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Fagel v. Department of Transportation

Court of Appeals of Illinois, First District, First Division

May 28, 2013

BARNET FAGEL, Plaintiff-Appellee,

Appeal from the Circuit Court of Cook County. No. 11 CH 38809 Honorable Peter Flynn, Judge Presiding.

Justices Rochford and Delort concurred in the judgment and opinion.



¶ 1 This appeal arises from an April 2, 2012 order entered by the circuit court of Cook County, which granted a motion for judgment on the pleadings filed by plaintiff Barnet Fagel (Fagel), and denied a motion under section 2-615 of the Code of Civil Procedure to dismiss (735 ILCS 5/2-615 (West 2010)) filed by defendant Illinois Department of Transportation (IDOT), in an action brought pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)). This appeal also arises from the circuit court's May 25, 2012 order which awarded $12, 561.25 in attorney fees and costs to Fagel. On appeal, IDOT argues that it had complied with Fagel's FOIA request by providing him with a locked version of an electronic Excel spreadsheet which contained the requested information. For the following reasons, we affirm the judgment of the circuit court of Cook County.


¶ 3 On January 27, 2011, Fagel submitted a FOIA request to IDOT for information pertaining to IDOT's "Red Light Running Camera Enforcement System" (the red light system). Fagel's purpose for obtaining this information was to conduct research and writing for a national report regarding the effectiveness of this technology. The relevant portion of the FOIA request sought the following:

"A [c]opy of the print-out of IL-DOT Red Light Running (RLR) Camera Enforcement System pursuant to Public Act 94-0795 including all camera enforcement permitting status information arranged by location including camera vendors, intersection location, LAT/LONG, all process data information, resultant permit decisions and any other applicable information. This report [is] normally provided in a spreadsheet format 11" x 14" size paper sheets. I am also requesting an electronic version in Excel format sent via email to my email address or on physical memory media. (Emphasis added.)

¶ 4 On February 3, 2011, IDOT responded to Fagel's FOIA request by emailing him an attachment which contained the requested information in a Microsoft Excel (Excel) file. The Excel file was "locked" so as to only allow Fagel the ability to view the information on the spreadsheet, but did not allow him to utilize the data in a manner ordinarily allowed by the Excel program–such as selecting, sorting and filtering the data in the cells, or accessing hidden secondary information relating to the file. IDOT also provided Fagel with a hard copy of the requested information.

¶ 5 On March 7, 2011, Fagel filed a request for review with the Public Access Counselor (PAC) in the office of the Illinois Attorney General, pursuant to section 9.5 of FOIA (5 ILCS 140/9.5 (West 2010)), regarding IDOT's handling of his FOIA request. Subsequently, the PAC determined that "further inquiry [was] warranted in this matter" and asked IDOT to provide a detailed written explanation as to its handling of Fagel's FOIA request and to indicate any applicable exemptions under FOIA in connection with this request.

¶ 6 In a letter dated April 11, 2011, IDOT responded to the PAC's inquiry by stating that IDOT had fully complied with Fagel's FOIA request; that the Excel spreadsheet was "fully viewable" but that it was "locked so that it [could] not be changed or manipulated into a format that [was] more to [Fagel's] liking"; that no materials requested by Fagel were withheld as a result of any exemptions under FOIA; and that delivery of the requested information in a locked format "was designed to protect the integrity of the material and not to withhold information in any way."

¶ 7 In reply, Fagel informed the PAC that IDOT had provided him with a spreadsheet in a "version different from the format in which [IDOT] normally keep[s] these records" and as such had "denied" his FOIA request. Fagel specifically noted that the locked version of the Excel file restricted his use of the spreadsheet by prohibiting him from "clicking or highlighting any cells" or "showing it on the display line at the top of the spreadsheet" and thus, it was "not viewable under normal database circumstances."

¶ 8 In a letter dated September 12, 2011, the PAC issued a non-binding opinion, stating that IDOT had fully complied with the requirements of FOIA when it provided Fagel with the requested information "in an electronic format in which it is maintained, but in a locked version." The letter opinion specified that "FOIA does not ensure that a requester can obtain information in an electronic format that he or she can manipulate, but only that the requester will receive the information in an electronic format." The PAC found that IDOT was not obligated to comply with Fagel's request for an unlocked version of the Excel spreadsheet.

¶ 9 On November 8, 2011, pursuant to section 11 of FOIA (5 ILCS 140/11 (West 2010)), Fagel filed a complaint in the circuit court of Cook County, requesting the court to compel IDOT to furnish an unlocked version of the requested spreadsheet and to award him all costs and attorneys' fees associated with the instant action.

ΒΆ 10 On December 14, 2011, IDOT filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), arguing that IDOT had complied with Fagel's FOIA request when it furnished an electronic copy of the requested information in an Excel spreadsheet. IDOT argued that the requested information was provided to Fagel in a format that was normally maintained by IDOT, albeit in a locked format. IDOT further argued that "[t]he fact that the furnished version of the ...

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