United States District Court, C.D. Illinois, Rock Island Division
SARA DARROW, District Judge.
On June 18, 2013, First American Data Tree LLC ("Data Tree") filed a three-count Third Party Complaint, ECF No. 24, against Michael Costello, in his official capacity as the Recorder of Deeds for St. Clair County, Illinois ("the Recorder"). The Recorder contracts with Fidlar Technologies ("Fidlar") to provide electronic records in bulk or compiled form, and Data Tree collects electronic real estate records from the Recorder using Fidlar's software services. Fidlar claims that Data Tree incurred a bill of nearly half a million dollars and refuses to pay it. Data Tree alleges that the bill is invalid because the Recorder's arrangement with Fidlar violates the Illinois Freedom of Information Act ("FOIA"), the Illinois Counties Code, and federal antitrust law. The Recorder moves to dismiss Count I (FOIA) of the Third Party Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and Count III (federal antitrust) under Rule 12(b)(6), ECF No. 36. For the reasons set forth below, the Court DENIES the Recorder's Motion to Dismiss.
At the motion to dismiss stage, well-pleaded facts alleged in the complaint are taken as true and all inferences are drawn in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Accordingly, the Court rests its decision on the following factual allegations:
Data Tree supplies electronic real property records and documents to its customers through its online electronic databases. In order to maintain and update its databases, Data Tree requests electronic copies of real property records, in bulk or compiled forms, from county entities across the country, like the Recorder. The Recorder disseminates its public records through Fidlar's programs, Tapestry and Laredo. The Laredo program offers access to public records in bulk or compiled form for a monthly fee. The Tapestry program charges a user for each search of public records ($5.95 per search) and for each page the user prints ($0.50 per page).
The Recorder contracted with Fidlar to be the exclusive and sole provider of its electronic public records in bulk or compiled form. The Recorder does not provide the records in electronic bulk or compiled form other than by and through Fidlar. From time to time, the Recorder, individually or by and through Fidlar, has restricted use of the public records by watermarking or otherwise defacing the public records copies as compared to the originals, and by placing language in the access agreements that limits the requester's use of the records.
On February 15, 2012, Data Tree and the Recorder entered into an agreement whereby the Recorder granted Data Tree electronic access to its public records through Fidlar's Laredo program (the "Laredo Agreement"). Under the Laredo Agreement, Data Tree agreed to pay $400 per month to the Recorder for unlimited access to its public records. In March 2012, Data Tree inadvertently used Tapestry, instead of Laredo, to search the Recorder's public records. On behalf of the Recorder, Fidlar charged Data Tree $417, 942.25 for those searches.
I. Rule 12(b)(1)
By moving to dismiss Count I under Federal Rule of Civil Procedure 12(b)(1), the Recorder is asserting that this Court lacks subject matter jurisdiction over Data Tree's claim. In particular, the Recorder asserts that (1) Data Tree does not have standing to bring its FOIA claim, and (2) Data Tree has not exhausted its administrative remedies under the FOIA. Mem. in Supp. Mot. Dismiss 3-5, ECF No. 37.
"In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or particular issues." Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (quoting Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999)). "Article III of the United States Constitution limits the jurisdiction of the federal courts to actual cases and controversies... [and] standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Schirmer v. Nagode, 621 F.3d 581, 584 (7th Cir. 2010) (citations omitted).
The Recorder offers no support for its contention that a plaintiff only has standing to bring a FOIA claim if he has "made a formal request for public documents to a public entity." See Mem. in Supp. Mot. Dismiss 3. Section 11(a) of the FOIA allows that "[a]ny person denied access to inspect or copy any public record by a public body may file suit for injunctive or declaratory relief." 5 ILCS 140/11(a). A denial of access, not a denial of one's specific request, provides standing to sue under the FOIA. Furthermore, "[t]he imposition of a fee not consistent with subsections (6)(a) and (b) of this Act constitutes a denial of access to public records for the purposes of judicial review." 5 ILCS 140/6(d). Therefore, if a public body imposes a fee that is not consistent with its authority to charge fees under the FOIA, the party on whom the fee is imposed has standing to ...