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Sage Information Services and Roger W. Hurlbert v. Cynthia K. Humm

October 5, 2012

SAGE INFORMATION SERVICES AND ROGER W. HURLBERT, PLAINTIFFS-APPELLANTS,
v.
CYNTHIA K. HUMM, IN HER CAPACITY AS CHIEF COUNTY ASSESSMENT OFFICER, FRANKLIN COUNTY, ILLINOIS, AND JOHN GULLEY, IN HIS CAPACITY AS COUNTY TREASURER, FRANKLIN COUNTY, ILLINOIS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Franklin County. Nos. 10-MR-45 & 11-MR-19 Honorable Barry L. Vaughan, Judge, presiding.

The opinion of the court was delivered by: Justice Welch

NOTICE

The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Spomer and Wexstten concurred in the judgment and opinion.

OPINION

¶ 1 These two actions were brought in the circuit court of Franklin County pursuant to section 11 of the Freedom of Information Act (FOIA) (5 ILCS 140/11 (West 2010)) to compel the release of certain requested information and for reasonable attorney fees and costs. They were consolidated for trial in the circuit court. The plaintiffs in both cases are Sage Information Services and its president, Roger W. Hurlbert (collectively plaintiff).

¶ 2 In cause No. 10-MR-45, the plaintiff sent a request, dated February 16, 2010, under the FOIA to the chief county assessment officer of Franklin County, Cynthia K. Humm, for "the current real property assessment record file for the entire county." The plaintiff specified that its request was "for a copy, on CD or similar electronic media." In answer to Humm's inquiry, the plaintiff confirmed that this was a "commercial request." The plaintiff also indicated that if Humm did not have the capability to produce a CD, the plaintiff would accept the requested information by e-mail or by transmission to an FTP site. Humm responded that she would e-mail the requested information upon receipt from the plaintiff of a fee in the amount of $1,609.40, representing $0.05 for each of 32,188 real estate parcels.

¶ 3 The plaintiff responded by letter informing Humm that the requested fee "was far above the fee authorized by the new FOIA statute," which had been amended to separate fee provisions relating to electronic records and paper records. With respect to electronic records, the fee is limited to the cost of the disk or other electronic medium, and no other costs are allowed. Further, with respect to electronic copies, the fee cannot be fixed by another statute, as in the case of paper copies. The plaintiff repeated its request for the electronic copies.

¶ 4 Humm replied that the requested records fall under section 9-20 of the Property Tax Code (35 ILCS 200/9-20 (West 2006)), which, being a more specific statute, supercedes the more general FOIA and permits the assessor to charge a "reasonable fee" beyond actual costs. Humm insisted that the fee she had charged was reasonable. The plaintiff filed its complaint on September 22, 2010.

¶ 5 In cause No. 11-MR-19, the plaintiff sent a request, dated February 14, 2011, under the FOIA to John Gulley, the county treasurer for Franklin County, for "a copy, on CD or similar electronic media, of the real property tax billing file for the 2009, payable 2010 tax year." The plaintiff indicated that transmission by e-mail would also be acceptable. These are essentially the same records the plaintiff had unsuccessfully sought from Humm.

¶ 6 The State's Attorney of Franklin County responded that the request to Gulley contains information that is compiled and maintained by Humm, the chief assessment officer, and would not be honored until the plaintiff had tendered payment of the fee charged by Humm pursuant to section 9-20 of the Property Tax Code. On April 26, 2011, the plaintiff filed a complaint against Gulley seeking the entry of an order compelling the release of the requested information plus reasonable attorney fees and costs, as well as civil penalties under the FOIA.

¶ 7 The two cases were consolidated for trial in the circuit court. A hearing was held on November 4, 2011. The circuit court entered its written orders on December 2, 2011, denying the plaintiff's requests for orders compelling the release of the requested information and for attorney fees and costs.

¶ 8 In cause No. 10-MR-45, against the assessor, Humm, the circuit court held as a matter of law that the fee to be charged for the production of the requested information under the FOIA was controlled by section 9-20 of the Property Tax Code, which allowed a reasonable fee beyond the actual cost of reproduction. The court further held that the fee charged by Humm was a reasonable fee within the meaning of section 9-20 of the Property Tax Code. Accordingly, the court denied the plaintiff's request for an order compelling the release of the requested information under the FOIA, as well as the request for attorney fees and costs.

¶ 9 The plaintiff appeals, arguing that the circuit court erred as a matter of law in determining that the fee to be set for the production of the records was governed by the Property Tax Code rather than the FOIA. The plaintiff also argues in the alternative that, even if the Property Tax Code governs fees, Humm failed to carry her burden of proving the fee she sought to charge was reasonable under the Code.

ΒΆ 10 Because we reverse the circuit court's order as a matter of law, we need not address the issue of the reasonableness of the fee that Humm ...


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