Appeal from the Circuit Court of Winnebago County. No. 10-MR-768 Honorable Eugene G. Doherty, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the judgment of the court, with opinion.*fn1 Justices McLaren and Birkett concurred in the judgment and opinion.
¶ 1 At the heart of this dispute is a letter written by a school principal in response to a reprimand by the superintendent. The Rock River Times and Joe McGehee (collectively, the newspaper) requested the letter from the Rockford Public School District (school), which initially refused to release it on the basis of various exemptions. The newspaper filed suit against the school under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)) and filed a petition for attorney fees and the imposition of a civil penalty. The school released the letter before the court issued a ruling and then moved for summary judgment on the petition. The court denied the newspaper's petition for attorney fees and thus granted the school's motion for summary judgment to this effect. The court granted the newspaper's request for a civil penalty to be imposed against the school. Both parties appeal the adverse rulings. We affirm.
¶ 3 On November 3, 2010, the newspaper filed a complaint against the school. The complaint and attached exhibits demonstrate the following. On June 19, 2010, principal Patrick Hardy sent a rebuttal letter in response to a "Separation of Employment" letter written to him by superintendent LaVonne Sheffield. Apparently, Hardy's rebuttal letter disputed Sheffield's version of events and provided a detailed explanation of why he decided to leave the school's employ. On August 26, 2010, McGehee, a writer at the newspaper, requested a copy of Hardy's rebuttal letter, pursuant to the FOIA.
¶ 4 On September 1, 2010, the school advised McGehee of its intent to deny disclosure of the rebuttal letter, based on two exemptions of the FOIA. The first claimed exemption, under section 7(1)(c), was based on personal privacy. See 5 ILCS 140/7(1)(c) (West 2010). The second, under section 7.5(q), prevented disclosures otherwise prohibited under the Personnel Record Review Act (820 ILCS 40/0.01 et seq. (West 2010)). See 5 ILCS 140/7.5(q) (West 2010). Also on September 1, the school sent the office of the Public Access Counselor (PAC) a preauthorization request indicating its intent to deny disclosure under these two exemptions. On September 13, PAC denied the school's request to use the personal privacy exemption under section 7(1)(c), because the school had failed to show that the information in the rebuttal letter was highly personal or objectionable. PAC did not address the school's second claimed exemption, under section 7.5(q).
¶ 5 On September 20, 2010, the school sent McGehee a letter stating its belief that PAC's preauthorization denial was erroneous. The school also indicated that its "primary basis" for not disclosing the rebuttal letter was the section 7.5(q) exemption, based on the Personnel Record Review Act. The school noted that the newspaper had a right to have PAC review the school's denial under the section 7.5(q) exemption, and McGehee filed a request for such a review on September 23, 2010.
¶ 6 It appears from the record that PAC failed to advise the school of the newspaper's request for review. On September 29, 2010, PAC issued a letter denying the school's claimed exemption under section 7.5(q). According to PAC, the Personnel Record Review Act did not prohibit disclosure of the rebuttal letter. The school did not become aware of the newspaper's request for review or PAC's decision denying the second exemption until October 4, 2010. Prior to that, on September 29, 2010, the school agreed to have its attorney review and reconsider its initial denial of the newspaper's request for the rebuttal letter. On October 1, 2010, Josh Sharp of the Illinois Press Association sent a letter to the school based on the school's willingness to reconsider its denial. Sharp's letter explained why the exemption under section 7.5(q) was not applicable but it did not reference PAC's September 29, 2010, denial of that exemption.
¶ 7 On October 8, 2010, the school's attorney, Kathryn Vander Broek, issued a letter in response to Sharp's letter. Vander Broek indicated that the school had not received notice of the newspaper's request for review or PAC's decision until October 4, 2010. In any event, upon reconsideration, the school agreed that the section 7.5(q) exemption did not prevent disclosure of the rebuttal letter. Nevertheless, Vander Broek stated that the school was now claiming a new (third) exemption, under section 7(1)(n), which exempted records relating to a public body's adjudication of an employee grievance or a disciplinary case. See 5 ILCS 140/7(1)(n) (West 2010). Vander Broek further stated that although the parties had agreed to no particular time line for the school's reconsideration, assuming that the "standard five business day rule for response to an initial FOIA request" applied, the school had until the date of her letter, October 8, 2010, to provide its response and thereby claim this new exemption.
¶ 8 On October 21, 2010, PAC issued a letter to the newspaper (and the school) indicating that, while the school had previously relied on the exemption under section 7.5(q), it was now claiming a third exemption, under section 7(1)(n). PAC's letter indicated that it would consider whether that exemption was applicable. The newspaper did not wait for PAC's decision and filed a complaint against the school on November 3, 2010. Based on the pending suit, PAC issued a letter to the newspaper and the school on November 5, 2010, indicating that its office would take no further action.
¶ 9 In its complaint, the newspaper argued that the school had forfeited its right to claim this third exemption or, alternatively, that the exemption did not apply. According to the newspaper, the school acted willfully, intentionally, and in bad faith in relying on a series of baseless exemptions, one after another, in an effort to avoid compliance with the FOIA.
¶ 10 On December 7, 2010, the school moved to dismiss as moot the newspaper's complaint. In its motion, the school stated that it had released the rebuttal letter on November 24, 2010, after PAC issued a verbal opinion that the rebuttal letter did not fall within the section 7(1)(n) exemption. The newspaper filed a response on December 20, 2010, requesting that the school's motion to dismiss be denied so that it could pursue its request for attorney fees and a civil penalty.
¶ 11 Shortly thereafter, on December 22, 2010, the newspaper petitioned for attorney fees and the imposition of a civil penalty under the FOIA. In its petition, the newspaper alleged that the school had refused to comply with its request for the rebuttal letter by attempting to invoke a series of exemptions under the FOIA. First, the school claimed that the exemption under section 7(1)(c) applied, but PAC disagreed and determined that the rebuttal letter should be released. Second, the school claimed that the exemption under section 7.5(q) applied, but PAC rejected that exemption as well. Third, the school claimed that the exemption under section 7(1)(n) applied. According to the newspaper, PAC advised the school in two written opinions that the first two exemptions were baseless, and it directed the school to release the rebuttal letter. Instead of complying with PAC's directive, however, the school referred to PAC's determination as "erroneous" and sought to invoke the third, inapplicable exemption. The school then released the rebuttal letter, along with a press release, at approximately 5 p.m. on November 24, 2010, which was the eve of the Thanksgiving holiday.
¶ 12 The accompanying press release stated that the school decided to make the letter public after being informed by its counsel that PAC had issued a "verbal opinion" that the rebuttal letter was not covered by the exemption under section 7(1)(n). According to the press release, former principal Hardy had "confirmed the authenticity of the letter to local news media," thus bringing it into "the public arena."
¶ 13 In its petition, the newspaper challenged the press release. The newspaper argued that the press release did not explain why the rebuttal letter was released based on PAC's purported oral opinion after the school had openly refused to comply with PAC's written opinions. In addition, in an attached affidavit of PAC employee Cara Smith, she denied that her office had issued any binding opinion or correspondence in this matter after the newspaper filed suit. In her affidavit, Smith averred that, in each piece of written correspondence, it was PAC's position that the school should release the rebuttal letter without further delay. Her affidavit also indicated that on November 21, 2010, counsel for the school had requested that PAC issue an oral opinion that the school could use as a basis to release the rebuttal letter. Smith declined to issue an oral opinion or any further written conclusions, however, because the newspaper had already filed suit, thus barring further action by PAC, and because PAC had already sent letters to the school rejecting its claimed exemptions.
¶ 14 The petition sought a civil penalty based on the school's willful and intentional failure to comply with the FOIA. In particular, the newspaper alleged that the school acted in bad faith by attempting to hide the contents of the rebuttal letter over a course of approximately three months, despite PAC's written instructions to release the rebuttal letter. The newspaper argued that the trial court should grant its request for attorney fees and a civil penalty because it obtained access to the rebuttal letter only as a result of filing suit.
¶ 15 The school filed a response disputing that the newspaper was entitled to attorney fees under the FOIA. It also moved for summary judgment. According to the school, the attorney fee provision of the FOIA had recently been amended to require a party to "prevail" in a proceeding, rather than "substantially prevail." The school argued that the newspaper did not "prevail," because the school voluntarily produced the rebuttal letter without a court order.
¶ 16 The newspaper responded that summary judgment was not appropriate, based on disputed issues of fact. It also argued that the catalyst theory, which holds that a party can recover attorney fees if the lawsuit prompts the other party to voluntarily change its conduct, still applied under the recently amended FOIA. The newspaper argued that it "prevailed," because the ...