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Garlick v. Naperville Township

Court of Appeals of Illinois, Second District

September 15, 2017

WARREN R. GARLICK, Plaintiff-Appellant,
NAPERVILLE TOWNSHIP, Defendant-Appellee.

         Appeal from the Circuit Court of Du Page County, No. 14-CH-2263; the Hon. Paul M. Fullerton, Judge, presiding.

          Warren R. Garlick, of River Forest, appellant pro se.

          Steven B. Adams, Kenneth M. Florey, and M. Neal Smith, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Warren R. Garlick, sought, under the Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 2016)), from defendant, Naperville Township, an electronic copy of its real-property database in its native file format. The township declined to provide an electronic copy of the database, but it directed plaintiff to its website, where he could search for the records on a parcel-by-parcel basis. 5 ILCS 140/8.5 (West 2016). Plaintiff, pro se, filed a complaint for declaratory and injunctive relief, arguing that access to the data on a parcel-by-parcel basis on the website did not constitute reasonable access. See id. The trial court granted the township's motion to dismiss. This court reversed and remanded, holding that plaintiff properly pleaded the reasonable-access claim, which presented a question appropriately addressed in a summary judgment motion or at trial. Garlick v. Naperville Township, 2016 IL App (2d) 150381-U, ¶ 27.

         ¶ 2 On remand, upon the parties' cross-motions for summary judgment, the trial court denied plaintiff's motion and granted the township's. The court rejected plaintiff's claim that because industry-wide database standards could be expressed in only a few ways, there was no intellectual-property protection over any database. It also found that two statutory exemptions applied to preclude disclosure of the database in its native file format because the township's software vendor, JRM Consulting, Inc. (JRM), asserted confidentiality, trade secret, and copyright claims over its intellectual property. 5 ILCS 140/7(1)(a) (West 2016) (information, such as copyrights or trade secrets that are prohibited from disclosure by federal or state law); 5 ILCS 140/7(1)(g) (West 2016) (proprietary or confidential trade secret or financial information, where disclosure would cause competitive harm). Plaintiff, pro se, appeals. We affirm.

         ¶ 3 I. BACKGROUND

         ¶ 4 A. Proceedings Leading to First Appeal

         ¶ 5 Plaintiff is a resident of River Forest, which is situated in Cook County. The township is a unit of local government situated in Du Page County and a "public body" under the Act. 5 ILCS 140/2(a) (West 2016).

         ¶ 6 The township assesses all real property within its boundaries for local taxation purposes. There are about 32, 000 real property records on parcels within its jurisdiction. As part of the assessment process, the township gathers, assembles, and maintains information concerning the valuation and assessment of the parcels. The information is entered into and stored in a database that the township commissioned.

         ¶ 7 As part of the database system, a webserver allows the public to retrieve property information on a parcel-by-parcel basis from the database. The server does not allow a user to search multiple parcels at one time. Further, a user cannot perform a search based on any other property information on the data-display page, such as property size or age and number of bedrooms or bathrooms. Nor can one perform a collective statistical analysis of the parcels.

         ¶ 8 On December 4, 2014, plaintiff submitted to the township a request pursuant to the Act (FOIA request). First, he noted that the township's website "enables the public to search for property details based on" parcel numbers and that the details are stored in the database ("most likely [Microsoft] SQL Server or MySQL"). Further, "[p]ursuant to FOIA, I request a copy of this database in its native file format, " which "refers to the file format which the application works with during creation, edition or publication of a file."[1] Second, as to photographs, improvement sketches, and site maps, all of which were in the form of .jpeg files and were not contained in the database, plaintiff sought a copy of the "N07" root or parent directory and all subdirectories, including the .jpeg files stored therein, preserved onto a suitable electronic medium. Plaintiff stated that his request was "nothing more than a simple 'copy and paste' of the database in question to a suitable electronic media (such as a DVD) along with a similar 'copy and paste' of the 'N07' directory and all subdirectories and files beneath that directory."

         ¶ 9 On December 12, 2014, the township sent plaintiff a letter denying his request. It asserted that, pursuant to section 8.5 of the Act (5 ILCS 140/8.5 (West 2016)), which had been recently enacted, it was no longer required to provide these electronic records in the manner or format that plaintiff had requested because it had posted the information on its website. It directed plaintiff to the website for the data, noting that it consisted of over 32, 000 individual property records.

         ¶ 10 The township further stated:

"The property records software, as currently constituted, is incapable of generating assessment records on a Township-wide basis. In addition, it is not feasible to provide the records requested, as the Assessor's Office does not have possession of or access to the database in its native file format. (See 5 ILCS 104/6(a)). Nor is the Assessor's Office required to create such a file under [the Act]. (See 5 ILCS 140/1)."

         The township also stated that although plaintiff's request was silent on the issue, the township was treating his request as a commercial request.

         ¶ 11 On December 19, 2014, plaintiff filed against the township his complaint for declaratory and injunctive relief, alleging a violation of the Act. 5 ILCS 140/11(a) (West 2014). He asserted that his request amounted to "nothing more than a single 'cut and paste' operation, imposing no significant burdens on the Township." Plaintiff argued that the township was compelling him to launch 32, 000 independent web database search queries and to copy and paste each of them into a table of his own creation. He estimated that such a project would involve over 2600 hours of his time, which could not have been the General Assembly's intent in enacting section 8.5. Addressing the township's claim that it could not feasibly provide the requested records, plaintiff asserted that the township possessed and had access to the data, which was stored on its local server at its office and backed up in the "cloud." He also asserted that copying the database did not constitute the creation of a new record that the township had no statutory obligation to provide.

         ¶ 12 The township moved under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)) to dismiss plaintiff's complaint, arguing that plaintiff failed to state a cause of action under the Act because (1) the Act unambiguously no longer required a public body to copy public records that are available online, (2) the undisputed facts showed that plaintiff had reasonable access to the records he requested and that section 8.5 of the Act did not dictate how or in what form records must be posted online, (3) the legislative history supported the township's position, and (4) the Act did not require a public body to spend funds to benefit private individuals, such as by creating, maintaining, or producing records in a specific format. Accordingly, the township sought dismissal with prejudice. (The motion did not address the township's statement in its denial letter that its software was incapable of generating the records on a township-wide basis or that it did not possess or have access to the database in its native file format.)

         ¶ 13 After a hearing, the trial court granted the township's motion, finding that (1) the township complied with section 8.5 of the Act, (2) there were no allegations that any information was unavailable, and (3) "[i]t just requires a little longer format and search, but it is published as required by law."

         ¶ 14 On appeal, this court reversed and remanded, holding that dismissal was improper because plaintiff stated a claim that the requested records were not reasonably accessible pursuant to section 8.5 of the Act, thus presenting a question appropriately addressed in a summary judgment motion or at trial. Garlick, 2016 IL App (2d) 150381-U, ¶ 27.

         ¶ 15 B. Proceedings on Remand

         ¶ 16 On April 21, 2016, plaintiff moved for summary judgment (735 ILCS 5/2-1005 (West 2016)). He alleged that the effort required for him to recreate the database-over 2600 hours of his time-and the ease with which the township could provide the same were not in contention; the only remaining question was the reasonable-access issue; and the policy behind the Act dictates that requiring him to engage in one year's worth of effort to retrieve the records online fails the reasonable-access threshold.

         ¶ 17 In its response, the township argued that plaintiff's motion must fail because (1) plaintiff failed to present any verified pleadings, depositions, admissions, or affidavits to support his claim for summary judgment and (2) factual and legal issues precluded summary judgment in plaintiff's favor, including that the township could not provide plaintiff the database in its native file format because it does not possess the data in that format, plaintiff rejected the spreadsheet the township offered, and, even if the township possessed the database in its native file format, the information plaintiff seeks is protected intellectual property that is exempt from disclosure under the Act. The township invoked (1) section 7(1)(g) of the Act (5 ILCS 140/7(1)(g) (West 2016)), arguing that disclosure would cause competitive harm to JRM because the data contains proprietary information; (2) section 7(1)(i) of the Act (5 ILCS 140/7(1)(i) (West 2016)), arguing that the request was subject to JRM's claim that the information contains valuable formulae and designs, the disclosure of which could ...

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