The opinion of the court was delivered by: Justice Rarick
Docket No. 93347-Agenda 11-January 2003.
The issue presented in this case is whether the Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 2000)) requires the Illinois State Board of Education (Board) to disclose material provided to the Illinois Attorney General (Attorney General) pertaining to its request for an Attorney General opinion, or whether such material is protected by the attorney-client privilege. The Illinois Education Association (IEA) filed this action against the Board seeking a declaratory judgment, arguing that it was entitled to certain documents pursuant to the Act. Both parties filed motions for summary judgment, and the circuit court of Sangamon County granted the Board's motion and denied the IEA's motion, finding the material was exempt from disclosure pursuant to section 7(1)(n) of the Act (5 ILCS 140/7(1)(n) (West 2000)). The IEA appealed, and a divided appellate court affirmed. 327 Ill. App. 3d 326. We granted the IEA's petition for leave to appeal. 177 Ill. 2d R. 315.
Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2000); Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001). In appeals from summary judgment rulings, our review is de novo. Travelers, 197 Ill. 2d at 292.
The record in the instant case reveals the following facts. On July 17, 2000, the IEA made a request under the Act seeking the disclosure of all materials that the Board had provided to the Attorney General in the course of requesting Attorney General opinions on four topics. We note that, for purposes of this appeal, only the material pertaining to one of the Attorney General opinions remains at issue. *fn1 That portion of the IEA's request sought:
"Any and all materials provided to the Illinois Attorney General's Office by the Illinois State Board of Education with regard to its request for an Attorney General's opinion on the issue of whether the Illinois State Board of Education and/or the Illinois Teacher Certification Board has authority to hear cases where an applicant for a teaching certificate has been found to be more than 30 days delinquent in payment of child support, has failed to comply with a subpoena or warrant relating to paternity or child support proceedings and/or has failed to make the certificate as required by section 10-65 of the Illinois Administrative Procedure Act, 5 ILCS 100/10-65."
On July 26, 2000, the Board denied the IEA's request for this material citing section 7(1)(n) of the Act, which exempts from disclosure "[c]ommunications between a public body and an attorney *** representing the public body that would not be subject to discovery in litigation." 5 ILCS 140/7(1)(n) (West 2000). On July 28, 2000, the IEA appealed to the State Superintendent of Education and, on August 10, 2000, he affirmed the denial of the IEA's request. On August 24, 2000, the IEA filed its complaint against the Board in the circuit court seeking a declaratory judgment that the IEA was entitled to receive the requested material from the Board and that the material was not exempt from disclosure under the Act.
On October 10, 2000, the Board filed its index to records, pursuant to the IEA's motion made under section 11(e) of the Act (5 ILCS 140/11(e) (West 2000)). In the index, the Board stated, in relevant part, as follows:
"The requested materials comprise a letter directed to Attorney General Jim Ryan from Respicio F. Vazquez, General Counsel to the Illinois State Board of Education. The letter requests an opinion from the Attorney General as to whether the Illinois State Board of Education and/or the Illinois Teacher Certification Board has decision-making authority relative to the determination of delinquency in child support payments called for in Section 10-65 of the Illinois Administrative Procedure Act. The letter contains confidential communication between the Illinois State Board of Education and its Chief Legal Advisor."
The index further provided, as required by section 11(e)(ii), that access to the requested material was denied pursuant to the exemption set forth in section 7(1)(n) of the Act.
On October 27, 2000, the IEA filed both a motion for summary judgment and a motion for in camera inspection of the documents at issue. Thereafter, on January 8, 2001, the Board filed its motion for summary judgment, together with the affidavits of its general counsel, Vazquez, and Michael J. Luke, chief of the Opinions Division of the Attorney General's office.
In his affidavit, Vazquez stated, inter alia, that the Board "regularly requests legal advice from the Office of the Illinois Attorney General," and that "[n]ot only does the Attorney General represent [the Board] and its employees when they are named parties to litigation, [the Board] is also represented by the Illinois Attorney General on an ongoing basis." Vazquez further averred that the Board communicates with the Attorney General "with the general exception [sic] that the communications are privileged as between attorney and client, and thus will remain confidential," and that the Board's requests for the Attorney General opinions involved herein "were made with the expectation that they would be maintained in confidence by the Attorney General's Office and would not be disclosed to any third party or the public."
Additionally, Vazquez's affidavit stated that while the Board "is aware that the official opinions issued by the Office of the Attorney General are eventually published for the public," the Board "relies upon the fact that the Attorney General's published opinions do not reveal the substance of any privileged communications" between the Board and the Attorney General's office, and that it is the Board's "understanding and expectation that any communication between the [Board] and the Attorney General's Office with respect to those opinions remain confidential pursuant to the attorney-client privilege for public bodies consulting with their attorney."
Luke's affidavit stated, inter alia, that "[a]s the State's chief legal officer, the Attorney General represents State officers and agencies including the [Board] on an ongoing basis," that the Board "regularly requests legal advice and opinions" from the Attorney General, and that it has been "the practice of the Office of the Attorney General to treat documents relating to pending requests for Attorney General opinions in confidence." Luke further averred that the "Office of the Attorney General recognizes that such communications may be subject to the attorney/client privilege," and that "[a]lthough Attorney General opinions often reference the request for an opinion to the extent necessary to ...