                                  Illinois Official Reports

                                          Appellate Court



           Garlick v. Office of the Public Access Counselor, 2013 IL App (1st) 122444




Appellate Court              WARREN R. GARLICK, Plaintiff-Appellant, v. THE OFFICE OF
Caption                      THE PUBLIC ACCESS COUNSELOR, SARAH PRATT, in Her
                             Official Capacity as Public Access Counselor for the Illinois Attorney
                             General’s Office, and OAK PARK-RIVER FOREST HIGH
                             SCHOOL DISTRICT No. 200, Defendants-Appellees.



District & No.               First District, Third Division
                             Docket No. 1-12-2444



Filed                        December 31, 2013



Held                         An opinion of the Attorney General’s Public Access Counselor (PAC)
(Note: This syllabus         issued in response to plaintiff’s request after defendant school district
constitutes no part of the   denied plaintiff’s request for some unredacted public documents
opinion of the court but     found that the Freedom of Information Act allowed the redactions, and
has been prepared by the     when plaintiff sued the district and the PAC, the trial court held that
Reporter of Decisions        the PAC’s opinion was a nonbinding opinion subject to review only
for the convenience of       under the Administrative Review Law and dismissed plaintiff’s
the reader.)                 complaint on the ground that plaintiff had not met the applicable
                             standard for showing that the PAC erred, and on appeal, the appellate
                             court found that in the absence of a binding opinion, plaintiff could sue
                             the district directly without filing an administrative review action and
                             the dismissal was modified to make it a dismissal with prejudice of
                             only the claim against the PAC, and the cause was remanded to allow
                             plaintiff to amend the complaint to state a cause of action for
                             injunctive or declaratory relief against the district.
     Decision Under            Appeal from the Circuit Court of Cook County, No. 11-CH-7587; the
     Review                    Hon. Neil H. Cohen, Judge, presiding.


     Judgment                  Affirmed as modified.


     Counsel on                Warren R. Garlick, of River Forest, appellant pro se.
     Appeal
                               Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                               Solicitor General, and Clifford W. Berlow, Assistant Attorney
                               General, of counsel), for appellees Office of the Public Access
                               Counselor and Sarah Pratt.

                               Paul N. Keller and Mark R. Heinle, both of Ancel, Glink, Diamond,
                               Bush, DiCianni & Krafthefer, P.C., of Chicago, for appellee Oak
                               Park-River Forest High School District No. 200.



     Panel                     JUSTICE PUCINSKI delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Hyman and Justice Neville concurred in the
                               judgment and opinion.


                                              OPINION

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

¶2                                        BACKGROUND
¶3       On March 4, 2010, Garlick, a resident of River Forest, asked the District to give him copies
     of “All school monthly accounting statements reflecting charges incurred in connection with
     the disbursement vouchers reflecting payments to the law firm Ancel, Glink, Diamond, Bush,
     DiCianni & Krafthefer (Ancel Glink) for the last six months.” The District sent the requested
     documents, but it made significant redactions from the documents. In a letter accompanying
     the documents, the District wrote:
             “The redacted information is exempt from disclosure under the [FOIA] as it includes
             communications between the School District and an attorney representing the School
             District that would not be subject to discovery in litigation. Thus, the information is
             exempt from disclosure under Section 7(1)(m) of the [FOIA] and may be redacted by
             the School District. 5 ILCS 140/7(1)(m) [(West 2010)].”
¶4       Garlick asked the PAC to review the redactions. The District sent the PAC unredacted
     copies of the documents it sent to Garlick. On January 25, 2011, the PAC sent Garlick and the
     District a letter in which the PAC said:
                  “Section 3(a) of FOIA (5 ILCS 140/3(a) [(West 2010)]) 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.’ Under Section 1.2 of
             FOIA (5 ILCS 140/1.2 [(West 2010)]), ‘[a]ll records in the custody of a public body are
             presumed to be open to inspection and copying.’ This section further states that ‘[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.’ (Emphasis added.)
                  Upon review of the unredacted copy of the legal bills, this Office concludes that
             [the District] has met its burden and that the information is exempt from disclosure
             under Section 7(1)(m). While we note that several of the redactions contain references
             to matters that were not underlying lawsuits, they do contain references to a particular
             subject matter. [The District] has relied upon the services of Ancel Glink to develop a
             course of action with regard to these subject matters. The underlying references to the
             particular subject matters would be comparable to the filing of a lawsuit ***.
                  Based on this analysis, we have determined that [the District] *** may withhold the
             documents.”
¶5       Garlick filed a lawsuit against the PAC and the District, seeking a judgment declaring that
     the FOIA required disclosure of the redacted information. The PAC moved to dismiss the
     claim against it, arguing that the PAC did not issue a binding opinion subject to judicial review
     and therefore Garlick should not have included the PAC as a party to the action for declaratory
     relief.
¶6       The circuit court found that the PAC reviewed the documents and the parties’ arguments,
     made findings of fact, and drew a legal conclusion that the District had not violated the FOIA.
     Although the court noted that the PAC did not label its letter as a binding opinion, the court
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       held that the letter qualified as a binding opinion, subject to review only under the
       Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). See 5 ILCS 140/11.5
       (West 2010).
¶7         Garlick amended his complaint to state a claim against the PAC and the District under the
       Administrative Review Law. The circuit court reviewed the PAC’s decision deferentially and
       held that Garlick did not meet his burden of creating in the court a “definite and firm
       conviction” that the PAC erred in finding the redacted information privileged. See AFM
       Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001).
       Garlick now appeals.

¶8                                             ANALYSIS
¶9         We first address the PAC’s argument that the circuit court lacked jurisdiction to decide the
       claim under the Administrative Review Law. The PAC claims that it issued a nonbinding letter
       rather than a binding opinion, and the courts can review only binding opinions of the PAC
       under the Administrative Review Law. The argument requires an interpretation of the FOIA
       provisions concerning review of a public body’s decision on a request for disclosure of
       documents.
¶ 10       Under section 9.5 of the FOIA, when a public body denies a request for a copy of a public
       document, the requester may ask the PAC to review the public body’s decision. The FOIA
       provides:
               “Unless the [PAC] *** decides to address the matter without the issuance of a binding
               opinion, the Attorney General shall examine the issues and the records, shall make
               findings of fact and conclusions of law, and shall issue to the requester and the public
               body an opinion in response to the request for review within 60 days after its receipt.
               The opinion shall be binding upon both the requester and the public body, subject to
               administrative review under Section 11.5
                   In responding to any request under this Section 9.5, the Attorney General may
               exercise his or her discretion and choose to resolve a request for review by mediation or
               by a means other than the issuance of a binding opinion. The decision not to issue a
               binding opinion shall not be reviewable.” 5 ILCS 140/9.5(f) (West 2010).
¶ 11       Under the FOIA, when the PAC issues a binding opinion, the parties can seek review only
       under the Administrative Review Law, with its limitations on the court’s review of the
       agency’s decision. See 735 ILCS 5/3-110 (West 2010); AFM Messenger Service, 198 Ill. 2d at
       394-95. If the PAC ends its involvement without issuing a binding opinion, the requester may
       seek relief under section 11 of the FOIA (5 ILCS 140/11(f) (West 2010)), which permits the
       requester to file an original lawsuit for an injunction or for declaratory relief. In such a
       proceeding, the court owes no deference to the PAC’s nonbinding resolution of the request.
       See 5 ILCS 140/11 (West 2010). The court cannot review the PAC’s decision not to issue a
       binding opinion. See 5 ILCS 140/9.5(f) (West 2010). Instead, when the PAC issues no binding
       opinion, the court can directly review the public body’s decision to deny the request for copies
       of public documents. See 5 ILCS 140/11 (West 2010).

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¶ 12        The District argues that the PAC here issued a binding opinion and the letter it sent cannot
       qualify as an attempt to resolve the dispute by “means other than the issuance of a binding
       opinion,” within the meaning of the FOIA. 5 ILCS 140/9.5(f) (West 2010). The District
       contends that the FOIA must mean to limit the “means other than the issuance of a binding
       opinion” to processes like mediation, because the statute specifies only mediation as an
       example of an acceptable means for resolving a dispute without issuing a binding opinion.
¶ 13        We disagree. The FOIA expressly grants the Attorney General discretion to decide to
       resolve an issue without issuing a binding opinion. The FOIA then establishes the method for
       review of the binding opinion or review of the public body’s decision in the absence of a
       binding opinion from the Attorney General. See 5 ILCS 140/11, 11.5 (West 2010). The
       Attorney General must participate in the review, as a defendant, if he or she issued a binding
       opinion, but the Attorney General need not participate in the review when he or she has not
       issued a binding opinion. See 5 ILCS 140/11, 11.5 (West 2010); 735 ILCS 5/3-107(a) (West
       2010). The FOIA does not limit the Attorney General’s discretion as to whether he or she
       wishes to participate in any further litigation concerning the request for public documents. The
       FOIA also does not limit the Attorney General’s discretion to decide whether to subject the
       ruling to the limited review permitted under the Administrative Review Law, or leave the court
       to decide the case under the standards for injunctions and declaratory judgment actions,
       without deference to the PAC’s findings.
¶ 14        The District candidly admits that no appellate decisions directly support its interpretation
       of the FOIA as forbidding the PAC from issuing letters as nonbinding resolutions of the issues
       presented. Two decisions appear to support the PAC’s interpretation of the FOIA.
¶ 15        In Brown v. Grosskopf, 2013 IL App (4th) 120402, Grosskopf asked Brown, the State’s
       Attorney for Livingston County, for certain public documents. Brown denied the request, and
       Grosskopf asked the PAC to review Brown’s decision. The PAC issued a letter directing
       Brown to disclose the documents to Grosskopf. Grosskopf, 2013 IL App (4th) 120402, ¶ 3.
       Brown sued for a judgment declaring that his office had no duty to disclose the documents. The
       trial court dismissed the complaint. The appellate court said:
                    “All parties acknowledge that the assistant Public Access Counselor’s letter is a
                nonbinding opinion. Indeed, section 9.5(f) of FOIA provides that the Attorney General
                may choose to issue an advisory opinion, rather than a binding opinion. 5 ILCS
                140/9.5(f) (West 2010) ***. [Citation.] *** However, a binding opinion is subject to
                administrative review. 5 ILCS 140/11.5 (West 2010) ***. Thus, in this case, all parties
                agree the Attorney General chose to issue a nonreviewable, nonbinding, and nonfinal
                opinion, leaving Grosskopf with merely the Attorney General’s advisory and
                unenforceable statement on the matter. The assistant Public Access Counselor’s letter
                has no legal effect.
                    With nothing more than an advisory or nonbinding opinion as support, Brown has
                no ripe action or controversy against Madigan or Grosskopf. A nonbinding or advisory
                opinion cannot be the basis for a lawsuit or subject to enforcement in a court of law. See
                5 ILCS 140/11.5 (West 2010) ***. Borrowing language from a similar controversy in
                the State of California, we find the effect of advisory opinions may be summarized as
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                follows: ‘[T]he Office of the Attorney General has a general obligation to prepare
                advisory opinions but none to participate as advisor or amicus curiae, let alone
                defendant, in every lawsuit questioning the meaning of a state law.’ State v. Superior
                Court, 229 Cal. Rptr. 74, 75-76 (Cal. Ct. App. 1986) ***.
                    ***
                    Our legislature has prescribed the proper procedure for challenging a public body’s
                denial of a FOIA request. ***
                    *** [U]pon Brown’s denial of Grosskopf’s request, Grosskopf had the right to file
                a lawsuit against Brown for injunctive or declaratory relief or request a second review
                from the Attorney General, which may have prompted the issuance of a binding
                opinion. Either way, at that point, the issue of whether Brown should produce or allow
                the inspection of the information requested would properly be before the court.”
                (Emphasis omitted.) Grosskopf, 2013 IL App (4th) 120402, ¶¶ 11-15.
¶ 16        In Fagel v. Department of Transportation, 2013 IL App (1st) 121841, Fagel sought
       computerized records of public data. The Department provided the information, but in a locked
       program that did not permit Fagel to select, sort or filter the data in ways that would make it
       more useful. Fagel, 2013 IL App (1st) 121841, ¶ 4. Fagel asked the PAC to review the
       Department’s response to his request under the FOIA. The PAC issued a letter stating that the
       Department had fully complied with Fagel’s request. Fagel then sued the Department in circuit
       court, and the circuit court entered a judgment in favor of Fagel, requiring the Department to
       provide Fagel the data in an unlocked format. Fagel, 2013 IL App (1st) 121841, ¶ 16. The
       appellate court said:
                    “Initially, we note that the parties do not dispute that the PAC’s September 12,
                2011 ruling, in which it stated that [the Department] had fully complied with the
                requirements of FOIA, was a ‘nonbinding’ opinion under the statute. Under FOIA,
                only binding opinions issued by the PAC in the office of the Illinois Attorney General
                are subject to administrative review under section 11.5 of FOIA. See 5 ILCS 140/11.5
                (West 2010) ***; see also 5 ILCS 140/9.5(f) (West 2010) ***. Because the PAC’s
                ruling in the case at bar was not a binding opinion under the statute, it was not subject to
                administrative review under section 11.5 of FOIA. Rather, section 11 of FOIA permits
                any person, such as Fagel here, who is denied access by a public body to inspect or
                copy any public record, to file an action for injunctive or declaratory relief in the circuit
                court. See 5 ILCS 140/11(a), (b) (West 2010).” Fagel, 2013 IL App (1st) 121841, ¶ 24.
¶ 17        In both Grosskopf and Fagel, the PAC considered arguments about disclosure and issued
       letters resolving the disclosure disputes, but the PAC did not make the letters binding opinions.
       In both cases, the parties and the courts accepted the PAC’s decision not to issue a binding
       opinion, and the courts found that the Administrative Review Law did not apply to the
       decisions concerning disclosure of public documents. We agree with the parties and the courts
       in Grosskopf and Fagel. When the PAC issues a letter that it does not characterize as a binding
       opinion concerning the dispute brought to the PAC, the parties cannot seek review under the
       Administrative Review Law. Instead, if the parties seek to litigate the issue further, they must
       either obtain a binding opinion from the Attorney General (see Grosskopf, 2013 IL App (4th)
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       120402, ¶ 15), or proceed under section 11 of the FOIA. 5 ILCS 140/11(a), (b) (West 2010);
       Fagel, 2013 IL App (1st) 121841, ¶ 24.
¶ 18        Finally, the District points out that the PAC did not clarify, in its letter, whether it intended
       to issue a binding opinion or a nonbinding letter. While the FOIA does not require the PAC or
       the Attorney General to specify whether it has issued a document as a binding opinion, we
       agree with the District that the PAC could clarify in all of its letters resolving disputes whether
       the PAC considers the letter a binding opinion or a nonbinding resolution of the issues. We
       recommend that the PAC could expressly identify all of its binding opinions as binding
       opinions subject to review only under the Administrative Review Law, and all of its
       nonbinding opinions as nonbinding and not subject to review.

¶ 19                                       CONCLUSION
¶ 20       Because the PAC issued a nonbinding opinion concerning the dispute between Garlick and
       the District, the Administrative Review Law does not apply to the dispute. We affirm the
       dismissal with prejudice of Garlick’s complaint against the PAC, but we modify the dismissal
       of Garlick’s complaint against the District to make it a dismissal without prejudice, and we
       permit Garlick on remand to amend his complaint as an action for an injunction or for
       declaratory relief under section 11 of the FOIA.

¶ 21       Affirmed as modified.




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