{ "id": 3777884, "name": "BRADLEY HARWOOD, Plaintiff-Appellant, v. PAM McDONOUGH, Director, et al., Defendants-Appellees", "name_abbreviation": "Harwood v. McDonough", "decision_date": "2003-10-17", "docket_number": "No. 1-02-2714", "first_page": "242", "last_page": "250", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 242" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "532 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9300487 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "10", "parenthetical": "and cases cited therein" }, { "page": "97", "parenthetical": "and cases cited therein" }, { "page": "1067", "parenthetical": "and cases cited therein" }, { "page": "11" }, { "page": "97" }, { "page": "1067" } ], "opinion_index": 0, "case_paths": [ "/us/532/0001-01" ] }, { "cite": "93 C 7362", "category": "reporters:state", "reporter": "Cow.", "year": 1998, "opinion_index": 0 }, { "cite": "421 U.S. 132", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541320 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "150-51" }, { "page": "47-48" }, { "page": "1516-17" } ], "opinion_index": 0, "case_paths": [ "/us/421/0132-01" ] }, { "cite": "689 N.E.2d 319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35376 ], "year": 1997, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0193-01" ] }, { "cite": "640 N.E.2d 1299", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1303" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2183337 ], "year": 2002, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0132-01" ] }, { "cite": "152 N.E.2d 576", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "14 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770664 ], "year": 1958, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0284-01" ] }, { "cite": "649 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483569 ], "year": 1995, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0107-01" ] }, { "cite": "766 N.E.2d 1118", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "1123" }, { "page": "1123" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58922 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0179-01" ] }, { "cite": "615 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "155 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810152 ], "year": 1993, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0402-01" ] } ], "analysis": { "cardinality": 875, "char_count": 17519, "ocr_confidence": 0.77, "pagerank": { "raw": 1.1563366841042143e-07, "percentile": 0.5829832163960138 }, "sha256": "18bdac7c999f978648c33f82335b3e547cbc5baa8a08c74cd2aa6e4ba6c07447", "simhash": "1:df57ddda2386fed8", "word_count": 2789 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BRADLEY HARWOOD, Plaintiff-Appellant, v. PAM McDONOUGH, Director, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE GALLAGHER\ndelivered the opinion of the court:\nPlaintiff, Bradley Harwood, filed this action on July 26, 2001, pursuant to the Illinois Freedom of Information Act (the Act) (5 ILCS 140/1 et seq. (West 2000)) against several defendants, including the Illinois Department of Commerce and Community Affairs (DCCA). The other defendants are employees of the State of Illinois, who, in their official capacities, are responsible for complying with the requirements of the Act at DCCA. Plaintiff made an initial request for records under the Act on May 16, 2001. He requested two items: (1) \u201ca copy of the report prepared by the consulting firm of Arthur Andersen (Andersen) concerning the relocation of the Boeing Company\u2019s headquarters to Illinois\u201d (the Andersen report) and (2) \u201ccopies of all invoices concerning the cost to the state of this report.\u201d\nAfter the plaintiff received no answer to his initial request, he sent an appeal letter, dated June 11, 2001. The defendants responded to plaintiffs appeal letter by producing a copy of a one-page \u201cExecutive Summary\u201d of the Andersen report, claiming the rest of the report was exempt from disclosure under exemptions in sections 7(1)(f) and 7(1) (g) of the Act, and also by stating that \u201cno invoice from Arthur Andersen has been remitted to the department as of this date.\u201d This action followed. In his complaint, plaintiff sought a permanent injunction against defendants prohibiting them from withholding the requested public records and an order for the production of these public records.\nDefendants answered the complaint regarding the Andersen report by again claiming it was exempt from disclosure under the previously claimed exemptions in sections 7(l)(f) and 7(l)(g), as well as the additional exemptions in sections 7(1) (i) and 7(l)(r) of the Act and by producing a copy of the contract between DCCA and Andersen. Ultimately, the parties filed cross-motions for summary judgment.\nOn August 1, 2002, the trial court denied plaintiffs motion for summary judgment and granted defendants\u2019 motion for summary judgment. On August 13, 2002, plaintiff filed a \u201cMotion for Clarification of Court\u2019s August 1, 2002 Ruling or for Summary Judgment on Plaintiffs Outstanding Claims for a Redacted Andersen Study and Improper Withholding of Invoices and for Attorneys Fees for Work Required to Obtain Redacted Report and Invoices.\u201d This motion was denied on August 19, 2002. Plaintiff now appeals the orders of August 1, 2002, and August 19, 2002.\nSTANDARD OF REVIEW\nWe review de novo the trial court\u2019s grant of summary judgment. In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). Summary judgment is a drastic means of disposing of litigation. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186, 766 N.E.2d 1118, 1123 (2002). Therefore, summary judgment is appropriate only when \u201c \u2018the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u2019 \u201d Happel, 199 Ill. 2d at 186, 766 N.E.2d at 1123, quoting 735 ILCS 5/2 \u2014 1005(c) (West 2000); see also Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Because the parties here filed cross-motions for summary judgment, they have agreed that no genuine issue of material fact exists and invite the court to decide the issues presented as questions of law. Allen v. Meyer, 14 Ill. 2d 284, 292, 152 N.E.2d 576 (1958). Nevertheless, where genuine issues of fact exist precluding summary judgment in favor of either party, the mere filing of cross-motions for summary judgment does not require that the court grant the requested relief to one of the parties. Hagen v. Distributed Solutions, Inc., 328 Ill. App. 3d 132, 137, 764 N.E.2d 1141, 1145-46 (2002).\nUnder the Illinois Freedom of Information Act, public records are presumed to be open and accessible. Illinois Education Ass\u2019n v. Illinois State Board of Education, 204 Ill. 2d 456, 462-63, 791 N.E.2d 522, 526 (2003), citing Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407, 680 N.E.2d 374 (1997). \u201c[I]f the party seeking disclosure of information under the Act challenges the public body\u2019s denial in circuit court, the public body has the burden of proving that the records in question fall within the exemption it has claimed.\u201d Illinois Education Ass\u2019n, 204 Ill. 2d at 464, 791 N.E.2d at 527, citing Lieber, 176 Ill. 2d at 408, 680 N.E.2d 374, and 5 ILCS 140/11 (West 2000). \u201c \u2018To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.\u2019 \u201d (Emphasis in original.) Illinois Education Ass\u2019n, 204 Ill. 2d at 464, 791 N.E.2d at 527, quoting Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 537, 548 N.E.2d 1110 (1989).\nHere, defendants raised four affirmative defenses asserting that the Andersen report was exempt under four separate exemptions of section 7 of the Act. 5 ILCS 140/7 (West 2000). Section 7 and the relevant exemptions state as follows:\n\u201c(1) The following shall be exempt from inspection and copying:\n* * *\n(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.\n(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm, including all information determined to be confidential under Section 4002 of the Technology Advancement and Development Act. [20 ILCS 700/4002 (West 2000).] Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.\n(i) Valuable formulae, designs, drawings and research data obtained or. produced by any public body when disclosure could reasonably be expected to produce private gain or public loss.\n*\n(r) Drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligations is made.\u201d 5 ILCS 140/ 7(l)(f), (l)(g), (l)(i), (l)(r) (West 2000)).\nDefendants concede that they have the burden of proving that a withheld document falls within an exemption. Defendants also note correctly that this court need only conclude that one of the four exemptions applies to plaintiffs request in order for defendants to prevail. We conclude that section 7(1) (f) applies to plaintiffs request and exempts the Andersen report from public disclosure.\nSection 7(l)(f) of the Act is the equivalent of the \u201cdeliberative process\u201d exemption found in section 552(b)(5) of the federal Freedom of Information Act, which exempts from disclosure inter- and intraagency predecisional and deliberative material. See 5 U.S.C. \u00a7 552(b)(5) (2000). As the Illinois Supreme Court explained: \u201cThe . existence of an FOIA exemption for predecisional materials is evidence of a public policy favoring the confidentiality of such communications.\u201d People ex rel. Birkett v. City of Chicago, 184 Ill. 2d 521, 528-29, 705 N.E.2d 48, 51 (1998). We agree with defendants\u2019 interpretation of the Birkett case as evincing recognition by our supreme court that, as a matter of public policy, section 7(l)(f) exempts from disclosure predecisional materials used by a public body in its deliberative process.\nIn Birkett, the City of Chicago had argued that information exempt from disclosure to the general public under the Act\u2019s deliberative process exemption should also be undiscoverable by a civil litigant as a deliberative process litigation privilege. The Birkett court refused to recognize such a deliberative process privilege, but only after recognizing that the exemption did exist. Thus, to the extent plaintiff relies on Birkett as standing for the proposition that Illinois does not recognize a deliberative process exemption under the Act, his reliance is misplaced. The actual issue addressed by the Birkett court was \u201cwhether the legislature sought to create an analogous evidentiary privilege.\u2019 \u2019(Emphasis added.) Birkett, 184 Ill. 2d at 529, 705 N.E.2d at 51. The Birkett court did not hold that a deliberative process exemption did not exist in Illinois.\nPlaintiff contends, however, that section 7(l)(f) is inapplicable to the Andersen report because the report is a final, finished document. Defendants argue that plaintiff erroneously interprets the word \u201cpreliminary\u201d as referring to the posture of the particular document sought to be disclosed and further assert that section 7(l)(f)\u2019s use of the word \u201cpreliminary\u201d in this context refers to predecisional intra-agency communications. We agree with defendants\u2019 interpretation.\nBoth parties have acknowledged that no reported Illinois decision has interpreted section 7(l)(f)\u2019s use of the word \u201cpreliminary.\u201d The Act was patterned after the federal Freedom of Information Act (5 U.S.C. \u00a7 552 (2002)). Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1012, 640 N.E.2d 1299, 1303 (1994). Thus, it is helpful to look to cases interpreting the parallel provision in the federal Freedom of Information Act. People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201, 689 N.E.2d 319, 325 (1997). The deliberative process privilege exemption of the federal statute is intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made. National Labor Relations Board v. Sears Roebuck & Co., 421 U.S. 132, 150-51, 44 L. Ed. 2d 29, 47-48, 95 S. Ct. 1504, 1516-17 (1975). Case law construing the exemption has explained that it \u201cprotects pre-decisional, deliberative communications that are part of an agency\u2019s decision-making process.\u201d Parmelee v. Camparone, No. 93 C 7362 (N.D. Ill. October 1, 1998).\nCourts have extended this exemption to communications between government agencies and outside consultants whose analyses and recommendations \u201cplayed essentially the same part in an agency\u2019s process of deliberation as documents prepared by agency personnel might have done.\u201d Department of the Interior v. Klamath Water Users Protective Ass\u2019n, 532 U.S. 1, 10, 149 L. Ed. 2d 87, 97, 121 S. Ct. 1060, 1067 (2001) (and cases cited therein). The pivotal fact that remains constant in each case in which the exemption has been extended to consultants\u2019 documents is that \u201cthe consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.\u201d Klamath Water Users, 532 U.S. 1, 11, 149 L. Ed. 2d 87, 97, 121 S. Ct. 1060, 1067. Such is the case here with the Andersen report. The Andersen report was one of the materials on which DCCA relied in formulating its ultimate decision of whether to pursue the Boeing relocation and the components of its incentive package once it made that decision. Although the report constituted the \u201cfinal\u201d product of the outside consultant, Arthur Andersen, it was nonetheless a \u201cpreliminary\u201d document in relationship to the eventual and \u201cfinal\u201d decision made by DCCA.\nPlaintiff nonetheless argues that the exemption in section 7(1) (f) does not apply to the Andersen report because the legislature, by writing a limitation at the end of this exemption, clearly intended to disallow an agency to withhold a preliminary document from disclosure where it is \u201cpublicly cited and identified by the head of the public body.\u201d Plaintiff asserts that both the director of DCCA, Pam McDon-ough, and Governor George Ryan publicly cited the Andersen report.\nPlaintiff points to comments made by Governor Ryan in a radio address and by Director McDonough at public hearings, plus materials she provided for those hearings. Specifically, plaintiff cites the following:\n(1) Governor Ryan\u2019s statement in \u201cRyan Radio Report #13,\u201d of May 12, 2001, that \u201c[i]n Boeing\u2019s case, the consulting firm Arthur Anderson says Boeing\u2019s new headquarters will mean $4.5 billion in economic impact for Illinois\u201d;\n(2) Director McDonough\u2019s statement during her testimony before the House Revenue Committee that \u201cbased on a conservative analysis by Arthur Anderson, the 20 year impact of this corporate relocation is $4.3 billion\u201d; and\n(3) charts that were distributed to those present which contained information that was not listed on the executive summary.\nAs defendants correctly assert, however, Director McDonough\u2019s and Governor Ryan\u2019s statements did not cite the Andersen study itself, but rather cited information contained only in the executive summary, a document that was prepared specifically for public release and that was provided to plaintiff. Moreover, the charts were part of Director McDonough\u2019s Power Point presentation that recapitulated all of the information contained in the executive summary and also did not cite to the complete, full Andersen study itself. Thus, plaintiffs request for the Andersen report was exempt from disclosure under section 7(l)(f) of the Act.\nWe now address the second part of plaintiffs request for \u201ccopies of all invoices concerning the cost to the state of this report.\u201d Plaintiff argues that defendants had no basis in law to withhold invoices in response to his request. Defendants did not withhold the invoices. Instead, defendants correctly and truthfully informed plaintiff that \u201cno invoice from Arthur Andersen has been remitted to the department as of this date.\u201d (Emphasis added.) The Act is not a records acquisition act.\nPlaintiff nonetheless claims that this response was evasive. He contends that \u201cinvoice\u201d is a broadly defined word and that had defendants looked to a dictionary they could have understood that plaintiffs request for \u201cinvoices\u201d required production of all documents in DCCA\u2019s possession, including any \u201ccontracts\u201d \u2014 even those that were not yet signed \u2014 that would have disclosed the cost of the Andersen study to the state. We agree with defendants that if what plaintiff wanted were all documents that disclosed the cost of the Andersen study to the state, a statement as simple as that would have sufficed. Because plaintiff\u2019s request asked specifically for invoices, none of which had been submitted to the Department as of the date of defendants\u2019 response, the defendants did not improperly withhold any invoices.\nWe further conclude that the trial court correctly denied plaintiffs motion for a redacted copy of the Andersen report. The trial court conducted an in camera review of the report. The trial court found that no portion of the report was nonexempt. During the hearing on plaintiffs motion for clarification, the court concluded that plaintiff was not entitled to a redacted report, within the meaning of the Act, if the result of the redaction was a document consisting of blank pages, along with meaningless pronouns and articles such as the words \u201cand,\u201d \u201cor,\u201d \u201cbut,\u201d etc. We conclude that the trial court correctly denied plaintiff\u2019s motion for summary judgment on plaintiff\u2019s outstanding claims for a redacted Andersen study and improper withholding of invoices.\nPlaintiff has also raised numerous other issues, which we decline to consider. In view of our conclusion that defendants did not violate the Act, we agree with defendants that the additional collateral issues raised by plaintiff are moot and nonprejudicial.\nFor the foregoing reasons, we affirm the judgment of the trial court.\nAffirmed.\nO\u2019HARA FROSSARD, EJ., and O\u2019BRIEN, J., concur.\nWe note one of the collateral issues raised in plaintiffs brief is his contention that the trial court ruled incorrectly that the exemptions in the Act constitute legally sufficient affirmative defenses because the exemptions are instead mere defenses. We reject plaintiffs argument. The Act\u2019s disclosure mandate contained in section 3(a) states as follows: \u201c[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.\u201d 5 ILCS 140/3(a) (West 2000). We conclude that the exemptions contained in section 7 constitute affirmative defenses which the defendant has the burden of pleading and proving. We agree with defendants\u2019 argument that a plaintiff should state only ultimate facts in drafting a complaint. A plaintiff need not anticipate an affirmative defense. That plaintiff may have done so here does not change our conclusion that the trial court correctly denied plaintiffs motion to strike defendants\u2019 affirmative defenses.", "type": "majority", "author": "JUSTICE GALLAGHER" } ], "attorneys": [ "Dolores C. Pino, of Morton Grove, for appellant.", "Shefsky & Froelich, Ltd., of Chicago (Patricia S. Spratt and Howard A. Davis, of counsel), for appellees." ], "corrections": "", "head_matter": "BRADLEY HARWOOD, Plaintiff-Appellant, v. PAM McDONOUGH, Director, et al., Defendants-Appellees.\nFirst District (6th Division)\nNo. 1-02-2714\nOpinion filed October 17, 2003.\nDolores C. Pino, of Morton Grove, for appellant.\nShefsky & Froelich, Ltd., of Chicago (Patricia S. Spratt and Howard A. Davis, of counsel), for appellees." }, "file_name": "0242-01", "first_page_order": 260, "last_page_order": 268 }