THE CITY OF CHAMPAIGN, an Illinois Municipal Corporation, Plaintiff-Appellant,
LISA MADIGAN, in Her Official Capacity as Attorney General of the State of Illinois; PATRICK WADE; and THE NEWS-GAZETTE, INC., an Illinois Corporation, Defendants-Appellees.
Electronic communications sent and received during city council meetings from members of the council and the mayor pertaining to public business while the council members are functioning as a “public body” are subject to the Freedom of Information Act and defendant newspaper reporter was entitled to have such communications disclosed pursuant to his request, but the trial court erred in granting defendants’ request for attorney fees, since defendants pursued their claim under section 9.5 of the Act by requesting a binding opinion from the Attorney General’s Public Access Counselor, rather than a court action under section 11 of the Act, and section 9.5 does not provide for an award of attorney fees.
Appeal from the Circuit Court of Sangamon County, No. 11-MR-680; the Hon. John Schmidt, Judge, presiding.
Frederick C. Stavins, City Attorney, of Champaign (Laura Hall (argued), Appeal Assistant City Attorney of counsel), for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Clifford W. Berlow (argued), Assistant Attorney General, of counsel), for appellee Lisa Madigan.
Donald M. Craven and Esther J. Seitz, both of Donald M. Craven, P.C., of Springfield, for appellees Patrick Wade and News-Gazette, Inc.
Brian Day and Roger Huebner, both of Illinois Municipal League, of Springfield, amicus curiae.
Panel JUSTICE POPE delivered the judgment of the court, with opinion. Justices Appleton and Holder White concurred in the judgment and opinion.
¶ 1 This case arises from defendant Patrick Wade's July 2011 request pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/11(e) (West 2010)) for copies of electronic communications sent and received during city council meetings from members of the Champaign city council as well as the mayor of the City of Champaign (collectively, the City). The City partially denied Wade's request, explaining personal communications on privately owned electronic devices are not within the scope of FOIA, even when they relate to city business. Wade then sought administrative review of the City's denial with defendant, the office of the Illinois Attorney General's Public Access Counselor. Following that review, the Attorney General issued a binding opinion, finding texts and emails sent or received from a council member's personal electronic device during public meetings, concerning city council business, are by definition public records and thus subject to FOIA. The City sought administrative review in the circuit court, which affirmed the decision of the Attorney General.
¶ 2 The City appeals, arguing (1) the requested electronic communications are not public records as defined by FOIA; (2) public officials have a reasonable expectation of privacy in their personal communications; (3) the circuit court erred in awarding Wade attorney fees; and (4) the court did not have jurisdiction to decide Wade's counterclaim for injunctive relief. We affirm in part and reverse in part.
¶ 3 I. BACKGROUND
¶ 4 On July 15, 2011, Wade, a reporter for defendant Champaign News-Gazette, filed a FOIA request with the City, seeking the following records:
"All electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3. Please note that this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts."
We note Wade's request broadly sought "[a]ll electronic communications" regardless of whether they were personal or public in nature. However, the parties have not directly raised the issue of the breadth of Wade's request in this case and have since agreed the FOIA request would not seek personal communications.
¶ 5 On July 22, 2011, the City partially denied Wade's request. According to the City, "Communications which pass through and are available on the City's electronic equipment are in the City's possession and control and, if not exempt, will be provided. However, communications of the Mayor and City Council members on privately owned equipment to private parties are not public records of public bodies and will not be provided."
¶ 6 On August 1, 2011, Wade sought administrative review of the City's denial with the Attorney General's Public Access Counselor. See 5 ILCS 140/9.5 (West 2010). Wade argued the following:
"The justification that communications on privately-owned devices, like cellphones, are not 'public records' simply because the individuals who own them are not the public body is inadequate. It is very possible and likely that city council members receive communications that aid in the elected officials' formulation of opinions and that consequently affect their votes. Those communications, particularly those that city council members receive during an ongoing meeting for which the public body is assembled, certainly are 'documentary materials pertaining to the transaction of public business ... being used by [or] received by ... any public body.' 5 ILCS 14/2(c). Regardless of their form, communications pertaining to the transaction of public business–being received by and used by individual members of an official body in their role as a member of that public body during an ongoing public meeting–should be public records."
¶ 7 On November 15, 2011, the Attorney General issued a binding opinion (Public Access Opinion No. 11-006; 2011 PAC 15916 (2011)), finding texts and emails sent or received on a council member's personal electronic device during public meetings are by definition public records and thus subject to FOIA.
¶ 8 On December 15, 2011, the City filed a complaint for administrative review of the Attorney General's decision in the circuit court.
¶ 9 On February 8, 2012, Wade filed a counterclaim for injunctive relief, requesting that once the circuit court affirms the administrative decision it also (1) issue an order compelling the City to release the requested records and (2) award reasonable attorney fees and costs.
¶ 10 On June 11, 2012, the circuit court denied the City's complaint for administrative review and affirmed the administrative decision, finding the Attorney General's opinion was not against the manifest weight of the evidence. The court also stated its ruling was "a final and appealable order." Wade never noticed his counterclaim for hearing.
¶ 11 On June 25, 2012, Wade and the News-Gazette (collectively Wade) filed a petition for attorney fees, arguing he was entitled to such fees and costs because he was a prevailing party in a case brought under FOIA. See 5 ILCS 140/11(i) (West 2010) ("If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorneys' fees and costs.").
¶ 12 On July 5, 2012, the City filed (1) a motion for judgment on the pleadings in order to resolve Wade's counterclaim, (2) a motion to dismiss Wade's petition for attorney fees, and (3) a motion for a written special finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
¶ 13 On July 11, 2012, the City filed a notice of appeal from the circuit court's dismissal of its complaint for administrative review, which was docketed as appellate court case No. 4-12-0662.
¶ 14 On July 18, 2012, the circuit court held a hearing on the parties' motions. In its July 27, 2012, written order, the court found the following:
"1. The Court grants [Wade] leave to file [his] counter-claim.
2. The Court grants [Wade's] petition for attorneys' fees and costs and awards attorney's fees and costs in the amount of $7, 500.00.
3. The City's motion to dismiss the petition for attorneys' fees is denied.
4. The City's motion for judgment on the pleadings with respect to [Wade's] counterclaim is denied.
5. [Wade's] counter-claim for injunctive relief is allowed, because the requested electronic records should be released and the City is ...