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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

September 2009, vol. 11, no. 1

Party challenges denial of FOIA request because party refused to pay $5,500 fee

Sage Information Services and Roger W. Hurlbert v. Gary A. King, Du Page County Clerk, Illinois Appellate Court, Second Dist., Docket No.2-07-1262 (May 29, 2009)

Plaintiff Sage Information Services and Roger W. Hurlbert (hereinafter Sage) sought information pertaining to the property assessments of all parcels located in DuPage County. The DuPage County Clerk (hereinafter Clerk) responded that the information requested was only available in “raw data form” and Sage would have to provide three IBM 3490 cartridges and a payment of $5,500. Sage contacted the Clerk and requested that the fee charged to reproduce the electronic documentation should be reduced to an amount that would cover the costs of the actual costs of copying the electronic records. The Clerk refused to lower the fee and sent a second letter to Sage denying their request and stated that the information requested was exempt under section 1 of FOIA, based on “Private Gain” and “GIS Information” (geographical informational systems).

Sage filed a one-count complaint against the Clerk, seeking a court order directing the Clerk to release the information it had requested pursuant to the FOIA, “at a cost not to exceed the actual cost of reproduction, as contemplated by law.” The Clerk filed a section 2-619 motion to dismiss and also argued that the under Resolution FI—002-02 the fee was reasonable. The trial court granted the clerk’s motion to dismiss and in its memorandum opinion found that Resolution FI—0002—02, in conjunction with the Property Tax Code, was more specific than the FOIA regarding fees and determined that the fee of $5,500 was reasonable.

Sage filed an appeal of the trial court decision contending that the trial court erroneously granted the section 2-169(a)(9) motion to dismiss and requested an order to grant the FOIA request at a cost established by section 5—1106.1(c) of the Counties Code.

The Illinois Appellate reversed the trial court’s decision and remanded the case back to the trial court.

The court determines that their review of the trial court’s order granting a motion to dismiss under section 2-619 is denovo pursuant toVan Meter v. Darien Park District, 207 Ill. 2d 359(2003).

The court provides an interesting analysis of FOIA requests and what body of authority should control. The court ultimately agrees with Sage’s argument that the plain language of section 6(a) the “charge for the reproduction of public records must be reasonably calculated based on the actual cost of reproduction.” The Clerk contends that the “actual provisions in FOIA does not apply” because the cost provisions of the Property Tax Code and Resolution FI—0002-02 “control” the cost of reproducing the specific type of information requested by Sage and those provisions as opposed to FOIA should dictate the fees that the Clerk may impose. The court disagrees and finds that the cost provision under section 9—20, in conjunction with Resolution FI—0002-02, applies to the actual-cost provision of section 6(a) of the FOIA and should be applied to this case.

The court also addresses the issue raised by Sage pertaining to public policy. Sage argued that the trial court’s decision was in direct conflict to the public policy considerations of openness and access to public records under the FOIA. The court notes that “considerations of public policy are superfluous when statutory language is clear” citing Village of Roselle v. Roselle Police Pension Board, 382 Ill. App. 3d 1077, 1083 (2008).

The final issue addressed by the court was whether the trial court erred by deciding a material and genuine question of fact as it pertained to the reasonableness of the $5,500 reproduction fee. The court concludes that the question of the reasonableness of the $5,500 is a substantial factual dispute. The court notes the arguments made by both parties but concludes that the Clerk offers no factual basis for his decision that the charge of $5,500 is reasonable. The court determines that the response by the Clerk is “conclusory,” without a factual basis and “does not establish a reasonableness of the fee.”

Court finds the trial court erred when it decided a controverted material issue of fact and the trial court should have denied the Clerk’s motion to dismiss. ■

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This article was originally published in the June 2009 issue of the ISBA's Tax Trends newsletter, Vol. 52, No. 12.

 


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