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10/25/89 Brian A. Hamer, v. Norman E. Lentz Et Al.

October 25, 1989

BRIAN A. HAMER, APPELLEE

v.

NORMAN E. LENTZ ET AL., APPELLANTS



Before turning to an examination of the records in dispute, we note, first, that the trial court never made the finding the defendants claim the court made. Second, the defendants' position seems to be that if information is located in two different places, producing that information involves the creation of a new record. Such a position is supported neither by legal authority nor by logic.

SUPREME COURT OF ILLINOIS

547 N.E.2d 191, 132 Ill. 2d 49, 138 Ill. Dec. 222 1989.IL.1673

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

Rehearing Denied December 4, 1989

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. CHIEF JUSTICE MORAN took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiff brought this action in the circuit court of Cook County for injunctive and declaratory relief pursuant to the Illinois Freedom of Information Act (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.) against Norman E. Lentz, administrative secretary of the General Assembly Retirement System , and the board of trustees of GARS. In his complaint, plaintiff sought an order directing defendants to make available to plaintiff certain public records in the possession of GARS, and an award of attorney fees and costs. The trial court ordered defendants to disclose some but not all of the requested information, and denied plaintiff's petition for attorney fees.

The appellate court affirmed in part, reversed in part and remanded, ruling (1) that the FOIA requires all of the records requested by plaintiff to be disclosed, and (2) that plaintiff is entitled to an award of fees. The appellate court remanded the cause for a hearing on the reasonableness of the amount of fees requested. 171 Ill. App. 3d 888.

We allowed defendants' petition for leave to appeal pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315). Defendants raise the following issues: (1) whether plaintiff's status as an attorney proceeding pro se precludes an award of attorney fees under the FOIA; (2) whether the appellate court applied the appropriate standard of review in reversing the trial court's denial of attorney fees; and (3) whether the appellate court erred in ordering defendants to release to plaintiff all of the requested information.

We granted leave to the Illinois Press Association, the Illinois NewsBroadcasters Association, and the Chicago Council of Lawyers to file amicus curiae briefs. Amici urge us to affirm the judgment of the appellate court.

FACTS

The facts giving rise to this appeal, which are not in dispute, are fully set forth in the appellate court's opinion and need not be repeated at length here. Briefly, on September 19, 1984, plaintiff, Brian A. Hamer, an attorney, submitted a written request for certain records to defendant Norman E. Lentz, the administrative secretary of the General Assembly Retirement System . The information sought concerns State pension payments received by former members of the Illinois General Assembly. The two categories of information that remain in dispute are the following: (1) the length of service in the General Assembly of all former members of the General Assembly who are currently receiving pension payments under GARS; and (2) the cumulative pension received by each former member from the date of retirement to the most recent practicable date.

Over the next 11 months, the parties exchanged correspondence, but the records requested by plaintiff were not released. 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 attorney fees and costs. In their answer to the complaint, defendants asserted as affirmative defenses (1) that they denied the request in 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 the FOIA because the information, if disclosed, "would constitute a clearly unwarranted invasion of personal privacy." Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(ii).

The trial court granted plaintiff's motion for summary judgment, ruling that the information requested was not exempt from disclosure under the FOIA. The court also ruled that the defendants were only obligated to produce records maintained by them in the ordinary course of business. The trial court subsequently held a hearing, during which defendants explained the record-keeping system of GARS. Following the hearing, the trial court entered an order directing defendants to produce some, but not all, of the information plaintiff had requested; the trial court did not expressly state the basis for its ruling. In a later proceeding, the trial court denied plaintiff's petition for attorney fees brought under the FOIA.

Plaintiff appealed, contending that the trial court erred in failing to order defendants to provide records showing the cumulative pension of each retiree and the lengths of service upon which those pensions are based. Plaintiff also appealed from the denial of his petition for attorney fees. The appellate court affirmed in part, reversed in part, and ...


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