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Docket No. 93347-Agenda 11-January 2003.

ILLINOIS EDUCATION ASSOCIATION, an Illinois Not For 
Profit Corporation, Appellant, v. THE ILLINOIS STATE BOARD
OF EDUCATION, Appellee.

Opinion filed May 22, 2003.

JUSTICE RARICK delivered the opinion of the court:

The issue presented in this case is whether the Freedom ofInformation Act (Act) (5 ILCS 140/1 et seq. (West 2000)) requiresthe Illinois State Board of Education (Board) to disclose materialprovided to the Illinois Attorney General (Attorney General)pertaining to its request for an Attorney General opinion, orwhether such material is protected by the attorney-client privilege.The Illinois Education Association (IEA) filed this action againstthe Board seeking a declaratory judgment, arguing that it wasentitled to certain documents pursuant to the Act. Both partiesfiled motions for summary judgment, and the circuit court ofSangamon County granted the Board's motion and denied theIEA's motion, finding the material was exempt from disclosurepursuant to section 7(1)(n) of the Act (5 ILCS 140/7(1)(n) (West2000)). The IEA appealed, and a divided appellate court affirmed.327 Ill. App. 3d 326. We granted the IEA's petition for leave toappeal. 177 Ill. 2d R. 315.

Summary judgment is proper where "the pleadings,depositions, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material factand that the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2-1005(c) (West 2000); Travelers InsuranceCo. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001). Inappeals from summary judgment rulings, our review is de novo.Travelers, 197 Ill. 2d at 292.

The record in the instant case reveals the following facts. OnJuly 17, 2000, the IEA made a request under the Act seeking thedisclosure of all materials that the Board had provided to theAttorney General in the course of requesting Attorney Generalopinions on four topics. We note that, for purposes of this appeal,only the material pertaining to one of the Attorney Generalopinions remains at issue.⁽¹⁾

That portion of the IEA's requestsought:

"Any and all materials provided to the Illinois AttorneyGeneral's Office by the Illinois State Board of Educationwith regard to its request for an Attorney General'sopinion on the issue of whether the Illinois State Board ofEducation and/or the Illinois Teacher Certification Boardhas authority to hear cases where an applicant for ateaching certificate has been found to be more than 30days delinquent in payment of child support, has failed tocomply with a subpoena or warrant relating to paternity orchild support proceedings and/or has failed to make thecertificate as required by section 10-65 of the IllinoisAdministrative Procedure Act, 5 ILCS 100/10-65."

On July 26, 2000, the Board denied the IEA's request for thismaterial citing section 7(1)(n) of the Act, which exempts fromdisclosure "[c]ommunications between a public body and anattorney *** representing the public body that would not besubject to discovery in litigation." 5 ILCS 140/7(1)(n) (West2000). On July 28, 2000, the IEA appealed to the StateSuperintendent of Education and, on August 10, 2000, he affirmedthe denial of the IEA's request. On August 24, 2000, the IEA filedits complaint against the Board in the circuit court seeking adeclaratory judgment that the IEA was entitled to receive therequested material from the Board and that the material was notexempt from disclosure under the Act.

On October 10, 2000, the Board filed its index to records,pursuant to the IEA's motion made under section 11(e) of the Act(5 ILCS 140/11(e) (West 2000)). In the index, the Board stated, inrelevant part, as follows:

"The requested materials comprise a letter directed toAttorney General Jim Ryan from Respicio F. Vazquez,General Counsel to the Illinois State Board of Education.The letter requests an opinion from the Attorney Generalas to whether the Illinois State Board of Education and/orthe Illinois Teacher Certification Board has decision-making authority relative to the determination ofdelinquency in child support payments called for inSection 10-65 of the Illinois Administrative ProcedureAct. The letter contains confidential communicationbetween the Illinois State Board of Education and itsChief Legal Advisor."

The index further provided, as required by section 11(e)(ii), thataccess to the requested material was denied pursuant to theexemption set forth in section 7(1)(n) of the Act.

On October 27, 2000, the IEA filed both a motion forsummary judgment and a motion for in camera inspection of thedocuments at issue. Thereafter, on January 8, 2001, the Board filedits motion for summary judgment, together with the affidavits ofits general counsel, Vazquez, and Michael J. Luke, chief of theOpinions Division of the Attorney General's office.

In his affidavit, Vazquez stated, inter alia, that the Board"regularly requests legal advice from the Office of the IllinoisAttorney General," and that "[n]ot only does the Attorney Generalrepresent [the Board] and its employees when they are namedparties to litigation, [the Board] is also represented by the IllinoisAttorney General on an ongoing basis." Vazquez further averredthat the Board communicates with the Attorney General "with thegeneral exception [sic] that the communications are privileged asbetween attorney and client, and thus will remain confidential,"and that the Board's requests for the Attorney General opinionsinvolved herein "were made with the expectation that they wouldbe maintained in confidence by the Attorney General's Office andwould not be disclosed to any third party or the public."

Additionally, Vazquez's affidavit stated that while the Board"is aware that the official opinions issued by the Office of theAttorney General are eventually published for the public," theBoard "relies upon the fact that the Attorney General's publishedopinions do not reveal the substance of any privilegedcommunications" between the Board and the Attorney General'soffice, and that it is the Board's "understanding and expectationthat any communication between the [Board] and the AttorneyGeneral's Office with respect to those opinions remainconfidential pursuant to the attorney-client privilege for publicbodies consulting with their attorney."

Luke's affidavit stated, inter alia, that "[a]s the State's chieflegal officer, the Attorney General represents State officers andagencies including the [Board] on an ongoing basis," that theBoard "regularly requests legal advice and opinions" from theAttorney General, and that it has been "the practice of the Officeof the Attorney General to treat documents relating to pendingrequests for Attorney General opinions in confidence." Lukefurther averred that the "Office of the Attorney General recognizesthat such communications may be subject to the attorney/clientprivilege," and that "[a]lthough Attorney General opinions oftenreference the request for an opinion to the extent necessary toframe the issue to form a cogent opinion, such opinions generallydo not recite the substance of the communication between theState agency and the Office of the Attorney General."

Although no report of proceedings is included in the record onappeal, it appears from the common law record that a hearing onthe parties' cross-motions for summary judgment was held onFebruary 7, 2001, and that the circuit court thereafter entered itswritten order granting judgment in favor of the Board on February13, 2001. The IEA timely appealed, and the appellate courtmajority affirmed, holding that because the Board drafted thematerial at issue with the intent that it remain confidential and inorder to obtain legal advice from the State's chief legal officer, theAttorney General, the exemption set forth in section 7(1)(n) forcommunications between a public body and its attorney wasapplicable. 327 Ill. App. 3d at 329-31. Justice Cook, in dissent,argued that the Board has no attorney-client relationship with theAttorney General in this case that justified its refusal to turn overthe requested material. 327 Ill. App. 3d at 331 (Cook, J.,dissenting).

In conducting our analysis, we are guided by the principlethat, under the Freedom of Information Act, public records arepresumed to be open and accessible. Lieber v. Board of Trusteesof Southern Illinois University, 176 Ill. 2d 401, 407 (1997).Indeed, the Act's introductory paragraphs clearly set forth thislegislative intent:

"Pursuant to the fundamental philosophy of theAmerican constitutional form of government, it isdeclared to be the public policy of the State of Illinois thatall persons are entitled to full and complete informationregarding the affairs of government and the official actsand policies of those who represent them as publicofficials and public employees consistent with the termsof this Act. Such access is necessary to enable the peopleto fulfill their duties of discussing public issues fully andfreely, making informed political judgments andmonitoring government to ensure that it is beingconducted in the public interest.

This Act is not intended to be used to *** disrupt theduly-undertaken work of any public body independent ofthe fulfillment of any of the fore-mentioned rights of thepeople to access to information.

***

These restraints on information access should be seenas limited exceptions to the general rule that the peoplehave a right to know the decisions, policies, procedures,rules, standards, and other aspects of government activitythat affect the conduct of government and the lives of anyor all of the people. The provisions of this Act shall beconstrued to this end." 5 ILCS 140/1 (West 2000).

Relying upon this clear statement of public policy andlegislative intent, this court has repeatedly held that the exceptionsto disclosure set forth in the Act are to be read narrowly. SeeLieber, 176 Ill. 2d at 407; American Federation of State, County& Municipal Employees (AFSCME) v. County of Cook, 136 Ill. 2d334, 341 (1990); Bowie v. Evanston Community ConsolidatedSchool District No. 65, 128 Ill. 2d 373, 378 (1989). Thus, when apublic body receives a proper request for information, it mustcomply with that request unless one of the narrow statutoryexemptions set forth in section 7 of the Act applies. Lieber, 176Ill. 2d at 407-08; 5 ILCS 140/7 (West 2000); 5 ILCS 140/3 (West2000) ("Each public body shall make available to any person forinspection or copying all public records, except as otherwiseprovided in Section 7 of this Act").

"If the public body seeks to invoke one of the exemptions insection 7 as grounds for refusing disclosure, it is required to givewritten notice specifying the particular exemption claimed toauthorize the denial." Lieber, 176 Ill. 2d at 408; 5 ILCS 140/9(b)(West 2000). Thereafter, if the party seeking disclosure ofinformation under the Act challenges the public body's denial incircuit court, the public body has the burden of proving that therecords in question fall within the exemption it has claimed.Lieber, 176 Ill. 2d at 408; 5 ILCS 140/11 (West 2000); see alsoCarter v. Meek, 322 Ill. App. 3d 266, 268 (2001). "To meet thisburden and to assist the court in making its determination, theagency must provide a detailed justification for its claim ofexemption, addressing the requested documents specifically andin a manner allowing for adequate adversary testing." (Emphasisin original.) Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530,537 (1989); accord Cooper v. Department of the Lottery, 266 Ill.App. 3d 1007, 1012 (1994); Carbondale Convention Center, Inc.v. City of Carbondale, 245 Ill. App. 3d 474, 477 (1993); Williamsv. Klincar, 237 Ill. App. 3d 569, 572 (1992).

In the case at bar, the Board denied the IEA's request citingsection 7(1)(n), which provides an exemption for"[c]ommunications between a public body and an attorney orauditor representing the public body that would not be subject todiscovery in litigation." 5 ILCS 140/7(1)(n) (West 2000).Therefore, in order for the Board to prove that the materialrequested by the IEA falls within the exemption contained insection 7(1)(n), the Board was required to establish both that: (1)the Attorney General was "representing" the Board; and (2) thecommunications would not be "subject to discovery in litigation."

As to the first requirement, this court has consistently held,under both the 1870 and the 1970 constitutions, that the AttorneyGeneral is the chief legal officer of the state. EnvironmentalProtection Agency v. Pollution Control Board, 69 Ill. 2d 394, 398(1977); Fergus v. Russel, 270 Ill. 304, 342 (1915). However, thequestion of whether the Attorney General is "representing" apublic body when receiving and fulfilling a request for an AttorneyGeneral opinion appears to be one of first impression. InEnvironmental Protection Agency, 69 Ill. 2d at 399, this courtdiscussed the Attorney General's role with regard to stateagencies, finding:

"As the chief legal officer of the State, the AttorneyGeneral has the constitutional duty of acting as legaladviser to and legal representative of State agencies. Heor she has the prerogative of conducting legal affairs forthe State. The effect of this grant of power to the AttorneyGeneral is that Illinois is served by a centralized legaladvisory system. There are, arguably, at least two reasonsfor this centralization. First, private counsel for Stateagencies are expensive. *** Second, centralization ismore efficient. Whatever the merits of these arguments, itremains true that the duties of the Illinois AttorneyGeneral encompass advising and representing Stateagencies."

This court has additionally recognized that, under the IllinoisConstitution, the Attorney General has retained his common lawpowers and role as "the sole official advisor of the executiveofficers and of all boards, commissions and departments of theState government, and it is his duty to conduct the law business ofthe State, both in and out of the courts." (Emphasis added.)Fergus, 270 Ill. at 342; see also Environmental Protection Agency,69 Ill. 2d at 399. More specifically, section 4 of the AttorneyGeneral Act (15 ILCS 205/4 (West 2000)) provides that the dutiesof the Attorney General include: "To consult with and advise thegovernor and other state officers, and give, when requested,written opinions upon all legal or constitutional questions relatingto the duties of such officers respectively." 15 ILCS 205/4 (West2000).

The IEA argues that the Attorney General is not representinga state agency when it issues an Attorney General opinion, and thatthe performance of this duty pursuant to section 4 "is a separatefunction from [the Attorney General's] responsibility to'represent' the State in court or to give private advice." We cannotagree. Rather, we agree with the Board that section 4 "makes nodistinction between the Attorney General's opinion writingfunction and any other of his legal functions," and that nothing insection 4 suggests that, in issuing written opinions, the AttorneyGeneral acts in any other capacity than "as the legal officer forstate officials." See State ex rel. Caryl v. MacQueen, 182 W. Va.50, 53, 385 S.E.2d 646, 649 (1989) ("even in situations where theAttorney General stands as an 'administrator of the law,' heremains the legal representative of the State and its citizens").Indeed, an examination of section 4 reveals the interrelationshipof the duties "[t]o consult with and advise *** state officers, andgive, when requested, written opinions," as evidenced by theirplacement in a single conjunctive sentence among the 14subsections enumerating the Attorney General's duties. (Emphasesadded.) 15 ILCS 205/4 (West 2000); see Jarvis v. South OakDodge, Inc., 201 Ill. 2d 81, 87 (2002) ("Generally, use of theconjunctive 'and' between two or more statutory elementsindicates that the legislature intended that all of the elements mustbe satisfied in order to comply with the statute").

Based on the foregoing, we conclude that the AttorneyGeneral's opinion writing function is an inherent part of theAttorney General's duty to represent public bodies such as theBoard. See W. Scott, The Role of Attorney General's Opinions inIllinois, 67 Nw. U. L. Rev. 643, 643 (1972) ("one of the mostimportant but least heralded responsibilities of the IllinoisAttorney General is the issuance of written opinions to the variousstate officers whom he is empowered and required to advise"); seealso P. Heiser, The Opinion Writing Function of the AttorneyGeneral, 18 Idaho L. Rev. 9, 9 (1982) ("Inherent in the role ofattorneys general as chief legal officers for their states is thefunction of rendering legal opinions to various officials,departments, and agencies of government"). Moreover, the recordherein reveals that the Board, through the filing of its affidavitsand "Memorandum of Law in Support of Defendant's Motion forSummary Judgment," presented the circuit court with many of thesame facts and arguments that we have relied upon in deciding thisquestion. Therefore, we further conclude that the Board providedthe requisite detailed justification for its claim that the AttorneyGeneral was "representing" the Board for purposes of applying theexemption set forth in section 7(1)(n) of the Act.

The second requirement for application of the section 7(1)(n)exemption is that the communication at issue "not be subject todiscovery in litigation," i.e., that the communication falls withinthe attorney-client privilege. See 166 Ill. 2d R. 201(b)(2). Thiscourt, in defining the attorney-client privilege, has stated that: (1)where legal advice of any kind is sought, (2) from a professionallegal advisor in his capacity as such, (3) the communicationsrelating to that purpose, (4) made in confidence, (5) by the client,(6) are permanently protected, (7) from disclosure by himself orthe legal advisor, (8) except the protection be waived. Fischel &Kahn, Ltd. v. Van Straaten Gallery, Inc., 189 Ill. 2d 579, 584(2000); In re Himmel, 125 Ill. 2d 531, 541 (1988); People v.Adam, 51 Ill. 2d 46, 48 (1972).

In the case at bar, we agree with the appellate court majoritythat the letter at issue, requesting an Attorney General opinion,was created by Vazquez "to obtain legal advice from the state'schief legal officer." 327 Ill. App. 3d at 330. However, these factsalone do not establish that the definition of attorney-clientprivilege has been met, because the privilege is based on theconfidential nature of the communication. See People v. Simms,192 Ill. 2d 348, 381 (2000); see also Dickerson v. Dickerson, 322Ill. 492, 500 (1926) (one fundamental condition necessary to theestablishment of the privilege is that the communications mustoriginate in a confidence that they will not be disclosed). Indeed,this court has found that matters intended by a client for disclosureby the client's attorney to third parties, who are not agents of eitherthe client or the attorney, are not privileged. Himmel, 125 Ill. 2d at542; People v. Werhollick, 45 Ill. 2d 459, 462 (1970).

Here, the IEA argues that because the Board knew theAttorney General opinion it had requested would be made public,and that material submitted to the Attorney General with suchrequests may be and often is quoted in the resulting opinions, theBoard had no reasonable expectation that the material wouldremain confidential.⁽²⁾

The Board, in turn, cites to Vazquez'saffidavit stating that the letter at issue was drafted with the intentthat it remain confidential and to Luke's affidavit stating that theoffice of the Attorney General "treat[s] documents relating topending requests for Attorney General opinions in confidence."However, as we have noted, it was the Board's burden under theAct to establish that its refusal to release the requested materialfell within the narrow ambit of section 7(1)(n), by providing "adetailed justification for its claim of exemption, addressing therequested documents specifically and in a manner allowing foradequate adversary testing." (Emphasis in original.) Baudin, 192Ill. App. 3d at 537; see also Cooper, 266 Ill. App. 3d at 1012.

Pursuant to section 11(f) of the Act, the court "shall conductsuch in camera examination of the requested records as it findsappropriate to determine if such records or any part thereof may bewithheld under any provision of this Act." 5 ILCS 140/11(f) (West2000). This section has been interpreted by our appellate court tomean that the circuit court need not conduct an in camera reviewwhere the public body meets its burden of showing that thestatutory exemption applies by means of affidavits. See Williams,237 Ill. App. 3d at 572-73; Baudin, 192 Ill. App. 3d at 535, 538.However, affidavits will not suffice if the public body's claims areconclusory, merely recite statutory standards, or are too vague orsweeping. See Williams, 237 Ill. App. 3d at 572-73; Baudin, 192Ill. App. 3d at 538.

In the case at bar, we find the affidavits submitted by theBoard to be merely conclusory and thus inadequate to sustain theBoard's burden of proof. The only information of recordpertaining specifically to the confidentiality of the material at issuecomes from the vague affidavits of Vazquez and Luke and from aconclusory statement in the index to records that Vazquez's letter"contains confidential communication between the Illinois StateBoard of Education and its Chief Legal Advisor." Further, despitea request by the IEA for in camera review of the material at issue,there is no indication in the record that the circuit court eitherconducted such a review or determined that it was unnecessary.

See 5 ILCS 140/11(e), (f) (West 2000).

Therefore, given the inadequacy of the Board's affidavits andthe circuit court's failure to conduct an in camera review, we arecompelled to conclude that the court had an insufficient basis togrant summary judgment for the Board. As such, this cause mustbe remanded for the circuit court to conduct further proceedingsto determine whether the material in question is exempt undersection 7(1)(n). See Williams, 237 Ill. App. 3d at 573; Baudin, 192Ill. App. 3d at 538.

In remanding, we caution the circuit court that twoconsiderations must be taken into account. First, as we have noted,in light of the public policy favoring open and accessiblegovernment documents, the attorney-client exemption set forth insection 7(1)(n) is to be construed and applied narrowly. This is sonotwithstanding the countervailing policy favoring confidentialitybetween attorneys and clients. We agree with Justice Cook'sdissent that "[g]iven the breadth of the language of the [Act]requiring disclosure, we should be hesitant to read the attorney-client privilege so as to swallow up the duty to disclose." 327 Ill.App. 3d at 332 (Cook, J., dissenting); see also Minneapolis Star &Tribune Co. v. Housing & Redevelopment Authority, 310 Minn.313, 322-23, 251 N.W.2d 620, 625 (1976) ("public officers andattorneys [can]not abuse their trust by extending the privilege asa mere conduit to suppress public observation of the decision-making process").

Second, and equally as important, under the Act, the burdenis on the public body to demonstrate that the attorney-clientexemption of section 7(1)(n) is applicable. But, in meeting itsburden, the public body may not simply treat the words "attorney-client privilege" or "legal advice" as some talisman, the mereutterance of which magically casts a spell of secrecy over thedocuments at issue. Rather, the public body can meet its burdenonly by providing some objective indicia that the exemption isapplicable under the circumstances. Thus, summary judgmentwould be appropriate without in camera review if the affidavitsshow with reasonable specificity why the documents fall withinthe claimed exemption and are sufficient to allow adversarialtesting. See Baudin, 192 Ill. App. 3d at 542. However, we believethat in camera review by the circuit court is the most effective wayfor the public body to objectively demonstrate that the exemptionclaimed does, in fact, apply. See Baudin, 192 Ill. App. 3d at 543(McLaren, J., concurring) ("The trial court should be hesitant indetermining a privilege exists based solely on the affidavitssubmitted by the defendant, for without an in camera review thereis no external means to verify the truthfulness of the affidavits").Such in camera review affords the benefits of an impartial arbiterwithout the risks accompanying public disclosure of thedocuments. See Baudin, 192 Ill. App. 3d at 543 (McLaren, J.,concurring).

Thus, on remand, the circuit court must apply a narrowconstruction of section 7(1)(n) in determining those portions of thematerial which the Board could reasonably believe were privilegedand confidential communications with its counsel, the AttorneyGeneral, and those portions which state the substance of therequest for an Attorney General opinion and to which no claim ofconfidentiality could reasonably apply. The IEA would then beentitled to disclosure of the letter, following a redaction by the trialcourt of any matters that were properly within the attorney-clientprivilege. See Carter v. Meek, 322 Ill. App. 3d 266, 269 (2001);Baudin, 192 Ill. App. 3d at 543.

In summary, we hold that the attorney-client exemption setforth in section 7(1)(n) of the Act may apply to material submittedby a public body requesting an Attorney General opinion.However, a public body may only invoke this exemption to denydisclosure of material for which a reasonable expectation ofconfidentiality exists. Moreover, under the Act, in order toestablish the requisite detailed justification for its claim ofexemption, the public body must provide the circuit court someobjective indicia by which to determine this issue.

Accordingly, because the Board failed to establish that theinformation requested by the IEA was, as a matter of law, exemptfrom disclosure, summary judgment for the Board wasinappropriate. We therefore remand this matter to the circuit courtfor an in camera review of the material at issue. If the exemptionclaimed applies to any portion of the material, the court must thenredact that portion prior to disclosure of the remainder of thematerial to which the exemption does not apply.

The judgments of the appellate and circuit courts are reversedand the cause is remanded to the circuit court for furtherproceedings.

Appellate court judgment reversed;

circuit court judgment reversed;

cause remanded.

1. ¹The Board no longer claimed privilege with respect to materialsassociated with two of the opinions after those opinions were released,and it is uncontroverted that a third set of materials does not existbecause the Board made no request for an Attorney General opinion onthat topic.

2. ²Originally, Attorney General opinions were published in boundvolumes, but now are available electronically over the Internet at theAttorney General's website. J. McKnight, Finding Illinois AttorneyGeneral Opinions, 86 Ill. B.J. 393 (1998).