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Duncan Publishing Inc. v. City of Chicago

March 31, 1999


The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable John K. Madden, Judge Presiding.

Plaintiffs Duncan Publishing and Jon A. Duncan (sometimes collectively Duncan) filed a three-count complaint against defendant city of Chicago (City), essentially seeking to enjoin the City from withholding certain public records from them for inspection and copying purposes, to compel the City to create an index of certain records to be more available to them, and to sanction the City for violating the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1996)). Duncan also sought attorney's fees and costs pursuant to FOIA. The City filed its answer and affirmative defenses. Thereafter, both parties filed motions for summary judgment. The circuit court found that the City substantially complied with the FOIA; had produced the requested records; and denied Duncan's requests for injunctive relief, attorney's fees and costs. The court granted summary judgment for the City and denied that of Duncan. Duncan appeals.Duncan publishes a newsletter entitled "FOIA Watch." On January 11, 1996, Jon Duncan, in his capacity as Duncan's "registered agent" requested the City to provide him with "public records" pursuant to the FOIA, specifically to "inspect and copy a reasonably current list of all types or categories of records under the control of the City of Chicago, reasonably detailed in order to aid persons in obtaining access to public records," informing the City that section 5 of the FOIA (5 ILCS 140/5 (West 1996)) "requires the City to maintain such a list." Duncan also requested that the City provide "a description of the manner in which public records stored by means of electronic data processing may be obtained in a form comprehensible to persons lacking knowledge of computer language or printout format." (Emphasis in original.) Duncan further reminded the City that section "3(c) of the [FOIA (5 ILCS 140/3(c) (West 1996))] requires that your office must respond to this request within seven working days after receipt of this request."

In a second letter, also dated January 11, 1996, Duncan further requested that the City provide "any and all requests for information [or] documents under the [FOIA], which have been received and denied by the City of Chicago on or after July 1, 1984, but excluding all requests for inspection of documents maintained by the Department of Buildings and the Chicago Police Department" and "any and all notices of denial made or given by the City of Chicago to any such requests for documents." (Emphasis in original.) Duncan also requested "any and all indexes of denials of request for information under the [FOIA], according to the type of exemption asserted and, to the extent feasible, according to the types of records requested."

Receiving no response to either letter from the City, Duncan, on January 29, 1996, appealed to Mayor Richard M. Daley, pursuant to FOIA section 10(a). 5 ILCS 140/10(a) (West 1996). Mayor Daley did not respond to the appeal letter within seven days after receipt of the notice of appeal; accordingly, Duncan's administrative remedies were exhausted under FOIA section 10(b). 5 ILCS 140/10(b) (West 1996).

On February 13, 1996, Martin Stack, the City's FOIA officer, telephoned Duncan, advising that the requested documents were being compiled and should be available that week; Duncan agreed to the extension of time requested by Stack. The records were not produced that week, however.

As previously noted, on March 8, 1996, Duncan filed its three-count complaint seeking injunctive relief. Duncan alleges, in count I, that the City failed to respond to the request for the public records delineated in its first January 11 letter. Count II alleged that the City failed to respond to Duncan's request for the public records as set forth in its second January 11 letter. In both counts I and II, Duncan sought to enjoin the City from withholding the requested public records, to compel the City to make the records available for public inspection, to compel the City to provide an index to those records, and to enjoin permanently the City "from failing to inform persons who are denied appeals from requests for public records of their right to judicial review of such denials.

Alleging further that the City violated the FOIA in failing to "maintain [an] index of copies of notices of denial in a single central office file according to the type of exemption asserted, in violation of 5 ILCS 140/9(b) [(West 1996)]," Duncan next sought, in count III, a "mandatory injunction requiring the [City] to permanently maintain a copy of all notices of denial of [FOIA] requests in a single central office file that is open to the public and indexed according to the type of exemption asserted and, to the extent feasible, according to the types of records requested."

In all three counts, Duncan requested reasonable attorney's fees and costs.

On April 26, 1996, several weeks after suit was filed, the City informed Duncan that the records requested had been assembled and would be made available for inspection and copying on May 10, 1996. On that day, Duncan and its lawyer reviewed two boxes of documents and requested that some of those documents be copied. On May 28, 1996, the City notified Duncan by letter of the cost of the copying. Thereafter, on October 28, 1996, the City acknowledged that certain requested documents had yet to be produced and notified Duncan that "[t]hese will be provided as soon as they are available." On January 13, 1997, the City sent to Duncan's attorney "the remaining lists of departmental records which [were] requested." Thereafter, on January 29, 1997, Duncan, through its attorney, notified the City that its production of records was incomplete. On May 22, 1997, the City provided a description of the manner in which public records stored by means of electronic data processing may be obtained in a form comprehensible to those lacking computer knowledge. With this letter, the City completed Duncan's requests for documents.

While written and telephone correspondences were taking place, Duncan and the City each filed motions for summary judgment. On August 5, 1997, finding that "[t]his was an incredible production that was being requested" and that the City did its best, the circuit court denied Duncan's request for costs and attorney fees and granted the City's motion for summary judgment on all counts.


Duncan claims that the circuit court erred in granting summary judgment to the City on counts I and II of the complaint contending that, although the requested documents were produced, the complaint was not moot because the issue of attorney's fees and costs remained unresolved. Alternatively, Duncan asserts that, even if moot, his case falls under the public interest exception to the mootness doctrine.

A claim is moot when no actual controversy exists or events occur which make it impossible for a court to grant effectual relief. Dixon v. Chicago & North Western Transportation Co., 151 Ill. 2d 108, 116, 601 N.E.2d 704 (1992); La Salle National Bank v. Chicago, 3 Ill. 2d 375, 378-79, 121 N.E.2d 486 (1954). Actions will be dismissed as moot once plaintiffs have secured what was originally sought. Katherine M. v. Ryder, 254 Ill. App. 3d 479, 486, 627 N.E.2d 42 (1993).

In the instant case, counts I and II of Duncan's complaint sought, pursuant to the FOIA, the production of an array of documents within various City departments' control. All the documents eventually were tendered to Duncan, albeit after a lengthy delay. The controversy over the City's production of documents clearly ceased to exist once the City tendered those documents to Duncan. It is undisputed that the requested records were produced and that all the records and information requested have been received by Duncan.

Because the complaint sought payment of costs and attorney fees from the City, however, Duncan insists that the case is not moot. Once an agency produces all the records related to a plaintiff's request, the merits of a plaintiff's claim for relief, in the form of production of information, becomes moot. GMRI, Inc. v. Equal Employment Opportunity Commission, 149 F.3d 449, 451 (6th Cir. 1998); Anderson v. United States Department of Health & Human Services, 3 F.3d 1383, 1384 (10th Cir. 1993). Although a plaintiff's claim for production of records and information is moot, its motion for attorney's fees, which is "ancillary to the underlying action," is not. GMRI, 149 F.3d at 451, quoting Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir. 1986). Therefore, Duncan's request for an award of attorney's fees contained in the complaint does not rescue the moot claims for injunctive relief, but is ancillary to those claims.

Alternatively, Duncan urges that the public nature of this question is obvious, requiring review of the claim. This case does not fall under the "substantial public interest exception" to the doctrine, however. The criteria for application of the public interest exception are (1) the existence of a question of a public nature; (2) the desirability of an authoritative determination for the purpose of guiding public officers in the performance of their duties; and (3) the likelihood that the question will recur. In re A Minor, 127 Ill. 2d 247, 257, 537 N.E.2d 292 (1989). A clear showing of each factor is required to bring a case within this exception. Mount Carmel High School v. Illinois High School Association, 279 Ill. App. 3d 122, 125-26, 664 N.E.2d 252 (1996). This exception is invoked only on rare occasions where there is an extraordinary degree of public concern and interest. People ex rel. Partee v. Murphy, 133 Ill. 2d 402, 410, 550 N.E.2d 998 (1990). Although there is little question that the production of government records to an individual and, in this case, a publisher of an informational newsletter, is a matter of public concern, there is little likelihood that this issue will recur.

In support of its recurrence argument, Duncan states that "the City's lengthy delays in responding to similar FOIA requests will inevitably recur" because "the City refuses to maintain a single central public file." Further, Duncan maintains that "[a]bsent a court order, there is nothing to prevent the City from ignoring subsequent FOIA requests if they so chose." There is nothing in the record to suggest that the City "ignored" Duncan's requests, however. In fact, the City responded to Duncan's letters, both in writing and by telephone on various occasions. Moreover, although Duncan maintains the City's public officials "need to understand their ...

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