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Harwood v. McDonough

October 17, 2003

BRADLEY HARWOOD, PLAINTIFF-APPELLANT,
v.
PAM MCDONOUGH, DIRECTOR, MICHAEL D. ROSENFELD, GENERAL COUNSEL, CATHY HAUGER, FREEDOM OF INFORMATION ACT OFFICER, ALL THREE IN THEIR OFFICIAL CAPACITIES IN THE ILLINOIS DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS, AND THE ILLINOIS DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS, AN EXECUTIVE BRANCH AGENCY OF THE STATE OF ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Stephen A. Schiller Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher

UNPUBLISHED

Plaintiff, Bradley Harwood, filed this action on July 26, 2001, pursuant to the Illinois Freedom of Information Act (the Act) ( 5 ILCS 140/1 et seq. (West 2000)) against several defendants, including the Illinois Department of Commerce and Community Affairs (DCCA). The other defendants are employees of the State of Illinois, who, in their official capacities, are responsible for complying with the requirements of the Act at DCCA. Plaintiff made an initial request for records under the Act on May 16, 2001. He requested two items: (1) "a copy of the report prepared by the consulting firm of Arthur Andersen (Andersen) concerning the relocation of the Boeing Company's headquarters to Illinois" (the Andersen report) and (2) "copies of all invoices concerning the cost to the state of this report."

After the plaintiff received no answer to his initial request, he sent an appeal letter, dated June 11, 2001. The defendants responded to plaintiff's appeal letter by producing a copy of a one-page "Executive Summary" of the Andersen report, claiming the rest of the report was exempt from disclosure under exemptions in sections 7(1)(f) and (g) of the Act, and also by stating that "no invoice from Arthur Andersen has been remitted to the department as of this date." This action followed. In his complaint, plaintiff sought a permanent injunction against defendants prohibiting them from withholding the requested public records and an order for the production of these public records.

Defendants answered the complaint regarding the Andersen report by again claiming it was exempt from disclosure under the previously claimed exemptions in sections 7(1)(f) and (g), as well as the additional exemptions in sections 7(1)(i) and (r) of the Act and by producing a copy of the contract between DCCA and Andersen. Ultimately, the parties filed cross-motions for summary judgment.

On August 1, 2002, the trial court denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment. On August 13, 2002, plaintiff filed a "Motion for Clarification of Court's August 1, 2002 Ruling or for Summary Judgment on Plaintiff's Outstanding Claims for a Redacted Andersen Study and Improper Withholding of Invoices and for Attorneys Fees for Work Required to Obtain Redacted Report and Invoices." This motion was denied on August 19, 2002. Plaintiff now appeals the orders of August 1, 2002, and August 19, 2002.

STANDARD OF REVIEW

We review de novo the trial court's grant of summary judgment. In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). Summary judgment is a drastic means of disposing of litigation. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 1123 (2002). Therefore, summary judgment is appropriate only when " '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.' " Happel, 199 Ill. 2d at 186, 766 N.E.2d 1118, quoting 735 ILCS 5/2-1005(c) (West 2000); see also Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Because the parties here filed cross-motions for summary judgment, they have agreed that no genuine issue of material fact exists and invite the court to decide the issues presented as questions of law. Allen v. Meyer, 14 Ill. 2d 284, 292, 152 N.E.2d 576 (1958). Nevertheless, where genuine issues of fact exist precluding summary judgment in favor of either party, the mere filing of cross-motions for summary judgment does not require that the court grant the requested relief to one of the parties. Hagen v. Distributed Solutions, Inc., 328 Ill. App. 3d 132, 137, 764 N.E.2d 1141,1145-46 (2002).

Under the Illinois Freedom of Information Act, public records are presumed to be open and accessible. Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d 456, 462-63, 791 N.E.2d 522, 526 (2003), citing Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407, 680 N.E.2d 374 (1997). "[I]f the party seeking disclosure of information under the Act challenges the public body's denial in circuit court, the public body has the burden of proving that the records in question fall within the exemption it has claimed." Illinois Education Ass'n, 204 Ill. 2d at 464, 791 N.E.2d at 527, citing Lieber, 176 Ill. 2d at 408, 680 N.E.2d 374, and 5 ILCS 140/11 (West 2000). " 'To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.' " (Emphasis in original.) Illinois Education Ass'n, 204 Ill. 2d at 464, 791 N.E.2d at 527, quoting Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537, 548 N.E.2d 1110 (1989).

Here, defendants raised four affirmative defenses *fn1 asserting that the Andersen report was exempt under four separate exemptions of section 7 of the Act. 5 ILCS 140/7 (West 2000). Section 7 and the relevant exemptions state as follows:

"(1) The following shall be exempt from inspection and copying:

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm, including all information determined to be confidential under Section 4002 of the Technology Advancement and Development Act. [20 ILCS 700/4002 (West 2000).] Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.

(i) Valuable formulae, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected ...


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