                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Lucas v. Prisoner Review Board, 2013 IL App (2d) 110698




Appellate Court            SHAUN B. LUCAS, Plaintiff-Appellant, v. PRISONER REVIEW
Caption                    BOARD; KENNETH D. TUPY, Freedom of Information Officer,
                           Prisoner Review Board; and LISA WEITEKAMP, Freedom of
                           Information Officer, The Department of Corrections, Defendants-
                           Appellees.



District & No.             Second District
                           Docket No. 2-11-0698


Filed                      October 24, 2013


Held                       The trial court properly dismissed the complaint of a convicted sex
(Note: This syllabus       offender against the Prisoner Review Board and freedom of information
constitutes no part of     officers of the Board and the Department of Corrections, alleging
the opinion of the court   violations of the Freedom of Information Act based on the failure of the
but has been prepared      Board and the Department to release documents plaintiff sought,
by the Reporter of         including documents in his “master file” held by the Department, since
Decisions for the          the records plaintiff sought were exempt from disclosure under the Act.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lee County, No. 10-MR-66; the Hon.
Review                     Daniel A. Fish and the Hon. Jacquelyn D. Ackert, Judges, presiding.



Judgment                   Affirmed.
Counsel on                 Shaun B. Lucas, of Bridgeview, appellant pro se.
Appeal
                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Timothy K. McPike, Assistant Attorney General,
                           of counsel), for appellees.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Justices Hudson and Birkett concurred in the judgment and opinion.




                                             OPINION

¶1          Plaintiff, Shaun B. Lucas, appeals from the trial court’s June 22, 2011, order dismissing,
        with prejudice, his complaint against defendants, the Prisoner Review Board (PRB), Kenneth
        D. Tupy, and Lisa Weitekamp, alleging violations of the Illinois Freedom of Information Act
        (FOIA). 5 ILCS 140/1.1 et seq. (West 2010). We affirm.

¶2                                         I. BACKGROUND
¶3          On April 9, 1999, Lucas was convicted of predatory criminal sexual assault of a child
        (720 ILCS 5/12-14.1(a)(1) (West 1998)). He was sentenced to a term of 12½ years’
        imprisonment in the Illinois Department of Corrections (DOC). As part of a prerelease sex-
        offender evaluation, a report was generated that included an excerpt from a letter written by
        the fiancé of the victim. The letter was originally sent to the PRB. The PRB forwarded a copy
        to the DOC and it was placed in Lucas’s “master file.”
¶4          Lucas then decided to sue the letter’s author for libel. On August 18, 2010, Lucas filed
        under the FOIA a request that the PRB allow him to inspect “[a]ny and all progress reports
        submitted to the [PRB] via [the DOC] Clinical Services.” Additionally, he requested that he
        be allowed to inspect “[o]bjection letters from the victim, her fiancé, relatives and friends,
        and from the State.”
¶5          In response, Tupy, the PRB’s information officer, denied the first request pursuant to
        sections 1610.30(b)(1)(A) and (b)(2) of title 20 of the Illinois Administrative Code (20 Ill.
        Adm. Code 1610.30(b)(1)(A), (b)(2) (1985)). Section 1610.30(b)(1)(A) provides that the
        PRB can deny evidence to inmates where the evidence is specifically found to include
        information that, if disclosed, would damage the therapeutic relationship between the inmate
        and a mental health professional. Additionally, section 1610.30(b)(2) provides that the PRB
        will not provide direct access to any documents submitted to it that bear the signature of a
        mental health professional or clinical services employee of the DOC.
¶6          Tupy denied the second request pursuant to section 1610.30(b)(1)(B) of title 20 of the

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       Illinois Administrative Code (20 Ill. Adm. Code 1610.30(b)(1)(B) (1985)) and section 7 of
       the FOIA (5 ILCS 140/7(1)(a), 7(1)(c)(vii), (7)(1)(e) (West 2010)). Tupy’s response stated
       that “section 7(1)(a) provides the information is specifically prohibited from disclosure by
       federal or state law or rules and regulations adopted under federal or state law.”
¶7          Additionally, on August 18, Lucas requested that the DOC provide him a copy of the
       victim’s objection letter, which had been forwarded to the DOC from the PRB. On August
       25, Weitekamp, the DOC’s information officer, denied Lucas’s request for the objection
       letter pursuant to section 3-5-1(b) of the Unified Code of Corrections (Corrections Code),
       which provides that “[a]ll files shall be confidential and access shall be limited to authorized
       personnel of the respective Department. Personnel of other correctional, welfare or law
       enforcement agencies may have access to files under rules and regulations of the respective
       Department.” 730 ILCS 5/3-5-1(b) (West 2010). Weitekamp also relied on section 7(1)(a)
       of the FOIA, which exempts from inspection and copying “[i]nformation specifically
       prohibited from disclosure by federal or State law or rules and regulations adopted under
       federal or State law.” 5 ILCS 140/7(1)(a) (West 2010).
¶8          Lucas filed a four-count complaint in the trial court, seeking: (1) a declaratory judgment
       that the objection letter was not exempt from production under the FOIA and was accessible
       to Lucas as a public record (count I); (2) a declaratory judgment that the clinical services
       report was not exempt from production under the FOIA and that Lucas had a right to review
       the document (count II); (3) injunctive relief stating that Lucas was entitled to inspect and
       copy all public records (count III); and (4) a writ of mandamus ordering defendants to
       provide the requested documents for Lucas to review, copy, or challenge (count IV). He also
       sought monetary damages, attorney fees, and reimbursement of costs. Regarding the letter,
       Lucas sought “full disclosure of this record for the purpose of initiating civil litigation
       against it’s [sic] author for the common law tort of libel.” Further, Lucas asserted that “[t]his
       information is necessary to the prosecution of [his] suit for libel, both to perfect his claims
       and for the identification of any real parties in interest” in order to “deliver summons to the
       author.” In his complaint, Lucas quoted extensively from the “objection letter” sent by
       “John/Jane Doe.”
¶9          On February 7, 2011, pursuant to section 2-619.1 of the Code of Civil Procedure (Code)
       (735 ILCS 5/2-619.1 (West 2010)), defendants moved for dismissal under sections 2-615 and
       2-619 of the Code. See 735 ILCS 5/2-615, 2-619, 2-619.1 (West 2010) (section 2-619.1
       providing for combined motions seeking relief under sections 2-615 and 2-619).
¶ 10        On February 9, Lucas’s motion for substitution of judge as a matter of right was granted.
       On June 22, arguments on defendants’ motion to dismiss were heard; the motion was granted
       and Lucas’s complaint was dismissed in its entirety with prejudice.
¶ 11        Lucas timely appealed.

¶ 12                                     II. ANALYSIS
¶ 13      Defendants sought dismissal pursuant to section 2-615 and section 2-619 of the Code.
       “A section 2-615 motion attacks the legal sufficiency of the plaintiff’s claims, while a section
       2-619 motion admits the legal sufficiency of the claims but raises defects, defenses, or other

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       affirmative matter, appearing on the face of the complaint or established by external
       submissions, that defeats the action.” Aurelius v. State Farm Fire & Casualty Co., 384 Ill.
       App. 3d 969, 972-73 (2008). As explained below, we conclude that the complaint was
       subject to dismissal under section 2-619, based on the affirmative matter that the records
       requested were exempt from disclosure under the FOIA (5 ILCS 140/7 (West 2010)).
       Accordingly, we need not consider the legal sufficiency of the complaint. See Aurelius, 384
       Ill. App. 3d at 978.
¶ 14        Section 2-619 provides in pertinent part:
            “(a) Defendant may, within the time for pleading, file a motion for dismissal of the action
            or for other appropriate relief upon any of the following grounds. If the grounds do not
            appear on the face of the pleading attacked the motion shall be supported by affidavit:
                                                 ***
                    (9) That the claim asserted against defendant is barred by other affirmative matter
                avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West
                2010).
       A dismissal pursuant to section 2-619 is reviewed de novo. Central Laborers’ Pension Fund
       v. Nicholas & Associates, Inc., 2011 IL App (2d) 100125, ¶ 16. When reviewing an order
       granting dismissal on this basis, we may consider all facts presented in the pleadings,
       affidavits, and depositions found in the record, and the pleadings and supporting documents
       must be interpreted in the light most favorable to the nonmoving party. Id. This court may
       affirm the trial court’s grant of a section 2-619 motion on any proper basis found in the
       record. CNA International, Inc. v. Baer, 2012 IL App (1st) 112174, ¶¶ 31, 47.
¶ 15        Whether the records are exempt from disclosure under the FOIA (5 ILCS 140/7 (West
       2010)), as defendants claim, is a matter of statutory construction, and our review proceeds
       de novo. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill. 2d 396,
       404 (2009). Where, as here, the requesting party challenges the public body’s denial of a
       FOIA request, the public body must demonstrate that the records requested fall within the
       claimed exemption. Id. at 406; see 5 ILCS 140/11(f) (West 2010) (“Any public body that
       asserts that a record is exempt from disclosure has the burden of proving that it is exempt by
       clear and convincing evidence.”).
¶ 16        Lucas’s arguments conflate the two separate documents requested (clinical services
       report and objection letter), even though different considerations apply to each. We will
       differentiate between the two for the purposes of our analysis.

¶ 17                                A. Clinical Services Report
¶ 18       Under section 3(a) of the FOIA, the PRB is obligated to disclose the report to Lucas,
       “except as otherwise provided in Section 7 of this Act.” 5 ILCS 140/3(a) (West 2010).
       Section 7(1)(a) provides an exemption for “[i]nformation specifically prohibited from
       disclosure by federal or State law or rules and regulations implementing federal or State
       law.” 5 ILCS 140/7(1)(a) (West 2010).
¶ 19       In turn, section 1610.30(b)(1)(A) of title 20 of the Illinois Administrative Code prohibits


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       disclosure of the report if it includes the signature of a mental health or clinical services
       employee of the DOC.
¶ 20        Further, section 1610.30(b)(2) provides:
           “An inmate who wishes to review a document submitted to the Board which bears the
           signature of a mental health or clinical services employee of the Department of
           Corrections must request that review through the Department of Corrections pursuant to
           Department Regulations (20 Ill. Adm. Code 107). The Board will not provide direct
           access to any documents in this category.” 20 Ill. Adm. Code 1610.30(b)(2) (2013).
       Section 107.310(a) provides: “The master record files of offenders shall be confidential and
       access shall be limited to authorized persons. Offenders shall not be permitted access to their
       master record files except as expressly permitted by law, including this Subpart.” 20 Ill.
       Adm. Code 107.310(a) (2013).
¶ 21       The PRB’s denial of Lucas’s request for the “progress reports submitted to the [PRB] via
       [the DOC] Clinical Services” was proper under section 3-5-1(b) of the Corrections Code,
       which, as noted, states that “[a]ll files shall be confidential and access shall be limited to
       authorized personnel of the respective Department. Personnel of other correctional, welfare
       or law enforcement agencies may have access to files under rules and regulations of the
       respective Department.” 730 ILCS 5/3-5-1(b) (West 2010). Further, the denial was proper
       pursuant to the FOIA because, as a matter of law, the documents sought are completely
       exempt from disclosure under section 1610.30(b)(2) of title 20 of the Illinois Administrative
       Code, in that they include the signature of a mental health or clinical services employee of
       the DOC.
¶ 22       Lucas argues that, “whenever possible,” section 107.310(a) must be read in pari materia
       with statutes. He concludes that “the legislature hasn’t ‘specifically prohibit[ed]’ inmates
       from accessing their masterfiles.” However, this court in Holloway v. Meyer, 311 Ill. App.
       3d 818 (2000), recognized that, while the FOIA created a general right of access to public
       records and included no specific limitation on an inmate’s ability to exercise his right, section
       3-7-2(e) of the Corrections Code (730 ILCS 5/3-7-2(e) (West 1998)) contained more specific
       provisions, and, to the extent that it conflicted with the FOIA, it applied to limit the inmate’s
       right of access. See Meyer, 311 Ill. App. 3d at 824 (the FOIA was not controlling in that
       context). Here, in addition to DOC regulations, section 3-5-1(b) of the Corrections Code
       provides that all master record files “shall be confidential and access shall be limited to
       authorized personnel.” 730 ILCS 5/3-5-1(b) (West 2010). Lucas cites to nothing that refutes
       the holding in Meyer. Any claim that the FOIA, the general statute, controls over the
       Corrections Code, the specific statute, lacks merit.
¶ 23       We determine that access was limited to authorized personnel and that disclosure of the
       clinical services report was prohibited by the FOIA. Applying Meyer’s reasoning, we hold
       that the denial of the request was proper and that the trial court correctly dismissed Lucas’s
       claim.

¶ 24                                 B. Objection Letter
¶ 25       Section 10(b) of the Open Parole Hearings Act provides that a “victim may enter a

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       statement either oral, written, on video tape, or other electronic means in the form and
       manner described by the Prisoner Review Board to be considered at the time of a parole
       consideration hearing.” 730 ILCS 105/10(b) (West 2010). Lucas makes lengthy arguments
       regarding defendants’ denials of his requests for the letter contained in his “master file.”
       Despite his assertions that he was not given access to his file, common sense tells us that the
       contents of the letter were disclosed to him, since he quoted it extensively in his complaint.
       He averred that he sought specifically the name and address of the letter’s author and/or the
       address of the victim, in order to initiate and perfect his claims in a libel lawsuit against the
       letter’s author, and for the “identification of any real parties in interest” in order to “deliver
       summons to the author.”
¶ 26       As stated above, section 3-5-1(b) of the Corrections Code provides that all files shall be
       confidential with access limited to authorized personnel of the DOC. Personnel of other
       correctional, welfare, or law enforcement agencies may have access to files under rules and
       regulations of the DOC. 730 ILCS 5/3-5-1(b) (West 2010). Section 7(1) of the FOIA
       provides that “[w]hen a request is made to inspect or copy a public record that contains
       information that is exempt from disclosure under this Section, but also contains information
       that is not exempt from disclosure, the public body may elect to redact the information that
       is exempt.” 5 ILCS 140/7(1) (West 2010). The remaining information is then available for
       inspection and copying. Section 7(1)(d)(vi) provides:
            “Subject to this requirement, the following shall be exempt from inspection and copying:
                (d) Records in the possession of any public body created in the course of
            administrative enforcement proceedings, and any law enforcement or correctional agency
            for law enforcement purposes, but only to the extent that disclosure would:
                                                 ***
                    (vi) endanger the life or physical safety of law enforcement personnel or any other
                person.” 5 ILCS 140/7(1)(d)(vi) (West 2010).
       Further, section 1610.30(b)(1)(B) of title 20 of the Illinois Administrative Code allows
       access to records by the inmate unless the evidence is specifically found to “[s]ubject any
       person to the actual risk of physical harm.” 20 Ill. Adm. Code 1610.30(b)(1)(B) (1985). The
       redacted material here appears to be only the name and address of the author of the letter,
       although the record does not include a copy of the letter itself. However, contained within
       Lucas’s complaint are purported quotations from the letter indicating that the victim had
       received threats from Lucas; that the victim was afraid that Lucas would “come after” her
       when he was released; and that he wanted the name and address of the author. Thus, Lucas’s
       complaint is that the name and address of the author of the letter and/or the address of the
       victim were redacted from the letter provided him, and he asserts that this was in error.
       Under these circumstances, no error occurred.
¶ 27        We do not have the letter to review, and “[w]here it is alleged that the evidence presented
       was actually insufficient to support the court’s finding, the burden of preserving said
       evidence rests with the party who appeals from said order.” Foutch v. O’Bryant, 99 Ill. 2d
       389, 394 (1984). As noted above, Lucas’s complaint purports to quote the letter verbatim,
       and his request for the author’s name and address, ostensibly to file a civil lawsuit against

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       the author, was properly denied pursuant to section 1610.30(b)(1)(B).
¶ 28       We determine that defendants met their burden and proved by clear and convincing
       evidence that the letter was exempt. Therefore, the trial court’s dismissal under section 2-619
       was correct.

¶ 29                            C. Appointment of Attorney and Fees
¶ 30       Lucas argues that the trial court abused its discretion when it refused to appoint counsel
       on appeal and ordered him to pay a reduced filing fee. While the trial court has the discretion
       to appoint an attorney to represent an indigent prisoner in a civil suit, there is no right to
       appointed counsel in civil cases that do not concern confinement. Newsome v. Prisoner
       Review Board, 333 Ill. App. 3d 917, 922 (2002). We agree with defendants that Lucas’s
       FOIA claims are civil and do not concern the length or conditions of his confinement.
       Therefore, he has no right to the appointment of counsel to represent him. See Dupree v.
       Hardy, 2011 IL App (4th) 100351, ¶ 54 (an inmate has no constitutional right to the
       appointment of counsel in a mandamus case). The trial court did not abuse its discretion, and
       we will not overturn its decision.
¶ 31       Lucas complains that the trial court abused its discretion when it ordered him to “pay a
       reduced filing fee even though he was indigent.” Leave to prosecute an action as a poor
       person is within the sound discretion of the trial court, subject to reversal only when such
       discretion has been abused. Dear v. Locke, 128 Ill. App. 2d 356, 362 (1970). We determine
       that the trial court did not abuse its discretion where the trial court granted Lucas almost a
       complete waiver of fees, charging him only $64 in filing fees.

¶ 32                                 D. Prisoner Review Board
¶ 33       Finally, we address Lucas’s argument that, “as a matter of law, the PRB isn’t a law
       enforcement agency or correctional agency.” Citing sections 3-3-1(a) and 3-3-2 of the
       Corrections Code (730 ILCS 5/3-3-1(a), 3-3-2 (West 2010)), he concludes that the PRB
       “isn’t given law enforcement powers, so records can’t be in its possession” for law
       enforcement purposes. This argument fails because, under section 3-3-1(a)(5), the PRB has
       the authority to set conditions for parole and mandatory supervised release and to maintain
       files, records, and documents formerly under the control of the now-abolished “Parole and
       Pardon Board.” See 730 ILCS 5/3-3-1(a)(5), 3-3-2(a)(3) (West 2010).

¶ 34                                   III. CONCLUSION
¶ 35      For the reasons stated, the judgment of the circuit court of Lee County is affirmed.

¶ 36      Affirmed.




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