                                Illinois Official Reports

                                        Supreme Court



                            Nelson v. Kendall County, 2014 IL 116303




Caption in Supreme         LARRY NELSON et al., Appellants, v. KENDALL COUNTY et al.,
Court:                     Appellees.



Docket No.                 116303



Filed                      May 22, 2014



Held                       A state’s attorney’s office is a part of the executive branch which, as a
(Note: This syllabus public body as defined by the Freedom of Information Act, is subject
constitutes no part of the to its disclosure requirements—claim of exemption as part of the
opinion of the court but judiciary rejected.
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)



Decision Under             Appeal from the Appellate Court for the Second District; heard in that
Review                     court on appeal from the Circuit Court of Kendall County, the Hon.
                           Marcy Buick, Judge, presiding.



Judgment                   Reversed and remanded.
     Counsel on               Grant S. Wegner, R. Peter Grometer and Laura L. Malinowski, of
     Appeal                   Mahoney, Silverman & Cross, LLC, of Joliet, for appellants.

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

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

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

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

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


     Justices                 JUSTICE KARMEIER delivered the judgment of the court, with
                              opinion.
                              Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,
                              and Theis concurred in the judgment and opinion.


                                             OPINION

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

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¶2                                        BACKGROUND
¶3        Larry Nelson is an employee of various media companies, including WSPY radio in Plano,
     Illinois. On September 2, 2010, he submitted a request to Kendall County under this state’s
     Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) on behalf of his
     employers to inspect and copy all emails and attachments sent and received by two county
     employees from January 1, 2010, to January 31, 2010, via “county email and or internet.” The
     two employees in question, Michael Ready and Robert Dore, both worked as assistant State’s
     Attorneys.
¶4        By letter dated October 4, 2010, Kendall County’s Freedom of Information Officer advised
     Nelson that the records he requested “would be in the charge of the Office of the State’s
     Attorney for Kendall County” and advised him to submit his FOIA request directly to that
     office. Contact information for the State’s Attorney’s office and its FOIA officers was
     included in the letter.
¶5        Nelson challenged how his request was being handled. In an Oct. 5, 2010, letter to Kendall
     County’s FOIA officer, he charged that Kendall County Administrative Services was in
     possession of the documents he requested; that, by the State’s Attorney’s own admission,
     Kendall County’s policies on “use of computers, email, and personal use of county property”
     had been violated by the State’s Attorney’s office; and in light of that violation it was
     inappropriate for Kendall County to refer Nelson to the State’s Attorney’s office. Nelson
     demanded that Kendall County comply with his FOIA request within 5 days of the original
     request and requested a waiver of all fees on the grounds that the information requested was for
     public dissemination.
¶6        On October 6, 2010, Kendall County’s FOIA officer notified Nelson in writing that
     because there was “a need for consultation *** with another public body or among two or more
     components of a public body [which] have a substantial interest in the determination or in the
     subject matter of the request,” Kendall County would be unable to respond to the request
     within the 5-day period and would, instead, respond on or before October 14th.
¶7        When no response was forthcoming, Nelson submitted a request for review to the Public
     Access Counselor in the Office of the Illinois Attorney General, a procedure authorized by
     section 9.5 of the FOIA (5 ILCS 140/9.5 (West 2012)). The Attorney General’s office declined
     to take further action on the grounds that Nelson had previously submitted an identical request
     to the Kendall County State’s Attorney’s office; the State’s Attorney’s office had responded;
     and that although some information was denied in part on the grounds that it was exempt, the
     State’s Attorney had received approval for that decision and Nelson had not asked the Attorney
     General to review it.
¶8        After the Attorney General declined to take action, Nelson filed an action in circuit court
     against Kendall County and its administrator, Jeff Wilkins, to compel release of the emails and
     attachments sent and received by Ready and Dore during the period specified in Nelson’s
     FOIA request. The case was docketed as 10-MR-143. Kendall County and Wilkins moved to
     dismiss. Nelson thereupon filed an amended complaint which included as additional plaintiffs

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       his corporate employers, Nelson Multimedia, Inc.; WSPY AM, Inc.; WSPY, Inc.; and
       WSPY-TV, Inc. In addition, the Kendall County State’s Attorney sought and was granted
       leave to intervene in the case.
¶9         The State’s Attorney’s office filed a motion to dismiss the case pursuant to section 2-619 of
       the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)) contending that none of the
       named plaintiffs in the amended complaint had standing to bring it. A separate motion to
       dismiss was brought by Jeff Wilkins. As grounds for his motion, Wilkins argued that none of
       the substantive allegations of the amended complaint were directed against him and that, in any
       case, he could not be held liable under the FOIA because the Act applies only to “public
       bodies” and does not extend to individuals like him who merely work for public bodies. In
       addition, a joint motion to dismiss was filed by Kendall County and Wilkins raising the same
       standing arguments asserted in the motion to dismiss filed by the State’s Attorney.
¶ 10       In an order filed November 17, 2011, the circuit court granted Wilkins’ motion to dismiss
       and dismissed him from the case. In a separate order filed the same day, it took under
       advisement the motions to dismiss for lack of standing asserted by Kendall County and the
       State’s Attorney’s office. Those motions were subsequently denied, and no further question
       regarding plaintiffs’ standing has been raised.
¶ 11       While the litigation proceeded, Nelson submitted a new FOIA request to the State’s
       Attorney’s office seeking the same emails that were the subject of his request to Kendall
       County itself, plus emails from the same time period from two additional members of the
       State’s Attorney’s office, including the State’s Attorney himself. The request excluded any
       emails the subject of which was “limited only to discussions with law enforcement personnel
       with relations to pending cases or investigations,” or “limited only to discussions with defense
       counsel in pending cases,” or “limited to correspondence with county board members or
       elected county officials.”
¶ 12       Shortly after the State’s Attorney’s office received Nelson’s request, it denied the request
       in its entirety on the grounds that State’s Attorneys are part of the judicial branch of State
       government and, as such, are exempt from the provisions of the FOIA. The denial letter went
       on to state that this was the third request Nelson had made for the same documents; that despite
       the fact that it was exempt from the FOIA, and with certain redactions approved by the
       Attorney General’s office, it had previously furnished over 1,000 pages of emails to him; that
       he had been given a detailed index of all records that could not be produced; and that if there
       was a particular email and/or attachment that he had not yet received and would like to review,
       he should please let the office know and it would determine whether it could be disclosed to
       him.
¶ 13       After receiving this response, Nelson filed a second FOIA action in circuit court, this one
       directed solely against the State’s Attorney’s office. It was docketed as 11-MR-146. The
       State’s Attorney moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure
       (735 ILCS 5/2-619 (West 2010)). As grounds for that motion, the State’s Attorney repeated his
       claim that his office was part of the judicial branch and, as such, was not subject to the FOIA’s
       provisions. He further argued that notwithstanding the fact that his office was outside the reach
       of the Act, it had voluntarily produced approximately 2,700 pages of the requested emails to
                                                     -4-
       him, withholding only documents the State’s Attorney was ethically prohibited from
       disclosing, and the cause of action should therefore be dismissed as moot.
¶ 14        In response, Nelson contended that under Illinois law, the State’s Attorney is an executive
       rather than a judicial officer; that the State’s Attorney’s office constitutes a public body within
       the meaning of the FOIA and is therefore subject to the Act’s disclosure requirements; and that
       through its public pronouncements and staffing (it has three designated FOIA officers), the
       State’s Attorney’s office has acknowledged that it is subject to the provisions of the law and
       should be precluded from claiming otherwise here. Nelson further contended that his cause of
       action is not moot because, while some documents have been furnished, the State’s Attorney
       has continued to withhold others without properly showing that they fall within one of the
       FOIA’s narrow exemptions to disclosure.
¶ 15        At the same time the State’s Attorney’s office was seeking dismissal in the11-MR-146
       case, it filed a second motion to dismiss pursuant to section 2-619 in 10-MR-143, the
       still-pending Kendall County case where it appeared as an intervenor. The grounds for its
       motion in 10-MR-143 were the same as those asserted for dismissal in 11-MR-146, namely,
       that the State’s Attorney’s office belongs to the judicial branch and is therefore outside the
       reach of our state’s FOIA and, in any case, that Nelson’s claim for violation of the FOIA
       should be dismissed as moot.
¶ 16        Kendall County also filed a second motion to dismiss based on section 2-619 in
       10-MR-143. In its motion, it asserted: (1) that it did not actually deny plaintiffs’ FOIA request,
       but rather responded within the time and in the manner required by law; (2) that the records
       requested by plaintiffs were not Kendall County’s so Kendall County cannot be said to have
       denied access to any of its records in violation of the law; and (3) that because the State’s
       Attorney’s office provided plaintiffs with approximately 2,700 pages of requested emails and
       only withheld documents it was ethically prohibited from disclosing, plaintiffs cannot
       establish that they were ever denied access to the records they sought.
¶ 17        On May 11, 2012, the circuit court filed separate written orders granting the motions to
       dismiss in both 10-MR-143 and 11-MR-146. As grounds for dismissing the cause of action
       against Kendall County in 10-MR-143, the court held that the records requested by plaintiffs
       were not, in fact, county records, but rather records of the State’s Attorney’s office, and that
       Kendall County could not be compelled to turn over the State’s Attorney’s records where the
       State’s Attorney objected to their disclosure. With respect to dismissal of the causes of action
       against the State’s Attorney’s office, the court relied on the same reasoning in both 10-MR-143
       and 11-MR-146: the State’s Attorney’s office belongs to the judicial branch of government and
       is therefore not subject to the provisions of the FOIA.
¶ 18        Nelson and the other plaintiffs appealed the judgments in both cases. On those appeals,
       which the appellate court consolidated, plaintiffs did not challenge the circuit court’s
       determination that Kendall County could not be compelled to turn over emails generated by the
       State’s Attorney’s office. Their sole contention was that the circuit court erred in ruling that the
       State’s Attorney’s office was beyond the reach of the FOIA because it belongs to the judicial
       branch. 2013 IL App (2d) 120635, ¶ 8.

                                                    -5-
¶ 19       In addressing plaintiffs’ argument, the appellate court considered as dispositive the fact
       that aspects of the office of State’s Attorney were addressed in the judicial article of the Illinois
       Constitution (Ill. Const. 1970, art. VI). 2013 IL App (2d) 120635, ¶¶ 17-19. The appellate
       court purported to refrain from characterizing the office of State’s Attorney as belonging to
       either the executive or the judicial branch, or from depicting the powers and functions of the
       State’s Attorney as either executive or judicial. Based on the judicial article’s references to the
       office, however, it believed it could not “infer a legislative intent to include State’s Attorneys
       within the [FOIA’s] definition of ‘public body’ absent a clear expression to that effect.” Id.
       ¶¶ 21-22. Finding no such clear expression, it held that “the State’s Attorney is not a ‘public
       body’ subject to the [FOIA].” It therefore affirmed the circuit court’s judgments dismissing
       plaintiffs’ claims under the Act. Id. ¶ 24.
¶ 20       Plaintiffs petitioned this court for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)),
       arguing that the circuit and appellate courts erred in concluding that State’s Attorneys are not
       subject to the FOIA. We granted their petition. We also allowed the Illinois Broadcasters
       Association, the Illinois Press Association, the Better Government Association, and the
       Attorney General of Illinois to file friend of the court briefs in support of plaintiffs. Ill. S. Ct. R.
       345 (eff. Sept. 20, 2010). In addition, we permitted the State’s Attorneys of Cook and La Salle
       Counties and the Illinois State’s Attorneys Association to file a friend of the court brief in
       support of Kendall County and the Kendall County State’s Attorney. Id.

¶ 21                                             ANALYSIS
¶ 22        Whether the office of State’s Attorney is a “public body” within the meaning of the FOIA
       is a matter of statutory construction. Statutory construction presents a question of law which
       we review de novo. Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 552
       (2009). De novo review is also appropriate because plaintiffs’ claims in these two consolidated
       cases were dismissed in the context of motions to dismiss filed under section 2-619 of the Code
       of Civil Procedure. Sheffler v. Commonwealth Edison Co., 2011 IL 110166, ¶ 23.
¶ 23        The principles governing our review are well established. When construing a statute, the
       cardinal rule, to which all other rules and canons are subordinate, is to ascertain and give effect
       to the true intent of the legislature. The best evidence of legislative intent is the language used
       in the statute itself, which must be given its plain, ordinary and popularly understood meaning.
       The statute should be evaluated as a whole, with each provision construed in connection with
       every other relevant section. If the language of the statute is clear, it must be given effect
       without resort to other interpretive aids. People ex rel. Director of Corrections v. Booth, 215
       Ill. 2d 416, 423 (2005).
¶ 24        The FOIA provides “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.” 5 ILCS 140/1
       (West 2010). The law explains that 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.” Id. To
       this end, the law states that “[i]t is a fundamental obligation of government to operate openly
                                                     -6-
       and provide public records as expediently and efficiently as possible in compliance with this
       Act.” Id.
¶ 25       The basic disclosure obligations governing governmental bodies are set forth in section 3
       of the Act, which provides 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 2010). For purposes of the statute, “public records” means:
               “all records, reports, forms, writings, letters, memoranda, books, papers, maps,
               photographs, microfilms, cards, tapes, recordings, electronic data processing records,
               electronic communications, recorded information and all other documentary materials
               pertaining to the transaction of public business, regardless of physical form or
               characteristics, having been prepared by or for, or having been or being used by,
               received by, in the possession of, or under the control of any public body.” 5 ILCS
               140/2(c) (West 2010).
       “Public body,” in turn, is defined as:
               “all 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, any subsidiary bodies of any of the foregoing including but
               not limited to committees and subcommittees thereof, and a School Finance Authority
               created under Article 1E of the School Code.” 5 ILCS 140/2(a) (West 2010).
¶ 26       When assessing whether access to records should be permitted, the presumption is that all
       records in the custody or possession of a public body are open to inspection or copying. 5 ILCS
       140/1.2 (West 2010); Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d
       456, 462 (2003). Although there are exceptions to disclosure, “[r]estraints on access to
       information, to the extent permitted by [the FOIA], are limited exceptions to the principle that
       the people of this State have a right to full disclosure of information relating to 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 the provisions of the
       FOIA “shall be construed in accordance with this principle.” 5 ILCS 140/1 (West 2010). This
       means that the exceptions to disclosure set forth in the Act are to be read narrowly (Illinois
       Education Ass’n, 204 Ill. 2d at 463), and “[a]ny public body that asserts that a record is exempt
       from disclosure has the burden of proving by clear and convincing evidence that it is exempt”
       (5 ILCS 140/1.2 (West 2010)).
¶ 27       Throughout these proceedings, the State’s Attorney’s office of Kendall County has
       contended that it cannot be compelled to provide the documents sought by plaintiffs because it
       does not qualify as a “public body” within the meaning of the FOIA. Although the circuit and
       appellate courts were persuaded by this theory, we do not believe that it can be squared with
       the law. As we have just noted, section 2(a) of the Act specifically states that “public body”
       includes all executive bodies of the State. 5 ILCS 140/2(a) (West 2010). State’s Attorneys
       exercise executive powers, and the office of State’s Attorney is considered to be part of the
       executive branch of State government. People ex rel. Daley v. Suria, 112 Ill. 2d 26, 37 (1986);
       see People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 479 (2004); In re Application of the
                                                     -7-
       County Collector for Delinquent Taxes, for at Least Five Years Prior to 1987, 155 Ill. 2d 520,
       531 (1993); Office of the Lake County State’s Attorney v. Human Rights Comm’n, 235 Ill. App.
       3d 1036, 1041-42 (1992). This was well established at the time the General Assembly enacted
       Public Act 83-1013 (eff. July 1, 1984), creating the Freedom of Information Act. See People ex
       rel. Daley v. Moran, 94 Ill. 2d 41, 45 (1983); People v. Thompson, 88 Ill. App. 3d 375, 377
       (1980); People v. Vaughn, 49 Ill. App. 3d 37, 39 (1977); People v. Stinger, 22 Ill. App. 3d 371,
       373 (1974); People v. Rotramel, 5 Ill. App. 3d 196, 199 (1972); People v. Baron, 130 Ill. App.
       2d 588, 591 (1970). We presume that the legislature acted with knowledge of this existing case
       law. Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25. Accordingly, because the office of
       State’s Attorney is, and has long been recognized to be, an executive body of the State, we
       believe that the legislature intended for such offices to fall within the FOIA’s definition of a
       “public body.” 5 ILCS 140/2(a) (West 2010). As public bodies, State’s Attorney’s offices must
       make their public records available for inspection and copying as required by the Act. 5 ILCS
       140/3(c) (West 2010). Nothing in the text of the statute supports a contrary interpretation.
¶ 28        That State’s Attorneys’ offices qualify as public bodies subject to the FOIA is no revelation
       to the Kendall County State’s Attorney. Indeed, the materials before us show that the office
       had previously accepted and processed a FOIA request from Nelson, taking care to obtain
       review and approval from the Attorney General’s office to withhold certain documents as
       exempt pursuant to the provisions of the law. For purposes of this litigation, however, it has
       taken the position that it should not be subject to the FOIA on the theory that State’s Attorneys
       are actually part of the judicial branch. This theory is untenable.
¶ 29        It is true that our appellate court has held that because the FOIA does not include the
       judicial branch in its listing of public bodies, the judiciary is exempt from the statute’s
       provisions. Copley Press, Inc. v. Administrative Office of the Courts, 271 Ill. App. 3d 548,
       553-54 (1995). It is also the case that the exemption for the judicial branch has not been limited
       to actual courts. It has been extended to include court-affiliated entities which perform judicial
       functions, such as pretrial services (id.) and nonjudicial components of the judicial branch,
       such as the clerks of the courts (Newman, Raiz & Shelmadine, LLC v. Brown, 394 Ill. App. 3d
       602, 606 (2009). There is no sense, however, in which State’s Attorneys can be regarded as
       part of the judiciary or the judicial branch.
¶ 30        The only connection State’s Attorneys have with the judiciary is that the method of their
       selection, the qualifications for the office, and the compensation they receive are addressed in
       the final section of the judicial article of the Illinois Constitution (Ill. Const. 1970, art. VI,
       § 19). We have held that inclusion of State’s Attorneys in this part of the Constitution means
       that they are not subject to the particular provisions of the executive article of the Constitution
       (Ill. Const. 1970, art. V) governing changes in compensation. Ingemunson v. Hedges, 133 Ill.
       2d 364, 370 (1990). We have never suggested, however, that the office of State’s Attorney is in
       any way part of the judiciary.
¶ 31        To characterize it as such would be incompatible with the preceding 18 sections of the
       judicial article, which vest all judicial power “in a Supreme Court, an Appellate Court and
       Circuit Courts” (Ill. Const. 1970, art. VI, § 1) and set forth the organization, composition,
       jurisdiction, supervision and administration of those courts (Ill. Const. 1970, art. VI, §§ 2-18).
                                                    -8-
       Such a characterization would also require that we jettison the substantial and well-established
       body of case law set forth earlier in this opinion which holds that State’s Attorneys exercise
       executive powers, and that the office of State’s Attorney is part of the executive branch of State
       government. This we will not do.
¶ 32       In affirming the dismissal of plaintiffs’ actions on the theory that the State’s Attorney’s
       office was outside the reach of the FOIA, the appellate court in this case found significance in
       Public Act 96-900 (eff. May 28, 2010), which amended section 3 of the State’s Attorneys
       Appellate Prosecutor’s Act (725 ILCS 210/3 (West 2012)) to state that the office of the State’s
       Attorneys Appellate Prosecutor was “a judicial agency of state government” rather than simply
       “an agency of state government” as it had previously been characterized. Putting aside the
       basic question of whether the General Assembly has the authority to expand the definition of
       the judiciary without contravening the provisions of the judicial article or violating principles
       of separation of powers, we believe that the appellate court’s reliance on Public Act 96-900
       was misplaced. That statute pertains solely to the agency governing appellate prosecutors. It
       has no bearing whatever on the legal status of the office of State’s Attorney, nor does it purport
       to alter in any way the obligations of State’s Attorneys under the FOIA, the statute before us
       here.
¶ 33       As we have explained, at the time the FOIA was enacted, as now, the case law consistently
       recognized that the office of State’s Attorney was part of the executive branch of State
       government. Nothing in the text of the Act suggests that when the legislature imposed a duty of
       disclosure on executive bodies of State government, it meant anything other than the
       established and generally recognized meaning of that term, which included the office of State’s
       Attorney. To reach a contrary conclusion based on unrelated legislation enacted over a quarter
       century later and involving a different governmental body has no support in established
       principles of statutory construction and is incompatible with the FOIA’s presumption in favor
       of disclosure.

¶ 34                                         CONCLUSION
¶ 35       The FOIA applies to the office of State’s Attorney. Plaintiffs’ actions against the Kendall
       County State’s Attorney’s office should not have been dismissed on the grounds that it does
       not. For the foregoing reasons, the judgment of the appellate court affirming dismissal of those
       actions is reversed, and this cause is remanded for further proceedings.

¶ 36      Reversed and remanded.




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