Press), and other media organizations requested that the City of Springfield (City) and the Illinois State Police (State Police) release the file and summary compiled by the State Police during their investigation into allegations of sexual harassment against former Springfield chief of police Kirk Robinson. These requests were denied on the basis the investigative file was exempt from disclosure. Plaintiffs brought suit under the Illinois Freedom of Information Act (Information Act) (5 ILCS 140/1 et seq. (West 1992)) to compel public disclosure of the documents. Unit No. 5 of the Police Benevolent and Protective Association was allowed to intervene. On cross-motions for summary judgment, the trial court granted defendants’ motion and denied plaintiffs’ motion. Copley Press, alone, has appealed from that decision.\nThe events giving rise to the lawsuit began when a civilian employee of the Springfield police department (SPD) brought an internal sexual harassment complaint against the chief of police, Kirk Robinson. When news of the complaint, but not the identity of the complaining employee, became public knowledge, Springfield Mayor Ossie Langfelder immediately requested that the State Police conduct an internal affairs investigation into the alleged conduct attributed to Robinson. The State Police agreed to conduct a completely independent investigation and SPD was directed to cooperate fully and refrain from conducting its own internal affairs investigation.\nAfter a three-month investigation, conducted by two State Police master sergeants, a file in excess of 1,000 pages had been compiled. On April 30, 1993, Terrence W. Gainer, Director of the State Police, provided Mayor Langfelder with a summary of the investigation and a copy of the entire investigative file. After reviewing these documents, Mayor Langfelder asked for and received the resignation of Robinson as chief of police. Upon his resignation, Mayor Langfelder reassigned Robinson to the position of commander in the SPD. The fact of the resignation and demotion were made public by Mayor Langfelder.\nAfter this public announcement, plaintiffs requested that the City release the entire file under the Information Act. The City denied the request citing various exemptions. The same request was then made of the State Police which, likewise, denied the request citing additional exemptions.\nAfter filing suit, the various defendants and intervener filed answers claiming that the entire report was exempt from disclosure under 12 separate provisions of the Information Act and common law. The parties filed cross-motions for summary judgment.\nAttached to the motions were several affidavits, including that of Donald Kliment, commander of the Special Services Section (internal affairs) of SPD. His affidavit identified the written SPD policy on internal affairs’ investigations, which directed that all files and reports compiled, as well as the identities of complainants and witnesses interviewed, were to be kept confidential.\nThe affidavit of Mayor Langfelder was also submitted. In it he averred:\n\"The investigative summary report contains the following information:\n(a) the identity of the complainant;\n(b) the identities of other witnesses, some of whom were employees of the City of Springfield who were interviewed by the State Police;\n(c) a summary of the interview of the complainant;\n(d) a summary of other witness interviews;\n(e) personal information of a sexual nature;\n(f) opinions as to the culpability of Kirk Robinson;\n(g) opinions as to the credibility of the complainant and other witnesses;\n(h) hearsay; and\n(i) evaluation of evidence gathered by the State Police during the internal affairs investigation.\n* * *\nThe investigative file contains the following information:\n(a) the identity of the complainant;\n(b) the identities of other witnesses, some of whom were employees of the City of Springfield who were interviewed by the State Police;\n(c) the investigation transcripts of interviews with the complainant;\n(d) the investigation transcripts and/or statement summaries of all witnesses interviewed during the internal affairs investigation;\n(e) personal information of a sexual nature;\n(f) opinions as to the culpability of Kirk Robinson;\n(g) hearsay statements;\n(h) evaluation of evidence gathered by the State Police during the internal affairs investigation;\n(i) medical information; and\n(j) private communications such as letters and cards between various witnesses interviewed.”\nAlso attached was the affidavit of master sergeant John King, one of the two State Police officers who conducted the investigation. Among the averments in King’s affidavit were that in addition to the assurances of the City as to confidentiality of all interviewees who provided information to the State Police, \"that most, if not all, of the interviewees expressed concerns of confidentiality before providing information. Said interviewees were assured of confidentiality by this affiant upon any and all expressions of concern regarding confidentiality.”\nIn describing the contents of the file, King stated:\n\"In the course of the investigation a record thereof was compiled in the form of an investigative file comprised, for the most part, of transcripts of interviews with persons identified in the file who were asked to provide information with respect to allegations of sexual harassment against Kirk Robinson. The subject matter of those interviews includes descriptions of and opinions and rumors relating to personal and/or sexual relationships among, primarily, various members of the Springfield Police Department; allegations of particular acts of a sexual nature; and personal opinions with respect to the credibility, motives and competence of various interviewees. Also included in the file are copies of city and police department procedures for dealing with employment-related complaints or reports of sexual harassment, transcripts in which those procedures and the procedures followed in this particular case are described, personal notes or letters exchanged between individuals relating to incidents that were the subject of the investigation, written descriptions of incidents that were the subject of the investigation, medical information pertaining to complainant, and various personnel documents (e.g., time records) relating to individuals involved in incidents that were the subject of the investigation.”\nThe affidavit concluded that many SPD witnesses were ordered to truthfully answer all questions put to them or be faced with disciplinary action by the SPD and none of the interviewees had consented in writing to the disclosure of information concerning them in the investigative file compiled by the State Police or the summary report prepared by Director Gainer.\nPursuant to order of the trial court, the State Police submitted the entire file for an in camera inspection. After that review was completed and a hearing on the motions was held, the trial court denied, without comment or findings, plaintiffs’ motion for summary judgment and allowed defendants’ motion for summary judgment. By stipulation of the parties, the State Police investigative file was sealed by the trial court and delivered to this court for review on appeal. We have done so and conclude that material contained in the file is consistent with each of the averments made in the various affidavits submitted with defendants’ motion for summary judgment.\nAt the outset we note that at the trial court level, the defendants collectively asserted 12 different statutory or common law exemptions from disclosure. In ruling on the motions for summary judgment, Judge Cadigan, as he did in Muck v. Van Bibber (1992), 223 Ill. App. 3d 830, 585 N.E.2d 1147, failed to make any findings or identify which of the 12 exemptions he was relying upon in reaching his decision. Without the benefit of any indication as to which exemptions apply, plaintiff has had to raise issues on appeal concerning each of the 12 potential exemptions even though appellees have effectively abandoned two of those claims by failing to argue them in their briefs.\nAs we observed in Muck, in which the trial court similarly gave no explanation for its ruling when presented with numerous possible grounds for relief: it could have, and should have, done so. The failure to provide a statement of the basis for the ruling has resulted in a needlessly wasteful expenditure of the resources of the litigants, who have had to argue every possible ground advanced in the trial court. This court, too, has had to review every potential exemption presented below to determine whether there is any ground upon which to affirm the trial court’s judgment. We have, nevertheless, decided to address the merits of the appeal rather than return the case to the trial court as we did in Muck because any further delay would only add needlessly to the time and expense already expended by the parties and this court.\nWe have examined the various exemptions which defendants suggest are applicable. We conclude that at least one exemption applies to the entirety of the investigative file and summary and, for that reason, we need not consider other potential exemptions.\nSection 7(l)(c)(iv) of the Information Act provides an exemption from disclosure for:\n\"Records compiled by any public body for administrative enforcement proceedings and any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public body, but only to the extent that disclosure would:\n* * *\n(iv) unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source.” 5 ILCS 140/7(1)(c)(iv) (West 1992).\nAppellant contends that State Police interviewees should not be labeled as confidential sources because confidential sources, in the context of the statute, should be limited only to paid or undercover informants. No authority is cited for this proposition. The United States Supreme Court, in construing a substantively identical provision of the Federal Freedom of Information Act (5 U.S.C. § 552 (1988)) has rejected such an interpretation when applied to sources providing information to the Federal Bureau of Investigation (FBI). In doing so, the court stated that a \"source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.” (United States Department of Justice v. Landano (1993), 508 U.S. 165, 174, 124 L. Ed. 2d 84, 95-96, 113 S. Ct. 2014, 2020.) While this decision is not controlling, it is certainly persuasive authority, especially when the Illinois act closely parallels Federal law. Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 536, 548 N.E.2d 1110, 1113-14.\nThe affidavit of master sergeant King confirms that many of the witnesses were deeply concerned about the confidentiality of the information they were providing to the investigators. In addition, many of the witnesses from within SPD were compelled to cooperate with the State Police investigation under threat of disciplinary action if they did not. None of the witnesses or sources of information consented in writing to disclosure of the information they provided.\nIn addition, given the nature of the investigation and the relatively limited number of sources of information pertinent to that investigation within the SPD and the local Springfield community, it is readily apparent from an examination of the material in the file that the information provided by each individual interviewee would necessarily result in the disclosure of the identity of that source. For that reason, redaction of the file cannot be meaningfully accomplished.\nCopley Press argues, nevertheless, that the broad grant of confidentiality to a potential witness by the State Police creates a loophole large enough to ensure that misconduct in office by public officials need never be disclosed to the public. We disagree. Law enforcement operations have little hope of being effective if conducted in full public view. (Raphael v. Aetna Casualty & Surety Co. (S.D.N.Y. 1990), 744 F. Supp. 71, 74.) Without the grant of confidentiality, the public is less likely to cooperate with an investigation and wrongdoing will go undetected or unsolved. More important is the fact that the benefit of this exemption inures to the source of the information and not the target of the investigation. Copley Press has not suggested that this is either an impermissible or unworthy basis upon which to exempt disclosure.\nBecause we conclude that section 7(l)(c)(iv) of the Information Act applies to the entire file and the file cannot be meaningfully redacted to avoid the disclosure of either confidential information or sources, we affirm the judgment of the Sangamon County circuit court finding the entire investigative file and summary exempt from disclosure.\nAffirmed.\nKNECHT, J., concurs.\n\nJUSTICE GREEN,\nspecially concurring:\nI concur in the decision of the majority to affirm and in the well-stated reasons for doing so. I write separately only to again express my concern that the language of the majority here, as did the majority in Muck, implies that the issues on review from a summary judgment or other judgment based on a question of law are, in some way, dependent Upon the reasons cited by the circuit court for its ruling. I expressed similar concern in my dissent in Muck, 223 Ill. App. 3d at 837-38, 585 N.E.2d at 1152-53 (Green, P.J., dissenting).\nI agree that a statement by the circuit court of its legal reasons for a ruling, including those in regard to a summary judgment, is helpful to the reviewing court, but I am unaware of an Illinois case other than Muck holding that these reasons control the issues on review. When the judgment appealed is a summary judgment, the often recognized statement of the supreme court that ”[i]n appeals from summary judgment rulings, we conduct a de novo review” would seem to be sufficient to answer any contention that the circuit court’s reasons delineate issues for review. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209.\nThe Outboard Marine opinion called the readers’ attention to Schmolke v. Highland Butterfield, Inc. (1984), 128 Ill. App. 3d 710, 471 N.E.2d 226, where, in affirming a summary judgment on grounds other than that upon which the circuit court recited as its reasons, the appellate court explained that \"[i]n reviewing a trial court’s entry of summary judgment, we are not limited to the precise reasons cited by that court in entering summary judgment.” Schmolke, 128 Ill. App. 3d at 713, 471 N.E.2d at 229."}
{"dedup_key":"pre1996-46324","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"83 ill-2d 191","case_name":"People ex rel. Difanis v. Barr","court_level":"Supreme","appellate_district":null,"year":1980,"county":null,"appellate_docket":null,"circuit_docket":null,"published":1,"authoring_justice":"Clark","statute":["OMA"],"exemptions_cited":[],"public_body":"Urbana City Council","requesting_party":"Thomas J. Difanis, State's Attorney","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The Supreme Court affirmed the lower courts' rulings that the Urbana city council violated the Open Meetings Act by holding a private meeting of a majority of its members to discuss public business. The court held that the Act's requirement for public meetings applies to such gatherings, rejecting arguments that the meeting was merely an informal social or informational session.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=46324","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:51.288980","site_category":"Closed Sessions","date_decided":"1980-12-19","site_url":"/cases/pre1996-46324/","text_url":"/case-text/pre1996-46324.txt","full_text":"(No. 52948.\nTHE PEOPLE ex rel. THOMAS J. DIFANIS, States’s Attorney, Appellee, v. JOAN BARR et al., Appellants.\nOpinion filed December 19, 1980.\nWARD and UNDERWOOD, JJ., dissenting.\nArnold F. Blockman, of Hatch, Blockman & McPheters, of Champaign, and James Kuehl, of Finch & Kuehl, of Urbana, for appellants.\nThomas J. Difanis, States’s Attorney, of Urbana (Joseph D. Pavia, Assistant State’s Attorney, of counsel), for appellee.\nRonald D. Rotunda, of Champaign, for amicus curiae Illinois News Broadcasters Association.\nWilliam E. Feurer, of William E. Feurer, Ltd., of Springfield, for amicus curiae Illinois Press Association.\n\nMR. JUSTICE CLARK\ndelivered the opinion of the court:\nThomas J. Difanis, as State’s Attorney of Champaign County, brought a declaratory judgment action against the nine defendants, who are members of the Urbana city council. The plaintiff sought a declaration that the defendants violated the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) when, on October 23, 1978, they met and conferred shortly before a special session of the Urbana city council. The circuit court of Champaign County entered judgment in favor of the plaintiff. The appellate court affirmed. (78 Ill. App. 3d 842.) We allowed the defendants’ petition for leave to appeal. 73 Ill. 2d R. 315.\nThe parties entered into a stipulation of facts which reveals that an Urbana city council meeting was scheduled for Monday, October 23, 1978, at 7:30 p.m. On Friday, October 20, 1978, two members of the city council, defendants John Peterson and Bob Hurt, decided to hold a party caucus prior to the city council meeting. The caucus meeting was scheduled for October 23, 1978, at 6 p.m. in the home of a member of the city council. Attendance at the meeting was voluntary. The nine defendants attended the 6 p.m. meeting. Eight of the defendants are members of the Champaign County Democratic party, and one defendant has no political affiliation. There are 15 members of the Urbana city council, nine of whom are Democrats. Eight persons constitute a quorum of the council.\nThe meeting was called to discuss matters the city council would consider at its meeting later that night, as well as party matters and an election to be held in November 1978. No agenda was prepared for the 6 p.m. meeting, and no votes were taken. It is further stipulated that the defendants were not meeting as a duly constituted committee of the Urbana city council and they received no compensation for attending the hour-long meeting. One defendant, Donald Wort, arrived approximately 15 minutes before the end of the meeting and participated in a discussion of matters not on the city council agenda. Of the five matters on the formal agenda for the 7:30 p.m. city council session, four were discussed at the 6 p.m. meeting. Three votes were taken at the city council session on matters discussed at the 6 p.m. meeting. On a vote to approve a ward map recommended by a committee of the council, the nine defendants voted as a bloc. The measure thereupon was passed by the council nine votes to four. On the other two votes taken, concerning a community-development-agency appointment and approval of a “planned unit development” project, the defendants did not vote in a uniform manner. The fourth agenda matter discussed at the 6 p.m. meeting concerned the mayor’s appointments to the Public Works Commission. The stipulated facts show that the discussion at the 6 p.m. meeting involved “reasons for holding up the Mayor’s nominations.” This matter was not brought up at the council session. Finally, the defendants stipulated that they have had “caucuses of this nature in the past and will continue to have caucuses of this nature in the future.”\nSection 2 of the Open Meetings Act provides in part:\n“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings ***. This Act does not apply to the General Assembly or to committees or commissions thereof.” (Ill. Rev. Stat. 1977, ch. 102, par. 42.)\nThe defendants contend first that the 6 p.m. meeting does not fall within the ambit of the Act. The defendants argue that the meeting was called primarily as a political caucus and not as a formal “meeting” of the city council. We disagree.\nSection 1 of the Open Meetings Act states:\n“It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies of this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1977, ch. 102, par. 41.)\nThis clearly enunciated public policy would be poorly served were we to carve out exceptions other than those expressly stated in the Act (see Ill. Rev. Stat. 1977, ch. 102, par. 42) for informal political caucuses where, as here, public business was deliberated and it appears that a consensus on at least one issue was reached outside of public view. Moreover, an expression of certain exceptions in a statute is construed as an exclusion of all others. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 557; City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill. 2d 609, 612; 1971 Ill. Att’y Gen. Op. 51, 53.\nIndeed, in 1967 the General Assembly amended the Act to delete the word “official” before the word “meeting” in sections 1 and 2. Palpably, the amendment was intended to include unofficial or informal meetings within the coverage of the Act. In Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 69 Cal. Rptr. 480, a luncheon meeting was held at which several county officials, including the five county supervisors, met privately with labor officials to discuss a strike of the social workers union. Newspaper reporters sought but were denied admission to the gathering. In affirming the trial court’s preliminary injunction order except to the extent it prevented attorneys for the county from discussing privileged matters with county officials, the court stated:\n“An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law’s design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act’s objectives, the term ‘meeting’ extends to informal sessions or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting.” (Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal.\nApp. 2d 41, 50-51, 69 Cal. Rptr. 480, 487.) Thus, to allow the nine defendants to circumvent the Act simply because they designate their meeting as an informal gathering or informal caucus would be to thwart the intent of the Act.\nA related argument raised by the defendants is that the nine defendants do not constitute a “legislative body” or “subsidiary body” which is subject to the Act. This argument misapprehends both the wording of the statute and reality. The statute states that “[a] 11 meetings of any legislative, executive, administrative or advisory bodies *** and any subsidiary bodies of any of the foregoing including but not limited to committees or subcommittees *** shall be public meetings ***.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 102, par. 42.) We interpret the foregoing to mean that the Act was intended to apply to more than meetings of full bodies or duly constituted committees. Thus, “body” must necessarily be interpreted to mean an informal gathering of nine members of a legally constituted public body. The trial court decided that the Open Meetings Act would apply to meetings of three or more persons. Since the instant case involved nine public officials, we need not and do not make any decision as to whether three persons automatically trigger application of the Act.\nIt should be emphasized that it is not the province of this court to pass on the wisdom or desirability of legislation. (Garcia v. Tully (1978), 72 Ill. 2d 1, 10.) As long as the means chosen by the legislature to achieve a desired end are lawful and inoffensive to the State and Federal constitutions, our inquiry may proceed no further. Thus, whether, as the defendants argue, the instant means chosen by the General Assembly to eliminate secrecy in government and permit the free flow of information to the public might restrict the ability of public officials, either as minority blocs or majority groups, to support or oppose legislation, is not within our power to alter. The Act, by its express terms, does sacrifice the ability of public officials to act and deliberate privately to what the General Assembly obviously perceives to be the more important governmental interest of opening the processes of government to public scrutiny. Such a legislative judgment is peculiarly within the domain of the General Assembly. While there appear to be obvious problems of enforcement inherent in the Act, that consideration does not render the Act invalid. Nor may it affect our scrutiny of it. The Act is not intended to prohibit bona fide social gatherings of public officials, or truly political meetings at which party business is discussed. Rather, the Act is designed to prohibit secret deliberation and action on business which properly should be discussed in a public forum due to its potential impact on the public. Thus, the items discussed in the meeting in the instant case regarding a new ward map, the appointments of public officers for two separate agencies, and a housing development not only concerned public business but were scheduled to be dealt with that very evening. Moreover, the stipulated facts show that several other items discussed that evening were matters that the city council would need to consider sometime in the future, for example, the burning of leaves within city limits, the treatment of cable television, and the possibility of rescinding an ordinance which required an appointed comptroller. Therefore, it is reasonably clear and definite that the meeting at issue in this case violated the intent and the terms of the Open Meetings Act. The defendants have challenged the Act on its face as violative of equal protection and due process of law. We need not consider these broad-based attacks, however. Instead, we will only decide whether, under the narrow facts presented, the Act violates the constitutional rights of these nine defendants.\nThe first of defendants’ four constitutional arguments is that the Open Meetings Act as applied to defendants denies them the equal protection of the law under the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. The defendants claim that, since the General Assembly is exempted from coverage under the Act, Democratic members of the General Assembly may attend caucuses without risking prosecution whereas Democratic local officials run the risk of being prosecuted under the Act for attending political caucuses. This argument must fail for the reason that the factual foundation is incorrect. We have previously discussed the subject matter of the 6 p.m. meeting, as set forth in the stipulation of facts. While a few of the matters discussed could be considered political in nature, in that they concerned the November 1971 election and strategy related to that election, we have previously rejected, as did the circuit court, the premise that the meeting was conducted solely, or even primarily, as a political caucus. It clearly was not. Most of the 14 matters discussed concerned city council business. Certainly, a true political caucus is beyond the purview of the Act; the Act comes into play only where public business which could eventually come up for decision before the full body is deliberated or acted upon in private. Thus, the defendants’ argument that they could be susceptible to prosecution simply for participating in a political caucus is erroneous.\nThe defendants argue that the General Assembly, in contravention of its own stated policy of open deliberations and open actions, has exempted itself from coverage under the Open Meetings Act. The defendants further argue that, while a rational relationship to a legitimate governmental interest may exist for making a distinction between the General Assembly and other bodies, any such interest would be subordinated to the General Assembly’s stated purpose of conducting public business in the open. The General Assembly’s exemption might appear inconsistent with the public policy behind the Act were it not for article IV, section 5(c), of the 1970 Constitution, which provides:\n“(c) Sessions of each house of the General Assembly and meetings of committees, joint committees and legislative commissions shall be open to the public. Sessions and committee meetings of a house may be closed to the public if two-thirds of the members elected to that house determine that the public interest so requires; and meetings of joint committees and legislative commissions may be so closed if two-thirds of the members elected to each house so determine.”\nThe defendants argue that the Constitution only requires that formal sessions be conducted openly and that meetings of committees and commissions need not be open to the public. This argument is incorrect, however. Article IV, section 5(c), expressly requires that sessions, meetings of committees, joint committees and legislative commissions shall be open to the public. It is true that informal meetings of members of the General Assembly are thus not required to be conducted openly. Under the well-established standards regarding equal protection of the laws, the legislature may differentiate between persons similarly situated (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578); equal protection requires only that there be a reasonable and rational basis for the classifications which justify different procedures for treating the two groups. People v. Pembrock (1976), 62 Ill. 2d 317, 321; People v. Sherman (1974), 57 Ill. 2d 1, 4; People v. McCabe (1971), 49 Ill. 2d 338, 341; People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 534.\nIt is conceivable that the General Assembly concluded that the relatively smaller size of other bodies covered by the Act and their generally greater proximity to their constituents justified a difference in treatment. Due to its compliance with the well-entrenched rational-basis standard we may not preempt a legislative judgment.\nThe next constitutional contention raised by the defendants is that the Open Meetings Act, as applied to these defendants, is a denial of due process of law under the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. Those constitutional provisions read in pertinent part:\n“*** nor shall any State deprive any person of life, liberty, or property, without due process of law; ***.” (U.S. Const., amend. XIV, sec 1.)\n“Section 2. Due Process and Equal Protection\nNo person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” (Ill. Const. 1970, art. I, sec. 2.)\nIn particular the defendants argue that the Open Meetings Act is vague, uncertain and indefinite with regard to the phrase “meetings of a legislative body.”\nA statute is impermissibly vague when “men of common intelligence must necessarily guess at its meaning.” (Broadrick v. Oklahoma (1973), 413 U.S. 601, 607, 37 L. Ed. 2d 830, 837, 93 S. Ct. 2908, 2913, quoting Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127.) A criminal statute violates due process if it fails to give adequate notice as to what action or conduct is proscribed. (People v. Schwartz (1976), 64 Ill. 2d 275, 280; People v. Vandiver (1971), 51 Ill. 2d 525.) “Impossible standards of specificity, however, are not required.” People v. Schwartz (1976), 64 Ill. 2d 275, 280, citing Jordan v. De George (1951), 341 U.S. 223, 231, 95 L. Ed. 886, 892, 71 S. Ct. 703, 707-08.\nWe think that the Open Meetings Act, as applied to these defendants, is not impermissibly vague for two reasons. First, after the 1967 amendments deleted the word “official” where it had appeared before the word “meetings,” no guessing was required to prohibit all meetings of members of legislative bodies, where deliberations were conducted or actions taken on public business. Secondly, the clear import of section 2 of the Act is that any subdivision of a legislative body, “including but not limited to committees and subcommittees” supported by tax revenues, is subject to the Act. Ill. Rev. Stat. 1977, ch. 102, par. 42.\nIn Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, and its companion case, United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880, the Supreme Court upheld, respectively, a State and a Federal statute against several constitutional challenges. The statutes involved in those cases prohibited certain public employees from participating in political parties or campaigns. We think the court’s statements in Broadrick v. Oklahoma (1973), 413 U.S. 601, 607-08, 37 L. Ed. 2d 830, 837-38, 93 S. Ct. 2908, 2913-14, in rejecting the due process attack in those cases are particularly appropriate in this case:\n“Whatever other problems there are with section 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards’ for those who must apply it. Grayned v. City of Rockford [(1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2299]. In the plainest language, it prohibits any state classified employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other political purpose’ and taking part ‘in the management or affairs of any political party or in any political campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in section 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was said in [United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 578-79, 37 L. Ed. 2d 796, 816, 93 S. Ct. 2880, 2897], is applicable here: ‘there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.’ Moreover, even if the outermost boundaries of section 818 may be imprecise, any such uncertainty has little relevance here, where appellants’ conduct falls squarely within the ‘hard core’ of the statute’s proscriptions and appellants concede as much. See Dombrowski v. Pfister [(1965), 380 U.S. 479, 491-92, 14 L. Ed. 2d 22, 31, 85 S. Ct. 1116, 1123-24]; United States v. National Dairy Products Corp. [(1963), 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594]; Williams v. United States [(1951), 341 U.S. 97, 95 L. Ed. 774, 71 S. Ct. 576];Robinson v. United States [(1945), 324 U.S. 282, 286, 89 L. Ed. 944, 947, 65 S. Ct. 666, 669] ; United States v. Wurzbach [(1930), 280 U.S. 396, 74 L. Ed. 508, 50 S. Ct. 167].” (Emphasis added.)\nThe same is true in the instant case. Therefore, the Act, as applied to these defendants, is neither vague, indefinite nor uncertain, and thus comports with minimum due process requirements.\nThe defendants’ penultimate contention is that the Open Meetings Act violates the State constitutional provision which prohibits special or local legislation “when a general law is or can be made applicable” (Ill. Const. 1970, art. IV, sec. 13). We find no merit in this contention, since we have already held that a legitimate governmental interest in treating smaller governmental bodies differently from the General Assembly exists with regard to the public’s access to governmental deliberations and actions. Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 111-12.\nThus, the exemption of the General Assembly from coverage under the Act is not akin to an attempt to enact reforms “one step at a time” (Grace v. Howlett (1972), 51 Ill. 2d 478, 487, quoting Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461, 465) but, rather, is an instance where a general law recognizes a distinction between two classes which warrants different treatment. (McRoberts v. Adams (1975), 60 Ill. 2d 458, 462.) The Open Meetings Act is intended to create a practicable means of opening the deliberative processes of government to public view. The General Assembly is already affected in this area by article IV, section 5(c), of the 1970 Constitution, which requires that sessions and meetings of committees, joint committees and legislative commissions will, subject to two exceptions, be open to the public. In its substantive effect, then, the Open Meetings Act exemption refers only to private meetings between General Assembly members; however, the size of the General Assembly and the volume of public business it deals with, compared to the size and volume of substantially all of the bodies covered by the Act, reveal why it is reasonable for a distinction to be made between the General Assembly and other bodies. Recognition of the different nature of the General Assembly under the Act does not violate the special legislation provision of the 1970 Constitution.\nFinally, the defendants contend that the Open Meetings Act, as applied to them, violates their rights of freedom of speech and assembly under both the Federal and State constitutions. The defendants argue that the Act is overly broad and raises the specter of public officials fearing to discuss political or public business at any time outside of a formal public forum, lest they be prosecuted under the Act.\nA governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Zwickler v. Koota (1967), 389 U.S. 241, 250, 19 L. Ed. 2d 444, 451, 88 S. Ct. 391, 396; NAACP v. Alabama ex rel. Flowers (1964), 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338, 84 S. Ct. 1302, 1314; People v. Klick (1977), 66 Ill. 2d 269, 273; People v. Ridens (1974), 59 Ill. 2d 362, 370.) A statute is overly broad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. People v. Klick (1977), 66 Ill. 2d 269, 273, citing Grayned v. City of Rockford (1972), 408 U.S. 104, 114-15, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302.\nIt is a well recognized constitutional principle that the government may adopt reasonable time, place and manner regulations which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. (Buckley v. Valeo (1976), 424 U.S. 1, 18, 46 L. Ed. 2d 659, 687, 96 S. Ct. 612, 634, and cases cited therein.) We conclude that the General Assembly has adopted reasonable regulations with regard to public officials’ rights of speech and assembly when those rights are balanced against the extremely important governmental interest of the public’s right of access to public information. The Open Meetings Act does not prohibit political discussions between or among members of public bodies; thus there is no chilling effect upon political discussion. Moreover, we agree with the Attorney General’s opinion that “whether a gathering falls within the definition of meeting as used in the Act, would depend upon the peculiar facts in each situation. It is unlikely that the causal non-preaxranged conversation among less than, or even all, of the members of a particular body in a coffee shop, during which the business of the body was discussed, would constitute a meeting within the terms of the Act. I assume such a gathering is primarily a social gathering and business is discussed only incidentally between certain individuals and not among the group as a whole. Of course, if any decisions or agreements to make decisions are made, such a gathering would be a meeting within the terms of the Act.” (1974 Att’y Gen. Op. 123, 126.) The Act is only addressed to meetings designed to discuss or reach an accord with regard to public business which properly should be deliberated or acted upon in an open forum. In short, the Act requires that public business must be conducted publicly. We perceive this limitation to be reasonable when viewed in relation to a public official’s obligation to carry out the public trust honorably and in good faith. Moreover, we think the Act clearly does not prohibit consultation between an official and his staff so that the official may offer views for discussion and debate in a private setting. (See People ex rel. Cooper v. Carlson (1975), 28 Ill. App. 3d 569 (staff members not subject to Act). Thus the Open Meetings Act is a reasonable attempt to balance the right of the press and the people to view the deliberative and decision-making processes of government first-hand with the right of public officials to speak their minds freely and associate with whomever they choose. The Act places a limited and reasonable regulation upon officials by requiring them to speak of public business with their fellow officials only when they are in a public forum, and sufficient notice under the Act has been given. (Ill. Rev. Stat. 1977, ch. 102, par. 42.02.) We agree with the appellate court that public officials’ desire to consult privately must give way to the open conduct of the public’s business “or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest.” (78 Ill. App. 3d 842, 845.) We are unable to say therefore that the balance struck by the General Assembly is unreasonable.\nIn the instant case, nine public officials, a majority of a 15-member city council, had a prearranged meeting to discuss matters set to be discussed in a public meeting later that same night. Their conduct fell within the “hard core” of the Act’s proscriptions. Whether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination. We conclude only that the Act applies to the meetings held by these defendants and that the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) is constitutional as applied to these defendants.\nAccordingly, for the reasons stated, the judgment of the appellate court is affirmed.\nJudgment affirmed.\n\nMR. JUSTICE WARD,\ndissenting:\nThe majority leaves a cloud of constitutional doubt hanging over this important statute.\nThe statute expressly states that it shall apply to meetings of executive as well as legislative bodies and raises serious questions as to whether it violates the constitutional assurances of separation of governmental powers. Is the Act to apply to meetings of the governor’s cabinet, for example, or to meetings of officials of the Attorney General’s office or State’s Attorneys offices? The statute was amended in 1979 to make it inapplicable to “that portion of meetings of law enforcement agencies, committees or commissions involved in the investigation of criminal activities which are concerned with or are to discuss informant sources, the hiring or assignment of undercover personnel, the purchase and assignment of undercover autos, or actual ongoing, prior or future investigations, or any budgetary considerations specifically concerning any of the foregoing.” Ill. Rev. Stat. 1979, ch. 102, par. 42(h).\nBut what about meetings of officials of the Attorney General’s office or the State’s Attorneys offices with discussions not regarding criminal investigations, but prosecutions? Topics discussed might be flaws or merits in the particular case, trial strategy, summoning of witnesses and their suspected unreliability, caliber of defense counsel or trial judges and the like. It is to be noted that the Act states that its intent is that “deliberations be conducted openly.” Ill. Rev. Stat. 1977, ch. 102, par. 41.\nThe Act fairly bristles with questions regarding the separation of powers and other constitutional areas. The opinion of the majority implicitly acknowledges constitutional problems, stating that the decision here is only “under the narrow facts presented” (83 Ill. 2d at 202) and that “[w] hether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination” (83 Ill. 2d at 211). But the deep and troubling problems will not go away. I believe it is a disservice not to address the problems and permit the legislature, if the Act is in fact determined to be unconstitutional, to take fresh legislative action.\nAs a general proposition it is said that a court, of course, will avoid constitutional questions if possible and will decide only the question before it. But this court on its own initiative will consider constitutional problems and will if necessary declare legislation unconstitutional. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.\nThere is a severability provision in the act here (Ill. Rev. Stat. 1977, ch. 102, par. 45) but if the legislature intended the provisions of the Act as a whole piece of legislation, as unquestionably was the case here, the entire act would fall. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.\nMR. JUSTICE UNDERWOOD joins in this dissent."}
{"dedup_key":"pre1996-129279","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"182 ill-app-3d 941","case_name":"American Federation of State, County and Municipal Employees (AFSCME) v. County of Cook","court_level":"Appellate","appellate_district":"1st","year":1989,"county":null,"appellate_docket":"1-88-0070","circuit_docket":null,"published":1,"authoring_justice":"Johnson","statute":["FOIA"],"exemptions_cited":[],"public_body":"County of Cook","requesting_party":"American Federation of State, County and Municipal Employees (AFSCME)","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether a public body is required to provide requested public records in a specific electronic format (computer tape) rather than a printed format. The court held that the agency's election to provide the information via computer printout was permissible under the Freedom of Information Act.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=129279","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:52.043217","site_category":"Search & Production","date_decided":"1989-05-04","site_url":"/cases/pre1996-129279/","text_url":"/case-text/pre1996-129279.txt","full_text":"AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, Plaintiff-Appellee, v. THE COUNTY OF COOK et al., Defendants-Appellants.\nFirst District (4th Division)\nNo. 1—88—0070\nOpinion filed May 4, 1989.\nJIGANTI, P.J., dissenting.\nRichard M. Daley, State’s Attorney, of Chicago (Joan S. Cherry and Susan Condon, Assistant State’s Attorneys, of counsel), for appellants.\nMelissa J. Auerbach, of Cornfield & Feldman, of Chicago, for appellee.\n\nJUSTICE JOHNSON\ndelivered the opinion of the court:\nThis is an appeal from the circuit court of Cook County denying the motion for judgment on the pleadings of defendants, the County of Cook and George W. Dunne as president of the board of commissioners of the County of Cook, and granting the motion for summary judgment of plaintiff, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO. The sole issue presented for review is whether a government agency may elect, pursuant to its administrative authority under the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) (hereinafter the Act), to furnish requested information on a computer printout rather than on computer tape.\nWe reverse.\nIn October and November 1986, plaintiff requested the name, job title, position code, and rate of pay for employees in certain county departments. Defendants provided the requested information in a printed report, receipt of which was acknowledged by an agent of plaintiff.\nIn a letter dated November 2, 1986, plaintiff requested that the same information be provided on a computer tape or diskette. Defendants denied the request by letter dated December 1, 1986, because this information had previously been supplied.\nOn December 17 plaintiff’s counsel wrote another letter to defendants, again requesting that the information be provided on computer tape. Plaintiff also requested that the information be sorted by job title within certain specified departments and to indicate whether the employees were covered by collective bargaining agreements. On December 31, defendants again denied the request and advised plaintiff that its payroll records were not maintained by job title within the requested specified departments nor do these records indicate which employees are covered by collective bargaining agreements. Defendants also stated that it was the requester’s responsibility to re-sort the provided information.\nOn January 5, 1987, plaintiff appealed defendants’ denial pursuant to the Act. (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) Plaintiff, however, only appealed from defendants’ denial of the request that the information be provided on computer tape or diskette. Defendants denied plaintiff’s appeal by letter on February 11, 1987. Defendants maintain the Act does not require that the requested information also be provided on computer tape.\nOn March 5, 1987, plaintiff filed a suit for injunctive relief to require defendants to turn over the requested material on computer tape. During the pendency of the suit, plaintiff continued to ask for the information on computer tape and defendants continued to provide the information in a printed form. Defendants provided such information on four separate occasions after plaintiff had filed suit.\nPlaintiff filed a motion for summary judgment on September 9, 1987. A supporting affidavit was filed with plaintiff’s motion. The affidavit, from a part-time data processor, stated that the cost to plaintiff to convert the printed records onto disk would be $900, plus $100 for tape to disk conversion and for computer time. It was further stated that most of the cost could be avoided if the data were supplied in magnetic tape form.\nIn response to plaintiff’s motion, defendants stated that it was the present practice to respond to such requests by providing a printed report; this was to ensure accuracy and consistency of material, and because the printout method was the most generally accessible format.\nDefendants’ response was supported by an affidavit from the director of the department of data processing, Joseph M. Yaeger. Mr. Yaeger stated that the requested information could be generated in either a printout or on computer tape. According to Yaeger, the choice of either would not affect the substance, type, or amount of information that could be made available.\nDefendants then filed a motion for judgment on the pleadings. On December 7, 1987, the trial court, after hearing oral arguments from both parties, granted plaintiff’s motion for summary judgment and denied defendants’ motions for judgment on the pleadings.\nThe trial court’s decision was based on a balancing test of convenience to the parties. The court found that providing the information on tape posed no great burden on defendants, whereas receipt of the information on tape was more convenient and less costly for plaintiff. It is from this order that defendants appeal.\nIt is well settled that decisions of the United States district courts and the circuit courts are not binding on Illinois courts. (City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 118.) However, such decisions may be adopted to the extent that we find the reasoning and rationale persuasive. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1057.) The question raised by defendants is one of first impression in Illinois. We view the district court’s decision in Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, as dispositive of this issue.\nIn Dismukes, the plaintiff brought suit pursuant to the Federal Freedom of Information Act (5 U.S.C. §552 (1977)). The action was brought to obtain a copy of a computer tape which listed the names and addresses of participants in Federal bimonthly gas and oil lease lotteries. The defendant advised plaintiff that the requested information was available to the public on microfiche cards.\nIn Dismukes, defendant sought dismissal of the action on the grounds that its obligation had been discharged ■ under the Act when the information was offered to plaintiff on microfiche. In plaintiff’s cross-motion for summary judgment, he contended that his specific request pursuant to the Act had not been satisfied. The issue presented to the court was whether a Freedom of Information Act requester may specify the format of the data that he seeks from the agency. Dismukes, 60S F. Supp. at 760.\nThe court held that the agency had no obligation under the Act to accommodate plaintiff’s preference. “The agency need only provide responsive, nonexempt information in a reasonably accessible form, and its offer to plaintiff satisfies that obligation.” (Dismukes, 603 F. Supp. at 763.) The fact that the computer tape offered the least expensive and most convenient means of access to the lottery information did not obligate the agency to provide the plaintiff with a computer tape under the Act. Dismukes, 603 F. Supp. at 763.\nSimilarly, we find that the information provided to plaintiff in the instant case satisfies defendants’ obligation under the Illinois Act. Here, there was no refusal to provide the requested information. The only question was the format in which the information was to be furnished.\nThe legislative intent of the Act is to provide the public with access to nonexempt information. (Ill. Rev. Stat. 1985, ch. 116, par. 201.) The only obligation that the Act imposes with respect to form is that “public records stored by means of electronic data processing may be obtained in a form comprehensible to persons lacking knowledge of computer language or printout format.” Ill. Rev. Stat. 1985, ch. 116, par. 205.\nWe find the standard announced in Dismukes is more in accordance with the purposes of the Act than the balancing test adopted by the trial court. Accessibility of information, not convenience of format to the parties, is the focal point of the Act. Under the Dismukes standard, the agency need only provide responsive, nonexempt information in a reasonably accessible form.\nIt is not disputed that defendants in the instant case provided plaintiff with the requested nonexempt information. A printout is a reasonably accessible form that is comprehensible to the public. The requester does not have a right under the Act to designate the format as well as the content. (Dismukes, 603 F. Supp. at 763.) The agency, however, does not have unfettered discretion to choose the format. We find that the information must be presented in a format within the guidelines as set forth in Dismukes.\nPlaintiff maintains that Dismukes is contrary to the weight of authority under Federal and State freedom of information acts mandating disclosure of documents. Plaintiff cites three out-of-State cases in which, he contends, the requester could designate the format. We do not find that these cases support plaintiff’s proposition.\nThe first case plaintiff cites is Lorain County Title Co. v. Essex (1976), 53 Ohio App. 2d 274, 373 N.E.2d 1261. In Lorain, the court of appeals of Ohio held that where information contained in a public record is placed on microfilm, the microfilm becomes a public record to which the public has reasonable access. (Lorain, 53 Ohio App. 2d at 276-77, 373 N.E.2d at 1263.) However, the court also pointed out that the format by which the agency makes the information available is within the agency’s discretion. Lorain, 53 Ohio App. 2d at 277, 373 N.E.2d at 1263.\nSimilarly, in the instant case, defendants are not preventing plaintiff from access to the requested information. Defendants are merely exercising their discretion in choosing the format by which the information is to be provided to plaintiff. Plaintiff’s case actually supports defendants’ position.\nPlaintiff next cites Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116. In this 1973 case, the supreme court of New Hampshire held that real estate assessments were public records pursuant to the State’s “right to know” laws. The court found that, in view of the ease of obtaining the information from computerized tapes as opposed to 35,000 field cards, plaintiff was entitled to a copy of the tape. Menge, 113 N.H. at 538, 311 A.2d at 119.\nIn 1986, however, New Hampshire’s “right to know” law was amended to give public bodies the right to choose to provide the requester a printout of computer records as opposed to the original documents. (N.H. Rev. Stat. Ann. §91 — A:4(V) (1986).) In effect, the amended law gives the agency the right to choose the format.\nThe last case plaintiff cites is Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500. In Ortiz, the supreme court of New Mexico held that the county chairman of a political party was entitled to a copy of a magnetic tape of voter registration affidavits of the entire county as opposed to requiring the official to personally inspect the affidavits.\nThe court found that, although the right to inspect public records includes the right to make copies thereof, these rights are subject to reasonable restrictions. (Ortiz, 82 N.M. at 446, 483 P.2d at 501.) Ortiz does not stand for the proposition that the requester has the absolute right to choose whichever format is most convenient to his individual needs. Reasonable regulations may be imposed so long as there is reasonable access to the nonexempt information. We do not find the holding in Ortiz contrary to the holding in Dismukes.\nWe will not address defendants’ contention that a de novo review was inappropriate pursuant to section 11(e) of the Act (Ill. Rev. Stat. 1985, ch. 116, par. 211(e)), as plaintiff was not denied access to the information. Defendants only denied plaintiff’s request to provide the information on computer tape.\nWe find that the Dismukes test is more in accordance with the purposes of the Act as opposed to the balancing test adopted by the trial court. We further find that there was not an abuse of discretion by defendants in providing the plaintiff with a printout of the requested information rather than a computer tape. Defendants were within the guidelines as set forth in Dismukes.\nFor the foregoing reasons, the orders of the circuit court of Cook County are reversed.\nReversed.\nLINN, J., concurs.\n\nPRESIDING JUSTICE JIGANTI,\ndissenting:\nI respectfully dissent from the opinion of the majority because I believe that the trial court acted properly in balancing the convenience of the plaintiff against the burden imposed upon the agency in determining whether the agency was required to furnish the requested information in the form of computer tape rather than computer printout.\nThe agency maintains the requested information on computer tape. The information can be reproduced in two ways — either by making a copy of the computer tape or by making a computer printout of the information contained on the tape. The plaintiff requested a copy of the tape because the copy could be used directly in the plaintiff’s computer, thereby making the information more accessible in that form. By contrast, it would cost the plaintiff approximately $900 to transfer the information from the computer printout into the plaintiff’s computer.\n, The agency maintains that it may choose the format, regardless of any inconvenience to the plaintiff, as long as the information is in a readily accessible form. It cites Dismukes v. Department of the Interior (D.C. Cir. 1984), 603 F. Supp. 760, as support for this contention. The Dismukes case does state that in order to comply with the Freedom of Information Act (FOIA), the agency need only provide responsive, nonexempt information in a reasonably accessible form. However, a close reading of the case reveals that the court did in fact consider the cost differential between microfiche and computer tape in determining whether the agency was erecting unreasonable barriers to the plaintiff’s access to the information. The court found the differential minimal and concluded that the agency was not erecting an unreasonable barrier to the plaintiff’s access.\nThe plaintiff has cited two cases from other jurisdictions and an Illinois Attorney General opinion which support its position. In Ortiz v. Jaramillo (1971), 82 N.M. 445, 483 P.2d 500, the court held that the plaintiff had a right to copy a magnetic tape containing voter registration affidavits rather than having to inspect the individual affidavits. In so concluding, the court stated that “[w]e are unable to understand why the right to inspect public records should not carry with it the benefits arising from improved methods and techniques of recording and utilizing the information contained in these records, so long as proper safeguards are exercised as to their use, inspection and safety.” (Jaramillo, 82 N.M. at 446, 483 P.2d at 501.) In Menge v. City of Manchester (1973), 113 N.H. 533, 311 A.2d 116, the court held that the plaintiff was entitled to a copy of computer tapes of certain real estate assessments rather than having to gather the information directly from the field cards. The court stated that “[t]he ease and minimal cost of the tape reproduction as compared to the expense and labor involved in abstracting the information from the field cards are a common sense argument in favor of the former.” (Menge, 113 N.H. at 538, 311 A.2d at 119.) In Attorney General opinion No. S — 1323, dealing with computer tapes containing voter registration records, the Attorney General stated that “[w]hen the county clerk keeps the voter registration records on computer tapes, it makes no sense and accomplishes no legitimate purpose to force individuals and organizations to copy the information from the registration cards rather than from the tape. *** Therefore, as a general rule, interested individuals and organizations may copy computer tapes containing voter registration records.” 1977 Ill. Att’y Gen. Op. 219, 221-22 (No. S — 1323).\nThe majority attempts to distinguish these authorities on the basis that the format chosen by the agency in each of those cases was “clearly” unreasonable because it imposed a great inconvenience upon the party requesting the information. I believe that a determination as to what constitutes reasonable access should involve a consideration of all of the factors present in the case, including the factor of whether the agency would be burdened in any manner by granting the plaintiff’s request as to format.\nIn the case at bar, the agency advanced two reasons for furnishing the information in the form of a computer printout rather than a copy of the computer tape. First, it claimed that a computer printout would better ensure accuracy. However, at a hearing on the plaintiff’s motion for summary judgment, it was established that the computer printout would be no more accurate than a copy of the tape from which the printout was produced. Second, the agency maintained that a computer printout would be more accessible to the general public. However, no explanation was given as to why the information could not be released in different formats to different requesters. Finding that the agency had no reason whatsoever to choose one format over the other, the court determined that the agency’s choice of format was entirely arbitrary. Balancing the agency’s complete lack of interest in choosing one format over the other against the considerable cost differential faced by the plaintiff, the court determined that the plaintiff was entitled to a copy of the computer tape. I believe that the court’s decision was compatible with the purpose of the Freedom of Information Act to ensure full and complete access to public records."}
{"dedup_key":"pre1996-156934","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"90 ill-app-3d 88","case_name":"People ex rel. Byron v. Board of Trustees of Southern Illinois University","court_level":"Appellate","appellate_district":"5th","year":1980,"county":null,"appellate_docket":"79-648","circuit_docket":null,"published":1,"authoring_justice":"Jones","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Trustees of Southern Illinois University","requesting_party":"Faculty Organization for Collective Bargaining","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that a labor organization did not have a right to intervene in a mandamus and declaratory judgment action brought by a State's Attorney against a public body for alleged Open Meetings Act violations. The court determined that the intervenors' interest was no greater than that of the general public and was already adequately represented by the State's Attorney.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=156934","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:53.125186","site_category":"Meeting Conduct & Participation","date_decided":"1980-11-10","site_url":"/cases/pre1996-156934/","text_url":"/case-text/pre1996-156934.txt","full_text":"THE PEOPLE ex rel. NICHOLAS G. BYRON, State’s Attorney, Madison County, Plaintiff, v. THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Defendants-Appellants.—(FACULTY ORGANIZATION FOR COLLECTIVE BARGAINING et al., Intervening Plaintiff-Appellee.)\nFifth District\nNo. 79-648\nOpinion filed November 10, 1980.\nFeirich, Schoen, Mager, Green & Associates, of Carbondale, for appellants.\nHirsh & Schwartzman, of Chicago, for appellee.\n\nMr. PRESIDING JUSTICE JONES\ndelivered the opinion of the court:\nThis is an interlocutory appeal brought pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). The trial court found that an order permitting intervention as of right involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate disposition of the litigation. The question of law identified by the trial court is “the right of the petitioner, a labor organization, to intervene in this cause of action, ‘as of right,’ where the suit is for mandamus and declaratory relief in relation to the Illinois Open Meeting Law and is brought and prosecuted by a public officer, namely, the States [sic] Attorney of Madison County, Illinois, against another public agency, Southern Illinois University.”\nThe People of the State of Illinois, upon the relation of the County of Madison, brought an action for declaratory judgment and for a writ of mandamus against the Board of Trustees of Southern Illinois University (hereinafter the Board) and each member thereof, both individually and in his or her official capacity. In a 14-count complaint filed on June 14, 1979, the People alleged that defendants had violated “An Act in relation to meetings” (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) (hereinafter the Act) with reference to the Board’s decision of February 8,1979, to change the governance structure of Southern Illinois University. By that decision the Board had changed the structure to a centralized one headed by a chancellor. Plaintiff asked the court to declare that certain discussions had by defendants with regard to the change, both during executive sessions closed to the public and during the course of informal conversations, were violations of the Act. Plaintiff asked the court also to issue a writ of mandamus requiring defendants to comply with the provisions of the Act in the future. In that regard plaintiff sought an order requiring all closed meetings of defendants or their successors in office to be recorded by an electronic device or a certified court reporter and the “recordings or notes” thereof to be kept safely and securely, subject to inspection by the Madison County State’s Attorney’s Office upon reasonable notice. Plaintiff also sought an order requiring defendants to\n\"* * * maintain individual logs of all conversations not in public meetings they have with other BOARD OF TRUSTEES members, either in person or by telephone, whenever said conversation involves business or topics pertinent to their duties as members of the BOARD OF TRUSTEES, said logs to show the date, time, place, topic, and names of the conversing parties and to be produced to the Madison County State’s Attorney’s Office upon reasonable notice.”\nOn July 11,1979, the Faculty Organization for Collective Bargaining (hereinafter “FOCB”) petitioned to intervene pursuant to section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 26.1). Defendants moved both for dismissal of the petition to intervene and for transfer of the cause to the circuit court of Jackson County. The latter motion was granted. Thereafter FOCB, together with certain members of the faculty of Southern Illinois University as individuals, filed an amended petition to intervene. The inclusion of the faculty members constituted the amendment to the petition. In the petition FOCB is described as “an unincorporated faculty association affiliated with the Illinois Education Association and * * * composed of 120 members employed by defendants at its [sic] Edwardsville campus in the capacity of instructor, associate professor, assistant professor and professor.” The petitioners stated that they wished to intervene\n“* * * in order that they may assert their rights in said action to wit: to insure that all meetings of the Defendant be held in compliance with the Act; that since many meetings of Defendants were in violation of the Act and resulted in the decision to change the system structure and governance of Southern Illinois University, said decision has the direct effect of eroding Petitioner FOCB’s capacity to advise Defendants relative to its members’ wages, hours and conditions of employment.”\nIn support of defendants’ motion to dismiss the petition to intervene, they filed an affidavit of James Brown, vice chancellor, formerly acting chancellor, of Southern Illinois University, in which he stated,\n“[T]he faculty organization known as the Faculty Organization for Collective Bargaining on the Edwardsville Campus of Southern Illinois University is not now, and never has been [sic] recognized as a bargaining agent for faculty members. * * * [T]he aforesaid faculty organization is not now nor has it ever been recognized as an advisor to the administration of Southern Illinois University relative to wages, hours, and conditions of employment for faculty members at the Edwardsville Campus of Southern Illinois University.”\nIn the petition to intervene the petitioners stated that they were making the same allegations that plaintiff had made in its complaint, that they relied on plaintiff’s complaint for their own request to intervene and that they had “assisted Plaintiff in the preparation of the instant matter.” They said that they “reaffirmed] the allegations of Plaintiff’s Petition for Writ of Mandamus” and that “[i]n addition,” if they were granted permission to intervene, they would “request that all action taken at the meetings and discussions referred to in said Petition be declared void.” In an order filed December 12, 1979, the trial court permitted the intervention as of right “since the representation of petitioners’ interest by the plaintiffs may be inadequate and the petitioners may be bound by an order or judgment in this cause.”\nFrom that order defendants perfected this appeal, contending (1) FOCB lacks “sufficient special interest different from the interest of the public to intervene in this action as of right”; (2) FOCB “may not intervene as of right because it has not shown or stated how representation by the State’s Attorney is or may be inadequate, and it has not shown how it may be bound by an order or judgment entered in the main action”; (3) if FOCB is permitted to intervene it would interject “issues not germane to the original action.”\nIntervenors argue to the contrary with respect to each of these issues. As to the last, they take the position that they do not raise issues “not germane to the main action,” that they merely seek a “broader remedy.” Be that as it may, by virtue of the fact that they do seek a “broader” remedy, they ask the court for essentially two forms of relief. They ask for the relief plaintiff seeks, which they label “prospective,” namely, a declaration by the court that defendants’ discussions were violations of the Act, together with a writ of mandamus requiring defendants’ compliance with the provisions of the Act in the future. In addition they ask for relief not sought by plaintiff, which they label “retrospective,” namely, a declaration by the court that the action of the Board was void. This further relief, they say, would “rectify the injury they have suffered as a result of violations of the Act by the Defendants.” They describe in greater detail in their brief than they did in their petition to intervene the nature of that injury:\n“The decisions and actions taken in those meetings in violation of the Act, established a new governance structure at Southern Illinois University (S.I.U.), creating an additional chancellor level of authority between the President of the Edwardsville Campus and the Board of Trustees. This position acts to dilute the impact the President has on the final decision making authority of the University — the Board of Trustees. By adding an additional layer of authority between the President of the local campus and the Board of Trustees, the faculty and representatives of the faculty are further removed from that body which most directly affects their ability to negotiate salaries, working conditions and other terms of employment. Furthermore, the additional budget allocations necessitated by the new governance structure will indirectly affect the portion of the budget available for salaries and other benefits to faculty.”\nElsewhere in their brief intervenors say,\n“Decisions altering the University’s administrative body took place outside of properly conducted public meetings at which Intervenors would have had the opportunity to express their viewpoints and provide input into the decision making process establishing a new governance system. Instead those decisions were made and carried out in secret. Such changes serve to erode Intervenors’ ability to effectively act on their behalf regarding academic and economic concerns.”\nThat part of section 26.1 of the Civil Practice Act upon which intervenors rely provides as follows:\n“Upon timely application anyone shall be permitted as of right to intervene in an action: * * * (b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action * * *.\"\nIt is well established that one who petitions to intervene must have an enforceable or recognizable right and more than a general interest in the subject matter of the proceedings. (Cooper v. Hinrichs (1957), 10 Ill. 2d 269, 140 N.E.2d 293; University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136; Gray v. Starkey (1976), 41 Ill. App. 3d 555, 353 N.E.2d 703.) That is to say, an intervenor must show a specific, enforceable or recognizable right greater than the interest of the general public in the subject matter of the suit. Caterpillar Tractor Co. v. Lenckos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167.\nIn their reply brief defendants quote from the case of Board of Education v. County Board (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054, and cite the slightly more recent one of In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67, both of which consider available relief with respect to violations of the Open Meetings Act. In County Board, which involved a detachment and annexation petition, the school district from which certain territory was detached sought review by the circuit court, which affirmed the administrative decision. On appeal the school district claimed, among other things, that the “decisions of the [two] county boards [of school trustees] were invalid in that they allegedly violated the Open Meetings Act.” The allegation arose from the fact that the two boards adjourned after taking evidence to deliberate in private whereupon they returned to the open forum to vote. Having objected to the appellant’s reliance upon the case of People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649, for the reason that it was “a mandamus action to compel an open meeting and not an action to declare a public act invalid,” the court said,\n“We have carefully examined the provisions of the open meetings act and we note that it provides for the issuance of an [sic] mandamus to compel the meeting to be open. In addition, it provides that violations of the act might result in misdemeanor, criminal penalties for intransigent office holders. However, nothing in the act or in case law mandates the invalidity of public action allegedly taken during closed proceedings. In the absence of clear precedent, and without legislative mandate, we will not construe the act in question as creating such a result.” 60 Ill. App. 3d 415, 421, 376 N.E.2d 1054, 1058.\nIn the later case of Byron Park District, which involved an effort to annex or incorporate the site of a nuclear power plant, the appellants claimed that an annexation petition was invalid because of failure to comply with the Open Meetings Act. The noncompliance arose out of the failure of a certain park district to publish or post a public notice of its regular meetings for the calendar and fiscal years in which the meeting in question occurred. Citing County Board, the court stated:\n“[Although the open meetings act provides for the issuance of a mandamus to compel meetings to be open and even provides criminal penalties, under some circumstances, for public office holders who refuse to comply with the act, nothing in the act or elsewhere, [sic] invalidates official actions taken at proceedings held in a manner violative of the open meetings act.” 67 Ill. App. 3d 61, 66, 385 N.E.2d 67, 71.\nRelying upon Byron and County Board, defendants maintain that “no court can change the result of the meetings in question even if they violated the Open Meetings Act” because, they say, the terms of the Act do not extend so far. From that proposition they conclude that “the ‘special concerns’ of the intervenor [FOCB] do not constitute the inadequacy of representation required for intervention as of right.” Although we do not understand how FOCB’s special concerns could “constitute” adequacy or inadequacy of representation, we suppose that defendants mean by the statement that representation by the State’s Attorney can not be inadequate if the relief intervenors seek is prohibited by law. We think, though, it is more to the point to say that because the relief sought by intervenors is prohibited by law, they can have no interest, no enforceable or recognizable right, with respect to that relief which could be prejudiced by any judgment or order in the action in which they have petitioned to intervene. Absent the interest required by section 26.1 of the Civil Practice Act, they may not intervene as of right, at least with respect to the additional relief sought by them though not by plaintiff. Therefore, if they are to be allowed to intervene at all, they must be allowed to do so only with respect to the other relief they seek.\nIntervenors contend that representation by the State’s Attorney would be inadequate not only as to the additional relief sought by them but also as to the relief sought both by them and by plaintiff. While it is possible that representation by the State’s Attorney might be inadequate as to the further relief sought by intervenors, were it available as a remedy, it is difficult to perceive how intervenors can have any greater interest than that of the general public in a declaration by the court that defendants’ discussions were violations of the Act or in a writ of mandamus requiring them to comply with it in the future. Nor is intervenors’ argument in this regard persuasive. Absent a showing of any greater interest than that of the general public, representation by the State’s Attorney is adequate as to the relief sought both by plaintiff and intervenors. Therefore, it is error to permit them to intervene as of right with respect to that relief as well.\nIn summary, we have concluded that intervenors have no enforceable right as to the additional relief they seek in the form of a declaratory judgment that the action of the Board was void. As to that remedy they can have no interest which can be bound by any order or judgment in the action and, necessarily, no need for any representation of any kind. As to the relief sought both by plaintiff and intervenors for a declaratory judgment that defendants’ discussions were violations of the Act and for writ of mandamus, we have concluded that intervenors have no greater interest in the action than that of the general public. That interest can be adequately represented by the State’s Attorney. Therefore, we hold that petitioners may not intervene as of right in this cause, and we reverse the order of the trial court permitting them to do so.\nReversed.\nKARNS and SPOMER, JJ., concur.\nSection 43 of the Act provides for writ of mandamus as follows:\n“Where the provisions of this Act are not complied with or where there is probable cause to believe that the provisions of this Act will not be complied with, the court shall issue a writ of mandamus requiring that a meeting be open to the public at large or issue such other appropriate order as will insure compliance with the provisions of this Act.” (Ill. Rev. Stat. 1977, ch. 102, par. 43).\nSection 44 of the Act provides for a criminal penalty: “Any person violating any of the provisions of this Act shall be guilty of a Class C misdemeanor.” Ill. Rev. Stat. 1977, ch. 102, par. 44."}
{"dedup_key":"pre1996-154376","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"78 ill-app-3d 842","case_name":"People ex rel. Difanis v. Barr","court_level":"Appellate","appellate_district":"4th","year":1979,"county":null,"appellate_docket":"15464","circuit_docket":null,"published":1,"authoring_justice":"Craven","statute":["OMA"],"exemptions_cited":[],"public_body":"Urbana City Council","requesting_party":"State's Attorney for Champaign County","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether a caucus of city council members constituted a meeting of a public body under the Open Meetings Act. The court held that the Act applies to meetings of legislative, executive, or administrative bodies, and reversed the trial court's order that had imposed notice requirements on informal gatherings of council members.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=154376","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:53.125253","site_category":"Public Body Definition","date_decided":"1979-11-28","site_url":"/cases/pre1996-154376/","text_url":"/case-text/pre1996-154376.txt","full_text":"THE PEOPLE ex rel. THOMAS J. DIFANIS, State’s Attorney for Champaign County, Plaintiff-Appellee, v. JOAN BARR et al., Defendants-Appellants.\nFourth District\nNo. 15464\nOpinion filed November 28, 1979.\nTRAPP, J., dissenting.\nHatch, Nicol, Blockman & McPheters, of Champaign, and James Kuehl of Finch & Kuehl, of Urbana, for appellants.\nThomas J. Difanis, State’s Attorney, of Urbana (Joseph D. Pavia, Assistant State’s Attorney, of counsel), for appellee.\n\nMr. JUSTICE CRAVEN\ndelivered the opinion of the court:\nThe State’s Attorney filed this action under the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) to obtain a declaratory judgment that members of the Urbana city council may not meet in closed session to discuss city council business. According to the facts stipulated by the parties, an Urbana city council meeting was scheduled for Monday evening, October 23, 1978, at 7:30. The preceding Friday, two of the defendants decided that they should hold a caucus for Democratic members of the city council a few hours before the scheduled meeting. The caucus was set for 6 p.m. on October 23, 1978, and eight of the nine Democrats on the city council, along with one independent member, attended. The press did not receive notice of the caucus, and the public was not invited. Issues on the agenda for that night’s city council meeting as well as issues not on the agenda were discussed at the caucus. The defendants stipulated that they have had these meetings in the past and will continue to do so unless this case holds otherwise. The Urbana city council has 15 members, with a quorum requiring the presence of 8 members.\nThe trial court ruled that the October 23, 1978, caucus violated the Open Meetings Act, that political caucuses are not exempt from the Act, that the Act is constitutional, and that the Act must be complied with whenever three or more members of the Urbana city council meet to discuss city council business.\nThe Open Meetings Act declares as public policy that meetings and deliberations of public bodies should occur in the open, rather than behind closed doors. The first section of the Act explicitly states this policy:\n“It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1977, ch. 102, par. 41.)\nThe second section of the Act states the extent of the application of the Act to the meetings of different public bodies:\n“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings * * *. This Act does not apply to the General Assembly or to committees or commissions thereof.” Ill. Rev. Stat. 1977, ch. 102, par. 42.\nAt the beginning of the fiscal or calendar year, bodies subject to the Act must publish a schedule of the year’s meetings and provide public notice of the schedule by posting a copy at the body’s office, or if none, at its regular meeting place; the schedule of meetings must also go to newspapers and radio and television stations that have filed an annual request for such notice. For special, rescheduled, or reconvened meetings, the body must notify the public at least 24 hours in advance and the media in the same manner that members of the body are notified. (Ill. Rev. Stat. 1977, ch. 102, pars. 42.04, 42.03.) Furthermore, meetings must be held at places and times convenient to the public. Ill. Rev. Stat. 1977, ch. 102, par. 42.01.\nThe State argues that the Open Meetings Act requires that the so-called caucuses of the Democratic members of the city council take place in public and be open to the press and the public. The defendants argue that the Open Meetings Act does not apply to political caucuses. The Act does not define the word “meeting.”\nThe leading Illinois case on the Open Meetings Act is People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649. In Hopf, two members of the five-member city council, the city attorney, the city manager, an attorney, and an owner of land met privately to discuss the sale of a parcel of land to the city council. Hopf ruled that the meeting was held in violation of the Open Meetings Act, and that the Open Meetings Act applies even when fewer than a quorum are present.\nIn Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 69 Cal. Rptr. 480, an appellate court applied the California sunshine law, called the Brown Act, to a private meeting held by five county supervisors, counsel, the county executive, the county director of welfare, and several members of the area’s central labor council. This group had met at the local Elks Club to discuss a strike by the social workers’ union against the county. Like the Illinois sunshine law, the California version did not then and still does not define the word “meeting.” In holding that the meeting had violated the Brown Act, the court in Sacramento said that interpreting the word “meeting” to decide what deliberations fall within the scope of the law requires analysis of the statute’s objective and the nature and purpose of the gatherings and meetings covered by the legislation.\nIn News-Journal Co. v. McLaughlin (Del. Ch. 1977), 377 A.2d 358, a Delaware court ruled that under that State’s sunshine law the plaintiff-newspaper had the right to attend closed meetings held by certain members of the Wilmington city council. As in this case, the defendants in News-Journal Co. called their meeting political. Several hours before a scheduled city council meeting, the 11 Democrats on the 13-member council met privately with the Democratic mayor and city clerk; the court recognized that attendance at the meeting was obviously based on political affiliation. The purpose of that meeting was to discuss the possible repeal by the State legislature of a law authorizing the city to tax local wages, and the mayor said that the meeting was called to inform the other Democrats on the council of the progress of the repeal measure and to seek their support against the repeal. The News-Journal Co. court rejected the defendant’s argument that their meeting was only a political strategy session and therefore not subject to the Delaware sunshine law, viewing this characterization of the meeting as a ruse designed to evade the purpose of the law. The defendants also argued that their meeting was outside the scope of the sunshine law because they did not discuss public business. The Delaware law defines public business as matters over which the body in question has “supervision, control, jurisdiction or advisory power.” The defendants contended that because they had no control over what the legislature did, the closed meeting was not a discussion of “public business.” The court interpreted the definition broadly and said that with repeal of the wage tax authorization, Wilmington would be pressed to find another source of revenue. The close connection of the topic discussed with city finances made the subject one of “public business.”\nIllinois has a great affinity for creating governmental bodies to conduct business: according to the State Board of Elections, in 1978, we elected 40,457 of our citizens to government positions. This number alone suggests not just high cost and minimum efficiency but also a penchant for conducting public affairs in a fish bowl. One who aspires to public office chooses the center ring for his deliberations. If the public officer cannot stand the attention and limelight of the center ring, he should remember that although serving in public office may be hard, departing from the public scene is easy. The purpose of the Open Meetings Act is clear and unambiguous. The people’s representatives must meet openly, or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest. Characterizing a meeting as a political caucus should not distract attention from the real purpose of the meeting. In this case, the stipulation of facts does not list party business as oné of the subjects discussed at the meeting. All the subjects listed are properly business of the city council, and some of the subjects discussed were in fact on the agenda for the council meeting that night.\nA number of Illinois cases interpreting the Open Meetings Act should be distinguished. In these cases, either the facts were different from here, or the court did not give full play to the scope and intent of the Act. Lurie v. Village of Skokie (1978), 64 Ill. App. 3d 217, 380 N.E.2d 1120, interpreted the word “deliberations” too narrowly when it ruled that private meetings between a developer and members of the village council did not violate the Open Meetings Act.\nIn Bigham v. City of Rock Island (1970), 120 Ill. App. 2d 381, 256 N.E.2d 897, the plaintiff attacked the validity of a zoning change that had been referred by the city council to a meeting of the council sitting as a committee-of-the-whole in executive session. At an open meeting later, the city council unanimously adopted its own recommended change. The court ruled that the Open Meetings Act had not been violated because plaintiffs had offered no evidence that any action concerning the zoning change had been taken at the committee’s meetings. The court found the official action in the record vote, rather than in the recommended change.\nIn Pope v. Parkinson (1977), 48 Ill. App. 3d 797, 363 N.E.2d 438, the Open Meetings Act was correctly held not to apply to a private meeting of the University of Illinois Assembly Hall advisory committee, a body outside the intended scope of the Act. The eight members of the committee , had been informally appointed by the university chancellor and served at his will. Furthermore, the committee acted strictly as an advisory group to university administrators and had no power of its own. Also, the committee neither had been appointed by nor was subsidiary to any public body. This lack of any connection to a body covered by the Open Meetings Act distinguishes Pope from the instant case.\nThe Open Meetings Act contains several exceptions to its rule requiring open meetings. For example, school boards may meet privately to discuss employment decisions. (Ill. Rev. Stat. 1977, ch. 102, par. 42.) The Act does not exempt political caucuses from its scope, unlike the sunshine laws of some other states. For example, the West Virginia and Utah statutes define “meeting” in a way that excludes caucuses (W. Va. Code Ann. §6 — 9A—2 (1979); Utah Code Ann. §52 — 4—2 (Supp. 1979)).\nThe Illinois Attorney General has published numerous opinions on the applicability of the Open Meetings Act to various gatherings. In Attorney General Opinion S — 726 (1974), the Attorney General cited Sacramento Newspaper Guild to support a broad application of the Open Meetings Act. The Attorney General said that a meeting need not be prearranged, occur at an official meeting place, or have a quorum present. for the Open Meetings Act to apply to the gathering. Still, the Act does not apply to every gathering of two or more members of a public body. The Attorney General said that the circumstances in the particular case must be analyzed to decide whether a gathering is a meeting within the scope of the Act. Not every encounter between members of a public body is subject to the Open Meetings Act. In some cases, members could meet socially and discuss business and still not run afoul of the Act. According to the Attorney General, the facts of the particular case will determine whether the meeting is a gathering.\nAttorney General Opinion S — 1007 (1975) said that the county central committee of a political party may meet privately. This is a true political caucus. In the instant case, however, council members were meeting as council members, although they were mostly Democrats, and not as a committee of a political party.\nThe defendants argue that the Open Meetings Act is unconstitutional for several reasons. The defendants first argue that the Open Meetings Act violates their rights of free speech and assembly guaranteed by the first amendment of the United States Constitution and article I, sections 4 and 5, of the Illinois Constitution. The plaintiff contends that the Act does not restrict the expression of ideas, that greater restrictions on speech have been upheld, and that the Act regulates only the time, place, and manner of speech.\nThe Open Meetings Act neither prohibits the expression of any idea, nor makes assembly illegal; the Act requires merely that public bodies meet and deliberate public business openly rather than behind closed doors. The defendants’ free speech argument is misplaced. The first amendment to the United States Constitution and article I, section 4, of the Illinois Constitution guarantee the right to express ideas publicly, and the Open Meetings Act does not restrict that right in any way. The defendants in effect argue that the freedom of speech gives them the right to confer privately rather than publicly about public business — business about which they have power to act. Freedom of speech protects the expression of ideas, not the right to conduct public business in closed meetings. The same reasoning applies to the defendants’ argument that the Act infringes on their right of free assembly.\nGreater limitations on speech have been upheld as not violating first amendment freedoms, as when the political activities of certain groups are restricted. Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 349 N.E.2d 61; United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880.\nDefendants argue that the Open Meetings Act is too vague and contains too many undefined, ambiguous words to satisfy the constitutional-requirement of due process. When persons of ordinary intelligence must guess at the meaning of a law, the law violates due process. (Hershey Mfg. Co. v. Adamowski (1961), 22 Ill. 2d 36, 174 N.E.2d 200.) Hershey involved a statute prohibiting gambling devices on military bases “of the first class.” Because no branch of the armed services designated bases by class, the restriction was ambiguous and incapable of being applied. The Illinois Supreme Court, unwilling to guess at the meaning of that phrase, held the statute unconstitutionally vague. But this rule does not invalidate statutes merely because persons may interpret them differently. No law can be so clear and extensive that it will provide in advance for all cases that may arise. We must tolerate at least a modicum of ambiguity and uncertainty, because the prescience of even the most ingenious drafters is finite. The human imagination is limited, and the variety of circumstances great: the meaning of a statute is honed on the cases that are not anticipated but do arise.\nDefendants also argue that the Open Meetings Act violates the equal protection clauses of the United States and Illinois constitutions because the Act does not apply to the General Assembly and creates a classification bearing no rational relationship to a permissible governmental objection. The test to determine if classifications violate equal protection is whether the difference in treatment invidiously discriminates. (Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001.) Distinctions not based on race, alienage, or gender are upheld if rationally related to a legitimate governmental interest. This standard is toothless, and almost any hypothetical purpose will support the classification. (People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 291 N.E.2d 807.) The classification made in the Open Meetings Act, distinguishing the General Assembly from all other governmental bodies in Illinois, falls within the least suspect group. The Illinois Constitution contains provisions regarding when the General Assembly may meet in closed sessions. A two-thirds majority vote is always necessary, but unlike the Open Meetings Act, the constitutional provision permits closed meetings for the discussion of any topic. Thus, the two schemes are designed to meet similar problems, yet do not contain identical provisions. The General Assembly may well have thought that a different approach was required for the meetings of local public bodies. A rational basis for the different classification exists. Hopf dealt with the same equal protection question and ruled that the defendants had failed to carry the burden of showing the lack of a rational relationship between the chosen means and the desired end.\nFinally, defendants contend that the Open Meetings Act violates article IV, section 13, of the Illinois Constitution, which prohibits the General Assembly from enacting special or local legislation. The defendants argue that the Open Meetings Act is special legislation because it does not apply to the General Assembly. The courts apply the equal protection test to determine whether a law has special legislation. (Sanko v. Carlson (1977), 69 Ill. 2d 246, 371 N.E.2d 613; Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 367 N.E.2d 1325.) The party arguing that the legislation is special must show that the distinction made by the General Assembly is arbitrary and unreasonable, bearing no rational relationship to a legitimate governmental interest. The courts do not have to inquire what the General Assembly’s rationale may have been. The burden on the party attacking the classification is heavy, and the defendants have not met it in this case.\nThe stipulated facts with which we deal raise only the issue of the meeting held and denoted a caucus. We here determine that that meeting was within the purview of the Open Meetings Act. In addition to the foregoing, the trial court determined that the Act would be applicable to meetings of three or more persons. Such determination is not within the purview of the issue presented, and upon this record is but a gratuitous observation. While we affirm the order declaring the meeting at issue to be within the scope of the Act, we make no judgment upon the so-called “rule of 3” as enunciated by the trial court.\nJudgment affirmed.\nREARDON, P. J., concurs.\n\nMr. JUSTICE TRAPP,\ndissenting:\nThe order of the trial court should be reversed for the reason that the construction of the statute imposed is not what the statute says.\nSection 1 of the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41) states as policy an intent that “the public commissions, committees, boards and councils and the other public agencies ® shall function in such manner “that their actions be taken openly and that their deliberations be conducted openly.”\nSection 2 of the Act (Ill. Rev. Stat. 1977, ch. 102, par. 42) provides that “[a]ll meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing * * e” (emphasis added) shall come within the provisions of the Act. The succeeding paragraphs state the exceptions which permit closed sessions by “any body covered by this Act,” and repeatedly refers to the several public corporate entities as a “body.” The emphasis by the legislature upon the functioning of the public body as organized for the conduct of business is apparent, i.e., its act as organized under law. By its terms, the statute makes no reference to, and imposes no limitation upon members who are acting as individuals outside of the structure of the “body.”\nThis construction was adopted in People ex rel. Cooper v. Carlson (1975), 28 Ill. App. 3d 569, 328 N.E.2d 675, where the court affirmed the dismissal of an action in mandamus. A county board established a committee which in turn hired certain staff members who investigated and administered certain developmental programs and regulations. The latter met voluntarily with some regularity to discuss their work. Plaintiff sought to have it held that such staff constituted a “body” so that its meetings were subject to the provisions of the Act. In holding that the staff was not a “body” within the ambit of the Act, the court stated that there was no statute, ordinance, or resolution or other official action by the county board or its committee designating the staff as a public body or a subsidiary body. That opinion remarked that no motions or resolutions were presented, no votes taken or recorded, and no matters of deliberation recorded other than by an individual’s personal notes. This court reached the same conclusion upon comparable reasoning in Pope v. Parkinson (1977), 48 Ill. App. 3d 797, 363 N.E.2d 438. In Pope, the trial court ordered mandamus to require that the meetings of an advisory group be subject to notice and open to the public, pointing out that “[n]o statute creates the Committee or defines the limits of its authority.” 48 Ill. App. 3d 797, 799, 363 N.E.2d 438, 441.\nIn this case, the voluntary group meeting in what is termed a “caucus” has no attributes of public authority or structure. It appears that participation is voluntary, has no organizational structure, takes no action, and makes no decisions concerning the public matters.\nThe majority opinion relies upon People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649. That opinion does not address this issue for the defendants raised as an affirmative defense that the business covered was the proper subject of an “executive session” of the city council. Again, in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 69 Cal. Rptr. 480, all members of the county board were present with the county executives. It was, in fact, conceded that the meeting was a board function for it was contended that the meeting was justified to maintain and protect the attorney-client privilege.\nThe council has 15 members. The portion of the trial court’s order which requires notice compliance when three or more members of the council meet cannot have a rational basis. The concept may have originated in the injunction issued in Sacramento Newspaper Guild, where that number constituted a quorum of the “body.” (263 Cal. App. 2d 41, 48 n. 4, 69 Cal. Rptr. 480, 486 n. 4.) It seems interminable nonsense to direct that three individual members of such a council cannot exchange information or views without being subject to criminal penalties.\nIt is appropriate to conclude that this court should construe the statute as it is written, rather than to read into it conclusions or considerations in opinions of the courts of other States which were considering different statutes. In People ex rel. Carruthers v. Cooper (1949), 404 Ill. 395, 400, 89 N.E.2d 40, 43, the court said:\n“The function of this court is to construe the statute in accordance with the normal import of the words used, whatever its opinion may be regarding the desirability of results produced by the operation of the statute.”\nSee also People v. Erskine (1977), 53 Ill. App. 3d 948, 369 N.E.2d 164.\nIn the light of the provisions which direct the statute to the meetings of legislative, executive, or administrative “bodies” and the opinions of the Illinois courts construing that term, I would reverse the order of the trial court."}
{"dedup_key":"pre1996-140042","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"256 ill-app-3d 198","case_name":"Schessler v. Department of Conservation","court_level":"Appellate","appellate_district":"4th","year":1994,"county":null,"appellate_docket":"4-93-0426","circuit_docket":null,"published":1,"authoring_justice":"Green","statute":["FOIA"],"exemptions_cited":["7(b)"],"public_body":"Department of Conservation","requesting_party":"Harold Schessler","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the circuit court's order requiring the Department of Conservation to disclose requested records. The court held that the Department failed to meet its burden of proving that disclosure would constitute a 'clearly unwarranted invasion of personal privacy' under the FOIA exemption then codified at section 7(b).","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=140042","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:53.850873","site_category":"General Records Exemptions","date_decided":"1994-01-27","site_url":"/cases/pre1996-140042/","text_url":"/case-text/pre1996-140042.txt","full_text":"HAROLD SCHESSLER, Plaintiff-Appellee, v. THE DEPARTMENT OF CONSERVATION, Defendant-Appellant.\nFourth District\nNo. 4 — 93—0426\nArgued December 15, 1993.\nOpinion filed January 27, 1994.\nRoland W. Burris, Attorney General, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General (argued), of counsel), for appellant.\nElizabeth Caddick (argued), of Springfield, for appellee.\n\nJUSTICE GREEN\ndelivered the opinion of the court:\nOn July 9, 1992, plaintiff Harold Schessler filed a complaint in the circuit court of Sangamon County against defendant the Illinois Department of Conservation (Department) seeking (1) a declaratory judgment that he was entitled to certain information from the Department under the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1991, ch. 116, par. 201 et seq.), and (2) a mandatory injunction requiring the Department to furnish the information. The cause was apparently heard upon an agreed statement of facts arising from memoranda submitted by the parties. After hearing arguments of the parties, the circuit court entered an order on April 12, 1993, requiring the Department to furnish the information. The Department has appealed. We affirm.\nSection 1 of the Bird Shooting Act (Act) prohibited the shooting of birds for \"sporting purposes or as a test of skill in marksmanship” without a permit from the Department. (Ill. Rev. Stat. 1989, ch. 8, par. 111.1.) Section 2 of the Act empowered the Department to-make rules and regulations for licensing and control of events where such shooting took place. (Ill. Rev. Stat. 1989, ch. 8, par. 111.2.) The Act was repealed effective December 16, 1991. (Pub. Act 87 — 798, eff. December 16, 1991 (1991 Ill. Laws 4392, 4403).) While in effect, the Act, together with regulations properly adopted, required that applications for permits for a live pigeon shoot must state (1) the name of the person or organization sponsoring the event, (2) the date of the proposed pigeon shoot, (3) the location of the event, and (4) the name of the owner of the property on which the pigeon shoot would be held. 17 Ill. Adm. Code § 970.20(b) (1991).\nOn May 11, 1992, plaintiff made a written request to the Department for copies of all applications for permits for live pigeon shoots issued by the Department after 1990. On May 18, 1992, the Department denied that request, maintaining that the information was exempt from the disclosure requirements of FOIA. Plaintiff appealed the decision to the Department Director, who denied the application. The instant litigation followed.\nFOIA was enacted to provide all persons access to information regarding the affairs of the government and should be construed toward this end. (Ill. Rev. Stat. 1991, ch. 116, par. 201.) FOIA is not, however, to be used to violate individual privacy, to further commercial enterprises, or to disrupt the duly-undertaken work of any public body. (Ill. Rev. Stat. 1991, ch. 116, par. 201.) Section 7 of FOIA denotes when information is exempt from inspection or copying. (Ill. Rev. Stat. 1991, ch. 116, par. 207.) Various types of information are set forth, including (1) that which is expressly prohibited from disclosure by State or Federal laws, (2) certain types of law enforcement information, (3) trade secrets, and (4) competitive bidding information, and other similar types of information. None of those exemptions are pertinent here.\nThe parties agree that if the information involved here is exempt, the exemption arises from section 7(b) of FOIA, which begins with the following:\n“Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to: ***.” Ill. Rev. Stat. 1991, ch. 116, par. 207(b).\nThis court has held that the specific categories of information listed after the foregoing statement as \"[(Information exempted” are per se exempt without considering the degree of invasion of privacy that might be involved or how unwarranted it might be. (Healey v. Teachers Retirement System (1990), 200 Ill. App. 3d 240, 243, 558 N.E.2d 766, 768-70; Staske v. City of Champaign (1989), 183 Ill. App. 3d 1, 5, 539 N.E.2d 747, 750.) Other courts have held that the enumerated categories in sub-subsections of section 7(b) do not create per se exemptions, but in each case the court must balance the privacy aspect with the public interest in disclosure in order to determine whether a \"clearly unwarranted invasion of privacy” actually occurs. (David Blumenfeld, Ltd. v. Department of Professional Regulation (1993), 263 Ill. App. 3d 981, 986; Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 1089, 536 N.E.2d 827, 829-30.) We need not consider this difference in this case, because we are satisfied that the records involved here do not fit any of the specific categories of section 7(b).\nSection 7(b)(iii) of FOIA sets forth, as a category of property covered by section 7(b), the following:\n\"files and personal information maintained with respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 116, par. 207(b)(iii).)\nThe Department maintains that the permits sought here by the various applicants were licenses to engage in the occupation of holding a pigeon shoot. It cites this court’s decision in Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 372-73, 493 N.E.2d 127, 128. There we held that a city license to operate a tavern at a particular location was an occupational license within the meaning of section 7(b)(iii) of FOIA.\nWe do not agree that the status of the applicants for licenses here is analogous to that of the applicant in Copley Press. The word \"occupation” when used other than in regard to possession of property has been defined as follows:\n\"That which principally takes up one’s time, thought, and energies, especially, one’s regular business or employment; also, whatever one follows as the means of making a livelihood. Particular business, profession, trade, or calling which engages individual’s time and efforts; employment in which one regularly engages or vocation of his life.” (Black’s Law Dictionary 973 (5th ed. 1979).)\nThe activity for which a license was sought in Copley Press, although limited to a particular location, had a regularity and continuity to it, bringing it within the foregoing definition. The activity for which the applicants seek a license here involves only a short period of time and lacks the continuity and regularity to constitute an \"occupation.”\nAccordingly, we must determine whether the information sought here comes within the general provisions of section 7(b) of FOIA because disclosure \"would constitute a clearly unwarranted invasion of personal privacy.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 116, par. 207(b).) Making this determination requires a balancing test weighing the four factors as follows: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of invasion of privacy; and (4) the availability of alternative means of obtaining the requested information. CBS, Inc. v. Partee (1990), 198 Ill. App. 3d 936, 947-48, 556 N.E.2d 648, 654-55; see also Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F.2d 784, 786.\nHere, plaintiff’s interest and that of the public in disclosure of merely the applications without reference to whether they were granted or denied cannot be very strong and is the weakest aspect of plaintiff’s case. The Department asserts that plaintiff’s motive is likely to be to solicit the applicants commercially. However, as plaintiff points out, an ulterior motive should not be presumed. In Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 493 N.E.2d 1054, the court held that the names of physicians who received medical funds for the performance of abortions were not exempt from disclosure although harassment of those physicians could be the result of disclosure.\nWhile the interest in disclosure here is not high, neither is the interest in personal privacy. As we have indicated, section 7(b) speaks of \"a clearly unwarranted invasion of personal privacy.” Many other subsections of section 7 focus more upon the enhancement of the operation of government as the basis for the exemption. Moreover, the manner in which the term \"personal privacy” is qualified in section 7(b) indicates that the legislature envisioned different degrees of \"invasion of personal privacy”: (1) an invasion of personal privacy; (2) an unwarranted invasion of personal privacy; and (3) a clearly unwarranted invasion of personal privacy. The latter, stricter standard to claim exemption was applicable here.\nThe burden was on the government agency having charge of the record, the Department, to prove exemption. (American Federation of State, County & Municipal Employees v. County of Cook (1990), 136 Ill. 2d 334, 343-44, 555 N.E.2d 361, 364-65.) The stipulated facts failed, as a matter of law, to meet the strict standard which required that a \"clearly unwarranted invasion of personal privacy” be proved. The circuit court properly granted plaintiff the requested relief of disclosure. We affirm that judgment.\nAffirmed.\nKNECHT and STEIGMANN, JJ., concur."}
{"dedup_key":"pre1996-129298","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"183 ill-app-3d 1","case_name":"Staske v. City of Champaign","court_level":"Appellate","appellate_district":"4th","year":1989,"county":null,"appellate_docket":"4-88-0748","circuit_docket":null,"published":1,"authoring_justice":"Spitz","statute":["FOIA"],"exemptions_cited":["7(b)(v)"],"public_body":"City of Champaign","requesting_party":"Paul Staske","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that witness names, addresses, and statements contained in a police traffic accident report are exempt from disclosure under section 7(b)(v) of the FOIA. The court reversed the trial court's summary judgment, rejecting the argument that the exemption requires a showing of a clearly unwarranted invasion of personal privacy.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=129298","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:54.386121","site_category":"Police & Investigative Records","date_decided":"1989-04-28","site_url":"/cases/pre1996-129298/","text_url":"/case-text/pre1996-129298.txt","full_text":"PAUL STASKE, Plaintiff-Appellee, v. THE CITY OF CHAMPAIGN, Defendant-Appellant.\nFourth District\nNo. 4—88—0748\nOpinion filed April 28, 1989.\nModified on denial of rehearing June 14, 1989.\nFrederick C. Stavins, City Attorney, of Champaign (Rochelle A. Funderburg, Assistant City Attorney, of counsel), for appellant.\nMark D. Lipton, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellee.\n\nJUSTICE SPITZ\ndelivered the opinion of the court:\nThe defendant City of Champaign appeals from an order of the circuit court of Champaign County entering summary judgment in favor of the plaintiff Paul Staske and against the defendant, and enjoining the defendant from refusing to disclose witness information and statements contained in a traffic accident report which had been requested by the plaintiff under the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.). For the reasons that follow, we reverse.\nThe plaintiff Paul C. Staske was involved in a traffic accident that occurred on May 2, 1988. On May 16, 1988, the plaintiff filed an FOIA request with the defendant City of Champaign (City), requesting a copy of the Champaign police traffic accident report concerning the aforementioned accident. (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.) On May 16, 1988, the City delivered a copy of the accident report to the plaintiff but informed the plaintiff that it was unable to comply with the plaintiff’s request in its entirety and that certain portions of the report were deleted. (Ill. Rev. Stat. 1987, ch. 116, par. 209.) The information deleted from the accident report was witness information and statements. The reason given for the deletion was that this was “information which would constitute a clearly unwarranted invasion of personal privacy and for which no consent in writing by the individual involved has been received.” See Ill. Rev. Stat. 1987, ch. 116, par. 207(b).\nOn May 26, 1988, the plaintiff filed a “Notice of Appeal To Head of Public Body From Denial of Access To Public Records” with the city manager. On May 31, 1988, the city manager, Steven C. Carter, denied disclosure of the entire accident report, stating that the deleted material was exempt from disclosure under section 7(b) of the FOIA. Ill. Rev. Stat. 1987, ch. 116, par. 207(b).\nOn June 9, 1988, the plaintiff filed a complaint for injunctive and declaratory relief in the circuit court of Champaign County (Ill. Rev. Stat. 1987, ch. 116, par. 211). The complaint alleged that the refusal to disclose the deleted information: (1) was inconsistent with the provisions of section 11 — 416 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 416), and section 7(d)(iv) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(d)(iv)), which allow for the disclosure of such information; and (2) was contrary to public policy in that such refusal would foster unnecessary and unwarranted litigation. The complaint requested that the court enter an order enjoining the City from withholding the deleted information, requiring the City to produce the accident report in its entirety, and declaring that the plaintiff had a right of access to the report without any deletions whatsoever.\nThe plaintiff filed a motion for summary judgment on July 12, 1988, alleging that there was no genuine issue as to any material fact and that under the proper interpretation of section 7(bXv) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v)), plaintiff was entitled to injunctive and declaratory relief as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) The City filed an answer to plaintiff’s complaint on July 13, 1988. A hearing on plaintiff’s motion for summary judgment was held on July 29, 1988.\nIn a written order filed September 9, 1988, the court entered summary judgment in favor of the plaintiff and against the City enjoining the City from withholding the information requested by the plaintiff. Further, the court declared that the plaintiff had a right of access to the report without any deletions and ordered the City to produce the requested report without deletions. In so ruling, the court found that there was no genuine issue of material fact and that the plaintiff was entitled to judgment as a matter of law in that disclosure of the deleted portions of the accident report would not constitute a “clearly unwarranted invasion of personal privacy” so as to exempt them from disclosure under the FOIA. The court reasoned that a reading of section 11 — 416 of the Code and section 7(d)(v) of the FOIA indicated that the legislature did not intend such information to be exempt from disclosure under section 7(b)(v) of the FOIA. (Ill. Rev. Stat. 1987, ch. 116, pars. 207(b)(v), 207(d)(v); Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 416.) The court noted that the City had no procedures to, nor did it, contact or obtain consent or the disclosure of such information from any person whose identity it sought to protect under section 7(b)(v) of the FOIA. The court also noted that the City received a significant number of FOIA requests for information and that there was no uniformity among the various jurisdictions within the State as to how the requests were handled. The City now appeals.\nThe City contends on appeal that disclosure of the names, addresses, and statements of witnesses contained in the traffic accident report would constitute a clearly unwarranted invasion of the personal privacy of the witnesses and, therefore, such information is exempt from disclosure under section 7(b)(v) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v)). The plaintiff contends that a reading of the FOIA, together with a consideration of section 11 — 416 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 416), demonstrates that the trial court’s decision was correct.\nUnder section 3 of the FOIA, “each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in section 7 of this Act.” (Ill. Rev. Stat. 1987, ch. 116, par. 203.) Section 7 specifies certain exemptions from inspection and copying, including the following:\n“The following shall be exempt from inspection and copying:\n* * *\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(b).)\nSection 7 then lists certain types of information exempted under subsection (b), which includes but is not limited to:\n“(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies.” Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v).\nA resolution of the issue presented requires an examination of the statutes involved together with an application of the rules of statutory construction. The primary rule of statutory interpretation and construction, to which all other canons and rules are subordinate, is to ascertain and effectuate the true intent and meaning of the legislature. (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73, 285 N.E.2d 129, 130, cert. denied (1972), 409 U.S. 1059, 34 L. Ed. 2d 511, 93 S. Ct. 562.) In interpreting a statute a court must give the legislative language its plain and ordinary meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 381 N.E.2d 222.) If the language of the statute is plain, clear, and unambiguous and, if the legislative intent can be ascertained therefrom, it must prevail and will be given effect by the courts without resorting to other aids for construction. In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167; Mahin, 72 Ill. 2d 189, 381 N.E.2d 222.\nThe information withheld in this case included the names, addresses, and statements of witnesses contained on a traffic accident report. Based upon the language of section 7(b)(v) (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v)) and an application of the foregoing principles, we believe that the legislature intended such information to be included in the section 7(b)(v) exemption. We are unpersuaded by the plaintiff’s contention that a reading of section 11 — 416 of the Code mandates a contrary result. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 416.) The language of section 11 — 416 is permissive in nature and contains no provision requiring complete disclosure. We are similarly unpersuaded by the plaintiff’s contention that the Third District Appellate Court’s opinion in City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, is controlling here. We recognize the City of Monmouth court held that the various subsections of section 7(b) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)) are not per se exemptions, but rather a claimant must show how a claim for exemption is a clearly unwarranted invasion of personal privacy. However, we decline to follow the holding of City of Monmouth. We therefore conclude that the trial court erred in allowing plaintiff’s motion for summary judgment.\nAccordingly, the judgment of the circuit court of Champaign County is reversed.\nReversed.\nLUND and GREEN, JJ., concur."}
{"dedup_key":"pre1996-127773","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"173 ill-app-3d 418","case_name":"Simonis v. Countryside Fire Protection District","court_level":"Appellate","appellate_district":null,"year":1988,"county":null,"appellate_docket":"2-87-1061","circuit_docket":null,"published":1,"authoring_justice":"Woodward","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Trustees of the Countryside Fire Protection District","requesting_party":"Lawrence Simonis","disposition":"reversed","relevance":"mention_only","summary_source":null,"summary":"The plaintiff alleged a violation of the Open Meetings Act during his disciplinary hearing, but the court reversed the suspension on the grounds that the evidence did not support a finding of intentional failure to perform duties, rendering the OMA claim moot or secondary to the primary administrative review.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=127773","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:55.394173","site_category":"Meeting Conduct & Participation","date_decided":"1988-08-04","site_url":"/cases/pre1996-127773/","text_url":"/case-text/pre1996-127773.txt","full_text":"LAWRENCE SIMONIS, Plaintiff-Appellant, v. THE COUNTRYSIDE FIRE PROTECTION DISTRICT et al., Defendants-Appellees.\nSecond District\nNo. 2—87—1061\nOpinion filed August 4, 1988.\nRehearing denied September 15, 1988.\nThomas F. McGuire, of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellant.\nPaul S. Chervin and David A. DeRose, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellees.\n\nJUSTICE WOODWARD\ndelivered the opinion of the court:\nThe plaintiff, Lawrence Simonis, sought administrative review of a decision of the Board of Trustees of the Countryside Fire Protection District (Board) which found that he failed to perform his duty and suspended him for five duty days. Plaintiff appeals from an order of the trial court which affirmed the Board’s decision. On appeal, plaintiff contends that (1) the trial court did not have the authority to review his complaint under a common law writ of certiorari; (2) he was denied due process at his disciplinary hearing; (3) his disciplinary hearing was conducted in violation of the Open Meetings Act (111. Rev. Stat. 1987, ch. 102, par. 41 et seq.); (4) the Board and fire chief failed to follow the fire department’s disciplinary procedures; and (5) the trial court’s decision was against the manifest weight of the evidence.\nOn January 10, 1987, at 5:15 a.m., station two of the Countryside Fire Protection District received a call for an ambulance. The call indicated that a person had suffered a broken leg in a snowmobile accident. After attempting to wake up plaintiff, fire fighters Tim Rick and Ken Arnswald responded to the scene. Plaintiff failed to wake up and respond to the call.\nAccording to the fire district’s normal operating procedures, upon receipt of a typical emergency call, two fire fighters are dispatched to the scene while a third fire fighter monitors the radio. The fire fighter who monitors the radio is responsible for recording the ambulance’s departure and arrival times and dispatching additional manpower if necessary. When a call is received by one of the fire district’s two stations, the other station is also required to monitor the radio until the station which received the call acknowledges that it has taken over monitoring the radio. Once a fire fighter team has been dispatched on a call, other on-call fire fighters receive a telephonic page instructing them to come into the station.\nOn March 2, 1987, the Board held a formal hearing to determine whether plaintiff failed to perform his duty. Fire fighters Rick and Arnswald testified that they, along with plaintiff, had worked a full duty day which started at 8 a.m. on January 9 and ended at 8 a.m. on January 10. Around midnight, Arnswald and plaintiff went to sleep in the bunk room; Rick went to the bunk room sometime later that morning. At 5:15 a.m., both Rick and Arnswald awoke to a pager tone which came in over the station’s radio. Following the tone, there was a verbal message indicating the nature and location of the call. As he was getting dressed, Rick stated that he told plaintiff three times to get out of bed and then turned on the lights. Rick proceeded to get his equipment and place it in the ambulance. Arnswald testified that he called to plaintiff in an above normal tone of voice three times yet plaintiff failed to get up. Rick and Amswald testified that they left the station and were unable to raise plaintiff on the radio. Neither of them went to Simonis’ bed and attempted to shake him from his sleeping condition.\nCaptain Spiegel testified that on January 10, 1987, at 5:15 a.m., he received a message on his pager calling him into station two. Upon arriving at the station, Spiegel notified another on-call fire fighter that he was there and began shoveling snow. At approximately 5:30 a.m., when he was done shoveling snow, Spiegel entered the bunk room and saw plaintiff getting out of bed. Spiegel asked what had happened, at which point plaintiff repeated the same question to Spiegel. Upon being told that there was a call in progress, plaintiff indicated that he was unaware of the call. Spiegel then instructed plaintiff to get dressed and help shovel snow.\nPlaintiff testified that on January 8, 1987, while he was on call, he responded to a pager call which lasted until midnight. During his normal duty shift, plaintiff stated that there were no calls. Plaintiff testified that he did not have any sleeping disorders and was not suffering from any physical ailments. Plaintiff admitted that he did not wake up when the 5:15 a.m. call was received. Plaintiff further stated that he was embarrassed when he learned from Spiegel that there was a call in progress. Plaintiff testified that he had never before slept through a call. Plaintiff had been given numerous citations and awards commending his work as a fire fighter.\nThe Board found that plaintiff had failed to perform his duty and suspended him for five, duty days. On April 8, 1987, pursuant to section 3 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, eh. 110, par. 3 — 101), plaintiff filed a complaint in the trial court. After deciding that it had no jurisdiction to consider plaintiff’s complaint under section 3 — 101, the trial court reviewed the complaint as a common law writ of certiorari. The trial court found that the Board’s decision was not against the manifest weight of the evidence, and plaintiff appeals from that finding.\nOn appeal, plaintiff first contends that the trial court improperly reviewed his complaint as a common law writ of certiorari instead of entertaining it under the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). We find no merit to plaintiff’s contention.\nIn the relevant part, section 16.01 of “An Act relating to the State Fire Marshall” states:\n“Any fire protection district having a fire department of which 3 or more, but not all members, are full time, paid members, may, at the option of the fire protection district board of trustees, elect to come under the provisions of Sections 16.01 to 16.18, inclusive, and shall be subject to the provisions of Section 16.13 relating to removal or discharge of fire department personnel.” (111. Rev. Stat. 1985, ch. 1271/2, par. 37.01.)\nAccording to section 16.01, the Board had the option of deciding whether it should adopt section 16.13’s procedures for the removal or discharge of fire department personnel. Under section 16.13, the removal or discharge of fire department personnel is subject to the provisions of the Administrative Review Act. See Ill. Rev. Stat. 1987, ch. 1271/2, par. 37.13.\nAs the record indicates, the Board has not elected to come under the provisions of the Act, and, therefore, plaintiff’s suspension was not subject to the provisions of the Administrative Review Act. In any event, our supreme court has held that “the substantial differences that at one time existed between common law and statutory certiorari have been all but obliterated.” Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 541; see also Maddox v. Williamson County Board of Commissioners (1985), 131 Ill. App. 3d 816, 822; Batley v. Kendall County Sheriff's Department Merit Comm’n (1981), 99 Ill. App. 3d 622, 626.\nPlaintiff next contends that he was denied due process at his disciplinary hearing when he was not given the opportunity to question Board member Wolowic and the Board’s attorney, Paul Chervin, about alleged conflicts of interest.\nDue process guarantees a person a fair and impartial tribunal in an administrative proceeding. (Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 369; Jones v. Board of Fire & Police Commissioners (1984), 127 Ill. App. 3d 793, 804.) Due process, however, is a term that negates any concept of inflexible procedures which can be universally applied to every imaginable situation. (Collura, 113 Ill. 2d at 369.) Whether a recusal is required depends on the facts of each case, and the mere possibility of prejudice is insufficient to demonstrate that a Board, or one of its members, is biased. Collura, 113 Ill. 2d at 370.\nIn Everly v. Chicago Police Board (1983), 119 Ill. App. 3d 631, Everly, a police officer, shot a youth suspected of committing a robbery. The city’s corporation counsel defended Everly at his civil trial and then prosecuted him in proceedings before the police disciplinary board. Everly contended that he was denied due process at his disciplinary hearing because the corporation counsel, having been exposed to Everly’s confidences at his civil trial, could have prejudicially used those confidences against him. In rejecting Everly’s contention, the court determined that Everly failed to demonstrate any potential or actual conflict of interest. Everly, 119 Ill. App. 3d at 638.\nLike the court in Everly, we conclude that plaintiff has not demonstrated any potential or actual conflict of interest. While plaintiff, in the proceedings below and in his brief on appeal, alleges an improper relationship between Board member Wolowic and the fire chief, the record is devoid of any evidence tending to support that allegation. Plaintiff has pointed to neither improper statements, evidentiary rulings, nor other evidence indicating that Wolowic was biased against him, had interfered with plaintiff’s presentation of his case, or had a personal interest in the outcome of the litigation. (See Kosoglad v. Porcelli (1985), 132 Ill. App. 3d 1081, 1090.) In our view, plaintiff’s bare allegations, without more, do not support the existence of a conflict of interest between Wolowic and the fire chief. Furthermore, plaintiff’s allegation that there was an improper relationship between Chervin and the fire chief’s attorney is equally unpersuasive for the aforementioned reasons.\nPlaintiff also claims that he was denied due process because Board member Aspegren made a comment indicating Aspegren’s predisposition toward plaintiff’s guilt. Specifically, Aspegren stated, “I was hoping you’d plead guilty and we could wrap the thing up.” We believe that plaintiff has taken Aspegren’s comment out of context. Aspegren’s comment was made in response to a statement uttered by plaintiff’s attorney which expressed the hope that the fire chief would not prolong the proceedings and withdraw the charges against plaintiff. After reviewing the entire transcript of the proceedings, we conclude that Aspegren’s comment appears to express his desire that the proceedings end at that point, not that he was predisposed toward plaintiff’s guilt. Therefore, plaintiff was not denied due process at his disciplinary hearing.\nPlaintiff next contends that his disciplinary hearing was conducted in violation of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, par. 41 et seq.) because the Board and the Board’s attorney deliberated the evidence presented at the hearing in a nonpublic session. We disagree.\nSection 1 of the Open Meetings Act states:\n“It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1987, ch. 102, par. 41.)\nSection 2 states, in part:\n“This Section does not prevent any body covered by this Act from holding closed meetings to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity.” Ill. Rev. Stat. 1987, ch. 102, par. 42.\nIt is clear that the Act allows a public body to consider disciplinary matters in a closed session so long as its final action is taken at an open meeting. (See Kosoglad, 132 Ill. App. 3d at 1092.) Here, the Board held a closed session to consider the evidence which the parties presented and rendered its decision at an open meeting. Therefore, we conclude that the Board did not violate the Act.\nIn his next contention, plaintiff argues that because the fire chief failed to follow disciplinary procedures adopted by the department, his suspension was improper. In support of his position, plaintiff cites to a document entitled “Disciplinary Action Delivery System” (disciplinary statement) which, in the relevant part, states:\n“The form on the accompanying page shall be utilizes [sic] by the ranking Officers of the Countryside Fire Department when a subordinate member acts in conflict with the rules, regulations, standards, or policies set forth by the administration.\n1st Notice *** so marked, even though recorded in writing, shall be considered a verbal warning, following a specific occurance [sic]. This notice shall be kept on file and apart from the offender’s permanent file.\n2nd Notice *** so marked, shall be issued upon actions similar to the prior occurance [sic]. It shall be filed as a written reprimand and attached to the offender’s permanent file.\nIf an action presents itself as very serious, a written reprimand may be issued on a first occurence [sic], without a verbal notice. This may only be done with the approval of the Chief or Deputy.” (Emphasis in original.)\nBased on the disciplinary statement, plaintiff concludes that the fire chief’s act of filing formal charges before delivering a written reprimand violated the department’s disciplinary procedures.\nWe believe that plaintiff has misinterpreted the disciplinary statement. The disciplinary statement is a directive to ranking officers instructing them on the department’s procedure for executing a reprimand, not a description of the procedures to be followed when filing a formal charge. The record does not contain any references to departmental procedures for filing a formal charge. Furthermore, the disciplinary statement does not require a ranking officer to reprimand an employee before instituting formal charges. Consequently, we find no merit to plaintiff’s contention that the fire chief failed to follow the department’s disciplinary procedures.\nFinally, plaintiff contends that the Board should not have suspended him for five duty days because his failure to wake up and respond to a call was neither intentional nor a substantial shortcoming in the performance of his duty.\nOur function on review is to determine whether the Board’s factual findings provide a sufficient basis for its conclusion that cause for suspension existed. (See Crittenden v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 154, 161-62; Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 308.) An administrative tribunal’s finding of cause for suspension shall be overturned only if it is arbitrary, unreasonable, or unrelated to the requirements of the service. (See Crittenden, 139 Ill. App. 3d at 162; Carrigan, 121 Ill. App. 3d at 310.) Cause for suspension exists where the findings support some substantial shortcoming that would render the plaintiff's continued employment detrimental to the discipline and efficiency of the department. See Crittenden, 139 Ill. App. 3d at 162.\nPlaintiff testified as an adverse witness. He had been employed full time by the district since 1976. Fire fighters for the district worked 24-hour shifts and then were off 48 hours. He was the supervisor on the shift in question which started at 8 a.m. on January 9, 1986, and was to end at 8 a.m. on January 10, 1986. The shift involved an unusual amount of physical activity which included snow shoveling, cleaning, and rebedding fire trucks. He went to sleep in the fire station’s bunk room at about 1 a.m. on the 10th. At 5:15 a.m., a call came through to the station regarding a snowmobile accident. Plaintiff, who described himself as a heavy sleeper, never heard the signal and slept through it. He awoke “in a cold sweat” a number of minutes later.\nPlaintiff further testified that fire fighters Rick and Arnswald awoke and responded to the call. Under ordinary circumstances, with Rick and Arnswald responding to the call, plaintiff would have stayed at the station to monitor the radio. When Rick and Arnswald arrived back at the fire station, they talked to plaintiff. Arnswald said that he was groggy when he awoke and that he did not pay much attention to plaintiff other than calling to him to get up several times. Arnswald could not explain why he did not do more to wake plaintiff up, e.g., pulling off his covers or kicking the bed. Plaintiff asked Rick why more hadn’t been done to wake plaintiff up. Rick thought he was up, and Arnswald indicated to Rick that he thought plaintiff was awake. Neither fire fighter realized plaintiff was not up until they were going to the accident scene and plaintiff was not monitoring the radio.\nPlaintiff stated in his 10 years of service, he had worked at least 750 24-hour shifts. He had never slept through a call prior to this incident. Further, he testified that similar situations of fire fighters not awakening for calls were not rare occurrences but had happened to a number of other fire fighters.\nFire .fighter Timothy Rick testified that he was working the 24-hour shift with Arnswald and plaintiff. He was awakened at 5:15 a.m. on January 10 by the sound of his paging device. As he proceeded to get dressed, Rick noticed that plaintiff was still asleep. He called to plaintiff saying, “Larry, we have a call.” His tone of voice was louder than his normal speaking voice, but he was not yelling. Rick noted that plaintiff did not respond to this and called to him a second time. Plaintiff moaned and rolled over. Rick at first thought plaintiff was getting up but, in retrospect, realized that what he saw was an involuntary response. Rick called to plaintiff a third time and then headed out the door, turning on the bunk room lights. At that point, he assumed plaintiff was up.\nOn cross-examination, Rick stated that all fire fighters, on occasion, are difficult to arouse from sleep. To Rick’s knowledge, plaintiff got up for all calls and did not require any unusual measures to be awakened. Rick admitted that he wrote a memo dated January 22, 1986, to the district’s fire chief which read in part: “I believe Ken (Arnswald) and I should have made a physical attempt to wake up Larry and made sure he was up before we left the station.”\nFire fighter Ken Arnswald testified to the following. He was working the relevant 24-hour shift with plaintiff and fire fighter Rick. At 5:15 a.m., he responded to the tone of his paging device. Arnswald noticed plaintiff was still in bed and called out, “Larry, we have a call.” Arnswald did not yell but used a voice that was louder than his normal speaking voice.\nPlaintiff made an incoherent response to this call. Arnswald called out two more times and received no further response. The bunk room lights were turned on as Rick and he dressed for the call. Arnswald left the bunk room area with plaintiff still in it.\nCaptain James Spiegel testified that he was at home when he received the relevant call on his pager. He arrived at the fire station at approximately 5:25 a.m. Entering the bunk room several minutes later, he saw plaintiff getting out of bed. Plaintiff asked what had happened. Spiegel told him about the call, and plaintiff stated he did not know about it.\nDefendants argue that plaintiff was clearly in dereliction of critical duties owed to the district and community. They assert that plaintiff’s conduct is comparable to that of a police officer suspended for sleeping while on duty. (Pryka v. Board of Fire & Police Commissioners (1978), 67 Ill. App. 3d 210.) In Pryka, a policeman was found asleep in a patrol car during his shift. The shift supervisor noticed the plaintiff’s car in an open field and shined a searchlight on the vehicle from descending distances. The supervisor was next to the driver’s side door when plaintiff’s head popped up into view, and he brushed his hair back and rubbed his eyes.\nDefendants cite two other cases to support their contention: Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App. 3d 183 (police officer sleeping on duty and disobeying an order), and Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864 (police officer sleeping on duty and arranging for illegal drugs for another person). Neither of these cases or Pryka is factually similar to the present case. In each case, the suspended officer was not permitted to sleep on duty and nevertheless did so. Here, plaintiff was on a 24-hour shift and was expected to sleep during part of it, responding to any calls that came in during his period of sleeping.\nThe issue is not whether plaintiff was sleeping on duty but whether his failure to awaken to the call was an intentional breach of duty. In the above-cited cases, there is no question that the sleeping police officers were intentionally breaching their duty. The evidence shows that at 5:15 a.m., January 10, 1986, plaintiff was sound asleep. The paging device failed to awaken him. Fire fighters Rick and Arnswald responded to the call but made no concerted effort to wake plaintiff up. Both called to plaintiff but did not go over to his bed and physically rouse him, e.g., shake him awake, pull off his covers, etc. Rick admitted to the fire chief that his efforts to awaken plaintiff were inadequate. Plaintiff was never awake during this incident. There is no evidence that somehow, while asleep, plaintiff formed the requisite intent to remain asleep and fail to answer the call. We find that he was never conscious to the point where he was capable of intentionally failing to respond to the call.\nWhere, as here, sleeping is an inherent part of a job, it is essential that fellow employees on a shift make complete efforts to rouse an employee who has not responded to a call. If, as in the instant case, such efforts are inadequate, an employee who has slept through a call cannot be found to have intentionally failed to perform his duties.\nFor reasons stated above, we find that under these circumstances, the Board’s decision suspending plaintiff for five days was unreasonable. Therefore, the decision of the circuit court of Lake County affirming plaintiff’s suspension is reversed.\nReversed.\nLINDBERG, P.J., and UNVERZAGT, J., concur."}
{"dedup_key":"pre1996-143136","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"277 ill-app-3d 777","case_name":"Twin-Cities Broadcasting Corp. v. Reynard","court_level":"Appellate","appellate_district":"4th","year":1996,"county":null,"appellate_docket":"4-95-0688","circuit_docket":"95-CH-44","published":1,"authoring_justice":"Cook","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Illinois State University Athletic Council","requesting_party":"Twin-Cities Broadcasting Corporation","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that a government entity with a substantial interest in requested documents may assert a FOIA exemption even if the entity currently in possession of the documents refuses to do so. The case was remanded to determine if the specific documents were exempt or if any potential exemption had been waived.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143136","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:55.752640","site_category":"General Records Exemptions","date_decided":"1996-01-19","site_url":"/cases/pre1996-143136/","text_url":"/case-text/pre1996-143136.txt","full_text":"TWIN-CITIES BROADCASTING CORPORATION, WJBC-WBNQ Radio, Plaintiff-Appellant, v. CHARLES REYNARD, McLean County State’s Attorney, et al., Defendants-Appellees (The Board of Regents of the University Regency System, Intervenor-Appellee).\nFourth District\nNo. 4—95—0688\nArgued October 24, 1995.\n— Opinion filed January 19, 1996.\n— Rehearing denied March 12, 1996.\nDonald M. Craven (argued), of Craven & Thornton, P.C., of Springfield, for appellant.\nR. Brian Hug, Assistant State’s Attorney (argued), of Bloomington, for appellees Charles Reynard and Gary Riss.\nCarol Hansen Posegate and Gregory K. Harris (argued), both of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, and Renee Y. Smith, of Illinois State University, of Normal, for other appellee.\n\nPRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nThe Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1994)) encourages a free flow and disclosure of information between government and the people. The FOIA, nevertheless, specifically exempts from government disclosure numerous categories of information and documents. (5 ILCS 140/7 (West 1994).) The question raised by this appeal is whether a government entity in possession of information and documents may consent to disclosure when another government entity having a substantial interest in the determination wishes to assert an exemption.\nOn March 22, 1995, a meeting of the Illinois State University Athletic Council (Council) was held to discuss the elimination of certain athletic programs operated by Illinois State University (ISU). The meeting was not open to the public. The McLean County State’s Attorney began an investigation and advised the board of regents (Board) which governs ISU that in the State’s Attorney’s opinion the Open Meetings Act (Act) (5 ILCS 120/1 through 6 (West 1994)) applied to meetings of the Council, and threatened criminal prosecution against ISU officials for violating the Act. In the course of the investigation, ISU delivered copies of the minutes and a transcript of the March 22 meeting to the State’s Attorney. The record is unclear what compulsion, if any, prompted ISU to turn over those documents, but the parties at oral argument agreed they were not subpoenaed.\nOn June 15, 1995, the Board filed a complaint for declaratory judgment against the State’s Attorney (Board of Regents v. Reynard (McLean Co. Cir. Ct.), No. 95 — MR—89), seeking a declaration that the Act did not apply to the Council. The State’s Attorney, in turn, filed a counterclaim for declaratory judgment, contending the Act did apply and requesting that further violations be enjoined. When the Peoria Journal Star served a request on the State’s Attorney, under the FOIA, seeking copies of the minutes and transcript of the March 22 meeting, the Board filed, on July 20, 1995, a motion for preliminary injunction in cause No. 95 — MR—89, seeking to prohibit the State’s Attorney from releasing the minutes and transcript.\nOn August 4,1995, plaintiff served an FOIA request on the State’s Attorney for those same documents. The State’s Attorney denied that request, on the basis that litigation was pending in cause No. 95 — MR—89. Plaintiff appealed to the chairman of the McLean County Board (County Board), who also denied the request. Plaintiff then filed a verified petition for injunctive relief in this case, No. 95 — CH—44, naming the State’s Attorney and the chairman of the County Board, and seeking relief under the FOIA. The State’s Attorney filed an answer which admitted all allegations of the complaint, but made a perfunctory request that relief be denied. Plaintiff then filed a motion for judgment on the pleadings which the State’s Attorney did not oppose. When the motion came on for hearing, it was transferred to the docket of Judge Dozier, who consolidated it for hearing with No. 95 — MR—89.\nThe trial court expressed concern that any protection from disclosure which the Board might enjoy under the FOIA would be lost if the State’s Attorney were allowed to voluntarily turn over Board documents in its possession. The court made the further finding that there was a reasonable probability that the Board would prevail on its complaint for declaratory judgment (No. 95 — MR—89) to establish that the Council was not a public body subject to the Act, rendering records of its meetings nondiscoverable under the FOIA. Based on that finding, the court denied plaintiffs motion for judgment on the pleadings in No. 95 — CH—44, and enjoined the State’s Attorney from releasing the documents in No. 95 — MR—89.\nThe trial court then \"severed” the two cases, and plaintiff appeals cause No. 95 — CH—44 under Supreme Court Rule 307(a)(1) (155 Ill. 2d R. 307(a)(1)), which permits appeals from interlocutory orders refusing an injunction. Plaintiff argues the trial court erred in refusing to grant its motion for judgment on the pleadings because the State’s Attorney’s answer admitted each element of plaintiffs claim for injunctive relief.\nAfter filing the notice of appeal, plaintiff requested and received a prehearing conference from this court under Supreme Court Rule 310 (134 111. 2d R. 310). The purpose of the conference was to expedite the appeal as the State’s Attorney represented to the court that it agreed with the plaintiffs legal position and intended to confess error. Although a short briefing schedule was set, the Board filed a petition to intervene and to supplement the record with the trial proceedings from the Board of Regents v. Reynard case (No. 95— MR — 89). Over objection, this court granted the Board permission to intervene on appeal to protect whatever interest it had. The motion to supplement the record was taken with the case, and we now grant that motion taking judicial notice of the record which was before the trial court in the related litigation.\nOn appeal, plaintiff relies upon the traditional argument that under the FOIA, the burden of proof is on the defendant to establish that the material in question is exempt from disclosure. (Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 535, 548 N.E.2d 1110, 1113.) In this case, in response to the FOIA request, the State’s Attorney admitted possession of the documents and made no claim that any statutory exemption to disclosure pertained to them. Based on these admissions, plaintiff contends the documents must be released. The State’s Attorney agrees, arguing that the Board has no authority to control the actions of the State’s Attorney, and the State’s Attorney is free to release documents in its possession if it chooses. The Board, in turn, contends that it has an interest in keeping the documents confidential, even though the State’s Attorney does not share that interest, and. argues strenuously that the documents are not subject to disclosure under the FOIA because the Council is not a public body subject to the Act.\nWe have not discovered, and no party has cited to us, any precedent under Illinois law addressing the authority of an agency to disclose third-party documents in its possession which might arguably be subject to an exemption under the Illinois FOIA. We note, however, that the issue has frequently arisen in Federal courts under the Federal FOIA (5 U.S.C. § 552 (1994)) in what has come to be known as a \"[r]everse-FOIA action.” In such a case, typically, a submitter of information — usually a corporation or other business entity required to report various data on its policies, operations, or products — seeks to prevent the agency that collected the information from revealing it to a third party in response to the latter’s FOIA request. The agency’s decision to release the data normally will be grounded either in its view that none of the FOIA exemptions apply, and thus that disclosure is mandatory, or in its belief that release is justified in the exercise of its discretion, even though the data fall within one or more of the statutory exemptions. CNA Financial Corp. v. Donovan (D.C. Cir. 1987), 830 F.2d 1132, 1133 n.l.\nPrior to oral argument, we asked the parties to address the applicability, if any, of the seminal case in this area, Chrysler Corp. v. Brown (1979), 441 U.S. 281, 60 L. Ed. 2d 208, 99 S. Ct. 1705. In Chrysler, plaintiff sought to enjoin the release of affirmative action plans Chrysler Corporation (Chrysler) was required to submit to the Secretary of Labor. Relying upon the Federal FOIA, Chrysler argued that if the information was subject to an exemption, the agency was required to withhold it. Conceding that certain of the exemptions reflect a sensitivity to the privacy interests of private individuals and nongovernmental entities, the Supreme Court found that this did not inexorably require the conclusion that the exemptions imposed affirmative duties on an agency to withhold information sought. To the contrary, the Supreme Court found the language, logic, and history of the FOIA did not support such an interpretation.\nThe Supreme Court determined that the Federal FOIA was exclusively a disclosure statute and held that Congress did not design the FOIA exemptions to be mandatory bars to disclosure. In support, the Supreme Court looked to the provisions of the FOIA concerning judicial relief and noted that the FOIA granted Federal district courts jurisdiction to enjoin the agency from withholding agency records and order production of documents but did not give the courts authority to bar disclosure. Since Congress did not limit an agency’s discretion to disclose information under the FOIA, it necessarily followed that the FOIA did not afford Chrysler any right to enjoin agency disclosure. The Supreme Court, however, agreed that Chrysler would be entitled to review of any disclosure action under section 10 of the Federal Administrative Procedures Act (Federal Act) (5 U.S.C. § 702 (1994)), which provides that \"[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action *** is entitled to judicial review thereof.” Thus, at least for Federal purposes, a private, nongovernmental body has a means at its disposal for challenging a proposed release of exempt documents by a government agency.\nAlthough there are a number of similarities between the Illinois FOIA and its Federal counterpart, we conclude that the situation presented in this case is both factually and legally distinguishable from that in Chrysler. For the reasons that follow, we conclude the Board is entitled to challenge the State’s Attorney’s threatened disclosure of Board documents under the Illinois FOIA.\nWhile the public policy of this State encourages a free flow in disclosure of information between government and the people and it has been stated that the FOIA is to be given a liberal construction to achieve this goal (see Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378, 538 M.E.2d 557, 559), the FOIA, nevertheless, specifically exempts from government disclosure numerous categories of information and documents. (5 ILCS 140/7 (West 1994).) It is also clear that it is the government which is entitled to assert an exemption to disclosure in the first instance. For that reason this case is distinguishable from the typical \"[r]everse-FOIA action” because the Board, acting as an agency of government, rather than a private or nongovernmental entity, is asserting an exemption to disclosure of its own documents which it would have been entitled to assert had the plaintiff made the FOIA request of the Board.\nIt is the position of the plaintiff and the State’s Attorney that mere possession of the documents by the State’s Attorney grants the State’s Attorney the sole right to choose to assert an exemption to disclosure. We cannot agree. The FOIA specifically provides that an entity from which a request for disclosure is made may extend the time limit for responding to the request because of a need for consultation with another public body \"having a substantial interest in the determination or in the subject matter of the request.” 5 ILCS 140/3(d)(vii) (West 1994).\nThus, the FOIA explicitly recognizes that documents of one agency may be in the possession of another, and the originating agency has a continuing interest in their protection if they are exempt from disclosure. This is especially true in a case such as this, where the State’s Attorney knows the Board has continuously asserted the exemption despite the State’s Attorney’s opposition to the position the Board has taken. Although the FOIA does not expressly require consultation under section 3(d)(vii) in all instances, we conclude the FOIA implicitly requires it if the agency of which the request is made denies that the material is exempt from disclosure or decides not to assert an otherwise applicable exemption and knows the originating agency would assert the exemption. We conclude that mere possession of the documents, standing alone, is not determinative of an agency’s ability to release documents pursuant to the FOIA if another governmental entity has a substantial interest in asserting an exemption.\nNormally, one would expect an agency to assert an exemption if one exists. However, we are not confronted with the issue of whether, under the Illinois FOIA, the existence of an exemption imposes an affirmative duty on an agency to withhold information sought. We note that certain exemptions expressly provide for waiver. For example, where information exists which if disclosed would constitute a clearly unwarranted invasion of personal privacy, there is an exemption \"unless the disclosure is consented to in writing by the individual subjects of the information.” (5 ILCS 140/7(l)(b) (West 1994).) Likewise, trade secrets obtained from a person or business are exempt but \"[njothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.” (5 ILCS 140/7(l)(g) (West 1994).) In this case, two exemptions from FOIA inspection and copying are asserted by the Board, namely, that the documents constitute preliminary recommendations in which opinions are expressed or policies are formulated, and that they constitute minutes of meetings of public bodies closed to the public as provided by the Act. (5 ILCS 140/7(l)(f), (l)(m) (West 1994).) Nothing in the language of these subsections or elsewhere indicates that a third-party government agency in possession of such information may choose to disclose it. We are mindful that under the facts of this case it is arguable that the Board waived its right to refuse disclosure of the information by voluntarily disclosing it apart from any request under the FOIA. In this case, the record does not reveal the circumstances under which the State’s Attorney came into possession of the documents other than that they were delivered to the State’s Attorney by ISU personnel.\nBecause the Board had a substantial interest in the subject matter of the request, it was entitled to assert an exemption, if one exists, despite the State’s Attorney’s refusal to do so. Plaintiff points out that the Board was not a party to this litigation at the trial court level. The Board was a party, however, to the extent that it had filed case No. 95 — MR—89 and that case was consolidated with this one. While we agree that the procedural history of this case is unusual, it is clear that but for the trial court’s preemptive consolidation of this case (No. 95 — CH—44) with the Board’s declaratory judgment action against the State’s Attorney (No. 95 — MR—89) which involved the Peoria Journal Star’s FOIA request, the Board would undoubtedly have initiated an identical suit against the parties to this case upon learning of the existence of plaintiff’s FOIA request.\nFor the foregoing reasons, we affirm the judgment of the circuit court denying plaintiffs request for judgment on the pleadings. We offer no opinion on the issues of whether the documents are actually subject to an exemption under the FOIA or whether, assuming an exemption exists, it was waived when the Board turned the documents over to the State’s Attorney’s office.\nFor the foregoing reasons, the judgment of the McLean County circuit court is affirmed and remanded for further proceedings.\nAffirmed and remanded.\nSTEIGMANN and GARMAN, JJ., concur."}
{"dedup_key":"pre1996-125228","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"158 ill-app-3d 473","case_name":"Hoffman v. Department of Corrections","court_level":"Appellate","appellate_district":"1st","year":1987,"county":null,"appellate_docket":null,"circuit_docket":null,"published":1,"authoring_justice":"Rizzi","statute":["FOIA"],"exemptions_cited":[],"public_body":"Illinois Department of Corrections","requesting_party":"Charles Hoffman","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that information regarding the procedures and drugs used by the Department of Corrections for lethal injection executions is subject to disclosure under FOIA. The court reasoned that such information is essential for public oversight and informed debate regarding the administration of the death penalty.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=125228","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:55.984944","site_category":"General Records Exemptions","date_decided":"1987-07-15","site_url":"/cases/pre1996-125228/","text_url":"/case-text/pre1996-125228.txt","full_text":"CHARLES HOFFMAN, Plaintiff-Appellee, v. THE DEPARTMENT OF CORRECTIONS, Defendant-Appellant.\nFirst District (3rd Division)\nNo.\nOpinion filed July 15, 1987.\nNeil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of Chicago, of counsel), for appellant.\nCharles W. Hoffman, of Chicago, for appellee, pro se.\nJustiee McGillicuddy heard oral arguments in the above case prior to her retirement. Since that time, Justice Freeman was designated the third member of the panel and has listened to the tapes and read the briefs.\n\nJUSTICE R.IZZI\ndelivered the opinion of the court:\nPlaintiff, Charles Hoffman, filed a complaint for injunctive relief under the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). Plaintiff seeks from defendant, Illinois Department of Corrections (Department), disclosure of information relating to the implementation of the Illinois death penalty statute. (Ill. Rev. Stat. 1985, ch. 38, par. Following a hearing, and an in camera inspection of material tendered by the Department, the trial court entered an order requiring the Department to disclose portions of the material reviewed in camera, and exempting the remaining portions from disclosure. The Department appeals, contending that it is not required to disclose any of the material. We affirm, and remand with directions.\nPlaintiff seeks information as to what drugs are to be used by the Department to execute people pursuant to the Illinois death penalty statute. Plaintiff also seeks information as to “the dosage and rate of administration of those drugs, and whether provision had been made for FDA approval of the manner and methods of the procedure, etc.” The Department contends that all of the material that it has relating to plaintiff’s request is exempt from disclosure under the FOIA because it is preliminary material as a matter of law. The Department relies upon section 7(f) of the FOIA, which provides that “[preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated” are exempt from public disclosure. Ill. Rev. Stat. 1985, ch. 116, par. 207(f).\nThe Department contends that all of the material involved in this case is preliminary material as a matter of law on the basis of two affidavits filed by the Department. One of the affidavits was executed on May 22, 1985, by Leo Meyer, a Deputy Director of the Department. In his affidavit, Meyer states that pursuant to the “recent statutory amendments” which require executions to be made by lethal injection, he directed his staff to prepare a draft for procedures to govern such executions. According to Meyer, the draft which he received from his staff “has remained at all times a preliminary draft which has not yet received approval from the Director of this agency.” The other affidavit was executed on June 27, 1985, by the Department’s Director, Michael Lane. The affidavit provides that Lane has never authorized or approved any procedures for executions by lethal injection.\nThe main purpose of the FOIA is to ensure that the public be given full and complete information regarding the affairs of government. (See Ill. Rev. Stat. 1985, ch. 116, par. 201.) Governmental agencies cannot clothe material regarding the affairs of government with an exemption from public disclosure by ipse dixit statements that the material is part of a preliminary draft. If it appears that governmental material is de faeto part of a final document, rather than a preliminary draft, it is subject to public disclosure under the FOIA regardless of protestations by the governmental agency. A reliance upon self-determination by public officials and public employees as to what should and what should not be disclosed to the public would frustrate the purpose of the FOIA. Compare Dudman Communications Corp. v. Department of Air Force (D.C. Cir. 1987), 815 F.2d 1565, 1569 (referring to the Federal Freedom of Information Act: “If a person requests particular factual material relating to an investigation of a war agency cannot withhold the material merely by stating that it is in a draft document.”).\nMoreover, section 11(e) of the FOIA allows a court to conduct an in camera examination of requested records to determine if such records, or any part, may be withheld from examination under any provision of the FOIA. (Ill. Rev. Stat. 1985, ch. 116, par. 211(e).) It follows that whether any requested material is a preliminary draft within the meaning of the statute is a question of fact to be determined by the trial court, rather than by officials of the Department. We therefore conclude that the affidavits filed by the Department do not render the material exempt from public disclosure as a matter of law.\nIn deciding whether the material produced by the Department was preliminary or final, the trial court examined the material in camera. After making its in camera examination, the trial court stated:\n“It looked to me like it was a final draft.\nAll I had was an affidavit of a party that said that this was a preliminary draft, and the draft itself did not indicate it was preliminary, but indicated it was final, to the Court it was final.\nLet the record show on the material that was submitted it did not appear to this Court it was a preliminary memorandum. It appeared to the Court to be a final document.”\nUnder the FOIA, the burden of proof was on the Department to establish that the material in question was exempt from disclosure. To meet its burden, the Department had to establish, as a matter of fact, that the material was preliminary rather than final. The trial court, after considering the affidavits submitted by the Department, and conducting an in camera inspection of the material itself, made a factual finding that portions of the material were final rather than merely preliminary. A trial court’s finding of fact will not be overturned unless it is against the manifest weight of the evidence. (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 318, 469 N.E.2d 183, 191.) We find nothing in this record to demonstrate that the trial court’s finding of fact is against the manifest weight of the evidence. Indeed, the circumstances clearly support the trial court’s conclusion.\nThe “recent statutory amendments” which require executions to be made by lethal injection, referred to in Leo Meyer’s affidavit, became effective on September 8, 1983. (Ill. Rev. Stat. 1985, ch. 38, par. Based on information supplied by the Illinois Department of Corrections, Public Information Office, there are currently 107 prisoners on death row in Illinois. Given the length of time that has elapsed since the legislature required executions to be made by lethal injection, and the number of prisoners currently on death row, the trial court could have found it implausible that the Department’s material relating to executions by lethal injection remains preliminary. The order from the trial court must therefore be affirmed.\nAccordingly, the Department is required to disclose the information that it has relating to plaintiff’s request under the FOIA, as specified in the trial court’s order from which this appeal is taken. The trial court’s order is affirmed, and the case is remanded for further proceedings consistent with what is stated herein.\nAffirmed and remanded for further proceedings.\nWHITE and FREEMAN, JJ., concur.\nThe execution of people by the State is plainly an affair of government which evokes spirited public controversy. Also, there is a continuing judicial debate over the constitutionality of the Illinois death penalty statute. (See People v. Christiansen (1987), 116 Ill. 2d 96, 132 (Simon, J., concurring in part and dissenting in part).) See also United States ex rel. Lewis v. Lane (C.D. Ill. 1987), 666 P. Supp. 181, 195 (expressing “grave doubts” over the constitutionality of the Illinois death penalty statute); Note, Stare Decisis and the Illinois Death Penalty, 1986 U. Ill. L. Rev. 177.) The procedures to be followed to execute people by lethal injection pursuant to the Illinois death penalty statute may themselves be the subject of spirited public controversy and constitutional challenge if the procedures tend to violate the proscription that no “cruel and unusual punishments [shall be] inflicted.” (U.S. Const., amend. VIII. See generally Chaney v. Heckler (D.C. Cir. 1983), 718 F.2d 1174, 1191, rev’d on other grounds, (1985), 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985).) Thus, the information which the plaintiff seeks is precisely the type of information that is required to be disclosed under the FOIA “to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” Ill. Rev. Stat. 1985, ch. 116, par. 201."}
{"dedup_key":"pre1996-146221","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"37 ill-app-3d 578","case_name":"Johnston v. City of Geneva","court_level":"Appellate","appellate_district":"2nd","year":1976,"county":null,"appellate_docket":"74-250","circuit_docket":null,"published":1,"authoring_justice":"Guild","statute":["OMA"],"exemptions_cited":[],"public_body":"City of Geneva","requesting_party":"Betty Kern Johnston","disposition":"reversed_in_part","relevance":"mention_only","summary_source":null,"summary":"The plaintiff alleged a violation of the Open Meetings Act regarding a city council meeting, but the court declined to address the issue because it reversed the trial court's zoning decision on other grounds.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=146221","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:56.035176","site_category":"Meeting Conduct & Participation","date_decided":"1976-04-29","site_url":"/cases/pre1996-146221/","text_url":"/case-text/pre1996-146221.txt","full_text":"BETTY KERN JOHNSTON, Plaintiff-Appellant, v. THE CITY OF GENEVA, Defendant-Appellee.\nSecond District (1st Division)\nNo. 74-250\nOpinion filed April 29, 1976.\nModified upon denial of rehearing June 4, 1976.\nGates W. Clancy, of Geneva, for appellant.\nJohnson & Marshall, of Wheaton, for appellee.\n\nMr. PRESIDING JUSTICE GUILD\ndelivered the opinion of the court as modified upon denial of petition for rehearing:\nThe plaintiff herein brought a declaratory judgment action seeking to declare the City of Geneva’s zoning ordinance unconstitutional as applied to her property. She further contended that the City Council’s action in denying her petition for rezoning of her property from R-3 Multiple-family Residential to B-l Business classification was voidable because five members of the City Council attended a meeting to hear objections to plaintiff’s petition in the absence of the plaintiff, in violation of the Open Meetings Act (Ill. Rev. Stat. 1973, ch. 102, par. 41 et seq.). The trial court in a bench trial denied the prayer for declaratory judgment and the plaintiff appeals.\nIt is common knowledge that the area west of the Fox River in the City of Geneva extends through a coterie of specialty shops immediately to a fine residential area of beautifully maintained older homes.\nPlaintiff’s property is located at the northwest corner of James and Fifth streets, one block south of State Street, the main business street in Geneva.1 With the exception of the southerly portion of the blocks from Fourth to Seventh streets, the entire seven-block area south of State Street is zoned B-l or B-4 Business. This is best illustrated by the following map indicating the existing zoning:\nPlaintiffs premises, located in this area, is presently zoned R-3 Multiple-family Residential and is used as plaintiffs residence. Plaintiff sought to construct a one-story addition to the present two-story house which would have approximately a 5-foot setback from the property lines on both James and Fifth streets. Her plan was to use the new addition and the first floor of the existing structure as a retail clothing and gift shop and the second floor as her residence. This plan does not conform to the provisions of existing R-3 Multiple-family zoning classification, which requires a 20-foot setback. The proposed use by the plaintiff of her property would be proper under either the B-3 Business classification or under the B-l Business classification. The sole difference between the B-l Business classification and the B-3 Business classification, as applied to the controversy herein, is the setback requirements. In a B-l Business district there is no setback requirement and in a B-3 Business district there is a 20-foot setback requirement. In the case of the plaintiff herein the setback which she proposed would be 5 feet, as indicated above, which would not comply with the B-3 Business setback requirements. In substance, this appears to be the bone of contention between the City of Geneva and the plaintiff.\nThe seven-block area between River Lane and Seventh streets north of State Street is zoned B-l or B-4 Business. South of James Street, between River Lane and Fourth streets, for a distance of five blocks to the railroad tracks, we find a mixture of R-l Single-Family Residential, R-3 Multiple-family Residential, B-3 Business District, B-4 Business District, M-3 Manufacturing District and an apparent classification of “M.D.” covering the Community Hospital and allied buildings. All of this is depicted in the map above.\nThe plaintiff appeared at a public hearing before the Geneva Plan Commission and the Commission unanimously approved and recommended to the City Council that the petition for rezoning from R-3 Multiple-family Residential to B-l Business be granted. The Geneva City Council refused the request for rezoning and this suit followed. Plaintiff further contended, at both the hearing before the Commission and at trial, that such rezoning was compatible with the objectives of the City of Geneva as set forth in the “Development Policy Guide” as prepared by the Geneva Plan Commission and adopted by the Geneva City Council, which designated plaintiffs property and the surrounding property as intended for commercial use.\nThe plaintiff introduced evidence that the highest and best use of the property would be under B-l Business zoning. The plaintiff’s expert witnesses further testified that the denial of the petition for rezoning to a B-l Business classification diminished the value of the property. They estimated that the property would be worth *20-25,000 more if zoned B-l rather than under the existing zoning of R-3 Multiple-family Residential. The witness for the City testified as to the highest and best use of the property and stated that the most appropriate use for the particular piece of property was B-3 Business. The appellee herein has cited La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415,312 N.E.2d 625, and Grobman v. City of Des Plaines (1975), 59 Ill. 2d 588, 322 N.E.2d 443. In both of these cases the supreme court held that aesthetics may be a consideration in the determination of an ordinance’s reasonableness. We do not find that these cases are applicable to the situation before us. In Grobman plaintiff sought to erect a residence on a 25-foot lot where the evidence was that all of the lots surrounding the area of his property were in excess of 50 feet in width. In the City of Evanston the court found that the building contemplated by the corporation would be significantly .dissimilar to any structure in the immediate vicinity and would alter the area’s character. Neither of these cases, therefore, are applicable to the situation before us.\nFrom the testimony of the City’s witness the existing zoning classification was not proper. We stated in Schmidt v. City of Darien (1975), 31 Ill. App. 3d 617, 621, 333 N.E.2d 678, 681, that:\n“It is true that in cases in which the municipality has admitted that the existing classification is invalid, the challenging parties are discharged from their duty to prove the invalidity of the existing ordinance.”\nIn this connection we considered the case of Schultz v. Village of Lisle (1972), 53 Ill. 2d 39, 289 N.E.2d 614, and held in Schmidt that “[t]he persons attacking the respective ordinances were still required to prove by a clear and convincing evidence, however, that the zoning ordinance was as to them arbitrary and unreasonable.” 31 Ill. App. 3d 617, 621, 333 N.E.2d 678, 681.\nIn First National Bank v. Village of Morton Grove (1973), 12 Ill. App. 3d 589, 299 N.E.2d 570, the court held that after a party proves that an existing ordinance is void as to his property the plaintiff must still show that its proposed use is reasonable.\nAs indicated above, the plaintiff contended that her proposed use of her premises was compatible with the provisions of the “Development Policy Guide” prepared by the Plan Commission of the City of Geneva and adopted by the City Council and introduced into evidence. She appeared before that Commission and that Commission held that her proposed use was proper, which would require the rezoning of the property from R-3 Multiple-family Residential zoning to B-l Business zoning. Considering the entire record as a whole, it would appear that the City of Geneva, in denying plaintiffs request for rezoning, failed to give proper weight to the recommendation of Geneva Plan Commission and to the general pattern of development of the City under the adopted “Development Policy Guide”. We further find that the rezoning of plaintiff s property from R-3 Multiple-family Residential to B-l Business, rattier than to B-3 Business as testified to by the City’s witness, has in fact no relation to the public health, safety, welfare or morals of the community; nor can it be said to be contrary to the proposed plan for the development of the City of Geneva where the Plan Commission of that-city states in its recommendation that the property should, in fact, be rezoned to B-l Business. While we hesitate to substitute our judgment for that of the trial court in zoning matters, it is apparent in this case that the holding of the trial court in refusing to enter judgment for the plaintiff in her action seeking to hold the zoning classification as applied to her property unconstitutional is against the manifest weight of the evidence.\nThe plaintiff’s second contention- is that the City Council’s action denying her petition was voidable because five of its members attended a meeting to hear objections to plaintiff’s petition, in violation of the Open Meetings Act, 2 days before public hearings were held on the matter. In light of our disposition of this case, it is unnecessary for us to pass upon this issue, and we shall not do so.\nWe therefore reverse and remand with directions to the trial court to enter judgment for the plaintiff herein.\nReversed and remanded.\nSEIDENFELD and HALLETT, JJ., concur."}
{"dedup_key":"pre1996-141617","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"266 ill-app-3d 1007","case_name":"Cooper v. Department of the Lottery","court_level":"Appellate","appellate_district":"1st","year":1994,"county":null,"appellate_docket":"1-92-2890","circuit_docket":null,"published":1,"authoring_justice":"McNulty","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Illinois Department of the Lottery","requesting_party":"William R. Cooper","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a FOIA request for lottery vendor sales data, holding that the information was exempt from disclosure under the personal privacy exemption of the Illinois FOIA. The court determined that the disclosure of specific sales data for individual lottery agents would constitute an unwarranted invasion of personal privacy.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=141617","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:56.544942","site_category":"General Records Exemptions","date_decided":"1994-09-30","site_url":"/cases/pre1996-141617/","text_url":"/case-text/pre1996-141617.txt","full_text":"WILLIAM R. COOPER, Plaintiff-Appellant, v. THE DEPARTMENT OF THE LOTTERY et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1 — 92—2890\nOpinion filed September 30, 1994.\nCOUSINS, J„ dissenting.\nSonnenschein, Nath & Rosenthal, of Chicago (Samuel Fifer and Gregory R. Naron, of counsel), for appellant.\nRoland W. Burris, Attorney General, of Chicago (Deborah L. Ahlstrand, Assistant Attorney General, of counsel), for appellees.\n\nJUSTICE McNULTY\ndelivered the opinion of the court:\nPlaintiff William Cooper brought an action against defendant Illinois Department of the Lottery dDL) seeking disclosure of certain information under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 (West 1992)). The circuit court of Cook County granted summary judgment for defendant and plaintiff appeals. No issues are raised on the pleadings.\nPlaintiff submitted a written request for certain records in the possession of defendants to further his study of whether the IDL is living up to its statement of policy: that its \"advertising content and practices do not target with the intent to exploit specific groups or economic classes of people.” (20 ILCS 1605/7.8a (West 1992).) Specifically, plaintiff requested the following information:\n\"(1) portions of a media plan developed by Bozell, Inc. (the 'Bozell Plan’) to advertise and promote the Illinois State Lottery (the 'State Lottery’) for the years 1988 through 1990; (2) a list of all vendors of State Lottery tickets ('Lottery Agents’) in the City of Chicago with monthly sales data; and (3) copies of all current (1990) State Lottery publications intended for public distribution.”\nIDL responded to Cooper’s request by stating that: (1) the Bozell plan was not a \"public record” within the terms of the Illinois Freedom of Information Act, and would not be disclosed; and (2) agent-specific lottery sales information was proprietary financial information, the disclosure of which could cause competitive harm to agents, and was therefore exempt from disclosure under section 7(l)(g). IDL complied with Cooper’s third request. IDL offered as alternative documents the list of all Chicago lottery agents and gross sales information by zip code for fiscal years 1988 to present.\nCooper filed a complaint for injunction against IDL and moved for summary judgment. IDL responded to Cooper’s motion and also moved for summary judgment. The parties’ cross-motions for summary judgment were argued before the trial judge with respect to disclosure of the lottery agent sales information. At the time of hearing on the cross-motion for summary judgment, the record shows that Cooper had pared his information request to: (1) annual gross sales data for the geographical location of each Chicago lottery outlet; and (2) details of the Bozell plan encompassing lottery advertising in all media, including when and where it ran and the cost of ad placement (but not ad production). Cooper argued that public policy favored disclosure of the information requested and that no FOIA exemptions applied.\nThe trial judge ruled in defendant’s favor on the ground that vendor-specific lottery sales data were exempt from disclosure as trade secret and financial information that is proprietary or confidential under section 7(l)(g) and as a clearly unwarranted invasion of lottery agents’ and taxpayers’ privacy under the provisions of sections 7(l)(b)(iii) and (iv) of the FOIA. The court also ruled, after in camera inspection, that the \"Communications Plan Recommendations” (the Bozell plan) was exempt from disclosure under section 7(l)(r) as recommendations pertaining to the financing and marketing transactions of the public body as well as section 7(l)(g)’s exemption for certain trade secrets and commercial or financial information that is proprietary, privileged or confidential, or where disclosure may cause competitive harm.\nWe must decide whether the circuit court properly granted summary judgment for defendant because the requested information was exempt from disclosure under the Illinois Freedom of Information Act.\nThe FOIA provides, in pertinent part:\n\"Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” 5 ILCS 140/1 (West 1992).\nThere is a presumption that public records be open and accessible, subject only to exemptions that are to be narrowly construed. (Car bondale Convention Center, Inc. v. City of Carbondale (1993), 245 Ill. App. 3d 474, 476, 614 N.E.2d 539, citing Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378, 538 N.E.2d 557, 559.) Although section 7 of the Act provides an extensive list of exemptions to disclosure, the burden of proof is on the governmental agency to establish that the documents in question are exempt from disclosure. (Wayne County Press, Inc. v. Georgia Isle (1994), 263 Ill. App. 3d 511, 636 N.E.2d 65; Carbondale, 245 Ill. App. 3d at 476, citing Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 535, 548 N.E.2d 1110, 1113.) \" '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.) (Carbondale, 245 Ill. App. 3d at 477, quoting Baudin, 192 Ill. App. 3d at 537, 548 N.E.2d at 1114.) \"[R]eliance upon self-determination by public officials and public employees as to what should and what should not be disclosed to the public would frustrate the purpose of the FOIA.” (Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 476, 511 N.E.2d 759, 761.) The purpose of the FOIA is \"to permit the public to decide for itself whether government action is proper.” (Emphasis in original.) Washington Post Co. v. United States Department of Health & Human Services (D.C. Cir. 1982), 690 F.2d 252, 264.\nI\nWe first address plaintiff’s request for the Bozell plan. On review, defendant no longer contends that the Bozell plan is not a public record, as it is clearly within the definition set forth in section 2(c). Rather, defendant contends that this material is exempt under sections 7(l)(g) and 7(l)(r) of the Illinois FOIA.\nA\nSection 7(l)(g), the \"trade secret” exemption, exempts:\n\"[tjrade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm.” (5 ILCS 140/7(l)(g) (West 1992).)\nThe legislature patterned the Illinois law after the Federal Freedom of Information Act (5 U.S.C. § 552 (1988 & Supp. V 1993)) and case law construing the Federal statute should be used in Illinois to interpret our own FOIA. (Roulette v. Department of Central Management Services (1986), 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, citing 83d Ill. Gen. Assem., House Proceedings, May 25, 1983, at 184 (hereinafter Debates).) Case law construing the Federal statute suggests that information is confidential only if disclosure would either inflict substantial competitive harm on the supplier of the information or impair the recipient agency’s ability to induce people to submit similar information to it in the future. (General Electric Co. v. United States Nuclear Regulatory Comm’n (7th Cir. 1984), 750 F.2d 1394.) We note that a minor impairment cannot overcome the disclosure mandate of the FOIA. (Washington Post Co. v. United States Department of Health & Human Services (7th Cir. 1982), 690 F.2d 252.) \"To show substantial competitive harm, the agency must show by specific factual or evidentiary material that (1) the person or entity from which information was obtained actually faces competition; and (2) substantial harm to a competitive position would likely result from disclosure of the information in the agency’s records.” Calhoun v. Lyng (5th Cir. 1988), 864 F.2d 34, 36.\nThe Illinois Lottery, the entity from which the information is sought, does not face competition. Rather, it is a monopoly. In an attempt to circumvent this problem, IDL invokes the interest of Bozell in the ideas and recommendations it developed. However, to the extent that IDL is reluctant to release the disputed material on Bozell’s behalf rather than its own behalf, the exemption on which it relies is inapplicable. IDL concedes that section 7(l)(g) was patterned after the Federal FOIA and consistent construction was intended. The purpose of the Federal exemption is \"to protect information that a private individual wishes to keep confidential for his own purposes, but reveals to the government under the express or implied promise by the government that the information will be kept confidential.” (Emphasis added.) (Benson v. General Services Administration (W.D. Wash. 1968), 289 F. Supp. 590, 594.) The pleadings and record here are devoid of any reason for the trial court to conclude that the data requested about the Bozell plan were furnished to the lottery in confidence, or that disclosure of the plan would inflict competitive harm on Bozell, the provider. We conclude that the Bozell plan, commissioned and paid for by the IDL, is not the type of confidential business information that section 7(l)(g) exempts. The only difference between this provision in the Illinois FOIA and the Federal FOIA exemption is the addition of the word \"proprietary” before the words \"privileged or confidential.”\nExtrapolating from the language difference between the wording of the Federal and State FOIA trade secrets exemption, IDL concludes that Cooper’s reliance on Benson fails to recognize both the \"proprietary” language under the Illinois FOIA and the Federal case law interpretation of \"confidential” to include competitive harm or agency difficulty in obtaining such information.\nFirst, IDL asserts that the relevant inquiry is whether Bozell is in competition with other businesses, not whether the Illinois lottery is a monopoly. In Benson, the court rejected the GSA’s contention that certain appraisal reports it commissioned from a private entity were protected under the Federal trade secrets FOIA exemption, 5 U.S.C. §552(b)(4) (1988 & Supp. V 1993), stating:\n\"[T]he exemption is meant to protect information that a private individual wishes to keep confidential for his own purposes. *** The appraisal report, on the other hand, is kept confidential by the appraiser on the client’s behalf, not on his own behalf, and the client here is GSA. Thus the exemption does not apply to the appraisal report.” (Benson, 289 F. Supp. at 594.)\nThe Illinois legislature has declared \"it is our intention that case law interpretations under federal FOIA should guide *** the courts in Illinois” in construing section 7(l)(g) (Ill. Rev. Stat. 1991, ch. 116, par. 207(l)(g) (now 5 ILCS 140/7(1 )(g) (West 1992))). Debates, at 184.\nThe Benson court correctly concluded that where the government has commissioned a private entity to prepare a report, it may not invoke its own status as a \"client” to withhold the report as \"confidential.” To conclude otherwise would emasculate the disclosure requirements of the FOIA.\nIDL’s focus on the word \"proprietary” in the Illinois FOIA trade secrets exemption does not weaken the authority of the holding in Benson, but rather further supports the logic upon which it is based. IDL assumes that \"Bozell has a proprietary interest in the ideas and recommendations it developed,” when, in fact, if anyone has a \"proprietary” interest in the Bozell plan, it is the IDL, which commissioned and paid for the plan. Unlike the usual section 7(l)(g) case, where a third party’s trade secrets are submitted in the course of bidding on a government project or in response to an agency’s investigation under its regulatory authority, the \"business strategies and information” quoted in IDL’s brief at page 22, citing Debates, at 184, are those of IDL and not Bozell. See, e.g., Orion Research, Inc. v. Environmental Protection Agency (1st Cir. 1980), 615 F.2d 551; Timken Co. v. United States Customs Service (D.D.C. 1981), 531 F. Supp. 194; and Teich v. Food & Drug Administration (D.D.C. 1990), 751 F. Supp. 243.\nIDL’s final argument that the Bozell plan is exempt as a trade secret or information of a proprietary, privileged or a confidential nature under section 7(l)(g) is that while there is only one Illinois lottery, there are neighboring State lotteries and multistate lotteries from which the plan should be kept confidential in Bozell’s and the Department’s interests. This rationale is incomprehensible in light of the fact that the Illinois Lottery Act explicitly provides that one of the duties of the Director of the Lottery is \"[t]o enter into an agreement or agreements with the management of state lotteries operated pursuant to the laws of other states for the purpose of creating and operating a multi-state lottery game wherein a separate and distinct prize pool would be combined to award larger prizes to the public than could be offered by the several state lotteries, individually.” (20 ILCS 160579(h) (West 1992).) The Act encourages interstate cooperation to the mutual benefit of all rather than fostering exclusionary competitiveness of one State against others.\nIn summary, IDL has alleged no facts in its pleadings to support its conclusion that disclosure of the Bozell plan will have a chilling effect on receipt of information from advertising agencies it commissions to devise media plans for the lottery.\nIDL contends and the dissent agrees that the Bozell plan is exempt from disclosure under section 7(l)(r) of the Illinois FOIA as \"[djrafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligations is made.” 5 ILCS 140/7(l)(r) (West 1992).\nWhile the plain meaning of words used in legislative enactments is a relevant consideration in any statutory interpretation, the intent of the legislature in enacting the Illinois FOIA as expressed in the Act and as particularly set forth above is more cogent in determining the type of information the exemptions were intended to protect from public disclosure.\nTo this end the legislature has declared that the \"Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.” (5 ILCS 140/1 (West 1992).) The language that immediately follows this declaration, however, is a clear statement from the legislature on the question of how the Act is to be interpreted including the exemption provisions. It states:\n\"These restraints on information access should be seen as limited exceptions to the general rale that people have a right to know the decisions, policies, procedures, rules, standards and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provi sions of this Act shall be construed to this end.” (Emphasis added.) 5 ILCS 140/1 (West 1992).\nThe legislature has thus clearly expressed that the exemptions from disclosure of information are not to be construed broadly in contrast to the construction unequivocally urged by the dissent.\nIn response to Cooper’s request for those portions of the Bozell plan for several years past concerning the promotion and advertisement of the lottery, and particularly those which would detail ad placement in radio, print and other media, IDL provided media estimates (product ordered summaries and broad time schedules) submitted by Bozell to IDL’s financial accounting office. It also provided Cooper with scripts for ads but did not indicate where or when they ran. IDL then refused to disclose that portion of the Bozell plan entitled \"Communications Plan Recommendations” under section 7(l)(r) although it is undisputed that this portion of the plan is a statement of marketing objectives, strategies and tactics used by the IDL in promoting the lottery. It is clear, however, from the foregoing statements of FOIA legislative policy that a governmental agency cannot label a document \"recommendations” and thereby trigger its exemption under section 7(l)(r) without further analysis. (See Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 511 N.E.2d 759.) The Bozell plan is a statement of IDL policy to which the public is presumptively entitled access consistent with the legislature’s expressed intent. This fact is underscored by section 7.8(a) of the Lottery Act, which states:\n\"The Board shall establish advertising policy to ensure that advertising content and practices do not target with the intent to exploit specific groups or economic classes of people, and that its content is accurate and not misleading.” 20 ILCS 1605/7.8(a) (West 1992).\nThe dissent asserts that Cooper contends the \"marketing” exemption of section 7(l)(r) only applies to \"the marketing of government bond issues by public bodies.” (266 Ill. App. 3d at 1026.) Cooper’s argument is that the part of the Bozell plan he requested has nothing to do with the \"financing and marketing transactions of the public body” described in that section and to which it applies. The legislative history surrounding the enactment of this exemption supports his claim.\nThe Hlinois Housing Development Authority (IHDA) lobbied for this exemption because of its concern with the \"financial advantage that might be available to a commercial enterprise *** if the Agency’s own financial strategy were disclosable.” Debates, at 172.\nThe Governor’s statement regarding his amendments (which were adopted) is even more specific about the thrust of the exemption, indicating it was intended \"to protect the competitive position of Illinois public bodies in the financial bond market and to assure confidentiality with respect to financial transactions.” Debates, at 9080.\nThe final statutory language of section 7(l)(r) addresses and underscores the Governor’s concerns by exempting from disclosure, \"[t]he records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to such obligations is made.” (5 ILCS 140/7(l)(r) (West 1992).) The dissent asserts that the statutory language of section (r) does not on its face require a nexus between the public body’s financial or marketing recommendations and bond obligations for this exemption to apply. It states, \"it is clear *** that both of the two section (r) sentences can stand alone.” (266 Ill. App. 3d at 1027.) The question, however, is not whether they can stand alone but whether they should be so interpreted.\nThe dissent’s analysis ignores the term \"financing” as used in section 7(l)(r) and the legislative history of this provision, which illustrates the narrow concerns of the General Assembly and then Governor Thompson. An important principle of statutory construction is that \"[t]he specific terms in a statute take color from the words surrounding them and must be interpreted in light of the context in which they are used.” (People v. Whitfield (1986), 147 Ill. App. 3d 675, 679, 498 N.E.2d 262, 265.) Applying this principle to the case at bar and considering the legislative history of section 7(l)(r), the first sentence, containing the words \"financing and marketing,” must be read in context with the second sentence, discussing municipal debt obligations. Thus \"marketing” can only be reasonably construed as referring to marketing of government bond issues by public bodies, and not as excluding from FOIA disclosure any information relating to marketing activities of a public body.\nFinally, the dissent concludes that even if the Bozell documents were not exempt under section 7(l)(r), disclosure should not be ordered because a foundation for a disclosure order does not exist. This conclusion is based upon the fact that Cooper has not included in the record for review the documents prepared by Bozell which were examined in camera at the request of IDL. The content of those documents, however, is not disputed. The affidavit of Lisa Curtis, IDL’s FOIA officer, states that the Bozell documents examined in camera by the trial court include marketing objectives and strategies and tactics for the lotto game, which she believes to be exempt from disclosure under section 7(l)(r) of the FOIA. IDL in its motion for summary judgment set forth no specific facts to establish the exemption of this information from disclosure under section 7(l)(r), but simply claims it is exempt, citing the language contained in the statute. The trial court in announcing its decision that the Bozell material was exempt, like IDL did in its pleadings, cited only the language of the statute, but did not set forth any detailed findings concerning what there was about this material that evoked the claimed exemption. DDL’s position and the conclusory determination of the trial court that this exemption applied to the material are inconsistent with the settled practice of narrowly interpreting FOIA exemptions. (Osran v. Bus (1992) 226 Ill. App. 3d 704, 589 N.E.2d 1027; Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 548 N.E.2d 1110.) In the absence of detailed findings by the trial court, the inclusion of the Bozell documents in the record would shed no light upon the reasons for the court’s determination that the material was exempt.\nThe dissent cites General Electric Co. v. United States Nuclear Regulatory Comm’n (7th Cir. 1984), 750 F.2d 1394, in support of its determination that the Bozell plan materials requested by Cooper are exempt from disclosure under section 7(l)(r) of the Dlinois FOIA. General Electric involved the trade secret and commercial or financial information exemption of the Federal FOIA. Exemption section 7(l)(r) of the Dlinois FOIA has no comparable counterpart in Federal FOIA law.\nIn General Electric (GE), the company turned over a report containing detailed plans for a nuclear reactor in response to a subpoena from the Nuclear Regulatory Commission (Commission) under a protective order that the report be made available to the Commission in confidence. Bozell did not give IDL its advertising plan in confidence. It gave the plan to DDL because IDL commissioned and paid for it. In GE the company was resisting disclosure and the regulatory commission ruled that the report was not exempt from disclosure. In the case at bar, Bozell has not intervened to resist disclosure of its plan; DDL is resisting disclosure. In GE, the company had submitted affidavits to the Commission to show competitive injury, letters suggesting the report was entitled to the exemption and a memorandum from the Commission’s own staff economist that disclosure would cause substantial competitive harm to the company’s competitive position. In the case at bar, there were no such allegations or submissions to the court in camera to suggest Bozell would suffer similar harm if the advertising plan were disclosed. It is noteworthy that in GE the court did not overrule the Commission’s decision on disclosure but only remanded for that body to state its specific reasons why the report did not meet the requirements for exemption in Eght of the company’s substantial submissions that disclosure of the details of its nuclear reactor design furnished potential for substantial competitive harm.\nDisclosure of the advertising strategy of the Bozell plan will clearly not impair the confidentiality of the DDL’s financial transactions nor its competitive position in the financial bond market. Moreover, in discussions about the exemption, the legislature clearly expressed its intention that due to the FOIA’s emphasis on \"government accountability,” this section should not be read broadly to \"prevent access to the public of information about the management of the Housing Development Agency, the recipient of grants or bond authorizations from that Agency.” (Debates, at 173.) The rationale behind this legislative statement is equally applicable to the Bozell plan documents withheld from disclosure by IDL. IDL reads this specifically focused section to provide a sweeping exemption from FOIA disclosure for anything relating to marketing activities of the public body. This is entirely inconsistent with the declaration of legislative intent set forth above that exemptions from disclosure are to be narrowly construed. In support of its position, DDL offers only conclusory assertions rather than detailed facts justifying the application of the exemption as required by the statute and case law. Therefore, examination of the Bozell plan documents is not required, as DDL has set forth no factual basis in its pleadings or otherwise to support the application of the section 7(l)(r) exemption to prevent disclosure of these materials.\nII\nWe next address DDL’s contention that sales data of each Chicago lottery outlet are exempt from disclosure as: (a) information of a proprietary and confidential nature under section 7(l)(g); (b) personal files and information maintained with respect to licenses by a public body engaged in occupational licensure under section 7(l)(b)(iii); and (c) information required of any taxpayer in connection with the collection of any tax under section 7(l)(b)(iv).\nA\nDDL’s argument under the 7(l)(g) exemption is that sales data of individual lottery agents are information of a proprietary and confidential nature the disclosure of which may cause competitive harm. To support this* argument DDL notes that lottery agents must be involved in a business enterprise other than the sale of lottery tickets to apply to become a lottery ticket sales agent. (20 ILCS 1605/10 (West 1992).) No one may be licensed to engage in business exclusively as a lottery sales agent. It then observes that common experience finds licensees to be gas stations and convenience stores which are in close competition with each other. It opines that competitive harm could be caused to some lottery agents by disclosure of agent-specific sales data identifying high volume ticket sellers as against low volume ticket sellers with the attendant advantages to the more successful sales agents in the negotiation of contracts with common suppliers or in making financial decisions to the detriment of the less successful ones.\nCooper, however, is not asking for balance sheets of lottery agents or information unrelated to their role as State agents or trustees of lottery ticket proceeds. Lottery agents are required by law to report monthly lottery sales data to IDL, so it is highly unlikely that public disclosure would impair IDL’s ability to obtain this data in the future. (See National Parks & Conservation Association v. Morton (D.C. Cir. 1974), 498 F. 2d 765.) In becoming agents, these business people took on a number of responsibilities and liabilities in exchange for the profitable opportunity to attract customers to their businesses as a lottery outlet and to receive commissions and bonuses from the State. IDL has set forth no factual basis to conclude that if Cooper gets sales data from lottery outlets identified by geographical location, no one will desire to become a lottery agent.\nIDL’s competitive \"harm” argument is similarly unpersuasive. National Parks provides no support for it. Unlike the facts in National Parks, the information Cooper seeks relates only to sale and promotion of lottery tickets and not information related to other business transactions involving lottery agents. The kind of information that IDL expresses concern about as set forth above would not be discerned solely as a result of the disclosure of lottery sales data by geographic location, but is readily observable by the public traffic going in and out of a competitor’s store.\nB\nNext, we address IDL’s contention that the privacy provisions contained in sections 7(l)(b)(iii) and (iv) exempt from disclosure lottery sales data for each agent located within the City of Chicago.\nThe nub of the controversy on the question of lottery agents’ privacy interests centers on Cooper’s request that the sales data be supplied for the geographical location of each lottery sales outlet within Chicago (which may consist of a specific street address or a more general address such as that of a shopping center) whereas IDL is willing to supply the information by zip code instead.\nIt is DDL’s burden to provide an explanation or justification for its refusal to disclose sales data by geographical location of each outlet on the theory that to do so would constitute a clearly unwarranted invasion of the agents’ privacy. (See Schessler v. Department of Conservation (1994), 256 Ill. App. 3d 198, 627 N.E.2d 1250.) Moreover, in the case at bar, IDL has not pled that it is unable to supply sales data by geographical location of lottery outlets in the City of Chicago. See American Federation of State, County & Municipal Employees v. County of Cook (1990), 136 Ill. 2d 334, 555 N.E.2d 366.\nIt is difficult to fathom how the protection of the privacy interests of the lottery sales agents in the City of Chicago, who voluntarily enter into a lucrative business arrangement with the State enabling them to earn sales commissions and bonuses on the lottery revenues they generate from geographical outlet identification, are equal to those of the individual identities of minor students in a public school setting who are there pursuant to the compulsory school attendance law that concerned the supreme court in Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 538 N.E.2d 557.\nThe information Cooper requested on the lottery sales figures has nothing to do with files regarding the \"occupational registration, licensing or discipline” of lottery agents within the provisions of section 7(l)(b)(iii) of the FOIA. He does not seek the names of attorneys who are being investigated for possible discipline by the State. (See David Blumenfeld, Ltd. v. Department of Professional Regulation (1993), 263 Ill. App. 3d 981, 636 N.E.2d 594.) Nor is the information he seeks \"required of any taxpayer in connection with the assessment or collection of any tax.” (5 ILCS 140/7(l)(b)(iv) (West 1992).) The lottery ticket sales figures kept by lottery sales agents and conveyed to the IDL are not submitted in connection with payment of a tax; they are submitted in accordance with the terms of the Lottery Act, which provides:\n\"All proceeds from the sale of lottery tickets or shares received by a person in the capacity of a sales agent shall constitute a trust fund until paid to the Department ***. *** Sales agents shall be personally liable for all proceeds which shall be kept separate and apart from all other funds and assets and shall not be commingled with any other funds or assets.” (20 DLCS 1605/10.3 (West 1992).)\nSince lottery agents perform State functions as fiduciaries, the disclosure of their sales data is information in which they have at best an attenuated privacy interest as FOIA section 7(l)(b) states: \"The disclosure of information that bears on the public duties of pub-lie employees and officials shall not be considered an invasion of personal privacy.” (5 ILCS 140/7(l)(b) (West 1992).) Moreover, since Cooper has requested neither those portions of the sales data relating to the payment of a sales commission to the vendor nor taxes remitted by the vendor, IDL cannot use the inclusion of the data in the sales proceeds figures as a justification for refusal to disclose the sales information. Instead, it should delete this information and disclose the rest of the sales data to Cooper. See Welford v. Hardin (D.C. 1970), 315 F. Supp. 768.\nThe business addresses of lottery agents are not \"personal information.” IDL cites Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827, in support of its contention that the information is \"personal” under section 7(l)(b)(iii) because it is information from which the agents can be identified. It is not, however, the identity of the agent that IDL resists disclosing, it is the lottery sales data for each specific outlet. The agents are already identified because the Lottery Act requires lottery agents to prominently display their license or a copy of it. (20 ILCS 160579(d) (West 1992).) Further, the lottery will consider an applicant’s ability to promote the lottery in determining whether or not to grant the application. There is ample authority to support Cooper’s position that the business locations of lottery agents are not private. See American Broadcasting Cos. v. Siebert (1981), 110 Miss. 2d 744, 442 N.Y.S.2d 855.\nIn Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 457, 493 N.E.2d 1054, 1058, the supreme court held that where doctors receive public funds to perform abortions, those who are charged with a duty with respect to such funds \"at best have a limited privacy interest in this information.” The court ordered disclosure of the names of physicians performing these services as not an invasion of privacy even though allegations of harassment and terrorism were made by the doctors. (See also Ill. Const. 1970, art. VIII, §1; 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2012 (1970).) As against this backdrop, disclosure of the amounts held in trust by the keepers of lottery revenue together with their geographical locations cannot reasonably be considered information \"personal” to the agents and thus a clearly unwarranted invasion of their personal privacy.\nFinally, in applying the balancing test set forth in Margolis to determine whether a \"clearly unwarranted” invasion of privacy is threatened by the disclosure of lottery sales information requested by Cooper, we find no such invasion.\nFirst, IDL contends that disclosure of the information may advance Cooper’s personal gain. This fact does not disqualify him from being entitled to the information, nor does the sale of his story to a publisher transform his request into the furtherance of a commercial enterprise. (5 ILCS 140/1 (West 1992).) Cooper has maintained that his reason for requesting the information is not only to determine whether IDL is complying with the ad targeting prohibition in the Lottery Act, but also to determine whether empirical data supports the frequently made claims that the poor and disadvantaged spend more per capita on lottery tickets than other members of society. We think the public interest in such an accurate empirical study is apparent, and, even if we did not, there is case authority stating that \"the balancing of the privacy against the public interest cannot depend on the identity and specific purpose of the party requesting the information.” Painting & Drywall Work Preservation Fund, Inc. v. Department of Housing & Urban Development (D.C. Cir. 1991), 936 F.2d 1300, 1302.\nSecondly, IDL claims that the extent of invasion of privacy due to Cooper’s request for lottery sales data by agent location is substantial because agents will be targeted for crime and competitive depredation. Since the lottery agents must promote themselves as such and must also engage in other business, which IDL concedes is largely of the cash sale variety, this contention is ironic. The New York Court of Appeals in American Broadcasting Cos. v. Siebert (1981), 110 Misc. 2d 744, 442 N.Y.S.2d 855, in a FOIA case rejected a similar argument with the observation that \"[t]he criminal, intent on robbery, does not require the name of the individual who, he observes at the business location, may be in possession of cash.” (Siebert, 110 Misc. 2d at_, 442 N.Y.S.2d at 859.) The situation in the case at bar is similar with respect to the lottery agents. As a member of this court observed at oral argument: \"You know you can drive around neighborhoods during the day and you can see what’s going on, you know. Let’s say you can get an idea of the flow of the money for that matter. *** Take you on some tours and you can see what’s happening for that matter, and, sometimes, let’s say, a little glimpse is worth a thousand words.” Cooper’s study will not change the fact that the businesses which sell large numbers of lottery tickets are actively promoted and are readily apparent to all — the criminal and law abiding alike.\nWe further observe that the pleadings of IDL disclose no facts to support a conclusion that lottery agents are more vulnerable to criminal activity than anyone else who is engaged in a business enterprise generating a high volume of cash transactions.\nIt is not sufficient for IDL to allege that disclosure of the sales information would target its agents for crime and thereby shift the burden to Cooper to allege specific facts to refute it. This, however, is precisely what IDL and the dissent would require of Cooper to prevail in this case.\nFinally, we consider Cooper’s alternative means of obtaining the requested information.\nIDL has throughout this case referred to Cooper’s proposed study as one to determine IDL’s compliance with the prohibition against advertising targeting in the lottery. Cooper, however, maintains that the purpose of the study is not to determine advertising compliance but rather to provide an accurate empirical analysis of whether those in poor or minority neighborhoods purchase a disproportionate amount of lottery tickets. We accept his statement concerning the thrust of his inquiry, and not IDL’s interpretation of his motives for the request, and note also that sales data by geographical location rather than by zip code would greatly facilitate the study. IDL’s bare conclusion that the sociological and statistical research Cooper wishes to conduct can be as easily accomplished by studying sales data by zip codes rather than by geographical location of lottery outlet is not determinative. Although IDL might conduct research on the issue as defined by Cooper differently than he would, he is not required to successfully defend his methodology before IDL or this court in order to obtain the information. As stated in American Federation of State, County & Municipal Employees v. County of Cook (1990), 136 Ill. 2d 334, 346-47, 555 N.E.2d 361, 366, \"A public body may not in Illinois *** provide a public record that does not conform to the request and then force the requester to explain why it will not suffice.”\nIndeed, we conclude that the specific sales data requested by Cooper would not fit any specific exempt categories under section 7(l)(b)(iii), even under an interpretation more generous to nondisclosure given by the Fourth District Appellate Court. See Schessler v. Department of Conservation (1994), 256 Ill. App. 3d 198, 627 N.E.2d 1250.\nIf the exemptions claimed by IDL and the dissent are to be construed as generously as they urge, the public disclosure of information in the possession of a public body would be largely at the unfettered discretion of that body. This would derogate the purpose of both the State and Federal Freedom of Information Acts and the case law that has construed them. Those acts would thus become a futile legislative exercise because information a public body is willing to disclose has always been publicly available. See General Electric Co. v. United States Nuclear Regulatory Comm’n (7th Cir. 1984), 750 F.2d 1394, 1398.\nAccordingly, for the foregoing reasons defendant has not sustained its burden of showing that the information contained in plaintiffs request is protected from disclosure under any claimed exemption of the Illinois Freedom of Information Act. (5 ILCS 140/1 et seq. (West 1992).) The judgment of the circuit court is therefore reversed and remanded with directions to enter summary judgment in favor of plaintiff.\nReversed and remanded with directions.\nMURRAY, P.J., concurs.\n\nJUSTICE COUSINS,\ndissenting:\nIn this case, after in camera inspection and review of the \"Communications Plan Recommendations” (referred to as the Bozell plan) (CPR) media-related document, the court ruled that the CPR was exempt from production under section 7(l)(r)’s marketing provisions, as well as section 7(l)(g)’s exemption for certain trade secrets and commercial or financial information. Also, regarding the agents, the trial court found that release of the vendors’ specific sales data would be a clear and unwarranted invasion of privacy. In my opinion, the trial court decision should be affirmed. See Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.\nAt the outset, the majority opinion posits that the defendant’s contention on review has changed. This argument is incorrect. Rather, the plaintiff, Cooper, indicated at times during argument that his requests have been undergoing modifications. A substantial portion of the oral argument involved questions asked to clarify Cooper’s request regarding the location of lottery vendors.\nThe majority opinion states \"[t]he nub of the controversy on the question of lottery agents’ privacy interests centers on Cooper’s request that the sales data be supplied for the geographical location of each lottery sales outlet within Chicago (which may consist of a specific street address or a more general address such as that of a shopping center) whereas DDL is willing to supply the information by zip code instead.” (266 Ill. App. 3d 1020.) However, contrary to the majority argument, Cooper’s complaint seeks specific locations and street addresses. Based on the complaint and communications between the parties, the court order exempts vendors’ specific sales data for specific locations. Cooper seeks and the court specifically exempts disclosure by DDL of specific addresses with sales data.\nRelative to Cooper’s request, his attorney was asked numerous times whether he was seeking specific addresses. Equivocal responses were given by the attorney until the very end of rebuttal argument. Then, he was again asked: \"By address, do you mean specific address?” Answer: \"Yes.” However, even if Cooper has now modified his request to \"geographic locations” (whatever that means), \"geographic locations,” as such, was not pled before the trial court. Based on the pleadings, documents, and arguments, the trial court decided that Cooper was requesting vendors’ specific locations and gross monthly sales. On appeal, we cannot predicate a decision on requests which were not pled and ruled upon in the trial court.\nRelative to the background information provided in the majority opinion, I note that the first recorded reference which is included in the record regarding the aim of Mr. Cooper in seeking information from the Illinois Department of Lottery (IDL) appears in a letter dated February 19, 1991, where IDL wrote:\n\"If as Mr. Cooper relates, his aim is to determine whether or not our advertising is targeting minority groups, the by-Zip Code information we have offered will give the most accurate representation of sales within the ethnic and minority areas of Chicago as possible. The individual sales of agents will not enhance such an analysis but, will rather distort possible representative sales within the entire neighborhood. Nonetheless, the request for specific agent sales data is once again denied.” (Emphasis added.)\nRegarding the CPR, the trial court did not err and its decision should be affirmed for reasons hereinafter stated.\nFirst, contrary to the contentions by the majority, the CPR document is clearly exempt under section 7(l)(r) of the Illinois FOIA, which exempts \"recommendations *** pertaining to the financing and marketing transactions of the public body.” (5 ILCS 140/7(l)(r) (West 1992).) In both his brief and during orals, Cooper posits that the marketing exemption of section 7(l)(r) applies only to \"the marketing of government bond issues by public bodies.” In my opinion, the majority errs in agreeing with Cooper’s interpretation of the statute. The majority writes:\n\"Thus 'marketing’ can only be reasonably construed as referring to marketing of government bond issues by public bodies, and not as excluding from FOIA disclosure any information relating to marketing activities of a public body.” 266 Ill. App. 3d at 1017.\nSection 7(l)(r) exempts the following:\n\"(r) Drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligation is made.” 5 ILCS 140/7(l)(r) (West 1992).\nIn its brief, IDL makes an exhaustive analysis of this section which disproves the contention that it only applies to \"bond issues.” Further, it is clear from a reading of this exemption that both of the two section (r) sentences can stand alone. The first sentence pertains to \"financing and marketing transactions.” The second sentence relates to \"records of ownership *** of municipal debt obligations.” It is clear that the conduct of the lottery by IDL involves \"marketing transactions.” It is clear that these marketing transactions are exempt.\nIn my opinion, the majority also errs in granting summary judgment in favor of Cooper and ordering the trial judge to furnish Cooper \"the Bozell plan” documents which the trial court examined in camera. I have read the common law record. Even so, I don’t know what the trial judge viewed in camera. I am not clairvoyant. However, I do know that appellate justices have a duty to review trial court decisions based upon the facts and findings which are found in the common law record. We cannot review a determination without knowing upon what it is based. General Electric Co. v. United States Nuclear Regulatory Comm’n (1984), 750 F.2d 1394.\nIn General Electric, the court wrote:\n\"[W]e cannot review an agency’s determination without knowing what it is based on; *** we are unable to discover 'the basis for the agency determination that the FOIA exemptions are inapplicable.’ ***\n*** [W]we are forced to reverse the district court’s judgment and direct that court to remand the matter to the Commission ***.” (Emphasis added.) General Electric, 750 F.2d at 1404, quoting Chrysler Corp. v. Schlesinger (3d Cir. 1977), 565 F.2d 1172, 1192.\nThe majority posits that General Electric is inapposite. The majority is incorrect. Also, it was Cooper’s obligation to move the court to order IDL to provide an index of the records to which access had been denied. See Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 543, 548 N.E.2d 1110; Ill. Rev. Stat. 1989, ch. 116, par. 211(e) (now 5 ILCS 140/ll(e)(West 1992)).\nAs to the request for vendors’ specific sales data, I note that Cooper contends, in particular, that area sales by zip codes will not enable him to make an accurate study in the census tract which includes both Cabrini-Green and the Gold Coast in Chicago. This argument is unconvincing. An instructive case is Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 538 N.E.2d 557. In Bowie, the Illinois Supreme Court remanded the case for determination as to whether students could be identified in classrooms even though the names and sexes of students were deleted and scrambled.\nThe issue on review is not regarding \"geographic locations.” The issue on review involves \"vendors’ specific sales data.” I note that the attorney for IDL emphasized in the trial court and on review that \"what the Department refuses to give is sales data specifically identified with addresses.” I also note that, in making his decision, the trial court judge specifically considered the stipulation by the parties that \"vendors do receive a commission for each lottery ticket that they sell.” Doubtlessly, vendors’ specific sales data has tax ramifications. These data also have other ramifications which must be considered. And, my dissent is further crystalized because the majority in this case gives virtually no consideration to the ramification of increased risks which disclosure poses for lottery agents in high crime areas. As recognized by IDL, not only would agents who are likely to have greater lottery funds on hand be known, but since lottery sales generally reflect the \"trafile” attendant to the agents’ own commercial enterprises (z.e., gas stations, drug stores, convenience stores), these business also could be targeted. It is my view too that providing \"vendors’ specific sales data” to a writer for part of a study and public disclosure can unwarrantably and unnecessarily cause some vendors and/or agents to be targeted. See Margolis, 180 Ill. App. 3d 1084, 536 N.E.2d 827.\nI also note that during oral arguments, a member of this court made the following remark, which has been verified by a review of the tape recording of the oral argument:\n\"Is it required that a balancing test to be applied, and the court articulate the reasons why on the facts of this particular case the exemption applies, or is it sufficient just to say well it comes within the broad exemption language and that’s sufficient, and I would suggest to you that might fly in the Fourth District but I don’t know that it goes around here.” (Emphasis added.)\nFor the reasons which I have expressed, it is my view that the decision of the trial court in the case sub judice accords with the law enunciated in every relevant published opinion by a court of review in Illinois. See Blumenfeld, Ltd. v. Illinois Department of Professional Regulation (1993), 263 Ill. App. 3d 981; Margolis, 180 Ill. App. 3d 1084, 536 N.E.2d 827; see also Ripskis v. Department of Housing & Urban Development (D.C. Cir. 1984), 746 F.2d 1."}
{"dedup_key":"pre1996-124216","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"151 ill-app-3d 136","case_name":"Smith v. Cook County Probation Department","court_level":"Appellate","appellate_district":"1st","year":1986,"county":null,"appellate_docket":"85-1278","circuit_docket":null,"published":1,"authoring_justice":"Campbell","statute":["FOIA"],"exemptions_cited":[],"public_body":"Cook County Probation Department","requesting_party":"Thomas William Smith","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the dismissal of a FOIA request for probation records, holding that such records are not public records under the FOIA because they are specifically protected from disclosure by the Illinois Probation Act. The court concluded that the Probation Act's confidentiality provisions take precedence over general FOIA disclosure requirements.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=124216","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:56.814765","site_category":"General Records Exemptions","date_decided":"1986-12-29","site_url":"/cases/pre1996-124216/","text_url":"/case-text/pre1996-124216.txt","full_text":"THOMAS WILLIAM SMITH, Plaintiff-Appellant, v. THE COOK COUNTY PROBATION DEPARTMENT et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 85-1278\nOpinion filed December 29, 1986.\nThomas W. Smith, of Menard, for appellant, pro se.\nRichard M. Daley, State’s Attorney, of Chicago (Henry A. Hauser, Susan Condon, and Sean R Fitzgerald, Assistant State’s Attorneys, of counsel), for appellees.\n\nJUSTICE CAMPBELL\ndelivered the opinion of the court:\nPro se plaintiff, Thomas Smith, appeals from the dismissal of his petition for disclosure of his probation records, filed pursuant to the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). The sole issue on appeal is whether the trial court erred in granting defendants’ motion to dismiss on the ground that probation records held by the Cook County probation department (the department) are exempt from disclosure under the FOIA.\nThe pleadings indicate that on August 28, 1984, plaintiff mailed a letter to Richard G. Napoli, chief probation officer of the department, requesting copies of records regarding his 1972 and 1973 probations and his 1976 violation of a probation warrant. When plaintiff failed to receive the records, he filed an administrative appeal with the Department pursuant to sections 9(a) and 10(a) of the FOIA. After waiting more than three months for a response, plaintiff filed his petition for disclosure of records in the circuit court of Cook County. Subsequently, defendants moved to dismiss on the ground that probation records are not “public records” within the meaning of the FOIA. The trial court granted defendants’ motion, and plaintiff’s timely appeal followed.\nSection 1 of the FOIA provides that the statute “shall be the exclusive State statute on freedom of information, except to the extent that other State statutes might create additional restrictions on disclosure of information.” Section 3(a), read in conjunction with section 7, provides a similar exception to the general disclosure principles of the FOIA. Section 3(a) mandates that “[ejach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” Section 7, in turn, specifically exempts from inspection and copying “[ijnformation specifically prohibited from disclosure by Federal or State law or rules and regulations adopted pursuant thereto.” With respect to the facts of this case, section 12 of “An Act providing for a system of probation *** ” of the Code of Criminal Procedure of 1963 (the Probation Act) (Ill. Rev. Stat. 1985, ch. 38, par. 204 — 4(4)), is the State law which specifically prohibits disclosure of probation records except for “inspection by any judge or by any probation officer pursuant to order of court” or by further “order of court” and expressly states that probation records are not public records.\nBased upon the aforementioned, we find that the trial court properly granted defendant’s motion to dismiss. In our opinion, section 12 of the Probation Act, read in conjunction with the FOIA, specifically limits the disclosure of probation records to situations which do not encompass the facts at bar.\nIn addition, predicated on our determination that the language of the aforementioned statutes is plain and unequivocal, we decline to address plaintiff’s arguments requesting judicial construction. (See Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.) Further, we find that plaintiff’s reliance on article 8 of the 1970 Illinois Constitution (Ill. Const. 1970, art. VIII) for his argument that he has a constitutional right to the probation records is misplaced. Article 8 specifically addresses the disclosure of records which detail the use of public funds. In our view, probation records do not fall within this category.\nAccordingly, we affirm the judgment of the circuit court of Cook County.\nAffirmed.\nQUINLAN, P.J., and BUCKLEY, J., concur.\nPlaintiff has been incarcerated in the Menard Correctional Center, Menard, Illinois, since his arrest in October, 1978."}
{"dedup_key":"pre1996-124749","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"154 ill-app-3d 899","case_name":"Wayne Township Board of Auditors v. Ludwig","court_level":"Appellate","appellate_district":"2nd","year":1987,"county":null,"appellate_docket":"2-86-0143","circuit_docket":null,"published":1,"authoring_justice":"Inglis","statute":["FOIA"],"exemptions_cited":[],"public_body":"Wayne Township Board of Auditors","requesting_party":"Wayne Township Board of Auditors","disposition":"reversed_in_part","relevance":"mention_only","summary_source":"generated","summary":"The case concerns a dispute over attorney fees following a mandamus action regarding access to township records; while the underlying dispute involved FOIA-related access to public records, the appellate holding is limited to the recovery of attorney fees.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=124749","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:57.096615","site_category":"Fees & Burdensome Requests","date_decided":"1987-04-17","site_url":"/cases/pre1996-124749/","text_url":"/case-text/pre1996-124749.txt","full_text":"THE WAYNE TOWNSHIP BOARD OF AUDITORS et al., Plaintiffs-Appellants and Cross-Appellees, v. GERALD P. LUDWIG, Clerk of Wayne Township, Defendant (Roy D. Paeth, Supervisor, Treasurer, and Trustee of Wayne Township, Defendant-Appellee and Cross-Appellant).\nSecond District\nNo. 2—86—0143\nOpinion filed April 17, 1987.\nJohn F. Garrow, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellants.\nStuart L. Whitt and Susan S. Russo, both of Matthews, Dean, Simantz, Hem & Whitt, of Aurora, for appellee.\n\nJUSTICE INGLIS\ndelivered the opinion of the court:\nThis appeal arises from an award of attorney fees to defendant in a rule to show cause proceeding.\nOn September 28, 1983, the plaintiffs, Wayne Township board of auditors (board), and certain members of the board individually, brought a complaint for mandamus against defendant Gerald P. Ludwig (Ludwig), in his official capacity as clerk of Wayne Township. The complaint alleged that Ludwig denied them access to public records of the township, specifically records relating to expenditure of public funds. The board argued that access to the records was necessary to comply with their statutory obligation of auditing receipts and disbursements. The complaint alleged that Ludwig had failed to, among other things, respond to oral and written requests to produce records. Furthermore, it was alleged that Ludwig had permitted unauthorized persons access to the records and had permitted the removal of records from township offices.\nOn February 6, 1984, the members of the board and Ludwig entered into an agreed order and stipulation to dismiss which provided that Ludwig would be the sole custodian of the public records and would allow open and ready access to township trustees and members of the public. The order further provided that Ludwig and his assistant would be the only persons having control and possession of the records and would be the only persons having keys to cabinets where the records were stored. The court retained jurisdiction of the mandamus case for insuring compliance with the order.\nSubsequently, the trustees were denied access to certain records consisting of claim sheets, bills, bank statements, checkbooks, and other documents needed by the trustees to make a financial audit. On June 5, 1984, the township attorney wrote a letter to Ludwig outlining his responsibility to produce required public records. The attorney enclosed a copy of the Freedom of Information Act (111. Rev. Stat., 1984 Supp., ch. 116, par. 201 et seq.) and mailed copies of the letter and act to each member of the board.\nOn June 15, 1984, Ludwig sent a letter to Roy D. Paeth (Paeth), supervisor, treasurer, and trustee of Wayne Township, requesting that certain records in Paeth’s possession be returned to the clerk’s office. On June 25, 1984, Ludwig again wrote to Paeth requesting the return of township records. On July 3, 1984, the township attorney wrote to Ludwig requesting that the records in Paeth’s possession be turned over to the board since they were official records subject to the agreed order entered in the mandamus action and were also required to be produced under the Illinois Freedom of Information Act.\nOn July 20, 1984, Mary Richardson (Richardson), a member of the board, sent a letter to Ludwig and Paeth requesting certain records needed to complete the audit. In response to this request, Paeth supplied Richardson with some documentation and handwritten answers to her inquiries. On July 25, 1984, Ludwig wrote Paeth again requesting the return of records in Paeth’s possession. This letter also advised Paeth that his failure to produce these records would result in litigation.\nOn July 26, 1984, the board convened a public meeting at which time the records were again requested. No records were produced at that time. On July 28, 1984, Paeth provided Ludwig with a key to his office. Six days later, the records were again requested at another public meeting held by the board.\nOn August 3, 1984, Richardson filed a petition for a rule to show cause why Ludwig should not be held in contempt for noncompliance with the mandamus order. The trial court ordered Ludwig to respond and scheduled a hearing for August 22, 1984. Ludwig filed a response to the petition alleging that he was unable to provide access since the records sought were in Paeth’s possession. On August 22, 1984, Ludwig appeared for hearing and told the court that the records sought were in Paeth’s possession. The trial court issued a subpoena commanding Paeth to appear and produce the requested records in court on the following day.\nOn August 23, 1984, all the parties, including Paeth, appeared for an informal conference at which time Paeth produced four boxes of records. The trial court entered an order providing for a meeting of the board at the township offices on September 1, 1984, to inspect the records. The order also provided that Ludwig hold all records of the township. At the September 1, 1984, meeting, Paeth surrendered 16 more boxes of records. Subsequent testimony indicated that none of the records produced were inspected at this meeting.\nOn September 2, 1984, Ludwig entered Paeth’s office and found additional records which were not produced on the previous day. Ludwig later obtained a recorded statement from Paeth that all the records had been turned over to the board. At the time of this statement, the additional records were still in Paeth’s office. Subsequent testimony from a member of Paeth’s staff indicated that all of the records required by the court were produced on August 23, 1984. The witness explained that the records found on September 3, 1984, were part of a special payroll project authorized by Ludwig.\nOn September 12, 1984, Ludwig and his attorney appeared in court and told the trial court that Paeth had refused to surrender certain records. The court entered an order that a summons issue naming Paeth as a party defendant and requiring him to appear on September 14, 1984, to show cause why he should not be held in contempt for failure to comply with the subpoena duces tecum served previously.\nOn September 14, 1984, all parties appeared, and an order was entered dismissing Ludwig as a defendant on the motion of the plaintiffs. A hearing was conducted on the rule to show cause against Paeth. At this hearing, evidence was presented that a township employee had misappropriated funds and the board was attempting to conduct an audit regarding this misappropriation. Evidence was also presented that the records sought were necessary to conduct the audit. Testimony presented established the above facts, and the hearing was continued to October 5,1984.\nOn October 5, 1984, the board rested its case on the petition, and the hearing was continued to October 26, 1984, for Paeth’s defense. On October 26, 1984, Paeth requested a continuance pending completion of an independent audit. The hearing was continued an additional five times over the board’s objection. On April 15, 1985, the court entered an order dismissing the rule to show cause and discharging Paeth. Paeth’s attorneys subsequently submitted bills for attorney fees to the board which the board failed to pay.\nOn July 30, 1985, Paeth filed a petition for attorney fees, to which the board responded and stated affirmative defenses. On December 19, 1985, the court allowed Paeth’s petition and ordered that fees be paid out of township funds for services rendered through April 15, 1985. The order denied Paeth’s request for fees incurred subsequent to that date. The board filed a post-trial motion for reconsideration, and, after hearing, the trial court entered an order dated January 28, 1986, denying the board’s motion and amending its previous order to require that the board pay $24,959.38 to Paeth’s attorneys. In addition, Paeth was required to personally pay $6,765.25 to his attorneys.\nThe board filed a notice of appeal on February 18, 1986. The board appeals the judgment entered on January 28, 1986, and requests that this court vacate the judgment or, in the alternative, remand the case to the trial court with instructions to the trial judge to deny the petition for fees or to grant a new hearing. Paeth has filed a cross-appeal requesting that this court vacate that portion of the trial court’s order denying Paeth attorney fees incurred subsequent to April 15, 1985. Paeth asks this court to remand the case to the trial court with instructions to enter judgment in his favor for all legal fees, costs, and expenses, including those incurred in litigating this appeal.\nThere are two issues presented for review: (1) whether the trial court erred in awarding attorney fees to Paeth for services rendered up to and including his April 15, 1985, dismissal on the rule to show cause, and (2) whether the trial court erred in denying Paeth’s petition for attorney fees incurred subsequent to the trial court’s order of April 15, 1985. We affirm the trial court’s decision on the first issue and reverse as to the second.\nAwards of attorney fees are within the discretion of the trial court, and a court of review should not disturb an award absent an abuse of discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299; In re Estate of Healy (1985), 137 Ill. App. 3d 406, 411.) The trial judge, as trier of fact, is in a superior position to hear and weigh the evidence and to determine the credibility and demeanor of witnesses. Accordingly, a court of review should not reverse the court’s judgment unless the findings are clearly and palpably contrary to the manifest weight of the evidence. (In re Estate of Elson (1983), 120 Ill. App. 3d 649, 655.) For a finding or judgment to be against the manifest weight of the evidence, an opposite conclusion other than that reached must clearly be correct. 120 Ill. App. 3d 649, 655.\nThe board contends that the Township Law of 1874 (Township Act) (111. Rev. Stat. 1985, ch. 139, par. 126.1) grants the board the sole authority to employ and compensate legal counsel for the town and town officers. The board maintains that the trial court erred in awarding fees to Paeth since the board had specifically refused to employ counsel to represent him. The board further contends that the trial court erred since Paeth presented no evidence during the rule to show cause proceedings that his actions were legal and within his official capacity; therefore, no legal basis for an attorney fee award exists. Alternatively, the board argues that if such a basis exists, the decision reached was against the manifest weight of the evidence.\nPaeth responds that the rule to show cause proceedings are not relevant to whether or not the award of attorney fees was correct, and that even if relevant, there is an adequate basis in the record for the trial court’s findings. Paeth further contends that he is entitled to attorney fees for litigating the fee petition and in prosecuting this appeal.\nInitially, we note that the board has failed to include in the record a transcript of proceedings on Paeth’s fee petition. An appellant has the burden to present a sufficiently complete record of proceedings at trial to support his claim of error, and in the absence of such a record on appeal, it is presumed that the order entered by the trial court is in conformity with the law and has a sufficient factual basis. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.) Since the board claims error on the fee award, this court may, in the absence of a proper record on these proceedings, dismiss the board’s appeal (Farley v. Blackwood (1978), 56 Ill. App. 3d 1040, 1043-44; Lill Coal Co. v. Bellario (1975), 30 Ill. App. 3d 384, 385), or, in the alternative, summarily affirm the trial court’s decision (Portock v. Freeman (1977), 53 Ill. App. 3d 1027, 1032). Paeth contends that the Board omitted transcripts of the fee petition proceedings because it did not present any evidence in support of its affirmative defenses. Where a party fails to present evidence in support of its affirmative defenses, these defenses are deemed waived. (Baylor v. Thiess (1971), 2 Ill. App. 3d 582, 584.) Therefore, Paeth argues that the board may not properly challenge the trial court’s award. In the alternative, Paeth argues that the attorney fee award is proper under Blinois law. On the basis of the record presented, we find adequate grounds for a fee award.\nFirst, we disagree with the board’s contention that Paeth was without authority to hire an attorney. Section 126.1 of the Township Act provides, inter alia, that the township board of trustees may employ and fix the compensation of a township attorney. (111. Rev. Stat. 1985, ch. 139, par. 126.1.) In the instant case, the board, represented by the township attorney, has brought an action against Paeth in his official capacity as a township officer. Paeth contends that he is entitled to employ independent counsel to represent him in this action since the township attorney is representing the board. We agree.\nIn support of his contention, Paeth cites “An Act to provide for representation and indemnification in certain civil law suits” (State Act) (111. Rev. Stat. 1985, ch. 127, par. 1302). Generally, the State Act provides that the Attorney General should represent and indemnify State employees for civil suits brought against them for any act or omission occurring within the scope of the employee’s State employment. (111. Rev. Stat. 1985, ch. 127, par. 1302.) The State Act further provides that in the event the Attorney General determines that appearing and defending an employee either (1) involves an actual or potential conflict of interest, or (2) that the act or omission which gave rise to the claim was not within the scope of the employee’s State employment, the Attorney General should decline to appear or defend or shall promptly take appropriate action to withdraw as attorney for the employee. Upon the occurrence of one of these events, the State employee may employ his own attorney to appear, and the State shall pay the employee’s reasonable court costs, litigation expenses, and attorney fees. (111. Rev. Stat. 1985, ch. 127, par. 1302.) Similarly, wherever an Attorney General or State’s Attorney is interested in any cause or proceeding in which he has a duty to prosecute or defend, the court may appoint an attorney to prosecute or defend the proceeding in his place. (111. Rev. Stat. 1985, ch. 14, par. 6.) We believe these same principles should apply to the facts of this case. Accord, Franks v. Township of Riley (1977), 50 Ill. App. 3d 99.\nIn Franks, a township highway commissioner hired a law firm to provide him with legal advice. (50 Ill. App. 3d 99, 100.) The township board had not authorized the commissioner to hire the firm and refused to pay the firm’s legal fees incurred in representing the highway commissioner. (50 Ill. App. 3d 99, 100.) The law firm brought an action against the township to recover fees. (50 Ill. App. 3d 99, 100.) The plaintiffs argued that a highway commissioner is entitled to legal assistance in order to carry out his statutory duties and may employ an attorney whenever legal services are reasonably necessary for handling the affairs of his office. (50 Ill. App. 3d 99, 100.) The plaintiffs further argued that as a result of conflicting positions arising between the township and the highway commissioner, each party should be entitled to receive independent advice and counsel. (50 Ill. App. 3d 99, 100.) The trial court dismissed the plaintiff’s complaint. On appeal, the court agreed that the highway commissioner was entitled to hire an attorney. (50 Ill. App. 3d 99, 100.) However, the court concluded that the facts presented did not give rise to a conflict of interest sufficient to justify hiring independent legal counsel. 50 Ill. App. 3d 99, 101.\nIn the instant case, an actual conflict exists between the town board and one of its officers. Since the board is represented by the township attorney, the town officer is entitled to be represented by independent counsel. Therefore, we conclude that Paeth was entitled to hire independent counsel to represent him in the proceeding brought against him by the board. See Franks v. Township of Riley (1977), 50 Ill. App. 3d 99, 101.\nFurthermore, we believe that Paeth is entitled to reasonable attorney fees incurred in the defense of that action since it was brought against him in his official capacity. The board argues that the trial court erred in awarding attorney fees to Paeth because Paeth presented no evidence that the fees were incurred in litigation resulting from the performance of his official duties. The board alleges that Paeth’s refusal to surrender certain records to the board on its request was contrary to fundamental principles of Illinois law governing production of public records and was, therefore, outside his official duties. Specifically, the board argues that Paeth violated provisions of the Illinois Constitution (111. Const. 1970, art. VIII, sec. 1(c)), the State Records Act (111. Rev. Stat. 1983, ch. 116, par. 43.6), the Local Records Act (111. Rev. Stat. 1983, ch. 116, par. 43.103a), the Township Act (111. Rev. Stat. 1983, ch. 139, pars. Ill, 112, 126), and the Freedom of Information Act (111. Rev. Stat., 1984 Supp., ch. 116, par. 201 et seq.). The board contends that despite his knowledge of these provisions, and repeated requests to produce public records, Paeth withheld township records. The board concludes that since the attorney fees were incurred in litigation resulting from Paeth’s failure to comply with Illinois law, they should not be allowed.\nPaeth responds that the litigation in this case was brought against him in his official capacities as supervisor, treasurer, and trustee of Wayne Township and that he is entitled to attorney fees incurred in defending an action brought against him in the name of his office. We agree.\nWhen a suit is brought against an officer of a township seeking to bind him in his official capacity, he must be sued in his official and not in his individual capacity. If it is the plaintiff’s intent, as it apparently was in the instant case, to bind the defendant’s office, the suit must be brought against the officer in his official capacity. See McMechan v. Yenter (1922), 301 Ill. 508, 511-12; Blazer v. Highway Commissioner (1968), 93 Ill. App. 2d 89, 94.\nIn the instant case, the trustees of the township brought an action against Paeth, in his official capacity, to compel him to produce certain records of the township. The records were in Paeth’s possession for the purposes of carrying out his duties as treasurer. We conclude that Paeth should be entitled to reasonable attorney fees incurred as a result of defending those proceedings.\nWe disagree with the board’s contention that the trial court’s decision was against the manifest weight of the evidence. The board maintains that its presentation of evidence that Paeth failed to comply with Illinois law, the subpoena duces tecum, and the mandamus order, coupled with Paeth’s failure to present any contrary evidence, provides this court with a sufficient basis for reversal. In response, Paeth argues that the record provides an adequate basis for the trial court’s award. We agree.\nAs stated above, for a decision to be against the manifest weight of the evidence, it must be palpably erroneous such that an opposite conclusion other than that reached is clearly correct. (In re Estate of Elson (1983), 120 Ill. App. 3d 649, 655.) In reviewing decisions of the trial court, the object is not to determine whether the record is free from error, but, rather, to ascertain whether a just conclusion has been reached by the trial court. (Chicago Title & Trust Co. v. Village of Lombard (1960), 19 Ill. 2d 98, 108.) A reviewing court may consider the entire record and should affirm the trial court if any basis exists therein for so doing. Northern Trust Co. v. Winston (1975), 32 Ill. App. 3d 199, 208.\nA thorough review of the record in this case provides more than an adequate basis for the trial' court’s decision. Paeth produced 20 boxes of records upon command of the court. In addition, testimony elicited in the rule to show cause proceedings indicated that none of the records produced by Paeth were examined by the board to determine whether they were among the records sought. Furthermore, the witnesses presented by the board were cross-examined by Paeth’s attorney. The trial judge received the evidence, judged the credibility of witnesses, and determined the weight to be accorded to their testimony., At the conclusion of the board’s presentation of evidence, the trial court dismissed the rule to show cause and discharged Paeth on the subpoena duces tecum.\nIn a civil contempt proceeding, the burden of,proving , that the defendant is in contempt is on the party bringing the action. The defendant must be shown guilty of the accusation by at least a preponderance of the evidence. (People ex rel. Rusch v. Fusco (1947), 397 Ill. 468, 470; City Savings Association v. Mensik (1970), 124 Ill. App. 2d 34, 41.) In the instant case, the trial court dismissed the rule to show cause after the board’s presentation of evidence. The facts presented do not lead to a contrary conclusion. Therefore, we must affirm the decision of the trial court to award fees up to and including the April 15, 1985, hearing. See In re Estate of Elson (1983), 120 Ill. App. 3d 649, 655.\nThe second issue raised by this appeal is whether the trial court erred when it denied Paeth attorney fees incurred subsequent to the April 15, 1985, dismissal of the rule to show cause. Subsequent proceedings for which fees are sought include hearings on Paeth’s petition for fees and defending this appeal. Paeth argues that he is entitled to fees incurred throughout the litigation, including those fees encountered in litigating the fee petition and in defending this appeal.\nThe board fails to address this issue except by its general contentions, addressed above, that there is no legal basis for fees and that, in the alternative, an award of attorney fees is against the manifest weight of the evidence. Having determined these contentions to be without merit, we will turn to Paeth’s right to fees subsequent to his defense of the rule to show cause proceedings.\nGenerally, attorney fees and ordinary expenses of litigation are not recoverable unless authorized by statute. (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 51-52.) Where costs are authorized by statute, they must be confined to those expenses necessarily incurred in prosecuting or defending the primary action. 42 Ill. 2d 45, 52.\nHere, section 126.1 of the Township Act provides that a town board of trustees may hire and compensate an attorney to represent the town. (111. Rev. Stat. 1985, ch. 139, par. 126.1.) Furthermore, we have determined that where there is a conflict of interest between the township attorney and a town officer, the officer is entitled to hire independent counsel to represent him and that the officer’s attorney fees shall be paid by the town. See Franks v. Township of Riley (1977), 50 Ill. App. 3d 99, 101.\nIn the instant case, Paeth successfully defended a civil contempt proceeding brought against him by the town board, which was represented by the township attorney. To obtain fees authorized by statute, Paeth’s attorneys submitted bills to the township over a three-month period. Subsequently, when the submitted bills were not paid, it became necessary for Paeth to bring a petition for attorney fees incurred in the previous litigation. Paeth was required to prepare for evidentiary hearings on his petition and was also required to defend a post-trial motion brought by the board on the petition. Finally, Paeth was required to defend this appeal in order to vindicate the rights he was given in the trial court.\nIt is apparent from the record that services rendered to Paeth subsequent to the April 15, 1985, dismissal of the rule to show cause were significantly tied to vindication of his rights in that litigation. The township is refusing to pay attorney fees for which they are responsible under statute. Prosecution to enforce Paeth’s right to fees is necessary to enforce the statute.\nThe proper court to determine the appropriateness of awarding attorney fees on appeal is the appellate court which hears the appeal. (Village of Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35, 44.) We believe that the fees incurred in the proceedings to enforce the town’s statutory obligation to pay for costs of litigation are recoverable. Holding otherwise would dilute the effect of the statute by requiring successful litigants to incur additional costs to enforce their rights.\nAccordingly, we affirm the decision of the trial court to the extent that it awards Paeth attorney fees incurred in defending the rule to show cause proceeding up to and including April 15, 1985. Furthermore, we reverse the trial court’s order denying fees for proceedings subsequent to April 15, 1985, and remand this cause to the trial court with instructions to award Paeth reasonable attorney fees incurred for prosecuting his petition for fees and in defending this appeal.\nAffirmed in part; reversed in part.\nDUNN and REINHARD, JJ., concur."}
{"dedup_key":"pre1996-138575","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"245 ill-app-3d 474","case_name":"Carbondale Convention Center, Inc. v. City of Carbondale","court_level":"Appellate","appellate_district":"5th","year":1993,"county":null,"appellate_docket":"5-92-0143","circuit_docket":null,"published":1,"authoring_justice":"Goldenhersh","statute":["FOIA"],"exemptions_cited":["7(1)(a)"],"public_body":"City of Carbondale","requesting_party":"Southern Illinoisan","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that a trial court's confidentiality order (gag order) does not constitute 'State law' under the FOIA exemption for information specifically prohibited from disclosure by federal or state law. Consequently, the City could not rely on the court order to deny a FOIA request for a settlement agreement.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=138575","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:58.127511","site_category":"General Records Exemptions","date_decided":"1993-05-27","site_url":"/cases/pre1996-138575/","text_url":"/case-text/pre1996-138575.txt","full_text":"CARBONDALE CONVENTION CENTER, INC., et al., Plaintiffs-Appellees, v. THE CITY OF CARBONDALE, Defendant-Appellee (Illinois Press Association et al., Interveners-Appellants).\nFifth District\nNo. 5 — 92—0143\nOpinion filed May 27, 1993.\nLEWIS, J., specially concurring.\nDonald M. Craven, of Donald M. Craven, P.C., of Springfield, for appellant Illinois Press Association.\nMichael L. Wepsiec, City Attorney, of Carbondale, for appellee City of Carbondale.\nCharles C. Hines, of Carbondale, for other appellees.\n\nJUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nPlaintiff, Carbondale Convention Center, Inc., brought this action against defendant, City of Carbondale, for breach of contract. The parties agreed to settle the matter on August 17, 1990, and sought an order of dismissal from the trial court. On September 6, 1990, the Southern Illinoisan newspaper in Carbondale requested a copy of the settlement agreement. On September 19, 1990, the trial court entered an order of dismissal which contained the following provision at the request of the parties:\n“It is the further Order of this Court that neither the parties to this litigation, nor their agents, representatives, employees, successors or assigns may disclose to anyone the terms or conditions constituting the resolution of the dispute between the parties.”\nAfter the order was entered, defendant denied the Southern Illinoisan’s request under the Freedom of Information Act (the Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.), relying on the court’s order as the basis for its denial. On October 18, 1990, the Illinois Press Association, the Southern Illinoisan newspaper, and Tracy James, a reporter for the Southern Illinoisan, filed a petition to intervene. The trial court granted their petition, and the intervenors then filed a complaint in intervention, requesting that the gag order be vacated and requesting production of the settlement agreement pursuant to the Act. Both plaintiff and defendant moved to dismiss the complaint in intervention. On June 19, 1991, the trial court granted the motion to dismiss, finding that the gag order was entered at the request of the parties and that section 7(l)(bb) of the Act exempts the settlement agreement, from disclosure. (Ill. Rev. Stat. 1989, ch. 116, par. 207(l)(bb).) The issues on appeal are: (1) whether the Act requires release of settlement documents; and (2) whether the gag order is unconstitutional. We reverse and remand.\nThe first question we will address is whether the Act mandates defendant to release the documents regarding the settlement agreement between plaintiff and defendant. Defendant does not contend that the Act does not apply to it. Section 1 of the Act provides, in pertinent part:\n“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.)\nThere is a presumption that public records be open and accessible, subject only to exemptions that are to be narrowly construed. (Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 378, 538 N.E.2d 557, 559.) Although section 7 of the Act provides an extensive list of exemptions to disclosure, the burden of proof is on the governmental agency to establish that the documents in question are exempt from disclosure. (Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 535, 548 N.E.2d 1110, 1113.) “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.) (192 Ill. App. 3d at 537, 548 N.E.2d at 1114.) Defendant denied the interveners’ request just after the trial court entered the gag order, citing section 7(lXa) as an applicable exemption to the Act. That section provides:\n“(1) The following shall be exempt from inspection and copying:\n(a) Information specifically prohibited from disclosure by Federal or State law or rules and regulations adopted pursuant thereto.” Ill. Rev. Stat. 1989, ch. 116, par. 207(lXa).\nDefendant asserts that the trial court’s dismissal order strictly prohibits defendant from disclosing the terms or conditions of the settlement agreement, and that such an order constitutes State law. Assuming for purposes of this argument and without so holding that such an order is a “State law,” we find this position incompatible with the intent of the Act. In the case at bar, defendant requested the court to impose the gag order. Therefore, the “State law” defendant asserts as exempting disclosure of the agreement exists, in part, as a result of defendant’s efforts to prevent disclosure of the agreement. Since such an action contradicts the purpose and intent of the Act under which the exemptions are intended as shields rather than swords, we hold section 7(l)(a) does not apply as a possible exemption in this case.\nDefendant states in a supplemental memorandum in support of its motion to dismiss and/or strike complaint of intervention that sections 7(l)(b) and 7(l)(bb) of the Act are applicable exemptions to its disclosure of the settlement documents. Section 7 reads as follows, in pertinent parts:\n“§7. (1) The following shall be exempt from inspection and copying:\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy ***.\n(bb) Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.’’ (Ill. Rev. Stat. 1989, ch. 116, pars. 207(lXb), (lXbb).)\nDefendant did not support these assertions with any affidavits or proof of any kind, however, and did not provide a detailed justification for its claim of exemption. Defendant therefore failed to meet its burden of proof that either exemption applies. Accordingly, the trial court erred in finding that section 7(l)(bb) exempts defendant from disclosing the settlement documents. Whether section 7(l)(bb) or any other exemption applies to this matter must be proven by defendant with more than just an assertion. Dismissal of intervenors’ complaint was in error, and we hereby reverse the trial court’s order and remand this cause to the trial court for a hearing to determine whether defendant is exempted from providing intervenors the information they seek under the Act.\nSince we have resolved this appeal on the basis of the Act, we need hot address the constitutionality of the gag order.\nFor the foregoing reasons, the order of the circuit court of Jackson County dismissing intervenors’ complaint is reversed, and the cause is remanded for a hearing.\nReversed and remanded.\nMAAG, J., concurs.\n\nLEWIS, J.,\nspecially concurring:\nWhile I agree with the majority that the Freedom of Information Act (the Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.) should be available to a government only as a shield from requests for information from the citizenry rather than to be used as a sword by the government to block legitimate requests for information, I believe that we should construe section 7(lXa) and answer the City of Carbon-dale’s assertion that the gag order is “State law,” and thus information prohibited to be disclosed by the gag order is exempt under the Act.\nFurther, one might misinterpret the majority opinion as saying that a government cannot make any effort in court to prevent disclosure of information that is shielded by the Act or else such information would become nonexempt. I am sure that the majority opinion is not intended to prohibit a government from actively defending and legitimately shielding itself from disclosure of information exempted under the Act.\nThe city argues that Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d Ill, 371 N.E.2d 373, holds that court orders are law and thus become “State law” under the Act. Debolt might correctly hold that court orders are law, but it takes a giant leap in logic to conclude that the legislature intended under section 7(lXa) of the Act that court orders were the type of “State law” the legislature had in mind. Debolt points out: “[W]e do not deem the making of law by judicial decree to be a desirable practice per se but should be limited to instances when humanitarian needs dictate the necessity of judicial action or when legislative bodies for an unreasonably long time refuse to enact statutory law for the purpose of coping with an enduring and festering problem.” (Debolt v. Mutual of Omaha, 56 Ill. App. 3d at 116-17, 371 N.E.2d at 378.) It is difficult to comprehend how the need for and the creation of the torts of intentional infliction of severe emotional distress or retaliatory discharge by the courts would justify the transmutation of improper gag orders into “State law,” thereby becoming an exemption under the Freedom of Information Act.\nThe city’s argument leads to a variation of the Catch 22 situation: The city requests a gag order to prohibit a citizen from validly obtaining information. The trial judge protests and says that such an order is improper and illegal under the Act. The city attorney then tells the judge: “All you have to do to make the order legal is to sign the order and your improper and illegal order becomes ‘State law’ and legal.” If one were to carry this argument to the extreme, all information regarding the affairs of government would be legally exempt from disclosure as long as the government could find a judge to sign an order prohibiting disclosure.\nFinally, the city’s argument prevents review by the appellate courts as to the correctness of the trial judge issuing the gag order in the first instance. If the gag order is “State law,” how could this court invalidate the law (excluding constitutional grounds) regardless of how wrong the law or court order may be? The Act is very clear that information specifically prohibited by Federal or State law is exempted and thus the appellate courts would be at a loss for grounds to overturn a “State law.”\nThe legislature would surely be surprised to learn that every time a statute contained the words “State law” it included all trial court orders construing such. If we were to follow the city’s reasoning, the legislature would have to make a specific exclusion of court orders every time it used the words “State law”; otherwise, the courts could rewrite the legislation any way the courts deemed best. I am sure that the relations between the judiciary and the legislature would not be ameliorated by such a ruling.\nOur holding should be that “State law” as used in section 7(l)(a) of the Act does not include court gag orders."}
{"dedup_key":"pre1996-126805","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"168 ill-app-3d 101","case_name":"Bowie v. Evanston Community Consolidated School District 65","court_level":"Appellate","appellate_district":null,"year":1988,"county":null,"appellate_docket":"87-0580","circuit_docket":null,"published":1,"authoring_justice":"Freeman","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Evanston Community Consolidated School District 65","requesting_party":"Cheryl Bowie, James Roberts, and Vanessa Gray","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the school district must provide requested test score records after redacting personally identifiable information, as masking such data does not constitute the creation of a new record. The case was remanded to determine if the plaintiffs qualify for a waiver or reduction of reproduction fees under the FOIA.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=126805","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:58.127620","site_category":"FOIA Response Process","date_decided":"1988-03-16","site_url":"/cases/pre1996-126805/","text_url":"/case-text/pre1996-126805.txt","full_text":"CHERYL ROWIE et al., Plaintiffs-Appellants, v. EVANSTON COMMUNITY CONSOLIDATED SCHOOL DISTRICT 65 et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 87—0580\nOpinion filed March 16, 1988.\nDavid T. Erie, of Chicago, for appellant.\nJohn A. Relias, Lawrence J. Casazza, and Charles P. Rose, all of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellees.\n\nJUSTICE FREEMAN\ndelivered the opinion of the court;\nPlaintiffs, Cheryl Bowie, James Roberts, and Vanessa Gray, appeal the dismissal of their complaint by the circuit court of Cook County. Plaintiffs’ complaint for declaratory and injunctive relief under the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) sought access to standardized California Achievement Test score records for students in certain grades and schools within defendant school district and a list of educational programs available in those schools.\nDefendants maintain the subject records in the form of a “Report of Test Results” for each school year, school, and grade within each school. The reports contain each student’s name, sex, race, and his or her raw score and percentile rank in 11 testing categories on the standardized California Achievement Test. Each report also contains the total and average test scores by school, grade, race and sex for the categories of “Total Students,” “Total Black Boys,” “Total Black Girls,” “Total Other Boys” and “Total Other Girls.” The sex and race of each student is represented by a digit from 1 to 10, each digit standing for a separate sex and race combination. For instance, the digit 1 stands for White Male, the digit 4 for Black Female, and the digit 9 for Hispanic Male. This digit appears in a vertical column with the heading “S/R” immediately after a vertical column listing the name of each student and immediately before 11 vertical columns in which each student’s performance is detailed so that the name, sex, race and performance of each student is shown on the same horizontal line.\nDefendant Evanston Community Consolidated School District 65 (school district), through defendant Eugene Mulcahy, its superintendent, denied plaintiffs’ request for the subject records on the ground that they were exempt from disclosure under section 7 of the Freedom of Information Act. Section 7 provides, inter alia:\n“The following shall be exempt from inspection and copying:\n(a) Information specifically prohibited from disclosure by Federal or State law or rules and regulations adopted pursuant thereto.\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information.” (Ill. Rev. Stat. 1985, ch. 116, par. 207.)\nDefendant Mulcahy claimed that section 6(a)(8) of the Illinois School Student Records Act prohibited the disclosure of the subject records without the written consent of the parents of the students concerned. (Ill. Rev. Stat. 1985,. ch. 122, par. 50 — 6.) Defendants did supply plaintiffs certain information regarding the various educational programs conducted in the school district and claimed that it was all the information on such programs available.\nSubsequent to plaintiffs’ information requests, defendants publicly released a status report summarizing the 1985-86 student performance on the standardized California Achievement Test by district, school and race. The report contained the national percentile rank equivalents of average test scores for black and nonblack students in grades 1 through 5, 7 and 8 and the percentages of black and non-black students in those grades in the highest and lowest quartiles on various subjects tested on the California Achievement Test.\nPlaintiffs’ complaint alleged that defendants refused to supply the requested information without legal basis. Defendants moved for dismissal of the complaint under section 2 — 619(a)(9) of the Civil Practice Law. That section provides for the dismissal of an action because the claim asserted is barred by affirmative matter, other than that listed in subparagraphs 1 through 8, which defeats, or avoids the legal effect of, the claim asserted. (Ill. Rev. Stat. 1985, ch. 110, par. 2— 619(a)(9)). The trial court granted the motion as to plaintiffs’ request for the standardized test scores because it believed that plaintiffs had received “sufficient information” of the test scores through defendants’ release of the report containing average test scores for black and nonblack students. It also concluded that disclosure of the test scores would constitute an invasion of the privacy rights of the students whose test scores were the subject of plaintiffs’ request. Finally, the trial court concluded that defendants may not have supplied plaintiffs with sufficient information of the educational programs conducted in defendants’ schools and thus ordered them to give plaintiffs any supplemental information in their possession. The trial court dismissed plaintiffs’ complaint with prejudice.\nOpinion\nInitially, we must determine whether plaintiffs’ request for “scrambled,” i.e., alphabetically jumbled, records was properly before the trial court and is properly before this court. Plaintiffs’ complaint alleged they had repeatedly expressed a “willingness to accept masked records [i.e., with students’ names deleted] to protect the confidentiality of individual data.” Plaintiffs’ complaint prayed for, inter alia, an order requiring defendants to produce the requested documents and “such further relief as the [c]ourt deems just and reasonable.” Defendants assert that plaintiffs’ failure to request scrambling of the subject records in their complaint renders that request tardy and not properly before this court.\nIt has been held that, although a complaint prays for general relief, facts must be alleged which warrant the relief granted. (Failing v. Failing (1954), 4 Ill. 2d 11, 15, 122 N.E.2d 167.) It would seem, under this rule, that plaintiffs had alleged facts warranting the trial court, were it ultimately to have found for plaintiffs, to order defendants to produce the subject records in a masked format only. Given that defendants maintain the subject records alphabetically by students’ names, the necessity of scrambling the records to protect the students’ privacy is manifest. It would also seem, therefore, that the trial court properly dismissed the complaint inasmuch as masking of the students’ names would be inadequate to protect the students’ privacy.\nHowever, we believe there are other factors countervailing the rule that a complaint must allege facts warranting the relief granted. The first is the rule of section 2 — 603(c) of the Civil Practice Law that pleadings are to be “liberally construed with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 603(c).) The second is the rule of section 2 — 612(b) of the Civil Practice Law that “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim” against him. We also note, without basing our decision thereon, that section 2 — 612(c) provides that all defects in pleadings, in form or substance, not objected to in the trial court, are waived. (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 612(b), (c).) Applying these rules to plaintiffs’ complaint, we believe that it sufficiently informed defendants of the nature of plaintiffs’ claim to permit the trial court, if it had ultimately ruled for plaintiffs, to order defendants to produce the subject records in a scrambled, as well as masked, format. As such, plaintiffs’ failure to express a willingness to accept the requested records in a scrambled, as well as masked, format before filing suit and, thus, to allege that willingness in their complaint does not preclude them from asserting on appeal that scrambling and masking of the records would have protected the privacy of the students whose records they sought.\nWe next consider whether the trial court properly dismissed the complaint. Plaintiffs contend the trial court erred in ruling that disclosure of the subject records would violate the privacy of the students concerned because the records are not school student records under section 2(d) of the Illinois School Student Records Act (School Records Act). That section provides, inter alia:\n“ ‘School Student Record’ means any writing or other recorded information concerning a student and by which a student may be individually identified ***.” (Ill. Rev. Stat. 1985, ch. 122, par. 50 — 2(d).)\nSpecifically, they assert that masking and scrambling of the information in the records which allows the identification of individual students removes them from the ambit of section 2(d) of the School Records Act. As such, they assert, the parental consent requirement of section 6(aX8) of the Act for release of such records (Ill. Rev. Stat. 1985, ch. 122, par. 50 — 6(aX8)) is inapplicable here. Plaintiffs cite, in support, Human Rights Authority of the State of iLlinois Guardianship & Advocacy Comm’n v. Miller (1984), 124 Ill. App. 3d 701, 464 N.E.2d 833, which held that masked student educational program records of a school district do not fall within the Act’s definition of school student records.\nDefendants note that the records, requested for specific grades and schools, contain, in alphabetical order, the name, sex, race, raw score and percentile rank of each student in 11 testing categories. Masking, i.e., deleting the students’ names, alone, they reason, would not prevent identification of individual students inasmuch as a list of students could be obtained, arranged alphabetically by school and grade and matched to the records. Because masking alone would be inadequate, Miller is distinguishable, they conclude. Masking and scrambling would also be inadequate, they assert, because the records are coded for sex and race. They reason that, as any specific sex and race group would be identifiable, individual identification of students is so likely that parental consent to release the records is required under the School Records Act.\nWe do not believe the Freedom of Information Act allows a public body to refuse production of records or documents in its possession merely because they contain several items of information other than that sought which, if not masked, i.e., deleted, would allow the identification of the individuals to whom those records pertain and, thus, the invasion of their privacy. In this case, that information is the name, sex and race of the students whose records plaintiffs requested. We believe that “masking” of the information to prevent the identification of individual students includes, not only the deletion of the students’ names, but the deletion of their sexes as well. Deletion of students’ names and sexes and the scrambling of the alphabetical order of their scores would make their identification virtually impossible, notwithstanding the disclosure of their race. Moreover, Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 493 N.E.2d 1054, establishes defendants’ duty to mask all information other than that requested which would allow the identification of students.\nFamily Life League was an action under the State Records Act. (Ill. Rev. Stat. 1979, ch. 116, par. 43.4 et seq.) That act applies to all records prepared or received by State agencies prior to July 1, 1984, while the Freedom of Information Act applies to records and reports prepared or received on or after that date. (Ill. Rev. Stat. 1985, ch. 116, par. 43.29.) The plaintiffs in Family Life League sought, inter alia, a list of providers of abortions under the Illinois Medicaid program from the Illinois Department of Public Aid. The Department contended, inter alia, that the only records it kept contained confidential information, i.e., the names of abortion recipients, which it could not disclose, as well as the information the plaintiffs sought, and that it had no duty to create a new record omitting such information. The court rejected these arguments, stating:\n“This interpretation of the Act is at odds with the spirit and intent of the Act. *** The purpose of the Act is to open the State’s books to the light of public scrutiny. That purpose would be totally thwarted if an entire record could be kept closed simply by inserting some minute confidential information, particularly when the confidential information can be deleted as in the case at bar.” Family Life League, 112 Ill. 2d at 457-58.\nDefendants distinguish Family Life League on the grounds that the confidential information in the records here is not minute, was not inserted in them merely to keep the records closed and deletion and scrambling of the students’ names would not protect their privacy rights. These arguments are unavailing. Defendants’ refusal to delete the confidential information facilitating the identification of individual students, i.e., their names and sex, if upheld, would defeat the purposes of the Freedom of Information Act (see Ill. Rev. Stat. 1985, ch. 116, par. 201) as effectively as the refusal to delete the abortion recipients’ names in Family Life League would have defeated the purpose of the State Records Act. Moreover, in comparison to the substance of the subject records, the students’ names and sexes are minute items of information. The subject records, properly masked and scrambled, are not exempt from disclosure under the Freedom of Information Act. Accord Kryston v. Board of Education (1980), 77 A.D.2d 896, 430 N.Y.S.2d 688; Western Services, Inc. v. Sargent School District No. RE — 33J (Colo. App. 1986), 719 P.2d 355.\nIn Kryston, the New York Supreme Court, Appellate Division, held that the disclosure of standardized test scores maintained in alphabetical order would constitute an unwarranted invasion of personal privacy, a violation of the New York Freedom of Information Law, given that only 75 students were involved. The court also held, however, that the scrambling of the test scores would not constitute the preparation of a “ ‘record not possessed or maintained’ ” by the respondent, the preparation of such records not being required under the statute. (Cf Ill. Rev. Stat. 1985, ch. 116, par. 201 (the Freedom of Information Act is not intended to create an obligation on the part of any public body to prepare or maintain any public record not maintained or prepared at the time the Act becomes effective).) It also held that any doubt on that issue would be resolved in the petitioner’s favor, since public disclosure statutes are liberally construed to permit maximum access to documents. Finally, the court reasoned that disclosure of the test scores in a scrambled and masked format would protect the students’ privacy, provide the records sought, and impose no onerous burden on the respondents. Kryston, 77 A.D.2d at 897, 430 N.Y.S.2d at 689-90.\nDefendants’ reliance on their coding of the subject records by sex and race to distinguish Kryston is, as previously noted, unavailing. Also unavailing to them is the Kryston court’s finding that masking alone was insufficient to protect the students’ privacy given their small number. As previously noted, plaintiff’s here have, as the petitioner in Kryston had, a right to scrambled, as well as masked, records.\nMoreover, Western Services, Inc. and section 8 of the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 208) resolve the situation where the coding of the records, specifically for race, does make individual student identification likely due to a small number of students of a given race in a class.\nWestern Services held that the defendant school district had a duty under the Colorado public records act to mask and scramble standardized student test records and to code them to reflect the students’ Hispanic or Anglo origin. It also held that “the record[s] so structured do[ ] not constitute the ‘creation' of a new public record.” (Western Services, 719 P.2d at 358.) Finally, the court held that if the small number of students of Hispanic or Anglo origin in a class made their identification likely despite masking and scrambling of the records, the school district could obtain a court order restricting disclosure.\nThe Freedom of Information Act achieves the same result as Western Services. Section 8 thereof provides that if any public record exempt from disclosure under section 7 of the Act contains any nonexempt material, the exempt material shall be separated and the nonexempt material disclosed. (Ill. Rev. Stat. 1985, ch. 116, par. 208.) Thus, contrary to defendants’ argument, the subject records are not exempt from disclosure in their entirety merely because there may be so few students of one race and sex in a class as to make their identification likely. Rather, if masking and scrambling of the subject records does not prevent a likely identification of such students, defendants must separate the records exempted for that reason and disclose the remaining records. Finally, the determination of the parameters for establishing when such identification is likely is a matter for the trial court upon remand.\nPlaintiffs next contend the trial court erred in holding that the report containing average test scores for black and nonblack students sufficiently informed them of the requested information to satisfy their request. Specifically, they assert courts have no discretion under the Freedom of Information Act to determine that the release of information other than that requested is a sufficient substitute. Rather, they argue, as Federal courts have held under the Federal Freedom of Information Act, unless the information sought falls within an express statutory exemption, a court must order its production. (Wine Hobby, USA, Inc. v. United States Bureau of Alcohol, Tobacco & Firearms (E.D. Pa. 1973), 363 E Supp. 231, rev’d on other grounds (3d Cir. 1974), 502 F.2d 133; Kalmin v. Department of Navy (D.C. 1985), 605 F. Supp. 1492.) We agree and in so doing note that defendants do not respond to this argument.\nLastly, plaintiffs contend the trial court erred in dismissing their request for information of the educational programs offered in defendants’ schools without allowing discovery or an evidentiary hearing on the issue. Plaintiffs claim the trial court dismissed this portion of their complaint on the basis of defendant Mulcahy’s affidavit, claiming that he had responded fully to that request. The record reveals otherwise. On this aspect of the case, the court ruled:\n“I also think that [there] may be an issue as to whether or not you have supplied to the Plaintiffs *** the sufficient records of the educational programs, and to that extent, I will allow you to give any supplemental information that you have, or I will direct you to give any supplemental information that you have, and supply them forthwith to the plaintiffs.\nOther than that, the case will be dismissed. That will be my order.”\nClearly, plaintiffs obtained an order directing defendants to make full disclosure of any information concerning educational programs in their possession. The court having so ordered, it need not have allowed plaintiffs discovery or an evidentiary hearing on the issue. If plaintiffs believe that defendants have not complied with the trial court’s order, they may seek appropriate relief in the trial court but cannot appeal therefrom. See Moenning v. Illinois Bell Telephone Co. (1985), 139 Ill. App. 3d 521, 487 N.E.2d 980 (appellant can appeal only from decisions adverse to him and cannot appeal from judgments in his favor).\nFinally, we must address defendants’ remaining arguments in support of the trial court’s order. Disclosure of the subject records is not required, they first assert, because they contain confidential information “inextricably intertwined” with nonconfidential information and deletion of the former will produce a document with little informational value or will not prevent an invasion of privacy. (Neufeld v. Internal Revenue Service (D.C. Cir. 1981), 646 F.2d 661; Andrews v. Veterans Administration of the United States (Wyo. 1985), 613 F. Supp. 1404.) They repeat that disclosure of the records will result in identification of students because of the small number of students in each class and the sex/race coding of the records. Moreover, they assert, removal of that code would render the records meaningless to plaintiffs given their desire to compare the scores of students of different races in Evanston schools.\nAndrews, the only case defendants cite which applied the “inextricably intertwined” rule, is distinguishable. The confidential information at issue therein was contained in proficiency reports on nurses employed by the Veterans Administration. The reports contained a series of numerical ratings in various areas of job performance and a narrative discussion of each nurse’s job performance. The court found that it would be a “simple procedure” to delete from the numerical ratings portion of each report any information identifying the subject in order to prevent an invasion of privacy. However, the court found that the identifying information in the narrative portion of the reports “would normally be so inextricably intertwined with other materials that segregation is not reasonably possible, and it should be expected that release of any meaningful part of this portion *** will enable identification of the subject and will result in an invasion of *** privacy.” (Andrews, 613 F. Supp. at 1411.) We find the name and sex information here more like the information in the numerical ratings portion of the records at issue in Andrews than the “inextricably intertwined” information in the narrative portion of those records.\nWe conclude that, in the format in which defendants maintain the subject records, the students’ names are not inextricably intertwined with their races or the other information to which plaintiffs are entitled. Moreover, that the sex and race of each student are combined and represented by one digit does not render the latter “inextricably” intertwined with the former. Rather, the sex of each student may be deleted by deleting the digit code and the race may be maintained by substituting a simpler code, such as “W” for white students, “B” for black students, and “0” for other students. The deletion of students’ names and sexes would thus not render the records worthless to plaintiffs or result in an invasion of privacy.\nDefendants next assert that plaintiffs’ request for scrambled test score records is unduly burdensome in that defendants will have to expend valuable labor and computer time to change thousands of entries in order to scramble the records. As such, they assert that they are not required to comply with plaintiffs’ request under section 3(f) of the Freedom of Information Act. That section provides:\n“Requests calling for all records falling within a category shall be complied with unless compliance *** would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before invoking this exemption, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions.” (Ill. Rev. Stat. 1985, ch. 116, par. 203(f).)\nDefendants note that defendant Mulcahy met with plaintiffs in an attempt to resolve their differences over masked test records and was unable to do so. As a consequence, they assert, plaintiffs’ request was not reduced to manageable proportions.\nWe do not agree that defendants’ compliance with plaintiffs’ request would be unduly burdensome. Specifically, that defendants will have to expend valuable labor and computer time to comply with plaintiffs’ request does not impose a burden on defendants outweighing the public interest in the information. In this regard, we note that in Family Life League the fact that a special computer program was required to delete the confidential information from the records at issue did not alter the court’s conclusion. (Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 459, 493 N.E.2d 1054.) Our conclusion notwithstanding, however, we will remand this cause to the trial court for a determination under section 6(b) of the Freedom of Information Act whether plaintiffs are entitled to a waiver or reduction of defendants’ reproduction fees on the ground that furnishing the information primarily benefits the general public. Ill. Rev. Stat. 1985, ch. 116, par. 206(b).\nDefendants lastly contend that section 1 of the Freedom of Information Act justifies their denial of plaintiff’s request. Section 1 states, inter alia: “This Act is not intended to create an obligation on the part of any public body to maintain or prepare any public record *** not maintained or prepared *** when this Act becomes effective ***.” (Ill. Rev. Stat. 1985, ch. 116, par. 201.) Family Life League, Kryston, and Western Services establish that masking the names and sexes of the students and scrambling the alphabetical order of the subject records does not constitute the creation of new records.\nFor all of the foregoing reasons, the order of the circuit court of Cook County dismissing plaintiffs’ complaint is reversed and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nWHITE, P.J., and RIZZI, J., concur."}
{"dedup_key":"pre1996-142844","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"275 ill-app-3d 508","case_name":"Freedom Oil Company v. The Pollution Control Board","court_level":"Appellate","appellate_district":"4th","year":1995,"county":null,"appellate_docket":"4-94-0786","circuit_docket":null,"published":1,"authoring_justice":"Knecht","statute":["OMA"],"exemptions_cited":[],"public_body":"Illinois Pollution Control Board","requesting_party":"Freedom Oil Company","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether the Pollution Control Board could conduct a meeting via telephone conference call under the Open Meetings Act. The court held that the Board had the authority to conduct the meeting by telephone and affirmed the Board's order, noting that the petitioner failed to show any prejudice resulting from the lack of formal rules for such meetings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=142844","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:58.127642","site_category":"Meeting Conduct & Participation","date_decided":"1995-09-21","site_url":"/cases/pre1996-142844/","text_url":"/case-text/pre1996-142844.txt","full_text":"FREEDOM OIL COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.\nFourth District\nNo. 4—94—0786\nArgued June 19,1995.\nOpinion filed September 21, 1995.\nJon K. Ellis (argued), of Springfield, for petitioner.\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General (argued), of counsel), for respondents.\n\nPRESIDING JUSTICE KNECHT\ndelivered the opinion of the court:\nPetitioner, Freedom Oil Company (Freedom), filed its petition for direct review in this court of a supplemental opinion and order of the respondent, Illinois Pollution Control Board (Board). (People v. Freedom Oil Co. (June 6, 1994),_Ill. PCB Supp. Op. 93—59.) The order appealed from changed the amount of the penalty assessed against Freedom as recited in a previous opinion and order (People v. Freedom Oil Co. (May 5, 1994),_Ill. PCB Op. 93—59) (hereinafter Freedom Oil). Freedom challenges (1) the result of the June 6 special meeting, which it argues was not a valid meeting (415 ILCS 5/5(a) (West 1992)); (2) the Board’s characterization of the change in penalty as a clerical error; and (3) the Board’s authority to hold a meeting by telephone conference call. The Board questions this court’s jurisdiction over Freedom’s petition for review. We have jurisdiction and affirm the Board’s opinion and order.\nOn March 19, 1993, the Illinois Attorney General (AG), on behalf of the People of the State of Illinois (the People) and at the request of the Illinois Environmental Protection Agency (IEPA), filed a two-count complaint with the Board against Freedom. The violations alleged involved the failure to investigate and report releases from underground storage tanks at two separate locations owned by Freedom. The People sought a $30,000 penalty for each release and an additional $10,000 for each day the violations continued.\nAfter a hearing, the Board found Freedom to be in violation of IEPA regulations at both of its facilities. In post-hearing briefs filed by the parties, the AG sought and Freedom Oil opposed imposition of a $30,000 civil penalty for the two incidents of releases from the underground tanks. In its 13-page written order issued on May 5, 1994, the Board assessed a penalty of $15,000 against Freedom in setting forth the following reasoning:\n\"Examining the duration of the violations, again we consider that the release at the Savoy site was recorded on November 22, 1989, almost 3 and 1h years before the complaint was filed in this action on March 19, 1993. The release at the Oblong site was reported on April 4, 1991, almost 2 years before this action was filed. In the interim, the Agency sent Freedom three letters concerning the Savoy site and two letters concerning the Oblong site. In each letter, the Agency notified Freedom of the information it must collect at each site, and that the same must be submitted to the Agency. Even with these letters, Freedom did next to nothing to comply, and, as of this date, Freedom still has not complied with the applicable investigation and reporting requirements. Freedom’s recalcitrance demonstrates a lack of due diligence to comply with the Board’s regulations.\nAddressing the gravity of the violation, again we must correct Freedom. These violations are not mere paper violations. Without the required reports and sampling data, the Agency has no way of knowing the extent of contamination that may exist at either site. For at least 3 and 1/2 years and two years at the Savoy and Oblong sites, respectively, the presence of ground water, as well as soil, contamination remained undetermined. The reporting requirements are there to prompt the investigation necessary to determine the extent of contamination and remediation. Left uninvestigated, the pollution can migrate and cause more damage than it did initially. Not only did Freedom fail to submit the reports despite the Agency’s repeated requests for them, it also failed to undertake the investigations required at each site to insure that the environment is protected.\nUntil the extent of contamination is known at each site, the economic benefit accrued by Freedom due to its recalcitrance cannot be accurately determined. While the cost of the investigations could be estimated, the costs saved by deferring any necessary remediation cannot be. Without the investigation, we only know that the remedial costs could range between zero and multiple millions of dollars. ***\nFreedom’s failure to comply, the fact that the extent of contamination remains unknown because of that failure, and Freedom’s recalcitrance over the three year period lead the Board to conclude it must assess a penalty sufficient to deter continuing violations at these sites and future violations at other UST sites owned by Freedom. The Act authorizes the Board to assess a civil penalty of up to $50,000 per violation, and an additional civil penalty of not to exceed $10,000 for each day during which a violation continues.\nThe Agency seeks a penalty of $30,000 and an award of costs and fees pursuant to Section 42 of the Act. In support of a penalty in that amount, the Agency cites Freedom’s blatant disregard for the applicable regulations. For the most part, Freedom ignored the Agency’s letters warning Freedom that it was in possible violation of those regulations. Freedom went so far as to promise soil sampling in its response to the NOEL for Savoy, but then went on to ignore the subsequent CIL and Pre-Enforcement Conference Meeting letter sent by the Agency. Concerning the Oblong site, Freedom did submit reports but only after it received a CIL and, thereafter, it ignored the Agency’s request for more information concerning the extent of contamination evidenced by those reports. Finally, Freedom has taken no action to correct the contamination at the Oblong site, and simply submitted information insufficient for the Agency to determine if remediation is necessary due to the release at the Savoy site.\nThe Board finds that Freedom acted with knowledge of and blatant disregard for the applicable Board regulations. The Board further finds no facts or circumstances which would, mitigate the penalty requested. Therefore, the Board orders Freedom *** to pay a penalty of $15,000 into the Environmental Protection Trust Fund. In setting this penalty amount, we have considered the costs Freedom saved through its refusal to property [sic] investigate either site, the costs saved through its refusal to submit adequate 20[-] and 45[-]day reports at either site, and its recalcitrance in the face of repeated attempts by the Agency to obtain this information. We have also considered the increased threat to the public health and welfare posed by the delay in quantifying the releases, and the costs associated with remediating such contamination. Finally, we have considered what would deter Freedom from engaging in such behavior in the future.” (Emphasis added.) {Freedom Oil, at 9-11.)\nOn May 23, 1994, Freedom caused a check to be issued in that amount.\nOn Friday, June 3, 1994, counsel for the Board left a message for counsel for Freedom to advise him the Board had scheduled a special meeting on Monday, June 6, 1994, for the purpose of correcting its opinion and order issued on May 5. Counsel for the Board reached Freedom’s counsel by telephone on the morning of June 6 and verified the message left on June 3. Notice of the Board’s special meeting to be held on June 6, 1994, was posted on June 3, 1994.\nOn June 6, the Board issued what it entitled a \"Supplemental Opinion and Order.” In the three-page order, the Board indicated it was correcting a clerical error in its May 5 order pursuant to title 35, section 101.301 of the Illinois Administrative Code (35 Ill. Adm. Code § 101.301 (1992-93)); the Board stated it had voted 6 to 0 on May 5 to assess a penalty against Freedom in the amount of $30,000, not $15,000, and proceeded to set forth a corrected order. Freedom was provided a facsimile copy of the supplemental order on June 6 and also received a copy by certified mail on June 9, 1994.\nOn June 9, 1994, prior to receiving a copy of the order of June 6 by certified mail, Freedom filed a petition for review of the order of May 5 with this court. On July 12, the People moved to dismiss the petition for review for failure to name the Board as a party. The petition was dismissed on that basis on July 19, 1994. Freedom Oil Co. v. People (4th Dist. 1994), No. 4—94—0537 (order of dismissal).\nMeanwhile, on July 11, Freedom filed with the Board a motion to reconsider and vacate the Board’s supplemental opinion and order. The People filed a response and the motion was denied on August 11, 1994. Freedom filed this petition for review on September 2, 1994.\nThe Board first contends this court’s dismissal of Freedom’s original petition for review filed June 9, 1994, precludes further review. This court’s dismissal of Freedom’s first petition was not a decision on the merits. Instead, Supreme Court Rule 335(a) (134 Ill. 2d R. 335(a)) and section 3 — 107(a) of the Administrative Review Law (735 ILCS 5/3—107(a) (West 1992)) provide the inclusion of the administrative agency rendering the decision as a party to a petition for review is jurisdictional. (See McGaughy v. Illinois Human Rights Comm’n (1995), 165 Ill. 2d 1, 649 N.E.2d 404.) Therefore, we dismissed the petition solely for lack of jurisdiction.\nSection 41 of the Environmental Protection Act (Act) (415 ILCS 5/41 (West 1992)) provides for review of a final order of the Board by filing a petition for review within 35 days of the entry of the order in accordance with the Administrative Review Law (735 ILCS 5/3—101 et seq. (West 1992)). By rule, the Board permits any party to file a motion for reconsideration or modification of a final order within 35 days of issuance of the order. (35 Ill. Adm. Code §§ 101.246(a), 101.300, 103.240 (1992-93).) The Board’s rules further provide the filing of a motion for reconsideration or modification stays the effect of the final order until final disposition of the motion after which the 35 days run anew. 35 Ill. Adm. Code §§ 101.246(c), 103.240 (1992-93).\nSection 101.301 of the Board’s rules (35 Ill. Adm. Code § 101.301 (1994)) provides the Board may on its own initiative correct clerical errors contained in its orders prior to filing of an appeal. While there is no mention in the Board’s rules of a stay of the 35-day appeal period pending the Board’s action to correct its order, this is not necessary because once the order has been corrected, it is essentially the final order from the entry of which a 35-day appeal period then begins to run and the previous order becomes only an interlocutory order.\nIn this case, the Board stated it was granting Freedom an additional 35 days in which to appeal its order. While it is not clear the Board had the authority to grant an extension, it was not necessary for the Board to take this action at all as the entry of the corrected order on June 6, 1994, started a new 35-day period in which Freedom could file a petition for review or move for reconsideration of the order. Thus, we find we have jurisdiction over this appeal because Freedom filed its notice of appeal within 35 days of the denial of its motion to reconsider the June 6, 1994, order which corrected the clerical error in the order of May 5, 1994.\nFreedom does not argue with the Board’s power to correct errors upon its own initiative pursuant to section 101.301 but insists the change made in this case was not the mere correction of a clerical error but the doubling of the penalty assessed against it. However, Freedom can point to nothing in the record to substantiate its contention.\nThe minutes of the Board meeting of May 5, 1994, include a recitation of the adoption of an opinion and order in a dozen cases, including the one against Freedom. The vote on Freedom’s case is recorded as 6 to 0 in favor of adopting the order, with one member concurring. No mention is made in the minutes of the penalty assessed in any of the cases decided that day. The minutes of the June 6 meeting state it was a special meeting held for the sole purpose of amending the order in Freedom’s case after its adoption. The vote is recorded as 6 to 0 in favor of adopting what is termed a \"supplemental opinion and order” with one concurrence. The order adopted on June 6 recites within it the fact the Board voted on May 5 to assess the penalty of $30,000 while the order actually read $15,000. The penalty requested by the People was $30,000 and the findings of the May 5 order indicated Freedom had acted with \"blatant disregard” for the Board’s regulations and there were \"no facts or circumstances which would mitigate the penalty requested.” By its findings, it appears the Board intended to assess the penalty requested by the People and the numbers used in the order were in direct contradiction to the reasoning stated within the order. In addition, the written concurrence of one of the Board’s members with the June 6 order states he concurs but would have assessed an even larger penalty against Freedom. The record supports a finding the Board was actually correcting a clerical error and not increasing Freedom’s penalty.\nFreedom also argues the Board had no specific statutory authority to hold official meetings by telephone conference. The Board first contends Freedom has waived this argument by not previously raising it before the Board in its motion for reconsideration. Generally, issues and defenses not previously raised before the Board cannot be raised for the first time on direct review. (E&E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 38, 481 N.E.2d 664, 666.) Freedom argues its motion for reconsideration contained a paragraph stating \"four Board members were not even physically present at the meeting but were 'telephonically connected’ ” and this should be enough to get beyond a finding of waiver. Freedom did not argue this point had any legal significance and was not ruled upon by the Board, but the Board was made aware Freedom thought the telephone conference procedure to be peculiar.\nThe waiver rule is a limitation on the parties and not upon the jurisdiction of the reviewing court. (Rutledge v. St. Anne’s Hospital (1992), 230 Ill. App. 3d 786, 789, 595 N.E.2d 1165, 1168.) The issue of holding public meetings by telephone conference is likely to recur and both sides have briefed the issue on appeal. We find this circumstance falls within an exception to the waiver rule. This court may consider a matter not previously raised because of its likelihood of recurrence. (E&E, 107 Ill. 2d at 39, 481 N.E.2d at 666.) Accordingly, we shall deal with the merits of the issue.\nFreedom contends the Board did not have the authority to conduct a meeting by telephone conference because it has no statutory authority to do so. Neither the Act which created the Board (415 ILCS 5/5 (West 1992)) nor the Board’s own rules as found in title 35 of the Illinois Administrative Code (35 Ill. Adm. Code § 101.100 et seq. (1992-93)) provide for telephone meetings by the Board. Generally, an administrative agency is a creature of statute and has no general or common law powers. (City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 112-13, 357 N.E.2d 1154, 1155.) However, the absence of specific authority in the Act to conduct Board meetings by telephone conference does not indicate a legislative intent to prohibit such meetings. In performing its specific duties, an administrative agency has wide latitude to accomplish its responsibilities. (Lake County Board of Review v. Property Tax Appeal Board (1988), 119 Ill. 2d 419, 427-28, 519 N.E.2d 459, 463.) The Board’s conduct of a special meeting by telephone conference falls within the Board’s specific authority to conduct meetings.\nAs the Board is subject to the Open Meetings Act (5 ILCS 120/1 et seq. (West 1992)), there is also the question whether meetings held by telephone conference violate the Act. Freedom argues a quorum must be physically present in the same room to constitute a meeting. Under the Open Meetings Act, \"meeting” is defined as \"any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business.” (5 ILCS 120/1.02 (West 1992).) The minutes of the Board’s meeting of June 6 indicate only two of the Board’s members were actually present at the meeting site and four members were \"telephonically connected” and answered present. Freedom cites no authority which prohibits administrative agencies in Illinois subject to the Open Meetings Act from conducting meetings by telephone conference or which makes invalid any actions taken at such meetings. Nor does Freedom dispute the Board followed the statutory and regulatory requirements in scheduling, giving notice, and conducting its June 6 meeting but only questions whether a telephone conference qualifies as an open meeting.\nThis appears to be a case of first impression in Illinois. There is nothing within the Open Meetings Act which specifically prohibits conducting a meeting by telephone conference or requires members of a public body to be in each other’s physical presence to establish a quorum. While this issue has not been addressed by the courts, it has been the subject of an opinion letter of the AG. (1982 Ill. Att’y Gen. Op. 124.) An opinion of the AG, while not binding on the courts, is to be given considerable weight especially on matters of first impression. (Bonaguro v. County Officers Electoral Board (1994), 158 Ill. 2d 391, 399, 634 N.E.2d 712, 715.) The public policy goal of the Open Meetings Act is to conduct the business of the people openly. (5 ILCS 120/1 (West 1992).) The opinion of the AG is that furtherance of the goals of the Open Meetings Act requires the inclusion of telephone conferences within the definition of a meeting under the Open Meetings Act. 1982 Ill. Att’y Gen. Op. 128.\nThe AG was asked to determine whether the Open Meetings Act or any other State law prohibited the Board of Elections from conducting its oificial business by means of a telephone conference pursuant to its regulations, provided a quorum is present and all requirements of the Open Meetings Act are met. (1982 Ill. Att’y Gen. Op. 127.) The AG first considered the Open Meetings Act’s definition of \"meeting,” which requires a gathering of a quorum. (5 ILCS 120/ 1.02 (West 1992).) The AG noted the definition of \"gathering” as a physical coming together of persons in a group (Webster’s Third New International Dictionary 940 (1986)). However, the AG found with the technology presently available, a group of persons may come together by \"non-corporal” means as well. (1982 Ill. Att’y Gen. Op. 127.) The AG reasoned the common practice of governmental officials to \"gather” to conduct public business by telephone could not be ignored and if telephone conference calls were excluded from the definition of meetings, public officials could circumvent the goals of the Open Meetings Act simply by discussing public business over the telephone. 1982 Ill. Att’y Gen. Op. 128.\nThe AG then considered whether a telephone conference call could satisfy the Open Meetings Act’s mandate of public bodies meeting in public meetings. The AG concluded where a telephone conference call is broadcast over a speakerphone so the broadcast is open to members of the public at all offices of the agency, as it was in the case of the Board of Elections, accessibility of the public is satisfied. In fact, the AG opined the meeting was more accessible to the public because speakerphones were available in more than one location whereas a meeting with all members at brie site is only accessible at that site. (1982 Ill. Att’y Gen. Op. 128.) The AG concluded a meeting held by telephone conference conducted pursuant to the regulations of the Board of Elections complies with the Open Meetings Act. 1982 Ill. Att’y Gen. Op. 129-30.\nWhile this issue is one of first impression in Illinois, it has been considered in several sister States. The Supreme Court of Pennsylvania, using almost identical reasoning as the Illinois AG, found the use of a speakerphone in a public meeting in which only one out of three members was present at the meeting site did not violate that State’s sunshine laws, similar to the Open Meetings Act. (Babac v. Pennsylvania Milk Marketing Board (1992), 531 Pa. 391, 613 A.2d 551.) Similar results were reached in several other States. Goode v. Department of Social Services (1985), 143 Mich. App. 756, 373 N.W.2d 210; Stockton Newspapers, Inc. v. Redevelopment Agency (1985), 171 Cal. App. 3d 95, 214 Cal. Rptr. 561; First Federal Savings & Loan Association v. Board of Bank Control (1974), 263 S.C. 59, 207 S.E.2d 801.\nAdmittedly, a few States have reached the opposite conclusion, i.e., physical presence is required to constitute a quorum and take action (State ex rel. Stephan v. Board of County Commissioners (1994), 254 Kan. 456, 459, 866 P.2d 1024, 1026; Roanoke City School Board v. Times-World Corp. (1983), 226 Va. 185, 192, 307 S.E.2d 256, 259; State v. Vermont Emergency Board (1978), 136 Vt. 506, 508, 394 A.2d 1360, 1361-62), but only the Stephan decision was in the context of an open meetings act. In this case, we find the AG’s opinion persuasive and hold the members of an administrative agency need not be in each other’s physical presence to constitute a quorum.\nWhen its comes to executing its official duties, an administrative agency is given discretion to accomplish its purpose. While it is a creature of statute, no specific statutory authority to conduct telephone conference meetings is required. (1982 Ill. Att’y Gen. Op. 124; see generally Babac, 531 Pa. 391, 613 A.2d 551; Goode, 143 Mich. App. 756, 373 N.W.2d 210; Stockton Newspapers, 171 Cal. App. 3d 95, 214 Cal. Rptr. 561; First Federal, 263 S.C. 59, 207 S.E.2d 801.) The Board has specific authority to conduct meetings which must comply with the Open Meetings Act, and that act does not prohibit telephone conferences.\nThe AG has stated telephone conferences do not conflict with the Open Meetings Act if conducted under the rules of the Board of Elections. There is no indication in the record whether the specific provisions for speakerphones required by the Board of Elections rules were used in this case, and Freedom argues the Board waived any authority it had to hold meetings by telephone conference by failing to adopt rules governing such meetings.\nThe Board argues Freedom’s argument should be deemed waived because no authority is cited for the proposition failure to adopt rules waives an administrative agency’s authority to act. Arguments unsupported by any legal authority are in violation of Supreme Court Rule 341(e)(7) (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 341(e)(7), eff. February 1, 1994), and are found to be without merit (Environmental Protection Agency v. Pollution Control Board (1986), 115 Ill. 2d 65, 71, 503 N.E.2d 343, 346) or waived. (Beneficial Development Corp. v. City of Highland, Park (1992), 239 Ill. App. 3d 414, 422-23, 606 N.E.2d 837, 844.) Whether waived or not, Freedom’s argument is without merit.\nThe grant of statutory authority to an administrative agency does not always require the authority to be exercised through formal rule making and not every action taken without a formal rule is outside the legal authority of the agency. (Illinois Federation of Teachers v. Board of Trustees (1989), 191 Ill. App. 3d 769, 774, 548 N.E.2d 64, 67.) Further, statutory authority to promulgate rules does not mandate rules be adopted to cover every conceivable issue. See Strube v. Pollution Control Board (1993), 242 Ill. App. 3d 822, 829, 610 N.E.2d 717, 722.\nIn this case, the Board has adopted rules for the conduct of its public meetings specifying notice requirements, provisions for special and emergency meetings, record-keeping requirements and the number of votes of members necessary to constitute official action. (35 Ill. Adm. Code § 101.180 (1992-93).) Although the rules do not contain any reference to the conduct of meetings by telephone, the absence of a rule does not render the Board’s authority to conduct meetings by telephone conference invalid. While the AG’s opinion refers to the propriety of telephone conferences conducted in accordance with the rules adopted by the Board of Elections, the thrust of the opinion was concerned not with the fact rules had been promulgated but that the actual procedures followed were consistent with the Open Meetings Act.\nIn this case, the Board met pursuant to its authority under its rules to correct a clerical error in its decision. (35 Ill. Adm. Code § 101.301 (1992-93).) Public notice of the special meeting and its purpose was posted as required by rule. (35 Ill. Adm. Code § 101.180(b) (1992-93).) In addition, personal notice was given to Freedom. Minutes were kept of the meeting reflecting the roll call and participation of the Board’s members and the votes of the members on the adoption of the supplemental opinion and order, also as required by rule. (35 Ill. Adm. Code § 101.180(c) (1992-93).) Freedom does not argue the procedures used to conduct the telephone conference were improper, nor does it allege it suffered any prejudice by the failure of the Board to adopt formal procedures for conducting such meetings. There is no allegation Freedom’s representatives made any attempt to attend the meeting at the location where all the Board’s members would have been required to be physically present, nor was there an allegation Freedom’s representatives were unable to hear the telephone conference.\nThe absence of previously promulgated rules does not deprive the Board of its authority to conduct some meetings by telephone conference. No prejudice to Freedom was argued nor was any indicated in the record. However, if the Board intends to conduct some meetings by telephone conference in the future, better practice would dictate it should have rules in place for the procedures to be followed. Further, by our comments today we express no opinion on whether the Board’s inherent authority to conduct some meetings by telephone conference would permit the Board to conduct all of its meetings by telephone conference.\nFor the foregoing reasons, the opinion and order of the Board is affirmed.\nAffirmed.\nCOOK and GREEN, JJ., concur."}
{"dedup_key":"pre1996-125793","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"160 ill-app-3d 730","case_name":"Illinois Educational Labor Relations Board v. Homer Community Consolidated School District No. 208","court_level":"Appellate","appellate_district":null,"year":1987,"county":null,"appellate_docket":"4-87-0188","circuit_docket":null,"published":1,"authoring_justice":"Green","statute":["FOIA","OMA"],"exemptions_cited":[],"public_body":"Homer Community Consolidated School District No. 208","requesting_party":"Homer Association of Teachers, IEA-NEA","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Illinois Educational Labor Relations Board lacked the implied authority to order discovery of documents related to collective bargaining negotiations. The court reasoned that the legislature's specific references to the Open Meetings Act and FOIA within the Educational Labor Relations Act did not grant the Board broad discovery powers not expressly provided by statute.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=125793","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:58.236882","site_category":"FOIA Response Process","date_decided":"1987-08-05","site_url":"/cases/pre1996-125793/","text_url":"/case-text/pre1996-125793.txt","full_text":"ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee, v. HOMER COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 208, Respondent-Appellant (Homer Association of Teachers, IEA-NEA, Intervenor-Appellee).\nFourth District\nNo. 4—87—0188\nOpinion filed August 5, 1987.\nModified on denial of rehearing October 22, 1987.\nLUND, J., specially concurring.\nMcCULLOUGH, J., dissenting.\nJohn T. Taylor, Everett E. Nicholas, Jr., and Michael Foley, all of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield, and Randi C. Hammer, of Illinois Educational Labor Relations Board, of Chicago (Roma Jones Stewart, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Educational Labor Relations Board.\nGregory J. Malovance and Stephen S. Morrill, both of Winston & Strawn, of Chicago, for appellee Homer Association of Teachers.\nBrian A. Braun, of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for amicus curiae.\n\nJUSTICE GREEN\ndelivered the opinion of the court:\nThis case arises under the recently enacted Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.). In the heat of a labor dispute between respondent Homer Community Consolidated School District No. 208 (school district) and the duly constituted bargaining unit for its teachers, intervenor Homer Association of Teachers, IEA-NEA (Association), and during a resultant strike by the Association, litigation has resulted from charges and countercharges of unfair labor practices. During the course of these proceedings, the school district has been ordered to give virtually unqualified discovery to the Association of the matters that have transpired in the closed-session meetings of the governing board of the school district in which its strategy in regard to the negotiations and the strike were discussed. The school district has been ordered to produce for the Illinois Educational Labor Relations Board (Board) various notes and minutes concerning those meetings and to present the members of its governing board to testify concerning matters transpiring at those meetings.\nWe recognize that the Association indicated some willingness for some limitations on the discovery and the court stated it would consider making some restrictions, but the school district insisted on a complete privilege of exclusion being applied to the transactions involved. However, the extent of the discovery granted was virtually unprecedented as far as any authority cited to us would indicate. Because of the recentness of the legislation involved, the lack of precedent on point, and the collateral consequences of permitting the unqualified discovery given, we hold that the school district did not waive any right to have restrictions placed on any discovery that might be allowed. We also take the extraordinary step of holding that the information sought was subject to a qualified privilege which must be applied on remand.\nBetween September 1986 and January 1987, the Association and the school district filed various unfair labor practice charges against each other with the Board pursuant to section 15 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1715). The strike began on October 17, 1986, and continued in existence during all times pertinent. Acting further pursuant to section 15, the Board considered the charges and issued three complaints of unfair labor practice against each of the parties. The complaints were set for a consolidated hearing, but prior to the hearing, the Association filed a request for production of documents upon the school district, and it filed objections. At the hearing, the school district filed a motion in limine asking that the Association be directed not to attempt to elicit evidence concerning the school district’s closed-session deliberations attendant to bargaining. Acting pursuant to section 15, the Board’s hearing officer denied the school district’s objections and request for motion in limine. A member of the school district’s governing board refused to testify concerning matters transpiring at closed sessions when the school district’s bargaining strategy was being discussed. The Board’s hearing officer ordered issuance of a subpoena duces tecum for the documents requested, and the school district refused to comply.\nOn February 25, 1987, the Board filed suit in the circuit court of Champaign County seeking enforcement of the Board’s subpoena and an order requiring the members of the school district’s governing board to testify concerning matters transpiring at the closed meetings, all as also authorized by section 15 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1715). The Association was apparently permitted to intervene. After a hearing, the circuit court entered an order on February 27, 1987, ordering the production of the documents and the testimony of the witnesses. The school district has appealed. We reverse and remand for a rehearing in the circuit court pursuant to directions we will later explain.\nThe documents requested by the Association, to which the school district objected, are as follows:\n“(1) [A]ll bargaining notes or minutes which have been taken by the District, (2) all bargaining proposals made by the [Association] or the District upon which the District made any mark or notation, (3) all documents (excluding bargaining notes and proposals) which relate to the District’s bargaining objections [sic], strategy or tactics, (4) all documents which relate to any plan or action of the District in the event of a strike by the [Association] of the effectuation or implementation of any such plan or action, [and] (5) all documents which relate to any discussion or communication by the District concerning bargaining, any grievances which were filed by the [Association] or any of its members since April 10, 1986, or the strike by the [Association].”\nThe information sought by the Association relates to possible statements or proposals made or tentative agreements reached in closed meetings where bargaining strategy was discussed which might shed light on allegations that the school district was not bargaining collectively in good faith. Good-faith bargaining is required of educational employers’ and employees’ bargaining representatives by section 10 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1710), and the failure to do so is designated an unfair labor practice by sections 14(a)(5) and (b)(3) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1714(a)(5), (b)(3)).\nThe problem presented here is a phase of the inherent conflict between the usually predominant public policy of maintaining court and administrative proceedings as forums for the determination of the truth and public policy which for some reason favors that certain matters be kept in confidence (see McCormick, Evidence sec. 72(a), at 170 (3d ed. 1984)). The public policy to be served by suppressing evidence here is that of enabling parties to adversarial collective bargaining to plan a strategy without having it revealed to their adversaries. This confidentiality is particularly necessary during the course of the dispute, but it is also important afterwards because of future bargaining which may take place between the parties. Of most importance is the ability of each of the sides to keep confidential the extent to which it would be or might have been willing to make concession. Confidentiality is also important because it enables the persons involved to speak freely about their adversaries without the damage to future relationships that might result from disclosure of those statements.\nThe Association and the Board contend that school districts are given substantial protection from undue disclosure requirements because: (1) before the Board can issue a complaint, a showing must be made that the charge of unfair labor practice has substance; and (2) only material relevant to the complaint is subject to discovery.\nSection 15 of the Act states in part:\n“A charge of unfair labor practice may be filed with the Board by an employer, an individual or a labor organization. If the Board after investigation finds that the charge states an issue of law or fact, it shall issue and cause to be served upon the party complained of a complaint which fully states the charges ***.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 1715.)\nThe language requiring the charge to state “ an issue of law or fact” does not place any substantial burden upon the one preparing the charge. The statute does require an investigation, but even if that wording indicates that the Board must find some evidence of the existence of an unfair labor practice, such a situation is likely to exist in the heat of most strike situations. Notably, here, the Board found grounds for three complaints against each of the parties.\nAs has been indicated, the thrust of the complaints against the school district is that it did not bargain in good faith. When that is in issue, all of the circumstances of the bargaining have been said to have some relevancy. (Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 505 N.E.2d 418; see 48 Am. Jur. 2d Labor & Labor Relations sec. 1028 (1979).) Thus, because of the wide scope of relevancy, the tension between the truth-seeking process and the need for confidentiality is at a high level here. If a broad interpretation of relevancy is the only qualification for discovery here, the school district’s deliberations of strategy will receive little protection.\nThe school district seeks to protect its bargaining strategy from being disclosed by reliance on Illinois legislation concerning the conduct of public meetings and access to public records. It maintains that this legislation makes information as to matters occurring in executive session of its meeting privileged from discovery for litigation.\nSection 2 of the Open Meetings Act requires school boards, as well as other governmental bodies, to conduct their meetings open to the public with certain exceptions. One of these exceptions is for “collective negotiating matters between public employers and their employees or representatives.” (Ill. Rev. Stat. 1985, ch. 102, par. 42.) Section 2.06 of the Open Meetings Act then makes the following requirements in regard to the keeping and disclosure of minutes of public meetings:\n“(a) All public bodies shall keep written minutes of all their meetings, whether open or closed. Such minutes shall include, but need not be limited to:\n(1) the date, time and place of the meeting;\n(2) the members of the public body recorded as either present or absent; and\n(3) a general description of all matters proposed, discussed, or decided, and a record of any votes taken.\n(b) The minutes of meetings open to the public shall be available for public inspection within 7 days of the approval of such minutes by the public body. Minutes of meetings closed to the public shall be available only after the public body determines that it is no longer necessary to protect the public interest or the privacy of an individual by keeping them confidential.” Ill. Rev. Stat. 1985, ch. 102, par. 42.06.\nSection 3 of the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 203) requires records of public bodies of the State to be kept open for public inspection or copying. However, many exemp-\ntions are stated. Section 7(f) exempts “[preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated” with exceptions not applicable here. (III. Rev. Stat. 1985, ch. 116, par. 207(f).) Subsection (m) exempts minutes of meetings properly closed under the Open Meetings Act until the public body makes them available. Subsection (q) exempts the following:\n“Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.” Ill. Rev. Stat. 1985, ch. 116, par. 207(q).\nNo case deciding whether either the Open Meetings Act or the Freedom of Information Act provides privilege against required disclosure in litigation has been called to our attention. However, the purpose of those acts is to provide the general public with access to information previously unavailable. That same information was not unavailable to required disclosure for purposes of litigation unless it was subject to a privilege. The exceptions set forth in that legislation clearly appear to be exceptions to the newly created duty to disclose to the public. Information covered by those exceptions retains the same confidentiality that it had before enactment of the legislation.\nThat confidentiality did not necessarily involve a privilege from required disclosure in litigation.\nThe need of parties to' litigation to information determining their rights is usually stronger than the need of the general public to be informed on a matter. In enacting the Open Meetings Act and the Freedom of Information Act and creating exceptions to disclosure thereunder, the legislature was balancing the need of the public to be informed against the need for confidentiality. The legislature was not balancing the need of litigants for information against the need for confidentiality. Illustrative of this principle is the decision in Bell v. Bankers Life & Casualty Co. (1945), 327 Ill. App. 321, 64 N.E.2d 204. There, legislation concerning old-age pensions prohibited dissemination of matters in the records concerning applicants except as required in connection “with the administration of pensions” (Ill. Rev. Stat. 1943, ch. 23, par. 419). However, the reviewing court held that in litigation not involved with the administering of the pension system, the information contained in an application for a pension was subject to subpoena. See also Krupp v. Chicago Transit Authority (1956), 8 Ill. 2d 37, 132 N.E.2d 532.\nEven though we do not deem the cited provisions of the Open Meetings Act and the Freedom of Information Act to have spoken to the question of whether the deliberations of the protected meetings where collective-bargaining strategy was discussed were immune from discovery for litigation purposes, we do consider that legislation to have indicated a strong public policy to protect the confidentiality of those deliberations. The concepts of collective bargaining include a recognition of the disparity of interests involved which, inherently, makes the bargaining process an adversarial one at times. The process is damaged if the parties cannot plan their bargaining strategy under circumstances where they have a reasonable expectation of confidentiality. Allowance of that confidentiality does not in any way hinder the opportunity of the parties to respect each other and to recognize their common interests.\nThis country has experienced half a century of extended litigation concerning collective bargaining in the private sector and now several years of similar public sector litigation, but we are unaware of substantial precedent for requiring a party to such litigation to give discovery as to its strategy deliberations. The closest case called to our attention is that of Newark Board of Education v. Newark Teachers Union, Local 481, (1977), 152 N.J. Super. 51, 377 A.2d 765.. There, a dispute arose before an agency as to the terms agreed to by the parties to a collective-bargaining agreement. The reviewing court upheld a subpoena directed to notes taken by or on behalf of the employer during face-to-face negotiations with the employees’ bargaining agent. The question of the discoverability of the private deliberations of a party was not in issue.\nWe conclude that here, as the parties, the Board and the court struggled with new concepts, a discovery order evolved which was of a type seldom used. We deem the order, in its full breadth, to be damaging to an effective collective-bargaining procedure and improper.\nWe have not found any statutory provision which gives the school district protection from the type of discovery ordered, nor do we know of any statute which would protect the Association from discovery as to their deliberations over bargaining strategy. We are also unable to cite any generally recognized common law privilege which would give protection from this type of discovery. However, the Board and the Association have indicated a recognition that some restrictions could have been placed on the breadth of the order, and the circuit court indicated that it would have considered doing so if asked. Any such restrictions, beyond a requirement that the matters subject to discovery be relevant, would constitute the invoking of some sort of a qualified privilege.\nAs an intermediate court of review, we are reluctant to attempt to define a common law privilege. However, we note that Rule 501 of the Federal Rules of Evidence (Fed. R. Evid. 501), which provides for privilege, does not attempt to define or even list the various common law privileges. The United States Supreme Court has stated that the intention of Rule 501 is to “provide the courts with the flexibility to develop rules of privilege on a case-by-case basis” (Trammel v. United States (1980), 445 U.S. 40, 47, 63 L. Ed. 2d 186, 193, 100 S. Ct. 906, 911). The Illinois Supreme Court has given substantial deference to the Federal Rules of Evidence. (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) Accordingly, we proceed to set forth an application of the rule of qualified privilege which can be applied here to balance the interest in finding the truth with the need of a party to be able to plan negotiating strategy with a reasonable expectation that it will not have to reveal that strategy to its opponents. Unlike any privilege which would arise from the Open Meetings Act or the Freedom of Information Act, this qualified privilege will be available equally to employers or the bargaining representative of employees in their bargaining unit.\nThe reasoning of the opinion in Equal Employment Opportunity Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331, is persuasive. The case involved proceedings before the Equal Employment Opportunity Commission for the Federal government on charges that the defendant university had discriminated on the basis of race in denying a faculty member tenure. The Commission had issued a subpoena for the defendant’s files concerning review recommendations made by faculty members. The Federal district court upheld the subpoena. The Circuit Court of Appeals for the Seventh Circuit reasoned that confidential peer review was such a significant element of academic freedom that a qualified privilege was required to protect the files sought. In proclaiming this privilege, the reviewing court relied upon the interpretation of Rule 501 of the Federal Rules of Evidence (Fed. R. Evid. 501) set forth in Trammel v. United States (1980), 445 U.S. 40, 47, 63 L. Ed. 2d 186, 193, 100 S. Ct. 906, 910. The qualified privilege defined was that of need or necessity. The circuit court then remanded the case to the district court with directions that it hold an in camera proceeding to determine the necessity of the documents requested, to weigh that against the need for confidentiality and to proceed accordingly.\nThe Seventh Circuit described the burden upon a party seeking discovery of information subject to the privileges qualified by need or necessity as “a burden similar to that imposed on a party seeking disclosure of [Federal] grand jury materials.” (Equal Employment Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331, 338.) The cases of Illinois v. Abbott & Associates, Inc. (1983), 460 U.S. 557, 75 L. Ed. 2d 281, 103 S. Ct. 1356, and In re Grand Jury Proceedings, Miller Brewing Co. (7th Cir. 1982), 687 F.2d 1079, were cited. Application of the qualified privilege was stated to require a weighing of the probative value of the information against the damage to the policy underlying the privilege. Importance was given to the degree to which the party seeking discovery has other access to the information sought. The opinion also indicated that the party seeking the information was required to have exhausted every other source of the same information. Mere relevancy was stated to be an insufficient ground for requiring disclosure.\nWe hold that a similar qualified privilege subject to necessity is involved here. We reverse the decision of the circuit court ordering the production of documents and requiring the testimony of witnesses and remand with directions (1) that the school district be required to furnish to the court all of the requested but unfurnished documents and information; and (2) that a subpoena issue for the appearance before the circuit court of all persons whom the Association wishes to examine concerning matters taking place in executive session meetings of the governing board of the school district where bargaining strategy was discussed. A hearing before the circuit court shall be set at an appropriate time.\nAt the hearing before the circuit court, the parties seeking discovery shall put on any evidence they wish in support of the necessity for the disclosure of the information sought and all parties shall have an opportunity to argue as to the necessity for disclosure. At this time, the parties seeking authority to examine witnesses concerning previously described executive sessions may present to the court, orally or preferably in writing, questions for the court to ask the witnesses in camera. Then, in camera and out of the presence of any party, attorney or representative of any party, the court shall separately examine any of the subpoenaed witnesses. At that time, or previously, if the court deems the same advisable, the court shall examine, also in camera and out of the presence of any party, attorney or representative of any party, the documents and material presented.\nAfter the foregoing procedure has been followed, the court shall, in due course, rule as to (1) which, if any, documents and materials presented or portions thereof are subject to discovery; and (2) which, if any, questions the witnesses must be required to answer.\nThe procedure we require places a burden on the party seeking discovery, but such is necessary if.the conflicting interests are to be protected. Substantial confidentiality should be given to the strategy sessions. Ordinarily, the unfair labor practices charged can be shown on the basis of what the party agreed to or refused to agree to, by its pronouncements or by the acts of its agents such as would occur if threats were made. However, if, for instance, the school district’s governing board should tacitly agree in a strategy session that it would never settle, evidence of that tacit agreement would not be privileged.\nIn its petition for rehearing filed after the filing of our original opinion, the Board expresses concern that we remand to the circuit court directing that it conduct the in camera proceedings rather than remanding to the Board for that purpose. The Board points out that pursuant to section 5(h) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1705(h)), it has enacted rules setting up a procedure for ruling upon the propriety of subpoenas and requests for production of documents. It is concerned with the effect our decision will have upon the operation of those rules and similar rules of other administrative agencies. The Board also maintains that it has greater expertise than the circuit court to rule upon matters to be considered at the in limine hearing and that greater efficiency will result from permitting it to do so.\nOur decision to remand the case to the circuit court rather than the Board is based on two factors.\nWe begin discussion of our first reason by noting that the legislature has designated a procedure under section 15 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1715) whereby the Board can enforce its subpoenas and compel testimony. The Board followed that procedure in the instant case. While the Board has power to make rules, it has no power to hold a party in contempt nor can a party be held in contempt for violating its orders. Only when a party refuses to obey an order of the circuit court may it be held in contempt for its default. An order by the Board to produce evidence or to give disclosure is not a final order of the Board subject to administrative review under section 16 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1716). Thus, a party aggrieved by such an order cannot obtain review of the order until the case has been completed, and any confidentiality in the information involved is lost unless it defies the order and compels the Board to proceed under section 15.\nWe interpret the portions of section 15 providing for the enforcement of subpoenas to provide for a full hearing in the circuit court, involving the receipt of evidence if necessary, in order that a determination may be made as to whether the information sought is subject to discovery or production. The proceeding is not one whereby a determination of discoverability by the Board is to be reviewed for error or to be presumed to be correct. Under the statutory format, the section 15 proceeding is one where a party claiming privilege to material that is sought may obtain a determination as to whether disclosure is required and obtain review of that ruling and, at least, seek a stay of that ruling pending review.\nThe procedure involved here is not unlike the situation in civil cases where a party claiming privilege often must defy orders to produce and be held in contempt in order to gain review of the decision requiring disclosure before making disclosure and losing confidentiality. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483.) This court has described this procedure as a “distasteful method” but one that is sometimes necessary. (In re M.B. (1985), 137 Ill. App. 3d 992, 995, 484 N.E.2d 1154, 1157.) Here, however, once the circuit court has entered an order under section 15 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1715), that order is appealable to this court as an order final as to the section 15 circuit court proceeding and thus appealable as a matter of right. The party contesting the propriety of the subpoenas need not force a contempt finding to obtain appealability.\nWere the cause here remanded to the Board to hold the in limine proceeding and the school district dissatisfied with the ruling, the school district would have to defy the order of the Board and retrigger section 15 proceedings to obtain review. With the circuit court holding the hearing, it can enforce its order directly and appeal can directly be obtained in this court. Because of the limited powers of the Board, remand to the circuit court would be more efficient.\nThe other reason for remanding to the circuit court is more obscure. Judges are often placed in situations where they must become privy to information which is prejudicial to a party but is not subject to consideration in deciding the merits of a dispute. This creates an awkward situation which should be avoided when that can reasonably be done. The situation here would be even more difficult for the Board if it was to become privy to the matters disclosed in the in limine hearing and then decide the merits of the case. We have held that information involving the bargaining strategy sessions does not become discoverable merely because it is relevant. It must meet the necessity standard. A great burden would be placed on the Board if, after hearing what happened in the various meetings, it is then required to make a decision on the merits without considering matters which do not meet the necessity standard.\nThe Board need not be put into this position and the party subject to a discovery order need not be subjected to fears that the Board would be subtly influenced. The circuit court is placed in a rare position of detachment in making the decision as to the discovery to be required and the Board will then be placed in a position of detachment in deciding the merits.\nWe know of no authority which requires us to remand to the Board to hold the in limine proceeding. The court of appeals remanded to the district court rather than the administrative agency for the in limine hearing in Equal Employment Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331. The considerations we have discussed favor remandment to the circuit court.\nAccordingly, we reverse and remand to the circuit court of Champaign County with directions to proceed as set forth herein.\nReversed and remanded with directions.\n\nJUSTICE LUND,\nspecially concurring:\nI concur with the decision set forth in the opinion authored by Justice Green but desire to comment on the determination as to who should perform the in camera examination.\nThe circuit courts are the source of enforcement for the Illinois Educational Labor Relations Board’s subpoena power. (Ill. Rev. Stat. 1985, ch. 48, par. 1715.) Yet, the Board is the ultimate fact-determining body, with review being by the appellate court. The expertise of the Board, illustrated by its selection and the special experience achieved by its executive director, presents a strong argument that the in camera examination be done within the confines of the Board.\nIn suggesting that the proper in camera examiner might be within the confines of the Board, I recognize that one of the legislative purposes in enacting the Act was to seek a solution to public education disruptions. With the in camera examination being within the confines of the Board, delays in a determination of unfair labor charges might not be subject to the delays inherent in the circuit court calendar. I find no legitimate reason to doubt the fairness, ability, or the integrity of the Board’s members or the executive director.\nBecause of my concurrence with Justice Green’s opinion, it is not necessary to state with exactitude the personnel within the confines of the Board qualified to perform the in camera examination. As determined by Justice Green’s opinion, the in camera examination would be “out of the presence of any party, attorney, or representative of any party.”\nRegardless of my comments, it is necessary that a determination be made by this court, and I fully concur with Justice Green’s opinion.\n\nJUSTICE McCULLOUGH,\ndissenting:\nThe motion for discovery in its present form should be denied. The Association argues that the Open Meetings Act does not apply to the present proceeding because it is exempted by section 18 of the Education Labor Relations Act (Act). (Ill. Rev. Stat. 1985, ch. 48, par. 1718.) The school district argues that the Open Meetings Act and the Educational Labor Relations Act be read together, are not in conflict with each other, and that pursuant to section 2a (Ill. Rev. Stat. 1985, ch. 102, par. 42a) of the Open Meetings Act, collective negotiating matters are exempt from the requirement that it be an open meeting. This argument is unnecessary. The following is my reasoning.\nThe Open Meetings Act as passed, approved and effective July 11, 1957, and amended subsequently thereto, provides in section 1, “[i]t is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1985, ch. 102, par. 41.) Prior to the passage of the Open Meetings Act, there were no statutory controls with respect to private meetings of such boards and agencies. This act set forth the procedure which should be followed with respect to such meetings. Section 2 provides that all meetings of public bodies shall be open to the public, with specific exceptions. Collective negotiating matters between public employers and their employees or representatives is an exception. Ill. Rev. Stat. 1985, ch. 102, par. 42.\nIn order to better understand the legislative intent, we then go to the Educational Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.). Once again, the policy of that Act is to “promote orderly and constructive relationships between all education employees and their employers.” (Ill. Rev. Stat. 1985, ch. 48, par. 1701.) The purpose of the Act is to regulate labor relations between the employers and employees including the designation of representative, negotiation of wages, hours, and other conditions of employment and the resolutions of disputes arising under collective-bargaining agreements. Educational employers are required to negotiate and bargain with employee organizations representing educational employees and to enter into written agreements evidencing results of such bargaining and also to establish procedures to provide for the protection of the rights of the educational employee, the educational employer and the public.\nSection 17 of the Act states “[i]n case of any conflict between the provisions of this Act and any other law * * * the provisions of this Act shall prevail and control.” (Ill. Rev. Stat. 1985, ch. 48, par. 1717.) Section 18 provides that “[t]he provisions of the Open Meetings Act shall not apply to collective bargaining negotiations and grievance arbitrations conducted pursuant to this Act.” (Ill. Rev.\" Stat. 1985, ch. 48, par. 1718.) Section 1 of the Freedom of Information Act (FOIA) states in part, “[t]his Act shall be the exclusive State statute on freedom of information, except to the extent *** other laws in Illinois might create additional obligations for disclosure of information to the public.” (Ill. Rev. Stat. 1985, ch. 116, par. 201.) Section 7(q) exempts “[documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.” (Ill. Rev. Stat. 1985, ch. 116, par. 207(q).) The Act and FOIA are not in conflict.\nAs stated heretofore, not only did the Open Meetings Act provide for an exception concerning collective-bargaining negotiations, but, under the provisions of the Educational Labor Relations Act, the Open Meetings Act was made inapplicable to educational labor relations problems.\nThe legislature has expressed a clear intent that negotiation matters conducted at board meetings should not be discoverable, are not subject to the Open Meetings Act, and are not subject to discovery under the Freedom of Information Act. The legislature did not intend to grant such authority to the Educational Labor Relations Board in the instant case. This is a matter of important public policy and the proper course for the judicial brand of government to follow is to deny the motion for discovery as requested by the Association in this case. If the legislative branch desires that the Educational Labor Relations Board should have the authority requested by the Board, it will bestow the same in unmistakable terms.\nThe majority stresses that the Open Meetings Act and FOIA do not involve privilege from required disclosure in litigation. Even Supreme Court Rule 201(b)(2) would not require disclosure of bargaining proposals, bargaining objections, strategy, tactics, or documents relating to discussions concerning bargaining.\nHere, with respect to the Association’s discovery request, in every provision of the five paragraphs asking for discovery, the word “all” is used. Because of its “all” inclusive nature, it should be denied outright by this court and the trial court should be reversed.\nThis will, however, not terminate the discovery problems before the Board. The majority refers to Equal Employment Opportunity Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331, as the principal basis of the procedure to be followed. However, in Equal Employment, which created a qualified privilege for peer evaluations and faculty evaluations of nontenured teachers, only documents were subject to review in the employment discrimination case. Names and identifying characteristics of the evaluators were deleted from the documents. No procedure for examining witnesses was set forth.\nExamining party witnesses without counsel presents a due process problem. The court is in effect conducting a discovery proceeding, the outcome of which could be determinative of the unfair labor practice charge and the enforcement proceeding pending before the court.\nIf a party has the means to employ counsel, he has the right to be represented by a lawyer of his own choosing. (Zieger v. Manhattan Coffee Co. (1983), 112 Ill. App. 3d 518, 527, 445 N.E.2d 844, 851.) The right of a litigant to be represented by counsel is fundamental. This right exists in civil as well as in criminal cases and is a part of the process of law guaranteed by the constitution. (Magerstadt v. La Forge (Mo. 1957), 303 S.W.2d 130, 133.) This right is a valuable one, the unwarranted denial of which is held to be a fundamental error.\nThe in camera interrogation of witnesses with questions formulated by opposing attorneys presents a grave danger of denying the party from whom discovery is sought fundamental safeguards insured by due process. Here, the witness would potentially be providing damaging information later usable in the underlying unfair labor practice proceeding. He would not have benefit of counsel as to the legal ramifications of statements made in camera.\nThere should be no in camera examination of witnesses without the benefit of counsel. As to witnesses, the usual rules followed in dispositions, interrogatories and offers of proof should apply.\nSecondly, the procedure sets forth no guidelines as to what constitutes a necessity for the information. The Association has not established a particularized need for the information but wishes the court to engage in a fishing expedition. Prior to the two-step procedure’s being initiated, the discovery request must be specific in scope.\nIf specificity is not required, the policies set forth in the Illinois Educational Labor Relations Act will not be served. Settlement of labor disputes will not be encouraged because the courts will become involved as discovery mechanisms whenever unfair labor practice charges are brought. Additionally, the added procedure will be time consuming.\nWith respect to motions for discovery, closed session meetings, I suggest we adopt procedures for discovery as set forth in the FOIA. The procedure set forth in section 11, FOIA, should be followed with respect to the Association’s request in the instant case. (Ill. Rev. Stat. 1985, ch. 116, par. 211.) The FOIA does not conflict with the Act. A request by the Association for specific discovery may very well be discoverable under the Educational Labor Relations Act and the Freedom of Information Act. To follow the procedures set forth in the Freedom of Information Act will provide guidance to an unbiased judge experienced in matters concerning evidence and litigation. A simple filing of a request pursuant to that act would permit the trial court to conduct an in camera examination of the request for records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of the FOIA. This of course would only apply when the request, made by either an employee, the certified bargaining representative of the employees, or the employer is appropriate, specific, and relevant to the controversy. Federal decisions certainly require such requests to be specific.\nThe Association argues that it feels the district is involved in unfair labor practice in that the district has made a decision not to settle the strike. If in fact this decision has been made, it is subject to discovery under the Freedom of Information Act and is appropriate in the instant case.\nIn summary, the Open Meetings Act with its exception for collective-bargaining negotiations, the passage of the Act, which specifically provides that the Open Meetings Act does not apply, and the availability of FOIA to both the employer and employees is adequate to indicate the legislative intent with respect to this matter. The motion for discovery in its present form should be denied. Any other motion for discovery should be specific.\nThis court should not find such authority in the agency or Board unless the statute under consideration confers it expressly or by unavoidable implication. The statute does not expressly confer the power sought to be exercised by the Board, the statutory reference to the Open Meetings Act and the implication of the application of the Freedom of Information Act do not justify a judicial determination that a power of such magnitude as requested by the teachers and ordered by the Educational Labor Relations Board should arise by implication.\nThis may very well hamper the Educational Labor Relations Board in the discharge of its function with the greatest effectiveness; however, that is a legislative consideration which this court should not be involved in."}
{"dedup_key":"pre1996-140136","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"256 ill-app-3d 887","case_name":"Hopf v. Topcorp, Inc.","court_level":"Appellate","appellate_district":"1st","year":1993,"county":null,"appellate_docket":"1-92-0773","circuit_docket":null,"published":1,"authoring_justice":"Cousins","statute":["FOIA","OMA"],"exemptions_cited":[],"public_body":"Topcorp, Inc. and Research Park, Inc.","requesting_party":"Jeanne Hopf et al.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that two private, for-profit corporations created by the City of Evanston and Northwestern University were not 'public bodies' subject to the Open Meetings Act or FOIA. The court determined that the corporations' receipt of partial city funding and city involvement in infrastructure did not constitute sufficient government control to trigger the requirements of the Acts.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=140136","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:59.243697","site_category":"Public Body Definition","date_decided":"1993-11-12","site_url":"/cases/pre1996-140136/","text_url":"/case-text/pre1996-140136.txt","full_text":"JEANNE HOPF et al., Plaintiffs-Appellants, v. TOPCORP, INC., et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1 — 92—0773\nOpinion filed November 12, 1993.\nMarshall Patner & Associates, P.C., of Chicago (Marshall Patner, David I. Hurwitz, and Jeremy W. Hobbs, of counsel), and Richard Stillerman, of Evanston, for appellants.\nMayer, Brown & Platt, of Chicago (Michelle Odorizzi, Priscilla P. Weaver, and Jeffrey S. Kinsler, of counsel), for appellees.\n\nJUSTICE COUSINS\ndelivered the opinion of the court:\nPlaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendants. The action was brought to compel two Illinois corporations to comply with the provisions of the Illinois Open Meetings Act and the Illinois Freedom of Information Act (FOIA). (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.; Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) Plaintiffs are citizens, residents and taxpayers of Evanston, Illinois (the City). Defendants are Topcorp, Inc. (Topcorp), and Research Park, Inc. (RPI), for-profit corporations organized pursuant to a statement of understanding entered into by the City of Evanston (City) and Northwestern University (Northwestern) for the purpose of jointly developing a research park on property located in downtown Evanston.\nIn 1987, plaintiffs moved for a preliminary injunction and the circuit court denied their motion. Plaintiffs appealed and this court affirmed in a two to one decision, Hopf v. Topcorp, Inc. (1988), 170 Ill. App. 3d 85 (Hopf I). The majority found that plaintiffs had not carried their burden of showing a likelihood of success on the key issue in this case: whether Topcorp and RPI are \"subsidiary bodies” of the City of Evanston and, therefore, \"public bodies” that are subject to the requirements of the Open Meetings Act and FOIA.\nFoEowing remand and additional discovery, the parties filed cross-motions for summary judgment. Holding that Topcorp and RPI were not public bodies, the circuit court granted defendants’ motion for summary judgment and denied plaintiffs’ motion for summary judgment.\nWe affirm.\nBACKGROUND\nINTRODUCTION\nIn 1982, the City adopted a 20-year, mixed-use office development plan for downtown Evanston entitled \"Downtown II.” As part of this redevelopment plan, the City established a tax increment financing district to pay for public improvements in the infrastructure of the area targeted for redevelopment. In 1982 and 1983, the City and Northwestern held discussions about the possibility of participating in joint economic development projects in Evanston. Northwestern offered to make university-owned land within the Downtown II area available for a research park as a joint venture with the City. In 1986, after three years of negotiations, the City and Northwestern entered into a statement of understanding that set forth the basic guidelines under which the research park was to be developed.\nThe statement of understanding contemplated the creation of two private corporations to implement its stated goals. Accordingly, on June 17, 1986, Topcorp and RPI were incorporated as for-profit corporations under the Business Corporation Act of 1983 (Ill. Rev. Stat. 1985, ch. 32, par. 1.01 et seq.).\nThe Functions Performed by Topcorp and RPI\nTopcorp was created primarily to acquire the land within the area designated as the research park and make it available for development. In October 1986, Topcorp entered into a written agreement with Northwestern and the City to purchase over time the various parcels of land that will comprise the research park. Before the City signed the contract, it was submitted to the city council for its approval at an open meeting held after public notice. In the contract, Topcorp agreed to pay the seEer (either Northwestern or the City) the greater of the parcel’s cost to the seller or its appraised value. The agreement further provided that the relatively small portion of the research park area that was then owned by individuals or entities other than Northwestern or the City would be acquired by the City, either through purchase, eminent domain or otherwise, and then sold to Topcorp.\nRPI was created to serve as the operating entity that is responsible for developing the park by negotiating for the sale or lease of the land to developers or users of the property. In addition, RPI has the task of promoting interest in the park, marketing it to prospective tenants, making management and maintenance arrangements, securing site development plans, and otherwise overseeing its operation.\nCorporate Structure and Control of Topcorp and RPI\nTopcorp has 200 shares of capital stock outstanding: 100 shares are owned by Evanston, and 100 shares are owned by Northwestern. Neither the City nor Northwestern may sell its shares without the consent of the other. Each class is entitled to elect three directors to Topcorp’s six-member board of directors; no cumulative voting rights exist. The City-designated directors are the Evanston mayor, an alderman, and the city manager.\nRPI is a wholly owned subsidiary of Topcorp. The City and Northwestern are both entitled to appoint half of the 14 directors on the RPI board. The directors serve staggered three-year terms and may not be removed during their terms except by action of the RPI board. The City directors are appointed by the mayor with the consent of the city council, but the City-designated directors need not be public officials. As of June 1989, six of the seven RPI board members appointed by the City were private citizens; the seventh was an alderman.\nThe executive director of RPI is Ronald L. Kysiak, a private citizen whose salary is paid by Evanston Inventure, an entity made up and funded largely by private local businesses and by a contribution from the City. Initially, RPI’s staff consisted of seven full- and part-time employees on loan from Northwestern, whose services Northwestern provided to RPI on a pro bono basis. By March 1990, RPI had hired three people who served on its staff as independent contractors, but also retained several Northwestern employees on staff.\nDuring the early stages of the project, Evanston’s assistant city manager, Judith Aiello, provided general administrative assistance to RPI on a pro bono basis. By 1991, however, Aiello’s assistance to RPI had been greatly reduced.\nRPI has full control over its employees and has the right to dismiss them and to hire additional employees. RPI’s employees are not paid by Evanston. Likewise, they are not subject to State regulations regarding public employees, and they are not eligible for State retirement or insurance benefits.\nFunding of Topcorp and RPI\nAlthough the private sector is expected to provide the majority of the funding for the actual development of the research park, the initial plans estimate public expenditures of almost $24 million. Testimony adduced below established that projections indicate that the private sector will contribute $6 toward development for every $1 of public funding. Pursuant to the statement of understanding, the City and Northwestern are to equally absorb the operating costs incurred by Topcorp and RPI. In 1986, the City expended $50,000 for such expenses. RPI submitted a $500,000 operating budget to the City for 1987 and the City appropriated its $250,000 share after public debate and approval by the city council.\nFrom March 1983 through April 1991, the City spent approximately $6.9 million on expenses related to the research park, including $812,500 for the capitalization and operation of Topcorp and RPI. The City and Northwestern continue to contribute approximately $250,000 annually to Topcorp to fund RPI’s operating expenses. In addition, in 1990, the City and Northwestern each guaranteed $150,000 of a $300,000 loan that RPI obtained to rehabilitate a warehouse that was to be used as a small business incubator.\nPublic Involvement\nSince the inception of the research park project, the City’s involvement in the project has been subject to public scrutiny. In January 1986, the statement of understanding was publicly debated, voted on, and approved by the Evanston city council in an open meeting. Similarly, in March 1986, a resolution was passed by the city council at a public meeting, setting forth the criteria for exercising the City’s right to elect half of the directors on the Top-corp and RPI boards. Appropriations of City funds are publicly debated and decided. Condemnation proceedings and decisions with respect to the relocation of residents or businesses displaced by the project have been and will continue to be conducted by the City according to the rules governing public bodies. Finally, City officials periodically submit progress reports to the city council. These reports provide information to both the council and the public about the progress of construction and leasing activities undertaken by RPI and the private developer, as well as the land acquisition and capital improvements undertaken by the City.\nIn contrast to the City, Topcorp and RPI have operated from the outset as private corporations. RPI and Topcorp have conducted their board meetings and business negotiations in a private manner and have not made minutes of meetings or other documents available to the public.\nAt the preliminary injunction hearing in 1987, William Ihlanfeldt, who was vice-president for institutional relations and dean of admissions at Northwestern testified on behalf of Topcorp and RPI. Ihlanfeldt opined that compliance with the Open Meetings Act and FOIA would impair the research park’s ability to attract tenants and might make it impossible for the project to succeed. He testified that RPI had been negotiating with several prospective tenants, including electronics, pharmaceutical and manufacturing firms, and that those prospective tenants typically insisted that negotiations remain confidential because they feared being put at a competitive disadvantage if they were required to disclose the nature of the research they were conducting.\nProcedural History\nOn April 24, 1987, plaintiffs filed this suit seeking to have Top-corp and RPI declared public bodies subject to the Open Meetings Act and FOIA. Plaintiffs moved for a preliminary injunction which the circuit court denied on June 3, 1987.\nPlaintiffs then filed an interlocutory appeal and this court afiirmed in a two to one decision, Hopf I (170 Ill. App. 3d 85). In that appeal, this court determined that the only relevant issue was whether plaintiffs could demonstrate a likelihood of success on their contention that Topcorp and RPI were \"subsidiary bodies” of the City and, therefore, \"public bodies” subject to compliance with the Open Meetings Act and FOIA. (Hopf, 170 Ill. App. 3d at 91.) As this court noted in Hopf I, the considerations relevant to the determination of whether an entity is a \"subsidiary body” are set forth in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence (1978), 64 Ill. App. 3d 94. The Rockford test requires the court to consider three factors: (1) whether the entity has a legal existence independent of government resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted over the entity. Rockford, 64 Ill. App. 3d at 96-97.\nIn Hopf I, this court determined that the record supported the following findings of fact made by the circuit court: (1) Topcorp and RPI were privately incorporated; (2) the function of Topcorp was to purchase land from the City and Northwestern; (3) the function of RPI was to oversee the private development of the real estate; and (4) the respective boards and employees of Topcorp and RPI were independent of direct government control. (Hopf, 170 Ill. App. 3d at 92.) This court concluded that under the Rockford test, the plaintiffs had not demonstrated a likelihood of success on the merits. Therefore, we held that the circuit court did not abuse its discretion in denying plaintiffs’ request for a preliminary injunction.\nThe parties then returned to the circuit court and conducted additional discovery. Defendants filed a motion for summary judgment. Plaintiffs cross-moved for summary judgment, agreeing that the material facts were not in dispute, but arguing that those facts demonstrated that Topcorp and RPI were \"public bodies” and, therefore, should be subject to the Open Meetings Act and the FOIA. The circuit court granted summary judgment in favor of Topcorp and RPI, and denied plaintiffs’ motion for summary judgment. This appeal followed.\nANALYSIS\nBecause plaintiffs appeal from an order of summary judgment, we apply the de novo standard of review to the decision below. Quality Lighting, Inc. v. Benjamin (1992), 227 Ill. App. 3d 880, 884; Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659.\nThe Illinois Open Meetings Act defines a \"public body” to include:\n\"all legislative, executive, administrative or advisory bodies of the state, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 102, par. 41.02.)\nThe Illinois Freedom of Information Act contains a substantially identical definition of a \"public body.” See Ill. Rev. Stat. 1985, ch. 116, par. 202(a).\nAs in the prior appeal, plaintiffs do not claim that Topcorp and RPI constitute legislative, executive, administrative, or advisory bodies of State or local government. Thus, the only issue before this court is whether the two corporations are \"subsidiary bodies” of the City as that term is used in both Acts.\nAs before, the Rockford test provides the focus for our inquiry. The evidence relating to the three factors set forth in Rockford is essentially the same as it was in the previous appeal. First, Topcorp and RPI were and remain incorporated under the Illinois Business Corporation Act. Second, the functions of the two corporations remain proprietary: Topcorp purchases land and acts as a holding company for RPI; RPI develops the land and then markets space in the research park to potential tenants. Finally, the corporate structure of the two corporations is unchanged: both the City and Northwestern own one-half of the outstanding shares and appoint one-half of the directors. Although both the City and Northwestern are able to influence the direction and decisions of the two corporations through their appointment power, neither the City nor Northwestern can control the two corporations.\nHowever, plaintiffs argue that additional evidence revealed during discovery after remand indicates that the City does exercise control through its \"veto power” and that the City is actively involved in the day-to-day activities of Topcorp and RPI. Plaintiffs assert that the record now shows:\n1. The three Topcorp directors appointed by the City (the mayor, city manager and alderman) voted as a bloc on a preliminary agreement between RPI and a private company to develop the research park, and dictated to RPI their requirements for the final contract.\n2. The city manager negotiated, on behalf of the City, the terms of the master agreement to sell real estate to Topcorp, then voted to approve the agreement as a Topcorp director, along with Mayor Barr and Alderman Davis, the other two City appointees.\n3. The three City-appointed Topcorp board members, discuss the business of Topcorp and RPI among themselves in between board meetings.\n4. City-appointed board members of Topcorp and RPI served on every operating committee of the corporations.\n5. Judith Aiello, the assistant city manager, was designated by RPI in its documents as an RPI staff member. Aiello performed administrative duties for RPI, attended meetings of RPI’s board and various committees, and offered ideas and gave input into RPI’s activities. The city manager in a letter to RPI’s executive director, designated Aiello as the City’s \"point person” for RPI.\n6. Neither Topcorp nor RPI has any real assets. The City, in addition to funding defendants’ operating budgets in the amount of $812,500 to date, guaranteed one-half of a $300,000 loan to RPI for improvement of tenant space in the research park.\nWith respect to items 1 through 3, plaintiffs essentially argue that the City is able to control the decision-making process of Top-corp and RPI through the actions of its appointed directors. According to plaintiffs, the City appointees on the Topcorp board vote as a bloc and, therefore, are able to exercise a \"veto” power over Topcorp’s operations.\nInitially, plaintiffs direct our attention to a letter sent to the RPI board by the City appointees to the Topcorp board and argue that the letter indicates that the City used its voting strength to dictate terms to Topcorp and RPI. This letter was prompted by RPI’s request for consent by the Topcorp board to a preliminary memorandum agreement between RPI and a private developer; Topcorp’s consent was necessary because the memorandum affected its interests. The three City appointees to the Topcorp board gave their consent, but noted a number of areas of concern. For example, they indicated that the final agreement should protect Topcorp against having to sell property to the developer at a price that was lower than the price Topcorp was obligated to pay either the City or Northwestern. The board members also suggested, inter alia, that limitations on budget increases for the private developer be discussed and conditions under which the private developer could extend the final closing date be negotiated.\nWe disagree with plaintiffs’ characterization of this letter. The letter indicates that Topcorp board members are concerned about safeguarding the welfare of their corporation. The letter does not demonstrate that the City controls Topcorp or RPI.\nNext, plaintiffs argue that the City’s ability to dictate terms to Topcorp is demonstrated by the fact that the City manager negotiated an agreement with Topcorp for the purchase of land from both the City and Northwestern, and then voted on it as a Topcorp director. However, there is no evidence that the City insisted on certain terms in that agreement or that there was ever any dispute about what the terms ought to be. The agreement simply reiterates the terms that had already been agreed upon between Northwestern and the City in\" the statement of understanding. The statement of understanding contains the critical terms: the purchase price to be paid, the terms of the purchase money note to be given to the seller by Topcorp, and the acquisition schedule.\nFinally, plaintiffs point to testimony that indicates that the City appointees confer with each other before board meetings. We remain unconvinced. The fact that board members confer with each other prior to meetings does not demonstrate that the Topcorp directors were engaging in bloc voting.\nWith respect to item 4, plaintiffs assert that the City is able to control the decision-making process of Topcorp and RPI via the City appointees’ membership on the corporations’ operating committees. However, the record indicates otherwise.\nTopcorp has only one committee, a budget committee, and both the City and Northwestern are equally represented on this committee. RPI’s board of directors has five committees: an executive committee and four subject area committees (finance; minority business education and training; environment and safety; and development). Evanston appointees do not constitute a majority on any committee except the minority business education and training committee.\nNext, in item 5, plaintiffs argue that Judith Aiello, a City employee, is a staff member of RPI and through her the City participates in the day-to-day activities of RPI. Again, the record does not support plaintiffs’ assertions.\nAiello testified that during the early stages of the project, she provided general administrative assistance to RPI on a pro bono basis. By June 1991, Aiello’s assistance to RPI had been greatly reduced. She no longer attended committee meetings and attended meetings of the RPI board of directors only if requested to do so in order to provide information about the City’s progress in meeting its obligations with respect to land acquisition and infrastructure improvements. Aiello testified that while she was referred to in some documents as RPI \"staff” she was never officially a staff member of RPI and was never compensated for her assistance to RPI.\nFinally, in item 6, plaintiffs assert that the amount of City funding provided to Topcorp and RPI renders the corporations subsidiary bodies of the City. In Hopf I, this court noted that although the amount of public funds contributed to the entity in question is a factor to be considered, a large percentage of public funding alone will not create a \"subsidiary body.” (Hopf, 170 Ill. App. 3d at 91.) Furthermore, the nature of the financial involvement should be considered. Hopf, 170 Ill. App. 3d at 91.\nThe Rockford decision is also instructive on the issue of funding. In Rockford, the court held that the defendant was exempt from the Open Meetings Act despite the fact that 90% of the corporation’s funding came from government sources, and stated:\n\"The amount or percentage of governmental funding of a private entity should have no bearing on whether that entity is characterized as a subsidiary for purposes of the Open Meetings Act. Although the Act itself provides that a particular entity need not be publicly funded in order to be required to hold open meetings, it does not state that public funding alone will make a particular entity subject to the Act. To imply such a statutory intent would [a]ffect large numbers of completely private entities that receive a large portion of their funding from the State.” Rockford, 63 Ill. App. 3d at 96.\nIn the instant case, the majority of the funds that the City has expended were not used to operate Topcorp and RPI, but instead were used to make infrastructure improvements to the area where the research park is located. Similarly, the cost of land acquisitions does not constitute government funding of Topcorp and RPI; the City does not donate this land to Topcorp, but instead sells the land to Topcorp. While the terms of the sale are favorable to Topcorp, the City does expect to recoup its investment and recover a profit if the venture is successful. The only direct government support that the corporations receive is the City’s annual contribution of $250,000, which is matched by Northwestern. Thus, the City contributes 50% of the corporations’ funding. This contribution, in and of itself, does not render the corporations public bodies. See Hopf, 170 Ill. App. 3d at 91.\nIn sum, the alleged new evidence of City control and involvement in the day-to-day operations of the two corporations is unpersuasive. Therefore, the circuit court properly granted summary judgment for defendants.\nAffirmed.\nMURRAY and McNULTY, JJ., concur."}
{"dedup_key":"pre1996-126830","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"168 ill-app-3d 341","case_name":"Griffith Laboratories U.S.A. v. The Metropolitan Sanitary District of Chicago","court_level":"Appellate","appellate_district":null,"year":1988,"county":null,"appellate_docket":"87-1349","circuit_docket":null,"published":1,"authoring_justice":"Jiganti","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Metropolitan Sanitary District of Greater Chicago","requesting_party":"Griffith Laboratories U.S.A.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that sampling data and calculations compiled by the Metropolitan Sanitary District were exempt from disclosure under the FOIA's investigatory records exemption. Disclosure was denied because it would interfere with pending or contemplated enforcement proceedings regarding the District's User Charge Ordinance.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=126830","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:59.520488","site_category":"General Records Exemptions","date_decided":"1988-03-24","site_url":"/cases/pre1996-126830/","text_url":"/case-text/pre1996-126830.txt","full_text":"GRIFFITH LABORATORIES U.S.A., Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF CHICAGO, Defendant-Appellee.\nFirst District (4th Division)\nNo. 87—1349\nOpinion filed March 24, 1988.\nBarbara Anne Magel, of Karaganis & White Ltd., of Chicago, and Gregory Schmidt and James Legg, both of Griffith Laboratories U.S.A., of Alsip, for appellant.\nAllen S. Lavin, James B. Murray, and Antoni E. Wesolowski, all of Chicago, for appellee.\n\nPRESIDING JUSTICE JIGANTI\ndelivered the opinion of the court:\nThe plaintiff, Griffith Laboratories U.S.A., brought this appeal from an order of the trial court denying its request pursuant to the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.) for disclosure of certain sampling data and calculations compiled by the defendant, Metropolitan Sanitary District of Greater Chicago (MSD). The question before us is whether the information sought by Griffith is exempt from disclosure under section 7(c)(i) of the FOIA. (Ill. Rev. Stat. 1985, ch. 116, par. 207(c)(i).) Section 7(c)(i) exempts from disclosure “[i]nvestigatory records compiled for State or local administrative law enforcement purposes,” to the extent that disclosure would “interfere with pending or actually and reasonably contemplated enforcement proceedings.” Ill. Rev. Stat. 1985, ch. 116, par. 207(c)(i).\nThe MSD is a public agency charged with the responsibility of collection, treatment and disposal of sewage in the Chicago metropolitan area, as well as enforcement of State and Federal water pollution laws. Section 46 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. IIIV2, pars. 1046(b), (c)) empowers the MSD to enact ordinances providing for proportionate cost sharing by users of the MSD’s waste-treatment services. Pursuant to this statutory authority, the MSD enacted its User Charge Ordinance, which provides for proportionate cost sharing and sets up a system which enables the MSD to secure compliance with those provisions. The system is essentially a self-reporting one, requiring users to sample the wastes which they discharge into the sewer system and report the results to the MSD. The ordinance calls for sampling to be done on an annual basis, but requires that any additional sampling performed by the user be reported to the MSD. Section 5 of the User Charge Ordinance enables the MSD to monitor the self-reporting system by conducting its own inspections and sampling analyses. In determining the amount of the user’s bill, the MSD may rely upon the self-reported data, MSD data, or a combination of the two. Section 9 contains an appeals process which allows the user to challenge the bill by submitting a “detailed written request” specifying the reasons for the challenge. Section 10 provides for enforcement of the ordinance, stating that the MSD “may sue to recover any and all amounts due and owing as provided herein and take such other and further action as may be necessary to recover all such sums due it hereunder, restrain any unlawful discharge and otherwise compel compliance with the provisions of this Ordinance.” (Emphasis added.)\nGriffith is classified as a large commercial-industrial user under the ordinance and operates plants in Chicago and Alsip, Illinois. In 1985, Griffith received a bill from the MSD which was significantly higher than bills for previous years. Griffith sought to challenge the bill through the User Charge Ordinance’s appeals process and asked the MSD for its sampling data and calculations in order to prepare the “detailed written request” required by the ordinance. The MSD replied that pursuant to its standard operating procedure, MSD sampling data would be released to Griffith only after Griffith turned over to the MSD all of Griffith’s sampling data for the period in question. The MSD did, however, provide Griffith with a “summary table” of the data and calculations used in arriving at Griffith’s bill.\nGriffith then filed a two-count complaint for injunctive relief, seeking a court order to compel disclosure of the MSD sampling data and calculations pursuant to the Illinois Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). The complaint was subsequently amended to add counts III and IV, which requested the sampling data and calculations used by the MSD in determining Griffith’s estimated monthly user charge for 1987. The MSD filed a motion to dismiss under section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619) alleging that the requested information was exempt from disclosure under section 7(c)(i) of the FOIA. This section exempts from disclosure investigatory records compiled for law enforcement purposes to the extent that disclosure would interfere with pending or actually and reasonably contemplated enforcement proceedings. (Ill. Rev. Stat. 1985, ch. 116, par. 207(c)(i).) Attached to the motion to dismiss were a copy of the User Charge Ordinance and the affidavit of Cecil Lue-Hing, the MSD director of research and development, which stated that an enforcement proceeding was contemplated if Griffith did not pay the bill and that disclosure of the requested records would interfere with the enforcement proceeding.\nAttached to Griffith’s second-amended complaint, which requested the sampling data and calculations used by the MSD in computing the estimated monthly user charge for 1987, were copies of correspondence which revealed that the MSD again relied upon exemption 7(c)(i) to deny Griffith’s FOIA request. In a letter dated February 20, 1987, MSD’s general superintendent Frank E. Dalton stated that the requested records were compiled by the MSD and used to verify the user-established sampling data in order to administer that the User Charge Ordinance. Dalton restated the MSD’s standard operating procedure which requires the user to certify that it had given the MSD all of its sampling data before the MSD would furnish the user with MSD verification sampling data.\nAt a hearing on a motion to dismiss, counsel for the MSD amplified the reasons for the MSD’s position that release of its data prior to receiving assurance that it had been given all of Griffith’s data would interfere with the MSD’s enforcement of the User Charge Ordinance. Counsel stated that if the MSD were required to give the user MSD verification sampling data before obtaining all user-established data for the same period, there would be a danger that in a subsequent dispute over the amount of a bill, the user would eliminate any of its own sampling data which showed higher concentrations of waste than the data compiled by the MSD. Counsel for Griffith responded that its sampling was done by an independent laboratory and that for MSD’s fears to be realized, fraud and conspiracy to commit fraud would have to be presumed.\nAt the conclusion of the hearing, the trial court denied MSD’s motion to dismiss as to counts I and II, which involved the 1985 data and calculations, but granted the motion as to counts III and IV, which pertained to the data and calculations used to formulate the 1987 bill. This appeal concerned only the propriety of the trial court’s order dismissing counts III and IV.\nOn appeal, Griffith contends that the dismissal of counts III and IV constituted error because the MSD’s motion to dismiss contained only conclusory statements which were insufficient to support its claim that the requested records are exempt from disclosure under section 7(c)(i) of the FOIA. Essentially, Griffith advances two arguments regarding the sampling data and calculations which it seeks to obtain from the MSD. First, it maintains that the requested informar tion constitutes “routine accounting materials” used to calculate a bill rather than investigatory records compiled for administrative law enforcement purposes. Second, it claims that even if the data were to be considered investigatory records, the MSD failed to establish that disclosure would interfere with a pending or actually and reasonably contemplated enforcement proceeding.\nThe purpose of the Illinois FOIA is to ensure that the public be given full and complete information regarding the affairs of government. (Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 511 N.E.2d 759.) To that end, the statute provides that the stated exemptions “should be seen as limited exceptions to the general rule” of disclosure. (Ill. Rev. Stat. 1985, ch. 116, par. 201.) Courts interpreting the exemptions have held that they must be narrowly construed. (City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896.) However, as pointed out by the MSD, the FOIA also states that “[t]his Act is not intended to be used *** for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.” Ill. Rev. Stat. 1985, ch. 116, par. 201.\nThe exemption at issue in the case at bar provides:\n“The following shall be exempt from inspection and copying:\n(c) Investigatory records compiled for State or local administrative law enforcement purposes *** but only to the extent that disclosure would:\n(i) interfere with pending or actually and reasonably contemplated enforcement proceedings.” (111. Rev. Stat. 1985, ch. 116, par. 207(cXi).)\nThe parties have not called our attention to any Illinois case interpreting this exemption. However, because the Illinois FOIA closely parallels the Federal FOIA, the interpretations adopted by the Federal courts are particularly persuasive with respect to the issue before us.\nThe first argument made by Griffith is that the requested records containing sampling data and calculations are “routine accounting materials” used to determine Griffith’s bill rather than investigatory records compiled for local administrative law enforcement purposes. Griffith claims that to be considered investigatory records, the records must be created during the course of a search for evidence of some suspected violation of MSD requirements. As summarized earlier, the User Charge Ordinance sets up a system in which self-reported data generated by the user is employed in determining the amount of the user’s bill. In order to compel compliance with the requirements of the self-reporting system, the MSD monitors the user’s data by conducting its own sampling. In other words, it investigates to determine whether the user is meeting the requirements of the ordinance, thereby compelling compliance with the self-reporting system. Using this reasoning, we believe that the requested records are properly considered investigatory records compiled for law enforcement purposes.\nThe second argument raised by Griffith poses a far more difficult question. Griffith contends that the MSD has failed to establish that disclosure of the requested records would interfere with a pending or actually and reasonably contemplated enforcement proceeding. In our view, the key to resolving this question lies in determining the scope of the term “enforcement proceeding” in the context of the instant cause.\nGriffith correctly asserts that the majority of cases interpreting the term “enforcement proceeding” within the meaning of the FOIA exemption from disclosure involve situations in which a law enforcement agency suspects that a certain subject is violating the law. (Hatcher v. United States Postal Service (D.D.C. 1982), 556 F. Supp. 331; Hunt v. Commodity Futures Trading Comm’n (D.D.C. 1979), 484 F. Supp. 47.) Obviously, in those cases, the agency conducts an investigation with a view toward instituting an adjudicatory proceeding against the suspected violator. The case at bar differs from this scenario because the essential task of the MSD in administering the User Charge Ordinance is not to prosecute violators, but rather to ensure an accurate determination of the user’s bill by compelling compliance with the self-reporting system set up under the ordinance. A very similar factual setting was presented in Moorefield v. United States Secret Service (5th Cir. 1980), 611 F.2d 1021, cert, denied (1980), 449 U.S. 909, 66 L. Ed. 2d 139, 101 S. Ct. 283.\nIn Moorefield, a man who was twice convicted of threatening the life of the United States President filed suit under the Federal FOIA to gain access to the file maintained on him by the Secret Service. The Secret Service moved for summary judgment on the grounds that the file was exempt from disclosure as an investigatory record compiled for law enforcement purposes, disclosure of which would interfere with an enforcement proceeding. (5 U.S.C. §552(b)(7)(A) (1982).) The motion was granted and Moorefield appealed, claiming that no enforcement proceeding existed because the Secret Service was not contemplating any judicial proceeding against him. Thus, he argued, disclosure of the file could not interfere with an enforcement proceeding within the meaning of the FOIA exemption. In rejecting Moore-field’s argument, the court made a distinction between “prosecutorial” investigations and “protective” investigations. It noted that the primary law enforcement purpose of the Secret Service was not to prosecute persons who attacked the President, but rather to prevent such attacks from occurring. Specifically, the court stated:\n“In discharging its responsibility to protect the President, the Secret Service does not conduct its routine investigations with a view towards apprehending law-breakers and bringing them to justice. Thus, if the Service has succeeded in its prophylactic mission, it should never appear in an adjudicatory proceeding to prosecute the assailant of a President, or any of its other protectees. Its job is to prevent an attack from ever being made. In the views of Senator Hart, who introduced the 1974 exemption amendment (including section 7(A)), ‘enforcement proceedings’ correspond with ‘law enforcement purposes,’ and such purposes include the prevention as well as the detection and punishment of violations of the law. (Citations omitted.)” (Moorefield v. United States Secret Service (5th Cir. 1980), 611 F.2d 1021, 1025, cert, denied (1980), 449 U.S. 909, 66 L. Ed. 2d 139, 101 S. Ct. 283.)\nThus, the Moorefield court noted that the Secret Service accomplishes its purpose by conducting protective investigations rather than investigations designed to result in the prosecution of the particular subject. The court stated that under such circumstances the Secret Service investigations were directed toward an “active and concrete effort to enforce the law,” and therefore constituted an enforcement proceeding, even though no judicial proceeding was contemplated.\nIn the case at bar, the purpose of the MSD in administering the User Charge Ordinance is to collect from each user its proportionate share of the cost involved in treating the sewage discharged into the sewer system. It does this primarily by relying upon a self-reporting system under which each user samples its own wastes. The purpose of the MSD in monitoring the user by collecting its own sampling data is to ensure compliance with the self-reporting system and thereby prevent violations of the ordinance. As in Moorefield, if the MSD succeeds in accomplishing this preventive mission, an adjudicatory proceeding to prosecute violations would not be necessary. Applying the Moorefield, analysis, we conclude that the records in question were compiled as part of an investigation directed toward an active and concrete effort to enforce the law. In the context of the factual setting before us, this effort in itself constitutes an “enforcement proceeding” within the meaning of section 7(c)(i) of the FOIA.\nFinally, we are satisfied that the MSD has established that disclosure of the records would interfere with its efforts to enforce the User Charge Ordinance. As stated earlier in this opinion, the MSD advanced the possibility that if the user had access to the MSD sampling data before furnishing all user-established data to the MSD, the user would have no incentive to report any of its own sampling data that showed higher concentrations of waste than those contained in the MSD samples. The self-reporting system as it now stands under the User Charge Ordinance would effectively be rendered useless. Although not essential to our disposition, we note that the MSD’s argument as to the likelihood of interference is bolstered by its “standard operating procedure” with respect to the release of its sampling data to the user. The MSD is not resisting disclosure under all circumstances. Rather, it has stated that it would release the requested records if Griffith would certify that it has given the MSD any or all of its own sampling data for the time period in question. It appears from this position that the MSD is not adopting a general resistance to disclosure but is attempting to address what it perceives to be a valid danger to its administration of the User Charge Ordinance.\nAccordingly, the judgment of the circuit court is affirmed.\nAffirmed.\nLINN and McMORROW, JJ., concur.\nSection 552(b) of the Federal FOIA provides: “This section does not apply to matters that are *** (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings ***.” 5 U.S.C. §552(bX7XA) (1982)."}
{"dedup_key":"pre1996-127342","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"170 ill-app-3d 85","case_name":"Hopf v. Topcorp, Inc.","court_level":"Appellate","appellate_district":"1st","year":1988,"county":null,"appellate_docket":"87-2100","circuit_docket":null,"published":1,"authoring_justice":"Lorenz","statute":["FOIA","OMA"],"exemptions_cited":[],"public_body":"Topcorp, Inc. and Research Park, Inc.","requesting_party":"Jeanne Hopf et al.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the defendant for-profit corporations were not 'subsidiary bodies' of the City of Evanston and therefore were not subject to the requirements of the Open Meetings Act or the Freedom of Information Act. The court affirmed the denial of the plaintiffs' request for a mandatory injunction to open the corporations' meetings and records to the public.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=127342","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:18:59.527837","site_category":"Public Body Definition","date_decided":"1988-02-05","site_url":"/cases/pre1996-127342/","text_url":"/case-text/pre1996-127342.txt","full_text":"JEANNE HOPF et al., Plaintiffs-Appellants, v. TOPCORP, INC., et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 87—2100\nOpinion filed February 5, 1988.\nRehearing denied March 14, 1988.\nPINCHAM, J., dissenting.\nRichard Stillerman, of Evanston, and Marshal Patner, of Chicago, for appellants.\nRoger W. Barrett, John M. Touhy, and Kevin C. Alston, all of Mayer, Brown & Platt, of Chicago, for appellees.\n\nPRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nThis is an interlocutory appeal, pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307) from an order which denied plaintiffs’ request for a mandatory injunction. The action was brought to compel two Illinois for-profit corporations to comply with the provisions of the Illinois Open Meetings Act and the Illinois Freedom of Information Act. (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.; Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq. (the Acts).) On appeal plaintiffs contend that defendants have failed to meet their burden in demonstrating that they are not subject to the provisions of the Acts.\nThe following facts are pertinent to our disposition. Plaintiffs’ motion for a preliminary injunction arose in their action seeking mandamus, declaratory, and injunctive relief to make meetings and documents open to the public pursuant to the Acts. The plaintiffs are citizens, residents, and taxpayers of Evanston, Illinois. The defendants are Topcorp, Inc. (Topcorp), and Research Park, Inc. (RPI), for-profit corporations organized pursuant to a statement of understanding dated February 5, 1986, between the City of Evanston (City) and Northwestern University to develop a research park on 22 acres of downtown Evanston property owned principally by the City and Northwestern. RPI is a wholly owned subsidiary of Topcorp.\nThe plan for the research park originated with Northwestern University, located in Evanston. The purpose of the research park is to offer companies a laboratory and other facilities for basic industrial research. Specifically, according to the statement of understanding, Topcorp and RPI were created to: (1) enhance the tax base of the City; (2) provide jobs for City residents; and (3) encourage new business development. On January 13, 1986, the Evanston city council authorized the City’s participation in the development by passing a motion to adopt the statement. In February 1986, after three years of negotiations, the City and Northwestern entered into their statement of understanding.\nThe negotiation process was exhaustive. Discussions were held between the City and the University in 1982 and again in 1983. In 1982, the City had adopted a 20-year, mixed-use office development plan for downtown Evanston entitled “Downtown II.” As part of this redevelopment plan, the City established a plan to pay for public improvements in streets, sewers, and other elements of the infrastructure in the area targeted for redevelopment. In December 1983, Northwestern University offered its land within the Downtown II area for a research park as a joint venture with the City. Northwestern’s Basic Industry Research Laboratory (BIRL), which has since been constructed on Northwestern University’s property, was to be the anchor building of the development.\nPursuant to the terms of the statement of understanding, Topcorp and RPI were incorporated as for-profit corporations on June 17, 1986, under the Business Corporation Act of 1983 (Ill. Rev. Stat. 1985, ch. 32, par. 1.01 et seq.). Topcorp was created primarily to purchase the land within the area designated as the research park and make it available for development. Topcorp has 200 shares of capital stock outstanding: 100 shares of class A and 100 shares of class B. The City owns all of the class A shares and Northwestern University owns all of the class B shares. Neither class may sell its shares without the consent of the other. There is no cumulative voting right for the election of directors and each class is entitled to elect three directors to Topcorp’s six-member board of directors. The three City-designated Topcorp directors are the Evanston mayor, an alderman, and the City manager.\nRPI was created to serve as the operating entity that is responsible for developing the park by negotiating for the sale or lease of the land to developers or users of the property. In addition, RPI has the task of promoting interest in the park, marketing it to prospective tenants, making management and maintenance arrangements, securing site development plans, and otherwise overseeing its operation. RPI issued 100 shares of common stock, all of which is owned by Top-corp. There is no cumulative voting for directors. The RPI board initially consists of 14, and thereafter up to 19, directors. The City and Northwestern University each designated seven initial directors. The City directors are appointed by the mayor with the consent of the city council.\nThe executive director of RPI is Ronald L. Kysiak, a private citizen whose salary is paid by Evanston Inventure, an entity made up of and funded largely by private local businesses and by a contribution from the City. The directors, who were appointed by the City, are an alderman, who is also chairman of the City’s economic development committee, a member of the City’s economic development committee, and a former mayor of the City. RPI currently has a staff of seven full- and part-time employees, on loan from Northwestern University. The budget is prepared by this staff. RPI has full control over its employees and retains the right to dismiss them or to hire additional employees. RPI’s employees are not paid by Evanston; they are not subject to State regulations regarding public employees; and they are not eligible for State retirement or insurance benefits.\nWhile it is true that the operation of the research park has not been subject to public meetings, its formation was a result of city-council approval following a public meeting. The statement of understanding was publicly debated, voted on, and approved by the Evanston city council by a vote of 13 to 5. It was an open meeting in which nearly 50 private citizens spoke with regard to the project. In addition, in March of 1986 a resolution was passed by the city council, at a duly held public meeting, setting forth the criteria for exercising the City’s right to elect half of the directors of the Topcorp and RPI boards. Pursuant to that resolution, the mayor, the City manager, and an alderman were to be elected to the Topcorp board. However, the members of the RPI board elected by the City were not limited to public officials.\nIn October 1986, Topcorp entered into a written agreement with Northwestern University and the City of Evanston to purchase, over time, the various parcels of land that will comprise the research park. This contract was submitted to the Evanston city council for its approval at an open meeting and was then signed. In this agreement, Topcorp agreed to pay the seller, which would be Northwestern University or the City of Evanston, the greater of the parcel’s cost to the seller or its appraised value. The agreement further provided that the portion of the research park area that is currently owned by individuals or entities other than Northwestern University or Evanston will be acquired by Evanston either through purchase, eminent domain, or otherwise, and then sold to Topcorp.\nWhile it is anticipated that the private sector will provide the majority of the funding for the actual development of the research park, the initial plans estimate public expenditures of almost $24 million. The testimony adduced below established that current projections indicate that the private sector will contribute $6 toward development for every $1 of public funding. Under the statement of understanding, the City of Evanston and Northwestern University are to equally absorb the operating costs incurred by Topcorp and RPI. In fiscal 1986, Evanston expended $50,000 for such expenses. RPI submitted a $500,000 operating budget to the City for fiscal 1987 and Evanston appropriated its $250,000 share after public debate and approval by the city council.\nIn February 1987, plaintiff Hopf had made a demand on Joel Asprooth, Evanston city manager and board member of Topcorp, for copies of the minutes of both Topcorp and RPI meetings. Plaintiff received no response to her demand. At a city council meeting on March 9, 1987, an alderman requested that Topcorp and RPI make available to the public minutes of their board meetings. There was never a response to that request. On March 12, 1987, plaintiff made written demands of both Topcorp and RPI for minutes and other documents of the board, committee meetings and other corporate documents. In a letter dated March 17, 1987, RPI refused to comply with these requests.\nOn April 24, 1987, plaintiffs filed this suit seeking to have Top-corp and RPI declared public bodies subject to the Open Meetings Act and Freedom of Information Act. On plaintiffs’ motion for a mandatory preliminary injunction, the circuit court held a hearing and heard the testimony we have summarized. On June 3, 1987, the court denied plaintiffs’ motion. On July 6, 1987, plaintiffs filed this interlocutory appeal.\nOpinion\nAs plaintiffs concede, in reviewing a case on a preliminary injunction, we must decide whether the trial court abused its discretion in granting or denying the injunction. (Wilton Mortuary, Inc. v. Woolsey-Wilton Funeral Home, Ltd. (1986), 140 Ill. App. 3d 1074, 489 N.E.2d 319.) Plaintiffs are not entitled to injunctive relief unless they establish by a preponderance of the evidence the following four elements:\n“(1) [T]he existence of a protectable right, (2) irreparable harm should the injunction not be forthcoming, (3) no adequate remedy at law, and (4) a likelihood of success on the merits.” Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 418-19, 468 N.E.2d 1019.\nWith regard to the first element, as listed above, if defendants are found to be a public entity there is no question that plaintiffs have a protectible right. (See People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) In addition, it is not just the meetings of defendants that would be subject to the Open Meetings Act. Deliberations would be subject to the provisions of the Acts as well. (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731.) As such, plaintiffs clearly have established a protectible right, if defendants are found to be a public entity, insofar as meeting the first element of successful injunction.\nWith regard to the second element, it is true that if Topcorp is ultimately found to be subject to the Open Meetings Act, the violation thereof is both irreparable and continuing. Additionally, there is no dispute from defendants that the plaintiffs have met their burden with regard to the third element.\nThe crux of our inquiry lies within the fourth element — a likelihood of success on the merits. The Illinois Open Meetings Act requires only that public business be conducted publicly. (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731.) The purpose of the Act is to “provide disclosure of information about government affairs and its representatives’ official acts.” (Carrigan v. Harkrader (1986), 146 Ill. App. 3d 535, 496 N.E.2d 1213.) Thus, the question presented is whether Topcorp is, in essence, a public entity performing a public function.\nThe Illinois Open Meetings Act defines a “public body” to include:\n“all legislative, executive, administrative or advisory bodies of the state, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 102, par. 41.02.)\nThe Illinois Freedom of Information Act contains a substantially identical definition of a “public body.” See Ill. Rev. Stat. 1985, ch. 116, par. 202(a).\nPlaintiff does not claim specifically that defendants Topcorp and RPI constitute legislative, executive, administrative, or advisory bodies of State or local government. Therefore, the relevant consideration is whether the two corporations are “subsidiary bodies” of the City of Evanston as that term is used in both Acts.\nThe considerations pertinent to the determination of whether an entity is a “subsidiary body” are contained in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence (1978), 64 Ill. App. 3d 94, 380 N.E.2d 1192, a case which all parties agree is controlling. The Rockford court found that the legal nature of an entity and the independence of the board of directors and employees of the entity from direct governmental control are extremely significant factors in determining whether an entity constitutes a “subsidiary body.” The amount of public funds is also to be considered. However, a large percentage of public funding alone will not create a “subsidiary body”; the court may consider the nature of the financial interest. Finally, the court must look to the degree of government control and the nature of the functions performed by the entity. While general supervision does not transform the supervised company into a subsidiary of the government, substantial, day-to-day supervision might indicate otherwise. Rockford, 64 Ill. App. 3d at 96, 380 N.E.2d at 1193.\nPlaintiffs argue that Topcorp is public in nature under the Rockford standards. Specifically, plaintiffs note that the statement of understanding between Evanston and Northwestern University provides for the corporation’s creation, establishing its public and private functions, setting up a structure for stock ownership and control by the City. Further, the public membership on defendant’s corporations’ boards and the public responsibilities of those public members are mandated by a city council resolution. For these reasons, plaintiffs suggest that Topcorp is subject to the Open Meetings Act.\nOn the other hand, defendants note that both Topcorp and RPI were organized as for-profit corporations, and their respective shareholders intend and hope that the corporations will make a profit. Further, the corporations were designed to implement the proprietary — as opposed to governmental — aspects of the development plan. In addition, defendants assert that plaintiffs’ contentions regarding the supposed purposes of the corporations confuse the functions of the corporations with motives of one of the two corporate shareholders. While Evanston decided to invest in the corporations because the research park was expected to increase the tax base, create new jobs and encourage business development, its motivation as a shareholder cannot be used to convert the proprietary functions of the corporations into public, governmental functions.\nIn reviewing the preliminary evidence before it with respect to the factors set out in Rockford, the trial court specifically determined that the formal legal nature of Topcorp and RPI is that they are privately incorporated. The court also determined that the respective corporations’ boards and employees are independent of direct governmental control. Further, Evanston’s investment in the corporations and Northwestern University’s decision to invest therein did not create those privately incorporated entities. The court determined that the principal function of Topcorp was to purchase land from Evanston and Northwestern. RPI’s principal function was to oversee the private development of the real estate. While the court below made no specific findings regarding the amount of public funding, the record discloses that it is projected that the private sector will provide the majority of the funding for the actual development of the research park.\nAs to the degree of governmental control exercised, the trial court found that Evanston’s supervision is general in nature, as is Northwestern University’s. Specifically, the supervision is intended only to protect the investments made and to see that the venture becomes self-sustaining. The record supports the above determinations. Based on its considerations, the trial court denied the motion for a preliminary injunction. We see no reason to disturb that determination.\nOrdinarily, a preliminary injunction serves the purpose of preserving the status quo until the trial court can consider the case on the merits (Hill v. Village of Pawnee (1973), 16 Ill. App. 3d 208, 305 N.E.2d 740); however, granting the injunctive relief sought in this case would alter the status quo. As previously stated, a preliminary injunction is an extraordinary remedy and should be granted with the utmost care. (G. A. Carney, Ltd. v. Brzeczek (1983), 117 Ill. App. 3d 478, 453 N.E.2d 756.) Thus, an order granting or denying a preliminary injunction will not be reversed unless the appellant can show that the entry of the order constituted an abuse of the lower court’s discretion. (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 229 N.E.2d 536.) While we are prohibited from suggesting the outcome of the ongoing declaratory action below (Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 468 N.E.2d 1019), the matter before us is a review of an order denying a motion for preliminary injunction and plaintiffs have not met the applicable stringent burden which must be met before such an extraordinary measure is ordered. Our determination is limited to a finding, based on the evidence as it presently stands, that the denial of injunctive relief was not an abuse of discretion.\nFor the foregoing reasons the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nMURRAY, J., concurs.\n\nJUSTICE PINCHAM,\ndissenting:\nI dissent. The defendants, Topcorp, Inc., and Research Park, Inc., are clearly public entities, and they just as clearly perform public functions, for which reasons they are also, just as clearly, subject to and governed by the clear mandates of the Illinois Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.) and the Illinois Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.). Plaintiffs, Jeanne Hopf, Barbara R. Sipowicz and Mark N. Kraemer, therefore, are also just as clearly entitled to their mandamus, and to the declaratory and injunctive requested relief that defendants’ documents and meetings be made open to the public, pursuant to the provisions of said Open Meetings and Freedom of Information Acts.\nThe legislature of the State of Illinois found and declared in the Real Property Tax Increment Allocation Redevelopment Act (Act) (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 74.4—2(a)), inter alia, “that there exist in many municipalities within this State blighted conservation and industrial park conservation areas ***; that the conservation areas are rapidly deteriorating and declining and may soon become blighted areas ***; [and] that as a result of the existence of blighted areas and areas requiring conservation, there is an excessive and disproportionate expenditure of public funds, inadequate public and private investment ***. *** [T]he industrial park conservation areas include under-utilized areas which, if developed as industrial parks, will promote industrial and transportation activities, thereby reducing the evils attendant upon involuntary unemployment and enhancing the public health and welfare of this State.” The legislature found and declared in subparagraph (b) of said section of the Act, inter alia, that “[t]he eradication of blighted areas and treatment and improvement of conservation areas and industrial park conservation areas by redevelopment projects is hereby declared to be essential to the public interest.” (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 74.4—2(b).) Subparagraph (c) provides, in part, that “all surplus tax revenue are turned over to the taxing districts in redevelopment project areas and all said districts benefit from the removal of blighted conditions, the eradication of conditions requiring conservation measures, and the development of industrial parks.” Ill. Rev. Stat. 1985, ch. 24, par. 11 — 74.4—2(c).\nSection 11 — 74.4—3 of the Tax Increment Allocation Redevelopment Act defines blighted area, conservation area, industrial park, industrial park conservation area, lab or surplus municipality, municipality, obligations, payment in lieu of taxes, redevelopment plan, redevelopment project, redevelopment project area, redevelopment project costs, taxing districts, taxing districts’ capital costs and vacant land.\nThe powers and duties of municipalities are conferred by section 11 — 74.4—4 of the Act, which provides, inter alia, that a municipality (1) may by ordinance approve redevelopment plans and redevelopment projects, and designate redevelopment project areas; (2) make and enter into contracts necessary to the implementation of its redevelopment plan and project; and (3) acquire property by purchase, donation, lease or eminent domain or own, convey, lease, mortgage or dispose of land or other property. Sections 11 — 74.4—5 and 11— 74.4 — 6 provide for and require notice of public hearings on an ordinance which proposes the designation of a redevelopment project area or which approves a redevelopment plan or project, and for protest and objections thereto or changes in the plan or project. Section 11 — 74.4—7 provides for the issuance of obligations for project costs and the succeeding three sections of the Redevelopment Act, respectively, set forth the provision for tax increment allocation financing-special tax allocation fund, surplus funds — termination of projects, payments to municipalities — calculations—special tax allocation funds, and equalized assessed value of property within project area and payment of property costs — revenues from municipal property.\nThere was substantial land on the edge of downtown Evanston owned by the City of Evanston (the City), Northwestern University and others which contained many deteriorating and substandard buildings. The City of Evanston and Northwestern decided to utilize this land for a research park. To do so and to facilitate the acquisition of the land and its development, in January 1985 the Evanston city council, pursuant to the authority conferred by the aforesaid Tax Increment Allocation Development Act, adopted a redevelopment plan and enacted a tax increment financing district ordinance. The city council found that the land had not been subject to growth and development through investment by private enterprise and would not be reasonably expected to be developed without the adoption of the redevelopment plan. The city council also found that approval of the redevelopment plan was necessary “for the promotion and protection of the health, safety, morals and welfare of the residents of the City of Evanston.” The aforesaid Real Property Tax Increment Allocation Redevelopment Act conferred condemnation power upon the City of Evanston, which was indispensable for the acquisition of the land for the redevelopment plan.\nThe following year, on January 13, 1986, the Evanston city council adopted a statement of understanding which authorized the City’s participation in the development plan to develop a research park on the aforementioned land. The city council’s statement of understanding provided for the creation of two for-profit corporations, Topcorp, Inc., and its wholly owned subsidiary, Research Park, Inc.\nThe statement of understanding provided that Topcorp and Research Park, Inc., were to be created to promote several public purposes, namely, the development of a research park on land owned mainly by the City to improve the City’s tax base, to provide jobs for residents of the City and to encourage the development of new businesses.\nUnder the statement of understanding, Topcorp was to purchase the land to effectuate the development of the research park, and Research Park, Inc., was to promote and market the research park, arrange for the management and maintenance of the research park and execute any other responsibilities that may be assigned to it by Top-corp. Research Park, Inc., was also responsible under the statement of understanding for providing adequate job-training programs, compliance with- affirmative action laws, implementing a minority business enterprise plan, compliance with all applicable safety, noise, smoke, dust, radiation, order and disturbance laws, prohibiting munitions research in the research park and adherence to the research park’s physical environment design.\nThe statement of understanding also provided for a parking plan which required Evanston’s and Northwestern’s continued participation.\nTopcorp, Inc., and Research Park, Inc., were incorporated on June 17, 1986, under the Business Corporation Act of 1983 (Ill. Rev. Stat. 1985, ch. 32, pars. 1.01 though 17.05) as for-profit corporations, as specified in the Evanston city council’s statement of understanding.\nTopcorp issued 100 shares of class A stock, all owned by the City of Evanston, and 100 shares of class B stock, all owned by Northwestern University. The owners cannot sell their shares without the other’s consent. Topcorp has three directors appointed and replaced by the City of Evanston and three directors are appointed and replaced by Northwestern University. There is no cumulative voting right for the election of directors. Evanston’s three appointed directors to Topcorp are appointed by Evanston’s mayor with the approval of the Evanston city council. Evanston’s three Topcorp directors are Evanston’s mayor, Evanston’s city manager and an Evanston alderman, who also is a member of the city council’s economic development committee.\nResearch Park, Inc., issued 100 shares of common stock, all of which are owned by Topcorp. Research Park, Inc.’s, board of directors initially consisted of 14 members (but the number was later increased to 19). Research Park, Inc., like Topcorp, has no cumulative voting directors. The City of Evanston and Northwestern each appointed seven initial directors of Research Park, Inc. Evanston’s seven directors are appointed to the Research Park, Inc., board by the mayor with the consent of the city council, three of whom are: (1) an alderman who is also chairman of the city economic development committee; (2) a former mayor of Evanston; and (3) a recently retired member of the Evanston economic development committee. The statement of understanding further provided that the City of Evanston fill any vacancy of a Research Park, Inc., director appointed by the City, and, upon expiration of any City director’s term, the City may reelect that director or a new director. Thus, the statement of understanding requires that the City of Evanston appoint one-half of the board of directors of Topcorp and also one-half of the board of directors of Research Park, Inc., during the life of the two corporations. The statement of understanding also specifies the criteria for the appointment of the public members as directors and demands that these directors remain loyal to the city and the city’s goal.\nMost of the land of the research park site, 22 acres in Evanston’s downtown area, was owned by the City of Evanston, and under the statement of understanding, the City is obligated to purchase all the land for the site which is not already owned by the City or Northwestern University. The original plans for the research park called for a public expenditure of almost $24 million for which the City will issue bonds, which must be approved by the administration and works committee, one of the City of Evanston’s three standing committees. The City thus far has expended a substantial amount of taxpayers’ funds for the capitalization and operation of Topcorp and Research Park, Inc. The statement of understanding required that the City of Evanston and Northwestern University equally pay the operating costs of Topcorp and Research Park, Inc. In 1986, the City paid $50,000 as its share of the two corporations’ operating expenses and $250,000 as the City’s share of Research Park, Inc.’s, 1987 operating cost. The City increased the City real estate transfer tax, effective April 1987, and designated a quarter of a million dollars annually of these tax proceeds for payment of costs relating to the operation of Research Park, Inc.\nThe research park redevelopment enterprise is a for-profit undertaking by and for the City of Evanston and Northwestern. The City’s share of the profits produced by Topcorp is determined by the City’s percentage share of the value of the property conveyed to Topcorp and because the City owns most of the land in the research park site, the City’s share in Topcorp’s profits is calculated to be in excess of 50%. The City’s share of interest payable by Topcorp is likewise based on the City’s share of the value of the properties transferred to Topcorp. On dissolution of Topcorp, the City’s share of its assets is to be governed by the City’s percentage share of the value of the property conveyed to Topcorp.\nRon Kysiak is the executive director of Research Park, Inc., and he is also the director of Inventure, which is an economic development company partially financed on an annual basis by the City of Evanston.\nTopcorp’s budget must be approved by its board, one-half of whom, as previously pointed out, are publicly appointed and who by mandate of a City resolution are the mayor, the City manager and an alderman. Research Park, Inc.’s, budget is subject to advance approval of Topcorp’s board, one-half of whom, also as previously pointed out, are appointed by Evanston’s mayor -with the consent of the Evanston city council.\nWith a $26 million grant from the Federal government, Northwestern University has constructed on its land adjacent to the research park a Basic Industry Research Laboratory, which will be exclusively owned and operated by Northwestern.\nPlaintiffs urge that in order to respond to, pursue and protect the concerns of the Evanston citizens, the City aldermen need to know if the developer is complying with the environment, the hiring of minority business and other provisions of the statement of understanding; that aldermen need to monitor contracts and subcontracts in the research park to avoid possible conflicts of interest and because of these current concerns arising out of a news article that an architectural firm, in which a City alderman is a member and stockholder, received a contract for architectural work from the developer. On May 4, 1987, six Evanston aldermen sent written requests to the members of the board of directors of Topcorp and Research Park, Inc., to open their meetings and make the corporation’s documents available to them in order that they would have the information necessary for them to intelligently, accurately, informatively and knowingly vote on matters pertinent to the research park, particularly the Evanston city council’s appropriation of public funds to the two corporations. On March 12, 1987, plaintiff, Jeanne Hopf, in writing demanded of Topcorp and Research Park, Inc., minutes of the board arid committee meetings and other reports and documents of the two corporations. Hopf’s demand on Topcorp was rejected by a letter, dated April 10, 1987, written on official City of Evanston stationery and signed by Joan W. Barr, Mayor of Evanston, in her capacity as president of Topcorp.\nDuring the. March 9, 1987, Evanston city council meeting Aider-woman Evelyn Sherman Raden requested that Topcorp and Research Park, Inc., make public the minutes of their board meetings. Demands were made of J. Asproath, Evanston’s city manager and a Topcorp board member, for copies of the director’s minutes of meetings of Topcorp and Research Park, Inc. It was undisputed that Top-corp and Research Park, Inc., had drafted many documents in connection with the research park, i.e., board and committee meetings minutes, corporate reports of costs, financing construction, maintenance, management, minority hiring, environmental contact and private developer’s participation. None of the deliberations or meetings of the board of directors or committees of Topcorp or Research Park, Inc., have been open to the public and all the above-mentioned requests for information, documents, etc., of the two corporations have been denied. It is further uncontested that Research Park, Inc., shortly intended to execute a formalized agreement with a developer for the entire research park and that the contents and provisions of that agreement have not been and will not be made available or known to the public or the Evanston city council members who are not on the board of directors of Topcorp or Research Park, Inc.\nAt the time the Evanston city council adopted the legislation for creation of the research park, two corporations and the letter of understanding, and approved the research park development plan, the council was not asked to exempt and did not consider exempting the two corporations, Topcorp and Research Park, Inc., from the provisions of the Illinois Freedom of Information Act or the Public Meetings Act.\nThe defendants, Topcorp and Research Park, Inc., contend that they are not subject to the provisions of the Illinois Freedom of Information Act or the Illinois Open Meetings Act, even though both corporations:\n(1) are creations of the Evanston city council;\n(2) were formed with Evanston’s taxpayers’ money;\n(3) were created to promote and protect the health, safety, morals and welfare of the residents of Evanston, to provide jobs for Evanston residents, to encourage new Evanston business development and to improve Evanston’s tax base;\n(4) have issued stock, one-half of which is owned by the City of Evanston;\n(5) are managed by a board of directors, one-half of whom are chosen from Evanston’s elected public officials;\n(6) operate on Evanston’s taxpayers’ money;\n(7) have thus far received $50,000 in 1986 and $250,000 in 1987 of Evanston’s taxpayers’ money;\n(8) will be the ultimate recipient of at least $24 million of Evanston’s taxpayers’ money:\n(9) are located on Evanston’s taxpayers’ land;\n(10) are located in part on private land subsequently acquired by the corporations through purchase and condemnation;\n(11) are to share the corporate profits with the City of Evanston; and\n(12) are to share their dissolution assets with the City of Evanston.\nTHE FREEDOM OF INFORMATION ACT\nThe pertinent provisions of the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.), are sections 1, 2, 3 and 11, and are as follows:\nPublic policy — Legislative intent:\n“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues folly and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” Ill. Rev. Stat. 1985, ch. 116, par. 201.\nDefinitions:\n“ ‘Public body’ means any legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue. * * *\n‘Public records’ means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics, having been prepared, or having been or being used, received, possessed or under the control of any public body. ‘Public records’ includes *** information relating to any grant or contract made by or between a public body and another public body or private organization.” Ill. Rev. Stat. 1985, ch. 116, par. 202.\nInspection or copying of public records — Request procedures:\n“Each public body shall make available to any person for inspection or copying all public records ***.” Ill. Rev. Stat. 1985, ch. 116, par. 203.\nDenial of request for public records — Injunctive or declaratory relief:\n“(a) Any person denied access to inspect or copy any public record by the head of a public body may file suit for injunctive or declaratory relief.\n(b) Where the denial is from the head of a public body of the State, suit may be filed in the circuit court for the county where the public body has its principal office or where the person denied access resides.\n(c) Where the denial is from the head of a municipality or other public body, except as provided in subsection (b) of this Section, suit may be filed in the circuit court for the county where the public body is located.\n(d) The circuit court shall have the jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access.” Ill. Rev. Stat. 1985, ch. 116, par. 211.\nTHE OPEN MEETINGS ACT\nThe pertinent provisions of the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 41 et seq.), are sections 1, 1.02, 2, 2.01 and 3, and are as follows.\nPublic policy:\n“It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” Ill. Rev. Stat. 1985, ch. 102, par. 41.\nDefinitions:\n“For the purposes of this Act:\n‘Meeting’ means any gathering of a majority of a quorum of the members of a public body held for the purpose of discussing public business.\n‘Public body’ includes all legislative, executive, administrative or advisory bodies of the state, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.” Ill. Rev. Stat. 1985, ch. 102, par. 41.02.\nAll official meetings open to the public — Exceptions:\n“All meetings of public bodies shall be public meetings ***.” Ill. Rev. Stat. 1985, ch. 102, par. 42.\nTime and place:\n“All meetings required by this Act to be public shall be held at specified times and places which are convenient to the public.” Ill. Rev. Stat. 1985, ch. 102, par. 42.01.\nNoncompliance — Civil actions — Relief—Fees and costs:\n“Where the provisions of this Act are not complied with, or where there is probable cause to believe that, the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 45 days after the meeting alleged to be in violation of this Act.” Ill. Rev. Stat. 1985, ch. 102, par. 43.\nI agree with the majority that on the instant appeal “the question presented is whether Topcorp [or Research Park, Inc.] is, in essence, a public entity performing a public function,” and I also agree with the majority’s analysis that on the instant appeal “the relevant consideration is whether the two corporations [Topcorp and Research Park, Inc.] are ‘subsidiary bodies’ of the city of Evanston as that term is used in both [the Freedom of Information and the Open Meetings] Acts.” (170 Ill. App. 3d at 91.) Although the majority has aptly stated the question presented and the relevant consideration on review, the majority, nevertheless, whether intentionally or inadvertently, has adroitly avoided stating, directly or inferentially, whether the two corporations are subsidiary bodies of the City of Evanston, or whether the two corporations are performing a public function. The majority resolves the instant appeal by merely reiterating a portion of the trial court’s findings regarding a portion of the corporations’ functions. The majority thereupon concludes: (1) that the trial court did not abuse its discretion in denying plaintiffs’ requests for injunctive and other relief; and (2) because “plaintiffs have not met the applicable stringent burden which must be met before such an extraordinary measure is ordered.” (170 Ill. App. 3d at 93.) I disagree with both these conclusions of the majority.\nFirst, the evidence overwhelmingly established that Topcorp and Research Park, Inc., are subsidiary bodies of the City of Evanston. The two corporations were created pursuant to legislation of the Evanston city council. The City of Evanston owns one-half of each corporation. The City of Evanston designates one-half the members of the board of directors of each corporation, who must be Evanston elected public officials and who must remain loyal to the City of Evanston. The corporations were formed with the funds of Evanston taxpayers. The City of Evanston has already spent in two years $300,000 of the taxpayers’ funds to operate and maintain the two corporations and the City is further obligated to expend an additional $24 million of the taxpayers’ money for the corporations’ operation and maintenance. The corporations acquired City-owned land on which the corporate functions are to be fulfilled. The City is to share in the corporate profits and dissolution assets and the City of Evanston and its public officials are obligated to oversee and monitor both corporations to protect and pursue the public interest. It is clear that the two corporations are subsidiary bodies of the City of Evanston and are public bodies. Board of Trustees v. Freedom of Information Comm’n (1980), 181 Conn. 544, 436 A.2d 266; Seghers v. Community Advancement, Inc. (La. App. 1978), 357 So. 2d 626; Raton Public Service Co. v. Hobbes (1966), 76 N.M. 535, 417 P.2d 32; Westchester Rockland Newspapers, Inc. v. Kimball (1980), 50 N.Y.2d 575, 408 N.E.2d 904, 430 N.Y.S.2d 574.\nSecond, the evidence likewise overwhelmingly established that the two corporations are to perform public functions. They were expressly created for such purposes, i.e., “for the promotion and protection of the health, safety, morals and welfare of the residents of the city of Evanston,” to provide jobs for City residents, to encourage new business development, to improve the City’s tax base, promote job training, protect the environment, acquire minority participation, prohibit munitions research, provide parking facilities and transfer a blighted urban downtown area into a redeveloped, economically productive site. These are clearly public functions. The majority’s ostensible reliance on the corporations’ “proprietary — as opposed to governmental — aspects of the development plan” (170 Ill. App. 3d at 92) is illusory, superficial and is a distinction without a difference as to whether the corporations are to perform public functions.\nThe trial court and the majority’s reliance on Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism and Drug Dependence (1978), 64 Ill. App. 3d 94, 380 N.E.2d 1192, is misplaced. In Rockford Newspapers, plaintiff’s news reporter was excluded from a regular meeting of the defendant, Northern Illinois Council on Alcoholism and Drug Dependence. Plaintiff filed a mandamus action against defendant to compel plaintiff’s admission to defendant’s meetings under the Open Meetings Act (Ill. Rev. Stat. 1975, ch. 102, par. 41 et seq.). The trial court denied plaintiff relief. The question presented for review was whether the defendant, a private, not-for-profit organization, funded primarily by government agencies and required to comply with numerous government regulations, was subject to the provisions of the Open Meetings Act. In affirming the trial court, the Rockford court relied on the absence in Rockford Newspapers of the very ingredients that are abundantly prevalent in the case at bar. The Rockford court stated and held:\n“Plaintiff maintains that NIC ADD (defendant) is a government subsidiary because 90% of its funding comes from government grants and contracts and because its activities and programs are regulated and monitored by Federal, State and local governments *** [and] because it operates programs that are the statutory responsibility of the Illinois Dangerous Drugs Commission.\nDefendant argues that it is not a subsidiary because of its formal status as a private corporation and because its personnel have no direct relationship with the governments in question. NICADD is incorporated as a private, not-for-profit organization. Its board of directors is selected pursuant to its own by-laws and is neither elected nor appointed by any government official.\n* * *\nNICADD’s formal legal nature and the independence of both its board of directors and its employees from direct government control are extremely significant factors.” 64 Ill. App. 3d at 95-96.\nThe creation, management, financing and purpose of NICADD in Rockford Newspapers are not remotely analogous to Topcorp and Research, Inc. Rockford Newspapers is therefore not on point, analogous or controlling in the case at bar.\nThe trial court erroneously ruled in the case at bar that: “The evidence is clear that Topcorp, Incorporated, and Research Park, Inc., are private entities ***.” The trial court, however, did not articulate the factual or legal basis upon which it predicated this conclusion. Assuming, however, as the trial court concluded, that the two corporations were “private entities,” such did not thereby necessarily preclude them from also being “subsidiary bodies” of the City of Evanston for the purpose of the Open Meetings Act and the Freedom of Information Act.\nIn a democratic society the taxpaying public is entitled to know the purpose for which its tax dollars are being spent. In a democratic society the public has a right to know in what enterprises its government is engaged. In a democratic society the public has a right, indeed a duty, to regiment, regulate, oversee and control its government’s activities. In a democratic society government is prohibited, with exceptions inapplicable here, from functioning and engaging in secrecy from its citizens. The legislature of this State has enhanced that prohibition and made government more open and accessible to its citizens by enactment of the Open Meetings Act and the Freedom of Information Act. Totalitarian governments exist and flourish on secrecy and on uninformed and ignorant citizenries. The painful and bitter but profitable lessons learned from secrecy in governmental affairs in the Watergate, the Iran-Contra and the Greylord contemporary debacles should not be forgotten or ignored. Secrecy has no legitimate place in routine, everyday democratic government. I would reverse the trial court and order it to grant the disclosure relief plaintiffs requested.\nThis section of sections 3 and 7 contains exceptions and exemptions which are inapplicable to the case at bar.\nThis section of section 2 and section 2A contains exceptions which are inapplicable to the case at bar."}
{"dedup_key":"pre1996-141188","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"263 ill-app-3d 511","case_name":"Wayne County Press, Inc. v. Georgia Isle","court_level":"Appellate","appellate_district":"5th","year":1994,"county":null,"appellate_docket":"5-93-0639","circuit_docket":null,"published":1,"authoring_justice":"Welch","statute":["FOIA"],"exemptions_cited":["7(1)(a)"],"public_body":"Wayne County Clerk","requesting_party":"Wayne County Press, Inc.","disposition":"remanded","relevance":"relevant","summary_source":"generated","summary":"The court held that the trial court applied an incorrect burden of proof regarding the defendant's claim that marriage license applications were exempt from FOIA disclosure under the Vital Records Act. The case was remanded for the trial court to reconsider the matter with the burden of proof properly placed on the defendant to justify the exemption.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=141188","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:00.441317","site_category":"General Records Exemptions","date_decided":"1994-06-17","site_url":"/cases/pre1996-141188/","text_url":"/case-text/pre1996-141188.txt","full_text":"WAYNE COUNTY PRESS, INC., Plaintiff-Appellant, v. GEORGIA ISLE, Defendant-Appellee.\nFifth District\nNo. 5—93—0639\nOpinion filed June 17, 1994.\nDonald M. Craven, of Craven & Watson, P.C., of Springfield, for appellant.\nBarry Vaughan, State’s Attorney, of Fairfield (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.\n\nJUSTICE WELCH\ndelivered the opinion of the court:\nOn January 16, 1993, Wayne County Press, Inc., which publishes a newspaper in Wayne County, Illinois, brought an action under the Freedom of Information Act (5 ILCS 140/1 et seq. (West 1992)) against Georgia Isle, the county clerk of Wayne County. Wayne County Press, Inc. (plaintiff), sought an order compelling Georgia Isle (defendant) to disclose or give plaintiff access to completed applications for marriage licenses.\nDefendant responded that the marriage license applications were exempt from disclosure under section 7 of the Freedom of Information Act (Act) (5 ILCS 140/7 (West 1992)), as \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.” The particular State law which defendant claimed prohibits the disclosure of applications for marriage licenses is the Vital Records Act (410 ILCS 535/1 et seq. (West 1992)). Section 24 of that act provides that access to \"vital records” is limited to the custodian, in this case the county clerk, and her employees, and then only for administrative purposes. (410 ILCS 535/24 (West 1992).) The Vital Records Act makes it a Class 4 felony for any custodian of a vital record to willfully and knowingly permit inspection or copying or to disclose information contained in vital records. (410 ILCS 535/27, 24 (West 1992).) The term \"vital records” is defined in the Vital Records Act as \"records of births, deaths, fetal deaths, marriages, dissolution of marriages, and data related thereto.” 410 ILCS 535/1 (West 1992).\nTrial was held on August 25, 1993, and both parties presented evidence and argument. The dispute at trial revolved around whether applications for marriage licenses constitute a \"record of marriage” or \"data related thereto” so as to fall within the definition of a \"vital record.” The trial court took the matter under advisement. On August 30, 1993, the trial court issued its written opinion in the case. In its order, the trial court stated:\n\"In interpreting the law applicable to this request, the court has noted that an assumption has been made by the plaintiff that the county clerk is obliged to provide the matters claimed to be of public record unless she is able to provide some defense why not to do so. On the contrary, it would appear that the person requesting the information appears to have the obligation to show that the material concerned is not exempt.”\nThe court went on to find that the marriage license application does constitute a \"vital, record” which is exempt from disclosure under the Act, and indeed, its disclosure is prohibited by the Vital Records Act. In an order entered September 8, 1993, in which the trial court adopted and incorporated its opinion of August 30, the trial court denied the relief requested by plaintiff.\nPlaintiff appeals, raising three issues for our review: (1) whether the trial court improperly shifted the burden of proof to plaintiff to prove that the information sought is not exempt from disclosure; (2) whether the trial court erred in finding that applications for marriage licenses are vital records and exempt from disclosure under the Act; and (3) whether the trial court abused its discretion in denying plaintiff’s prayer for attorney fees under section ll(i) of the Act (5 ILCS 140/11(i) (West 1992)), which provides for an award of reasonable fees if the party seeking disclosure substantially prevails, the records are of clearly significant interest to the general public, and the public body lacked any reasonable basis in law for withholding the record. We agree with plaintiff that the trial court improperly shifted the burden of proof to plaintiff to prove that no exemption to disclosure applies to the information sought, because the burden is properly on defendant to prove that an exemption does apply. Accordingly, we reverse the judgment of the trial court and remand this cause to that court for consideration of the issues utilizing the proper burden of proof. In light of this disposition, we find it unnecessary to address the other arguments raised by plaintiff in this appeal.\nThe explicit provisions of the Act, as well as recent appellate and supreme court opinions, make it clear that a public body seeking to protect information from disclosure, and not the party seeking disclosure, bears the burden of establishing that an exemption to disclosure under the Act applies to the requested information. Section 11 of the Act provides:\n\"The burden shall be on the public body to establish that its refusal to permit public inspection or copying is in accordance with the provisions of this Act.” (5 ILCS 140/11(f) (West 1992).)\nIn American Federation of State, County & Municipal Employees v. County of Cook (1990), 136 Ill. 2d 334, 344, 555 N.E.2d 361, 365, our supreme court noted that it is the public body’s burden to establish that an exception to the disclosure requirements of the Act applies. The appellate court has repeatedly held that the burden of proof is on the public body to establish that the information in question is exempt from disclosure under the Act. (Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 535, 548 N.E.2d 1110, 1113; Williams v. Klincar (1992), 237 Ill. App. 3d 569, 572, 604 N.E.2d 986, 989; Carbondale Convention Center, Inc. v. City of Carbondale (1993), 245 Ill. App. 3d 474, 476-77, 614 N.E.2d 539, 541; Schessler v. Department of Conservation (1994), 256 Ill. App. 3d 198, 202, 627 N.E.2d 1250, 1253.) Thus, there can be no question that the public body attempting to prevent disclosure, rather than the party seeking disclosure, bears the burden of proving that the requested information is exempt from disclosure under section 7 of the Act.\nDespite the clear language of the statute and the case law, the language of the court’s opinion quoted above makes it clear that the trial court misunderstood the burden of proof and improperly shifted that burden to plaintiff to prove that no exemption applied. While the plaintiff did not object to this error prior to entry of the court’s final order or in a post-trial motion, thus depriving the trial court of the opportunity to correct its mistake, we consider the issue as one involving plain error. See American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133, 138-39, 569 N.E.2d 1377, 1381 (the rule of waiver is a limitation on the parties and not on the reviewing court, and a reviewing court may ignore the waiver rule if necessary to achieve a just result or to ensure the maintenance of a sound and uniform body of precedent).\nDefendant argues that any error was harmless in that the trial court properly would have reached the same result even had it correctly applied the burden of proof, and reversal is therefore not required. We decline to make that determination. Instead, we remand this cause to the trial court for reconsideration of the issues with the burden of proof on defendant to prove that an exemption to disclosure under the Act does apply to a request for applications for marriage licenses. See Greer v. Yellow Cab Co. (1991), 221 Ill. App. 3d 908, 915, 582 N.E.2d 1292, 1297 (where a trial court’s exercise of discretion has been frustrated by the application of an erroneous rule of law, remand is required to permit the exercise in a manner consistent with the law).\nFor the foregoing reasons, the judgment of the circuit court of Wayne County is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.\nReversed and remanded.\nCHAPMAN and RARICK, JJ., concur."}
{"dedup_key":"pre1996-39301","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"128 ill-2d 373","case_name":"Bowie v. Evanston Community Consolidated School District No. 65","court_level":"Supreme","appellate_district":null,"year":1989,"county":null,"appellate_docket":null,"circuit_docket":null,"published":1,"authoring_justice":"Moran","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"Evanston Community Consolidated School District No. 65","requesting_party":"Cheryl Bowie, James Roberts, and Vanessa Gray","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The Supreme Court held that the Freedom of Information Act does not require a public body to create new records or manipulate existing computer data to redact exempt information. The court ruled that public bodies are not obligated to use computer capabilities to transform exempt records into non-exempt ones.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=39301","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:00.441421","site_category":"Search & Production","date_decided":"1989-04-20","site_url":"/cases/pre1996-39301/","text_url":"/case-text/pre1996-39301.txt","full_text":"(No. 67171.\nCHERYL BOWIE et al., Appellees, v. EVANSTON COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 65 et al., Appellants.\nOpinion filed April 20, 1989.\nJohn A. Relias, Lawrence J. Casazza and Charles R Rose, of Chicago (Vedder, Price, Kaufman & Kammholz, of counsel), for appellants.\nDavid T. Erie, of Chicago, for appellees.\n\nCHIEF JUSTICE MORAN\ndelivered the opinion of the court:\nPlaintiffs, Cheryl Bowie, James Roberts and Vanessa Gray, filed suit for declaratory judgment and injunctive relief in the circuit court of Cook County against defendants, Evanston Community Consolidated School District No. 65 (district) and Eugene Mulcahy, the district superintendent (superintendent), pursuant to the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.).\nPlaintiffs, parents of students attending the district’s schools, sought the disclosure of standardized California Achievement Test (test) scores for students from certain years, grades and schools within the district and a list of education programs available in those schools. The trial court granted defendants’ motion to dismiss the complaint pursuant to section 2 — 619(aX9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 619(aX9)). Plaintiffs appealed and the appellate court reversed and remanded, finding that the district had a “duty to mask [i.e., delete] aU information other than that requested which would allow the identification of the students.” (168 Ill. App. 3d 101, 107.) This court allowed defendants’ petition for leave to appeal under Rule 315 (107 Ill. 2d R. 315).\nThe issue to be determined is whether masked and scrambled test score records, which do not identify individual students, are subject to disclosure under the FOIA.\nOn February 21, 1986, plaintiffs submitted a FOIA request to the district. Plaintiffs sought test score information of students from 1982 through 1986 school years for second, third and fifth grade students in eight elementary schools, for sixth and eighth grade students in three middle schools, and for second, third, fifth, sixth and eighth grade students in an experimental school. The test scores were requested for 11 testing categories (e.g., reading, spelling, language, mathematics, etc.) and were to designate the race of the students tested. The names or sex of the students were not requested. A list of the educational programs available at the schools was also requested.\nThen-superintendent Dr. Robert Campbell denied the request on March 4, 1986, asserting the privacy protections of the FOIA and the Illinois School Student Records Act (Act) (Ill. Rev. Stat. 1985, ch. 122, par. 50 — 1 et seq.). Plaintiffs appealed this denial to Dr. Mulcahy, the new superintendent of schools. The superintendent denied the appeal on July 3, 1986. The superintendent later met with plaintiffs and their attorney and said he would try to release the test scores by school and race. However, the superintendent did not disclose the information despite further requests by the plaintiffs.\nPlaintiffs filed their complaint in the circuit court of Cook County on August 22, 1986. On September 22, 1986, the district released to the public a 46-page report summarizing the 1985-86 students’ performance on the test by school, grade and race, but not the individual scores of the students. The district then filed a motion to dismiss the complaint arguing that the test scores requested in the complaint were exempt from disclosure under sections 7(a) and (b) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 207(a)(b)), and that even if the requested data were masked and scrambled, disclosure was prohibited under the Act, which, in part, protects the privacy rights of students. Ill. Rev. Stat. 1985, ch. 122, par. 50 — 1 et seq.\nThe trial court granted defendants’ motion to dismiss, relying on two grounds: (1) production of the test scores would violate the students’ privacy rights, and (2) the district’s release of the September 22, 1986, status report supplied plaintiffs with “sufficient information” to satisfy their FOIA request. On appeal, the appellate court reversed.\nThe district asserts two reasons why it should not be required .to produce the requested information in a masked and scrambled format: the information is exempt from disclosure under the Act, as well as the FOIA, and to produce the information would require it to “create a new, non-exempt record from an otherwise exempt record.” The district also contends that, should we affirm the decision of the appellate court, the case should be remanded to the trial court for a determination of whether compliance with the plaintiffs’ request would be “unduly burdensome.” Plaintiffs argue that the appellate court did not err in holding that neither the Act nor the FOIA prohibits the disclosure of the test score information in a masked and scrambled format. Plaintiffs also assert that the release of the information would not result in the creation of a new record and compliance by the district would not be “unduly burdensome.”\nThe purpose of the FOIA is to open governmental records to the light of public scrutiny. (111. Rev. Stat. 1985, ch. 116, par. 201 et seq.; see also, e.g., Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449 (interpreting the Illinois State Records Act).) Freedom of information fosters governmental accountability and an informed citizenry.\nThe public policy of this State encourages a free flow and disclosure of information between government and the people. The FOIA is to be given a liberal construction to achieve this goal. (Ill. Rev. Stat. 1985, ch. 116, par. 201.) There is a presumption that public records are open and accessible. (Ill. Rev. Stat. 1985, ch. 116, par. 211(e).) The flow of information, however, is not left unchanneled. Among other concerns, the court must be vigilant against invasions of privacy and interfering with the functions of government by imposing reporting requirements not otherwise authorized, but exceptions to disclosure are to be read narrowly. Ill. Rev. Stat. 1985, ch. 116, par. 201.\nThe requested test score information is subject to the Act, and we are thus presented with the provisions of the FOIA and its interplay with the Act. The Act defines “school student record” to mean any writing or other recorded information concerning a student by which a student may be individually identified. (Ill. Rev. Stat. 1985, ch. 122, par. 50 — 2(d).) Under the Act, access to a school student record is limited and, unless a person qualifies for its release under one of several exceptions, access will be denied. Ill. Rev. Stat. 1985, ch. 122, par. 50—6.\nThe district argues that there is a conflict between the broad disclosure guarantees of the FOIA and the Act's limitations on disclosure. The district claims that it need not disclose the test score information. To do so, it argues, would run afoul of the Act because the requested records contain individual student identifying information. Plaintiffs argue that the production of masked and scrambled test records will not invade student privacy interests.\nWe agree with the plaintiffs. The Act prohibits the disclosure of a school student record whereby a student may be individually identified. A masked record, which deletes individual identifying information, does not fall within the definition of a school student record, and is not prohibited from disclosure under the Act. (Human Rights Authority of the State of Illinois Guardianship & Advocacy Comm’n v. Miller (1984), 124 Ill. App. 3d 701, 704. See also Kryston v. Board of Education, East Ramapo Central School District (1980), 77 A.D.2d 896, 896-97, 430 N.Y.S.2d 688, 689.) Accordingly, the requested records may be disclosed under the Act.\nNonetheless, the district contends that if the legislature intended that individual student records be released after redacting individual identifying information it would have so provided; because it did not, the Act should not be read to allow disclosure of any part of a school student record without parental consent.\nWe find this contention to be without merit. Section 6(aX4) of the Act, for example, provides access to school student records to any person for the purpose of research, statistical reporting or planning, provided that no student or parent can be identified from the information released. (Ill. Rev. Stat. 1985, ch. 122, par. 50— 6(aX4).) No parental consent is required.\nThe district also asserts that the requested data, even if masked and scrambled, are exempt under sections 7(a) and (b) of the FOIA (Ill. Rev. Stat. 1985, ch. 116, pars. 207(a), (b)). Section 7(a) applies to information specifically prohibited from disclosure under another law. Section 7(b) prevents the disclosure of information which would result in a clearly unwarranted invasion of personal privacy.\nAs already noted, the Act does not prohibit the disclosure of a masked and scrambled record. The district asserts no other statutory or regulatory bar to the disclosure of a masked and scrambled record. Consequently, we find that the section 7(a) exemption does not apply in this case.\nThe district next argues that the requested records, under section 7(b), contain exempt information which if disclosed would constitute an unwarranted invasion of privacy and, therefore, it need not disclose the records. Under section 8 of the FOIA, a public body, such as the district, that maintains a record with both exempt and nonexempt data must separate the exempt matter and disclose the nonexempt record. (Ill. Rev. Stat. 1985, ch. 116, par. 208.) The mere presence or commingling of exempt material does not prevent the district from releasing the nonexempt portion of the record.\nThe district keeps the test records using a single digit sex/race code. The district asserts that release of the records using the sex/race code would result in the potential identification of students and an unwarranted invasion of their privacy. Yet, the district in its brief concedes that the students’ privacy can be protected by “recodifying” the scores to assure that only race, and not both the sex and race of each student, is released. Plaintiffs sought the test score data on the basis of race alone; they did not ask for names or a sex-based distribution of scores. Under these circumstances, we find that the disclosure of the requested data in a masked and scrambled format would not violate the FOIA.\nThe district has already taken a step in this direction. Following the institution of this suit, the district publicly released a 46-page report which, although not disclosing the individual test scores, disclosed the scores by school, grade and race. The names and sex code were deleted from the report.\nIn releasing the report, the district recognized the public’s “right to know” and duty to “monitor” governmental performance, as well as the general concern for disclosure. (Ill. Rev. Stat. 1985, ch. 116, par. 201.) Moreover, the district recognizes that the requirement for public disclosure can, in this case, be balanced with the privacy interests of the students. (Ill. Rev. Stat. 1985, ch. 116, par. 201. See also, e.g., Environmental Protection Agency v. Mink (1973), 410 U.S. 73, 80, 35 L. Ed. 2d 119, 128, 93 S. Ct. 827, 832-33.) The district concedes that it can protect the privacy of the students. Too, plaintiffs agree that if there is a likelihood that a student will be identified, then that record should not be disclosed. Accordingly, where, as here, individual identifying information can be redacted and the record scrambled, preventing a clearly unwarranted invasion of personal privacy, the record must be disclosed. Ill. Rev. Stat. 1985, ch. 116, pars. 201, 207, 208; see also, e.g., Department of the Air Force v. Rose (1976), 425 U.S. 352, 373-77, 48 L. Ed. 2d 11, 28-30, 96 S. Ct. 1592, 1604-07; Kryston v. Board of Education, East Ramapo Central School District (1980), 77 A.D.2d 896, 896-97, 430 N.Y.S.2d 688, 689.\nThe district, however, argues that it is under no duty to delete the sex portion of its code and produce a record using only a race code. A similar argument was made to and rejected by the court in Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 457-58. Family Life involved a suit for the disclosure of abortion providers under the Illinois State Records Act (Ill. Rev. Stat. 1985, ch. 116, par. 43.4 et seq.). Like the district here, the Department argued that because the record sought contained confidential information it was exempt from disclosure. The court stated that “accepting] this interpretation would effectively gut the [State Records] Act. The purpose of the Act is to open the State’s books to the light of public scrutiny. That purpose would be totally thwarted if an entire record could be kept closed simply by inserting minute confidential information, particularly when the confidential information can be deleted as in the case at bar.” (Family Life, 112 Ill. 2d at 457-58.) The logic of Family Life is equally compelling in the FOIA context. See, e.g., Ill. Rev. Stat. 1985, ch. 116, par. 208.\nThe district next asserts that to make it produce a masked and scrambled record would be tantamount to forcing it to create a new record. The plaintiffs argue that the masking and scrambling of the test score record would not constitute the creation of a new record.\nWe agree with the plaintiffs. The district is not being required to prepare a “new” record. Deleting information from a record does not create a “new” record, even if all but one or two items of information have been deleted. (Family Life, 112 Ill. 2d at 457-58. See also Yeager v. Drug Enforcement Administration (D.C. Cir. 1982), 678 F.2d 315, 321.) Similarly, scrambling a record does not lead to the creation of a “new” record. (Kryston, 77 A.D.2d at 897, 430 N.Y.S.2d at 689-90; Seigle v. Barry (Fla. App. 1982), 422 So. 2d 63, 66-67.) The district is only being required to delete the exempt matter, protecting the students’ privacy, and disclose the nonexempt portion of the record. Ill. Rev. Stat. 1985, ch. 116, par. 208.\nThe district contends, however, that this result is an overly broad reading of the FOIA, and cites to Sargent School District No. RE—33J v. Western Services, Inc. (Colo. 1988), 751 P.2d 56, rev’g (Colo. App. 1986), 719 P.2d 355, as support for this contention. We find Sargent to be inapposite. The Sargent court acknowledged that the Colorado Open Records Act differs from most other States’ public records acts in that the record custodian is under no duty to delete exempt materials from an otherwise disclosable record. (Sargent, 751 P.2d at 60-61.) That, however, is not the law in Illinois. Ill. Rev. Stat. 1985, ch. 116, pars. 201, 208.\nBecause there is no evidence in the record regarding whether the district’s compliance with the plaintiffs’ FOIA request would be “unduly burdensome” (Ill. Rev. Stat. 1985, ch. 116, par. 203(f)) or whether there are so few students of one race in a class that disclosure of the test records would result in their identification (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)), the cause must be remanded to the trial court for it to make those determinations (Ill. Rev. Stat. 1985, ch. 116, par. 211(e)).\nFor the foregoing reasons, the judgment of the appellate court, reversing and remanding the cause to the circuit court, is affirmed.\nJudgment affirmed.\nJUSTICE WARD took no part in the consideration or decision of this case.\n\nJUSTICE MILLER,\ndissenting:\nI believe that by initially misframing the issue before the court, the majority reaches the wrong result in this case. I therefore respectfully dissent.\nPlaintiffs sought the standardized achievement test scores of students in certain grades of certain schools in the defendant school district. Plaintiffs requested that, for each test score listed, the race of the student be designated. The school district maintains records that include this information. There is a single report for each grade and school in the school district containing an alphabetical list of the students’ names, the test scores of each student in 11 different categories and a race/sex code for each student. The race/sex codes describe with a single digit both the race and sex of the students. White males are represented by a “1”; white females by a “2”; black males by a “3”; and so forth through the spectrum of race and, in some cases, national origin.\nThe manner in which the school district records the information sought by the plaintiffs makes the identification of an individual student’s score possible in three ways. First, the inclusion of every student’s name obviously enables whoever reads the report to identify individual student’s test scores. Second, because the scores appear in alphabetical order by the students’ names, it would be possible to correlate the test scores with a class list even if the report did not include .the students’ names. Third, in certain cases, the number of students of a particular race and sex may be so small in a given grade and school that identification of individual student’s scores would be possible through the race/sex codes.\nBoth parties agree that, because individual student’s test scores are identifiable, the district’s records, in their present form, are exempt from disclosure under section 7(b) of the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)). This section provides that information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy is exempt from inspection and copying unless the subjects of the information consent to its disclosure. The parties further agree that, to protect the students’ privacy and at the same time provide the plaintiffs with the information requested, the student names would have to be deleted (masked), the order of the scores randomly rearranged (scrambled) and the current race/sex codes replaced with race-only codes (recodified). The substitution of the race/ sex codes with codes designating only the race of the students would increase the number of students within any one classification and make the identification of individual students less likely.\nAt the time this action commenced, section 8 of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 208) imposed a duty on public bodies to separate exempt material from nonexempt material. Section 8 then provided: “If any public record that is exempt from disclosure under Section 7 of this Act contains any material which is not exempt, the public body shall separate the exempt material and make the nonexempt material available for inspection.” Plaintiffs contend, and defendants concede, that in this case the school district has an obligation to mask the students’ names and scramble their scores.\nThe parties disagree, however, on whether any duty exists on the defendants’ part to substitute the race/sex codes used in the reports with a new race-only code and by that action render the records subject to the disclosure requirements of the FOIA. Thus, unlike the majority, I do not believe that the issue in this case is “whether masked and scrambled test score records, which do not identify individual students, are subject to disclosure under the FOIA.” I believe rather that the issue here is whether the FOIA requires a public body to recodify exempt records in order to make them nonexempt.\nPlaintiffs suggest three reasons why the school district is, or should be, required to replace the current codes with more general, race-only codes. Initially, plaintiffs contend, and the majority seems to agree, that our decision in Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, compels this substitution. To the extent that our opinion in Family Life League, which interpreted the State Records Act (Ill. Rev. Stat. 1979, ch. 116, par. 43.4 et seq.), offers guidance in the interpretation of the FOIA, it should be noted that in Family Life League we concluded only that the public body was required to delete, not to substitute, information in order to render the records exempt.\nMoreover, following the appellate court’s opinion in this case, the legislature amended section 8 of the FOIA. As presently written, section 8 no longer requires public bodies “to separate” exempt and nonexempt material but instead requires that public bodies “delete the information which is exempt [under section 7] and make the remaining information available for inspection and copying.” (Emphasis added.) (Pub. Act 85 — 1357, eff. Jan. 1, 1989 (amending Ill. Rev. Stat. 1987, ch. 116, par. 208).) As plaintiffs concede, more than deletion is involved in this case. Their reliance on Family Life League is therefore misplaced, and I find no support in either the present or former language of the FOIA to favor their contention that the school district was obligated to replace the codes it had chosen and utilized.\nPlaintiffs next contend that the purpose of the FOIA is to open the books of government to public scrutiny and that this purpose will be undermined if defendants are not required to alter their records to permit disclosure. Yet, as the FOIA itself recognizes, the public’s right to information is not without limits. For example, section 1 states that the act is not intended to create an obligation on the part of any public body to maintain or prepare new records. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) Similarly, section 7 creates 28 separate exemptions from the act’s provisions. (Ill. Rev. Stat. 1987, ch. 116, pars. 207(a) through (cc).) Thus the act represents the legislature’s balancing of the public’s interest in disclosure against other competing private and governmental interests. Section 8 reflects the legislature’s determination concerning the extent to which a public body must modify exempt records to render them nonexempt. Because I do not read that provision to impose a duty on public bodies to recodify existing records, the balancing features of the act are best served by recognizing that the school has no obligation to recodify its records to provide the information in the form requested by plaintiffs.\nFinally, plaintiffs contend that the failure to recognize a duty to recodify existing records ignores the capabilities of modem data processing. I do not find this argument persuasive. I see nothing in the FOIA which indicates that the legislature intended to impose a duty on public bodies to use their computer capabilities to provide information in a form that would make the material nonexempt. (See Yeager v. Drug Enforcement Administration (D.C. Cir. 1982), 678 F.2d 315 (interpreting Federal FOIA).) The act simply does not differentiate between records stored in computers and those maintained manually.\nNor am I convinced that such a distinction would be advisablé. The recognition of a greater duty to modify exempt information that is stored in computers than that which is stored manually would essentially mean that public records maintained by computers would be subject to broader disclosure requirements than manually kept records. Thus a distinction between computer and manually maintained records may create an incentive in public bodies to record certain types of information in computer form and other types in manual form depending on how desirable its disclosure to the public may be perceived. I do not believe that such incentives are in the public interest.\nHaving concluded that the defendants are not and should not be required to replace existing codes with new ones in order to make exempt records nonexempt, I believe the majority unnecessarily considered the remaining arguments raised by the defendants. I would reverse the appellate court’s judgment.\nJUSTICE RYAN joins in this dissent."}
{"dedup_key":"pre1996-127888","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"174 ill-app-3d 301","case_name":"Bromberek School District No. 65 v. Sanders","court_level":"Appellate","appellate_district":null,"year":1988,"county":null,"appellate_docket":"87-3448","circuit_docket":null,"published":1,"authoring_justice":"Freeman","statute":["OMA"],"exemptions_cited":[],"public_body":"Regional Superintendent of Education for Cook County","requesting_party":"Bromberek School District No. 65","disposition":"affirmed","relevance":"mention_only","summary_source":null,"summary":"The court addressed an Open Meetings Act claim as part of a broader challenge to a school district consolidation, but the opinion focused primarily on administrative jurisdiction and bias rather than a substantive OMA violation.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=127888","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:00.767620","site_category":"Other","date_decided":"1988-08-24","site_url":"/cases/pre1996-127888/","text_url":"/case-text/pre1996-127888.txt","full_text":"BROMBEREK SCHOOL DISTRICT NO. 65, Plaintiff-Appellant, v. TED SANDERS, State Superintendent of Education, et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 87—3448\nOpinion filed August 24, 1988.\nRehearing denied October 3, 1988.\nStuart D. Gordon, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant.\nNeil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Rita M. Novak, Assistant Attorney General, of Chicago, of counsel), for appellee Ted Sanders.\nJames P. Bartley, of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee Lemont Community Consolidated School District No. 113.\n\nJUSTICE FREEMAN\ndelivered the opinion of the court:\nPlaintiff-appellant, Bromberek School District No. 65, appeals from the circuit court’s affirmance of the administrative decision of defendant Ted Sanders, the State Superintendent of Education (Sanders), approving a petition to consolidate two elementary school districts. On appeal plaintiff contends that: (1) Sanders lacked jurisdiction to consider the petition to combine school districts; (2) Sanders’ decision was contrary to the manifest weight of the evidence; (3) Sanders’ decision was erroneous as a matter of law; (4) the petition to combine school districts failed to comply with statutory requirements; (5) the initial hearings on the petition before the regional superintendent of education for Cook County were conducted in violation of the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 42); and (6) the regional superintendent of education had a personal interest in the outcome of the hearings and should have recused himself from conducting the hearings.\nFor the reasons stated below, we affirm the judgment of the trial court which affirmed the administrative decision granting the petition to consolidate.\nThe record indicates that 158 of the 827 registered voters of Bromberek District 65 signed a petition pursuant to article 11B of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 11B — 1 et seq.) to combine its school district with Lemont District 113. Lemont District 113 is located in southwestern Cook County and comprises 25 square miles. Bromberek District 65 is located in Du Page County just north of the Cook County-Du Page County line and comprises approximately six square miles. The two districts are contiguous. Both District 113 and District 65 are located within the boundaries of Lemont Township High School District Number 210.\nA hearing on Bromberek’s petition was held before Richard Martwick, the regional superintendent of education for Cook County (Martwick), in early 1986. Martwick recommended the consolidation. Defendant Sanders issued an administrative decision approving the consolidation.\nAt the start of the hearing before Martwick, Bromberek District 65 requested that Martwick recuse himself as the hearing officer. Bromberek asserted that the claimed benefits of consolidation all would accrue to the Cook County portion of the territory involved, and since Martwick is an elected Cook County official, the affected residents of Du Page County would have no recourse at the ballot box regarding the decision on the consolidation petition. Martwick denied the motion for recusal. The Bromberek district then filed a motion to dismiss the petition, alleging the petition was defective in that: (1) article 11B had been repealed by implication and the proposed consolidation must be considered in accord with the 1985 School District Reorganization Act (the Reorganization Act) (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 1 et seq.); (2) the hearing on the petition violated the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, par. 42) since it was conducted on a legal holiday; and (3) the petition failed to reflect the maximum tax rates to be levied by the proposed consolidated district, as required by the Reorganization Act (Ill. Rev. Stat. 1985, ch. 122, par. 11B — 3). Martwick denied the motion to dismiss.\nThe parties then presented the following evidence at the hearing. Both District 65 and District 113 provide courses for kindergarten through eighth grade. District 65 has one school building, while District 113 has two, one for kindergarten through fourth grade and another for fifth through eighth grade. District 65 has a student enrollment of 104 and employs seven full-time teachers, one part-time teacher, and one administrator who serves as both superintendent and principal. The number of students per classroom ranges from 8 to 16. District 113 has a student enrollment of 919 and employs 32 regular classroom teachers, some special education teachers, and three administrators, including a superintendent and a principal for each of the two school houses. The number of students per classroom ranges from 21 to 30. All of the students attending the elementary schools in District 113 and District 65 go on to public high school in Lemont District 210.\nBoth districts provide educational programs which comply with State requirements. District 113 presented evidence to indicate that it provides the following programs and staff not offered by District 65: a gifted student program in math and language arts; Title I reading and math for all grades year-round; full-time teachers in speech, psychology, and special education; a full-time nurse; and a hot lunch program.\nDistrict 113 has an equalized assessed valuation of $81,229 per student, or a total of approximately $74,649,816. District 65 has an equalized assessed valuation of $159,276 per student, or a total of approximately $16,564,663'.\nC. Thomas Reiter, superintendent of District 113, testified that if the consolidation were effected, Bromberek students in kindergarten though third grade, in addition to seventh, eighth and possibly sixth grade, would be bused to the schools in Lemont. Lemont students in fourth, fifth, and possibly sixth grade would be bused to the Bromberek school. R-eiter and Thomas Linhardt, one of the two principals in District 113, testified that they favor the consolidation. Thomas Meade, the superintendent and principal of District 65, testified that the consolidation is not in the educational interest of the children.\nPlaintiff called two educational experts to testify. William Hazard, J.D., Ph.D., a professor of education administration at Northwestern University and an author in the field of education, testified that a consolidation would not be in the educational interests of the children in the Bromberek district. Hazard stated that the smaller Bromberek classes provided better educational results than the larger classes in the Lemont district; allowed for increased student participation in class discussions and leadership roles; and facilitated advanced studies for gifted students. Any class size decrease for Lemont district students as a result of the consolidation would not be beneficial since the decrease would be so small as to be statistically insignificant. Generally, a consolidation should be approved only if it will result in an educational benefit, and not merely so that one district is able to utilize available space in another school’s building, or so that elective courses can be offered.\nDr. Paul Schilling, an educational consultant who previously served as a teacher, principal, and superintendent of schools, testified that the consolidation would not be beneficial since District 65 and District 113 have different “spending philosophies.” As of June 30, 1985, District 113 was insolvent in its educational fund, while District 65 was solvent. District 113 had reserves of 4% of its 1985 fiscal year expenditures, while District 65 had operating reserves of 57% of its 1985 fiscal year expenditures.\nA number of other witnesses testified, including residents from District 65 and District 113. Plaintiff called 17 residents of District 65 who testified against the consolidation and stated that they and their children did not participate very much in District 113 community activities. Defendants called three District 65 residents who stated that their children participate in athletic and church activities in District 113. Defendants also presented witnesses with education and experience in elementary education, who testified that the proposed combination was in the best interest of the schools of the area and to the educational benefit of the students. Those witnesses included a former superintendent of schools for school District Number 66, which borders District 65 to the north; the principal of the District 113 school; a substitute teacher for District 113 and District 65, who resides in District 113 and whose children attend school in high school District 210; and a District 113 teacher who resides in District 113 and who formerly taught in District 65.\nPlaintiff initially contends on appeal that defendant Sanders lacked jurisdiction to consider article 11B petitions as a result of the enactment of the 1985 School District Reorganization Act (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 1 et seq.), which, plaintiff asserts, repealed by implication article 11B (Ill. Rev. Stat. 1983, ch. 122, par. 11B — 1 et seq.). Plaintiff asserts that pursuant to article 11B, a majority of the total number of votes in the territory involved in a proposed consolidation was needed for the approval of a petition to consolidate. Under the Reorganization Act, a petition to combine wins approval upon a favorable vote by a majority of voters in each district affected by the proposed consolidation. Further, the Reorganization Act provides for a comprehensive examination of all school districts within the State, utilizing one set of review criteria. Plaintiff contends that article 11B provided for piecemeal examination of petitions to consolidate.\nA repeal by implication is not favored in the law, and a statute will not be held to be repealed by implication by a subsequent enactment if a repeal can be avoided on any reasonable hypothesis. (Caruthers v. Fisk University (1946), 394 Ill. 151, 68 N.E.2d 296; Spaulding School District No. 58 v. Waukegan City School District No. 61 (1960), 18 Ill. 2d 351, 356, 164 N.E.2d 63.) Unless the two statutes cannot be reconciled or there is such inconsistency that the two acts cannot stand, a repeal will not be found. (Caruthers, 394 Ill. at 162.) In Town House Motel, Inc. v. Ward (1971), 2 Ill. App. 3d 699, 276 N.E.2d 809, the court stated:\n“Where two statutes are enacted which have relation to the same subject, the earliest [sic] continues in force unless the two are clearly inconsistent with and repugnant to each other or unless in the latest [sic] statute some express notice is taken of the former plainly indicating an intention to repeal it, and where two acts are seemingly repugnant, they should, if possible, be so construed that the later [sic] may not operate as a repeal of the former by implication. It is not enough to justify the inference of repeal that the subsequent statute covers some, or even all, of the questions covered by the former. There must be an irreconcilable repugnancy.” (Town House Motel, Inc., 2 Ill. App. 3d at 704.)\nFurther, in determining the meaning of the acts, we look to the language and the purpose of the statutes. See Niven v. Siqueira (1985), 109 Ill. 2d 357, 487 N.E.2d 937.\nWe find that the Reorganization Act does not repeal article 11B of the School Code expressly or by implication. We find no irreconcilable repugnancy between the statutes and find that both statutes can stand. The Reorganization Act provides for the reorganization of school districts “through the retention of certain districts and the combination or reorganization of other districts.” (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 1.) The Act calls for the formation of committees throughout the State (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 3(a)) to form and submit plans for reorganization, as needed, of school districts according to regions (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 4). Upon certification of the plan by the State committee, the plan is submitted to the voters of the territory affected. (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 7.) Upon approval by a majority of voters in each of the districts affected, each plan becomes effective on July 1, 1988. Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 7.\nThe Reorganization Act went into effect on August 1, 1985, and required the committees to be set up within 60 days of the effective date of the Act. (Ill. Rev. Stat. 1985, ch. 122, par. 1502 — 3(a).) Further, the Act required that the reorganization plans be submitted to the State committee by September 30, 1986. (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 4.) The Reorganization Act thus provides for the comprehensive review and reorganization, where necessary, of school districts within a limited period of time and according to a certain specified procedure not found in article 11B. See Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 4.\nArticle 11B, of the other hand, is not so limited in duration and scope. Rather, article 11B provides for the filing of a petition to combine by the boards of each district affected or by 10% of the voters of each district affected. Article 11B sets forth requirements for the filing of the petition, the giving of notice for a hearing on the petition, and the criteria for reviewing the merits of the petition. However, unlike the Reorganization Act, article 11B does not, for instance, set forth specific deadline dates for the filing of the petitions or submission of plans for reorganization within a certain time period after the Act becomes effective.\nFurther, in an amendment of section 4 of the Reorganization Act, effective March 20, 1986, the legislature references article 11B and thereby indicates the continuing validity of article 11B. The amendment requires that the committee in each region set forth maximum tax rates of the proposed new district, which rates are to be enforced in accord with “each of the purposes set forth in Section 11A— 3 or 11B — 3 of The School Code, as now or hereafter amended.” (Ill. Rev. Stat., 1986 Supp., ch. 122, par. 1502 — 4.) We find that article 11B of the School Code sets forth procedures for organization in addition to or alternatively to those set forth in the limited provisions of the Reorganization Act. Since the petition in the instant case was filed pursuant to article 11B, those statutory provisions control.\nPlaintiff next contends that assuming arguendo that defendant Sanders had the authority to consider an article 11B consolidation petition, Sanders’ decision approving the consolidation of District 65 and District 113 was contrary to the manifest weight of the evidence. Plaintiff contends that the evidence presented by defendants in favor of consolidation was impeached and was insufficient to justify granting the petition. The evidence favoring the consolidation indicated: (1) the proposed district would be financially available to offer courses not currently offered in District 113, including home economics, industrial arts, and foreign languages; (2) District 65 students will have the opportunity to participate in more interscholastic sports; (3) District 65 students will be in classes double the size of their current classes; (4) tax revenues will become equalized; and (5) District 65 and District 113 share a community of interests.\nPlaintiff contends that evidence was presented to rebut each of the five “advantages” of the proposed consolidation. First, both districts offer similar required courses, art and music courses, intramural sports, and gifted student programs. Plaintiff’s expert, Paul Schilling, stated that foreign language electives are not appropriate for junior high school students. Even the former school superintendent called by defendants testified that the offering of elective courses does not justify a consolidation. Further, Schilling stated that competition through intramural sports is more beneficial to students at the junior high school level than interscholastic sports, which were emphasized in District 113. Plaintiff’s witnesses testified that studies and personal experience showed that smaller class size promoted increased personal attention to students, an improved learning atmosphere, and better educational results than larger class sizes.\nPlaintiff admits that a consolidation would result in an “equalization” of tax revenues. Plaintiff asserts that such an equalization, however, would be detrimental to District 65, since it will require revenue-from property owners in District 65 to pay for the education of students in District 113. Further, plaintiff rebuts the existence of a shared “community of interest” between the two districts. Plaintiff asserts that the only evidence regarding the community of interest is that some District 113 residents and a small number of District 65 children participate in little league or soccer in Lemont, and that several Bromberek children use the pool in Lemont.\nIn addition to attempting to rebut the so-called advantages of the consolidation, plaintiff asserts that the following evidence indicates the detrimental effects of the proposed consolidation, which outweigh the evidence showing any positive effects of the consolidation. First, plaintiff’s witnesses testified that smaller class sizes are more beneficial to learning than larger class sizes. Second, without the consolidation, all students in both districts have the opportunity to attend schools in their own communities. Third, a consolidation would result in tax disparities. For instance, Schilling testified that a District 65 homeowner would pay approximately 15.7% more in taxes than a similarly situated homeowner in District 113, and a commercial property owner in District 113 would pay 121% more in taxes than a commercial property owner in Du Page County. Further, one of plaintiff’s experts testified that a “post-reorganization scarring and trauma” might occur, resulting in resentment and less willingness among residents to fund future improvements in education. Plaintiff asserts that the District 65 residents likely would consider themselves disenfranchised, since District 113 voters would far outnumber them at the ballot box on a vote regarding the consolidation.\nAdditionally, plaintiff’s experts testified that a consolidation would not result in financial savings. The salaries of District 65 teachers would be increased to meet the salaries of District 113 teachers. Further, plaintiff’s witnesses stated that a consolidation should not be approved so that elective courses can be offered or so that one district may utilized the space of another district. Finally, Schilling testified that the two districts have different spending philosophies, and the District 113 was insolvent in its educational fund as of June 30, 1985, while District 65 was solvent.\nThe findings and decisions of the regional superintendent will not be set aside on administrative review unless they are shown to be contrary to the manifest weight of the evidence. (Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240.) It is not the role of the court to reweigh the evidence, but rather to determine whether the decision is supported by the evidence. (Regional Board of School Trustees, 89 Ill. 2d at 396-97.) If the court determines that the board has considered the applicable statutory standards and its decision is supported by substantial evidence, then the court must affirm the board’s decision. Regional Board of School Trustees, 89 Ill. 2d at 396-97, citing School Directors of School District No. 82 v. Wolever (1962), 26 Ill. 2d 264, 268,186 N.E.2d 281.\nArticle 11B, the applicable statute in the instant case, provides that in determining whether to grant or deny a petition, the regional superintendent should consider the following factors: (1) whether the proposed district will have sufficient size (pupil enrollment) and financial resources (assessed valuation); (2) whether the proposed school district is for the best interests of schools of the area and the educational welfare of the pupils therein; and (3) whether the territory for the proposed school district is compact and contiguous. Ill. Rev. Stat. 1985, ch. 122, par. 11B-3.\nDefendant Sanders, the State Superintendent, found that all three factors were met. Further, Sanders found that the evidence “establishes the possibility of improved educational facility utilization, enhancement of junior high curriculum, utilization and school nurse and psychologist services, and enhancement of the music and band programs for all District No. 65 and District No. 113 pupils.” The evidence presented by defendants supports the findings of Sanders. For instance, District 113 has problems of limited space in their schools, while District 65 has underutilized space. The consolidation would provide for the enhanced utilization of available space. Further, the consolidation would result in a more equitable distribution of the equalized assessed valuation of all students in the territory. The consolidation also would allow for increased opportunities for District 65 children to participate in extracurricular activities and to reap the benefits of the full-time psychologist, school nurse, and gifted student programs offered by District 113.\nBoth District 65 and District 113 are within the boundaries of high school District 210, and the students from both districts go on to the District 210 high school. A consolidation would allow students the opportunity during elementary school to meet and interact with the children with whom they would be attending high school. Further, District 65 children were already being bused to the Bromberek school. Defendants presented evidence to indicate that any increase in the time and distance under the busing program for the proposed consolidation would be minimal and would present no foreseeable problems for the students. While plaintiff presented some evidence in opposition to the consolidation, we find that the decision to grant the petition is supported by the manifest weight of the evidence.\nPlaintiff next contends that the decision to grant the petition was erroneous as a matter of law, since Sanders failed to determine whether the consolidation would enable students to attend schools in their natural communities and failed to make specific findings regarding factors set forth in the Reorganization Act (Ill. Rev. Stat. 1987, ch. 122, par. 1502 — 1 et seq.). Since we have found that the Reorganization Act failed to repeal article 11B (Ill. Rev. Stat. 1985, ch. 122, par. 11B — 1 et seq.), the controlling statute in this case, we need not consider plaintiff’s argument regarding factors under the Reorganization Act. In any event, we find that the evidence fails to indicate that the proposed consolidation would result in the children attending schools outside their natural communities.\nPlaintiff next contends that the hearings conducted by regional superintendent Martwick were void since the petition to consolidate failed to set forth “the maximum tax rates for educational and operations, building and maintenance purposes the proposed district shall be authorized to levy,” as required by article 11B (Ill. Rev. Stat. 1985, ch. 122, par. 11B — 3). The petition in the instant case sets forth percentages of the proposed tax rates. Plaintiff contends that in order to constitute a “rate,” the percentage must be applied to a given number which represents the equalized assessed valuation of the property.\nWe find that the petition sufficiently sets forth the required information regarding the tax rates for the proposed school district. Defendant, District 113, notes that the statute fails to require that the stated tax rates be upon all the taxable property of the district, as equalized. (Ill. Rev. Stat. 1985, ch. 122, par. 11B — 3.) Further, District 113 states that the percentage rate is always applied to the equalized assessed valuation and that the statute fails to provide any other factor to which the rate is ever applied. We find that since the petition provides the equalized assessed valuation for the property involved, in addition to the tax rate percentages for the proposed district, the statutory requirement has been met.\nPlaintiff also contends that the hearings before regional superintendent Martwick were invalid, as they constituted a meeting of a public body and were conducted in violation of the Open Meetings Act (Ill. Rev. Stat. 1985, ch. 102, pars. 41.02, 42). The hearings began on February 17, 1986. Plaintiff asserts that since that day was a legal holiday, the hearing violated the Act. The Act again was violated, plaintiff asserts, when the only notice regarding the dates of the continuing hearings was given on that first day of the hearings.\nThe Open Meetings Act sets forth the public policy that the public agencies of the State “exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1985, ch. 102, par. 41.) That is, all official meetings of public bodies must be public. (Goldman v. Zimmer (1965), 64 Ill. App. 2d 277, 281, 212 N.E.2d 132, rev’d on other grounds (1966), 35 Ill. 2d 450, 220 N.E.2d 466.) Section 2.01 of the Act (Ill. Rev. Stat. 1985, ch. 102, par. 42.01) provides that “[n]o meeting required by this Act to be public shall be held on a legal holiday unless the regular meeting day falls on that holiday.” However, section 3 of the Act (Ill. Rev. Stat. 1985, ch. 102, par. 43(a)) provides that where there is noncompliance with the Act, any person may bring a civil action in circuit court “prior to or within 45 days after the meeting alleged to be in violation of this Act.”\nIn the instant case, plaintiff failed to complain of the alleged violation within the 45-day time period provided for in the Act and therefore has waived the issue. Even assuming that plaintiff preserved the issue for review, plaintiff fails to indicate that notice of the initial meeting was defective, or that any interested persons were unaware of the initial meeting or the subsequent meetings. Plaintiff fails to allege any prejudice resulting from the first session of the hearings being held on February 17, 1986. Further, plaintiff fails to indicate that the purpose of the Act was violated.\nThe statute provides for remedies for violations of the Act, including a mandamus requiring a meeting be open to the public; an injunction against future violations; an order to make available to the public the minutes of the meeting; or a declaration that the final action taken at a closed meeting in violation of the Act is null and void. (Ill. Rev. Stat. 1985, ch. 102, par. 43(c).) In determining an appropriate remedy, the court is to consider the “orderly administration and the public interest, as well as *** the interests of the parties.” (Ill. Rev. Stat. 1985, ch. 102, par. 43(c).) In the instant case, plaintiff has failed to assert specifically in what manner the meeting was repugnant to orderly administration, the public interest, or the interests of the parties. Since plaintiff failed to assert the violation within the period provided for in the statute and fails on appeal to indicate with any specificity the detrimental effects of conducting the first day of the hearing on February 17, 1986, plaintiff’s argument must fail.\nFinally, plaintiff contends that regional superintendent Martwiek had a personal interest in the outcome of the hearing and his failure to recuse himself from conducting the hearing constitutes error. Plaintiff asserts that the people who would receive the greatest benefit from a consolidation are Cook County taxpayers who would be able to utilize the Du Page County tax base. At the time of the hearings, Martwiek was campaigning in Cook County for reelection as regional superintendent. Plaintiff asserts that Martwiek “had nothing to fear from” Du Page County residents who opposed the consolidation. In its reply brief, plaintiff contends that Martwick’s candidacy for office in Cook County, the area which would be financially benefited by his ultimate decision, tainted the proceedings.\nWe disagree. We do not believe that the fact of Martwick’s candidacy for reelection in itself is a sufficient ground for finding error. The statute mandates that the initial determinations regarding a petition to consolidate be made by the regional superintendent. (Ill. Rev. Stat. 1985, ch. 122, par. 11B — 3.) We cannot assume that the legislature failed to consider or anticipate that the regional superintendent likely would be campaigning for reelection while holding his elected office, nor that campaigning for reelection implies bias on the part of the person holding office. Further, our review of the record fails to reveal that Martwick was biased.\nFor the reasons stated below, we affirm the judgment of the circuit court.\nJudgment affirmed.\nMcNAMARA and RIZZI, JJ., concur."}
{"dedup_key":"pre1996-129427","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"184 ill-app-3d 28","case_name":"Kenyon v. Garrels","court_level":"Appellate","appellate_district":"4th","year":1989,"county":null,"appellate_docket":"4-88-0804","circuit_docket":null,"published":1,"authoring_justice":"McCullough","statute":["FOIA"],"exemptions_cited":[],"public_body":"Palestine Township","requesting_party":"Franklin L. Kenyon","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the Freedom of Information Act does not require a public body to answer interrogatory-style questions or create new records to satisfy a request. Furthermore, the court found that the plaintiff's request failed to identify specific existing documents and that the township did not improperly withhold records.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=129427","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:01.515334","site_category":"FOIA Response Process","date_decided":"1989-06-08","site_url":"/cases/pre1996-129427/","text_url":"/case-text/pre1996-129427.txt","full_text":"FRANKLIN L. KENYON, Plaintiff-Appellant, v. VIRGINIA GARRELS, Palestine Township Clerk, et al., Defendants-Appellees.\nFourth District\nNo. 4—88—0804\nOpinion filed June 8, 1989.\nGary L. Morris and Joseph M. Gibson, both of Peoria, for appellant.\nLeiken, Leiken & Leiken, of Eureka, for appellees.\n\nPRESIDING JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nPlaintiff appeals a trial court order which denied his complaint for an injunction, declaratory judgment, and attorney fees pursuant to the Freedom of Information Act (Act) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.). The trial court determined that requests plaintiff made for answers to questions concerning legal expenses incurred in connection with an ongoing litigation were not requests for documents covered by the Act. The trial court also determined no documents or records had been withheld from plaintiff. Plaintiff appeals, arguing his requests were in proper form and defendants violated the Act by withholding three billing statements.\nWe affirm.\nOn April 27, 1987, plaintiff sent a letter to Virginia Garrels, Palestine Township clerk, requesting the following questions be placed on the next township board meeting agenda: (1) does the road commissioner have authority to incur legal expenses; (2) who authorized the hiring of Richard Leiken in the township suit against Kenyon; (3) if authorized, when was it authorized; (4) at what rate and expense is the township board paying Leiken; and (5) is the board backing the road commissioner in its injunction action. Plaintiff stated he would appreciate answers to his questions in a return letter.\nOn January 25, 1988, plaintiff directed a letter to Pete Remmert, the Palestine Township supervisor. The letter stated that pursuant to the Act, plaintiff would like answers to the following questions: (1) at what rate is the road district incurring legal expenses in its lawsuit against him; (2) how much expense has accrued up to this date; (3) how much has been paid; and (4) to whom have payments been made. Plaintiff added he was willing to pay reasonable costs of copying any of the requested information. Remmert responded on February 9, 1988, telling plaintiff the information he wanted was kept by Garrels, who maintained the township records and books.\nOn February 19, 1988, plaintiff delivered a letter to Garrels noting it was his second request under the Act for information concerning the amount of money expended by the township in its lawsuit against him. On March 2, 1988, Garrels sent copies of payment vouchers for legal services. In a letter she stated Dave Thompson, the road commissioner, had advised her that the bills for legal services did not contain the hours worked, only the amounts due.\nOn March 7, 1988, plaintiff sent a letter to Thompson which stated he was requesting access to the information related to his lawsuit with Palestine Township. Plaintiff specifically wanted: (1) copies of contracts between the township or road district and Leiken or his firm; (2) if contracts did not exist, the amount Thompson had authorized to be paid Leiken on an hourly basis; (3) Leiken’s rate for in- and out-of-court services, if they differed; (4) the number of hours Leiken had worked on the case as of the date of the letter; and (5) copies of any contracts between Montgomery Township and Palestine Township in 1987. Plaintiff stated he wanted copies of actual records, not “made up” documents. Plaintiff also stated he was willing to pay reasonable costs of copying.\nOn March 17, 1988, Thompson replied to plaintiff’s letter. He stated no written contract with Leiken existed, he had supplied the amounts paid to Leiken, and felt answers to other questions relating to fees and hours should be privileged. Thompson enclosed copies of contracts in effect in 1987 between Palestine and Montgomery Townships.\nPlaintiff filed suit on April 20, 1988. In his complaint, he stated he wanted to know the particular manner in which Palestine Township officials were spending money in the lawsuit involving him. Plaintiff alleged Thompson refused to provide all the records and bills related to fees and hours of Leiken’s employment. Plaintiff asked for an injunction, declaration that defendants’ action had violated the Act, and attorney fees.\nIn their answer, defendants admitted Garrels made a statement alleged in her March 2, 1987, letter, noted plaintiff was provided with pay vouchers providing the amounts paid as fees, and defendants attached copies of the bills submitted to Thompson by Leiken. Defendants denied withholding public records, stating all records had now been provided to plaintiff.\nAt trial, plaintiff testified Leiken represented the township and some adjacent landowners who were involved in a lawsuit concerning him. He wanted to know the particular rate of compensation for Leiken by Palestine Township to determine whether he as a taxpayer was subsidizing the adjacent landowner’s lawsuit. Additionally, he was concerned that insufficient funds would be left in the road repair budget, since the township budget was not large.\nThe trial court conducted an in camera inspection of the township records. It determined no information had been withheld from plaintiff which would have answered his questions. The court found the request for answers to questions concerning rates of pay was not a proper request, as the Act did not require the agency to prepare answers to questions.\nPlaintiff argues his requests were for documents or records, were in proper form, and the three bills filed with defendants’ answer establishes defendants violated the Act.\nSection 1 of the Act states the public policy of the State is that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of public officials, consistent with the terms of the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) The Act is not intended to require a public body to prepare or maintain any public record which it did not maintain prior to the effective date of the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) However, each public body is required to make available for copying or inspection its public records, subject to certain exceptions. (Ill. Rev. Stat. 1987, ch. 116, par. 203.) The exceptions are not applicable in the instant case. Section 2 defines public records in terms of documentary memorializations of the workings of governmental bodies or officials. Ill. Rev. Stat. 1987, ch. 116, par. 202.\nThe Act, thus, provides a statutory mechanism whereby citizens can obtain full and complete information on the affairs of government by viewing the public records. (Hoffman v. Department of Corrections (1987), 158 Ill. App. 3d 473, 511 N.E.2d 759; Roulette v. Department of Central Management Services (1986), 141 Ill. App. 3d 394, 490 N.E.2d 60.) The focus of the Act is upon access to records and documents. Hamer v. Lentz (1988), 171 Ill. App. 3d 888, 525 N.E.2d 1045.\nFew cases exist interpreting the Illinois Act. However, Federal cases and developments from other States are persuasive. If a document exists stating itemized fees for legal services, it would be subject to the Act. (Ill. Rev. Stat. 1987, ch. 116, par. 202(c)(vii); City of New Haven v. Freedom of Information Comm’n (1985), 4 Conn. App. 216, 493 A.2d 283.) However, the Act is not designed to compel the compilation of data the governmental body does not ordinarily keep. (Borom v. Crawford (7th Qir. 1981), 651 F.2d 500; Krohn v. Department of Justice (D.C. Cir. 1980), 628 F.2d 195.) The Act does not compel the agency to provide answers to questions posed by the inquirer. Krohn, 628 F.2d 195.\nIn Krohn, the court found a request for information stated was too vague to satisfy the statutory requirement that it reasonably described the records requested. The court noted:\n“A reasonable description requires the requested record to be reasonably identified as a record not as a general request for data, information and statistics to be gleaned generally from documents which have not been created and which the agency does not generally create or require.” Krohn, 628 F.2d at 198.\nIn the instant case, plaintiff requested answers to his questions concerning hourly rates of payment to Palestine Township’s attorney. He was informed that no itemized billing statements or contract existed. However, township officials provided copies of work orders, showing actual payments. Township officials were not obligated under the terms of the Act to answer plaintiff’s general inquiry questions concerning rates of payment, since this would have required creation of a new record (Ill. Rev. Stat. 1987, ch. 116, par. 201) or answering of questions based upon information not contained in any record. Additionally, plaintiff’s request for information about payment rates did not identify documents which he wished produced or made available. It was, thus, not in proper form. Krohn, 628 F.2d 195.\nWe find the bills for legal services, which were attached to defendants’ answer, are not indicative of a violation of the Act. None of the bills contained an itemization of work performed and rates charged. One contained a statement of the time spent in court, but did not indicate that the in-court work was the sole source of the billing for services performed. Thus, the billings statements would not have answered plaintiff’s question. Even if his requests for documents establishing the hourly rate were in proper form, nonitemized billing statements would not be such documents.\nFor the above reasons, we affirm the trial court.\nAffirmed.\nLUND and KNECHT, JJ., concur."}
{"dedup_key":"pre1996-139154","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"25 ill-app-3d 224","case_name":"The People ex rel. Junus Maciuba et al. v. Warren Cheston et al.","court_level":"Appellate","appellate_district":"1st","year":1974,"county":null,"appellate_docket":"60045","circuit_docket":null,"published":1,"authoring_justice":"Drucker","statute":["OMA"],"exemptions_cited":[],"public_body":"University of Illinois Faculty Senate","requesting_party":"Junus Maciuba et al.","disposition":"affirmed","relevance":"mention_only","summary_source":null,"summary":"The case primarily concerns a tort claim against state employees and the jurisdiction of the Court of Claims; the Open Meetings Act is mentioned only in passing regarding the plaintiffs' separate, dismissed counts seeking access to faculty senate meetings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=139154","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:01.676531","site_category":"Meeting Conduct & Participation","date_decided":"1974-12-13","site_url":"/cases/pre1996-139154/","text_url":"/case-text/pre1996-139154.txt","full_text":"The People ex rel. Junus Maciuba et al., Plaintiffs-Appellants, v. Warren Cheston et al., Defendants-Appellees.\n(No. 60045;\nFirst District (5th Division)\nDecember 13, 1974.\nRehearing denied January 31, 1975.\nThomas J. Grippando, of Chicago, for appellants.\nBaker & McKenzie, of Chicago (Francis D. Morrissey and John T. Coleman, of counsel), for appellees.\n\nMr. JUSTICE DRUCKER\ndelivered the opinion of the court:\nPlaintiffs filed an amended complaint, Count III of which alleged the commission of an assault and battery by three employees of the State of Illinois. Defendants moved to dismiss Count III, arguing that exclusive jurisdiction to hear claims of this nature is vested in the court of claims, and their motion was granted. On appeal plaintiffs contend that amended Count III was brought against defendants as individuals rather than in their capacity as State employees and therefore the circuit court had jurisdiction over their tort claim.\nPlaintiffs alleged that they were reporters for the Chicago Illini, a student newspaper at the Chicago Circle Campus of the University of Illinois. On April 5, 1973, they were present at a “duly constituted” meeting of the faculty senate which was held on the campus. The faculty senate \"is a duly constituted advisory body which is part of the University of Illinois and is supported in whole or in part by tax revenue and said body expends tax revenue.” During the course of the April 5 meeting the faculty senate voted to expel all nonmembers. Pursuant to this action defendants Hartnett and Johnson, who are State employees and faculty senate members, under the instructions of defendant Cheston who is the Chancellor of the Chicago Circle Campus and the chairman of the faculty senate, expelled plaintiffs.\nCount III alleges that in expelling plaintiffs defendants committed an assault and battery. It further alleges that the decision of the faculty senate to bar nonmembers from its April 5 deliberations was in violation of statutory provisions requiring public bodies to conduct “open” meetings. See Ill. Rev. Stat. 1971, ch. 102, par. 41.\nThe court of claims has exclusive jurisdiction to hear and determine “[a]ll claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit * * *.” (Ill. Rev. Stat. 1973, ch. 37, par. 439.8(d); see Powers v. Telander, 129 Ill.App.2d 10, 262 N.E.2d 342.) At oral argument plaintiffs conceded that their mere allegation of the commission of an assault and battery, a tort, by agents of the State allegedly acting within the scope of tlieir authority, would not be sufficient to place their claim within the jurisdiction of the circuit court. They assert, however, that since they averred that in closing its meeting the faculty senate had acted in violation of a statutory provision, defendants therefore exceeded their authority in expelling them, were not acting in their official capacity and consequently the court below was the proper forum for the resolution of their claim. There is no claim that plaintiffs were beaten up or manhandled, only that they were escorted from the room.\nWhether a suit against a State employee is, in fact, a suit against the State and hence one that must be heard in the court of claims depends upon the nature of the employee’s alleged conduct and the relief sought. (Powers.) If the relief sought “could operate to control tire action of the State or subject it to liability,” the suit is deemed to be against the State. (Struve v. Department of Conservation, 14 Ill.App.3d 1092, 1094, 303 N.E.2d 32; Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944.) In the instant case plaintiffs alleged that Cheston, Hartnett and Johnson were State employees, that in expelling non-members of the faculty senate from the meeting they were acting pursuant to a directive of that body, and that the faculty senate is supported by and expends tax revenues. Plaintiffs assert that their right to a judgment is contingent upon a finding that the faculty senate could not close its meetings to the public. Thus it is clear that the relief sought will affect the manner in which the faculty senate, a State agency, can conduct its affairs. On the basis of the amended complaint before us there can be no doubt that defendants were acting in their official capacity, pursuant to the authorization of the faculty senate, an agency of the University of Illinois and the State. We believe, therefore, that the State is the real party against which relief should be sought. The court below properly dismissed Count III for want of jurisdiction, and we affirm the judgment.\nAffirmed.\nSULLIVAN, P. J., and BARRETT, J., concur.\nCounts I and II of plaintiffs’ amended complaint asked for mandamus, declaratory and injunctive relief to permit the public to attend all meetings of the faculty senate. At oral argument it was represented that these counts were subsequently dismissed and are the subject of a separate appeal.\nAlthough Ill. Rev. Stat. 1971, ch. 102, par. 42, generally requires the meetings of administrative and advisory bodies to be open to the public, we note that it does not prevent “an advisory committee appointed to provide a public body with professional consultation on matters germane to its field of competence from holding a closed session to consider matters of professional ethics or performance.”"}
{"dedup_key":"pre1996-131480","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"198 ill-app-3d 936","case_name":"CBS, Inc. v. Partee","court_level":"Appellate","appellate_district":"1st","year":1990,"county":null,"appellate_docket":"1-89-0801","circuit_docket":null,"published":1,"authoring_justice":"Egan","statute":["FOIA"],"exemptions_cited":["7(1)(c)"],"public_body":"State’s Attorney of Cook County","requesting_party":"CBS, Inc.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that the race of assistant State's Attorneys, as recorded in personnel files, is exempt from disclosure under the Illinois FOIA because its release would constitute an unwarranted invasion of personal privacy under section 7(1)(c). The court affirmed the trial court's dismissal, finding that the privacy interest of the employees outweighed the public interest in disclosure.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=131480","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:01.676709","site_category":"Personnel & Student Records","date_decided":"1990-05-11","site_url":"/cases/pre1996-131480/","text_url":"/case-text/pre1996-131480.txt","full_text":"CBS, INC., Plaintiff-Appellant, v. CECIL A. PARTEE, State’s Attorney of Cook County, Illinois, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1—89—0801\nOpinion filed May 11, 1990.\nRichard J. O’Brien and Lisa A. Hausten, both of Sidley & Austin, of Chicago (R. Bryan Hatchett, of counsel), for appellant.\nCecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry and Susan Condon, Assistant State’s Attorneys, of counsel), for appellee.\n\nJUSTICE EGAN\ndelivered the opinion of the court:\nThis appeal requires us to decide whether the race of a public employee, as recorded in a personnel file, is subject to disclosure under the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.). In dismissing the complaint of CBS, Inc., against the State’s Attorney of Cook County, the trial judge held that it was not.\nIn January 1989 the plaintiff requested the following information from the State’s Attorney: (1) the names of all assistant State’s Attorneys; (2) the race of each assistant State’s Attorney; (3) the names of the “First Chair” assistant State’s Attorneys; (4) the names of the assistant State’s Attorneys in supervisory positions to be identified by title and department; and (5) the most recent salaries of each assistant State’s Attorney and the dates of hire.\nThe defendant gave the plaintiff the names, titles, most recent salaries and the dates of hire of all assistant State’s Attorneys but refused to identify any assistant State’s Attorneys by race. The material given by the defendant to the plaintiff did not identify the names of the “First Chairs” requested. It is the general practice of the State’s Attorney of Cook County to assign two or more assistant State’s Attorneys to one criminal court judge for an indefinite period. Frequently, one assistant State’s Attorney will be superior in authority to the other assistant State’s Attorneys assigned to the same judge. We have been informed in oral argument that the plaintiff’s description of “First Chair” refers to the superior assistant State’s Attorney. The plaintiff makes no issue here of the failure to provide the names of the “First Chair” assistant State’s Attorneys.\nOn March 7, 1989, the plaintiff filed a complaint seeking injunctive relief mandating the disclosure by the defendant of “the number of minority assistant State’s Attorneys; the positions and titles of the minority assistant State’s Attorneys; and the names of the minority assistant State’s Attorneys.” The judge allowed the defendant’s motion to dismiss on the ground that the complaint failed to state a cause of action.\nSection 1 of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 201) enunciates the public policy of this State to be that all persons are entitled to full and complete information regarding the affairs of government and the acts and policies of public officials and public employees. The Act itself cautions, however, that it is not intended to be used to violate individual privacy. In brief, the defendant’s position is that providing the plaintiff with the information sought would be a violation of the individual privacy of the assistant State’s Attorneys.\nThis case hinges on the interpretation of section 7 of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207), which provides, in part, as follows:\n“The following shall be exempt from inspection and copying:\n* * *\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:\n* * *\n(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for such positions[.]”\nThe defendant argues that the information sought is contained in personnel files and that any information contained in a personnel file is per se exempted from disclosure under section 7(b)(ii). We are aware that some appellate districts disagree on whether any exemption under section 7(b) may be considered a per se exemption. (Compare Copley Press, Inc. v. City of Springfield (4th Dist. 1986), 143 Ill. App. 3d 370, 493 N.E.2d 127, and Staske v. City of Champaign (4th Dist. 1989), 183 Ill. App. 3d 1, 539 N.E.2d 747, with City of Monmouth v. Galesburg Printing & Publishing Co. (3d Dist. 1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, and Margolis v. Director of Department of Revenue (1st Dist. 1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.) In Margolis the First Appellate District expressly rejected the per se exemption rule of Copley Press and held that the courts were to apply a balancing test in construing section 7(b).\nNone of the Illinois cases which have decided the question of per se exemptions involved personnel files. One Federal case did involve personnel files; and although we are not bound by the holding of the Federal court, we may look to that decision, since the Illinois statute closely parallels the Federal FOIA. (Griffith Laboratories U.S.A. v. Metropolitan Sanitary District (1988), 168 Ill. App. 3d 341, 522 N.E.2d 744.) In Department of Air Force v. Rose (1976), 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592, information was sought from the United States Air Force concerning disciplinary systems and procedures. The Air Force refused to give certain information on the ground that the information was contained in personnel files, which under the Federal statute, like the Illinois FOIA, were expressly exempted. The Supreme Court rejected the Air Force’s argument and included this observation:\n“Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by the Agency in its ‘personnel’ files. Rather, Congress sought to construct an exemption that would require a balancing of the individual’s right of privacy against the preservation of the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’ ” 425 U.S. at 372, 48 L. Ed. 2d at 27, 96 S. Ct. at 1604.\nWe believe the reasoning of the Supreme Court in Department of Air Force v. Rose is applicable here. To hold that all information contained in a personnel file is exempt from public disclosure simply because it is in a personnel file would permit a subversion of the broad purposes of the Act. (See also Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 457-58, 493 N.E.2d 1054, 1058.) Our conclusion is buttressed by section 8 of the Act (Ill. Ann. Stat., ch. 116, par. 208 (Smith-Hurd Supp. 1989)), which provides that “[i]f any public record that is exempt from disclosure under Section 7 of this Act contains any material which is not exempt” the public body shall delete the exempt material and make the rest of the information available. Section 8 includes all public records exempted from disclosure and makes no exception of personnel records. It appears inescapable to us that the legislature recognized that some matters in personnel records may be discoverable. We note that the defendant has made available the names, salaries, supervisory titles and dates of hire of all the assistant State’s Attorneys. All that information is contained in personnel files and, we judge, was properly disclosed.\nWe turn now to the alternative argument of the defendant that the disclosure of racial information constitutes a clearly, unwarranted invasion of the personal privacy of the assistant State’s Attorneys.\nThe State’s Attorney is required by Federal law to keep records for the completion of a report to be filed annually with the Equal Employment Opportunity Commission (EEOC). (29 C.F.R. §§1602.30, 1602.32 (1989).) That report contains the number of employees who are classified into five separate racial and ethnic groups: blacks, American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish origin or culture regardless of race) and whites other than Hispanics. Neither party was certain of the procedure followed by those who interviewed prospective assistant State’s Attorneys in determining racial identification. The attorney for the defendant informed us that the determination was made by visual or “anecdotal” examination. The attorney for the plaintiff told the trial judge that the designation of the employees’ racial category would be made by the person interviewing the employees and would be based on a “sight-check” by the interviewer or the interviewer could “request that the particular employee[s] indicate which of the various categories that they fall within.” On this question the EEOC Compliance Manual is instructive; it is also probative for reasons we will discuss later. The pertinent provisions of the manual are as follows:\n“Although identification of race, sex, and ethnic status is an essential factor in determining compliance with various equal employment opportunity laws, an individual cannot be forced to identify him/herself by race, sex, or ethnic group. However, an exception to this general principle can be made where the information regarding race, sex, or ethnic group is necessary to determine an individual’s or employee’s eligibility to receive a benefit or to determine the amount of the benefit to which such person may be entitled.\n* **\nSelf-identification is the preferred method of obtaining information necessary to identify an individual by race, sex, or ethnic group. Where information is not provided by an individual that indicates affiliation with a race, sex, or ethnic group, the person requesting the information should, where possible, secure and record the information through observation.\nNote, the person attempting to secure information regarding race, sex, or ethnic affiliation should not second guess or in any other way change a self declaration made by an applicant or employee as to race, sex, or ethnic background. An exception to this rule can be made where the declaration by the applicant or employee is patently false.” EEOC Compliance Man. (CCH) par. 5403, §632.3(b)(2)(iii), at 4316 (Mar. 1987).\nThe report made to the EEOC contains only the aggregate numbers in each category; it does not contain a racial designation for each separate assistant State’s Attorney. The information provided in the report was made available to the plaintiff, but the plaintiff deemed that information insufficient.\nThe plaintiff’s argument in the trial court was that the race of all assistant State’s Attorneys is self-evident; therefore, all assistant State’s Attorneys cannot reasonably expect that their race would be a matter of personal privacy; and, therefore, disclosure of their race would not be an invasion of personal privacy. The heart of the syllogism is the premise that the race of each assistant State’s Attorney is self-evident. It is a premise that the trial judge did not accept, and neither do we. Significantly, the plaintiff’s attorney recognized that the person interviewing an assistant State’s Attorney made the racial designation by a “sight-check” or by requesting the information from the employee. Race, although often apparent, is not always a “self-evident” characteristic. (See People v. Phillips (1989), 186 Ill. App. 3d 668, 671 n.1, 542 N.E.2d 814, 816 n.1. “The record shows that the trial judge and the attorneys were not even sure of the exact racial composition of the jury. Apparently, the race of one of the jurors was not visually discernible.”) Judging from the EEOC Compliance Manual, experience has shown that interviewers are often unable to determine race by visual examination. To illustrate further the uncertainty of the racial classification of the required records, we point out that EEOC regulations require that persons of any “Spanish origin or culture” shall be designated as Hispanic “regardless of race.\" (Emphasis added.) 29 C.F.R. §1607.4 (1989).\nMoreover, although the race of assistant State’s Attorneys may be apparent in most cases, their occupation is not apparent to anyone other than those who deal with them professionally. Thus, even if we were to assume that the race of all assistant State’s Attorneys was apparent to those who deal with them in their professional capacities, that does not mean that the assistant State’s Attorneys have no reasonable expectation that a compilation of their respective names and races will not be disclosed to the public at large. The fact that information “is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” (United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), 489 U.S. 749, 770, 103 L. Ed. 2d 774, 794, 109 S. Ct. 1468, 1480.) This is especially true in the setting in which this case arose. The then State’s Attorney, Richard M. Daley, was a candidate for mayor of Chicago, and the question of the racial composition of his office became a political issue. It is not unreasonable to assume that many assistant State’s Attorneys did not want their names and races to be drawn publicly into a political dispute. Again judging from the EEOC Compliance Manual, experience has shown that some persons do not want to disclose their race, even to the interviewer.\nIn Reporters Committee, the court quoted from several sources in explaining the meaning of “privacy”:\n“The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. *** [E]ven if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.” 489 U.S. at 763 n.15, 103 L. Ed. 2d at 789 n.15, 109 S. Ct. at 1476 n.15, quoting Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890-1891).\n“Privacy, in my view, is the rightful claim of the individual to determine the extent to which he wishes to share of himself with others. *** It is also the individual’s right to control dissemination of information about himself.” 489 U.S. at 764 n.16, 103 L. Ed. 2d at 790 n.16, 109 S. Ct. at 1476-77 n.16, quoting A. Breckinridge, The Right to Privacy, 1 (1970).\n“Privacy is the claim of individuals *** to determine for themselves when, how, and to what extent information about them is communicated to others.” 489 U.S. at 764 n.16, 103 L. Ed. 2d at 490 n.16, 109 S. Ct. at 1477 n.16, quoting A. Westin, Privacy and Freedom, 7 (1967).\nIt is our holding, therefore, that it cannot be said, as a matter of law, that the assistant State’s Attorneys, or any public employees, for that matter, have no reasonable expectation that their racial identification will not be made the subject of a public debate. To the contrary, they have a reasonable expectation that they will have some say as to “when, how or to what extent [such] information about them is communicated to others.” (Reporters Committee, 489 U.S. at 764 n.16, 103 L. Ed. 2d at 490 n.16, 109 S. Ct. at 1477 n.16.) It is also our holding that the judge’s finding that the dissemination of the information sought by the plaintiff would be an invasion of privacy is not against the manifest weight of the evidence. Whether it constituted a “clearly unwarranted invasion of privacy” depends on the weighing of other factors which will be discussed later.\nIn this court the plaintiff appears to have deviated slightly from the position it took in the trial court. It now says that race is a self-evident physical characteristic for a “vast majority of people.” The plaintiff now concedes that there may be some assistant State’s Attorneys whose race is not obvious; but, the plaintiff argues, the privacy of those few must be surrendered for the overall public good — the public good being the public’s right to know whether the elected State’s Attorney is complying with laws involving discrimination in hiring and promotions. That the rights of the minority must be sacrificed because the majority may not assert them is an argument that we cannot accept. Nor can we accept the plaintiff’s argument that by accepting public employment the assistant State’s Attorneys yielded all right to privacy. The plaintiff conceded that disclosure of the religious affiliation or marital status of an assistant State’s Attorney would be protected from disclosure, but we fail to see why they might not be disclosed, if we accept the plaintiff’s argument that public employment established a waiver of any right of privacy. In the Department of Air Force v. Rose (1976), 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592, the plaintiff sought case summaries of disciplinary proceedings against individual cadets. The Supreme Court held that the case summaries, from which the names of the individual cadets had been deleted, were discoverable under the Federal FOIA. No one ever suggested that the cadets, by accepting appointment to the Air Force Academy and thereby becoming public employees, surrendered their right to privacy.\nBoth sides agree that no reported case is factually in point, but both refer to several cases which deal with disclosure of racial information. The principal case relied on by the defendant is Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 538 N.E.2d 557. In Bowie, the plaintiff sued the school district under the FOIA seeking the disclosure of test scores for students from certain years, grades and schools within the district and a list of education programs. The test scores were to designate the race of each student but not the name or sex of the student. The position of the defendant was that disclosure of the information was barred by the Illinois School Student Records Act (Ill. Rev. Stat. 1985, ch. 122, par. 50—1 et seq.).\nThe school district then released a report summarizing the students’ performance on the tests by school, grade and race but not the individual scores of the students. The appellate court reversed the dismissal of the complaint and held that the plaintiff’s request that the results be “masked” and “scrambled” was proper since the individual students could not then be identified. The supreme court agreed with the reasoning of the appellate court but remanded the case to the trial court to determine whether or not compliance would be unduly burdensome or whether there were so few students of one race in the class that disclosure of the test results by race would result in the students’ identification. The Bowie case is not in point because no one ever claimed that the individual students should be identified by race.\nThe defendant has also cited other cases which held that the identification of a person by race was improper. Those cases involve situations where the racial identification was made in an attempt to exclude minority participation; obviously, they are not in point.\nThe plaintiff has cited a number of cases which involve discovery orders in racial discrimination suits. (See, e.g., Garrett v. City of San Francisco (9th Cir. 1987), 818 F.2d 1515.) Those cases do not assist us. Apart from the fact that the information sought in each case was deemed necessary to assist the plaintiff to prove his case of racial discrimination, we note that discovery orders are subject to protective limitations. To illustrate the court’s power to control dissemination of information, in Washington Post Co. v. Minority Business Opportunity Comm’n (D.C. App. 1989), 560 A.2d 517 (which did not involve a discovery order), the court of appeals ordered the trial court to examine the records in camera, to consider a number of factors, including a claim of privilege, and to make a judgment as to what material should be disclosed. Moreover, what may be subject to disclosure under discovery rules is not necessarily disclosable under the Freedom of Information Act. Federal Trade Comm’n v. Grolier Inc. (1983), 462 U.S. 19, 76 L. Ed. 2d 387, 103 S. Ct. 2209.\nThe plaintiff has cited two cases which involved the question of race, Washington Post Co. and State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St. 3d 170, 527 N.E.2d 1230. In Washington Post, the requested materials related to 15 companies which sought to participate as local minority business enterprises in the District of Columbia’s affirmative action “set-aside” program. The defendant and two businesses which intervened in the trial court contended that the information sought was exempt because its disclosure would significantly impair the firms’ competitive position. The court of appeals held that it was “not persuaded that disclosure of the race, per se, of the principals of an enterprise would lead to competitive injury.” (Washington Post, 560 A.2d at 523.) No claim of individual privacy was made, and, more important, racial identification was necessary to determine whether a party could participate in the program. In Cincinnati Post, the plaintiff sought reports which were lists of individuals who were in jail or who were about to be sentenced. The lists identified the individuals, in part, as to sex, race and age. The defendant, a court administrator, resisted disclosure on the ground that the records sought were his “work product.” Again, no claim of individual privacy was made.\nIn determining whether the information requested here should be disclosed, “a court must balance the public interest against the interest [the legislature] intended [section 7(bXii)] to protect.” (Reporters Committee, 489 U.S. at 776, 103 L. Ed. 2d at 797, 109 S. Ct. at 1483; see also Bowie, 128 Ill. 2d at 381.) In striking that balance the court must consider four factors: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Margolis v. Director of Department of Revenue (1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.\nWith respect to the first factor, the plaintiff concedes, under the compulsion of Reporters Committee, that news media do not have any special interest that is not shared by any other member of the public. (Reporters Committee, 489 U.S. at 771, 103 L. Ed. 2d at 794-95, 109 S. Ct. at 1480-81.) On the other hand, a court should not ignore the reality that disclosure to the plaintiff means potentially far greater dissemination of the information than if it were given to a member of the public.\nThe next factor — the public interest in disclosure — must be considered in light of the plaintiff’s concession that the information it seeks is in no way relevant in determining whether the assistant State’s Attorneys are performing their duties or whether the defendant is performing his duty as the county’s chief legal officer. Rather, the plaintiff maintains, it is entitled to the information to determine whether the information provided by the State’s Attorney to the EEOC is accurate; in short, to determine whether the defendant told the EEOC the truth and thereby to determine whether the State’s Attorney is guilty of discriminatory practices.\nA presumption exists that a public officer will act in accordance with the law. (Taylor v. County of St. Clair (1974), 57 Ill. 2d 367, 312 N.E.2d 231.) Consequently, it is presumed that the defendant is in compliance with the anti-discrimination laws, and it is presumed that the defendant provided accurate information to the EEOC. Whether the defendant is in compliance with the law and whether the information he provides to the EEOC is accurate are subject to review by the EEOC itself. “To the extent that the [EEOC] believes a report is incorrect, §709(c) of Title VII and 29 C.F.R. §1602 implicitly authorizes [sic] the [EEOC] to make an inquiry into the accuracy of the report.” (EEOC Compliance Man. (CCH) par. 121, at 235 (Aug. 1988).) It is presumed that the EEOC itself is acting in accordance with its duties. Under all these circumstances, we believe we must strain to find that the public is interested in acting as still another watchdog to determine whether the State’s Attorney is complying with anti-discrimination requirements in the operation of his office, especially since no proof of failure to comply has been offered.\nThe next factor is the degree of the invasion of personal privacy. For the reasons we have already advanced, we judge that the record supports a finding that publication of the names and races together of the individual assistant State’s Attorneys could constitute a substantial invasion of personal privacy.\nThe last factor — the availability of alternative means of obtaining the requested information — has been subject to contrary views on the part of the plaintiff. It informed us in its opening brief that the court “may in its balancing process, consider the extent to which the requested information is otherwise available.” However, when the point was raised in oral argument, the plaintiff’s attorney referred us to a case, cited in its reply brief, State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St. 3d 170, 527 N.E.2d 1230. In that case the court said that the “law does not require members of the public to exhaust their energy and ingenuity to gather information which is already compiled and organized in a document created by public officials at public expense.” (38 Ohio St. 3d at 173-74, 527 N.E.2d at 1233.) We do not construe Cincinnati Post to mean that the availability of other sources of the information sought may not be considered; it means that the fact that other sources are available is not conclusive.\nWe acknowledge, however, that the question of whether other sources of information are available is not susceptible of an easy answer. The only other source appears to be the assistant State’s Attorneys themselves. Section 7(b)(ii) expressly provides that exempt information may be disclosed if “such disclosure is consented to in writing by the individual subjects of such information.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(ii).) We can only speculate whether the assistant State’s Attorneys would be willing to divulge the requested information, if asked to do so by the plaintiff. Of course, a refusal to divulge by a substantial number of assistants would fortify the defendant’s argument that the assistant State’s Attorneys have a reasonable expectation of privacy. In any event, based on the record before us, we are unable to determine whether this factor weighs in favor of the plaintiff or the defendant.\nConsidering the other three factors we have discussed, however, we cannot say that the trial judge abused his discretion in concluding that the information sought by the plaintiff would be an unwarranted invasion of privacy. For that reason, the judgment of the circuit court is affirmed.\nJudgment affirmed.\nLaPORTA, P.J., and RAKOWSKI, J., concur."}
{"dedup_key":"pre1996-124847","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"155 ill-app-3d 692","case_name":"Hamer v. Lentz","court_level":"Appellate","appellate_district":"1st","year":1987,"county":null,"appellate_docket":"86-0584","circuit_docket":null,"published":1,"authoring_justice":"Murray","statute":["FOIA"],"exemptions_cited":[],"public_body":"General Assembly Retirement System","requesting_party":"Brian A. Hamer","disposition":"dismissed","relevance":"mention_only","summary_source":null,"summary":"The court dismissed the appeal for lack of jurisdiction because the trial court's order failed to include the necessary Rule 304(a) language for a final and appealable judgment. Consequently, the court did not reach the substantive FOIA issues raised by the plaintiff.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=124847","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:02.598891","site_category":"FOIA Response Process","date_decided":"1987-04-24","site_url":"/cases/pre1996-124847/","text_url":"/case-text/pre1996-124847.txt","full_text":"BRIAN A. HAMER, Plaintiff-Appellant, v. NORMAN E. LENTZ, Administrative Secretary, General Assembly Retirement System, et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 86—584\nOpinion filed April 24, 1987.\nBrian A. Hamer, of Chicago, for appellant, pro se.\nNeil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Jill A. Deutsch, Assistant Attorney General, of Chicago, of counsel), for appellees.\n\nJUSTICE MURRAY\ndelivered the opinion of the court:\nPlaintiff Brian Hamer appeals from an order of the circuit court of Cook County entered in a declaratory judgment proceeding granting him some but not all the relief he sought under the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.).\nThe pertinent facts are as follows. Approximately one year before the filing of his declaratory judgment action, plaintiff requested access to certain records in the possession of the defendants Norman Lentz, the administrative secretary of the General Assembly Retirement System (the retirement system), and the Board of Trustees. After a number of letters between the parties failed to secure plaintiff’s access to the records, he filed a declaratory judgment action on August 15, 1985, seeking the identity of all former members of the General Assembly who currently receive pension payments under the retirement system; the annual pension received by each former member of the General Assembly during the most recent fiscal year; the salary received by each former member of the General Assembly immediately prior to retirement, the date of retirement from the General Assembly, and the length of service in the General Assembly; and the cumulative pension received by each former member of the General Assembly from the date of retirement to the most recent practicable date.\nOn February 26, 1986, the trial court entered an order supplementing a February 3, 1986, order granting plaintiff’s motion for summary judgment. The latter order, drafted by defendants, provided that defendants produce the most recent monthly computer printout setting forth the identity of persons receiving pension benefits through the retirement system, as well as the monthly benefit payable to each such person. The order further stated that defendants were to disclose “a document” setting forth the retirement date for each such person receiving pension benefits. Compliance with the court’s order was required by March 19, 1986. Finally, the court stated that its order was “a final and appealable order.”\nAs a result of the trial court’s refusal to grant plaintiff’s request for information concerning the cumulative pension of former members from the date of their retirement to the present and the names of all such legislators, as well as the length of time of service upon which their pensions are based, on March 5, 1986, plaintiff filed a notice of appeal in this court. On appeal, plaintiff contends that: (1) the records still at issue are not exempted from disclosure under the FOIA; (2) no fiduciary duty prevents defendants from complying with the disclosure requirements of the FOIA; (3) the trial court abused its discretion in failing to require partial disclosure within seven working days of entry of its order; (4) defendants should be strongly reprimanded for their failure to comply with the FOIA; and (5) this case should be remanded to the trial court for the purpose of determining attorney fees pursuant to the FOIA.\nDefendants initially argue that this court lacks jurisdiction to entertain plaintiff’s appeal. Specifically, defendants allege that the order appealed from “neither resolves the issue of attorney’s fees nor contains a 304(a) special finding necessary to make the remaining issues appealable” and, accordingly, the appeal should be dismissed.\nSupreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) requires that where multiple parties or multiple claims for relief are involved in an action, no appeal may be taken from a final judgment as to one or more but fewer than all the parties or claims unless the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. “In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (87 Ill. 2d K 304(a); see Ferguson v. Riverside Medical Center (1986), 111 Ill. 2d 436, 490 N.E.2d 1252.) The purpose of Rule 304(a) is “to discourage piecemeal appeals in the absence of just reason, and to remove the uncertainty which exists when a final judgment is entered on less than all the matters in the controversy.” Mares v. Metzler (1980), 87 Ill. App. 3d 881, 884, 409 N.E.2d 447; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 630, 373 N.E.2d 416.\nIn the instant case, Rule 304(a) is applicable because all claims have not been adjudicated; the issue of attorney fees was not ruled upon and is still pending in the trial court. (See Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004; In re Marriage of Janetzke (1981), 97 Ill. App. 3d 418, 422 N.E.2d 914 (under Rule 304(a), the issue of attorney fees is a “claim,” rather than an incidental issue).) Accordingly, this court has jurisdiction of the instant appeal only if the trial court’s order contains an express written finding that there is no just reason to delay enforcement or appeal.\nAs discussed above, the order here states that “This is a final and appealable order.” Plaintiff argues that this language “comes close” to the Rule 304(a) finding, apparently equating the word “final,” and the trial court’s “intention” to make the order “final” to expedite his FOIA action, with the word “enforceable.” We do not agree with plaintiff’s construction of this language. As we stated in E.M.S. Co. v. Brandt (1968), 103 Ill. App. 2d 445, 448, 243 N.E.2d 695, the absence of a Rule 304 finding in a judgment — for whatever reason — leaves the judgment final but unenforceable and unappealable. Additionally, as we observed in Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 803, 485 N.E.2d 1362, a Rule 304(a) finding is a two-pronged determination, requiring an express written finding of both enforceability and appealability, and it is not the trial court’s finding that renders a judgment final; rather, the trial court renders a final judgment enforceable and a final judgment appealable. Clearly, therefore, the word “final” is not the equivalent of “enforceable” under Rule 304(a). Moreover, to hold that the inclusion of the word “final” in an order makes that order final would defeat the purpose of the rule to prevent piecemeal appeals and the uncertainty which exists when a final judgment is entered on less than all the matters in controversy. Accordingly, since the order appealed from in the instant case lacks the express enforcement language required by Rule 304(a), plaintiff’s appeal must be dismissed.\nIn light of the above disposition, we do not address the remaining issues raised by plaintiff. We briefly note, however, that should this cause be appealed a second time to this court, the parties, upon submission of a proper motion, may incorporate their briefs filed herein on the second appeal and make any additional supplements to the record.\nFor the foregoing reasons, therefore, the instant appeal is dismissed for lack of jurisdiction.\nAppeal dismissed.\nSULLIVAN, P.J., and LORENZ, J., concur."}
{"dedup_key":"pre1996-119727","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"125 ill-app-3d 643","case_name":"PJS Enterprises v. Klincar","court_level":"Appellate","appellate_district":"5th","year":1984,"county":null,"appellate_docket":"5-83-0609","circuit_docket":null,"published":1,"authoring_justice":"Jones","statute":["OMA"],"exemptions_cited":[],"public_body":"Illinois Prisoner Review Board","requesting_party":"PJS Enterprises","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of a prisoner's motion to intervene in a lawsuit brought by a newspaper seeking access to parole hearings under the Open Meetings Act. The court held that the trial court did not abuse its discretion in denying intervention because the prisoner's specific concerns were distinct from the general application of the Act to the Board's hearings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=119727","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:03.022315","site_category":"Meeting Conduct & Participation","date_decided":"1984-07-06","site_url":"/cases/pre1996-119727/","text_url":"/case-text/pre1996-119727.txt","full_text":"PJS ENTERPRISES, Plaintiff-Appellee, v. PAUL KLINCAR, Chairman of the Board of Illinois Prisoner Review Board, Defendant-Appellee (Jessie Donald Sumner, Intervenor-Appellant).\nFifth District\nNo. 5—83—0609\nOpinion filed July 6, 1984.\nJames B. Roberts, of Legal Clinic, Southern Illinois University, of Car-bondale, for appellant.\nMcConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria (Rebecca S. Riddell, of counsel), for appellee PJS Enterprises.\n\nJUSTICE JONES\ndelivered the opinion of the court:\nJessie Donald Sumner, incarcerated at Menard Correctional Center, appeals from the trial court’s denial of his “motion” for leave to intervene in a suit brought by PJS Enterprises, the owner of the Peoria Journal Star, which is a daily newspaper of general circulation. The suit was brought against Paul Klincar, chairman of the board of the Illinois Prisoner Review Board.\nOn March 9, 1983, the plaintiff sought and obtained a temporary restraining order forbidding the defendant from prohibiting the presence of the plaintiff at the parole hearing of Jessie Donald Sumner, which was scheduled to be held on that day. The plaintiff had sought the temporary restraining order as a result of having learned that one of its reporters would not be allowed to attend the parole hearing of Jessie Sumner if Sumner should request that his parole hearing be closed. Plaintiff maintained that to prohibit plaintiff’s attendance at the parole hearing would be a violation of the provisions of the Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 41 et seq.) because “the hearing portion of the parole hearing * * * is a public meeting.”\nThe plaintiff subsequently sought preliminary and permanent in-junctive relief. Following a hearing the trial court issued a preliminary injunction on March 21,1983, that restrained and enjoined\n“the Defendant, PAUL KLINCAR, as Chairman of the Board and each of the other members of the Board of the Illinois Prisoner Review Board, and their agents and employees from doing or taking, or causing to be done or taken, any action to prohibit the Plaintiff, or any agents or employees of the Plaintiff, or other members of the news media or the general public, from being present at any parole hearing, including but not limited to the parole hearing of Jesse [sic] Donald Sumner.”\nThe trial court found “[t]hat this Order should issue because to prohibit the attendance and presence of the Plaintiff at parole hearings would be in violation of the provisions of the Illinois Open Meetings Act.”\nA schedule for the submission of briefs concerning the permanent injunction called for the filing of a reply brief on June 24, 1983. On June 10, 1983, Jessie Sumner filed a “motion” for leave to intervene as a matter of right (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408). On the same date he filed a motion for enlargement of time in which to respond to the plaintiff’s petition for injunctive relief and proposed orders. In his motion for leave to intervene Jessie Sumner set forth the procedural details of the present case and stated that “[u]pon being advised of the restraining order, [he] had refused to testify” at the parole hearing, that the temporary restraining order had bound him as well as the defendant, that “the representation of [his] interest by the parties is inadequate,” and that he was entitled to intervene as a matter of right in order to represent his own interests adequately. He asked to be allowed to file an answer to the plaintiff’s petition for injunctive relief.\nOn July 13, 1983, a hearing was held on the motion to intervene. At that time the intervenor, through his attorney, argued that his rights to a fair and proper parole hearing were affected by the action of the trial court, that his interest in the case was greater than that of the general public, and that the Attorney General, on behalf of the defendant, could not adequately represent the intervenor’s interest inasmuch as “the interest of the Prisoner Review Board, which is charged with protecting the public interest^] and the interest of the potential parole leader [sic], are simply not the same and cannot be represented by the Attorney General’s Office especially given the fact that the Attorney General’s Office represented the Prisoner Review Board when prisoners sue the Prisoner Review Board concerning irregularities or problems in their parole hearing.” The intervenor stated that he should be allowed to “present his interest to the Court so that an adequate determination as to whether or not the merits of this case should allow the press to be present at his hearing.” The in-tervenor argued further that the plaintiff, by its objections to his intervention, was asking him to relitigate the same issues in a second suit. He continued by saying:\n“There are exceptions to the Open Meetings Act, and it is our position that exceptions are proper in this case. We are not in a position here to go into all the merits. There are factors we think must be brought to the Court’s attention that have not as yet. There are facts that should be brought to the Court’s attention concerning these type [sic] of things before we allow this sweeping type of order to bar the prisoner’s rights from deciding whether or not the press should be present at their hearing. *** It is our position that these are the exact issues that this Court needs to have before them [sic] and that the intervenor is the only one that can bring them before this Court. The facts again that point out the interest of the intervenor and the fact that the intervenor is not adequately represented by the defendant we believe are set out in the plaintiff’s own affidavits where they explain that the inter-venor did not want the press and refused to proceed with the press there, and we feel that there are plenty of facts to show the interest of the intervenor and he should be allowed to present the whole picture to the Court so the Court can make a formal decision in this matter.”\nThere followed this colloquy between the trial court and counsel for the intervenor:\n“THE COURT: I still am at a loss as to what Mr. Sumner wants litigated in this case. I haven’t heard anything except that he wants to intervene. I would like to know what is his position here that he feels that needs to be litigated beyond what this present case in its present state would decide one way or the other.\n[Counsel for the intervenor]: I understand your request, Your Honor.\nTHE COURT: The Open Meetings Act, I don’t know if you are going to attack it on a constitutional basis or whether it is some kind of an exception. I haven’t heard anything other than really that he wants to intervene. He naturally is going to be affected, and so are all the other prisoners who come before the Prisoner Review Board will be affected by this decision. I understand that.\n[Counsel for intervenor]: Your Honor, there are factors in this matter that affect Mr. Sumner's interest in ways that don’t affect every other prisoner, I believe, and we would like, if the Court feels that these matters should be brought forward at this time, we would be willing to do that, but we would like to do it, instead of doing it in open Court we would like to do it in a closed proceeding.”\nCounsel explained that the intervenor’s request for a closed hearing arose out of concerns for his own safety and apparently that of others, adding, “We were hoping we wouldn’t have to bring this to the Court’s attention today, we were hoping for a different time, but I can understand the Court’s interest in knowing exactly what kind of issues we want to raise in this matter, so we would prefer to raise them in this manner if we could.” The trial court responded, “Well, I don’t know what this all means. I understand what you are getting at.” Later the trial court stated:\n“I question the timeliness of the Motion to Intervene to start off with. I think in view of the situation that has developed here, there is no basis for intervention on the part of Jessie Donald Sumner from the facts that have been stated in this motion. I think the Court can only rule on the matters before it and that are relevant to this case, and if you people feel that Jessie Sumner has got some special kind of situation that warrants a closed hearing before the Board or some kind of a protective order that certain information that would come out not be revealed because of how he might directly be affected, then I think it is your obligation to file some other kind of action to protect him, because I do think that what the paper has done here, the plaintiff in this case, the newspaper has brought an action to clarify interest in the lawsuit that has been a question mark over this section as to whether or not this agency is in compliance with the Open Meetings Act.”\nThe trial court concluded that the parties to the case should not be “burdened” at that point in the proceedings with the “area of protective orders” concerning the intervener and denied the motion to intervene. On August 3, 1983, the trial court ordered that there was no just cause to delay enforcement or appeal of the order denying the motion for leave to intervene.\nOn August 16, 1983, the defendant filed a consent to entry of judgment against him “for the relief sought to the extent that such Order pertains only to public evidentiary hearings and not to the deliberations of the Prisoner Review Board.” On August 29, 1983, the trial court issued an order for a permanent injunction in the matter. This appeal is taken from the order entered denying the motion for leave to intervene and presents the question whether the trial court abused its discretion in denying the motion.\nSection 2 — 408(a)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408(a)(2)) provides:\n“(a) Upon timely application anyone shall be permitted as of right to intervene in an action *** (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action ***.”\nSection 2 — 408(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 408(e)) provides that “[a] person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file.”\nIntervention is a matter within the sound discretion of the trial court, and its judgment will not be reversed unless a clear abuse of discretion is shown. (University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136; Ackmann v. Clayton (1976), 39 Ill. App. 3d 1013, 350 N.E.2d 824; Hagen v. Ruby Construction Co. (1973), 13 Ill. App. 3d 725, 301 N.E.2d 311.) The purpose of intervention is to expedite litigation by disposing of an entire controversy in one action among the persons involved in order to prevent a multiplicity of actions. (Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 425 N.E.2d 1113.) A petition to intervene must allege specific facts that demonstrate that the petitioner has a right to intervene, and averments that are merely conclusions and recite the statutory language are not sufficient to meet the requirements of the intervention statute. (People ex rel. Thomas v. Village of Sleepy Hollow (1981), 94 Ill. App. 3d 492, 418 N.E.2d 466.) To intervene the applicant must set forth facts demonstrating his interest in the subject matter of the litigation. University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136.\nIn the case at bar, although we appreciate counsel’s caution and concern for the safety and welfare of his client, the intervener did not identify for the trial court the issue or issues he would raise if he were permitted to intervene in this lawsuit. The petition, or “motion,” itself is insufficient to meet the requirements of the intervention statute because the relevant averments there are essentially con-clusory and merely recite the statutory language. Although at the hearing the intervener expressed the belief that he falls within an exception to the Open Meetings Act, he did not suggest which one. Similarly, although he indicated at the hearing that he wanted a protective order, he did not give a reason sufficient in law as to why such an order should issue. Under the circumstances we cannot say that the trial court abused its discretion in refusing to permit intervention here.\nThe foregoing reasons aside, the trial court did not err in refusing to permit intervention for the further reason that, from what we are able to glean from the record, the issue or issues the intervenor appears to want resolved seem better addressed through an action brought by him alone. In the present case the trial court was obliged to deal with the applicability of the Open Meetings Act to the hearings of all prisoners who appear before the Illinois Prisoner Review Board. However, the record indicates that the intervenor considers his own situation unlike that of most prisoners who appear before this board. It would seem highly inexpedient for a trial court to inject into the consideration of a matter of general application to a very large number of persons, as the present case is, the special concerns of one. Although the trial court properly refused to allow Jessie Sumner to intervene in the present suit, he is not, of course, precluded or in any way foreclosed from bringing suit himself to obtain the relief he seeks.\nAffirmed.\nWELCH, P.J., and KASSERMAN, J., concur."}
{"dedup_key":"pre1996-144305","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"29 ill-app-3d 48","case_name":"Haight v. Board of Education of Community Unit School District No. 205","court_level":"Appellate","appellate_district":null,"year":1975,"county":null,"appellate_docket":"74-266","circuit_docket":null,"published":1,"authoring_justice":"Stengel","statute":["OMA"],"exemptions_cited":[],"public_body":"Board of Education of Community Unit School District No. 205","requesting_party":"Billie Jean Haight","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether a school board violated the Open Meetings Act by taking final action to dismiss a teacher during an executive session. The court affirmed the dismissal of the plaintiff's complaint, finding that the board's subsequent actions and minutes satisfied the requirements of the Act despite the initial closed-session discussion.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=144305","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:03.240567","site_category":"Closed Sessions","date_decided":"1975-06-05","site_url":"/cases/pre1996-144305/","text_url":"/case-text/pre1996-144305.txt","full_text":"Billie Jean Haight, Plaintiff-Appellant, v. Board of Education of Community Unit School District No. 205, Defendant-Appellee.\n(No. 74-266;\nThird District\nJune 5, 1975.\nBARRY, J., dissenting.\nDrach, Terrell and Deffenbaugh, P.C., of Springfield (Robert E. Stine, of counsel), for appellant.\nStuart, Neagle & West, of Galesburg (Thomas G. West, of counsel), for appellee.\n\nMr. JUSTICE STENGEL\ndelivered the opinion of the court:\nPlaintiff-appellant Billie Jean Haight appeals from a judgment of the circuit court which dismissed her petition for writ of mandamus and complaint for declaratory judgment against the defendant-appellee Board of Education of Community Unit School District No. 205, Knox and Warren Counties. Plaintiff, a nontenured teacher, first employed for the 1971-72 school year, sought to compel the Board to reemploy her as a full-time English teacher for the 1972-73 year. On March 29, 1972, she received timely notice from the superintendent of schools that her contract for the 1972-73 school year would not be renewed.\nAt a meeting of the Board on March 27, 1972, action to terminate plaintiff’s employment was taken. During that meeting, the Board went into executive session “to discuss personnel,” and during the executive session decided to dismiss several teachers, including plaintiff. The minutes stated that the Board then returned to open session and by roll call vote authorized “the Superintendent of Schools, if this action becomes necessary, to send a notice of dismissal to one first year teacher and a notice of dismissal stating the specific reason therefore to one second year teacher * * At its next meeting on April 10, 1972, the Board approved the minutes of the March 27 meeting.\nAfter this action was filed, the Board held a special meeting on July 27, 1973, and unanimously approved an amendment to conform the minutes to the action taken by the Board on March 27, 1972. The minutes as amended state:\n“In accordance with Section 24 — 11 of the Illinois School Code (Illinois Revised Statutes, 1971), it was moved * * * that the Board of Education authorize the Superintendent of Schools, if this action becomes necessary because either of the teachers hereafter named fail to resign prior to sixty days before the end of the school term, to send a notice of dismissal to Billie Jean Haight, who is a first year teacher in our school district *\nThe law of Illinois is undisputed that a school board may amend its minutes at any time to conform to what in fact occurred at a meeting. Jewell v. Board of Education, 19 Ill.App.3d 1091, 312 N.E.2d 659 (5th Dist. 1974); Phenicie v. Board of Education, 326 Ill. 73, 157 N.E.34 (1927).\nPlaintiff contends that some of tire testimony shows that the amendment does not reflect the actual events that occurred at the Board meeting. The trial judge heard the testimony of all the witnesses, including six members of the Board who attended the March 27 meeting and who voted approval of the amendment to the minutes on July 27, 1973, and he made an express finding that he believed the testimony that the amended minutes “show what actually occurred at that meeting.” Although there was some conflict between the various witnesses, the credibility of witnesses is for the trial court to determine, and the findings of the trial judge will not be disturbed unless they are manifestly against the weight of the evidence. (Jewell v. Board of Education.) We must reject plaintiff’s contention and hold that the minutes as amended are the appropriate official record of the March 27, 1972, meeting.\nThe “Open Meeting Law” (Ill. Rev. Stat. 1973, ch. 102, par. 42) provides that a school board may hold a closed session to consider information regarding dismissal of an employee, “* * * but no final action may be taken at a closed session.” Plaintiff contends this section requires “final action” be taken by tire Board at a public meeting and that the motion approved by the Board did not constitute “final action,” but merely authorized the superintendent to send a notice of dismissal. A similar argument was considered in Jewell v. Board of Education, and we agree with the holding in that case. The decision to send a notice of dismissal is the decision to dismiss in the case of a nontenured teacher, and “final action” is the public roll-call vote. The Board did not unlawfully delegate to the superintendent its authority to dismiss a teacher. After the Board action, a member of the administrative staff may properly communicate the Board’s dismissal action to a teacher. Bessler v. Board of Education, 11 Ill.App.3d 210, 296 N.E.2d 89 (3rd Dist. 1973).\nPlaintiff’s other contentions concerning alleged defects in Board procedure were corrected by the amendment to the minutes, and need not be considered.\nJudgment affirmed.\nALLOY, J., concurs.\n\nMr. JUSTICE BARRY,\ndissenting:\nAt the hearing on plaintiffs petition, commencing August 6,1973, plaintiffs exhibit 6 was admitted to evidence being the original minutes of defendant’s open meeting of March 27, 1972, at which plaintiff was purportedly discharged. In respect to roll call # 13, relating to the public vote on the public motion purporting to constitute the final action on the question of plaintiffs dismissal, these minutes of the open meeting recite only as follows:\n“In accordance with Section 24 — 11 of the Illinois School Code (Illinois Revised Statutes, 1971) it was moved by Member Davis and seconded by Member Rozynek that the Board of Education authorize the Superintendent of Schools, if this action becomes necessary, to send a notice of dismissal to one first year teacher and a notice of dismissal stating the specific reason therefor to one second year teacher in our district with previous teaching experience outside the district. Such notice to be sent in accordance with Section 24 — 11 of the Illinois School Code. (Illinois Revised Statutes, 1971).\nOn roll call the following Members voted AYE: Davis, Kelley, Lacy, Lillie, Mustain, Rozynek, Sauter (7). Motion carried. Roll Call # 13.” (Emphasis added.)\nThe legal inadequacy of this public action of the Board is apparent and conceded. The resolution purports to delegate to the superintendent -the power of determining the necessity of dismissing teachers and of determining which teachers. In Elder v. Board of Education, 60 Ill.App.2d 56, 208 N.E.2d 423 (1st Dist. 1965), it was said that the discretionary power vested in the Board of Education to hire or discharge teachers cannot be delegated.\nThe resolution is legally inadequate also for failure to comply with the directives of the so-called “Open Meeting Law” (Ill. Rev. Stat, ch. 102, par. 41 et seq.), which require that the public resolution name the teacher against whom final action is being taken. In Jewell v. Board of Education, 19 Ill.App.3d 1091, 312 N.E.2d 659 ( 5th Dist. 1974), it was held that under the requirements of the open meeting law, the power of the board to effect a dismissal of a teacher must be accomplished, to be effective final action, by a public roll-call vote by the board on a public motion, at a properly noticed public meeting, for adoption of a resolution of dismissal in respect to a specifically designated teacher.\nThe open meeting law provides as follows:\n“§ 1. It is the public policy of this State that the public * * * boards * * * in this State exist to aid in the conduct of the peoples business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.\n§ 2. All meetings of any legislative, executive, administrative or advisory bodies of * * * school districts * * * of this State * * * shall be public meetings ***.***\nThis Section does not prevent any body covered by this Act from holding closed sessions to consider information regarding * * dismissal of any employee * * but no final action may be taken at a closed session.” (Emphasis added.)\nThe importance to the public of this legislative policy is emphasized by the detailed requirements of the act for public notice of meetings of school boards and by the remedies provided in the act for the enforcement of its provisions. A writ of mandamus is available where there exists probable cause to believe that its provisions will not be complied with, or where it is otherwise appropriate to ensure compliance. Persons violating its provisions are made guilty of a Class C misdemeanor. Its purposes, therefore, are not to be lightly esteemed, nor its application to the business of school boards in any manner doubted.\nThe record here shows that subsequent to the commencement of this cause by plaintiff, on February 14, 1973, challenging the legality of her dismissal, and after the cause was set for trial, defendant filed a motion for continuance for the asserted purpose of amending, at its next regular School Board meeting, the minutes set out in foregoing plaintiff’s exhibit 6. Affidavits of board members Kelley, Lacy, Lillie, Mustain, Rozynek and Davis were attached in support of defendant’s motion wherein each asserted that he is now and was on March 27, 1972, a member of defendant’s Board, and attended a meeting of the Board on that date. The affidavits assert, not that the official minutes recited in plaintiffs exhibit 6 are in any manner inaccurate, but that they are “incomplete” in respect to Roll Call # 13 “for failure to name the person involved.” (Emphasis added.) As noted earlier, their legal insufficiency for incompleteness is obvious. The affiants each asserted an independent recollection, however, that such person involved in the resolution reported in plaintiffs exhibit 6 was plaintiff, and that at the next regularly scheduled meeting of the Board on August 13, 1973, he toill vote to amend those minutes “to include the name of Billie Jean Haight in Roll Call 13.” The cause was ordered continued to August 6,1973. Subsequently, at the trial, defendant offered evidence that at a Board meeting held July 27, 1973, the official minutes of the meeting of March 27, 1972 (i.e., plaintiff’s exhibt 6), had been amended to read as follows:\n“In accordance with Section 24 — 11 of the Illinois School Code (Illinois Revised Statutes, 1971), it was moved by Member Davis and seconded by Member Rozynek that the Board of Education authorize the Superintendent of Schools, if this action becomes necessary because either of the teachers hereafter named fail to resign prior to sixty days before the end of the school term, to send a notice of dismissal to Billie Jean Haight, who is a first year teacher in our school district, and a notice of dismissal stating the specific reason therefor to Robert Torley who is a second year teacher in our school district with previous teaching experience, such notice to be sent in accordance with Section 24 — 11 of the Illinois School Code (Illinois Revised Statutes, 1971); and that the Superintendent change the grade level at which Sharon Matthews is teaching in our school system if he finds that this is possible.”\nThe right of a school board to amend its minutes to conform them to the truth of what was spoken and voted upon in a public session cannot be doubted. (Phenicie v. Board of Education, 326 Ill. 73, 157 N.E. 34 (1927).) That right, however, is subject to the obvious limitation that it is not an authority to amend records to suit the Board’s interests, pleasure or convenience, or to set up a state of facts which matches only “the intended effect” of what they did. (Jackson v. School Directors of District No. 85, 232 Ill.App. 102', 107 (1924).) The circuit court found, however, that “Each member of the Board called testified that the action taken by the Board at its meeting on July 27, 1973, did amend the minutes of the March 27, 1972, meeting so as to show what actually occurred at that meeting. The court believes that testimony.” The majority of this court, on review, concludes that there is sufficient evidence in the record to support that finding and that we are bound to leave it undisturbed. I dissent from that view; I am persuaded from this record that that finding of the circuit court is based upon the same misapprehension of law that prevailed throughout the testimony of the Board members, that the original minutes and the amended minutes mean substantially “the same thing” and that the amendment is, therefore, acceptable and legal because it “conforms with the action” intended by the Board in what it did. That conclusion of mine requires some discussion of the evidence.\nThe original minutes, identified as plaintiffs exhibt 6, were prepared by Donna Sharp, who is recording secretary for the Board and administrative assistant to the superintendent. She testified that it was and is her duty to attend Board meetings and to take minutes of the proceedings in shorthand and to transcribe them, which she did on March 27, 1972. She testified that she takes down “precisely what is said and types it” and that plaintiff’s exhibit 6 is “precisely word for word the motion * * * [she] * * * heard in open session [and] is all * * * [she] * * * heard in regard to this resolution in open session.” (Emphasis added.) “There was other discussion in executive session,” she stated, “but this is the only thing that went on in open session.” (Emphasis added.) She did not ever retract or modify that testimony, and it is not only wholly uncontradicted in this record but is fully corroborated. Barry Parker, superintendent, stated that on March 27, 1972, the Board had a policy of excluding the names of teachers from its minutes of open session meetings to avoid embarrassment. Although he did not elaborate on the mode of exclusion, there was no suggestion that it was effected by deleting anything from the “word for word” reports of Donna Sharp, which raises the inference, consistently with the testimony of Donna Sharp, that that policy was effected simply by not designating the names in the public resolution. The validity of that inference is solidly established by the testimony of the Board members. Ward Lacy testified that Donna Sharp is an accurate secretary and that the original minutes in which no names are designated are “accurate” but were made to save embarrassment, and have been changed. (Emphasis added.) Merrill Lillie testified that “plaintiff’s exhibit 6, which is the * * * [original minutes designating no names] * * * properly reflected what went on at that meeting.” (Emphasis added.) Richard Rozynek verified that “The secretary’s [i.e., Donna Sharp’s] notations of Plaintiff’s exhibit 6 correctly reflect what happened on March 27, 1972. I was told by attorney Thomas West that the resolution of amendment must be passed. Plaintiffs Exhibit No. 6 correctly reflects what happened on the night of March 27,1972.” (Emphasis added.) John D. Davis testified that “It was only after the last meeting here in Court that I first discussed amending the March, 1972 minutes with anyone. Plaintiffs exhibit no. 6 correctly reflects what happened [in open session] on the night of March 27, 1972.” (Emphasis added.) Joan Kelley related in respect to the resolution of amendment at the meeting of July 27, 1973, that the Board’s attorney, Thomas West, said “this is the way the amendment will have to read” (Emphasis added.)\nDuring the examination of the foregoing Board members by defense counsel, Thomas West, Board members Lillie, Mustain and Davis appear only to have corroborated the testimony of Joan Kelley that when the minutes were amended on July 27, 1973, we were “clarifying them”; we left the names out originally, she asserted, to save embarrassment. There is no question that in closed executive session on March 27, 1972, the members did vote on a resolution which specifically mentioned Billie Jean Haight, and that the Board members intended that their public roll call vote should implement that action. It is also clear, however, that the closed executive session is not “final action” within the meaning of the law.\nIt seems apparent that the recitations of plaintiff’s exhibit 6, and the recitations of the amendment made on July 27, 1973, cannot both accurately reflect the truth of what transpired at the open meeting of March 27, 1972. The motion in the original minutes purports to authorize action in respect to only two teachers; the amendment relates to three. The former, on its face, purports to delegate to the superintendent the Board’s authority to determine the necessity of effecting dismissals, and names no specific teachers and is illegal on its face; the amendment shows no improper delegation of authority to the Superintendent, and specifically names three teachers. Reading the testimony of the Board members with the required purpose of reconciling it, if possible, and of avoiding the necessity of rejecting any of it as self-contradictory, it seems apparent that plaintiff’s exhibit 6, transcribed from shorthand notes made at the time, reflects “precisely” and “word for word” the “only official action taken by the Board” in the open meeting of March 27, 1972, and that in testifying to the conclusion that the amendment “conforms to the action taken” the Board members mean only to confirm that coming out of executive session “we knew [in our minds and memories] the names of the individuals involved” in roll call vote 13, and that the amendment shows “our way of thinking,” when we acted to “save embarrassment,” and “the intent” of what we were meaning to do, and is the “same thing.”\nManifestly and legally, the resolution and final action reflected in the original minutes, and those reflected by the amendment, are not “the same thing.” In my judgment, the finding of the circuit court here was a result of a misapprehension on that important point. The proof here does not show that the requirements of the open meeting law were met. The business of an executive closed session is wholly without legal effect. No one has testified that plaintiffs exhibit 6 is inaccurate or incorrect; it has been asserted only that it is incomplete. If it is, it is so only for failure to show a “secretly intended” effect, and not for failure to show what occurred in open session. No one has testified that the submitted amendment reports truthfully the words spoken and the things done at the open meeting.\nHowever laudable the Board’s motives here in concealing identities “to save embarrassment,” the legislature has clearly opted for the overriding policy of accountability. It is not our prerogative, or the Board’s, to reject the importance of that public interest, or to exempt school boards from the express application of the Act. The legislative purpose should not be frustrated by convenient amendments to minutes to show the Board’s “way of thinking,” or to show the effect the members “intended” their action to have, upon the misapprehension that it is in any event “the same thing.” Unless we are privileged to reject all the testimony that the original minutes “accurately” and “word for word” and “precisely” report the “only” public resolution and vote on March 27, 1972, and we are licensed, without any effort at reconciliation, to accept as different and conflicting proof, other conclusory testimony of the same witnesses that the amendment here “conforms to the action taken,” we should conclude there was no final action of dismissal against plaintiff. I consider that we are not so privileged to read the record. In my view the judgment of the circuit court is contrary to the manifest weight of the evidence and to the law, and ought to be reversed."}
{"dedup_key":"pre1996-141245","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"263 ill-app-3d 981","case_name":"David Blumenfeld, Ltd. v. Department of Professional Regulation","court_level":"Appellate","appellate_district":"1st","year":1993,"county":null,"appellate_docket":"1-91-1876","circuit_docket":null,"published":1,"authoring_justice":"Scariano","statute":["FOIA"],"exemptions_cited":["7(1)(b)"],"public_body":"Department of Professional Regulation","requesting_party":"David Blumenfeld, Ltd.","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court held that notices of disciplinary conferences sent by the Department of Professional Regulation to licensees are exempt from disclosure under FOIA. The court determined that the names and addresses of licensees constitute personal information, the disclosure of which would be a clearly unwarranted invasion of personal privacy under the section 7(1)(b) exemption.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=141245","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:03.988148","site_category":"General Records Exemptions","date_decided":"1993-01-19","site_url":"/cases/pre1996-141245/","text_url":"/case-text/pre1996-141245.txt","full_text":"DAVID BLUMENFELD, LTD., Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1—91—1876\nOpinion filed January 19, 1993. —\nRehearing denied February 11, 1993.\nDavid Blumenfeld, Ltd., pro se, of Chicago (David Blumenfeld and William C. Coughlin, of counsel), for appellant.\nRoland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Mark E. Wilson, Assistant Attorney General, of Chicago, of counsel), for appellees.\n\nJUSTICE SCARIANO\ndelivered the opinion of the court:\nOn July 5, 1990, plaintiff, the law firm of David Blumenfeld, Ltd., filed a request for disclosure of information with defendant, the Illinois Department of Professional Regulation (DPR), pursuant to the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1989, ch. 116, pars. 201 through 211). Plaintiff sought copies of, or access to, every \"Notice of Disciplinary Conference” and \"Notice of Informal Conference” whenever such notices are mailed by DPR to professional licensees or registrants. Plaintiff’s legal practice consists mainly of representing licensees in disciplinary proceedings before DPR.\nThe notices are sent to licensees who are either the subject of an investigation which may result in sanctions or who have'been found to be in violation of a regulation and are to be disciplined. They consist of the names and addresses of the licensee, the location where the conferences are to take place and a brief summary of the licensee’s alleged violation. They also advise the recipient that an attorney may accompany him to the conference if the licensee so desires.\nThe notices themselves are never published or made a part of the public record. If, after each conference, DPR and the licensee reach an accord on the alleged violation and an appropriate sanction for that violation, a consent order issues and is made available for public inspection. If the parties cannot resolve the dispute at the conference, formal charges are brought, and the formal complaint is open to public inspection. Additionally, DPR publishes the results of the informal conferences and the formal proceedings in its monthly news release and distributes it to the media. The release provides the name of the licensee, his profession, a brief summary of his violation and the sanction imposed.\nDPR did not comply with plaintiff’s July 5, 1990, FOIA request nor did it make any other type of response to plaintiff. Consequently, plaintiff filed a second request, this time addressing it to defendant Kevin Wright, the Director of DPR. When the Director made no response to plaintiff’s request, it filed a complaint for injunctive and declaratory relief in the circuit court pursuant to section 11(a) of FOIA (Ill. Rev. Stat. 1989, ch. 116, par. 211(a)), asking the court to enjoin defendants from withholding the notices and to order their production to plaintiff on a timely basis. It also prayed for attorney fees and expenses incurred in the action.\nDefendants brought a section 2 — 619 motion to dismiss for failure to state a cause of action (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619), alleging that the information plaintiff sought is expressly exempted from disclosure by FOIA. Defendants attached to their section 2 — 619 motion the affidavit of an official of DPR in which she stated that the notices are similar to a summons to attend an informal “off-the-record” session at which DPR and its licensee discuss possible violations and possible resolutions thereof short of a formal on-the-record process, and further, that the conferences themselves are merely part of an investigation and that their results are not intended for public use or record.\nPlaintiff filed a memorandum in response to defendants’ motion to dismiss and attached the affidavit of Mr. Edward Bruno, the former chief of prosecutions and deputy director of DPR, who also served as a DPR hearing officer and general counsel to its medical disciplinary board. Mr. Bruno contradicted the DPR official’s affidavit, asserting instead that the conferences are conducted only after the investigations are complete and that over 50% of all discipline imposed on licensees results from the conferences. He denied that the conferences were a part of the investigation of a licensee, arguing that they were more analogous to a pretrial conference as both aim to resolve the action completely.\nAfter accepting memoranda and hearing argument, the trial court granted defendants’ motion to dismiss. In reaching its decision, the court complied with the two-step process (which will be elaborated upon more fully infra) for analyzing exemptions claimed under FOIA as outlined in Margolis v. Director of Department of Revenue (1989), 180 Ill. App. 3d 1084, 1087-88, 536 N.E.2d 827, 829, appeal denied (1989), 126 Ill. 2d 560, 541 N.E.2d 1107. Margolis, adapting Federal FOIA case law which interprets provisions similar to those contained in Illinois’ FOIA, held that a reviewing court must determine if information that is personal constitutes a “clearly unwarranted invasion of personal privacy.”\nApplying Margolis, the trial court found that the information sought by plaintiff constituted an inappropriate invasion of privacy and, accordingly, granted defendants’ motion to dismiss. The court also stated that it did not want to be understood as endorsing a policy of using FOIA as a means of advancing private commercial interests, especially where as here, the FOIA request would necessitate an extensive in camera inspection of documents on a case-by-case basis in order to apply Margolis’ balancing test. Citing section 1 of FOIA (Ill. Rev. Stat. 1989, ch. 116, par. 201), which declares the public policy behind the Act, it went on to recognize that plaintiff's intended use of the notices (to build a client base for its legal practice) was contrary to FOIA’s purpose. As a final matter, the court found no justification for plaintiff’s request to have the agency waive copying costs because the court found that plaintiff made the request primarily to benefit itself, and not the public as required by FOIA. (Ill. Rev. Stat. 1989, ch. 116, par. 206(b).) Plaintiff timely filed its notice of appeal on May 31, 1991, asking this court to reverse the trial court’s grant of defendants’ motion to dismiss, and to direct the trial court to hold a hearing on the merits of the case.\nI\nThe parties agree that the first issue we must decide concerns the proper construction of section 7(l)(b) of FOIA (Ill. Rev. Stat. 1989, ch. 116, par. 207), which exempts certain personal information from disclosure. That subsection provides in pertinent part:\n\"(1) The following shall be exempt from inspection and copying:\n(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:\nH: * *\n(iii) files and personal information maintained in respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline.” Ill. Rev. Stat. 1989, ch. 116, par. 207.\nA difference of opinion has developed within the appellate court of this State with regard to the proper construction of this section. One view, first announced in City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, and later expounded in Margolis (180 Ill. App. 3d 1084, 536 N.E.2d 827), set forth a two-step process to test whether personal information should be free from disclosure under section 7(1)(b) of Illinois’ FOIA. Margolis held that information which falls within one of the enumerated categories of sections 7(l)(b)(i) through 7(1)(b)(v) has met only a threshold requirement for exemption from disclosure. If it does not fall within any of those categories, the reviewing court need look no further, as exemption from disclosure is not warranted. However, if the information meets this prefatory step, the court balances four factors in order to determine if the requested information \"constitute^ a clearly unwarranted invasion of personal privacy.” Ill. Rev. Stat. 1989, ch. 116, par. 207(1)(b).\nMargolis took the view that the privacy exemption in Illinois’ FOIA and the Federal version were similar. Consequently, it adopted the balancing test explicated in Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F.2d 784, 786, cert. denied (1985), 471 U.S. 1053, 85 L. Ed. 2d 477, 105 S. Ct. 2112, which is used to determine whether \"personal information” is exempt from disclosure under the Federal FOIA. The four relevant factors identified by Minnis are: (1) the plaintiffs interest in disclosure; (2) the public interest in disclosure; (3) the degree of invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Margolis, 180 Ill. App. 3d at 1089-90, 536 N.E.2d at 830, citing Minnis, 737 F.2d at 786, and Multnomah County Medical Society v. Scott (9th Cir. 1987), 825 F.2d 1410, 1413.\nThe second approach, first advanced in Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 493 N.E.2d 127, and further clarified in Staske v. City of Champaign (1989), 183 Ill. App. 3d 1, 539 N.E.2d 747, appeal denied (1989), 127 Ill. 2d 642, 545 N.E.2d 131, and Healy v. Teachers Retirement System (1990), 200 Ill. App. 3d 240, 558 N.E.2d 776, appeal denied (1990), 135 Ill. 2d 556, 564 N.E.2d 837, holds that the specific information set out in sections 7(1)(b)(i) through 7(1)(b)(v) is per se precluded from disclosure under Illinois’ version of FOIA. Healy recognized that the enumerated exemptions evidence a legislative determination that some types of information will, in every situation, constitute a \"clearly unwarranted invasion of personal privacy” and that the exemptions demonstrate also a legislative intent to relieve our courts of the burden of making case-by-case analyses of such information.\nPlaintiff maintains that Margolis provides the correct analytical framework we should employ to resolve this dispute. Analyzing the instant case under the Margolis rubric, it argues that whenever a citizen files a FOIA request for information concerning a licensee and DPR rejects the request, a trial court must determine on a case-by-case basis whether the information sought \"constitute^ a clearly unwarranted invasion of personal privacy.” Defendants counter that Margolis misconstrued section 7(l)(b) of FOIA. They contend that this court should follow Healy and hold that information which falls within one of the enumerated categories in sections 7(l)(b)(i) through 7(l)(b)(v) is per se exempt from disclosure. Although DPR advances compelling reasons in arguing that Margolis’ reliance on cases construing the Federal version of FOIA was misplaced, we leave for another day an examination of the appropriateness of that decision, for even by utilizing its more elastic approach, we hold that the information plaintiff seeks is exempt from FOIA disclosure; we therefore affirm the trial court’s dismissal of plaintiff’s action.\nII\nApplying Margolis to the instant case, we find that the information sought falls within one of the enumerated categories of section 7(1)(b) of FOIA; namely, subsection (iii), which applies to personal information regarding State licensees and registrants. The notices themselves provide the names and addresses of licensees who are under investigation, and as we, along with every other court which has considered the issue, have held, the names and addresses of licensees constitute personal information. Thus, we move to the second aspect of Margolis’ test, which compels us to balance the following four factors: (1) the interest of the party seeking disclosure; (2) the interests of the public in disclosure; (3) the degree of invasion of personal privacy; and (4) the availability of alternative means of obtaining the information; and weighing these four factors together will enable us to deduce whether the notices plaintiff seeks constitute a \"clearly unwarranted invasion of personal privacy” meriting exemption from disclosure. Margolis, 180 Ill. App. 3d at 1089-90, 536 N.E.2d at 830, citing Ill. Rev. Stat. 1987, ch. 116, par. 207(1)(b).\nPlaintiff, for the first time in its reply brief, contends that Margolis’ first factor — the plaintiff’s interest in disclosure — is no longer a proper inquiry after the United States Supreme Court’s decision in United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468. There, the Court, construing the privacy exemption of the Federal FOIA, held that the purpose of the Act is \" 'to open agency action to the light of public scrutinyt,]’ rather than on the particular purpose for which the document is being requested.” (Reporters Committee, 489 U.S. at 772, 103 L. Ed. 2d at 795, 109 S. Ct. at 1481, quoting Department of Air Force v. Rose (1976), 425 U.S. 352, 372, 48 L. Ed. 2d 11, 27, 96 S. Ct. 1592, 1604.) In Reporters Committee the Supreme Court was free to conclude that the interest of the party seeking disclosure was irrelevant under Federal FOIA because Congress did not express a contrary intent.\nUnlike Congress, the Illinois General Assembly did manifest a concern with the purpose for which the FOIA request is made; consequently, we are not free to discard the plaintiff’s interest in disclosure. In section 1 of Illinois’ FOIA, the legislature declared that the public policy justifying its enactment is to entitle all persons to full and complete information concerning the affairs of government and the official acts and policies of the public’s representatives. (Ill. Rev. Stat. 1989, ch. 116, par. 201.) However, the legislature qualified that expressed policy by adding that \"[FOIA] is not intended to be used to violate individual privacy, nor for the purposes of furthering a commercial enterprise.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 116, par. 201.) Unless the plaintiff’s interest in disclosure is included in the calculus of the Illinois exemption from FOIA, we would never be able to discern whether a party intends to avail himself of FOIA for impermissible commercial reasons when he asks an agency for personal information, and we would thus be incapable of enforcing the General Assembly’s proscription against using FOIA for pecuniary gain.\nAccordingly, while construing Illinois’ FOIA, we must address all four concerns identified by Margolis, and after doing so, it becomes readily evident that the trial court properly granted defendants’ motion to dismiss because the names and addresses of licensees called to appear before DPR are exempt from disclosure as they constitute a clearly unwarranted invasion of personal privacy. The case at bar is remarkably similar to the Ninth Circuit case which first promulgated the balancing test that Margolis adapted in construing Illinois’ FOIA. In Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F. 2d 784, the owner of a lodge on the bank of a river in Oregon sought the names and addresses of all individuals who received permits to traverse the federally regulated river. The Forest Service denied the request, arguing that disclosure would violate the Federal version of the privacy exemption. (5 U.S.C. § 552(b)(6) (1982).) After weighing the four factors featured in Margolis, the Minnis court held that, on balance, the information sought was protected. The Minnis court premised its decision primarily on its recognition that whatever slight benefit the public would gain from disclosure of the information sought would be heavily overcome by the invasion of privacy to which the recipients of plaintiffs solicitations would be subjected.\nPlaintiff here asserts many of the same arguments that were put forward by the plaintiff in Minnis. For instance, it argues that it seeks the names and addresses to better enable it to advise licensees of its expertise in representing individuals before DPR. Plaintiff also claims that it is axiomatic that attorney advertising benefits society. In the same vein, Minnis argued that the list of names would be used to advise interested individuals of the availability of accommodations on the river, thus benefitting society as a whole. The Minnis court rejected his argument, reasoning that while some might appreciate the advertisements, others \"would be irritated rather than enlightened by unwanted solicitations.” Minnis, 737 F.2d at 787.\nThe same logic applies in the instant case. While some licensees may appreciate a circular which informs them of plaintiffs legal services, others, most likely a majority, may be incensed that defendant, a governmental body, appears not only to be participating in an ad campaign by providing their names and addresses to law firms, but also in unduly publicizing what may ultimately prove to be an unfounded accusation. Moreover, whatever minimal benefit that could arguably be said to arise from plaintiffs solicitation of licensees is significantly mitigated by the fact that the notices themselves advise recipients of their right to have an attorney accompany them.\nUnder the second concern of the test, while it is true that the general public has a valid interest in knowing when a State licensee has violated a State statute or a rule of a regulatory body, this interest is better served in the method now used by DPR, rather than by providing plaintiff with the notices. At present, DPR releases to the news media a monthly list of all registrants who have been sanctioned for violations. This would include recipients of the notices at issue here, assuming that they were adjudged in violation after a conference. All the pertinent information plaintiff would uncover via its FOIA request is ultimately disclosed, often after the facts of the incident are more fully developed. Plaintiff seeks only to short-circuit the present system for his own gain, without any additional benefit accruing to the public at large. Accordingly, we must count the second factor against disclosure as well.\nThe third prong, the degree to which disclosure would invade the personal privacy of licensees, also militates strongly against disclosure. The extent of the intrusion on privacy here can best be appreciated by comparing what may be inferred from the information on DPR’s notices to what could be inferred from the information sought in Minnis. That court held that the degree of invasion of personal privacy there was more than de minimis because the release of the information requested would disclose not only the names and addresses of individuals who applied for permits to travel down the Rogue River, but also the fact that they were watersport enthusiasts and were devotees of the out-of-doors, and would thus, more than likely, subject them to an increased influx of \"junk mail.” If the Minnis type of \"personal information” constitutes more than a minimal invasion of privacy, then the information which can be inferred from DPR’s notice of informal and disciplinary conferences surely represents a drastic invasion.\nThe fourth element of the test, however, favors plaintiff, since the only practicable means available to it for discovering precisely which licensees are to be called to conferences and when they are to be called is effected by the granting of access to the notices. But this factor alone is insufficient to overcome the other three which weigh so importantly against disclosure. After careful deliberation on all four factors, we are constrained to agree with the trial court and hold that the information sought by plaintiff constitutes a clearly unwarranted invasion of personal privacy and is thus exempt from publication under section 7(l)(b) of FOIA. Accordingly, the judgment of the trial court is affirmed.\nAffirmed.\nMcCORMICK, P.J., and HARTMAN, J„ concur.\nDefendants’ invocation of section 2 — 619, seeking dismissal of plaintiffs action \"for failure to state a cause of action” is illustrative of the confusion that abounds among practitioners when it comes to harmonizing the appropriate provision of the Code of Civil Procedure with the reasons asserted for its invocation. A section 2 — 619 motion obviously and necessarily acknowledges that the complaint states a cause of action but that certain legally recognized affirmative defenses are permitted to be asserted as a bar thereto. Here we recognize the propriety of defendants’ bringing a section 2 — 619 motion only because they assert an affirmative defense (by way of an affidavit) in bar of what they unwittingly admit is an otherwise viable cause of action. A section 2 — 615 motion is, of course, the appropriate way to challenge the legal sufficiency of a complaint, and the court would be confined to an examination of that pleading alone in arriving at its determination.\nActually, plaintiff first offered the specious argument that DPR’s notices of informal conferences and the notices of disciplinary conferences are not exempted by section 7(l)(b) because it addresses only information of a personal nature, and the information contained in the notices is not personal. This argument is irredeemably without merit. Every court, both Illinois and Federal, which has considered the personal information exemption of the two versions of FOIA has held that it applies to \"information which could identify a particular individual.” (Margolis, 180 Ill. App. 3d at 1088, 536 N.E.2d at 829, citing United States Department of State v. Washington Post Co. (1982), 456 U.S. 595, 602, 72 L. Ed. 2d 358, 364, 102 S. Ct. 1957, 1961; accord, e.g., Healy v. Teachers Retirement System (1990), 200 Ill. App. 3d 240, 558 N.E.2d 766; Staske v. City of Champaign (1989), 183 Ill. App. 3d 1, 539 N.E.2d 747; Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F.2d 784, 786, cert. denied (1985), 471 U.S. 1053, 85 L. Ed. 2d 477, 105 S. Ct. 2112; Southern Utah Wilderness Alliance, Inc. v. Hodel (D.D.C. 1988), 680 F. Supp. 37.) The notices plaintiff sought include the names and addresses of State licensees; and as Margolis noted \"[o]bviously, the names and addresses of applicants *** identify particular individuals.” (Margolis, 180 Ill. App. 3d at 1088, 536 N.E.2d at 829.) Accordingly, plaintiff’s characterization of this information as not being personal is manifestly wrong and an analysis of section 7(l)(b)’s exemption is appropriate no matter which construction of the provisions of that section we apply."}
{"dedup_key":"pre1996-132546","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"203 ill-app-3d 687","case_name":"Safanda v. Zoning Board of Appeals of the City of Geneva","court_level":"Appellate","appellate_district":"2nd","year":1990,"county":null,"appellate_docket":"2-89-1256","circuit_docket":null,"published":1,"authoring_justice":"McLaren","statute":["OMA"],"exemptions_cited":[],"public_body":"Zoning Board of Appeals of the City of Geneva","requesting_party":"Elizabeth M. Safanda","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court addressed whether the trial court erred in dismissing counts of the plaintiff's complaint alleging violations of the Open Meetings Act. The appellate court held that the trial court improperly dismissed the OMA-related count and remanded the case for further proceedings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=132546","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:04.021574","site_category":"Meeting Conduct & Participation","date_decided":"1990-10-02","site_url":"/cases/pre1996-132546/","text_url":"/case-text/pre1996-132546.txt","full_text":"ELIZABETH M. SAFANDA, Plaintiff-Appellant, v. ZONING BOARD OF APPEALS OF THE CITY OF GENEVA et al., Defendants-Appellees.\nSecond District\nNos. 2 — 89—1256, 2 — 90—0200 cons.\nOpinion filed October 2, 1990.\nSafanda & Brannen, of St. Charles (Carl F. Safanda, of counsel), for appellant.\nRadovich & Radovich and Stephen M. Cooper, of Law Offices of Cooper, Storm & Petesch, both of Geneva, and Lloyd E. Dyer, Jr., of Wheaton (Charles A. Radovich, of counsel), for appellees.\n\nJUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiff appeals from the trial court’s dismissal of two counts of her complaint in administrative review and the dismissal of certain parties defendant. We affirm in part, reverse in part, and remand.\nPlaintiff, Elizabeth Safanda (plaintiff), sought a rear-yard variance on property owned in defendant City of Geneva (City) to enable her to build a single-family residence. Following a hearing before defendant zoning board of appeals of the City of Geneva (Board) on June 8, 1988, the application was denied.\nPlaintiff filed her complaint for administrative review on August 4. On September 27, the court entered an agreed order remanding the cause to the Board for additional hearings and the issuance of a decision containing required findings of fact. The order also provided that the prior Board decision would be superseded by the decision on remand, that the records of both hearings would constitute the record on review, and that plaintiff’s complaint was to be stayed pending the issuance of the decision on remand.\nThe Board met on October 5, 1988, to discuss the case. This meeting was not open to the public, and plaintiff received no notice of it. An additional public hearing was held by the Board on October 27, after which the Board denied the application in a decision dated December 29.\nOn December 22, plaintiff filed a motion in the circuit court seeking further hearings before the Board. The court then remanded the cause to the Board and ordered an additional hearing at which Charles Lencioni, building commissioner of the City of Geneva and secretary of the Board, was ordered to testify and produce documents pursuant to an ordered subpoena. Such meeting was held on March 1, 1989. The Board then denied the application in a decision dated March 8 and mailed on March 30. Plaintiff filed her first amended complaint in the trial court on April 17. Defendants Board, City, and the individual members of the Board filed a motion to strike and dismiss plaintiffs first amended complaint. On November 2, plaintiff was granted leave to amend her first amended complaint by adding count V. The court then dismissed counts IV and VI and dismissed as parties the City and the individual members of the Board. Plaintiff appeals these dismissals.\nDefendants then filed a motion to dismiss count V of the first amended complaint. This motion was granted on February 8, 1990. Plaintiff also appeals from this dismissal. We have consolidated these dismissals on appeal.\nPlaintiff first contends that count VI of her first amended complaint should not have been dismissed as a matter of law. This count alleged that the Board’s October 5, 1988, meeting was held in violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.). The trial court found that this count was not timely filed and therefore dismissed it. We disagree.\nSection 3(a) of the Open Meetings Act provides:\n“Where the provisions of this Act are not complied with, or where there is probable cause to believe that the provisions of this Act will not be complied with, any person, including the State’s Attorney of the county in which such noncompliance may occur, may bring a civil action in the circuit court for the judicial circuit in which the alleged noncompliance has occurred or is about to occur, or in which the affected public body has its principal office, prior to or within 45 days after the meeting alleged to be in violation of this Act or within 45 days of the discovery of a violation by the State’s Attorney.” (111. Rev. Stat. 1989, ch. 102, par. 43(a).)\nThe statute allows a person to file a complaint within three time periods: (1) before the violative meeting is held; (2) within 45 days of the violation; or (3) within 45 days of discovery of the violation by the State’s Attorney. In the case before us, plaintiff filed her complaint 194 days after the Board’s allegedly violative meeting, clearly beyond the limits of the first two periods. However, the record contains no evidence that the State’s Attorney ever discovered the occurrence of the meeting. Therefore, the 45-day period after such discovery had not run, and plaintiff’s complaint was filed within the statutory time limit. The trial court measured the 45-day limit from the time the court found plaintiff to have notice of the meeting. However, the statute does not measure the opportunity to file from the complainant’s discovery. Even if the court were correct in measuring the 45 days from plaintiff’s discovery, the court still erred in determining that plaintiff filed outside the limited period. The court found that plaintiff discovered the meeting on March 1, 1989, and therefore should have filed her complaint on or before April 15. Plaintiff filed on April 17. However, April 15 fell on a Saturday; plaintiff would have been allowed to file on the next day that the court was open, namely April 17. We conclude that plaintiff timely filed count VI of the first amended complaint. Therefore, the trial court erred in dismissing that count, and we remand this cause to the trial court with instructions to reinstate that count.\nPlaintiff next contends that the court erred in dismissing the City of Geneva as a defendant in this suit. The trial court found that the City was not a proper party to this action because it “was not part of the decision rendered by the Zoning Board of Appeals” and because plaintiff was challenging the Board’s application of the City’s zoning code, not the code itself.\nThe City did not participate in the hearing before the Board. Plaintiff points out that Charles Lencioni, the City building commissioner, testified before the Board and that City attorney Charles Radovich presented evidence and otherwise participated in the public hearing before the Board. However, Lencioni was subpoenaed by plaintiff to testify regarding Lencioni’s actions as secretary of the zoning board of appeals, not as building commissioner, and Radovich was acting in his capacity as counsel for the Board. Neither man represented the City or acted on its behalf in these hearings. We do not conclude that the presence of these men at the hearings constituted participation by the City.\nPlaintiff maintains that the City is a proper party because counts III and IV of the first amended complaint seek to have the Geneva zoning ordinance declared void and unconstitutional as applied to her property. According to plaintiff, the City has an interest in the outcome of these counts and would be affected by a decision entered in its absence; if the City is not a party, it would be bound by the decision with no avenue for appeal.\nParties to an action are divided into indispensable or necessary parties and proper or dispensable parties. (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 268.) “ ‘Proper’ parties may but need not be joined.” (Lain, 79 111. App. 3d at 268 n.4.) A necessary party is one who “has an interest in the subject matter of the suit which may be materially affected by a judgment entered in the person’s absence.” (People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 281.) Such a party must be joined unless joinder would destroy the jurisdiction of the court or the party is not amenable to the court’s jurisdiction. Lain, 79 Ill. App. 3d at 268 n.4.\nPlaintiff, while calling the City a “proper” party, applies the definition of “necessary” party to the City. Plaintiff argues that the City will be bound by the trial court’s decision with no avenue for appeal unless it is a party. While this may be true, it is true for other individuals or groups who may have opposed the application for variance yet never involved themselves in the process. The City, for whatever reason, neither opposed nor advocated the granting of the variance. By failing to involve itself in the hearing, the City voluntarily gave up its right to challenge the Board’s decision. The City cannot be forced to regain that right by plaintiff. The City was not a party of record in the prior proceedings and is not a necessary party on review.\nIn addition, plaintiff agrees that she is only challenging the constitutionality of the zoning code as applied to her property, not the constitutionality of the code on its face. The Board, not the City, is responsible for the application of the code to individual parcels of property. The City made no administrative decision to be reviewed. The trial court correctly dismissed the City as a defendant in this suit.\nPlaintiff next contends that the individual members of the Board were proper parties to the suit and should not have been dismissed. Count VI of the first amended complaint sought relief against these individuals for the alleged violation of the Open Meetings Act. Count III also sought relief from the Board members, among others, for alleged violations of plaintiff’s constitutional rights. Before the court dismissed count VI as untimely filed, it found that the individual Board members were proper parties to the open meetings count. Since we have concluded that count VI was timely filed and should be reinstated on remand, the individual Board members will remain parties under that count. Therefore, we will only address the alleged error of dismissing the individual members of the Board from count III.\nPlaintiff fails to cite any case explicitly concluding that individual Board members are proper parties to a suit charging deprivation of constitutional rights by an administrative body. However, plaintiff argues that the reasoning employed in People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, is applicable to this case. Barger involved a violation of the Open Meetings Act by several officials of the City of Wheaton. The members of the Wheaton city council involved in the illegal meeting were found to be necessary parties to the resulting suit. (Barger, 30 Ill. App. 3d at 539.) We find Barger to be clearly distinguishable from the case before us. Section 4 of the Open Meetings Act provides that “[a]ny person violating any of the provisions of this Act shall be guilty of a Class C misdemeanor.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 102, par. 44.) Thus, the individual council members in Barger were properly defendants because the statute under which the suit was brought provided that individuals were to be charged under the Act. In the case before us, no statute explicitly provides for the joinder of individuals in such a case. We will not extend the provisions of a statute to situations and actions beyond the purview of that enactment. Barger provides no basis for finding the members of the Board to be proper defendants.\nPlaintiff also cites Weaver v. Zoning Board of Appeals (1970), 130 Ill. App. 2d 1052, because the individual members of that Board were also made parties defendant in that case. However, the propriety of naming the members as defendants was not at issue in that case. The fact that the members were named does not, by itself, prove that the action was proper or that the members could not have gotten themselves dismissed from the cause had they so attempted. Plaintiff has provided no cognizable argument why the dismissal of the individual Board members was error. Accordingly, we affirm the dismissal of these parties.\nPlaintiff next contends that the court erred in dismissing count IV of her first amended complaint. This count alleged that the Board’s application of the Geneva Zoning Code violated the due process and equal protection clauses of the Illinois Constitution (Ill. Const. 1970, art. I, §2). The court dismissed this count for failure to state a cause of action.\nA motion to dismiss admits all well-pleaded facts, and all reasonable inferences which may be drawn from those facts are taken as true for purposes of the motion. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1097.) A complaint should not be dismissed for failure to state a cause of action unless the pleadings disclose that no set of facts could be proved which would entitle plaintiff to relief. (Inter- way, 85 Ill. App. 3d at 1097.) On appeal from such a dismissal, the reviewing court should view the facts alleged in the complaint in the light most favorable to the plaintiff. Interway, 85 Ill. App. 3d at 1097.\nPlaintiff first argues that her complaint stated a cause of action for violation of her right to due process. Section 31.2604 of the Geneva Code grants to the Board the power to\n“[a]uthorize, upon its own motion or upon formal petition signed by one or more property owners, whenever the property owner can show that a strict application of the terms of this ordinance [appendix] relating to the use, construction or alteration of buildings or structures or the zoned use of land will impose upon him unusual and particular difficulties or particular hardship, such variations of the strict application of the terms of this ordinance [appendix] as are in harmony with its general purposes and intent, but only when the board is satisfied that a granting of such variation will not merely serve as a convenience to the applicant, but will alleviate some demonstrable hardship or difficulty so great as to warrant a variation from the requirements established by this ordinance [appendix] and that at the same time the surrounding property will be properly protected. The same procedure shall be followed concerning public hearing, notices and maps as in the case of amendments to this ordinance [appendix].\nIn consideration of all appeals and all proposed variations to the ordinance [appendix] the board shall, before making any variation from the ordinance [appendix] in specific case, first determine that the proposed variation will not impair an adequate supply of light and air to adjacent property, or unreasonably increase the congestion in public streets, or increase the damage of fire or endanger the public safety, or unreasonably diminish or impair established property values within the surrounding area ***.” (Geneva, 111., Municipal Code ch._, par. 31.2604 (19_).)\nPlaintiff maintains that she presented adequate evidence to the Board to show that denial of the variance would cause her undue hardship and that the granting of the variance would not adversely affect the surrounding neighborhood. The complaint alleges that plaintiff presented to the Board expert testimony that the R-2 zone requirements, if not modified by the requested variance, create hardships in the construction of a single-family residence on plaintiff’s property, including problems with room size and other quality of life problems. The complaint also alleged expert testimony that the granting of the variance would not impair the supply of light to adjacent property and would not negatively affect traffic congestion, the danger of fire, or the public health, safety and general welfare.\nApplication of a zoning ordinance to a parcel of land is violative of an individual’s right to due process' if that application is arbitrary, unreasonable, or capricious and it bears no substantial relationship to public welfare. (Brown v. Board of Zoning Appeals (1959), 21 Ill. App. 2d 273, 277.) Plaintiff has contended that the Board acted arbitrarily and without concern for public welfare in denying her application for a variance because the expert testimony presented to the Board indicated that the variance should have been allowed under section 31.2604 of the Geneva Code. Viewing these allegations in the light most favorable to plaintiff, we conclude that the complaint did state a cause of action alleging due process violation. We may certainly infer, from the facts alleged, that the Board acted arbitrarily or capriciously in denying the variance in the face of such testimony. If these facts were proved, plaintiff may be entitled to relief. Therefore, the court erred in dismissing count IV of plaintiff’s first amended complaint for failure to state a cause of action under due process.\nPlaintiff also contends that she stated a cause of action sounding in equal protection. The threshold question in an equal protection case is whether similarly situated people are being treated dis-similarly. (People v. Burton (1981), 100 Ill. App. 3d 1021, 1023.) The State may treat different classes of persons differently, and, in the absence of a fundamental right or suspect classification, the State may even differentiate between similarly situated persons if there is a rational basis for doing so. (Jenkins v. Wu (1984), 102 Ill. 2d 468, 477.) This analysis is used in this State in assessing both Federal and State equal protection challenges. Jenkins, 102 Ill. 2d at 477.\nPlaintiff alleges that her property was originally platted in 1837 as 150 feet deep and 60 feet wide with frontage on Fulton Street. However, under the terms of the current Geneva Zoning Code, the property is now configured as 60 feet deep and 150 feet wide with frontage on 7th Street. Plaintiff contends that her property is the only property from the original 1837 plat that is configured in this manner and that the configuration denies her full use of her property. Plaintiff also alleges that her property is subject to section 31.304 of the Geneva Code, which provides in part:\n“The lot area and width regulations established in the residence districts shall not prohibit the erection or alteration of a dwelling and accessory buildings designed for single-family use on any residential lot shown as such on a recorded plat in the recorder’s office of Kane County, dated prior to January 7, 1957; provided that in no instance shall a building be erected on a lot less than fifty (50) feet wide in any residence district.” (Geneva, Ill., Municipal Code, ch__, par. 31.304 (19_).)\nPlaintiff alleges that the Board’s action denied her full use of her property as mandated by the Code even though “all other lots platted in 1837 could avail themselves of this provision.” Nowhere, however, does plaintiff allege a specific instance when another property owner was treated differently. Alleging that other property owners “could avail themselves” of the Code provision does not allege dissimilar treatment. Such a statement merely alleges that others could seek the benefit of the provision, as did plaintiff. However, the allegation that the configuration of plaintiff’s property was changed does raise an equal protection cause of action. Taking plaintiff’s allegations as true, plaintiff’s property was the only parcel from the 1837 plat, among several parcels having the same dimensions, to have its dimensions reversed. It is this reversal which forced plaintiff to seek the variance denied by the Board. Under these alleged facts, plaintiff has been treated differently than other owners of properties platted in 1837. Therefore, plaintiff has stated a cause of action, and count IV of her first amended complaint should not have been dismissed.\nIn the consolidated case, plaintiff contends that the court improperly dismissed count V of her first amended complaint. This count alleged that the Board violated both the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1 — 1—1 et seq.) and the Geneva Code when it held its meeting on October 5, 1988. Plaintiff also alleged that the Board’s meeting denied her rights to due process and equal protection in violation of the Illinois Constitution. (See Ill. Const. 1970, art. I, §2.) The trial court found that this count fell within the provisions of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.) and dismissed the count for the same reasons it dismissed count VI.\nWe conclude that the court erred in dismissing count V of plaintiff’s first amended complaint. Count VI sought relief under the Open Meetings Act. Count V sought a reversal of the Board’s decision and the granting of the variance based on violations of the Illinois Constitution, the Municipal Code and the Geneva Code. Nowhere in this count did plaintiff allege violation of the Open Meetings Act. Clearly, the reasoning, employed by the court to dismiss count VI, which in any event we found to be in error, is irrelevant to count V. We must therefore reverse the court’s order dismissing count V of plaintiff’s first amended complaint.\nFor the above reasons, we affirm the dismissal of the individual Board members under count III and affirm the dismissal of the City as a party to this suit. We reverse the circuit court’s dismissal of counts IV, V, and VI, and remand this cause to the circuit court for further proceedings consistent with this opinion.\nAffirmed in part; reversed in part and remanded.\nUNVERZAGT, P.J., and INGLIS, J., concur."}
{"dedup_key":"pre1996-123331","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"146 ill-app-3d 535","case_name":"Carrigan v. Harkrader","court_level":"Appellate","appellate_district":"3rd","year":1986,"county":null,"appellate_docket":"3-85-0731","circuit_docket":null,"published":1,"authoring_justice":"Stouder","statute":["FOIA"],"exemptions_cited":["7(f)"],"public_body":"Peoria County Clerk / Peoria County Liquor Commission","requesting_party":"Deborah Carrigan","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the Freedom of Information Act applies to records regardless of whether they were created before or after the Act's effective date. However, the court affirmed the denial of the request because the document was an opinionated recommendation exempt from disclosure under Section 7(f) of the Act.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=123331","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:04.345482","site_category":"General Records Exemptions","date_decided":"1986-08-12","site_url":"/cases/pre1996-123331/","text_url":"/case-text/pre1996-123331.txt","full_text":"DEBORAH CARRIGAN, Plaintiff-Appellant, v. MARY E. HARKRADER, Clerk of the County of Peoria, Defendant-Appellee.\nThird District\nNo. 3—85—0731\nOpinion filed August 12,1986.\nRonald L. Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellant.\nJohn A. Barra, State’s Attorney, of Peoria, for appellee.\n\nJUSTICE STOUDER\ndelivered the opinion of the court:\nOn May 9, 1985, the plaintiff, Deborah Carrigan, filed suit against the defendant, Peoria County Clerk Mary E. Harkrader, to obtain a copy of the letter which the Peoria County sheriff submitted in conjunction with the plaintiff’s liquor-license application. As an affirmative defense, the defendant denied that the Freedom of Information Act (the Act) (Ill. Rev. Stat. 1985, eh. 116, par. 201 et seq.), authorized the plaintiff’s request and alternatively argued that the letter was exempt from disclosure.\nAfter inspecting the letter in camera, the court denied the plaintiff’s request for disclosure. The court found the Act applicable only to records and reports prepared subsequent to its enactment date of July 1, 1984. Consequently, the court ruled the letter exempt from discovery due to its August 11, 1983, date and its opinionated, advisory nature.\nOn appeal, the plaintiff argues that disclosure is warranted because the liquor commission used, possessed and controlled the opinionated recommendation after the effective date of the Act. The defendant responds that the Act applies prospectively to documents prepared and submitted to a public body; and, alternatively, that the letter was exempt from disclosure.\nEffective July 1, 1984, the Act provides in pertinent part that any county administrative body shall allow nonexempt public records to be inspected or copied. (Ill. Rev. Stat. 1985, ch. 116, pars. 202(a), 203(a).) Public records include opinionated letters about any private person which currently or in the past were used, received, possessed, or controlled by any public body. Ill. Rev. Stat. 1985, ch. 116, par. 202(c)(ix).\nWe acknowledge both that the purpose of the Act is to provide disclosure of information about government’s affairs and its representatives’ official acts (Ill. Rev. Stat. 1985, ch. 116, par. 201), and that the Act clearly applies to records and reports prepared or received on or after July 1, 1984 (Ill. Rev. Stat. 1985, ch. 116, par. 43.29). The instant dilemma, however, is based on the following. The sheriff prepared and submitted the letter to the liquor commission in 1983. After the Act became effective, the plaintiff requested that document which the liquor commission possessed but refused to disclose.\nAbsent express legislative intent to the contrary, a statute creating new obligations will only be prospectively applied. (Board of Education v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 461 N.E.2d 567.) Thus, we must ascertain and give effect to the legislative intent best evidenced by the ordinary meaning of the statutory language. Sayles v. Thompson (1983), 99 Ill. 2d 122, 457 N.E.2d 440.\nWe find that the Act which was clearly effective on July 1, 1984, prospectively expanded an individual’s right to inspect or copy nonexempt public records possessed or controlled by a public body. Thus, the Act applied to the plaintiff’s request for disclosure since her disclosure request was initiated after the Act became effective (see Jaymar-Ruby, Inc. v. Federal Trade Com. (N.D. Ind. 1980), 496 F. Supp. 838), and application of the Act in effect when the court rendered its decision is neither manifestly unjust nor contrary to the legislative intent (see Hill v. United States (9th Cir. 1978), 571 F.2d 1098).\nBefore deciding whether the plaintiff was entitled to access to the letter, we must acknowledge that the Act also limited access to information by providing that unless publicly cited and identified by the head of a public body, recommendations which express opinions are exempt from inspection and copying. Ill. Rev. Stat. 1985, ch. 116, par. 207(f).\nWe concur in the trial court’s in camera determination that the Peoria County sheriff set forth his opinionated recommendation about the plaintiff’s liquor-license application in the letter he submitted to the liquor commission. Those findings were not publicly cited by either the Peoria County liquor commissioner or the Illinois Liquor Control Commission. Thus, we recognize the dilemma caused by an applicant for an occupational license, but find that we must honor the plain language of one of the many exceptions carved by the legislature to whittle away a person’s right to access to information about his government’s affairs, even if they pertain to him. (See Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 493 N.E.2d 127.) Therefore, the court appropriately found the requested document exempt from disclosure.\nAccordingly, the judgment of the circuit court of Peoria County is reversed as to the court’s ruling on the applicability of the Act; the balance of the judgment is affirmed.\nAffirmed in part and reversed in part.\nSCOTT, P.J., and WOMBACHER, J., concur."}
{"dedup_key":"pre1996-143848","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"282 ill-app-3d 385","case_name":"Ebert v. Thompson","court_level":"Appellate","appellate_district":"1st","year":1996,"county":null,"appellate_docket":"1-95-3185","circuit_docket":null,"published":1,"authoring_justice":"Cahill","statute":["FOIA"],"exemptions_cited":["7(1)(b)(i)"],"public_body":"Town of Maine","requesting_party":"Regan D. Ebert","disposition":"affirmed","relevance":"relevant","summary_source":"generated","summary":"The court affirmed the denial of attorney fees, holding that because the plaintiff explicitly disclaimed proceeding under the Freedom of Information Act at the trial level, she could not invoke the Act's fee-shifting provisions on appeal. The court noted that the underlying dispute regarding access to public records was resolved in the trial court and not appealed.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=143848","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:04.466753","site_category":"Fees & Burdensome Requests","date_decided":"1996-06-28","site_url":"/cases/pre1996-143848/","text_url":"/case-text/pre1996-143848.txt","full_text":"REGAN D. EBERT, Indiv. and as Trustee on Behalf of the Town of Maine, Plaintiff-Appellant, v. MARK THOMPSON, as Supervisor of the Town of Maine, et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1—95—3185\nOpinion filed June 28, 1996.\nDavid F. Platek, of Chicago, for appellant.\nSegal, McCambridge, Singer & Mahoney, Ltd., of Chicago (Gregory E. Rogus and Michael W. Drumke, of counsel), for appellees.\n\nJUSTICE CAHILL\ndelivered the opinion of the court:\nPlaintiff Regan Ebert, an elected trustee of the Town of Maine, filed a complaint for injunctive relief against the town’s supervisor and administrator. Ebert sought access to lists of participants in social programs funded by the Town of Maine. She alleged that, as an elected trustee of the Town of Maine, she had a right of access to the lists. Defendants Mark Thompson, the supervisor of the Town of Maine, and Pamela Anderson, the administrator of the Town of Maine, contended the records sought by plaintiff were confidential and exempt from dissemination, even to an elected trustee, under section 7(l)(b)(i) of the Illinois Freedom of Information Act (5 ILCS 140/1 et seq. (West 1994)). The parties filed cross-motions for summary judgment.\nThe trial court ruled: \"The plaintiff is an elected public official. Part of the duties of the plaintiff as an elected public official [is] to audit. As such, the elected public official is entitled to reasonable access to the books and records necessary to perform that function.” The court then granted plaintiff’s request for injunctive relief and ordered the records turned over to her. Defendants did not appeal this order.\nPlaintiff subsequently filed a petition in the same proceeding for attorney fees under section ll(i) of the Freedom of Information Act. That section reads:\n\"(i) If a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys’ fees if the court finds that the record or records in question were of clearly significant interest to the general public and that the public body lacked any reasonable basis in law for withholding the record.” 5 ILCS 140/ll(i) (West 1994).\nThe trial court denied plaintiff’s petition and stated: \"There is no statutory authority here for the fees. FOIA was incidental insofar as having been raised by the defendants. The action was not brought under FOIA, so it’s not a basis for fees.” The court also denied plaintiff’s request for sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137), because \"[g]ood faith was found by the court.”\nPlaintiff appeals this ruling and argues the trial court erred when it denied her petition for fees. She admits in her brief that \"no mention was made anywhere within the body of the pleading claiming any particular statute or other authority as the basis for the relief sought.” She argues, however, that she is \"entitled to recover attorney fees pursuant to the Illinois Freedom of Information Act and no special pleading requirement is necessary in order to vest the trial court with jurisdiction to make an award of fees under the Act.” We disagree.\nSupreme Court Rule 133 reads: \"(a) Statutory Duty. If a breach of statutory duty is alleged, the statute shall be cited in connection with the allegation.” 134 Ill. 2d R. 133(a). Plaintiff did not allege in her complaint that defendants breached a duty under the Freedom of Information Act. She admits the \"complaint filed in this case stated a cause of action for injunctive relief based upon the unlawful acts of the defendants in denying the plaintiff’s request for access to public records that she was clearly and obviously entitled to possess in the performance of her official duties as a trustee of the Town of Maine.” She argued in her motion for summary judgment, in response to the defenses raised by defendants under the Freedom of Information Act, that \"the Act simply does not apply in this case since plaintiff is an elected official of the Town of Maine.” She also argued \"[tjhere is no suggestion whatsoever anywhere in the complaint that the plaintiff has made any request for information pursuant to the Illinois Freedom of Information Act.” The trial court rulings make clear that the court agreed with the original position of the plaintiff.\nIt is undisputed that plaintiff failed to plead a statutory cause of action as is required by the supreme court rules. See also Harney-Morgan Chevrolet Olds Co. v. Rabin, 118 Ill. App. 3d 602, 455 N.E.2d 130 (1983). We also note the language in section 11 of the Act allowing a court to award fees where \"a person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section.” (Emphasis added.) 5 ILCS 140/ll(i) (West 1994). Plaintiff maintained throughout the litigation that she was not proceeding under the Freedom of Information Act.\nThe issue of the Freedom of Information Act was injected by defendants, in their motion for summary judgment, based upon the nature of the records sought. The trial court ruled that plaintiff was entitled to the records in her role as an elected official, rejecting the defense argument based upon the nature of the records. Defendants did not appeal that order. Since the relevancy of the Freedom of Information Act was resolved in the trial court and not appealed, plaintiff cannot now claim that remedies under the Act are relevant on appeal.\nAttorney fees cannot be awarded to a successful litigant in courts of law or equity in the absence of an authorizing statute or contract. Verni v. Imperial Manor of Oak Park Condominium, Inc., 99 Ill. App. 3d 1062, 425 N.E.2d 1344 (1981). The trial court correctly denied plaintiff’s petition for attorney fees.\nWe further find no abuse of discretion in the court’s refusal to impose sanctions under Rule 137 (134 Ill. 2d R. 137), based upon its finding that defendants acted in good faith.\nAffirmed.\nHOFFMAN, P.J., and THEIS, J, concur."}
{"dedup_key":"pre1996-142316","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"271 ill-app-3d 548","case_name":"The Copley Press, Inc. v. Administrative Office of the Courts","court_level":"Appellate","appellate_district":"2nd","year":1995,"county":null,"appellate_docket":"2-94-0461","circuit_docket":null,"published":1,"authoring_justice":"Thomas","statute":["FOIA"],"exemptions_cited":[],"public_body":"Administrative Office of the Courts, Nineteenth Judicial Circuit, and Lake County Department of Court Services","requesting_party":"The Copley Press, Inc.","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the Administrative Office of the Courts and its related pretrial services agencies are part of the judiciary and therefore not subject to the Illinois Freedom of Information Act. Consequently, the court affirmed the finding that FOIA did not apply and reversed the trial court's order requiring the disclosure of electronic monitoring system records.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=142316","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:05.345167","site_category":"Public Body Definition","date_decided":"1995-03-24","site_url":"/cases/pre1996-142316/","text_url":"/case-text/pre1996-142316.txt","full_text":"THE COPLEY PRESS, INC., d/b/a The News Sun, Plaintiff-Appellee and Cross-Appellant, v. ADMINISTRATIVE OFFICE OF THE COURTS et al., Defendants-Appellants and Cross-Appellees.\nSecond District\nNo. 2—94—0461\nOpinion filed March 24, 1995.\nJames C. Bakk, of Law Offices of James C. Bakk, of Waukegan, for appellants.\nPeter M. Storm, of Law Offices of Cooper & Storm, of Geneva, for appellee.\n\nJUSTICE THOMAS\ndelivered the opinion of the court:\nThe plaintiff, Copley Press, Inc., d/b/a The News Sun, filed this lawsuit against the defendants, the Administrative Office of the Courts, Nineteenth Judicial Circuit, and the Lake County Department of Court Services, seeking an order compelling disclosure of documents maintained in connection with an electronic monitoring system operated by pretrial services, which is an agency accountable to the chief judge of the circuit court and is defined by statute as an arm of the court in the Pretrial Services Act (725 ILCS 185/2, 3 (West 1992)). The plaintiff sought disclosure of the documents under the Freedom of Information Act (Information Act) (5 ILCS 140/1 et seq. (West 1992)) and under the theories that it had a common-law and first amendment right to the records. The trial court found that the defendants were part of the judiciary and thus were not subject to the Information Act. The court further found, after inspecting the documents in camera, that a portion of the records sought was not confidential; therefore, the defendants were required to disclose the nonconfidential portions. The defendants appeal, and the plaintiff cross-appeals from the court’s rulings.\nThe record shows that in 1986 the circuit court of Lake County established an electronic monitoring system program (EMS program). The EMS program is an alternative incarceration system which monitors the activities of defendants on pretrial release. The system is operated as part of the pretrial services division of the Lake County department of court services, also known as the probation department. Pursuant to section 1 of the Pretrial Services Act, the pretrial service agency is to provide the court with accurate background data regarding the pretrial release of persons charged with felonies and with effective supervision of compliance with the terms and conditions imposed on release. (725 ILCS 185/1 (West 1992).) Since the establishment of the EMS program, one option available to the court is the release of a pretrial detainee from jail to supervision by the EMS program.\nThe plaintiff filed a Freedom of Information Act request with defendant department of court services seeking the disclosure of records pertaining to the general operation, policies, and procedures of the electronic monitoring system used for home incarceration of felony offenders. The department denied the request. Thereafter, the plaintiff filed this lawsuit to compel the disclosure of the records. The plaintiff’s original complaint sought the following:\n\"[R]ecords pertaining to the general operation policies and procedure of [EMS system], including but not limited to: the date that Lake County began the home incarceration electronic monitoring program; the offenses for which each participant in the program was charged, except information which would tend to identify individual offenders; the length of time each participant in the program was originally ordered to be a participant in the program and the actual length of time that each participant participated in the program; any and all records related to the monitoring or results of monitoring of each individual participating in the program; documents related to the program’s technical operation, size, and/or cost; any documents discussing discretionary guidelines for use by the County’s staff for implementing, maintaining, and operating the program.. *** Records regarding the program’s size, including but not limited to: any and all records pertaining to the number of participants in the Program each year since its inception in Lake County.\n*** [Ijnformation regarding the Program’s problems and failure rate, including but not limited to: any arrests of Program participants made while in the Program and the disposition of each such arrest; documents related to the monitoring system’s failure to detect a participant’s movement beyond the monitored area.”\nThe defendants filed a motion to dismiss in which they raised the nonapplicability of the Information Act. The court granted the defendants’ motion to dismiss agreeing that the defendants’ employees were judicial employees and that the judiciary was exempt from the Act. Thereafter, the plaintiff filed an amended complaint seeking the records based on common-law and first amendment grounds recognizing the right of access to judicial records.\nMeanwhile, the court in the criminal proceeding of People v. Rivera entered an order requiring the Lake County department of court services to provide the prosecution and defense in the case copies of all documents concerning the electronic monitoring system. The electronic monitoring system was apparently an issue in the criminal case because the defendant allegedly committed the murder after evading the system while on pretrial release for another crime. The department of court services complied with the court’s order, but it is unclear whether the records were entered into evidence in open court and whether they were placed in the court file for the case. The plaintiff states that they were not part of the court file, while the defendants state that they were part of the court file. In that regard, the defendants stated in their cross-motion for summary judgment that \"all documents relating to the EMS program” were introduced into evidence in the criminal case and the information is accessible from that court file. The plaintiff filed an affidavit stating that during the pendency of the criminal proceeding the plaintiff requested access to the records from the prosecutor, defense counsel and the trial judge, but those requests were denied. The defendants presented the affidavit of circuit clerk Sally Coffelt which stated that neither she nor any member of her staff had denied the plaintiff or any of its reporters access to court files.\nThe parties in the instant proceeding filed cross-motions for summary judgment. The trial court granted the plaintiff’s motion for summary judgment and denied the defendants’ motion for summary judgment finding that the plaintiff had exhausted all reasonable means to obtain the requested documents and records from other sources. The court further found that plaintiff’s request involved \"generic operational data” which did not implicate the disclosure of confidential information. The court ordered the defendants to turn over the documents within 21 days but granted them leave to submit any of the requested documents for in camera inspection which they believed contained personal information involving the privacy rights of third persons. The defendants subsequently filed with the court 16 files of documents, together with an index and brief description of the contents of each file. After the trial court viewed the documents in camera, it ordered that the defendants only be required to produce the documents that did not include identifying information of individual offenders. The court specifically ordered the production of files Nos. 1, 9 and 15. Thereafter, the plaintiff requested the court to order the defendants to redact any exempt matter from the remaining records and to disclose the nonexempt portions thereof. The court declined to order the defendants to redact exempt matter from the documents, finding that it would be unduly burdensome on the defendants. The plaintiff subsequently filed a motion to reconsider, a petition for rule to show cause, a motion to compel production of the documents and for leave to take discovery on the redaction issue.\nThe court thereafter modified its earlier order and required the defendants additionally to produce the documents from files Nos. 4 and 6 which did not contain identifying information. The court denied the plaintiffs motion for additional discovery, its petition for rule to show cause and its request for further redaction.\nThe defendants appeal the court orders requiring them to produce EMS records. The plaintiff cross-appeals the dismissal of its Information Act claim, the denial of its requests for complete production, redaction, and discovery and its motion for rule to show cause. The trial court’s decision was stayed, and the documents in question remain sealed pending the outcome of this appeal.\nOn appeal, the defendants argue that: (1) the confidentiality provisions of section 31 of the Pretrial Services Act (725 ILCS 185/31 (West 1992)) and section 12 of the Probation and Probation Officers Act (730 ILCS 110/12 (West 1992)) completely exempt the records in question from disclosure; (2) the plaintiff had available alternate sources to gain the information and that this supports the statutory exemptions from disclosure; (3) common-law privileges against disclosure embodied in the Information Act prohibit disclosure; and (4) the canons of judicial ethics along with fair trial considerations prohibit disclosure. In response, the plaintiff challenges each of the defendants’ assertions. Additionally, the plaintiff argues in its cross-appeal that: (1) the trial court erred in finding that the Information Act did not apply to the defendants; (2) even if the Act did not apply, it was nevertheless entitled to the records under first amendment and common-law principles allowing access to judicial records; (3) participants in the EMS program do not have a privacy interest that would be compromised by the disclosure of the records; (4) the trial court erred in limiting its order to compel only the production of documents that did not contain identifying information; alternatively, the court should have ordered the defendants to redact any identifying information; and (5) the defendants waived any exemptions or privileges against disclosure.\nTurning to the issue of whether the defendants were subject to the disclosure requirements of the Information Act, we note that this is an issue of first impression in Illinois. Section 3(a) of the Act mandates that \"[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” (5 ILCS 140/3(a) (West 1992); Smith v. Cook County Probation Department (1986), 151 Ill. App. 3d 136, 138.) Section 2(a) defines \"[p]ublic body” as \"any legislative, executive, administrative, or advisory bodies of the State *** which are supported in whole or in part by tax revenue, or which expend tax revenue.” (5 ILCS 140/2(a) (West 1992).) It is a maxim of statutory construction that when a statute enumerates certain items, that enumeration excludes all other items although there are not negative words of prohibition. (Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 460.) Here, the legislature specifically listed the legislative and executive branches of government without listing the judicial branch. The lack of any reference to the courts or judiciary must be taken as an intent to exclude the judiciary from the disclosure requirements of the Act.\nThe plaintiff argues that the administrator of the Lake County court services performs purely nonjudicial, administrative functions and that the records his office maintains are distinct from the records maintained by judges and their staff. Therefore, the plaintiff urges, the Information Act applies under the facts of this case. The plaintiff relies on the out-of-State authority of Quirk v. Evans (1982), 116 Misc. 2d 554, 455 N.Y.S.2d 918, and Babigan v. Evans (1980), 104 Misc. 2d 140, 427 N.Y.S.2d 688.\nThe plaintiff’s reliance on New York case law is unpersuasive. Those cases interpret the New York Freedom of Information Act, which is significantly different from the Illinois act. The New York act provides that it applies to \"agencies,” and the definition of \"agency” excludes the judiciary. (N.Y. Pub. Off. Law §§ 87, 86 (McKinney 1988).) However, the act specifically defines the \"judiciary” as \"the courts of the state.” (N.Y. Pub. Off. Law § 86(1) (McKinney 1988).) Under the Illinois act, the judiciary is exempt and, unlike in New York, is not narrowly defined. Here, the pretrial services agency was an arm of the court directly accountable to the chief judge. The records in question which they provided related to pending criminal proceedings in that they contained background data of persons charged with felonies who were on pretrial release. This information included pretrial bond evaluation, partial criminal history, comments on the participant, and notes from discussions with the participants. Accordingly, we find that the pretrial services agency performed a clearly judicial function, and thus the records sought by the plaintiffs were not subject to the disclosure requirements of the Information Act.\nThe plaintiff next argues that, even if the Information Act did not apply, it nevertheless had a right of access to the documents under the common law and the first amendment.\nWe disagree. Section 31 of the Pretrial Services Act provides:\n\"Information and records maintained by the pretrial services agency which has not been disclosed in open court during a court proceeding shall not be released by the pretrial services agency to any individual or organization, other than any employee of a Probation and Court Service Department, without the express permission of the interviewed or supervised person at or near the time the information is to be released. *** The principle of confidentiality shall not bar a pretrial services agency from making its data available for research purposes to qualified personnel, provided that no records or other information shall be made available in which individuals interviewed or supervised are identified or from which their identities are ascertainable.” (725 ILCS 185/31 (West 1992).)\nSection 7 of the Pretrial Services Act bestows a duty upon the pretrial services agency to monitor the local operations of the pretrial release system and maintain accurate records of program activities. (725 ILCS 185/7(e) (West 1992).) Under section 31 of the Act, those records are exempt from disclosure. We believe that the statutory exemption covers the request in the present case.\nThe plaintiff characterizes the documents as \"judicial records” and then cites cases involving the disclosure of exhibits or files presented in court proceedings. However, the case law makes a distinction between public access to materials submitted in open court and materials that are confidential and have not been submitted in open court. (See United States v. Corbitt (7th Cir. 1989), 879 F.2d 224, 228.) To the extent that any information requested by the plaintiffs was introduced into evidence in open court and is contained in a court file, the plaintiffs would be entitled to access to those documents through the circuit clerk’s office. It is uncontroverted that the circuit clerk has not denied the plaintiff access to court files. While the plaintiff could access the documents through the circuit clerk’s office provided the documents were in a court file, we note that those same documents in the hands of these particular defendants are specifically exempt from disclosure by statute. We are unable to hold that the defendants can waive the clear statutory requirement of confidentiality by their actions of previously disclosing the information in a court proceeding under court order. The plaintiff also cites People ex rel. Gibson v. Peller (1962), 34 Ill. App. 2d 372, a case involving the right to inspect school records prior to the passage of the Information Act. There, the court simply held that in the absence of a controlling statute the common law allows for the inspection of public records. Here, the records in question were judicial records, and the case law provides that such records are subject to disclosure only to the extent that they have been introduced into evidence in court.\nIn United States v. Corbitt (7th Cir. 1989), 879 F.2d 224, the court held that the press did not have a first amendment or common-law right of access to presentence reports. We find that the information in the instant case regarding the pretrial monitoring system was similar to the presentence reports involved in Corbitt. Moreover, the present case can even be viewed as more compelling than Corbitt because the instant case is controlled by a statute which exempts the information from disclosure. Furthermore, the EMS program was admittedly an incarceration system. Thus, there is a possibility that information regarding the specialized techniques of the system would jeopardize the security of the system itself if disclosed. Accordingly, we hold that the plaintiff did not have a common-law or first amendment right to the documents.\nOur resolution of the above issues makes it unnecessary for us to address the remaining issues raised by the parties because they have either been rendered moot by our decision or they are without merit.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Lake County with respect to its finding that the Information Act did not apply. However, we reverse the portion of the court’s judgment requiring the defendants to produce or disclose any of its documents relating to the EMS program.\nAffirmed in part; reversed in part.\nMcLAREN, P.J„ and HUTCHINSON, J., concur."}
{"dedup_key":"pre1996-135667","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"224 ill-app-3d 1059","case_name":"Moscardini v. County Officers Electoral Board of Du Page County","court_level":"Appellate","appellate_district":"2nd","year":1992,"county":null,"appellate_docket":"2-92-0174","circuit_docket":null,"published":1,"authoring_justice":"Dunn","statute":["OMA"],"exemptions_cited":[],"public_body":"County Officers Electoral Board of Du Page County","requesting_party":"Robert L. Moscardini","disposition":"reversed","relevance":"relevant","summary_source":"generated","summary":"The plaintiff challenged an electoral board's decision to remove his name from the ballot, alleging, among other things, that the board violated the Open Meetings Act by conducting deliberations in closed session. Although the court addressed the OMA claim, it ultimately reversed the board's decision on the merits regarding the validity of the nominating petitions.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=135667","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:05.370467","site_category":"Closed Sessions","date_decided":"1992-03-03","site_url":"/cases/pre1996-135667/","text_url":"/case-text/pre1996-135667.txt","full_text":"ROBERT L. MOSCARDINI, Plaintiff-Appellant, v. THE COUNTY OFFICERS ELECTORAL BOARD OF DU PAGE COUNTY et al., Defendants-Appellees.\nSecond District\nNo. 2—92—0174\nOpinion filed March 3, 1992.\nWOODWARD, J., dissenting.\nJames Bryan Sullivan, of Oak Brook, for appellant.\nThomas C. Kellegan, of Wheaton, and Patrick K. Bond and Mary E. Dickson, both of Schirott & Hervas, P.C., of Itasca, for appellees.\n\nJUSTICE DUNN\ndelivered the opinion of the court:\nPlaintiff, Robert Moscardini, appeals from a judgment of the circuit court of Du Page County in an action for judicial review of a decision of the County Officers Electoral Board of Du Page County (Board). The circuit court upheld the Board’s decision removing Moscardini’s name from the March 17, 1992, primary ballot for the office of Republican precinct committeeman for precinct 69 of York Township in Du Page County. Moscardini argues on appeal that the Board’s decision must be reversed because it was against the manifest weight of the evidence, it was reached during closed deliberations in violation of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.), and it results in illegal discrimination against disabled people who circulate nominating petitions. We reverse and order the Board to place plaintiff’s name on the primary ballot.\nPlaintiff submitted a nominating petition for the above office to the Board. The petition contained six sheets with a total of 75 signatures. Plaintiff’s wife, Geraldine, signed an affidavit at the bottom of each sheet which stated that each of the signatures was placed on the sheet in her presence, that the signatures are genuine and, to the best of her belief, the persons who signed the sheet were registered voters whose addresses were correctly set forth therein.\nDefendant, Mary Guardalabene, filed objections to plaintiff’s petition with the Board. The objection at issue here is that Geraldine Moscardini did not actually circulate the petition even though she signed the affidavit at the bottom of all six sheets. At the Board’s hearing on the objections, Guardalabene submitted affidavits from six individuals. Each of these affiants had signed a different sheet of plaintiff’s petition. Each affidavit states that the affiant did not sign plaintiff’s petition “in the presence of Geraldine C. Moscardini.”\nAt the same hearing plaintiff submitted an affidavit from Geraldine Moscardini which states as follows. Geraldine saw all of the signatories actually place their signatures on her husband’s petition. She was never more than 20 feet away from any of them at the time they signed the petition. Geraldine did not walk up to the front door of each voter’s residence with the petition because she has a degenerative bone disease which makes walking painful. Her son accompanied her and took the petition to some of the voters at their front doors; her husband did so with other voters; and a woman named Joyce Krempasky did so with others. At the hearing plaintiff submitted affidavits from each of these individuals which corroborated the statements in Geraldine’s affidavit.\nPlaintiff’s counsel argued at the hearing that although Geraldine did not carry the clipboard containing the petition and personally solicit each individual who signed the petition, she was present at the time of each signature within the meaning of section 7 — 10 of the Election Code (Code) (Ill. Rev. Stat. 1989, ch. 46, par. 7—10). In a written decision dated January 9, 1992, however, the Board concluded that plaintiff’s petition did not comply with section 7 — 10. The Board ruled that plaintiff’s name would not be placed on the primary ballot. Plaintiff sought judicial review of the Board’s ruling in the circuit court of Du Page County which upheld the decision in an order dated February 5,1992. Plaintiff now appeals.\nSection 7 — 10 of the Code (Ill. Rev. Stat. 1989, ch. 46, par. 7—10) states that at the bottom of each sheet of a nominating petition there must be a statement signed by a registered voter from the political subdivision in which the candidate seeks election. In this statement the affiant must certify “that the signatures on that sheet of the petition were signed in his presence, *** that the signatures on the sheet are genuine, and *** to the best of his knowledge and belief the persons so signing were at the time of the signing qualified voters of the political party for which a nomination is sought.” (Ill. Rev. Stat. 1989, ch. 46, par. 7—10.) This portion of section 7 — 10 of the Code has been strictly enforced by courts because the requirements contained therein are important safeguards against fraud in the nominating process. Fortas v. Dixon (1984), 122 Ill. App. 3d 697, 700.\nThe Board made no finding in its written decision that Geraldine Moscardini was not present when any of the signatures were placed on her husband’s petition. The Board stated in the decision that it had considered the affidavits submitted by plaintiff and Guardalabene. In paragraph two of the decision it stated that it had also considered “statements and admissions by the candidate’s counsel that the actual circulator was not Geraldine Moscardini, who was described by the af-fiants in the counter-affidavits submitted in her behalf as being physically unable to present the petition to voters.” In the next paragraph the Board concluded that plaintiff had “not complied with section 7— 10 of the Election Code requiring the circulator to swear that the signatures on the petition sheet were signed in her presence.”\nThe only “admission” of the candidate’s counsel to which the Board could have been referring was an admission that Geraldine did not physically hand the clipboard containing the petition to each voter who signed the petition. The Board’s decision therefore appears to be premised upon a belief that the person who signs the so-called circulator’s affidavit at the bottom of each sheet of a nominating petition must be the person who physically presented the sheet to each voter who signed it. Section 7 — 10 of the Code contains no such requirement. Instead the only requirement of that provision which is relevant to the objection we are considering here is that the person who signs the circulator’s affidavit must have been present when each signatory signed the sheet.\nIt has been held that the witnessing of a will was done “in decedent’s presence” when the decedent, who was 12 to 15 feet away, had ample opportunity to see the witness sign the attestation clause. (In re Estate of Guinane (1965), 65 Ill. App. 2d 193, 198.) If Geraldine’s affidavit is true, she not only had ample opportunity to see each of the signatories sign her husband’s petition, since she was standing no more than 20 feet away from any of them when they did so, but she also actually did see each of these individuals sign the petition. Therefore, under Estate of Guinane, the signatures were placed on the petition in Geraldine’s presence if her affidavit and the supporting affidavits are true.\nWe recognize that in Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201, the court stated that section 7 — 10 was violated when the circulator allowed persons to sign the names of family members who were not present “and when someone other than the affiant actually presented the petition to signers.” (Huskey, 156 Ill. App. 3d at 204.) In Huskey, however, the affiant who signed the circulator’s affidavit at the bottom of each sheet admitted that some of the names on the petition were not signed in her presence. (156 Ill. App. 3d 201.) Therefore we do not interpret Huskey as requiring that the person who signs the circulator’s affidavit be the person who physically presented the sheet to each signatory.\nTo the extent that Huskey does impose such a requirement we decline to follow it. The purpose of the portion of section 7 — 10 that we are considering is to prevent the filing of nominating petitions with fraudulent signatures. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 536.) Reading into section 7 — 10 of the Code a requirement that the person who signs the circulator’s affidavit be the one who physically presented the sheet to each signatory would do nothing to serve this purpose. The Board’s apparent conclusion that such a requirement exists is erroneous as a matter of law, and its decision must therefore be reversed. If Geraldine actually saw each of the signatories sign the petition, there was no violation of section 7 — 10 even if she did not physically present the petition to some of them.\nEven if the Board relied upon the six affidavits from petition signers who stated that they did not sign in the presence of Geraldine Moscardini, its decision must be reversed. These six affidavits, which were the only evidence submitted in support of Guardalabene’s objections, clearly constituted hearsay evidence. Although certain evidentiary rules may be relaxed in administrative hearings, the rule against hearsay is a fundamental rather than a technical rule. (Saal v. County of Carroll (1989), 181 Ill. App. 3d 327, 338.) In Saal, we held that when the only evidence presented to a county board regarding a certain charge against plaintiff was hearsay the charge should have been rejected by the Board. Saal, 181 Ill. App. 3d at 338.\nIn the case at bar, unlike Saal, plaintiff failed to object to the proffered hearsay evidence. Hearsay evidence which is admitted without objection may be considered and given its natural probative value. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 508.) Because these affidavits were controverted by those submitted on plaintiff’s behalf, however, their value is minimal.\nThe purpose of allowing judicial review of election board decisions is to provide a remedy for arbitrary decisions. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538.) A decision based solely upon controverted affidavits could be nothing but arbitrary, unlike a decision based upon conflicting witness testimony where there is an opportunity to determine which witnesses are more credible by observing their demeanors. There was no reasonable basis to support a conclusion that the objector’s affidavits were more credible than those submitted on plaintiff’s behalf. Furthermore, Geraldine’s affidavit and the other affidavits submitted by plaintiff contain specific factual statements establishing that she was present when each voter signed plaintiff’s petition. The objector’s affidavits only make the conclusional statement that the affiant did not sign the petition in Geraldine’s presence. Conclusional matter in affidavits is generally inadmissible. See Milwaukee Cheese Co. v. Cornerstone Inn, Inc. (1986), 142 Ill. App. 3d 840, 843.\nAccess to a position on the ballot is a substantial right which should not be lightly denied. (Welch v. Johnson (1992), 147 Ill. 2d 40, 47.) Therefore, even if the Board did rely upon the controverted, con-clusional affidavits submitted by the objector, its decision cannot stand.\nThe Board has moved to dismiss this appeal because of the expense and other difficulties that would result from adding plaintiff’s name to the ballot. We will not deny plaintiff a substantial right because the Board’s own erroneous decision will necessitate the reprinting of ballots. The motion is denied.\nIn light of our ruling it is not necessary to consider the other issues raised by plaintiff. For the reasons expressed herein, the Board’s decision and the order of the circuit court of Du Page County upholding it are reversed. Pursuant to our authority under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we order the Board to place plaintiff’s name on the March 17, 1992, primary ballot for the office which he seeks. Our mandate shall issue immediately upon the filing of this opinion.\nReversed.\nGEIGER, J., concurs.\n\nJUSTICE WOODWARD,\ndissenting:\nI respectfully dissent. The primary issue before us is whether the Board’s decision was against the manifest weight of the evidence. On administrative review, the findings and decision of the Board will not be overturned unless they are against the manifest weight of the evidence. Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201.\nThe documentary evidence submitted to the Board was as follows. Plaintiff filed six nominating petitions which contained 75 signatures. Each petition was signed by Geraldine Moscardini as circulator of same. At the hearing before the Board, Ms. Moscardini submitted a sworn affidavit which averred that, because she has a degenerative bone disease which makes stair climbing difficult, she enlisted the help of others to circulate plaintiff’s nominating petition. A number of affidavits confirmed the substance of Ms. Moscardini’s affidavit. Plaintiff also submitted the affidavit of Joyce Krempasky, which stated that she was accompanied by Ms. Moscardini because of Ms. Krem-pasky’s eye condition (macular degeneration). Due to this condition, she could not see exactly what the signers were writing on the subject petitions. Ms. Krempasky’s affidavit further averred that Ms. Moscardini watched the signers affix their signatures from a distance of 15 to 20 feet.\nDefense counsel conceded that Ms. Krempasky carried the clipboard on which the subject petitions were signed. She went to the signers’ front doors. Upon the signature being affixed to the petition, she carried the clipboard back to Ms. Moscardini and handed it to her.\nDefendant’s evidence consisted of six affidavits, several of which were signed by two people who lived at the same address. These affidavits, each of which related to a separate petition sheet, alleged that the affiants had not signed plaintiff’s nominating petition in the presence of Ms. Moscardini.\nFrom the evidence in this record, which is admittedly spare, the Board was entitled to find that Ms. Moscardini was not in the presence of the signers at the time their signatures were affixed to the petition; therefore, the petitions signed by her as circulator were not valid.\nFor these reasons, the Board’s decision is not against the manifest weight of the evidence."}
{"dedup_key":"pre1996-122873","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"143 ill-app-3d 370","case_name":"The Copley Press, Inc. v. The City of Springfield","court_level":"Appellate","appellate_district":"4th","year":1986,"county":null,"appellate_docket":"4-85-0629","circuit_docket":null,"published":1,"authoring_justice":"Green","statute":["FOIA"],"exemptions_cited":[],"public_body":"City of Springfield","requesting_party":"The Copley Press, Inc.","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the plaintiff did not have a First Amendment right to access the specific public records sought under the Freedom of Information Act. The appellate court reversed the trial court's judgment on the pleadings and remanded the case for further proceedings.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=122873","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:05.681199","site_category":"General Records Exemptions","date_decided":"1986-05-13","site_url":"/cases/pre1996-122873/","text_url":"/case-text/pre1996-122873.txt","full_text":"THE COPLEY PRESS, INC., Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD, Defendant-Appellant.\nFourth District\nNo. 4—85—0629\nOpinion filed May 13, 1986.\nRehearing denied June 12, 1986.\nRobert M. Rogers, Assistant Corporation Counsel, of Springfield, for appellant.\nBarber, Segatto, Hoffee, Hines & Edwards, of Springfield (Barry 0. Hines, R. Kurt Wilke, and Bernard G. Segatto III, of counsel), for appellee.\n\nJUSTICE GREEN\ndelivered the opinion of the court:\nOn May 24, 1985, plaintiff, the Copley Press, Inc., filed suit in the circuit court of Sangamon County alleging that defendant, city of Springfield, had refused to permit Bob Mahlburg, a reporter for the State Journal Register which plaintiff publishes, access to public records to which plaintiff was entitled pursuant to the terms of the Freedom of Information Act (FOIA) (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 201 et seq.). Plaintiff sought (1) declaratory relief as to its rights in the matter; (2) injunctive relief prohibiting defendant from interfering with its access to the records and mandating defendant to produce the records sought; and (3) attorney fees. Defendant answered admitting most of the basic factual allegations of the complaint but denying those which were more conclusory.\nDefendant filed a motion for summary judgment, and plaintiff filed a motion for judgment on the pleadings. On August 15, 1985, the court denied defendant’s motion for summary judgment and allowed plaintiff’s motion for judgment on the pleadings, mandating disclosure by defendant to plaintiff of the information requested by August 25, 1985. The court directed that its judgment be stayed should defendant “indicate an intention to appeal” the decision. On September 13, 1985, defendant filed a notice of appeal. We reverse and remand for further proceedings.\nPlaintiff’s motion for judgment on the pleadings was made pursuant to section 2 — 615(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615(e)). Such a motion may be allowed when the facts admitted by the pleadings entitle the movant to judgment. Oak Park National Bank v. Peoples Gas Light & Coke Co. (1964), 46 Ill. App. 2d 385, 197 N.E.2d 73.\nHere, the following facts were alleged and admitted by the pleadings and supporting documents: (1) On April 19, 1985, Mahlburg requested from defendant “any statements, letters or reports submitted [to defendant by the sheriff of Sangamon County] in reference to liquor license applications by Donald E. Jackson, Jr.”; (2) Jackson had applied for such a license in 1982; (3) defendant’s liquor license inspector then requested and received from the sheriff a list of any arrests or convictions of Jackson; (4) on April 26, 1985, the defendant notified Mahlburg that his request was denied because the records involved were exempt under sections 7(b), (c), and (d) of the FOIA. (Ill. Rev. Stat., 1984 Supp., ch. 116, pars. 207(b), (c), (d)); and (5) plaintiff then appealed the denial to Springfield Mayor J. Michael Houston who upheld the denial of the request for the reasons stated.\nOn review, defendant relies on the same claims of exemption as stated at the time it denied the information to plaintiff. No decisions of a court of review of this State passing upon the provisions of the FOIA have been called to our attention. Section 1 of the FOIA (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 201) states a public policy and legislative intent of entitling all persons “to full and complete information regarding the affairs of government and the official acts and policies of those who represent them.” This information is deemed necessary for the full discussion of public affairs, the “making [of] informed political judgments,” and the monitoring of government. Section 1 then states that the Act is not intended to “violate individual privacy” but further states that the “restraints” on access set forth in the Act should be “seen as limited exceptions.”\nSection 3(a) of the FOIA requires “[e]ach public body” to “make available to any person for inspection or copying all public records, except” as stated in section 7 of the FOIA (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 203(a)). Section 7 then lists the various exemptions, one of which we deem to be dispositive. Listed as an exemption is:\n“(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:\n* * *\n(iii) files and personal information maintained with respect to any applicant, registrant or licensee by any public body engaged in professional or occupational registration or licensure.” (Emphasis added.) Ill. Rev. Stat., 1984 Supp., ch. 116, pars. 207(b), (b)(iii).\nThe plaintiff does not dispute that the various subsections of section 7(b), including section 7(b)(iii), are per se exemptions. That is to say, any licensing information described in section 7(b)(iii) is exempt regardless of whether a showing is made that if it is disclosed, it will “constitute a clearly unwarranted invasion of personal privacy” unless proper consent is given. Accordingly, the only remaining question is whether a license to sell liquor is an “occupational license” within the meaning of section 7(b)(iii).\nSection 2 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 441) imposes a tax on “persons engaged in the business of selling tangible personal property at retail.” The tax has been defined as “a tax upon the occupation of selling at retail.” (Central Television Service, Inc. v. Isaacs (1963), 27 Ill. 2d 420, 426, 189 N.E.2d 333, 336.) Section 4 — 1 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 110) authorizes cities to license for the “sale at retail of alcoholic liquor.” (Emphasis added.) If the sale at retail is deemed to be an occupation, then the sale of alcoholic liquor at retail would seem to be an occupation and the licensing for the sale of alcoholic liquor at retail would appear to be “occupational *** licensure” within the meaning of section 7(b)(iii) of FOIA.\nA city liquor license has been described as being “issued to specific premises for purposes of operating a business.” (Goode v. Thomas (1975), 31 Ill. App. 3d 674, 676, 334 N.E.2d 300, 303.) Plaintiff maintains that because of the restrictions of liquor licenses to a particular place of business, it is not a license of an occupation. However, section 6 — 1 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 119) describes the liquor license as “purely a personal privilege.” Section 6 — 2 of that Act (Ill. Rev. Stat. 1983, ch. 43, par. 120) prohibits issuance of liquor licenses to certain types of persons or entities, and sections 6 — 2(9) and (10) thereof prohibit issuance to partnerships or corporations, respectively, when persons having certain types of close connection with those entities would themselves be ineligible to be licensed to sell liquor at retail. Any person who sells alcoholic liquor without a license commits a crime. (Ill. Rev. Stat. 1983, ch. 43, par. 183.) The format for licensing focuses on the type of people who -will be engaged in the operating of the liquor business at retail. We conclude that in issuing the license, the city is licensing an occupation.\nWe recognize that the policy of FOIA is to construe its provisions to the end of enabling persons to obtain “full and complete” information concerning the operation of government as set forth in section 1 of FOIA (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 201) and the public policy of “liberality in the right to examine public records.” (Weinstein v. Rosenbloom (1974), 59 Ill. 2d 475, 482, 322 N.E.2d 20, 24.) However, section 1 also gives significance to individual privacy. As we have indicated, section 7(b) describes certain types of information the dissemination of which would constitute “a clearly unwarranted invasion” of that privacy (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 207(b)), and section 7(b)(iii) describes information concerning an applicant for an occupational license as such information the privacy of which is to be protected.\nWe do not see how the fact that the liquor license grants authority to engage in a particular activity at a particular location distinguishes the information obtained for that purpose from information obtained in regard to a person who wishes to practice medicine, law, dentistry, nursing, or engineering, or to pursue the occupation of a plumber, electrician, or realtor. The health and welfare is concerned with the type of people engaged in the sale of liquor, but similar or greater concerns exist as to those who practice medicine, dentistry, or nursing. The integrity of lawyers, engineers, and realtors is of as great importance as that of one selling intoxicating liquor.\nWe hold that the plain language of FOIA exempts the information sought here from the requirement of disclosure.\nPlaintiff maintains that if FOIA is interpreted, as we have interpreted it, to permit the defendant to withhold the information sought, the Act violates its first amendment news-gathering rights and those of the public to be adequately informed, citing Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613, Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814, Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 56 L. Ed. 2d 1, 98 S. Ct. 1535, and Branzburg v. Hayes (1972), 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646. None are analogous to the situation here.\nGlove and Richmond concern the right of media representatives to be present at ongoing criminal trials. The Globe court explained that the right to such access to court proceedings was grounded in a tradition of accessibility and the need to permit public scrutiny of the judicial process. There is no such tradition of accessibility to applications for licenses and less need to permit public scrutiny of the background of people receiving licenses. Landmark concerned an attempted prosecution for publication of information concerning a matter pending before a commission, and Branzburg concerned the rights of newspaper reporters to refuse to testify before a grand jury respecting the reporter’s confidential sources of information. On the other hand, in Houchins v. KQED (1978), 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct. 2588, the court held that the press had no right superior to that of the public to enter a jail and gather information about inmates and the internal condition of the jail.\nPlaintiff has not presented any precedent for a determination that it had a first amendment right to access to the information it sought here.\nThe judgment on the pleadings entered in favor of plaintiff is reversed. The cause is remanded to the circuit court of Sangamon County for further proceedings.\nReversed and remanded.\nMORTHLAND and SPITZ, JJ., concur."}
{"dedup_key":"pre1996-129020","dedup_key_type":"pre1996_caselaw_access_project","neutral_citation":"180 ill-app-3d 1084","case_name":"Margolis v. Director of the Department of Revenue","court_level":"Appellate","appellate_district":"1st","year":1989,"county":null,"appellate_docket":"1-88-1413","circuit_docket":null,"published":1,"authoring_justice":"Freeman","statute":["FOIA"],"exemptions_cited":["7(1)(b)"],"public_body":"Illinois Department of Revenue","requesting_party":"Irving Margolis","disposition":"reversed_in_part","relevance":"relevant","summary_source":"generated","summary":"The court held that the trial court failed to perform the necessary balancing test to determine if the requested business registration information constituted a clearly unwarranted invasion of personal privacy under the FOIA exemption. Consequently, the appellate court reversed the summary judgment and remanded the case for the trial court to properly address the privacy balancing issue.","best_text_source":"foia_caselaw_pre1996.jsonl#rowid=129020","text_quality":"native","splice_suspect":0,"in_suspect_folder":0,"enriched_at":"2026-07-13T18:19:05.681410","site_category":"General Records Exemptions","date_decided":"1989-03-15","site_url":"/cases/pre1996-129020/","text_url":"/case-text/pre1996-129020.txt","full_text":"IRVING MARGOLIS, Plaintiff-Appellee, v. THE DIRECTOR OF THE DEPARTMENT OF REVENUE, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1—88—1413\nOpinion filed March 15, 1989.\nNeil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellant.\nBernard M. Ellis, of Chicago, for appellee.\n\nPRESIDING JUSTICE FREEMAN\ndelivered the opinion of the court:\nPlaintiff, Irving Margolis, filed a complaint for a writ of mandamus, declaratory and injunctive relief requiring the Director of the Illinois Department of Revenue (hereinafter collectively defendant), to disclose to plaintiff the business names and addresses of applicants for certificates of registration to engage in retail sales in Cook County, as required under section 2a of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 441a). Defendant had denied the request for that information on the ground that it was exempt from disclosure under section 7(b)(iv) of the Freedom of Information Act (Illinois FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 206). The trial court denied defendant’s motion to dismiss the complaint and granted plaintiff’s motion for summary judgment. Defendant appeals only the grant of plaintiff’s motion.\nIn his request for the subject information, plaintiff expressed an interest in conducting a pilot study of “the economic impact of various factors” upon the rate of new business formation in Cook County, divided by zip codes. Plaintiff proposed to measure the rate by applications for certificates of registration. Plaintiff requested that the information be updated on a weekly basis. Finally, plaintiff opined that the information learned from the study would be of benefit to the general public if he and those involved with him were able “to find valid correlations between the variable factors.”\nAt the hearing on defendant’s motion to dismiss and plaintiff’s motion for summary judgment, the trial court determined that the same question controlled both motions. That issue was whether the names and addresses of applicants for certificates of registration fell within the exemptions to the obligation to disclose information under the Illinois FOIA provided in sections 7(b)(iii) and (b)(iv). The court determined that the requested information did not fall within either of those exemptions and accordingly denied defendant’s motion and granted plaintiff’s.\nThe issue before us is thus whether the names and addresses of applicants for certificates of registration from defendant are either “personal information” or “information” as those terms are used in section 7 of the Illinois FOIA, the relevant portions of which provide:\n“The following shall be exempt from inspection and copying:\n(b) [information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. ***\nInformation exempted under this subsection (b) shall include but is not limited to:\n* * *\n(iii) files and personal information maintained with respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline;\n(iv) information required of any taxpayer in connection with the assessment or collection of any tax unless disclosure is otherwise required by State statute ***.” Ill. Rev. Stat. 1987, ch. 116, par. 207.\nOur research revealed no Illinois cases construing the terms “personal information” or “information” as used in section 7. Substantially the same philosophy of full disclosure with limited exceptions undergirds both the Federal Freedom of Information Act (Federal FOIA) (5 U.S.C. §552 (1982)) and the Illinois FOIA. (Compare Department of Air Force v. Rose (1976), 425 U.S. 352, 360-61, 48 L. Ed. 2d 11, 21, 96 S. Ct. 1592, 1599, with Ill. Rev. Stat. 1987, ch. 116, pars. 201, 207.) Moreover, section 552(b)(6) of the Federal FOIA is comparable in purpose and language to section 7 of the Illinois FOIA. As such, decisions construing the Federal FOIA, while not controlling, are relevant and helpful precedents in construing the Illinois FOIA. See Old Ben Coal Co. v. Human Rights Comm’n (1986), 150 Ill. App. 3d 304, 501 N.E.2d 920.\nSection 552(b)(6) exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. §552(bX6) (1982).) This exemption, commonly referred to as exemption 6, was intended by Congress to protect individuals from the injury and embarrassment that could result “from the unnecessary disclosure of personal information.” (United States Department of State v. Washington Post Co. (1982), 456 U.S. 595, 599, 72 L. Ed. 2d 358, 363, 102 S. Ct. 1957, 1960.) The Supreme Court in Washington Post Co. did not explicitly define the “personal information” which exemption 6 was intended to protect. However, we believe it implicitly did so in also noting that exemption 6 was intended to cover government records on an individual which could be identified as applying to that individual. Washington Post Co., 456 U.S. at 602, 72 L. Ed. 2d at 364, 102 S. Ct. at 1961.\nThe Federal FOIA thus exempts from disclosure personal information, i.e., information which could identify a particular individual, where disclosure would result in a clearly unwarranted invasion of personal privacy. Applying the Washington Post Co. definition of personal information to that term in section 7(b)(iii) and to “information required of a taxpayer” in section 7(b)(iv), we conclude that those provisions are concerned with information from which a particular individual can be identified.\nObviously, the names and addresses of applicants for certificates of registration from defendant identify particular individuals. That information thus meets the threshold requirement for exemption under sections 7(b)(iii) and (b)(iv). That is, as to persons who apply for, but do not receive, certificates of registration from defendant, it is personal information maintained with respect to them. As to persons who do receive certificates, it is also information required of a taxpayer in connection with the assessment or collection of a tax. In this regard, the fact that plaintiff did not request that defendant distinguish those applicants who do and who do not receive certificates of registration is irrelevant. Where certificates are issued, personal information maintained with respect to applicants becomes information required of a taxpayer. As such, it is exempt from disclosure under section 7(b)(iv) regardless of whether defendant would indicate that the person whom the information identifies is a taxpayer rather than a mere applicant for a certificate of registration.\nButtressing our conclusions is the treatment which Federal courts have given requests for names and addresses of particular individuals under the Federal FOIA since Washington Post Co. In Van Bourg, Allen, Weinberg & Roger v. National Labor Relations Board (9th Cir. 1984), 728 F.2d 1270, the plaintiff sought a list of the names and addresses of all employees who had been eligible to vote in a union representation election conducted by the defendant board. The court held that the list met the threshold requirement of exemption 6 of the Federal FOIA, i.e., it was a government record which contained information that applied to particular individuals. Van Bourg, 728 F.2d at 1273. Accord Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F. 2d 784, 786, cert. denied (1985), 471 U.S. 1053, 85 L. Ed. 2d 477, 105 S. Ct. 2112 (names and addresses of all persons applying to travel federally protected river in 1983); DiPersia v. United States R.R. Retirement Board (D. Conn. 1986), 638 F. Supp. 485, 489 (names and addresses of all Connecticut residents contributing to Federal Railroad Retirement Fund); Multnomah County Medical Society v. Scott (9th Cir. 1987), 825 F.2d 1410, 1413 (names and addresses of all medicare beneficiaries in Portland, Oregon, metropolitan area); Southern Utah Wilderness Alliance, Inc. v. Hodel (D.D.C. 1988), 680 F. Supp. 37, 38 (names and addresses of persons visiting seven national parks since January 1986).\nDefendant asserts that the information which plaintiff requested is per se exempt from disclosure under section 7(b). (Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 493 N.E.2d 127.) Copley Press held that once a determination is made that information falls within one of the specifically enumerated categories of section 7(b) there is no need to show that its disclosure would constitute a clearly unwarranted invasion of personal privacy. (Copley Press, 143 Ill. App. 3d at 372-73.) In view of City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, and the construction placed by the Federal courts upon the similarly worded exemption 6 of the Federal FOIA, we believe that the Copley Press court misconstrued section 7 of the Illinois FOIA.\nGalesburg Printing construed section 7(bXv) of the Illinois FOIA, dealing with information revealing the identity of persons filing complaints with government agencies. The court construed that section as exempting such information from disclosure only if the general requirement of section 7(b) of a clearly unwarranted invasion of privacy was met in the particular case at issue. It further held that this construction was consistent with the public policy behind the Illinois FOIA, as stated in section 1. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) Finally, it noted that the opposite construction would render the statute unconstitutional as an overbroad attempt to serve a compelling State interest. Galesburg Printing, 144 Ill. App. 3d at 226-28.\nUnder the Federal FOIA, “[w]hen disclosure of information which applies to a particular individual is sought from Government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.” (United States Department of State v. Washington Post Co. (1982), 456 U.S. 595, 602, 72 L. Ed. 2d 358, 364-65, 102 S. Ct. 1957, 1961-62.) To make that determination the Federal courts balance the public interests served by disclosure against the harm caused to privacy interests. (Department of Air Force v. Rose (1976), 425 U.S. 352, 372-73, 48 L. Ed. 2d 11, 27-28, 96 S. Ct. 1592, 1604-05; Getman v. National Labor Relations Board (D.C. Cir. 1971), 450 F.2d 670, 674.) Specifically, they balance four factors in the determination: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F.2d 784, 786, cert. denied (1985), 471 U.S. 1053, 85 L. Ed. 2d 477, 105 S. Ct. 2112; Multnomah County Medical Society v. Scott (9th Cir. 1987), 825 F.2d 1410, 1413.\nSection 7 of the Illinois FOIA employs substantially the same language and the same standard as section 552(b)(6) of the Federal FOIA. As such, we adopt what the Federal courts have held with respect thereto as applicable to the Illinois FOIA. In this case, the trial court ruled that the information plaintiff sought did not fall within either section 7(b)(iii) or section 7(b)(iv). Therefore, it did not determine whether disclosure would result in a clearly unwarranted invasion of personal privacy by balancing the appropriate factors. Neither the record nor the briefs of the parties are adequate for this court to make that determination. We will therefore remand this cause to allow the parties and the trial court to address that issue.\nLastly, we address defendant’s motion to strike plaintiff’s brief for failure to comply with the format requirements of Supreme Court Rule 344(b) (107 Ill. 2d R. 344) and for its inclusion of matter dehors the record. (See Silny v. Lorens (1979), 73 Ill. App. 3d 638, 392 N.E.2d 267.) As it is addressed to our discretion and as the record in this case is short and the facts uncomplicated, we deny defendant’s motion. Silny, 73 Ill. App. 3d at 643.\nFor all of the reasons stated herein, the order granting plaintiff’s motion for summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nMcNAMARA and WHITE, JJ., concur."}