People ex Rel. Ulrich v. Stukel

Annotate this Case
FIFTH DIVISION
FILED: 12/31/97

No. 1-97-0698 &
1-97-1729 (Consolidated)

PEOPLE ex rel. WILLIAM J. ULRICH, SR., ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. )
)
JAMES J. STUKEL, as president of the )
UNIVERSITY OF ILLINOIS; and THE BOARD )
OF TRUSTEES OF THE UNIVERSITY OF )
ILLINOIS, ) HONORABLE
) LESTER D. FOREMAN,
Defendants-Appellees. ) JUDGE PRESIDING.

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff filed the instant action seeking injunctive
and/or declaratory relief under the Freedom of Information Act
(hereinafter "FOIA" or "the Act")(5 ILCS 140/1 et seq. (West
1994)), alleging that he was entitled to certain records held by
the defendants, the board of trustees of the University of
Illinois, and James Stukel, the University president. The
defendants initially declined to produce the requested documents
claiming certain exemptions under the Act; however, prior to trial,
they waived the exemptions previously claimed and produced the
documents sought by the plaintiff. The trial court then entered an
order dismissing the case as moot, and denying a request for
attorney fees filed by the plaintiff under section 11(i) of the Act
(5 ILCS 140/11(i) (West 1994)). The plaintiff appealed under our
docket No. 1-97-0698.
Thereafter, the plaintiff filed a petition under section 2-
1401 of the Code of Civil Procedure (Code)(735 ILCS 5/2-1401 (West
1994)), alleging the existence of new facts warranting relief from
the initial judgment. The court denied the relief requested by the
plaintiff and the plaintiff again appealed, under docket No. 1-97-
1729. We consolidated the two appeals. The plaintiff now contends
that the court erred in (1) refusing to consider his FOIA claim
under the "public interest" exception to the mootness doctrine; (2)
denying him relief under Code section 2-1401; and (3) denying his
request for attorney fees under section 11(i) of the Act.
The plaintiff's FOIA request arose from an underlying suit he
filed as a taxpayer against the University of Illinois (hereinafter
"University") and Bruce Bosmann, an associate dean of its College
of Medicine. People ex rel. William J. Ulrich Sr. v. Bruce
Bosmann, No. 94 CH 5855 (Cir. Ct. Cook Co.). The Bosmann case was
initially dismissed, but this court reversed the dismissal and
remanded the case for further proceedings (People ex rel. William
J. Ulrich, Sr. v. Bosmann, 279 Ill. App. 3d 36, 664 N.E.2d 119
(1996)). The Bosmann case alleged that two former professors at
the University's medical school, with the approval of Bosmann and
other University officials, illegally removed medical research
equipment belonging to the State when they transferred to the
University of Texas. According to the plaintiff, the conduct of
the professors and University officials was violative of the
Recovery of Fraudulently Obtained Public Funds Act (735 ILCS 5/20-
101 et seq. (West 1992)).
While the Bosmann suit remained pending, the plaintiff
submitted the FOIA request at issue, seeking the following:

"[A]ll University monthly accounting statements ***
reflecting charges incurred in connection with:

a. the disbursement vouchers reflecting
payments to the law firm of Keck, Mahin & Cate in
connection with the suit generally known as [the
Bosmann suit], and any appeals thereof;

b. the disbursement vouchers reflecting
payments to the law firm of Burditt & Radzius,
Chartered in connection with [the Bosmann
suit], and any appeals thereof; and

c. the disbursement vouchers reflecting
payments to the law firm of Siegan Barbakoff Gomberg
& Kane, Ltd., in connection with [the Bosmann suit],
and any appeals thereof."
According to the plaintiff, he allegedly needed the records to
ascertain whether the University was illicitly using its own funds
to pay for the defenses of the University defendants in the Bosmann
suit. The plaintiff claimed that such funding by the University,
in relevant part, circumvented the role of the attorney general
under the State Employee Indemnification Act (5 ILCS 350/0.01 et
seq. (West 1994)), and violated the University of Illinois Act (110
ILCS 305/7a (West 1994)).
The University's public records officer declined the
plaintiff's request under section 7(1)(n) of the Act (5 ILCS
140/7(1)(n) (West 1994)). Section 7(1)(n) exempts from disclosure
all "[c]ommunications between a public body and an attorney or
auditor representing the public body that would not be subject to
discovery in litigation***." According to the officer, documents
containing information regarding payments to counsel on active
cases constituted confidential communications under section
7(1)(n). The plaintiff appealed this decision to University
president Stukel, who similarly found the records exempt under
section 7(1)(n), and in addition, under section 7(1)(a) of the Act.
On September 23, 1996, the plaintiff filed the instant FOIA
suit seeking declaratory and/or injunctive relief based upon the
defendants' denial of the requested records. The plaintiff
subsequently filed a motion for an in camera inspection of the
records. On December 2, 1996, the court ordered that the
defendants produce the documents for an in camera inspection, and
set a January 6, 1997, hearing date on the complaint.
On December 23, 1996, the defendants notified the court and
the plaintiff that they were waiving the exemptions previously
asserted under the Act and were producing the documents sought by
the plaintiff. The plaintiff then filed an application for
reimbursement of its attorney fees pursuant to FOIA section 11(i).
5 ILCS 140/11(i) (West 1994).
The defendants moved to dismiss the case as moot in light of
their voluntary production of the records sought in the complaint.
In response, the plaintiff contended that the case was not moot
because his demand for attorney fees remained unresolved. The
plaintiff also argued that in any event, the court should consider
the case under the "public interest exception" to the mootness
doctrine, because his future entitlement to the requested documents
or others similar to them were matters of public concern that were
likely to recur.
On January 6, 1997, following a hearing, the court entered an
order denying the plaintiff's application for attorney fees, and
dismissing the case as moot. The court found that the case did not
fall under the public interest exception to the mootness doctrine
because, in relevant part, the plaintiff had failed to show that
the issue was one that was likely to recur. The plaintiff's motion
to reconsider was subsequently denied, and he filed a notice of
appeal.
On March 11, 1997, the plaintiff filed a section 2-1401
petition to vacate the order of January 6, 1997. He alleged the
existence of new facts, namely, the defendants' denial of a FOIA
request made subsequent to January 6, which supposedly demonstrated
that this case should have been considered under the public
interest exception to the mootness doctrine. The trial court
disagreed, and denied the requested relief under section 2-1401,
finding that the new facts did not alter its determination in the
January 6 judgment. The plaintiff appealed from this decision.
The plaintiff first argues that the court erred in dismissing
his initial suit as moot. He admits the defendants produced the
requested documents, which were accounting statements reflecting
the fees the University paid its attorneys in the Bosmann case. He
also agrees that, because the requested statements have been
released, the question of whether or not they must be produced
under FOIA is now moot. However, he urges that this matter should
have been considered under the public interest exception to the
mootness doctrine.
An issue is moot where an actual controversy no longer exists
between the parties or where events have occurred that make it
impossible for the court to grant effectual relief. Wheatley v.
Board of Education of Township High School District 205, 99 Ill. 2d 481, 484-85, 459 N.E.2d 1364 (1984); Indlecoffer v. Village of
Wadsworth, 282 Ill. App. 3d 933, 938-39, 671 N.E.2d 1127 (1996).
Courts have a responsibility to decide actual controversies by
rendering judgments which can be carried into effect; a court
should not resolve a question simply to set precedent, or to
provide governance for future actions. People ex rel. Partee v.
Murphy, 133 Ill. 2d 402, 410, 550 N.E.2d 998 (1990); see also
People ex rel. Sklodowski v. State, 162 Ill. 2d 117, 130-31, 642 N.E.2d 1180 (1994).
An exception to the mootness doctrine may be applied where the
question at issue is one of "substantial public interest". In
determining whether this exception applies, courts consider whether
(1) the question is of a public nature; (2) an authoritative
resolution of the question is desirable for the purpose of guiding
public officers, and (3) the question is likely to recur. Lucas v.
Lakin, 175 Ill. 2d 166, 170, 676 N.E.2d 637 (1997); Bonaguro v.
County Officers Electoral Board, 158 Ill. 2d 391, 395, 634 N.E.2d 712 (1994). A clear showing on each of the above criteria is
necessary to bring the case within the public interest exception.
Bonaguro, 158 Ill. 2d at 395. Our supreme court invokes the
exception only on rare occasions where there is an extraordinary
degree of public concern and interest (Murphy, 133 Ill. 2d at 410;
People ex rel. Cairo Turf Club, Inc., v. Taylor, 2 Ill. 2d 160, 116 N.E.2d 880 (1954)). In determining whether or not a trial court
properly considered the public interest exception, this court has
applied an abuse of discretion standard. See Sharma v. Zollar, 265
Ill. App. 3d 1022, 1028-29, 638 N.E.2d 736 (1994).
According to the plaintiff, this issue falls under the public
interest exception because (1) the public has a right to learn how
the University spends public funds, particularly where such funds
are likely being used to defeat a taxpayer action in a manner
violative of State law; and (2) University officials need guidance
on this issue, because the Bosmann case is ongoing, and the
University "continues to insist that it is entitled to withhold
information as to its indemnification of the defendants in that
case."
We do not dispute that the public has a great interest in
ascertaining how the government spends public funds. However, we
are unconvinced that the question at bar, which is whether the
requested statements were subject to production under FOIA, or
whether they were exempt as attorney-client communications,
presents the exceptional circumstances warranting invocation of the
public interest exception.
In support of his argument that the issue is likely to recur,
the plaintiff states only that the Bosmann case is ongoing and that
he "may" request "similar" documents in the future. However,
requests for attorney billing information come in many different
forms, as do billing records themselves. Depending upon what is
encompassed in a subsequent request for such information, there may
be a valid claim that the records contain confidential attorney-
client communications or that they otherwise are exempt from
disclosure under the Act. A ruling on the particular issue here
would have no bearing upon such a situation.
Further, even if the plaintiff did frame his subsequent FOIA
request in a manner identical to the request at issue, there is no
evidence that the defendants would deny production based upon the
same exemptions they intially invoked in this case. The plaintiff
maintains that the defendants are continuing to refuse production
of additional billing information which the plaintiff has
requested. However, the conduct upon which the plaintiff relies on
this point occurred after the January 6, 1997, judgment, in
response to a different request for billing records.
The plaintiff is merely seeking an advisory decision based
upon a hypothetical dispute (see Murphy, 133 Ill. 2d at 410).
Rather than speculate as to the content of future FOIA requests or
how the defendants would respond to them, we will refrain from
deciding this issue until it occurs in the context of an active
controversy. See Sharma, 265 Ill. App. 3d at 1029.
The plaintiff also argues that the court erred in refusing to
grant his petition under Code section 2-1401. A section 2-1401
petition is intended to alert the court to matters not appearing of
record which, if known to the court at the time the original
judgment was entered, would have precluded its entry. Cruz v.
Columbus-Cuneo-Cabrini Medical Center, 264 Ill. App. 3d 633, 639,
636 N.E.2d 908 (1994); Saeed v. Bank of Ravenswood, 101 Ill. App.
3d 20, 427 N.E.2d 858 (1981). The party seeking relief under this
section must allege (1) the existence of a meritorious claim or
defense; (2) due diligence in presenting that claim or defense in
the original action; (3) due diligence in bringing the section 2-
1401 petition; and (4) misapprehension of the circuit court with
regard to the facts at the time the challenged order or judgment
was entered. Department of Conservation v. Cipriani, 202 Ill. App.
3d 986, 990-91, 561 N.E.2d 739 (1990). The decision to grant or
deny relief under section 2-1401 is a matter of trial court
discretion based upon the facts and equities of the particular
case; this court will not disturb the trial court's decision absent
an abuse of discretion. Cruz, 264 Ill. App. 3d at 639.
In his petition, the plaintiff alleged that on January 25,
1997, after the dismissal of his suit, he made a request under FOIA
that the University produce "[a]ll disbursement vouchers *** which
reflect legal fees and expenses paid to the law firm Keck Mahin &
Cate in connection with [the Bosmann suit], and the appeals and
remand proceedings related thereto". He also requested
disbursement vouchers reflecting payments to Baker & McKenzie in
another case against Bosmann. The University denied the request,
again under sections 7(1)(n) and 7(1)(a). The plaintiff asserted
that, had the trial court been aware that the defendants would deny
his subsequent FOIA request on the same basis as in the first case,
it would have viewed the question as "likely to recur" under the
public interest exception, and ruled on the case despite its
mootness. The trial court disagreed with the argument, and the
plaintiff now claims this was an abuse of discretion.
Replying to the plaintiff's argument, the defendants maintain
that their response to the subsequent FOIA request may not be used
as a basis to vacate the underlying judgment, because a 2-1401
petition may not rely upon events that antedate the underlying
judgment. See Russell v. Klein, 58 Ill. 2d 220, 225, 317 N.E.2d 556 (1974).
This court is divided over the meaning of Russell, and whether
or not a court ruling upon a section 2-1401 petition may consider
matters arising after the rendition of the underlying judgment.
Prairie Material Sales, Inc. v. White Diamond, Inc., 157 Ill. App.
3d 779, 783, 510 N.E.2d 1236 (1987); Hopkins v. Holt, 194 Ill. App.
3d 788, 795, 551 N.E.2d 400 (1990) (citing cases); see Gimroth v.
Ray, 98 Ill. App. 3d 633, 424 N.E.2d 934 (1981); but see Saeed, 101
Ill. App. 3d at 26 (post-judgment matters may be considered if they
are part of the total circumstances surrounding the original
judgment); Cipriani, 202 Ill. App. 3d at 991-92.
However, we leave for another day our resolution of this
question. Even if we consider the defendants' responses to the
later FOIA request, we find no abuse of discretion in the denial of
section 2-1401 relief, because the two FOIA requests were clearly
dissimilar in nature.
The first request sought general accounting statements
"reflecting charges incurred in connection with *** disbursement
vouchers reflecting payments" to the defendants' attorneys. The
January 25, 1997, request, however, was more particular, calling
for the "disbursement vouchers" corresponding to a list of
specifically-designated legal charges. Certain types of billing
records may contain explanations for legal fees and may indicate
the type of work done or matters discussed between the attorney and
client. As such, they could reveal the substance of confidential
attorney-client discussions, and be subject to valid claims of
attorney-client privilege or exemption under section 7(1)(n). See
Matter of Witnesses Before the Special March 1980 Grand Jury, 729 F.2d 489, 495 (7th Cir. 1984).
Based upon the record provided to us, we are unable to
ascertain whether the "disbursement vouchers" the plaintiff sought
in the second request contained privileged communications. In any
event, because of the obvious disparity between the plaintiff's two
requests, the defendants' refusal to produce the records in the
second instance has little relevance to its initial denial.
Further, it does not show that the circumstances in the first case
were "likely to recur" for purposes of the public interest
exception. Thus, there was no abuse of discretion in denying
section 2-1401 relief.
Last, we consider the plaintiff's argument that the court
abused its discretion in refusing to grant him attorney fees under
section 11(i) of the Act, for his expenses in pursuing his initial
request for the accounting records, and in filing suit to obtain
those records. Section 11(i) states:
"(i) If a person seeking the right to inspect or receive a
copy of a public record substantially prevails in a
proceeding under this Section, the court may award such
person reasonable attorneys' fees if the court finds that
the record or records in question were of clearly
significant interest to the general public and that the
public body lacked any reasonable basis in law for
withholding the record." (Emphasis added.) 5 ILCS 140/11(i)
(West 1994).
The fee provision was intended neither as a reward for successful
plaintiffs nor as a punishment against the government. Hamer v.
Lentz, 132 Ill. 2d 49, 62, 547 N.E.2d 191 (1989).
As the parties observe, there is limited Illinois law
interpreting section 11(i), and none providing any guidance with
regard to this case. Thus, we look to cases interpreting the fee
provision in the Federal Freedom of Information Act (5 U.S.C. 
552(a)(4)(E)), which is analogous to our Act. See Hamer, 132 Ill. 2d at 58.
The express language of the Illinois FOIA states that the
court "may" award attorney fees if certain criteria are proven to
exist. 5 ILCS 140/11(i) (West 1994). Thus, similar to the federal
FOIA, our Act leaves the decision to award attorney fees to the
discretion of the trial court. See e.g., Solone v. Internal
Revenue Service, 830 F. Supp. 1141, 1142 (N.D. Ill. 1993).
Further, the burden of proving that an award of fees is warranted
rests with the party seeking the fees. Abernethy v. Internal
Revenue Service, 909 F. Supp. 1562, 1567 (N.D. Ga. 1995), citing
Chilivis v. Securities & Exchange Comm'n, 673 F.2d 1205, 1212 (11th
Cir. 1982). As with our FOIA, a plaintiff under the federal
statute is eligible to recover fees only upon a threshold showing
that he "substantially prevailed" in the underlying action. 5
U.S.C.  552(a)(4)(E), 552a(g)(3)(B) (1994). In order to
demonstrate that he substantially prevailed, the party requesting
fees must demonstrate (1) that the prosecution of the action "could
reasonably be regarded as necessary to obtain the information," and
(2) that "the action had a substantial causative effect on the
delivery of the information." Abernethy, 909 F. Supp. at 1567,
quoting Chilivis, 673 F.2d at 1212; Seegull Manufacturing Co. v.
National Labor Relations Board, 741 F.2d 882, 885 (6th Cir. 1984).
Once eligibility has been proven, the plaintiff must show that he
is entitled to fees by demonstrating, in relevant part, that the
government's withholding of the requested records had no
"reasonable basis in law". Cuneo v. Rumsfeld, 553 F.2d 1360, 1364
(D.C.Cir. 1992). The "reasonable basis in law" requirement does
not mandate that the exemption claimed by the government be
correct, but merely that it be founded upon a colorable basis in
law. See Chesapeake Bay Foundation, Inc. v. United States
Department of Agriculture, 11 F.3d 211, 216 (D.C. Cir. 1993). In
order to avoid an award of fees, it should not appear that the
government refused production merely to avoid embarrassment or
frustrate the requestor. Solone, 830 F. Supp. at 1143.
In the instant case, the trial judge found that the plaintiff
did not substantially prevail, because the defendants had released
the records just two months after suit was filed, and before any
ruling on whether or not they were actually encompassed under
exemptions 7(1)(n) or 7(1)(a) of the Act.
Such rationale, however, has been found to be without merit,
because it could foster circumvention of the purposes of FOIA. In
Cuneo, for example, the court observed that a judgment ordering
production of the records was not an absolute prerequisite to an
award of fees. Cuneo, 553 F.2d at 1364, citing Vermont Low Income
Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976);
Goldstein v. Levi, 415 F. Supp 303, 305 (D.D.C. 1976). The courts
reason that such a contingency would encourage government agencies
to forego any real consideration of FOIA requests until after the
requestor filed suit and the threat of a ruling adverse to the
agency was imminent. See Cuneo, 553 F.2d at 1364-65. Thus,
federal courts generally have held that where the government agency
voluntarily produces the requested records only after the plaintiff
has filed suit, thereby mooting the suit, the plaintiff has
substantially prevailed under the fee provision. See, e.g., Cuneo,
553 F.2d 1360; Nationwide Building Maintenance, Inc. v. Sampson,
559 F.2d 704 (D.C. Cir. 1977).
We agree with the logic of these decisions, and conclude that
the trial court applied an incorrect standard in deciding that the
plaintiff did not substantially prevail. Similar to the federal
Act, our Act encourages requestors to seek judicial relief in the
event of an unlawful withholding of records by government agencies.
5 ILCS 140/11 (West 1994); see also Goldstein, 415 F. Supp. at 305.
The allowance of fees to compensate for a baseless denial of
information will only further this purpose. Contrary to the
defendants' argument, it would not have a chilling effect on
government agencies which initially decline production but then
discover that production is mandated. Rather, the prospect of fee
reimbursement would prompt officials to release the information as
rapidly as possible.
Nonetheless, the fact that the plaintiff substantially
prevailed alone is insufficient to establish his entitlement to
fees, if other factors weigh in favor of the government. Solone,
830 F. Supp. at 1142; Abernethy, 909 F. Supp. at 1567, citing,
among other authorities, Chilivis, 673 F.3d at 1212; Vermont Low
Income, 546 F.2d at 513. Where the government had a reasonable
basis in law to withhold production and did not engage in
recalcitrant or obdurate behavior, a denial of fees is not an abuse
of discretion. See Cuneo, 553 F.2d at 1366.
The trial judge stated that he was unable to conclude that the
defendants' claimed exemptions were completely without basis in
law. We cannot agree.
The defendants denied production of the statements under
section 7(1)(n), which exempts all "[c]ommunications between a
public body and an attorney or auditor representing the public body
that would not be subject to discovery in litigation ***." In
addition, the defendants relied upon section 7(1)(a), which exempts
"[i]nformation specifically prohibited from disclosure by federal
or State law or rules and regulations adopted [thereunder]". 5
ILCS 140/7(1)(a) (West 1994).
It is well-recognized that information regarding a client's
fees generally is not a "confidential communication" between an
attorney and client, and thus is not protected by the attorney
client privilege. See, e.g., Matter of Grand Jury Proceeding,
Cherney, 898 F.2d 565, 567 (7th Cir. 1990); New Haven v. Freedom of
Information Commission, 493 A.2d 283 (Conn. App. 1985)(general
billing records not subject to attorney-client exemption under
State FOIA). The payment of fees is merely incidental to the
attorney-client relationship and typically does not involve the
disclosure of confidential communications arising from the
relationship. Grand Jury, 898 F.2d at 567.
The record indicates that the statements at issue made no
reference to the pending litigation other than to name the payee
law firm, and designate the amount and the date of each payment.
They did not contain legal advice, nor did they directly or
indirectly reveal the substance of an attorney-client confidence.
United States v. Defazio, 899 F.2d 626, 635 (7th Cir. 1990), citing
In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984).
The defendants do not dispute the content of the records at
issue. However, they maintain they had a rational basis in law for
initially withholding them, because the language of 7(1)(n) exempts
communications between a public body and an attorney "that would
not be subject to discovery in litigation". The defendants assert
that they would not be required to produce the requested billing
records in discovery; thus, they were justified in refusing
production here.
In making this argument, the defendants apparently are
attempting to interject an issue as to the relevance or irrelevance
of these records to pending litigation; however, such a concern has
no place in a FOIA case. Records pertaining to the affairs of
government, the acts of public officials, and the expenditures of
public funds "are public records which are to be made available to
any person who submits a request to inspect them". Hamer v. Lentz,
171 Ill. App. 3d 888, 898, 525 N.E.2d 1045 (1988), rev'd on other
grounds, 132 Ill. 2d 49 (1989). This rule is subject only to
specifically designated exemptions, which are to be narrowly
construed. Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill. 2d 401, 407-08, 680 N.E.2d 374 (1997). We
agree with the plaintiff that, as long as the particular request is
not barred under the Act's exemptions, the purpose of the requestor
in making his request is irrelevant. See Lieber v. Southern
Illinois University, 279 Ill. App. 3d 553, 664 N.E.2d 1155 (1996),
aff'd, 176 Ill. 2d 401 (1997).
A review of the record fails to disclose any colorable legal
basis for the defendants' initial refusal to produce the requested
documents. Further, in concluding that the plaintiff did not
"substantially prevail" in his FOIA claim, the court applied an
incorrect legal standard. Accordingly, we reverse the trial
court's order denying section 11(i) attorney fees and remand for a
new hearing on such fees consistent with the opinions contained
herein.
The rehearing should concern only those fees which the
plaintiff incurred in pursuing his initial FOIA request; fees
incurred in bringing the section 2-1401 petition will not be at
issue.
For the foregoing reasons, the judgment in docket No. 1-97-
0698 is affirmed in part, reversed in part, and remanded. The
judgment in docket No. 1-97-1729 is affirmed.
Affirmed in part, reversed in part, and remanded.
HARTMAN and THEIS, JJ., concur.

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