                         No. 3--05--0644
_________________________________________________________________
                     Filed February 7, 2007.
                             IN THE

                    APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2007

WILLIAM CALLINAN,               )      Appeal from the Circuit Court
                                )      of the 9th Judicial Circuit
     Plaintiff-Appellant,       )      Fulton County, Illinois
                                )
     v.                         )
                                )
PRISONER REVIEW BOARD,          )
                                )
     Defendant-Appellee         )      03--MR--07
                                )
     and                        )
                                )
ILLINOIS DEPARTMENT OF          )
CORRECTIONS,                    )
                                )      Honorable
     Intervening                )      Steven R. Bordner
     Defendant-Appellee.        )      Judge Presiding

_______________________________________________________________

PRESIDING JUSTICE LYTTON delivered the Opinion of the Court:
_________________________________________________________________

     Plaintiff, William Callinan, filed a complaint for declaratory

judgment against defendant Prisoner Review Board pursuant to the

Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 2002))

to obtain his parole file.          Defendant Illinois Department of

Corrections intervened, alleging that plaintiff was not entitled to

certain documents   contained   in    his   file.   The   court   ordered

defendants to provide plaintiff a copy of his entire parole file.

Plaintiff then filed a petition for attorney fees and costs.         The
trial court denied the petition.           We reverse and remand.

     In 2002, William Callinan was incarcerated at Western Illinois

Correctional   Center   serving   an       indeterminate    prison   sentence.

Prior to a parole hearing, plaintiff’s attorney attempted to review

plaintiff’s file maintained by the Board.                  The Board allowed

plaintiff’s counsel to inspect a portion of the file but withheld

certain documents from him. Following his examination of the file,

plaintiff’s counsel requested copies of approximately 500 pages.

The Board notified plaintiff’s attorney that each page would cost

$1, for a total cost of $502.

     Thereafter, plaintiff, through his counsel, requested that the

Board provide him with a copy of his entire parole file pursuant to

the Act (5 ILCS 140/3 (West 2002)) and reduce the copying costs to

5 to 10 cents per page.   The Board failed to respond to plaintiff’s

request.   Plaintiff then filed a declaratory judgment action

against the Board, requesting the trial court to find that the

Board violated the Act by failing to provide him copies of his

entire file and charging him $1 per copied page.              In its answer,

the Board denied both claims.

     At this point, the Department intervened because some of the

documents plaintiff requested were in its custody and control. The

Department asserted that certain documents in plaintiff’s file were

exempt from disclosure under the Act.

     Plaintiff filed a motion for summary judgment.                  The trial


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court   partially      granted    the     motion,   finding       that    plaintiff’s

attorney was entitled to the contested documents.                        However, the

court   held    that    there    were     genuine   issues    of    material      fact

regarding the reasonableness of the copying charges.

       Thereafter, in response to plaintiff’s interrogatories, the

Board explained that its copying costs were calculated by taking

into account the salary of the chief legal counsel who would be

making the copies and also assumed a postage charge of 37 cents per

page.    Plaintiff filed a renewed motion for summary judgment,

arguing that the copying costs were unreasonable and in violation

of the Act.     The trial court granted plaintiff’s motion and ordered

defendants to charge plaintiff no more than $35.10 to copy 500

pages    of    plaintiff’s      file.      The   parties     later       agreed   that

defendants would charge plaintiff $75 for copying the entire file.

       In 2005, plaintiff filed a petition for approval of fees,

requesting that the court award him attorney fees and costs in the

amount of $10,979.81, pursuant to section 11(i) of the Act.                       See 5

ILCS    140/11(i)      (West     2002).        According     to    his     affidavit,

plaintiff’s attorney spent a total of 54.4 hours on plaintiff’s

case, 34 hours of which he expended in 2004 and 2005.                     Based on an

hourly rate of $200, plaintiff requested a total of $10,880 in

attorney fees.      Plaintiff also requested $99.81 in costs that his

attorney incurred by staying overnight in a hotel prior to a 2004

court hearing.


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     In its response, the Board noted, among other things, that

section 11(i) had been amended in 2004, and that the amended

version should apply to plaintiff’s petition.

     The trial court denied plaintiff’s          petition.     The court

explained that it was not inclined to award fees “[a]bsent fraud,

malice,   or   wilful   lack   of   compliance   with   the   Freedom   of

Information Act.”       According to the court, plaintiff was not

entitled to his attorney fees because “there was no finding of

contempt or such an egregious violation of the Act to justify

awarding attorney fees.”       Plaintiff appeals the trial court’s

denial of his petition for fees.

                                ANALYSIS

                                    I.

     Section 11(i) of the Act, which allows an award of attorney

fees for a successful plaintiff, was amended on January 1, 2004.

Under the original statute, plaintiffs were entitled to fees when

they proved that (1) they substantially prevailed, (2) the record

or records in question clearly were of significant interest to the

general public, and (3) the public body lacked any reasonable basis

in law for withholding the record.         See 5 ILCS 140/11(i) (West

2002); Duncan Publishing, 304 Ill. App. 3d at 786, 709 N.E.2d at

1287.   Defendants contend that the original version of the statute

applies and allows plaintiff to recover fees only if it satisfied

all three conditions:

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     “If a person seeking the right to inspect or receive a

     copy of a public record substantially prevails in a

     proceeding under this Section, the court may award such

     person reasonable attorneys’ fees if the court finds that

     the    record   or   records   in       question    were    of   clearly

     significant interest to the general public and that the

     public body lacked any reasonable basis in law for

     withholding the record.”       5 ILCS 140/11(i) (West 2002).

     Under the January 1, 2004 amendment, plaintiffs without a

commercial interest need only prove that they have substantially

prevailed in the action, while parties with a commercial interest

must still prove that their request also serves a public interest

and that defendants lacked a reasonable basis for withholding the

records.    See 5 ILCS 140/11(i) (West 2004).                 The amended statute

provides:

     “If a person seeking the right to inspect or receive a

     copy of a public record substantially prevails in a

     proceeding under this Section, the court may award such

     person    reasonable    attorneys’        fees     and    costs.     If,

     however, the court finds that the fundamental purpose of

     the request was to further the commercial interests of

     the requestor, the court may award reasonable attorneys’

     fees and costs if the court finds that the record or

     records in question were of clearly significant interest

                                         5
     to the general public and that the public body lacked any

     reasonable basis in law for withholding the record.”    5

     ILCS 140/11(i) (West 2004).

     In deciding which version of the statute applies, we must

first determine whether the legislature has expressly prescribed

the statute’s temporal reach.      See Allegis Realty Investors v.

Novak, Nos. 100682, 100730 (cons.), ___ Ill. 2d ___, ___ N.E.2d

___, 2006 WL 2691447 (Sept. 21, 2006).   If the statute contains no

express provision   regarding its temporal reach, we must then

determine if the statutory amendment is procedural or substantive.

See Allegis, Nos. 100682, 100730 (cons.), ___ Ill. 2d ___, ___

N.E.2d ___, 2006 WL 2691447.     Those that are procedural may be

applied retroactively, while those that are substantive may not.

Caveney v. Bower, 207 Ill. 2d 82, 92, 797 N.E.2d 596 (2003).

     Nothing in the 2004 amendment to section 11(i) of the Act

indicates that the attorney fees provision should not be applied to

cases pending at the time of its enactment.      Thus, we need to

determine if the statutory provision is procedural or substantive.

     Illinois generally characterizes attorney fees as procedural

for retroactivity purposes and applies new attorney fees statutes

to pending cases.   See Songer v. State Farm Fire and Casualty Co.,

91 Ill. App. 3d 248, 254, 414 N.E.2d 768, 773 (1980); People v.

Frieder, 90 Ill. App. 3d 116, 120, 413 N.E.2d 432,          (1980).

However, Illinois courts will not give retroactive application to


                                   6
an attorney fees statute where (1) liability did not exist prior to

enactment of the legislation; (2) the conduct giving rise to

possible liability occurred before the effective date; and (3) the

party against whom expenses were sought could not avoid or limit

its liability by any action taken after the statute’s effective

date.   See Board of Education of School Dist. No. 170 v. Illinois

State Board of Education, 122 Ill. App. 3d 471, 477, 461 N.E.2d

567, 572 (1984).

     The amended attorney fees provision contained in the Act

satisfies none of the elements outlined in Board of Education. The

pre-amendment     version       placed   defendants      on    notice   that    their

refusal to disclose the requested documents could subject them to

liability. The 2004 amendment did not create new liability for

attorney    fees;   it    only    altered     plaintiff’s      burden    of     proof.

Defendants    incurred      liability        for    plaintiff’s      attorney    fees

initially    by   refusing      plaintiff’s        requests    for   documents    and

continued to incur substantial liability after the amendment became

effective when they continued to deny plaintiff the requested

documents. Defendants, who notified the court and plaintiff of the

amendment, were clearly aware of its existence and should have

realized that it may have subjected them to greater liability.

Defendants    could      have    significantly       reduced    their    liability,

considering the 34 hours of work plaintiff’s attorney incurred

after the statute was amended, by providing plaintiff with the


                                         7
requested documents soon after the amendment became effective.

Thus, we conclude that the 2004 amendment to section 11(i) applied

to plaintiff’s petition for fees.

                                     II.

      A court should award attorney fees pursuant to a statutory fee

provision where the objectives of the statute and fee provision

will be promoted.        See King v. Illinois State Board of Elections,

410 F.3d 404 (7th   Cir. 2005) (awarding fees to intervenors because

it promoted goals of fee-shifting provisions of the Civil Rights

Act and Voting Rights Act); Jackman v. WMAC Investment Corp., 809

F.2d 377 (7th Cir. 1987) (upholding attorney fees award where it

furthered objectives of wage claim statute).

      Here, the intent of the Act is to “encourage[] requestors to

seek judicial relief in the event of an unlawful withholding of

records by government agencies.”          People ex rel. Ulrich v. Stukel,

294 Ill. App. 3d 193, 203, 689 N.E.2d 319, 326 (1998).          The primary

purpose of the Act’s attorney fee provision “is to prevent the

sometimes insurmountable barriers presented by attorney’s fees from

hindering an individual’s request for information and from enabling

the   government    to    escape   compliance   with   the   law.”   Duncan

Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 786, 709

N.E.2d 1281, 1287 (1999).

      A trial court’s decision as to whether a plaintiff has proven

entitlement to attorney fees under the Act is reviewed for an abuse

                                      8
of discretion.    See Stukel, 294 Ill. App. 3d 193, 689 N.E.2d 319.

An abuse of discretion will be found where the court applied the

wrong legal standard. Zavell & Associates, Inc. v. CCA Industries,

Inc., 257 Ill. App. 3d 319, 628 N.E.2d 1050 (1993).

      Under the original version of the Act, a trial court ruling on

a petition for attorney fees had to consider whether (1) the

plaintiff substantially prevailed, (2) the records were of clearly

significant interest to the general public and (3) the public body

lacked any reasonable basis in law for withholding the records.

See Lieber v. Board of Trustees of Southern Illinois University,

316 Ill. App. 3d 266, 736 N.E.2d 213 (2000).        If a plaintiff proved

all three elements, the trial court should award attorney fees.

See Stukel, 294 Ill. App. 3d 193, 689 N.E.2d 319; Duncan, 304 Ill.

App. 3d 778, 709 N.E.2d 1281.

      The amended statute provides that if a person “substantially

prevails in a proceeding * * * , the court may award such person

reasonable attorneys’ fees and costs.”            5 ILCS 140/11(i) (West

2004).   The only prerequisite to an award of attorney fees under

the   amended    version   of    the   Act   is   whether   the   plaintiff

“substantially prevails.”       Thus, under the amended statute, when a

trial court finds that a plaintiff has substantially prevailed, it

should grant attorney fees to a non-commercial plaintiff.              See

Stukel, 294 Ill. App. 3d 193, 689 N.E.2d 319 (attorney fees should

be granted when all prerequisites of statute are met); Duncan, 304

                                       9
Ill. App. 3d 778, 709 N.E.2d 1281 (attorney fees are warranted when

all elements are satisfied).     A court may deny fees only where

special circumstances would render such an award unjust.1      See

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct.

964, 19 L. Ed. 2d 1263 (1968) (absent special circumstances,     a

prevailing plaintiff should ordinarily recover attorney fees under

the Civil Rights Act (42 U.S.C. §2000a-3(b)), which provides that

“the court, in its discretion may allow the prevailing party * * *

a reasonable attorney’s    fee   * * *.”);   see also Krautsack v.

Anderson, ___ Ill. 2d ___, ___ N.E.2d ___, No. 101718, slip op. at

14 (Dec.   21,   2006) (certain “[c]ircumstances may exist which

militate against an award of fees to a prevailing plaintiff” under

section 10a(c) of the Consumer Fraud Act (815 ILCS 505/10a(c) (West

2004)), which provides that the court “may award * * * reasonable

attorney’s fees and costs to the prevailing party.”).

     Here, the trial court granted plaintiff summary judgment on

     1
        Special circumstances justifying a trial court’s denial
of attorney fees to a prevailing plaintiff might include (1) the
plaintiff is a nonlawyer proceeding pro se (Brazas v. Ramsey, 291
Ill. App. 3d 104, 682 N.E.2d 476 (1997)); (2) an attorney
proceeds pro se under the Act (Hamer v. Lentz, 132 Ill. 2d 49,
547 N.E.2d 191 (1989)); (3) the defendant entered into a nuisance
settlement solely to end a frivolous and groundless suit and
avoid the expense of litigation (Tyler v. Corner Construction
Corp., Inc., 167 F.3d 1202 (8th Cir. 1999)); (4) the plaintiff
was not instrumental in achieving the remedy sought (see Riddell
v. National Democratic Party, 624 F. 2d 539 (5th Cir. 1980); Love
v. Deal, 5 F.3d 1406 (11th Cir. 1993)); or (5) the plaintiff,
through a settlement or consent order, agreed to waive his right
to pursue fees (see Love, 5 F.3d 1406).

                                  10
all of his claims, ordering defendants to provide plaintiff with

the undisclosed documents at a reasonable cost.             It is undisputed

that plaintiff substantially prevailed in his action to obtain the

records he requested. It is also undisputed that plaintiff was not

seeking   the   documents   for   any    commercial    interest.     Because

plaintiff proved that he substantially prevailed, the only element

necessary to establish his entitlement to attorney fees, the trial

court should not have denied him fees absent special circumstances.

Defendants have not claimed that any special circumstances exist

and we have found none that would preclude an award of attorney

fees to plaintiff.

     In addition, an award of attorney fees in this case furthers

the purposes of the Act and its fee provision.              Plaintiff was an

indigent prisoner seeking his parole file in preparation for a

parole hearing. But for the trial court’s orders, defendants could

have indefinitely withheld documents from plaintiff and refused to

produce any documents to him at a reasonable cost.           Without the fee

provision, plaintiff may have been unable to obtain counsel to

require defendants to comply with the law.            See   Duncan, 304 Ill.

App. 3d at 786, 709 N.E.2d at 1287.

     In denying plaintiff’s petition for fees, the trial court read

new requirements into the Act.          The court found that to recover

fees, plaintiff had to prove fraud, malice, a wilful lack of

compliance with the Act or an egregious violation of the Act.


                                    11
Nothing in section 11(i) required plaintiff to sustain such a

burden of proof.    Because the court applied the wrong legal

standard and read new requirements into the Act, it abused its

discretion and improperly denied plaintiff’s petition for attorney

fees and costs.

     The order of the circuit court of Fulton County is reversed

and remanded.

     Reversed and remanded.

     O'BRIEN and SCHMIDT, JJ., concurring.




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