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06/10/88 Brian A. Hamer, v. Norman E. Lentz

June 10, 1988

BRIAN A. HAMER, PLAINTIFF-APPELLANT

v.

NORMAN E. LENTZ, ADMINISTRATIVE SECRETARY, GENERAL ASSEMBLY RETIREMENT SYSTEM, ET AL., DEFENDANTS-APPELLEES



Presented with essentially the same arguments as those raised in Falcone, the Fifth Circuit Court of Appeals in Cazalas held that the FOIA does not automatically preclude an award of attorney fees to an attorney representing herself in an action thereunder. As to the argument that an attorney does not incur out-of-pocket legal expenses which might serve as a deterrent to potential non-attorney litigants and that an award of fees is thus tantamount to nothing more than a punishment of the government, the court observed that in the case of an attorney, it is relatively simple to value, and the plaintiff had amply demonstrated, the costs she incurred both from work foregone and in terms of personal energy due to her pro se work; and that compensation for those expenses amounts to a punishment only to the extent that the government should be liable for unreasonably failing to comply with its own laws. Cazalas, 709 F.2d at 1056.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

525 N.E.2d 1045, 171 Ill. App. 3d 888, 121 Ill. Dec. 738 1988.IL.916

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

APPELLATE Judges:

JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Plaintiff appeals from an order in an action for declaratory judgment and injunctive relief (1) directing defendants to disclose some, but not all, of the information he requested under the Freedom of Information Act (Ill. Rev. Stat. 1985, ch. 116, par. 201 et seq.), and (2) denying his request for attorney fees.

A previous appeal in this case was dismissed by us for lack of jurisdiction where plaintiff's claim for attorney fees was still pending and the trial court's order relating to the disclosure of the information at issue did not contain the requisite finding under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal. Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 508 N.E.2d 324.

As we stated therein, the record discloses that on September 19, 1984, plaintiff, Brian Hamer, an attorney, submitted a written request for certain records in the possession of defendants, Norman Lentz, the administrative secretary of the General Assembly Retirement System , and the Board of Trustees thereof (defendants), relating to State pension payments received by former members of the Illinois General Assembly. Specifically, plaintiff requested the following information:

(1) the identity of all former members of the Illinois General Assembly currently receiving pension payments under the GARS;

(2) the annual pension received by each former member during the most recent fiscal year;

(3) the (a) salary received by each former member immediately prior to retirement, (b) date of retirement from the General Assembly, and (c) length of service in the General Assembly;

(4) the cumulative pension received by each former member from the date of retirement to the most recent practicable date.

In a letter dated October 1, defendant Lentz stated that an extension of time was necessary to respond to plaintiff's request, but that in accordance with subsections (v) and (vi) of section 3(d) of the FOIA, a response would "be completed with all practicable speed." On October 22, Lentz advised plaintiff that he did not have the authority to release the requested information but would present the request to the Board at a meeting scheduled for November 14 and thereafter inform plaintiff of the decision reached. After two postponements of that meeting, Lentz notified plaintiff that the Board had considered the request at its meeting on December 13 and had directed him to refer the matter to the Attorney General. Plaintiff responded with a letter of appeal on December 18, in which he asserted that defendants had violated the FOIA by (1) denying him access to public records covered by it and (2) failing to comply with section 9 thereof requiring them to supply (a) the reasons for the denial, (b) the names and titles of the persons responsible for the denial and (c) the procedure for appealing the denial to the head of the agency. In a letter dated January 4, 1985, Lentz informed plaintiff that he had not had the opportunity to review plaintiff's letter with the chairman of the Board of Trustees but planned to do so the following week. However, in a February 21 responsive letter to plaintiff's attorney, Lentz stated that the Board had not yet received a reply from the Attorney General on the matter. On March 6, Lentz informed plaintiff's attorney of the name of the individual to whom the matter had been referred in the Attorney General's office, but, according to plaintiff's complaint, numerous attempts by his attorney to contact that individual were unsuccessful.

On August 15, 1985, plaintiff filed this action seeking an injunction ordering defendants to make available the requested records, a declaration that their continuing failure to do so constituted a violation of the FOIA, and an award of costs and attorney fees. In an answer filed on October 3, defendants asserted as affirmative defenses (1) that they denied the request on the good-faith belief that as trustees of the pension funds, they had a fiduciary duty to the beneficiaries not to disclose confidential financial information; and (2) that the information was exempt from disclosure under section 7(b)(ii) of the FOIA, as being ...


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