Find Legal Information

SIXTH DIVISION
March 26, 2004

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiff, the Chicago Alliance for Neighborhood Safety (CANS), brought this six-countcomplaint against defendants the City of Chicago (City) and the Chicago police department(Department) seeking equitable relief under the Illinois Freedom of Information Act (FOIA or theAct) (5 ILCS 140/1 et seq. (West 2000)). After defendants produced most of the records sought byplaintiff in its complaint, the parties filed cross-motions for summary judgment on counts I, II, III,and IV. The trial court entered summary judgment in favor of defendants on count IV, and, followinga bench trial, entered judgment in favor of defendants on counts I, II, and III. Plaintiff appeals theorder granting summary judgment for defendants on count IV and the judgment after trial fordefendants on counts I, II and III. Defendants cross-appeal fees awarded to plaintiff.

Count I sought, pursuant to section 9(b) of the Act (5 ILCS 140/9(b) (West 2000)), a writof mandamus directing defendants to maintain all notices of denial in a single central office file opento the public and indexed according to the type of exemption asserted and, to the extent feasible,according to the types of records requested. Count II sought a writ of mandamus directingdefendants to maintain and make available a detailed list of the types and categories of records underthe Department's control pursuant to section 5 of the Act (5 ILCS 140/5 (West 2000)). Count IIIalleged defendants violated the Act by denying plaintiff's July 2, 1998, written request for copies ofall FOIA requests to, and responses from, the Department from 1993 to the date of its request. Count III sought an injunction directing defendants to make available for inspection and copying allFOIA requests from January 1, 1993, to the date of judgment and the responses to those requests. Count IV alleged defendants violated the Act by denying plaintiff's request for "beat meeting forms,"dispatch policy orders, and "beat integrity summaries" and sought an order directing the documentsbe made available. Counts V and VI requested overtime expenditures and district plans.

Defendants provided plaintiff with access to various documents -- beat meeting forms (countIV), FOIA requests and responses to those requests (count III), and FOIA denial files (count I) --with redactions. Before disclosing beat meeting forms, defendants redacted names and addresses of"community liaisons" and participants. Defendants disclosed, pursuant to a protective order enteredby the court on June 9, 1999, and an agreed order entered on August 20, 1999, FOIA requests andresponses which the Department had in its possession. The protective order required defendants toproduce these documents but restricted plaintiff's use of the information. The order barred plaintiff from disclosing names and addresses of individual FOIA requesters without leave of court andprovided that requests and responses "shall be deemed 'constructively redacted.' " The orderreserved plaintiff's right to challenge redactions, which applied only to individual requesters, not toorganizations making FOIA requests. The Department began to maintain a file of notices denyingFOIA requests (denial file) after plaintiff's initial request to inspect the file in May 1998 and providedplaintiff access to this file with names and addresses of FOIA requesters redacted. Defendants alsotendered unredacted copies of the denials to plaintiff subject to the trial court's protective order.

Before trial, dispatch policy orders and beat summaries requested in count IV and all documents requested in counts V and VI were disclosed to plaintiff without redaction. Althoughdefendants initially responded that many documents were exempt from disclosure or too burdensometo produce, they ultimately tendered most documents. The parties then filed cross-motions forsummary judgment as to unresolved issues in counts I, II, III and IV.

Defendants' motion for summary judgment as to counts III and IV alleged names andaddresses of beat meeting participants and FOIA requesters were properly redacted pursuant tosection 7(1)(b) of the Act. The Department's pamphlet entitled "Getting the Most From Your BeatMeeting" was attached to their "motion for summary judgment as to documents identified asprivileged." That pamphlet stated "[b]eat meetings are regular meetings *** where police andcommunity residents meet to exchange information about conditions in neighborhoods, identify crimeand disorder problems, and develop strategies to combat those problems." The pamphlet stated"[t]he purpose of the beat meeting is to allow beat residents, other stakeholders and police to discusschronic problems on the beat and engage in problem solving."

Plaintiff filed a motion for summary judgment on counts I and II and a cross-motion forsummary judgment on counts III and IV. Plaintiff attached exhibits to its cross-motion, including theDepartment's General Order 96-3, Addendum 5 (General Order 96-3) and a confidentiality agreemententered into by the Department and the Chicago Community Policing Evaluation Consortium. General Order 96-3 provides the beat community meeting log "serves as the official record of the beatcommunity meeting" and "feeds into the beat-planning and problem-solving process."

Defendants filed a cross-motion for summary judgment on counts I and II contending theDepartment's denial file complied with section 9(b) of the Act and its list of categories of recordscomplied with section 5 of the Act. Defendants filed a response to plaintiff's cross-motion forsummary judgment and attached to it the affidavit of Professor Wesley Skogan from the Institute forPolicy Research, Northwestern University (IPR). Skogan stated in his affidavit he was a politicalscience and a faculty fellow at IPR, a public policy research organization. Since 1992, IPR, as partof the Chicago Community Policing Evaluation Consortium, has monitored and evaluated theCommunity Alternative Policing Strategy (CAPS) program. For that evaluation, the City providedIPR with beat meeting forms including names and addresses of beat meeting participants. Skoganstated IPR agreed to and did in fact keep the disclosed information confidential.

After conducting a hearing, the court denied the parties' motions and cross-motions on countsI, II, and III and granted defendants' motion for summary judgment on count IV stating:

"[T]he issue within count IV is whether the names of the BeatMeeting participants should be redacted from the Beat Meeting formsby the Chicago Police Department. Section 7(1)(b)[v] of the FOIAstates that information exempted from disclosure under this subsectionincludes information revealing the identity of persons who filedcomplaints with or provide information to administrative,investigative, law enforcement or penal agencies. [Citation.] Referring to Section 7(1)(b), the Illinois Supreme Court has statedthat when a public body claims that a requested document falls withinone of these enumerated categories and is able to prove that claim, nofurther inquiry by the Court is necessary. *** In the present case,participants at the Beat Meetings who are then listed in the minutes ofthose meetings are clearly providing information to law enforcementagencies. In fact that is one of the specific purposes of thosemeetings. Accordingly, this Court finds that the names of thoseparticipants are properly redacted on the Beat Meeting forms."

The court conducted a bench trial on what plaintiff and defendants agreed were the remainingissues in the case regarding counts I, II and III. The court identified those issues as follows:

1. Whether the Department's file of letters denying FOIA requests meets the requirements of section 9(b) of the Act;

2. Whether the Department's proposed list of "all types or categories of records under its control" satisfies section 5 of the Act;and

3. Whether the Department is entitled to redact, based on privacy, under section 7(1)(b) of the Act, the names and addresses ofpersons who make requests under the Act, "as those names andaddresses appear in: (a) FOIA requests; (b) FOIA response letters;and (c) the [D]epartment's file of letters denying FOIA requests."

It was stipulated at trial that various city departments and state agencies, including the IllinoisState Police, Illinois Attorney General's office, Springfield police department, and Sangamon Countysheriff's department, produced without redaction, FOIA requests and responses to requests.

Warren Friedman, a member of plaintiff's board of directors who had served as plaintiff'sexecutive director for 17 years, testified for plaintiff regarding its purpose and how it sought toadvance that purpose through FOIA requests. Friedman stated plaintiff's general purpose is "to workwith community people and community organizations to make neighborhoods safer places to live forall residents." Monitoring government to ensure it acts in the public interest is critical to plaintiff'spurpose. Friedman explained plaintiff sought information under the Act to "understand ourselvesand train others and help -- and give technical assistance to others to act more effectively in theirrelations with the police and in their desire to make communities safer." Friedman stated plaintiffrequested access to denial files to determine whether the Department was treating FOIA requestsdifferently "because of where [the requesters] live geographically, that is because of perhaps race orclass." Friedman explained plaintiff wanted to contact people listed in the Department's files in orderto organize them to promote causes they shared with plaintiff. Friedman explained plaintiff wasinterested in denial files to discover whether plaintiff was being denied information given to others,to have an opportunity to talk to others being denied information, and to identify possible commoninterests and possibly take action on denials. Friedman acknowledged plaintiff had receivedunredacted copies of denial letters. However, he stated the protective order's restrictions regardinguse of names and addresses eliminated plaintiff's ability to make public any information it mightdevelop about the Department's treatment of FOIA requesters. Thus, Friedman explained, plaintiffhad not devoted its limited resources to a systematic review of the documents.

On cross-examination, Friedman was asked whether plaintiff's counsel had ever requested thetrial court to clarify whether the protective order allowed plaintiff to publish a study "that talkedabout geography or some other study based upon the FOIA information." Friedman answered "Notto my knowledge, no." In addition, Friedman acknowledged plaintiff used redacted beat meetingforms it received to publish studies in its newsletters, but did not use the names of persons attendingthose meetings.

James Hickey and Carmella Means testified for defendants. Hickey, assistant director of theDepartment's records division, oversees the Department's resolution of FOIA requests. Hickeystated when he joined the records division in July 2000, the Department's FOIA denial file was notcurrent. Hickey selected Officer Means as the Department's FOIA officer and instructed her toensure the denial file was complete for the year 2000 and remained up to date. Hickey stated thedenial file is available for public inspection at the records division; however, names and addresses of individual requesters are redacted in the denial file out of concern for requesters' privacy.

Hickey stated the file is maintained manually on a word processing document and is indexedby type of exemption asserted, not by type of document requested, due to a lack of resources to indexby type of document requested. Although there is no computer database program, he hopes tocomputerize records on a database in the future in order to facilitate additional indexing. Duringcross-examination, Hickey stated that he was unaware of any "book of denials" containing denialsissued before 1998. Thereafter, defense counsel stipulated that the denial file did not comply withthe Act prior to the initiation of plaintiff's action.

Officer Means testified she has maintained the Department's FOIA denial file since becomingthe FOIA officer in August 2000. To update for the year 2000, Officer Means manually went througheach file for every FOIA request made that year to verify whether it contained a denial letter. If shefound a denial letter, she checked the denial file to confirm the file contained a copy. If the file didnot contain a copy of the denial letter, she copied it and placed it in the denial file. Officer Means isthe only person who indexes the file. She continues to place a denial letter in the denial file for every FOIA request denied. On cross-examination, Means stated it would be feasible to physically indexdenials by major categories of documents; with help she could index more categories of documents.

Count II alleged the tendered list of categories of documents under the Department's controlviolated section 5 of the Act because it was not sufficiently detailed and sought a writ of mandamusdirecting defendants to prepare, maintain, and provide such a list. During opening statement,plaintiff's counsel asserted the Department's section 5 list attached to plaintiff's complaint wasdeficient because it "does not describe in any helpful way documents that are kept electronically." During opening statement defense counsel referred to a proposed revised list that the Departmentintended to use. Defense counsel stated he tendered that revised list to the court before trial and thatit provided a complete list of document types including an attached index of specific documents. Defense counsel did not offer that revised list into evidence during trial. During closing argument,plaintiff's counsel noted no evidence was presented indicating the Department had implemented anynew list. In closing, defense counsel acknowledged the revised list had not been offered intoevidence, but indicated this new list would be implemented.

In ruling on counts I and III, the court found disclosure of names and addresses wouldconstitute an invasion of personal privacy under section 7 of the Act, and that the Department wasthus justified in redacting names and addresses of FOIA requesters from the requests, responses anddenial file. As to count II, the court stated the City "has now presented a list of 'all types orcategories of records under its control' and it substantially meets the requirements of Section 5." Plaintiff appeals summary judgment for defendants on count IV and judgment for defendants aftertrial on counts I, II, and III. Defendants cross-appeal the award of fees to plaintiff.

I. SUMMARY JUDGMENT ON COUNT IV

Summary judgment is appropriate where the pleadings, depositions, affidavits, and admissionson file, when viewed in the light most favorable to the nonmoving party, show that no genuine issueof material fact exists and that the moving party is entitled to a judgment as a matter of law. 735ILCS 5/2-1005(c) (West 2000); Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31(1999). Our review of a grant of summary judgment is de novo. Morris v. Margulis, 197 Ill. 2d 28,35 (2001).

Plaintiff challenges summary judgment on count IV, contending defendants violated the Actby failing to provide plaintiffs with beat meeting forms containing names and addresses of communityliaisons. Defendants contend names and addresses redacted from the beat meeting forms are per seexempt under section 7(1)(b)(v) of the Act.

"The Act implements the public policy of this state to provide its citizens with full access toinformation regarding the affairs of government." Chicago Journeymen Plumbers' Local Union 130v. Department of Public Health, 327 Ill. App. 3d 192, 195 (2001). Public records are presumed tobe open and accessible under the Act, and section 3(a) of the Act provides that a public body mustcomply with a request for such records unless one of the Act's exemptions applies. ChicagoJourneymen, 327 Ill. App. 3d at 195; 5 ILCS 140/3(a) (West 2000). "The exemptions are set forthin section 7 of the Act." Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,408 (1997). If a public body denies a request and the requesting party challenges the denial in thecircuit court, "the public body has the burden of proving that the records in question fall within theexemption it has claimed." Lieber, 176 Ill. 2d at 408.

Section 7(1) of the Act states in relevant part:

"(1) The following shall be exempt from inspection and copying:

***

(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy,unless the disclosure is consented to in writing by theindividual subjects of the information. The disclosure ofinformation that bears on the public duties of public employeesand officials shall not be considered an invasion of personalprivacy. Information exempted under this subsection (b) shallinclude but is not limited to:

* * *

(v) information revealing the identity ofpersons who file complaints with or provideinformation to administrative, investigative,law enforcement or penal agencies[.]" (Emphasis added.) 5 ILCS 140/7(1)(b)(v)(West 2000).

Subsection (b) sets forth a general exemption as well as a series of specific exemptions. Chicago Tribune Co. v. Board of Education of the City of Chicago, 332 Ill. App. 3d 60, 65 (2002). The general exemption, included in the first sentence of subsection (b), applies when a public bodyestablishes that "the requested information constitutes a clearly unwarranted invasion of personalprivacy." Chicago Tribune, 332 Ill. App. 3d at 65. The specific exemptions apply to the particulartypes of public records and information which are listed in subparagraphs (i) through (v). Lieber, 176Ill. 2d at 408; Chicago Tribune, 332 Ill. App. 3d at 65. "If the public body contesting disclosureclaims that the general exemption applies, the court must evaluate the information on a case-by-casebasis and conduct a balancing test to determine whether the disclosure would constitute a clearlyunwarranted invasion of personal privacy." Chicago Tribune, 332 Ill. App. 3d at 65. However, ifthe public body can prove that a requested document falls within a category specifically enumeratedin section 7, the document shall be per se exempt from inspection and copying and "no further inquiryby the court is necessary." Lieber, 176 Ill. 2d at 408.

In the instant case, the trial court concluded at the summary judgment stage that the namesand addresses of beat meeting participants were properly redacted from the beat meeting formspursuant to the per se exemption included in section 7(1)(b)(v) of the Act. Plaintiff contends that thetrial court improperly applied section 7(1)(b)(v)'s per se exemption to grant summary judgment oncount IV and alternatively contends that even if that exemption was applicable, defendants waivedtheir right to redact the requested material. Thus, regarding count IV, the first issue is whether namesand addresses of beat meeting participants are per se exempt from disclosure under section 7(1)(b)(v)of the Act. If such information is per se exempt, the next issue is whether that exemption was waivedby defendants.

To determine whether the per se exemption was applicable, we must construe section7(1)(b)(v) of the Act. Section 7(1)(b)(v), as noted above, specifically exempts from inspection andcopying "information revealing the identity of persons who file complaints with or provideinformation to administrative, investigative, law enforcement or penal agencies." 5 ILCS140/7(1)(b)(v) (West 2000). The primary objective when construing the meaning of a statute is toascertain and give effect to the legislature's intent beginning with the language of the statute, whichis the most reliable indicator of the legislature's objectives in enacting a particular law. MichiganAvenue National Bank v. County of Cook, 191 Ill. 2d 493, 503-04 (2000). "One of the fundamentalprinciples of statutory construction is to view all provisions of an enactment as a whole. Words andphrases should not be construed in isolation, but must be interpreted in light of other relevantprovisions of the statute." Michigan Avenue, 191 Ill. 2d at 504.

Defendants contend the trial court correctly determined that names and addresses redacted from beat meeting forms requested in count IV "fall[] squarely within the purview of [the specific]exemption because the very purpose of the beat meetings is to provide a forum where communityresidents can identify and resolve crime problems with the Department, which, of course, is a lawenforcement agency." In support of this contention, defendants rely upon a brochure and generalorder fact sheet issued by the Department. General Order 96-3 Fact Sheet states:

"Beat community meetings are regular meetings, held on every policebeat in the City, that provide an opportunity for police and membersof the community to meet, exchange information, and identify anddiscuss crime and disorder problems on the beat." (Emphasis added.)

In addition, a Department brochure made available to the public specifically states:

"Beat meetings are regular (often monthly) meetings *** where policeand community residents meet to exchange information aboutconditions in the neighborhood, identify crime and disorder problems,and develop strategies to combat those problems." (Emphasis added.) Plaintiff recognizes section 7(1)(b)(v) exempts from disclosure information revealing theidentity of those who file complaints with or provide information to law enforcement agencies anddoes not dispute the Department is a law enforcement agency or that the community liaisons filecomplaints with or provide information to the Department. Plaintiff contends, however, the section7(1)(b)(v) exemption "cannot be applied so literally" but, rather, applies only to identities of personswho provide information to law enforcement "in confidence." Plaintiff relies upon the general rulesof statutory construction that "[c]ommon sense must play a role in the construction of statutes" and "[r]egulations must be reasonably construed in light of their purpose and in accordance with theirpractical application." Village of Bloomingdale v. Meline, 309 Ill. App. 3d 389, 391-92 (1999). Plaintiff contends literal application of section 7(1)(b)(v) "would authorize keeping secret theidentities of most persons having any sort of communication with government" and reasons thesection 7(1)(b)(v) exemption "only comports with common sense if its application is limited undercircumstances where an expectation of confidentiality can reasonably be implied." Plaintiff arguesthat the facts that beat meetings are open to the public, that community liaisons according to a Department general order "serve[] as the 'primary community representative' in developing andimplementing problem-solving strategies," that community liaisons' names are entered on beatmeeting forms, and that these forms constitute the minutes and "the official record"of these meetingsdemonstrate that community liaisons do not have an expectation of confidentiality precluding theDepartment from redacting their names and addresses.

We reject plaintiff's interpretation of section 7(1)(b)(v). Plaintiff's interpretation is notsupported by the plain language of the statute. Section 7(1)(b)(v) does not state it exempts fromdisclosure names of people who provide information to a law enforcement agency only if thosepersons have a reasonable basis to believe their names are going to be kept confidential. Rather, theplain language of the statute states "information revealing the identity of persons who file complaintswith or provide information to *** law enforcement *** agencies" is exempt from disclosure. 5ILCS 140/7(1)(b)(v) (West 2000). Furthermore, we note that section 7(1)(c)(iv) of the Actseparately exempts from disclosure information which would "unavoidably disclose the identity ofa confidential source or confidential information furnished only by the confidential source." 5 ILCS140/7(1)(c)(iv) (West 2000). This section reflects the legislature could have drafted a statutoryprovision exempting from disclosure names of those providing information in confidence but chosenot to add this additional requirement to the section 7(1)(b)(v) exemption at issue here.

Plaintiff argues in the alternative, relying upon Lieber, that even if the exemption in section7(1)(b)(v) was applicable, defendants waived the exemption by releasing unredacted copies of beatmeeting forms to researchers at IPR. In Lieber, plaintiff, an apartment building owner, submittedFOIA requests to a nearby university, seeking disclosure of names and addresses of first-year studentswho had contacted the university regarding housing. Lieber, 176 Ill. 2d at 403-05. Although theuniversity argued names and addresses of students were private and exempt from disclosure, itroutinely provided that information to other groups, including a newspaper and religiousorganizations. Lieber, 176 Ill. 2d at 412-13.

The supreme court found prior disclosure waived the right of the university to refusedisclosure to plaintiff under an exemption in the Act. Lieber, 176 Ill. 2d at 412-13. In support of itsfinding, the supreme court noted that "under the federal Freedom of Information Act, the federalcourts have held that voluntary disclosure in one situation can preclude later claims that records areexempt from release to someone else." Lieber, 176 Ill. 2d at 413. The supreme court concluded "[i]fthe address lists can be disclosed to campus ministries and the local newspaper, the University hasno valid basis for withholding them from [the FOIA requester]." Lieber, 176 Ill. 2d at 413. We noteLieber did not address the issue in the instant case regarding whether disclosure made for consultationpurposes and limited to a single entity which treated names and addresses as confidential waivesexemption under 7(1)(b)(v).

We are mindful that the Illinois Act, although different from the federal statute, is patternedafter that statute and that the lawmakers intended that federal case law should be used in interpretingthe Act. Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1012 (1994). Regardingwaiver, we find instructive the federal case of Lakin Law Firm, P.C. v. Federal Trade Comm'n, 352F.3d 1122 (7th Cir. 2003). In Lakin, attorneys filed a federal FOIA request with the Federal TradeCommission (FTC) seeking consumer complaints about certain fraudulent business practices. Lakin,352 F.3d at 1123. The FTC complied with the request but withheld names and addresses ofindividuals who made the complaints. Lakin, 352 F.3d at 1123. Responding to a waiver argumentsimilar to the waiver argument made by plaintiff in the instant case, the court in Lakin noted that"[t]he fact that a limited group of law enforcement officials has access to these nonpublic files doesnot alter the individual consumers' privacy interests in keeping their identities and home addressesfree from general public disclosure." Lakin, 352 F.3d at 1124.

The waiver rule must not be mechanically applied whenever there is disclosure of informationbut, rather, requires consideration of the circumstances related to the disclosure, including thepurpose and extent of the disclosure as well as the confidentiality surrounding the disclosure. See Mobil Oil Corp. v. United States Environmental Protection Agency, 879 F.2d 698, 700 (9th Cir.1989) (noting that "[t]he inquiry into whether a specific disclosure constitutes waiver is fact specific"and requires consideration of the circumstances of the prior disclosure). In the instant case, thecircumstances surrounding disclosure do not support a finding of waiver. Here, unlike Lieber,disclosure was not made without any restrictions to multiple entities, including a newspaper andreligious organizations. Rather, disclosure was made for consultation purposes and limited to a singleentity which treated the names and addresses as confidential. The information was distributed to IPR,an entity monitoring and evaluating the City's CAPS program.

The evidence establishes IPR agreed to, and in fact did, maintain confidentiality of thatinformation. Professor Skogan's affidavit demonstrates IPR agreed to keep the disclosed informationconfidential. Professor Skogan specifically stated "[p]ursuant to our agreement with the City, the IPR*** [has] treated the names and addresses contained in those Beat Meeting Forms as confidential. We have not disclosed the names and addresses of Beat Meeting Participants to anybody or in anyforum, including our written evaluation of the CAPS program. The IPR and the Consortium willcontinue to zealously protect the confidentiality of Beat Meeting Participants ***." Plaintiff cites noevidence refuting Skogan's affidavit and failed to establish a genuine issue of material fact regardingthe waiver issue.

For the reasons previously discussed, redaction of names and addresses of community liaisonswas proper under section 7(1)(b)(v) "as those persons are clearly providing information to lawenforcement agencies" and disclosure to IPR did not waive the section 7(1)(b)(v) per se exemption. Summary judgment for defendants on count IV was proper.

II. COUNTS I and III

Plaintiff challenges the judgment entered after trial in favor of defendants on counts I and III. Count I sought, pursuant to section 9(b) of the Act, a writ of mandamus requiring the Departmentto maintain all notices of denial of FOIA requests, including requesters' names and addresses, in asingle central file open to the public and indexed by the type of exemption invoked and, to the extentfeasible, by the type of document sought in each denied FOIA request. Count III alleged theDepartment violated section 3 of the Act by failing to produce all FOIA requests and theDepartment's responses to those requests, including names and addresses of requesters, and soughtan injunction ordering the Department to give plaintiff copies of FOIA requests and responses. Specifically at issue are the names and addresses of persons who made requests under the Act, asthese names and addresses appear in: (a) FOIA requests; (b) FOIA response letters to FOIA requests;and (c) the FOIA denial file.

The burden of demonstrating a basis for redacting information from records requested underFOIA is on the public body that has redacted the subject information. 5 ILCS 140/11(f) (West 2000). To the extent plaintiff challenges the factual basis supporting the judgment on counts I and III, wedetermine whether that judgment is against the manifest weight of the evidence. Gerill Corp. v. JackL. Hargrove Builders, Inc., 128 Ill. 2d 179, 192-93 (1989) (factual determination made by trial courtwill not be disturbed on appeal unless it is contrary to the manifest weight of the evidence). To theextent plaintiff challenges the judgment on legal grounds, we apply de novo review. MichiganAvenue, 191 Ill. 2d at 503 (construction of statute raises issue of law subject to de novo review).

Regarding count I, plaintiff contends section 7(1)(b) does not exempt from disclosure thenames and addresses of FOIA requesters included in denials maintained pursuant to section 9(b). Plaintiff contends that section 7(1)(b)'s general exemption does not apply to denials of FOIA requestsmaintained pursuant to section 9(b). Plaintiff further contends that even if denials maintainedpursuant to section 9(b) are subject to section 7(1)(b)'s general exemption, the exemption does notspecifically apply to the names and addresses redacted from the denials because disclosure of thatinformation to plaintiff would not constitute a clearly unwarranted invasion of personal privacy.

Regarding count III, plaintiff seeks access to all FOIA requests submitted to the Departmentand the Department's responses to those requests, without redaction of requesters' names andaddresses. Section 3(a) of the Act requires public bodies to produce documents requested under theAct subject to exemptions included in section 7 of the Act. 5 ILCS 140/3(a) (West 2000). Plaintiffdoes not dispute the general exemption included in section 7(1)(b) of the Act applies to public recordsrequested under section 3(a) of the Act and that information in such records may thus be redactedto the extent disclosure would constitute a clearly unwarranted invasion of personal privacy. Plaintiffdoes dispute that disclosure of the requested information constitutes a clearly unwarranted invasionof personal privacy. Accordingly, as to names and addresses of FOIA requesters sought in countsI and III, we address the following issues: (1) as to count I, whether information included in thesection 9(b) denial file is subject to general section 7(1)(b) exemption and whether the denial filesatisfies 9(b) indexing requirements; and (2) as to counts I and III whether disclosure of FOIArequesters' names and addresses would constitute a clearly unwarranted invasion of personal privacy.

A. 7(1)(b) Exemption Applies to Section 9(b) Notices of Denial

Count I alleged defendants violated section 9(b) by failing to maintain a file of denials andsought a writ of mandamus directing defendants to comply with the requirements included in section9(b) of the Act. Section 9(b) provides:

"When a request for public records is denied on the groundsthat the records are exempt under section 7 of this Act, the notice ofdenial shall specify the exemption claimed to authorize the denial. Copies of all notices of denial shall be retained by each public body ina single central office file that is open to the public and indexedaccording to the type of exemption asserted and, to the extentfeasible, according to the types of records requested." 5 ILCS140/9(b) (West 2000).

Without requesters' names and addresses, plaintiff argues, it is impossible to determine whether theDepartment responded to requests in an impartial manner and impossible to contact individuals tochallenge their treatment by the Department. In determining whether the section 7(1)(b) exemptionapplies to denials maintained in the section 9 denial file, we construe the Act using previously notedrules of statutory construction.

The plain language of section 7(1)(b) prohibits inspection and copying of "[i]nformation that,if disclosed, would constitute a clearly unwarranted invasion of personal privacy." 5 ILCS140/7(1)(b) (West 2000). This prohibition is not absolute. The plain language of section 7(1)(b)includes an exception expressly authorizing disclosure if "the disclosure is consented to in writing bythe individual subjects of the information." 5 ILCS 140/7(1)(b) (West 2000). In addition, section7(1)(b) specifies "information that bears on the public duties of public employees and officials shallnot be considered an invasion of personal privacy." 5 ILCS 140/7(1)(b) (West 2000). The plainlanguage of section 7(1)(b) does not, however, state that its general prohibition against disclosure ofinformation which would constitute a clearly unwarranted invasion of privacy shall not apply if thatinformation is included in a section 9(b) denial file. Nor does the plain language of section 7(1)(b)restrict application of its general prohibition against disclosure depending upon the statutory sectionof the Act under which access to information is sought. Thus, the plain language of section 7(1)(b)reflects the legislature intended that all requests to inspect and copy public records be subject to thegeneral exemption included in that section unless subjects of the records consent to disclosure orinformation sought relates to public duties of public employees and officials.

Plaintiff observes the plain language of section 9(b) requires notices of denial to be retainedin a file "open to the public" and does not indicate notices of denial are subject to exemptionsincluded in section 7. Plaintiff argues although section 3(a) provides public records must be disclosed"except as otherwise provided in section 7 of this Act," the plain language of section 9(b) does notstate notices of denial shall be retained in a file open to the public "except as otherwise provided insection 7 of this Act." The absence in section 9(b) of language referencing section 7, plaintiff argues,indicates the legislature did not intend for information in a denial file to be subject to section 7exemptions.

The plain language of section 7(1)(b) does not indicate that the applicability of its generalexemption is contingent upon the section of the Act under which the disputed information isrequested. Rather, it reflects its applicability is contingent upon the substance of the information itselfand the extent to which disclosure of the information would constitute a clearly unwarranted invasionof personal privacy. Plaintiff's argument, however, is based on the premise that while privacyinterests are relevant when a request is made under section 3, those same privacy interests are notrelevant to requests to access notices of denial under section 9(b). Plaintiff's interpretation, whereby7(1)(b) applies to section 3(a) but not to section 9(b), would make the same information, such asrequesters' names and addresses reflected in the denial file, available under section 9(b) but not undersection 3(a). Indeed, it would make information available based not upon its substance and the extentto which its disclosure would constitute a clearly unwarranted invasion of personal privacy, but ratherupon the statutory section of the Act under which it was sought. Such an absurd and inconsistentresult could not have been intended by the legislature. See Carver v. Sheriff of La Salle County, 203Ill. 2d 497, 508 (2003) (in construing a statute, courts presume lawmakers did not intend absurdity,inconvenience or injustice). The Act should be not be construed so that one provision eliminates theprivacy interests protected by another provision. Adopting plaintiff's interpretation applying section7(1)(b) to section 3(a) but not to section 9(b) would do precisely that. See Antunes v. Sookhakitch,146 Ill. 2d 477, 484 (1992) (provisions of statute taken as a whole should be interpreted consistently). Plaintiff recognizes that the notices of denial qualify as "public records" subject to disclosureunder section 3, and such records are ordinarily subject to the general exemption included in section7(1)(b). Plaintiff argues, however, that if the legislature intended notices of denial to be producedonly in accordance with section 3(a), it would not have expressly required in section 9(b) that noticesof denial be retained in a file "open to the public." Plaintiff contends interpreting the general 7(1)(b)exemption to apply to information included in the section 9(b) denial file would render meaninglesssection 9(b)'s provision that denial notices be retained in a file "open to the public." Such aninterpretation, plaintiff argues, would be inconsistent with the well-established rule that "[s]tatutesshould be construed, if possible, so that no term is rendered superfluous or meaningless." Advinculav. United Blood Services, 176 Ill. 2d 1, 26 (1996).

We reject plaintiff's argument that subjecting information in the section 9(b) denial file,namely, the names and addresses of the individual FOIA requesters included in the denial file, to thegeneral section 7(1)(b) exemption renders superfluous section 9(b)'s provision that denials bemaintained in a file open to the public. We recognize both section 3(a) and section 9(b) of the Actprovide members of the public with a means of gaining access to denials of FOIA requests. Application of the general exemption to names and addresses of individual FOIA requesters includedin the section 9(b) denial file does not render section 9(b)'s "open to the public" provision meaningless. Rather, it ensures protection of privacy interests of FOIA requesters consistent withthe other provisions of the statute while allowing public access to notices of denial with requesters'names and addresses redacted. For the reasons previously discussed, consistent with the provisionsof section 9(b), denials of FOIA requests "shall be retained" by the Department in a single central file"open to the public" (5 ILCS 140/9(b) (West 2000)); however, regarding names and addresses ofFOIA requesters, the section 9(b) denial file is subject to general section 7(1)(b) exemption.

As to counts I and III, the next issue before us is whether disclosure of FOIA requesters'names and addresses constitutes a clearly unwarranted invasion of personal privacy. As previouslynoted, the plain language of section 7(1)(b) prohibits inspection and copying of "[i]nformation that,if disclosed, would constitute a clearly unwarranted invasion of personal privacy." 5 ILCS140/7(1)(b) (West 2000). We are mindful that the government agency "has the burden of provingthat the records in question fall within the exemption it has claimed." Lieber, 176 Ill. 2d at 408. Unlike count IV, there is no per se exemption at issue as to counts I and III. Rather, defendantsconcede that "the FOIA requests and responses are not covered by a per se exemption; while theycontain correspondence between private citizens and law enforcement, the correspondence is notintended to give information to the Department." Because no per se exemption is applicable,resolution of the disclosure issue requires us to balance the public's interest in disclosure against theindividual's interest in privacy. See Gibson v. Illinois State Board of Education, 289 Ill. App. 3d 12,20-21 (1997). In striking this balance, we consider the following factors: "(1) the plaintiff's interestin disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and(4) the availability of alternative means of obtaining the requested information." Lieber, 176 Ill. 2dat 409.

As to the first Lieber factor, plaintiff identifies two interests that would be served by unrestricted access to names and addresses of FOIA requesters. First, plaintiff asserts that access tothis information would enable it "to determine whether defendants are satisfying their obligationsunder FOIA generally *** [and] whether defendants' responses to FOIA requests are influenced by,or vary according to, the status or identity of the requester or where the requester lives and todetermine whether CANS is being treated differently than other persons or organizations." Withoutunrestricted access to this information, plaintiff argues it could not make these determinations.

The record reflects that in June 1999 defendants provided plaintiff with unredacted copies ofall FOIA requests and responses subject to the trial court's protective order barring plaintiff fromdisclosing names and addresses of individual requesters without leave of court. Plaintiff had thisinformation for well over a year before trial and had a sufficient opportunity to review requests andresponses to determine whether the Department treated requests differently, and in the event that itfound disparate responses to similar requests, to review whether those responses were influenced bywhere the requester lived. Despite access to this information, plaintiff did not undertake thesedeterminations.

At trial, Warren Friedman, a member of plaintiff's board of directors and its former executivedirector, admitted plaintiff had not organized FOIA requests by topic or undertaken any systematicreview of these records. Nothing in the trial court's order constructively redacting requesters' namesand addresses precluded plaintiff from publishing a study indicating requesters from certainneighborhoods were not getting the same responses as those with similar requests from otherneighborhoods. To the extent plaintiff wanted to include names and addresses of requesters in sucha study, it could have requested the trial court for leave to do so. However, Friedman's testimonyindicates plaintiff's counsel never sought leave of the court to include this information in any type ofpublished study. The record does not reflect the constructive redaction of names and addresses ofthe FOIA requesters prohibited plaintiff from pursuing its interest in determining whether theDepartment treated requests differently based upon where the requester lived.

The second interest that plaintiff believes disclosure would serve is its interest in "link[ing]up with people with common concerns about crime and about the police and to organize others toreform FOIA practices." We recognize disclosure could enable plaintiff to contact FOIA requestersand could potentially serve its interest in communicating with people who may have commonconcerns about crime or the police. However, allowing plaintiff to contact FOIA requesters couldalso undermine the purpose the Act was intended to serve -- providing citizens with full access toinformation regarding the affairs of government -- by chilling use of the Act by citizens. Werecognize crime victims, witnesses, and persons interested in crime prevention could be reluctant torequest information if their requests would place their names and addresses on a public list of personswho have requested information from the Department. See City of San Jose v. Superior Court, 74Cal. App. 4th 1008, 1022-23, 88 Cal. Rptr. 2d 552, 563-64 (1999).

In City of San Jose, the petitioner, a newspaper, requested from the City of San Jose names,addresses, and telephone numbers of individuals who had made written, telephonic, or e-mailcomplaints about airport noise as well as tapes and transcriptions of telephonic complaints. City ofSan Jose, 74 Cal. App. 4th at 1012, 88 Cal. Rptr. 2d at 555. The newspaper sought this informationin order to individually contact the complainants and confirm their complaints had been properlyrecorded and reported by the City. City of San Jose, 74 Cal. App. 4th at 1022-23, 88 Cal. Rptr. 2dat 563-64. The trial court ordered disclosure of the complaints, including information identifyingcomplainants which was not expressly exempted by statute, and on appeal the City argued disclosurewould have a chilling effect and reduce the number of complaints. City of San Jose, 74 Cal. App. 4that 1014-15, 1022, 88 Cal. Rptr. 2d at 557-58, 563. The newspaper responded the City's argumentswere based on speculation rather than evidence of any citizen being deterred from making a complaintbecause of disclosure of name or address. City of San Jose, 74 Cal. App. 4th at 1022, 88 Cal. Rptr.2d at 563. The reviewing court acknowledged absence of evidence that any citizen was deterred frommaking a complaint because of disclosure. City of San Jose, 74 Cal. App. 4th at 1024, 88 Cal. Rptr.2d at 564. It held, however, that information identifying complainants should be redacted from complaints and reasoned "it may be fairly inferred, on the basis of human experience, that it is likelythat public disclosure of airport complainants' names, addresses, and telephone numbers will have achilling effect on the number of complaints made." City of San Jose, 74 Cal. App. 4th at 1024, 88Cal. Rptr. 2d at 564.

Regarding the second Lieber factor, the interest of the public in disclosure, plaintiff arguesthat requiring the Department to maintain notices of denial with names and addresses unredacted ina central file open to the public under section 9 would serve the public interest in monitoringgovernment actions and practices. As noted above, the trial record does not reflect redaction ofnames and addresses of FOIA requesters has impeded plaintiff's ability to monitor the Department'sactions and practices. Moreover, monitoring a government body's actions without evidence of anywrongdoing by it serves little public interest as government bodies are presumed to act lawfully. SeeCBS, Inc. v. Partee, 198 Ill. App. 3d 936, 948 (1990). Public interest based upon a requester'sallegation of improper conduct is "insubstantial" unless there is at least some evidentiary support thatthe public body has acted improperly. See Davis v. United States Department of Justice, 968 F.2d1276, 1282 (D.C. Cir. 1992). We recognize that evidence of wrongdoing is not a prerequisite toestablishing the public's interest in disclosure. However, in the instant case we cannot conclude,without evidence of improper conduct by the Department and without evidence that redaction ofnames and addresses impeded plaintiff's ability to monitor the Department's conduct, that the public'sinterest weighs in favor of disclosure.

The third factor of the balancing test requires us to examine "the degree of invasion ofpersonal privacy." The United States Supreme Court has noted that individuals generally have someprivacy interest in their names and addresses and that "[it is] reluctant to disparage the privacy of thehome, which is accorded special consideration in our Constitution, laws, and traditions." UnitedStates Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 501, 127 L. Ed.2d 325, 338, 114 S. Ct. 1006, 1015 (1994). Assessing the degree of invasion of personal privacyrequires review of the context in which the subject names and addresses appear and what disclosurereveals about the individual. See Gibson, 289 Ill. App. 3d at 21; Chicago Journeymen, 327 Ill. App.3d at 198-99.

In Gibson, the FOIA requesters, the Chicago Tribune and one of its reporters, requested names and addresses of students who had received scholarships sponsored by the legislature. Gibson,289 Ill. App. 3d at 14-15. Relying on Lieber, the court in Gibson held that although names andaddresses in and of themselves were not confidential or private, they were exempt from disclosure in the context of the case before it because they were linked to the receipt of a scholarship, which wasintensely "confidential" and "private." Gibson, 289 Ill. App. 3d at 21. In Chicago Journeymen, bycontrast, the FOIA requester sought names and addresses of all plumbers and apprentice plumberswho had been licensed by the Illinois Department of Public Health. Chicago Journeymen, 327 Ill.App. 3d at 193. The reviewing court determined disclosure in this instance was warranted, reasoningthat "[u]nlike Gibson, there is no category at play here which would cause confidential or privateinformation to be released." Chicago Journeymen, 327 Ill. App. 3d at 199.

In the instant case, the requesters' names and addresses are linked to a request for informationfrom the Department. In light of this circumstance, we are mindful of the reasonable observation bydefendants in their brief that "[p]rivate citizens who request information from the Department,particularly information about a certain case, crime, victim or complainant, may very well wish tokeep any association they have with the subject of their request confidential. The stigma of crimeand shame of being a victim are obvious and substantial. Even witnesses who make inquiriesregarding crimes they observed may be reticent to have their name associated with that incident inthe public domain."

Plaintiff contends that FOIA requesters cannot have any expectation of privacy given thatother law enforcement agencies in Illinois do not redact names and addresses of FOIA requesters. We note, however, that privacy interests of FOIA requesters whose names have been redacted fromdocuments sought by a subsequent FOIA requester must be reviewed on a case-by-case basis in lightof all four Lieber factors. See Chicago Tribune, 332 Ill. App. 3d at 65. Thus, the degree of invasionof personal privacy as to a FOIA requester's name and address will be contingent not upon decisionsmade by other agencies in Illinois (based on the unique facts and circumstances confronting them),but rather upon the facts and circumstances confronting the specific agency to whom the requesterhas given his name and address in the course of making a request. The context in which the subjectnames and addresses appear and what disclosure reveals about the individual is to be considered inassessing the degree of invasion of personal privacy. See Gibson, 289 Ill. App. 3d at 21; ChicagoJourneymen, 327 Ill. App. 3d at 198-99.

In analyzing the third Lieber factor, the degree of invasion of personal privacy at issue in theinstant case, we find Lakin instructive. In Lakin, the reviewing court upheld the FTC's refusal torelease the names and addresses of individuals who had filed consumer complaints, recognizing thatsuch "personal identifying information is regularly exempt from disclosure. And that is as it shouldbe, for the core purpose of the FOIA is to expose what the government is doing, not what its privatecitizens are up to." Lakin, 352 F.3d at 1124. In the instant case, compelling disclosure of names andaddresses would not further the core purpose of the FOIA. See Lakin, 352 F.3d at 1124. Personalprivacy interests do not disappear when an individual provides identifying information about himselfupon exercising the right to request information from a governmental agency under the Act . SeeLakin, 352 F.3d at 1124-25 (noting that consumers who make complaints to FTC do not waive theirprivacy rights even though FTC's website cautions that the information may be subject to releaseunder FOIA).

In the factual context of the instant case, we find that disclosure of the names and addressesof individuals requesting information under FOIA from the Chicago Police Department wouldconstitute an invasion of personal privacy to a degree that outweighs the public interest in disclosure. The personal privacy interest of the FOIA requester is not de minimis, and personal privacy interestsdo not disappear when an individual provides information about himself in exercising the right underFOIA to request information from a governmental agency. See Lakin, 352 F.3d at 1124-25. Thepurpose of the Act is to disclose information that relates to the affairs of government including thepublic duties of public employees and public officials. 5 ILCS 140/1 (West 2000); Lieber, 176 Ill.2d at 407. The Act was not designed to provide information about private individuals seeking accessto information regarding the affairs of government. As previously noted, "the core purpose of theFOIA is to expose what the government is doing, not what its private citizens are up to." Lakin, 352F.3d at 1124. While we recognize there could be a case in which the public's interest in the name andaddress of a FOIA requester outweighed the requester's privacy interest, this is not such a case.

The fourth and final Lieber factor is whether plaintiff can obtain names and addresses of FOIA requesters through an alternative means. We recognize that other than advertising, there arefew avenues available to plaintiff to obtain this information. Plaintiff's interest in directly contactingFOIA requesters and its relative inability to obtain names and addresses through alternative meansdo not tip the scale in favor of disclosure given the minimal public interest in disclosure and theindividual privacy interests involved.

The four Lieber factors weigh in favor of redacting FOIA requesters' names and addressesfrom FOIA requests, responses, and denial notices maintained in the denial file. FOIA requesters,particularly those who are crime victims, witnesses, or individuals interested in crime prevention, havea privacy interest in keeping confidential their names and addresses and keeping confidential the factthey have made a FOIA request to the Department. Disclosing to the public their names andaddresses from the FOIA requests, responses or denial file undermines that interest. The trial recorddoes not reflect that exempting the names and addresses of FOIA requesters from the Department'sresponses precluded plaintiff from pursuing its alleged interests in monitoring the Department'shandling of FOIA requests. On balance, the evidence related to the Lieber factors establishes thatthe requesters' interest in privacy regarding names and addresses outweighs the public's interest indisclosure.

For the reasons previously discussed, we conclude disclosure of names and addresses of FOIArequesters as they appeared in FOIA requests and responses sought under section 3(a) in count IIIand in the FOIA denial file sought under section 9(b) in count I would constitute a clearlyunwarranted invasion of personal privacy. We note that this conclusion is based upon application ofthe Lieber factors to the specific facts and circumstances of the case before us and does not establisha per se rule that FOIA requesters' names and addresses are categorically exempt from disclosure. Accordingly, based upon the previous discussion, we find the trial court, in the factual context of thiscase, properly redacted the names and addresses of persons who made requests under the Act, asthese names and addresses appear in: (a) FOIA requests; (b) FOIA response letters to FOIA requests;and (c) the FOIA denial file.

C. Denial File Satisfies Section 9(b) Indexing Requirements

Regarding count I, we next address whether the court's determination that the Department'sdenial file satisfied section 9(b)'s indexing requirements was against the manifest weight of theevidence. Plaintiff contends even if disclosure of the redacted information would constitute a clearlyunwarranted invasion of privacy, judgment in defendants' favor on count I must be reversed becausedefendants failed to maintain denial notices issued before initiation of this lawsuit and indexed denialsonly by type of exemption claimed, not also by the types of records requested in each denied FOIArequest. As previously noted, section 9(b) requires copies of denial notices to be "indexed accordingto the type of exemption asserted and, to the extent feasible, according to the types of recordsrequested." 5 ILCS 140/9(b) (West 2000).

At trial, the evidence established the Department had not indexed the denial file by type ofrecords requested because it was not yet feasible. Hickey, assistant director of records, stated heplanned to have the file indexed in this manner in the future. He explained for the time being the filewould remain indexed only by type of exemption asserted due to lack of resources for furtherindexing. FOIA officer Means stated she was the only person indexing and it would be feasible tophysically index by major category. She did not, however, state that it would be feasible to index bythe specific types of records requested, but stated with help she would "probably" be able to indexby more categories. The testimony of Hickey and Means does not demonstrate the Departmentpresently had funding to hire someone to help index. Mindful of section 9(b)'s requirement ofindexing "to the extent feasible," based on the record, we find the court's refusal to grant mandamusrequiring the Department to further index the denial file by types of records requested was not againstthe manifest weight of the evidence.
 

D. Absence of Denials Does Not Warrant Writ of Mandamus

Plaintiff additionally contends that the trial court's refusal to issue a writ of mandamus wasin error because the denial file did not contain all denials issued before 2000. Plaintiff correctlynotes in its brief that the Act became effective in 1984 and that the Department's obligation tomaintain a denial file began at that time. Defendants acknowledge that the denial file is completeonly for denials issued beginning in 2000 and concede that the Department should have kept alldenial notices issued prior to 2000. Defendants argue, however, that a writ of mandamus isinappropriate because the evidence at trial established the Department did not have possession ofthe denials in question and therefore could not have supplemented the denial file with them. Weagree.

A writ of mandamus compelling the undertaking of an impossible act will not be issued. People ex rel. Maro v. Board of Auditors, Rock Island Township, 48 Ill. 2d 202, 204 (1971);Curtis v. Little, 117 Ill. App. 3d 714, 717 (1983). Hickey's testimony reflects the denial filecontains all denials issued beginning in the year 2000, contains only some denials for the years1998 and 1999, and contains no denials before 1998. Hickey stated on cross-examination that hewas unaware of any "book of denials" containing denials issued before 1998. The record fails toreflect any evidence presented at trial which indicates the Department was capable of producingdenials issued before the year 2000 other than those already in the file for 1998 and 1999. Wefind no error in the trial court's refusal to order production of all denials since 1984. See Peopleex rel. Maro, 48 Ill. 2d at 204 (mandamus compelling impossible act will not be issued). For thereasons previously discussed, the court's denial of mandamus on count I and denial of injunctionon count III are affirmed.
 

III. COUNT II

Pursuant to section 5 of the Act, count II sought a writ of mandamus requiring theDepartment to prepare, maintain and make available to the public a current list describing inreasonable detail all types or categories of records under its control. In support of its claim,plaintiff attached to its complaint the document provided by the Department in response to itsinitial request under section 5. That document listed divisions of the Department and dutiesassigned. The purpose of section 5 is to aid persons in obtaining documents from the Departmentunder the Act. Section 5 of the Act states in relevant part:

"*** [E]ach public body shall maintain and make availablefor inspection and copying a reasonably current list of all types orcategories of records under its control. The list shall be reasonablydetailed in order to aid persons in obtaining access to public recordspursuant to this Act. Each public body shall furnish upon request adescription of the manner in which public records stored by meansof electronic data process may be obtained in a formcomprehensible to persons lacking knowledge of computerlanguage or printout format." 5 ILCS 140/5 (West 2000).

The court denied the parties' motions for summary judgment on count II, explaining thatquestions of fact existed as to whether the Department properly maintained a section 5 list. Thecourt stated "defendants will be given the opportunity to comply with [section 5 ] because theyare obliged to follow the statutory requirements." Shortly before trial, defendants provided thecourt with a revised section 5 list. The court, after trial, found "the [City] has now presented alist of 'all types or categories of records under its control' and it substantially meets therequirements of Section 5 of the [Act]."

Plaintiff argues that we may not consider the revised list because it was not admitted intoevidence at trial and has filed a motion in this court to strike that list from the appendix todefendants' brief. Defendants filed a motion to strike plaintiff's motion. Both motions to strikewere taken with the case. Plaintiff identifies the section 5 list that was attached to its complaintand was the subject of defendants' summary judgment motion as the only list in evidence andcontends this list is insufficient.

Defendants acknowledge the revised list was not admitted into evidence at trial and do notdispute the original list failed to comply with section 5. Defendants, however, contend thedoctrine of judicial estoppel precludes plaintiff from now arguing the revised list may not beconsidered. Application of the doctrine of judicial estoppel, which is within the court's discretion,provides that "a party who assumes a particular position in a legal proceeding is estopped fromassuming a contrary position in a subsequent legal proceeding." Bidani v. Lewis, 285 Ill. App. 3d545, 550 (1996). "The five elements necessary for the application of judicial estoppel include thefollowing: 'the party to be estopped must have (1) taken two positions, (2) that are factuallyinconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending forthe trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the firstproceeding and received some benefit from it.' " Barack Ferrazzano Kirschbaum Perlman &Nagelberg v. Loffredi, 342 Ill. App. 3d 453, 460 (2003), quoting People v. Caballero, 206 Ill. 2d65, 80 (2002).

Here, we find the facts satisfy the above elements and conclude plaintiff is judiciallyestopped from claiming the revised section 5 list provided to the court before trial may not beconsidered. At trial, plaintiff's counsel noted in closing argument that no evidence was presentedto the trial court indicating the Department intended to implement the revised section 5 list. Following trial, plaintiff filed a motion for an award of attorney fees and expenses and, in amemorandum supporting that motion, asserted "[t]hrough this litigation, [plaintiff] obtainedcompliance with Section[] 5 *** of FOIA." Plaintiff further stated "[c]learly this litigation wasresponsible for the production of a new, more detailed list." In its reply in support of its motionfor fees, plaintiff conceded the Department stopped using the old section 5 list shortly beforetrial, noting: "The defendants through a summary judgment motion, unsuccessfully sought a rulingthat the list conformed to section 5. The Court held otherwise. The [Department] neverthelesscontinued to use that document as its section 5 list until the eve of trial. Then it generated a newlist, accepted by the Court on December 11, 2000."

Plaintiff made these factual assertions to support its contention it was entitled to attorneyfees, intended the trial court to accept the truth of these assertions, and by receiving fees,benefitted from the trial court's acceptance of these assertions. Plaintiff now asserts in thisappeal, a proceeding separate from that conducted by the trial court, that this court may notconsider the revised section 5 list because there "isn't any evidence that [it] has been or ever willbe used." Plaintiff's assertion is contradicted by the record and directly contradicts the factualassertions it made in the trial court in support of its motion for fees including the previously notedassertion that "[t]hrough this litigation, [plaintiff] obtained compliance with Section[] 5 *** ofFOIA.". We conclude plaintiff is judicially estopped from now asserting that the Department hasnot complied with section 5. The trial court's denial of a writ of mandamus on count II based onits finding that the Department's revised list substantially satisfies section 5 of the Act is affirmed.
 

IV. CROSS-APPEAL

An award of attorney fees under the Act will not be disturbed absent an abuse ofdiscretion. Lieber v. Board of Trustees of Southern Illinois University, 316 Ill. App. 3d 266, 269(2000). Defendants contend on cross-appeal the award of attorneys fees must be reduced and theaward of costs must be reversed. Section 11(i) of the Act states:

"If a person seeking the right to inspect or receive a copy ofa public record substantially prevails in a proceeding under thisSection, the court may award such person reasonable attorneys'fees if the court finds the record or records in question were ofclearly significant interest to the general public and that the publicbody lacked any reasonable basis in law for withholding therecord." 5 ILCS140/11(i) (West 2000).

The court originally denied plaintiff's request for attorney fees and costs. Plaintiff filed a motion for reconsideration contending that it had prevailed on most of its claims and was entitledto attorney fees and costs. Plaintiffs sought $93,063.00 in attorney fees and $3,334.41 in "out ofpocket expenses." The court conducted a hearing on plaintiff's motion and ruled as follows:

"This court finds that not only is [plaintiff] eligible for the fees, but[plaintiff] has also proven it's entitled to fees by demonstrating therecords at issue in this cause of action were of significant interest tothe general public, and the Chicago Police Department lackedreasonable grounds for withholding some of the records inquestion. Though this Court finds [plaintiff] is entitled to fees, thisCourt finds in its discretion [plaintiff] is only entitled to half of thefees requested. This court finds the litigation of this cause ofaction could have been resolved in a shorter period of time and in aless expensive manner. Therefore, based on the foregoing, thisCourt grants [plaintiff's] motion for an award of attorneys' fees andexpenses pursuant to Section 11(i) of the [Act] in the amount of$48,198.70."

After this oral ruling, the court entered a written order, dated March 30, 2001, whichstated plaintiff "is awarded $48,198.70 in fees and expenses." The court indicated that theDepartment "lacked reasonable grounds for withholding some of the records in question." Defendants contend they had a reasonable basis under section 11(i) of the Act for withholding thedistrict plans for 1996 and 1997 and General Order 97-6 and dispute only those fees incurred forlegal services rendered to obtain those documents. Defendants estimate plaintiff incurred $2,366in attorney fees to obtain these documents and ask us to find plaintiff is not entitled to attorneyfees for its efforts to obtain those documents. Defendants further request we remand to thecircuit court for a determination of the amount by which the fee award should be reduced.

We have reviewed the district plans, General Order 97-6, and statutory exemptions thatdefendants contend gave them a reasonable basis in law for withholding these documents. Wenote the trial court reduced the amount of fees sought by plaintiff and specifically recognized theDepartment lacked reasonable grounds for withholding only some documents. The record doesnot reflect the court failed to consider district plans and General Order 97-6 in reaching itsconclusion as to the proper amount awarded plaintiff.

Defendants additionally challenge the court's award of expenses. Defendants contend $1,667.20 of the court's award was for expenses incurred by plaintiff, expenses are notrecoverable under the Act, and the award must be reduced by $1,667.20. Plaintiff sought$93,063 in attorney fees and $3,334.41 in "out of pocket expenses." Defendants observealthough the court ruled it was awarding plaintiff one half of the fees requested, it awardedplaintiff one half of requested attorney fees plus one half of expenses. Defendants note one half of $93,063 in attorney fees requested by plaintiff is $46,531.50, one half of $3,334.41 in expensesrequested by plaintiff is approximately $1,667.20, and the sum of these two halves equals$48,198.70, the amount awarded by the trial court. Based on our review of the record, we findno abuse of discretion in the total amount awarded. The amount awarded was reasonable,consistent with the previously noted provisions of section 11(i) and supported by the record.
 

V. CONCLUSION

We affirm the summary judgment on count IV, affirm judgment entered following trial oncounts I, II, and III, affirm the fees award entered by the court, and deny motions to strike.

Judgment affirmed.

O'BRIEN and GALLAGHER, JJ., concur.