                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Brown v. Grosskopf, 2013 IL App (4th) 120402




Appellate Court             THOMAS J. BROWN, State’s Attorney of Livingston County, Plaintiff-
Caption                     Appellant, v. MATTHEW E. GROSSKOPF and LISA MADIGAN,
                            Attorney General of the State of Illinois, Defendants-Appellees.



District & No.              Fourth District
                            Docket No. 4-12-0402


Rule 23 Order filed         February 13, 2013
Rule 23 Order
withdrawn                   March 18, 2013
Opinion filed               February 13, 2013


Held                        The dismissal of the State’s Attorney’s complaint seeking a declaration
(Note: This syllabus        that the State’s Attorney’s office is not a “public body” for purposes of
constitutes no part of      the Freedom of Information Act was affirmed by the appellate court on
the opinion of the court    the ground that no controversy existed, since the complaint was based on
but has been prepared       a nonbinding opinion letter from the Attorney General’s Public Access
by the Reporter of          Counselor and the issue of whether the State’s Attorney’s office is a
Decisions for the           “public body” under the Act was not properly before the court.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Livingston County, No.11-MR-41; the
Review                      Hon. Stephen R. Pacey, Judge, presiding.



Judgment                    Affirmed.
Counsel on                 Seth Uphoff (argued), State’s Attorney, of Pontiac (Randy A. Yedinak,
Appeal                     Assistant State’s Attorney, of counsel), for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Jane Elinor Notz (argued), Assistant Attorney
                           General, of counsel), for appellee Lisa Madigan.

                           Donald M. Craven and Esther J. Seitz, both of Donald M. Craven, P.C.,
                           of Springfield, for appellee Matthew E. Grosskopf.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Harris concurred in the judgment
                           and opinion.




                                            OPINION

¶1          Following a March 2012 hearing, the trial court granted defendant Attorney General of
        the State of Illinois Lisa Madigan’s motion to dismiss, dismissing with prejudice plaintiff
        Livingston County State’s Attorney Thomas J. Brown’s lawsuit for declaratory relief. Brown
        appeals, arguing the trial court erred by finding the State’s Attorney’s office is a “public
        body” within the meaning of the Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5
        (West 2010)) and, thus, subject to defendant Matthew E. Grosskopf’s request to produce
        certain documents in accordance with FOIA. We affirm, but do so on the basis that there
        exists no actual controversy, as Brown lacks standing to bring a declaratory judgment
        lawsuit.

¶2                                       I. BACKGROUND
¶3          On April 8, 2011, Brown filed a complaint for declaratory relief seeking a court
        determination as to whether the State’s Attorney’s office is a “public body” within the
        meaning of section 2 of FOIA (5 ILCS 140/2(a) (West 2010)). The complaint alleged that
        in February 2010, Grosskopf sent Brown’s office a FOIA request for documents, transcripts,
        materials, memos, and photographs relating to a 2001 murder trial held in Livingston County.
        Brown denied the request, believing his office was not a “pubic body” subject to a FOIA
        request. Grosskopf appealed the denial to the Attorney General’s Public Access Counselor
        (5 ILCS 140/9.5 (West 2010)), who, in March 2011, issued a letter finding that Brown’s
        office “must disclose the requested documents to Mr. Grosskopf subject to the permissible
        redactions.” Disputing the assistant Public Access Counselor’s opinion, Brown claims ethical

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       issues and the burden upon his office, coupled with concerns over the victim’s privacy,
       distinguish his office from a “public body” within the meaning of FOIA and that his office
       should not be required to produce the requested information. Brown alleged in his complaint
       that “an actual controversy exists among the parties” with respect to the interpretation of the
       definition of “public body.” 5 ILCS 140/2(a) (West 2010).
¶4         In July 2011, Grosskopf filed an answer to Brown’s complaint and a counterclaim for
       declaratory and injunctive relief to enforce the assistant Public Access Counselor’s “advisory
       opinion” and compel Brown to release the documents requested.
¶5         In September 2011, Madigan filed a motion to dismiss the complaint against her office
       pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
       2010)). In particular, she claimed Brown was unable to state a cause of action for declaratory
       relief since no actual controversy existed. She asserted that the letter from the assistant Public
       Access Counselor is a nonbinding and nonreviewable opinion, meaning it cannot be the basis
       for an actual legal controversy.
¶6         In March 2012, the trial court conducted a hearing on Madigan’s motion to dismiss and,
       after considering the arguments of counsel, took the matter under advisement. In April 2012,
       the court entered a written order, finding (1) Brown’s office is a “public body” within the
       meaning of FOIA, (2) Madigan had “most likely create[d] an actual controversy” by the
       issuance of the assistant Public Access Counselor’s letter, and (3) Brown’s complaint was
       “based entirely on the proposition that his office is not a public body.” Because the basis for
       Brown’s complaint was, according to the court, an inaccurate statement of the law, the court
       dismissed the complaint with prejudice. The court found no just reason to delay an appeal
       and ordered Grosskopf’s counterclaim stayed during the pendency of an appeal.
¶7         Brown filed a motion to reconsider and, after conducting a hearing on the matter, the trial
       court denied Brown’s motion. This appeal followed.

¶8                                         II. ANALYSIS
¶9         Brown appeals the dismissal of his complaint, arguing the trial court erred in (1) granting
       Madigan’s motion to dismiss and (2) finding the State’s Attorney’s office is a “public body,”
       subject to FOIA. A section 2-615 motion (735 ILCS 5/2-615 (West 2010)) attacks the legal
       sufficiency of a complaint. Carr v. Koch, 2012 IL 113414, ¶ 27.
               “A motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West
           2000)) attacks the legal sufficiency of a complaint by alleging defects on the face of the
           complaint. [Citations.] In ruling on a section 2-615 motion, a court must accept as true
           all well-pleaded facts in the complaint and all reasonable inferences therefrom.
           [Citations.] The critical inquiry is whether the allegations of the complaint, when
           construed in the light most favorable to the plaintiff, are sufficient to establish a cause
           of action upon which relief may be granted.” Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004).
       This court’s review of a section 2-615 dismissal is de novo. Carr, 2012 IL 113414, ¶ 27.
¶ 10       In order to bring a declaratory judgment action, “ ‘there must be an actual controversy
       between adverse parties, with the party requesting the declaration possessing some personal


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       claim, status, or right which is capable of being affected by the grant of such relief.’ ” Village
       of Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 420 (2005) (quoting
       Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 493 (1988)).
            “ ‘ “Actual” in this context does not mean that a wrong must have been committed and
            injury inflicted. Rather, it requires a showing that the underlying facts and issues of the
            case are not moot or premature, so as to require the court to pass judgment on mere
            abstract propositions of law, render an advisory opinion, or give legal advice as to future
            events. [Citations.] The case must, therefore, present a concrete dispute admitting of an
            immediate and definitive determination of the parties’ rights, the resolution of which will
            aid in the termination of the controversy or some part thereof. [Citations.]
                 The second, and somewhat related requirement, is that the party seeking the
            declaration must be “interested in the controversy.” [Citation.] The word, “interested”
            does not mean merely having a curiosity about or a concern for the outcome of the
            controversy. Rather, the party seeking relief must possess a personal claim, status, or
            right which is capable of being affected. [Citations.] The dispute must, therefore, touch
            the legal relations of parties who stand in a position adverse to one another.’ ” Village
            of Chatham, 216 Ill. 2d at 420 (quoting Underground Contractors Ass’n v. City of
            Chicago, 66 Ill. 2d 371, 375-76 (1977)).
¶ 11        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) (“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.”). See also 15 ILCS 205/7(c)(4) (West 2010) (Through a
       Public Access Counselor, the Attorney General has the power to issue advisory opinions with
       respect to FOIA.). An advisory opinion is not subject to review. See also 5 ILCS 140/11.5
       (West 2010) (“An advisory opinion issued to a public body shall not be considered a final
       decision of the Attorney General for purposes of this Section.”). However, a binding opinion
       is subject to administrative review. 5 ILCS 140/11.5 (West 2010) (“A binding opinion issued
       by the Attorney General shall be considered a final decision of an administrative agency, for
       purposes of administrative review under the Administrative Review Law [citation].”). 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.
¶ 12        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) (An advisory opinion shall not be considered a final decision of the
       Attorney General or subject to review.). Borrowing language from a similar controversy in
       the State of California, we find the effect of advisory opinions may be summarized as
       follows: “[T]he Office of the Attorney General has a general obligation to prepare advisory

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       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) (hereinafter California).
¶ 13        Because the only basis of Brown’s lawsuit against Madigan is the nonbinding opinion
       letter, the lawsuit cannot survive Madigan’s motion to dismiss. Indeed, the showing made
       by the Assistant Public Access Counselor in the form of his letter as to whether Brown’s
       office is required to produce certain information as requested by Grosskopf “is not enough
       to compel [the Attorney General] to defend the suit.” California, 229 Cal. Rptr. at 76.
¶ 14        Our legislature has prescribed the proper procedure for challenging a public body’s denial
       of a FOIA request. Section 11(a) provides: “Any person denied access to inspect or copy any
       public record by a public body may file suit for injunctive or declaratory relief.” 5 ILCS
       140/11(a) (West 2010). The Illinois Attorney General Act (15 ILCS 205/0.01 to 7 (West
       2010)) also provides a remedy for noncompliance if a binding opinion has been issued.
       Section 7(f) provides that the Attorney General may file an action to compel compliance with
       a binding opinion issued pursuant to a FOIA violation. 15 ILCS 205/7(f) (West 2010).
¶ 15        Thus, upon 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. Until then, looking no further than
       Brown’s complaint, no actual controversy exists between these parties, nor can Brown assert
       a need for adjudication from the courts. Ruling on the merits of whether the State’s
       Attorney’s office is a “public body” within the meaning of FOIA at this point, when that
       issue is not properly before the court, would require both the trial court and this court to
       effectively (1) pass judgment on a mere abstract proposition of law, (2) render an advisory
       opinion, or (3) give legal advice as to future events, none of which is permissible.

¶ 16                                    III. CONCLUSION
¶ 17       For the foregoing reasons, we affirm the trial court’s order dismissing plaintiff’s
       complaint, but do so on the basis no legal controversy exists. We do not form an opinion on
       whether the State’s Attorney’s office is a “public body” within the meaning of FOIA, as that
       issue is not ripe for adjudication.

¶ 18      Affirmed.




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