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Nelson v. County of Kendall

Court of Appeals of Illinois, Second District

May 30, 2013

LARRY NELSON, NELSON MULITMEDIA, INC., WSPY AM, INC., WSPY, INC., and WSPY-TV, INC., Plaintiffs-Appellants,
v.
THE COUNTY OF KENDALL, Defendant-Appellee Eric Weis, Kendall County State's Attorney, Intervenor-Appellee. LARRY NELSON, Plaintiff-Appellant,
v.
THE OFFICE OF THE KENDALL COUNTY STATE'S ATTORNEY, Defendant-Appellee.

Held [*]

Defendant State’s Attorney’s office is not a “public body” as defined by the Illinois Freedom of Information Act and could not be compelled to turn over emails generated by that office; therefore, the dismissal of plaintiffs’ actions seeking the disclosure of those emails was affirmed.

Appeal from the Circuit Court of Kendall County, Nos. 10-MR-143, 11- MR-146; the Hon. Marcy Buick, Judge, presiding.

Grant S. Wegner and R. Peter Grometer, both of Mahoney, Silverman & Cross, LLC, of Joliet, for appellants.

Charles M. Colburn, of State's Attorneys Appellate Prosecutor's Office, of Springfield, and Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of Elgin, for appellee County of Kendall.

Eric C. Weis, State's Attorney, of Yorkville (Leslie J. Johnson, Assistant State's Attorney, of counsel), for appellee Office of Kendall County State's Attorney.

Donald M. Craven and Esther J. Seitz, both of Donald M. Craven, P.C., of Springfield, for amicus curiae Illinois Broadcasters Association.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, of counsel), for amicus curiae Attorney General of Illinois.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.

OPINION

ZENOFF, JUSTICE.

¶ 1 Plaintiff, Larry Nelson, filed separate actions in the circuit court of Kendall County against Kendall County (county) (No. 10-MR-143) and the office of the Kendall County State's Attorney (State's Attorney) (No. 11-MR-146).[1] Pursuant to section 11(a) of the Illinois Freedom of Information Act (Act) (5 ILCS 140/11(a) (West 2010)), Nelson sought injunctions requiring the county and the State's Attorney to turn over emails that Nelson contended were responsive to records requests that Nelson had submitted to the two entities. The trial court dismissed Nelson's actions with prejudice, finding that the county could not be compelled to turn over emails generated by the State's Attorney's office and that the State's Attorney, as a member of the judicial branch of state government, was not a "public body" as defined in section 2(a) of the Act (5 ILCS 140/2(a) (West 2010) (defining "[p]ublic body, " in pertinent part, as "all legislative, executive, administrative, or advisory bodies of the State")). For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 The Act requires every public body in Illinois to make available to any person for inspection or copying all public records, subject to a long list of exceptions. 5 ILCS 140/3(a), 7 (West 2010). Pertinent to our case, the Act's definition of "public records" includes "all electronic communications pertaining to the transaction of public business having been prepared by or for, or having been used by, received by, in the possession of, or under the control of any public body." 5 ILCS 140/2(c) (West 2010). If a public body denies a request for public records, it must notify the requestor in writing and explain in detail the reasons for the denial. 5 ILCS 140/9(a) (West 2010). An individual whose request for public records is denied may either (1) file within 60 days a request for review with the public access counselor in the Attorney General's office (5 ILCS 140/9.5(a) (West 2010)), or (2) file an action in the circuit court for injunctive or declaratory relief (5 ILCS 140/11(a) (West 2010)). In the former situation, the Attorney General may issue a binding opinion (5 ILCS 140/9.5(f) (West 2010)), which will be considered a final decision of an administrative agency subject to administrative review (5 ILCS 140/11.5 (West 2010)). In the latter situation, the circuit court considers the matter de novo and has the power to enjoin a public body from withholding public records. 5 ILCS 140/11(d), (f) (West 2010).

ΒΆ 4 Nelson filed two actions in the circuit court, seeking injunctive relief under section 11(a) of the Act. In the first action (No. 10-MR-143), filed against the county, Nelson alleged that the county had improperly denied a September 28, 2010, request for emails sent or received during January 2010 by two assistant State's Attorneys. After the State's Attorney intervened in the action, both the county and the State's Attorney filed motions to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2010)). The county argued that it could not be compelled to turn over emails that were generated by the State's Attorney's ...


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