Fisher v. Office of the Ill. Attorney Gen.

2021 IL App (1st) 200225

195 N.E.3d 719

457 Ill.Dec. 583

Ian H. FISHER, Esq., Plaintiff-Appellant,

v.The OFFICE OF the ILLINOIS ATTORNEY GENERAL, BY its Attorney General, Kwame RAOUL, Defendant-Appellee.

No. 1-20-0225

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed: March 12, 2021

Gillian G. Lindsay, of Hahn Loeser & Parks LLP, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Laura Wunder, Assistant Attorney General, of counsel), for appellee.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Ian H. Fisher, appeals from an order of the circuit court of Cook County, which denied his motion for summary judgment and granted summary judgment in favor of the defendant, the Office of the Illinois Attorney General (OAG), on its cross-motion. On appeal, the plaintiff argues that the circuit court erred in finding that the records he requested from the OAG pursuant to the Freedom of Information Act (FOIA or Act) ( 5 ILCS 140/1 et seq. (West 2018)) were exempt from disclosure. For the reasons that follow, we affirm.

¶ 2 The following factual recitation is derived from the pleadings, motions, and exhibits of record.

¶ 3 In the fall of 2012, the OAG filed a parens patriae action against several cathode ray tube (CRT) manufacturers, alleging that they conspired to fix prices on certain products resulting in overcharges to Illinois consumers. See State v. Hitachi, Ltd. , No. 12-CH-35266 (Cir. Ct. Cook County). Between July 2016 and March 2018, the OAG entered into settlement agreements with all of the manufacturers for a total of nearly $50 million. Each settlement agreement states that the agreement will not become final until such time as the circuit court enters a final judgment providing, inter alia , that the settlement funds be distributed to eligible claimants "within the discretion of the Illinois Attorney General" and each of the CRT manufacturers are dismissed with prejudice. As of yet, the circuit court has not entered such an order.

¶ 4 On November 20, 2017, the circuit court entered an order on a joint motion for approval of a notice plan. In its order, the court approved the contents of the settlement notices prepared by the OAG, preliminarily approved of the publication notice plan, and authorized the OAG to use settlement funds to pay Kurtzman Carson Consultants (KCC) to implement the notice plan and administer the claims process. Subsequently, KCC published the settlement notice to the public.

¶ 5 The plaintiff in the instant case represents several clients that submitted claims as part of the CRT settlement. Each of the plaintiff's clients filled out the claim form indicating that they purchased the CRT products in Illinois during the relevant time frame and either resided in Illinois or were incorporated or headquartered in Illinois. After several communications with KCC, the plaintiff was informed that the majority of his clients’ claims did not meet the eligibility requirement because they did not purchase the CRT products "for use" in Illinois. When the plaintiff asked KCC about the requirement that the CRT product must have been purchased for use in the state, KCC responded: "Per the AG's direction, and as referenced in the Notice, eligible purchases must be for use in the state of Illinois." The plaintiff next contacted the OAG directly, arguing that the "use" requirement was contrary to the language of the settlement agreements, the claim form, the purpose of the Illinois Antitrust Act, and relevant case law construing the Illinois Antitrust Act and similar state laws. On February 22, 2019, the OAG responded to the plaintiff, rejecting his contentions.

¶ 6 On April 8, 2019, the plaintiff submitted a FOIA request to the OAG, seeking certain records related to the CRT settlement. Relevant to this appeal, the plaintiff requested the following records:

"All communications between the Office of the Attorney General and the Class Settlement Administrator, KCC Class Action Services LLC, concerning the eligibility requirements for the submission of claims for the Class Settlement in the Illinois CRT Settlement.

All communications with the Office of the Attorney General concerning whether a claimant in the Illinois CRT Settlement is required to establish that a CRT or CRT Product was either used in Illinois or purchased for use in Illinois.

All communications from the Office of the Attorney General to the Class Settlement Administrator, KCC Class Action Services LLC, instructing that one or more claims in the Illinois CRT Settlement be denied or found deficient."

¶ 7 The OAG denied the plaintiff's request for records, citing section 7(1)(f) of the Act, also known as the deliberative process exemption. Section 7(1)(f) of the Act exempts from disclosure "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated." ( 5 ILCS 140/7(1)(f) (West 2018). In its denial letter, the OAG stated that the responsive records "consist of communications between this office and outside consultants written for the purpose of planning courses of action with regard to assessing claims. These records are predecisional."

¶ 8 On May 31, 2019, the plaintiff filed a two-count complaint, seeking declaratory and injunctive relief based upon the OAG's denial of his FOIA request. In count I, he sought an order declaring that (1) he had a right to the production of the requested records pursuant to section 2(c) of the Act ( 5 ILCS 140/2(c) (West 2018)); (2) the requested records do not fall within the disclosure exemption listed under section 7(1)(f) of the Act ( 5 ILCS 140/7(1)(f) (West 2018)); and (3) he is entitled to reasonable attorney fees and costs. In count II, he sought an order declaring that the OAG violated the Act by withholding the requested records, enjoining the OAG from further withholding the records, and granting attorney fees and costs pursuant to section 11(i) of the Act ( 5 ILCS 140/11(i) (West 2018)).

¶ 9 On August 1, 2019, the OAG filed its answer and affirmative defenses to the plaintiff's complaint, asserting that the responsive records are exempt from disclosure under section 7(1)(f) of the Act ( 5 ILCS 140/7(1)(f) (West 2018)). The OAG also asserted that some of the responsive records were prepared "for purposes of responding to attempts by certain parties to intervene" in the CRT litigation and are therefore exempt from disclosure under section 7(1)(m) of the Act, which exempts from disclosure "materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body." 5 ILCS 140/7(1)(m) (West 2018).

¶ 10 On October 7, 2019, the OAG filed an index of the responsive records, pursuant to the plaintiff's motion made under section 11(e) of the Act ( 5 ILCS 140/11(e) (West 2018)). Thereafter, the OAG filed its amended affirmative defenses in which it asserted that all responsive communications were exempt from disclosure under both sections 7(1)(f) and 7(1)(m) of the Act. As to section 7(1)(m) of the Act, the OAG now asserted that the responsive records were exempt because they "include materials prepared by [the OAG] or by KCC for [the OAG] for purposes of evaluating claims for the settlement proceeds, addressing challenges by claimants to KCC's initial determinations, and developing a final distribution plan after all claims are audited that [the OAG] will present for final approval to the court."

¶ 11 Both parties then moved for summary judgment. The plaintiff argued that he was entitled to summary judgment because the requested records did not fall within the deliberative process exemption as they were neither inter or intra-agency material, nor predecisional and deliberative agency material. He also argued that the requested records do not fall within section 7(1)(m) of the Act because he requested only communications between the OAG and KCC, not "materials" that the OAG asked KCC to prepare.

¶ 12 The OAG filed a cross-motion for summary judgment, arguing that the responsive records were exempt from disclosure under both sections 7(1)(f) and 7(1)(m) of the Act. In support of its cross-motion, the OAG attached two affidavits: one from Blake Harrop, the lead prosecuting attorney for the CRT litigation, and one from Andrew Perry, the senior project manager for KCC.

¶ 13 Harrop averred that KCC was retained "to evaluate claim forms and other material submitted by claimants in support of their claims and to provide to the OAG its opinions, analysis, and recommendations as to the validity of the claims in light of the eligibility requirements established by the OAG." Harrop acknowledged that the "vast majority" of claims did not require the OAG's day-to-day involvement, but he explained that KCC regularly advised the OAG regarding the status of the claims process and the OAG became directly involved when an issue arose, or a claimant objected to KCC's initial determination. Harrop also stated that "[i]t has always been the understanding between OAG and KCC that whether to accept or deny a claim and, if accepted, the allowed amount of the claim were subject to final determination by the OAG." Perry averred that KCC performed the following functions for the OAG as claims administrator: reviewed claim forms, applied criteria to detect possible fraud, evaluated the reasonableness of a claimant's techniques to estimate the number of CRT products purchased, handled telephone and email inquiries from claimants and audited claims. Perry explained that KCC makes the "initial determination about whether a claim should be paid," but "the OAG has the discretion to make changes to KCC's recommendation."

¶ 14 On January 28, 2020, the circuit court entered an order denying the plaintiff's motion for summary judgment and granting summary judgment...