Find Legal Information

JUSTICE MAAG delivered the opinion of the court:

Stan Lieber, plaintiff-appellant, brought this action seeking the disclosure ofinformation from Southern Illinois University (University), defendant-appellee, pursuant tothe Illinois Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 1992)). Thecircuit court entered summary judgment in favor of the University. The circuit courtdetermined that the University was not required to disclose the information that Liebersought, and the court denied Lieber's motion for summary judgment. Lieber appealed to thiscourt, and we reversed the circuit court's summary judgment in favor of the University andgranted summary judgment in favor of Lieber. Lieber v. Southern Illinois University, 279Ill. App. 3d 553, 664 N.E.2d 1155 (1996). The University appealed this court's decision tothe Illinois Supreme Court, which affirmed our decision. Lieber v. Board of Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 680 N.E.2d 374 (1997). After the entry of thejudgment, Lieber moved for an award of attorney fees pursuant to the Act (5 ILCS 140/11(i)(West 1992)). The circuit court denied the request for attorney fees. Lieber appeals solelyon the issue of attorney fees.

The undisputed facts are as follows. The University requires unmarried freshmenunder the age of 21 who do not live with their parents to reside either in a Universitydormitory on campus or in privately owned off-campus housing approved by the University. Lieber owns a University-approved off-campus housing facility known as the StevensonArms. In the past, the University supplied Lieber and other owners with information aboutincoming freshmen so that the owners could contact them directly with information abouttheir respective housing units. The University routinely supplied mailing labels containingnames and addresses of incoming students to the Southern Illinoisan-a Carbondalenewspaper-and to various religious organizations. The University also supplied thisinformation to state representatives and other educational institutions. Due to decliningenrollment, which in turn resulted in more competition between University housing and off-campus housing, the University became uncooperative in releasing the names and addressesof incoming students to the Stevenson Arms. On April 12, 1993, Lieber sent a demand letterto the president of the University, requesting "a complete listing of any and all recordsrelating to freshman housing inquiries, made for the 1993-1994 school year, including thename, address, and telephone number of each and every inquiry received by the Universityfrom an accepted freshman, from February 1st, 1993[,] to April 9th, 1993." The Universitydenied Lieber's request on April 15, 1993. In this letter, the president of the Universityclaimed that (1) the Act does not require the release of information to be used for furtheringa commercial enterprise and (2) the address-list information for accepted freshmen is exemptfrom disclosure because the release of student information is restricted by federal law.

Lieber filed a complaint for injunctive relief against the University on May 18, 1993,for the University's failure to disclose records pursuant to the Act (5 ILCS 140/1 et seq.(West 1992)). Initially, the University's and Lieber's motions for summary judgment weredenied. The University filed a second motion for summary judgment, asserting that Lieber'ssole purpose for seeking the requested information was to further a commercial enterprise. Lieber also filed a second motion for summary judgment and claimed that the informationhe requested was not exempt. As we previously stated, the circuit court granted theUniversity's motion for summary judgment and denied Lieber's motion for summaryjudgment. On appeal to this court, we reversed the grant of summary judgment in favor ofthe University and granted Lieber's motion for summary judgment. Lieber v. SouthernIllinois University, 279 Ill. App. 3d 553, 664 N.E.2d 1155 (1996). The Illinois SupremeCourt affirmed our decision. Lieber v. Board of Trustees of Southern Illinois University,176 Ill. 2d 401, 680 N.E.2d 374 (1997). The Illinois Supreme Court noted that thepreferential treatment of persons or interest groups "fosters precisely the distrust ofgovernment the federal Freedom of Information Act was intended to obviate." Lieber, 176Ill. 2d at 413, 680 N.E.2d at 379 (quoting State of North Dakota ex rel. Olson v. Andrus, 581F.2d 177, 182 (8th Cir. 1978)). The court then determined that there was "no valid basis"for withholding the information from Lieber. Lieber, 176 Ill. 2d at 413, 680 N.E.2d at 380. The court noted that the only reason the University treated him differently than otherorganizations is that he was in direct competition with the University for a dwindlingfreshmen housing market.

Pursuant to the mandate, the circuit court entered a judgment in favor of Lieber. Lieber then moved for attorney fees pursuant to the Act (5 ILCS 140/11(i) (West 1992)). The circuit court held that in order to award attorney fees pursuant to the Act, theinformation must be of clearly significant interest to the general public and there must be noreasonable basis for withholding the information. The circuit court determined that thedocuments were not of clearly significant interest to the general public, and the court deniedLieber's request for attorney fees on that basis. Lieber appeals.

Lieber claims that the circuit court improperly denied his motion for attorney feespursuant to the Act and also contends that the circuit court erred in finding that the recordsin question were not of clearly significant interest to the general public. The Universityclaims otherwise and also contends that the circuit court properly denied Lieber's motion forattorney fees pursuant to the Act because the University had a reasonable basis in law forwithholding the records.

Pursuant to section 11(i) of the Act:

"If a person seeking the right to inspect or receive a copy of a public recordsubstantially prevails in a proceeding under this Section, the court may award suchperson reasonable attorneys' fees if the court finds that the record or records inquestion were of clearly significant interest to the general public and that the publicbody lacked any reasonable basis in law for withholding the record." (Emphasisadded.) 5 ILCS 140/11(i) (West 1994).

We note that this statute states that the court "may" award attorney fees. Hence, the decisionto award attorney fees under the Act is left to the discretion of the circuit court. See Peopleex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 202, 689 N.E.2d 319, 325 (1997). The circuitcourt's discretion will only be disturbed if there was an abuse of discretion. Stukel, 294 Ill.App. 3d at 203, 689 N.E.2d at 326.

In order to be reimbursed for attorney fees, a plaintiff would have to show, pursuantto section 11(i) of the Act, that (1) he substantially prevailed, (2) the records were of clearlysignificant interest to the general public, and (3) the public body lacked any reasonable basisin law for withholding the record. If a plaintiff fails to show any one of the foregoing, hehas failed to meet his burden. The burden of proving that an award of fees is warranted restswith the party seeking the fees. Stukel, 294 Ill. App. 3d at 202, 689 N.E.2d at 325-26.

Although it is clear that Lieber "substantially prevailed" and the Illinois SupremeCourt has stated that the University had "no valid basis" for withholding the information, hehas failed to meet his burden to prove that the records were of "clearly significant interest"to the "general public." The fact that a plaintiff has "substantially prevailed alone isinsufficient to establish his entitlement to fees ***." Stukel, 294 Ill. App. 3d at 203, 689N.E.2d at 326. Even though Lieber was successful in requiring the University to disclosethe names, addresses, and telephone numbers of accepted freshmen who had not yet enrolledin the University, the information was not of "clearly significant interest" to the "generalpublic" as the Act requires in order to obtain attorney fees. Pursuant to the Act, theinformation sought must be of more than mere "interest" or even "significant interest." Theinformation must be of "clearly significant interest." 5 ILCS 140/11(i) (West 1992). Moreover, the interest must be that of the "general public." A review of the record showsthat only Lieber and Mr. Woodruff, who also owns University-approved freshmen housing,requested the information contained in Lieber's request under the Act. Lieber has failed toestablish that the general population would be clearly interested in the information requestedand that the interest would be one of significance and not mere curiosity.

While it is true that for purposes of disclosure, the court should not concern itselfwith the plaintiff's purpose in requesting the information (see Lieber, 176 Ill. 2d at 413, 680N.E.2d at 380), that rule changes when we are determining whether one is entitled toattorney fees under the Act. Section 11(i) of the Act specifically states that the personrequesting the records must show that the "records in question were of clearly significantinterest to the general public." (Emphasis added.) See 5 ILCS 140/11(i) (West 1992). Wecan only presume that the policy behind this portion of the statute is to prevent someonefrom expending thousands of dollars on attorney fees solely to support a commercialinterest, and then seeking to have taxpayers, who have little or no interest in the information,pay their attorney fees. See 5 ILCS 140/1 (West 1992).

Because the law in Illinois interpreting section 11(i) of the Act is limited and thereare no cases providing any guidance with regard to this case, it is helpful to look to casesinterpreting the fee provision in the federal Freedom of Information Act (5 U.S.C.