                                 No. 3-09-0175
______________________________________________________________________________
January 29, 2010
                                    IN THE

                               APPELLATE COURT OF ILLINOIS

                                        THIRD DISTRICT

                                             A.D., 2010

SAGE INFORMATION SERVICES             )   Appeal from the Circuit Court of the
and ROGER W. HURLBERT,                )   Thirteenth Judicial Circuit,
                                      )   Grundy County, Illinois,
       Plaintiffs-Appellants,         )
                                      )
       v.                             )
                                      )   No. 07-MR-17
DAVID HENDERSON, Grundy County        )
Supervisor of Assessments,            )   Honorable
                                      )   Lance R. Peterson,
       Defendant-Appellee.            )   Judge, Presiding.
______________________________________________________________________________

      JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________

       Plaintiffs filed a complaint for injunctive relief in the circuit court of Grundy County

pursuant to section 11 of the Illinois Freedom of Information Act (Act) (5 ILCS 140/11(a) (West

2006)). Defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil

Procedure (735 ILCS 5/2-619(a)(9) (West 2006)) on the grounds plaintiffs’ complaint is barred

by section 9-20 of the Property Tax Code (Code) (35 ILCS 200/9-20 (West 2006)). The circuit

court of Grundy County ruled that section 9-20 of the Code controls, found that plaintiffs’

complaint is therefore barred by a controlling statute "avoiding the legal effect of or defeating the

claim" (735 ILCS 5/2-619(a)(9) (West 2006)), and granted defendant’s motion to dismiss. For

the reasons that follow, we affirm.
                                         BACKGROUND

       Plaintiffs, Sage Information Services and Roger W. Hurlbert, submitted a request to

defendant, David Henderson, Grundy County supervisor of assessments, pursuant to the Act,

seeking the real property assessments for Grundy County. Plaintiffs’ request asked defendant to

deliver the data in electronic form. Defendant responded the data was available for a fee of

$2,456.70 based on a fee of 10 cents per assessment per parcel of land, and the existence of

24,567 parcels in Grundy County.

       Plaintiffs asked defendant to reconsider because they construed the fee as a denial of their

request under the Act. 5 ILCS 140/6(c) (West 2006) (“The purposeful imposition of a fee not

consistent with subsections (6)(a) and (b) of this Act shall be considered a denial of access to

public records for the purposes of judicial review”); 5 ILCS 140/10 (West 2006) (“[a]ny person

denied access to inspect or copy any public record may appeal the denial by sending a written

notice of appeal to the head of the public body”). Defendant responded to plaintiffs’ request to

reconsider the fee by referring plaintiffs to section 14-30 of the Code, which provides that

assessment officers may charge a fee of up to 35 cents per legal-sized page for providing

information to parties contesting property assessments.

        Plaintiffs filed a complaint for injunctive relief. Defendant responded that section 9-20 of

the Code addresses property report card requests and permits charging a "reasonable" fee that,

unlike requests under the Act, is not limited by the actual cost of compliance. The trial court

ordered the parties to address the reasonableness of defendant’s fee. The parties entered a

stipulation of facts. Defendant asserted that section 14-30 of the Code, in addition to section 9-

20, was controlling, and explained the calculation of its fee. Following arguments, the court ruled


                                                 -2-
that section 14-30 does not apply because it does not apply to requests for data in electronic form.

The court found that section 9-20 of the Code controlled plaintiffs’ request, that the Code

permitted a reasonable fee beyond actual cost, and that defendant’s fee was reasonable under the

Code.

                                              ANALYSIS

        Plaintiffs argue that the trial court erred in granting defendant’s motion to dismiss

pursuant to section 2-619(a)(9) because the reasonableness of defendant’s fee for the requested

information presents a question of fact ill-suited to resolution by a motion to dismiss. Although

plaintiffs dispute the applicability of the Code to their request, they assert that defendant’s fee is

unreasonable under any applicable statute. Plaintiffs further contend that defendant bore the

burden to prove the reasonableness of the fee and that defendant failed to satisfy his burden in this

case.

        Plaintiffs argue that the Counties Code (55 ILCS 5/1/1001 et seq. (West 2006) applies

because it is specific to plaintiffs’ request. See McCready v. Secretary of State, 382 Ill. App. 3d

789, 795, 888 N.E.2d 702, 707 (2008) (“It is a fundamental rule of statutory construction that

when there is a general statutory provision and a specific statutory provision, either in the same or

in another act, that both relate to the same subject, the specific provision controls and should be

applied”). They contend that the Code “failed to contemplate electronic production of such

records” and, consequently, “does not establish an electronic fee counterpart for the fee it

explicitly establishes as proper for production of paper copies.” Therefore, plaintiffs conclude, as

it relates to their specific request for data in electronic form, the Code “is not as specific as the

Counties Code’s instruction that fees not exceed 110% of the actual cost of [electronic] copying.”


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        Subsection (b) of section 5-1106.1 of the Counties Code defines “electronic data in bulk

form” and “electronic data in compiled form,” in relevant part, as “records to which the public has

free Internet access.” (Emphasis added.) 55 ILCS 5/5-1106.1(b) (West 2006). The statutory

language makes clear that “electronic data in bulk form” or “electronic data in compiled form”

exists only if the county provides free internet access to the records. The trial court found that

the Counties Code does not apply to plaintiffs’ request because “[d]efendant does not provide

internet access to the public records at issue.” Plaintiffs never assert that the records they sought

from defendant are “online public records” as required by the Counties Code. Plaintiffs admit the

Counties Code applies only “if a county maintains public records online.” Based on the trial

court’s findings of fact we hold that as a matter of law the Counties Code does not apply to the

data plaintiffs sought.

        Under the Act, fees for providing public information are capped at the actual cost of

reproduction of the information, “unless otherwise provided by State statute.” 5 ILCS 140/6(a)

(West 2006). Thus, the issue is “what other statute, if any, provides an alternative to the [Act’s]

default rule?” The trial court found that the Code provides that alternative. We agree. Plaintiffs

argue that, nonetheless, the trial court erred in determining that defendant’s fee is reasonable

under the Code. Plaintiffs assert that the Code and the Act must be read in pari materia because

they pertain to the same subject and reading the two statutes in pari materia requires the court to

construe their reference to reasonable fees in harmony. Thus, a “reasonable fee” under the Code

should, plaintiffs argue, be interpreted to relate to the actual cost of reproduction as required by

section 6(a) of the Act.

        The legislature expressed a clear intent that a reasonable fee under the Code should not be


                                                 -4-
construed to have the same meaning as a reasonable fee under the Act. Section 6(a) of the Act

reads as follows:

                       “(a) Each public body may charge fees reasonably calculated

               to reimburse its actual cost for reproducing and certifying public

               records and for the use, by any person, of the equipment of the

               public body to copy records. Such fees shall exclude the costs of

               any search for and review of the record, and shall not exceed the

               actual cost of reproduction and certification, unless otherwise

               provided by State statute. Such fees shall be imposed according to

               a standard scale of fees, established and made public by the body

               imposing them.” (Emphasis added.) 5 ILCS 140/6(a) (West 2006).

       Section 6(a) of the Act expresses the legislature’s intent that the Act’s fee provisions do

not apply when another statute provides for the dissemination of public information. This court

reached the same conclusion in McCready, 382 Ill. App. 3d at 796, 888 N.E.2d at 708, wherein it

held that “[s]ection 2-123 of the Vehicle Code [625 ILCS 5/2-123 (West 2004))] directly

regulates vehicle title searches, while the [Act] regulates searches of public records generally.

Thus, section 2-123 of the Vehicle Code, not the [Act], controls plaintiff's requests.” McCready,

382 Ill. App. 3d at 796, 888 N.E.2d at 708, citing Knolls Condominium Ass’n. v. Harms, 202 Ill.

2d 450, 459, 781 N.E.2d 261, 267 (2002); Hernon v. E.W. Corrigan Construction Co., 149 Ill.

2d 190, 195, 595 N.E.2d 561, 563 (1992).

       This court noted that the Act and the Vehicle Code contain several conflicting provisions,

including that the Vehicle Code imposes a $5 fee for all searches, while the Act imposes fees


                                                 -5-
based on the actual cost of reproducing and certifying records. Although the Vehicle Code

contained a specific fee while the statute at issue here does not, McCready is instructive in that, at

no time did this court attempt to construe the fee provision in the Vehicle Code in pari materia

with the Act. McCready, 382 Ill. App. 3d at 796, 888 N.E.2d at 708. This court simply found

that “section 2-123 of the Vehicle Code, not the [Act], controls plaintiff's requests.” McCready,

382 Ill. App. 3d at 796, 888 N.E.2d at 708. This court went on to hold that, because the

plaintiff’s complaint did not allege a violation of the Vehicle Code, the trial court properly

dismissed those counts of the plaintiff’s complaint based on the Vehicle Code. McCready, 382 Ill.

App. 3d at 796, 888 N.E.2d at 708.

       In this case, the Code does provide for fees for reproduction of records. Therefore, under

McCready, the “reasonable fee” provision in the Code controls plaintiffs’ request and the fee

provision in the Act does not apply. See Sage Information Services v. King, 391 Ill. App. 3d

1023, 1032-33, 910 N.E.2d 1180, 1187 (2009) (“under section 9-20 of the Property Tax Code,

the ‘reasonable fee’ assessed by the Board encompasses the electronic dissemination of the

property assessments on the property record cards that Sage seeks. Accordingly, *** the cost

provision of section 9-20 *** applies to the subject matter of this case, over the actual-cost

provision of section 6(a) of the [Act]”).

       The Code precludes the legal effect of plaintiffs’ cause of action under the Act because the

Code controls the public dissemination of the information plaintiffs sought. See Sage Information

Services, 391 Ill. App. 3d at 1032-33, 910 N.E.2d at 1187. The trial court ordered the parties “to

address the cost and reasonable fee for the computer-generated data,” based on its finding that the

Code permits a reasonable fee for computer generated data. The court’s order demonstrates its


                                                 -6-
understanding that the Code, not the Act, controls plaintiffs’ request. The trial court did not

require proof of any additional facts to prove that the Code controls plaintiffs’ request. Nor,

apparently, did plaintiffs urge the existence of additional facts specifically to contradict the

applicability of the Code to their request. Therefore, once the court determined that the Code

controls, it should have simply granted defendant’s motion to dismiss on the grounds the Code

precludes the legal effect of plaintiffs’ cause of action under the Act.

        We reject the Second District’s holding that, in this situation, “[t]he question of the

reasonableness of the *** fee is a substantial factual dispute.” Sage Information Services, 391 Ill.

App. 3d at 1035, 910 N.E.2d at 1189. Notably, that holding by the Second District contradicts its

earlier, explicit statement that “‘“[i]t is a fundamental rule, with no exceptions, that a party must

recover, if at all, on and according to the case [it] has made for [itself] by [its] pleadings.”‘“ Sage

Information Services, 391 Ill. App. 3d at 1033, 910 N.E.2d at 1187, quoting Newton v. Aitken,

260 Ill. App, 3d 717, 718 (1994), quoting Broberg v. Mann, 66 Ill. App. 2d 134, 137-38 (1965).

Despite its recognition of the foregoing rule, “with no exceptions,” the court went on to find that

“[a]lthough Sage alleged that the fee exceeded the actual cost of copying, in violation of the

[Act], the complaint essentially raised an allegation regarding the reasonableness of the charge

[under the Code].” (Emphasis added.) Sage Information Services, 391 Ill. App. 3d at 1035, 910

N.E.2d at 1189.

        Plaintiffs’ complaint did not attempt to state a cause of action under the Code. Plaintiffs’

complaint only sought the dissemination of public information under the Act. The Code controls

the dissemination of the information plaintiffs sought. "[W]e review the trial court's judgment,

not its reasoning." Forsberg v. Edward Hospital & Health Services, 389 Ill. App. 3d 434, 440.


                                                  -7-
The trial court properly dismissed plaintiffs’ complaint pursuant to section 2-619(a)(9).

                                         CONCLUSION

       The circuit court of Grundy County’s order dismissing plaintiffs’ complaint is affirmed.

       Affirmed.

       SCHMIDT, J., concurs.

       JUSTICE LYTTON concurring in part and dissenting in part:

       I concur with the majority’s conclusion that the Property Tax

Code controls plaintiffs’ request for property assessment records
from defendant.           However, I dissent from the majority’s dismissal

of    plaintiffs’          complaint        and       its    refusal      to     address      the

reasonableness of defendant’s fees under the Code.

       Plaintiffs’ complaint alleged that (1) plaintiffs submitted a

request to defendant pursuant to the Freedom of Information Act,

(2) defendant replied to the request by demanding that plaintiffs

pay $2,456.70 as a "copying charge," and (3) defendant refused to

reconsider        the    copying       charge.             Plaintiffs     sought      an    order

compelling defendant to release the requested information at a cost

"not to exceed the actual cost of reproduction as contemplated by
law."

       Although       plaintiffs’         complaint          references      the     Act,   "the

complaint        essentially          raised          an    allegation         regarding      the

reasonableness of [defendant’s] charge." Sage Information Services

v. King, 391 Ill. App. 3d 1023, 1035, 910 N.E.2d 1180, 1189 (2009).

The Code, which applies to plaintiffs’ record request, explicitly

requires that all fees charged be "reasonable."                            35 ILCS 200/9-20


                                                -8-
(West 2006).    Thus, the majority erred in refusing to examine the

reasonableness of defendant’s fees.

      Unlike the majority, I would review the trial court’s finding

that the fees in this case were reasonable and find that the

question of reasonableness of the $2,456.70 fee is "a substantial

factual dispute." King, 391 Ill. App. 3d at 1035, 910 N.E.2d at

1189.   Summary judgment should not have been granted.

      In this case, plaintiffs compared the $2,456.70 fee defendant

charged for reproducing the property tax records with the fees

charged by other counties ($0 to $80) for similar record requests.

In an attempt to justify his fees, defendant comes up with a

complicated formula: he divides the total budget for his office by

the   total   number   of   parcels,     multiplies    that   number   by   a

meaningless percentage, and then divides the result in half to

reach $2,456.70.       This perplexing and confusing explanation of

defendant’s fees fails to establish that they were reasonable.

      Because I believe the trial court decided a controverted

material issue of fact, I would reverse and remand.           See King, 391

Ill. App. 3d at 1035, 910 N.E.2d at 1189.             On remand, defendant

would have to present evidence of (1) the amount of time and labor

defendant and/or his staff spent on plaintiffs’ request, (2) the

novelty and difficulty of responding to plaintiffs’ request, (3)

the skill required to respond to plaintiffs’ request, (4) the fee

customarily charged by similarly situated counties for similar

requests, (5) any time limitations imposed by plaintiffs, and (6)

defendant’s actual out-of-pocket costs associated with the request.


                                   -9-
Only after obtaining such information can the trial court properly

determine if defendant’s fees are reasonable.




                               -10-
