Larry Nelson
A huge tip of the hat to Larry Nelson, founder and owner of Nelson Multimedia, Inc. (NMI) of Plano. He stuck to his guns and as a result the public’s right to know its government’s business was protected. Nelson took his battle to exercise his rights under the Illinois Freedom of Information Act (FOIA) to its State Supreme Court and the Justices ruled that FOIA applies to the office of State’s Attorney.
The ruling reversed the judgment of the appellate court that had affirmed the dismissal of Nelson’s actions in a lower court. Nelson exercised his right to seek judicial review of his case (5 ILCS 140/11) after filing a Request for Review with the Illinois Attorney General’s Public Access Counselor who took no action.
Here is abbreviated language of the court’s ruling. See the full text here.
On September 2, 2010, Nelson filed a FOIA request to Kendall County 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.
His request was deferred to the office of the Kendall County State’s Attorney. Nelson challenged how his request was being handled stating it was inappropriate for Kendall County to refer the FOIA request to the State’s Attorney’s office.
Nelson then submitted a request for review to the Public Access Counselor in the Office of the Illinois Attorney General who declined to take action. He then filed an action in circuit court against Kendall County and its administrator, Jeff Wilkins, to compel release of the emails and attachments sent and received by Ready and Dore during the period specified in his FOIA request.
Kendall County and Wilkins moved to dismiss and were joined by the Kendall County State’s Attorney who sought and was granted leave to intervene in the case.
During the litigation Nelson submitted a new FOIA request to the State’s Attorney’s office seeking the same emails that were the subject of his request to Kendall County itself, plus emails from the same time period from two additional members of the State’s Attorney’s office, including the State’s Attorney himself.
The request was denied in its entirety on the grounds that State’s Attorneys are part of the judicial branch of State government and, as such, are exempt from the provisions of the FOIA. The denial letter made note that this was the third request Nelson had made for the same documents; that despite the fact that it was exempt from the FOIA, and with certain redactions approved by the Attorney General’s office, it had previously furnished over 1,000 pages of emails to him; that he had been given a detailed index of all records that could not be produced; and that if there was a particular email and/or attachment that he had not yet received and would like to review, he should please let the office know and it would determine whether it could be disclosed to him.
In response, Nelson filed a second FOIA action in circuit court, this one directed solely against the State’s Attorney’s office. He contended that under Illinois law, the State’s Attorney is an executive rather than a judicial officer and that the State’s Attorney’s office constitutes a public body within the meaning of the FOIA and is therefore subject to the Act’s disclosure requirements; and that through its public pronouncements and staffing (it has three designated FOIA officers), the State’s Attorney’s office has acknowledged that it is subject to the provisions of the law.
On May 11, 2012, the circuit court filed separate written orders granting the motions to dismiss. The court held that the records requested by Nelson were not, in fact, county records, but rather records of the State’s Attorney’s office which belongs to the judicial branch of government and is therefore not subject to the
provisions of the FOIA.
In response to Nelson’s appeal the Illinois Appellate Court held that “the State’s Attorney is not a ‘public body’ subject to the [FOIA]” and affirmed the circuit court’s judgments dismissing plaintiffs’ claims under the Act.
Nelson then petitioned the Illinois Supreme Court for leave to appeal arguing that the circuit and appellate courts erred in concluding that State’s Attorneys are not subject to the FOIA. The petition was granted.
The Illinois Broadcasters Association, the Illinois Press Association, the Better Government Association, and, interestingly enough, the Attorney General of Illinois were allowed to file friend of the court briefs in support of Nelson. The court permitted the State’s Attorneys of Cook and La Salle Counties and the Illinois State’s Attorneys Association to file a friend of the court brief in support of Kendall County and the Kendall County State’s Attorney.
In their analysis the court ruled:
- The principles governing our review are well established. When construing a statute, the cardinal rule, to which all other rules and canons are subordinate, is to ascertain and give effect to the true intent of the legislature. The best evidence of legislative intent is the language used in the statute itself, which must be given its plain, ordinary and popularly understood meaning. The statute should be evaluated as a whole, with each provision construed in connection with every other relevant section.
- If the language of the statute is clear, it must be given effect without resort to other interpretive aids.
- The FOIA provides “that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.” 5 ILCS 140/1 (West 2010). The law explains that such access “is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.”
- To this end, the law states that “[i]t is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.”
- For purposes of the statute, “public records” means: “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.” 5 ILCS 140/2(c) (West 2010)
- “Public body,” in turn, is defined as: “all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code.” 5 ILCS 140/2(a) (West 2010).
- When assessing whether access to records should be permitted, the presumption is that all records in the custody or possession of a public body are open to inspection or copying.
What began as a simple FOIA request filed in September 2010 became an almost four year battle in the courts. The public’s right to know prevailed.
Good job Larry Nelson!
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