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Nelson v. Kendall County

Supreme Court of Illinois

May 22, 2014

LARRY NELSON, et al., Appellants,
KENDALL COUNTY, et al., Appellees

Page 894


A state's attorney's office is a part of the executive branch which, as a public body as defined by the Freedom of Information Act, is subject to its disclosure requirements--claim of exemption as part of the judiciary rejected.

For APPELLANT: Ms. Laura Lee Malinowski, Mr. Grant Steven Wegner, Mr. R. Peter Grometer, Mahoney, Silverman & Cross, LLC, Joliet, IL.

For APPELLEE: Mr. Scott Ian Jacobson, Staff Attorney, Elgin, IL; Mr. Charles Manning Colburn, Office State's Attorneys Appellate Prosecutor, Springfield, IL; Mr. Lawrence Michael Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin IL; Patrick Joseph Delfino, State's Attorneys Appellate Prosecutor, Springfield, IL; Hon. Eric Christopher Weis, Kendall County State's Attorney, Yorkville, IL; Ms. Leslie Jennifer Johnson, Asst. State's Attorney of Kendall County, Kendall County State's Attorney's Office, Yorkville, IL.

For AMICUS CURIAE: Ms. Jane Elinor Notz, Deputy Solicitor General, Chicago, IL; Mr. Paul Anthony Castiglione, Assistant State's Attorney, Chicago, IL.

For OTHER: Ms. Esther Judith Seitz, Donald M. Craven, P.C., Donald M. Craven, P.C., Springfield, IL.

JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.


Page 895


[¶1] The issue on this appeal is whether the office of the State's Attorney of Kendall County is exempt from the disclosure requirements of the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq . (West 2010)) on the grounds that the State's Attorney's office is part of the judicial branch of Illinois government and therefore beyond the reach of the FOIA. The circuit court answered this question in the affirmative and, on that basis, dismissed two related causes of action brought by plaintiffs to compel disclosure of certain public records generated by personnel in the Kendall County State's Attorney's office. The appellate court affirmed. 2013 IL App (2d) 120635, 990 N.E.2d 1237, 371 Ill.Dec. 859. We granted plaintiffs' petition for leave to appeal. Ill. S.Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, we reverse and remand to the circuit court for further proceedings.


[¶3] Larry Nelson is an employee of various media companies, including WSPY radio in Plano, Illinois. On September 2, 2010, he submitted a request to Kendall County under this state's Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq . (West 2012)) on behalf of his employers to inspect and copy all emails and attachments sent and received by two county employees from January 1, 2010, to January 31, 2010, via " county email and or internet." The two employees in question, Michael Ready and Robert Dore, both worked as assistant State's Attorneys.

[¶4] By letter dated October 4, 2010, Kendall County's Freedom of Information Officer advised Nelson that the records he requested " would be in the charge of the Office of the State's Attorney for Kendall County" and advised him to submit his FOIA request directly to that office. Contact information for the State's Attorney's office and its FOIA officers was included in the letter.

[¶5] Nelson challenged how his request was being handled. In an Oct. 5, 2010, letter to Kendall County's FOIA officer, he charged that Kendall County Administrative Services was in possession of the documents he requested; that, by the State's Attorney's own admission, Kendall County's policies on " use of computers, email, and personal use of county property" had been violated by the State's Attorney's office; and in light of that violation it was inappropriate for Kendall County to refer Nelson to the State's Attorney's office. Nelson demanded that Kendall County comply with his FOIA request within 5 days of the original request and requested a waiver of all fees on the grounds that the information requested was for public dissemination.

[¶6] On October 6, 2010, Kendall County's FOIA officer notified Nelson in writing that because there was " a need for consultation *** with another public body or among two or more components of a public body [which] have a substantial interest in the determination or in the subject matter of the request," Kendall County would be unable to respond to the request within the 5-day period and would, instead, respond on or before October 14th.

[¶7] When no response was forthcoming, Nelson submitted a request for review to the Public Access Counselor in the Office of the Illinois Attorney General, a procedure authorized by section 9.5 of the FOIA (5 ILCS 140/9.5 (West 2012)). The Attorney General's office ...

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