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Garlick v. The Office of Public Access Counselor

Court of Appeals of Illinois, First District, Third Division

December 31, 2013

WARREN R. GARLICK, Plaintiff-Appellant,
v.
THE OFFICE OF THE PUBLIC ACCESS COUNSELOR, SARAH PRATT, in Her Official Capacity as Public Access Counselor for the Illinois Attorney General's Office, and OAK PARK-RIVER FOREST HIGH SCHOOL DISTRICT No. 200, Defendants-Appellees.

Appeal from the Circuit Court of Cook County No. 11 CH 7587 Honorable Neil H. Cohen, Judge Presiding.

COUNSEL FOR APPELLANT Warren R. Garlick, of River Forest, IL

COUNSEL FOR APPELLEES (Office of the Public Access Counselor and Sarah Pratt) Lisa Madigan, Attorney General State of Illinois (Michael A. Scodro, Solicitor General Clifford W. Berlow, Assistant Attorney General).

COUNSEL FOR APPELLEE (Oak Park River Forest High School) Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., of Chicago, IL (Paul N. Keller, Mark R. Heinle).

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion.

OPINION

PUCINSKI, JUSTICE.

¶ 1 When Oak Park-River Forest High School District No. 200 (the District) denied Warren Garlick's request for some unredacted public documents, Garlick asked the Attorney General, through its Office of the Public Access Counselor (the PAC), to review the decision. The PAC issued a letter in which it found that the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)) permitted the District's redactions from the copies of the public documents sent to Garlick. Garlick then sued the District and the PAC in circuit court. The circuit court held that the PAC's letter qualified as a binding opinion, subject to review only under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). The court then held that Garlick had not met the applicable standard for showing that the PAC erred, so the court dismissed the complaint. On appeal, we find that the PAC did not issue a binding opinion, and therefore, Garlick may sue the District directly, without filing an administrative review action. We modify the dismissal of Garlick's complaint to make it a dismissal with prejudice of only the claim against the PAC, and we remand to allow Garlick to amend his complaint to state a cause of action against the District for injunctive or declaratory relief. See 5 ILCS 140/11(a) (West 2010).

¶ 2 BACKGROUND

¶ 3 On March 4, 2010, Garlick, a resident of River Forest, asked the District to give him copies of "All school monthly accounting statements reflecting charges incurred in connection with the disbursement vouchers reflecting payments to the law firm Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer (Ancel Glink) for the last six months." The District sent the requested documents, but it made significant redactions from the documents. In a letter accompanying the documents, the District wrote:

"The redacted information is exempt from disclosure under the [FOIA] as it includes communications between the School District and an attorney representing the School District that would not be subject to discovery in litigation. Thus, the information is exempt from disclosure under Section 7(1)(m) of the [FOIA] and may be redacted by the School District. 5 ILCS 140/7(1)(m) [(West 2010)]."

¶ 4 Garlick asked the PAC to review the redactions. The District sent the PAC unredacted copies of the documents it sent to Garlick. On January 25, 2011, the PAC sent Garlick and the District a letter in which the PAC said:

"Section 3(a) of FOIA (5 ILCS 140/3(a) [(West 2010)]) provides that '[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.' Under Section 1.2 of FOIA (5 ILCS 140/1.2 [(West 2010)]), '[a]ll records in the custody of a public body are presumed to be open to inspection and copying.' This section further states that '[a]ny public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.' (Emphasis added.)
Upon review of the unredacted copy of the legal bills, this Office concludes that [the District] has met its burden and that the information is exempt from disclosure under Section 7(1)(m). While we note that several of the redactions contain references to matters that were not underlying lawsuits, they do contain references to a particular subject matter. [The District] has relied upon the services of Ancel Glink to develop a course of action with regard to these ...

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