Boggan v. FOIA Office of the Department of Corrections

2020 IL App (4th) 190347-U

• Court: Appellate Court of Illinois
• Decided: July 28, 2020
• Docket: 4-19-0347
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 190347-U FILED This order was filed under Supreme Court Rule 23 and may not be cited July 28, 2020 as precedent by any party except in NO. 4-19-0347 Carla Bender the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

VINCENT BOGGAN, ) Appeal from the Petitioner-Appellant, ) Circuit Court of v. ) Sangamon County FOIA OFFICE OF THE DEPARTMENT OF ) No. 17MR1020 CORRECTIONS, ) Respondent-Appellee. ) Honorable ) Jack D. Davis II, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.

ORDER

¶1 Held: The circuit court’s denial of petitioner’s request for civil penalties was not against the manifest weight of the evidence.

¶2 In November 2017, petitioner, Vincent Boggan, filed pro se a complaint for

mandamus (735 ILCS 5/14-101 et seq. (West 2016)) against respondent, the FOIA Office of the

Department of Corrections (Department). In his mandamus petition, petitioner sought civil

penalties under section 11(j) of the Freedom of Information Act (FOIA) (5 ILCS 140/11(j) (West

2016)). Petitioner later filed an amended mandamus petition, naming the Director of Corrections

as respondent. In April 2018, respondent filed a motion to dismiss petitioner’s amended

complaint under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)).

After an August 2018 hearing, the Sangamon County circuit court ordered the Department to

conduct a records search and provide any additional response to petitioner but denied petitioner’s additional requests for relief. Respondent filed a notice of compliance with the court’s August

2018 order, and petitioner filed a motion for modification of the order, requesting the court order

respondent to pay petitioner a mandatory civil penalty. After a May 2019 hearing, the court

denied petitioner’s motion for modification and dismissed petitioner’s complaint with prejudice.

¶3 Petitioner appeals pro se, asserting the circuit court erred by failing to award him

the mandatory civil penalty. We affirm.

¶4 I. BACKGROUND

¶5 The following are the factual allegations in petitioner’s mandamus petition and/or

facts set forth in a March 6, 2017, letter by the Attorney General’s Public Access Bureau

(Bureau). Petitioner is an inmate in the Dixon Correctional Center. On January 13, 2016,

petitioner filed a four-part request under FOIA, seeking records related to “ ‘the cause for [an]

influx of corrosive dirty looking and smelling water running through Dixon C.C. taps during the

month of January, 2016, and the constant influx of amber colored fiber like particles that

continue[d] to clog the tap regulators ***.’ ” On January 27, 2016, petitioner received a

response stating, “ ‘[the Department] does not possess or maintain records responsive to these

requests.” In February 2016, petitioner sought review with the Bureau of the Department’s

denial of his request. With his request, petitioner included a grievance he filed with the Dixon

Correctional Center regarding the facility’s water quality. In his grievance, petitioner stated the

following:

“ ‘I informed the Maintenance Man that I noticed the water getting

progressively worse over the past 3½ weeks ***. At that time the Maintenance

Man confirmed that the Maintenance Department was aware of the contaminance

[sic] in the water system, by stating that: “a few weeks ago some kind of Water

-2- Softener/Filtration System exploded, and caused large quantities of the gritty

substance to enter the water system.” ’ ”

¶6 On February 29, 2016, the Bureau asked the Department’s FOIA officer to

“ ‘describe [the Department]’s search for the requested records, including where and how the

records are maintained, and who performed the search.’ ” That same day, the FOIA officer

responded she had asked the FOIA liaison at the Dixon Correctional Center who had in turn

asked the chief engineer and the chief engineer stated no records “ ‘showed the specific

information that [petitioner] requested.’ ” In April 2016, the Bureau sent a copy of petitioner’s

request for review to the Department and again asked for a detailed description of its search for

responsive records. The Bureau also asked the Department “to clarify if it ‘possess[ed] any

records regarding any issues with the water quality at the Dixon Correctional Center for the

timeframe requested by [petitioner].’ ” In May 2016, the Department responded as follows:

“I can now confirm that [the Department] does not possess or maintain

records responsive to any portion of the request.

Upon receipt of the request from·[petitioner], the [Department’s] Freedom

of Information Office contacted the Chief Engineer who maintains water reports

for the facility, who confirmed that [the Department] does not possess or maintain

records which respond to [petitioner]’s request.

The above is a summary of the steps taken to locate responsive records. It

is not intended to depict the full search that was under take [sic] for these records.

The Department has taken reasonable steps to ensure that these records do not

exist.”

¶7 In March 2017, the Bureau made a determination under section 9.5(f) of FOIA (5

-3- ILCS 140/9.5(f) (West 2016)), concluding the response by the Department to petitioner’s

January 13, 2016, request violated the requirements of FOIA. The Bureau stated, in pertinent

part, the following:

“Here, [petitioner]’s request can reasonably be construed to seek records

concerning the source and quality of water at the Dixon Correctional Center.

[The Department]’s boilerplate assertion that it took reasonable efforts to locate

records responsive to this request is conclusory. Despite this office’s

unambiguous requests for a description of the specific systems that were searched,

a detailed description of the search of those systems, and to clarify whether [the

Department] maintained or possessed any records regarding issues with the

quality of water at the Dixon Correctional Center, [the Department]’s response to

this office merely stated that [the Department]’s FOIA Office contacted the chief

engineer at Dixon Correctional Center, and that the chief engineer simply

stated there were no responsive records.

[The Department] neither described how it maintains records about

environmental conditions such as the water quality within this prison nor the

specific measures that the chief engineer took to search for those records.

Although the chief engineer would likely be aware of concerns about water

quality, it is not clear that the chief engineer is the only [Department] employee

who would generate records or engage in communications about water quality.

Based on the available information, it appears possible, if not likely, that [the

Department] possesses additional records concerning the water conditions at the

Dixon Correctional Center, such as the age and grade of the current water

-4- source/infrastructure at the prison, inspection-records, maintenance records,

and/or inmate complaint records. Because [the Department] did not provide this

office with a sufficient explanation of how it searched for records responsive to

[petitioner]’s request, the [Bureau] is unable to conclude that [the Department]

performed a reasonable search for responsive records. To remedy this violation,

this office asks [the Department] to conduct a search of the applicable

recordkeeping systems and issue a supplemental response to [petitioner] that fully

complies with section 9 of FOIA (5 ILCS 140/9 (West 2014)).” (Emphasis in

original.)

The Bureau’s letter also noted the resolution of the matter did not require the issuance of a

binding opinion.

¶8 In his November 2017 mandamus petition, petitioner alleged he had still not

received a response from the Department to the Bureau’s March 2017 letter. Based on the

aforementioned facts, petitioner argued the Department had willfully and intentionally failed to

comply with his FOIA request on no less than three different occasions or had otherwise acted in

bad faith in violation of section 11(j) of FOIA, which mandated the court to impose a civil

penalty on the Department of not less than $2,500 nor more than $5,000 for each of the three

occurrences. Petitioner also sought injunctive relief requiring the Department to provide the

records in response to his request. Additionally, petitioner sought punitive damages for the

Department’s refusal to provide any information on the contaminated water he was forced to

drink and bathe in during January and February 2016. In March 2018, petitioner filed an

amended complaint, listing John Baldwin, Director of Corrections, as the respondent and raising

the same allegations.

-5- ¶9 In April 2018, respondent filed a section 2-615 motion to dismiss petitioner’s first

amended complaint, contending petitioner failed to plead sufficient facts giving rise to a cause of

action. Respondent alleged petitioner had access to the materials he seeks because petitioner

noted they were in the Dixon Correctional Center’s law library. It also argued FOIA did not

require a public body to create records and stated the chief engineer confirmed the Department

did not have the records responsive to petitioner’s request. Petitioner filed a reply, noting the

Dixon Correctional Center’s law library did not have the annual reports or notice for the period

of January to March 2016. Petitioner also noted he expected documents existed regarding the

problems the Dixon Correctional Center was having with the water system during the period of

January to March 2016.

¶ 10 On August 6, 2018, the circuit court held a telephone hearing regarding

respondent’s motion to dismiss. The next day, the court entered an order adopting the Bureau’s

determination as to only parts one through three of petitioner’s January 2016 request and

ordering the Department to conduct a records search and provide additional responses to

petitioner regarding such search and any responsive records. The court denied petitioner’s

requests for additional relief.

¶ 11 On August 21, 2018, respondent filed a notice of compliance with the circuit

court’s August 7, 2018, order. Attached to the notice was the Department’s amended response to

petitioner’s January 2016 FOIA request and 11 pages of documents. Eight days later, petitioner

filed a motion for modification of the August 2018 order, contending the court erred by not

awarding petitioner the civil penalty under section 11(j) of FOIA (5 ILCS 140/11(j) (West 2016))

because it is mandatory when the court finds a willful and intentional failure to comply with

FOIA or the party acted in bad faith. Respondent filed a response asserting petitioner’s motion

-6- should be denied and noting it had complied with the court’s order. Petitioner filed a reply

disagreeing respondent had complied with the court’s order because the Department did not

provide copies of any notices sent to inmates or staff regarding the contaminated water (part

three of petitioner’s January 2016 request). On May 10, 2019, the circuit court held a telephone

hearing on petitioner’s motion for modification. Six days later, the court denied petitioner’s

motion.

¶ 12 On June 4, 2019, petitioner filed a timely notice of appeal from the dismissal with

prejudice of his petition for mandamus in sufficient compliance with Illinois Supreme Court

Rule 303 (eff. July 1, 2017). Thus, this court has jurisdiction of petitioner’s appeal under Illinois

Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 13 II. ANALYSIS

¶ 14 In this case, the circuit court granted petitioner declaratory relief and denied his

request for civil penalties under section 11(j) of FOIA (5 ILCS 140/11(j) (West 2016)) before it

ultimately dismissed his mandamus complaint as moot. Contrary to petitioner’s assertion, we

note the circuit court did not find petitioner’s claim for civil penalties was moot. On appeal,

petitioner only challenges the court’s denial of his request for civil penalties under section 11(j)

which provides, in pertinent part, the following:

“If the court determines that a public body willfully and intentionally failed to

comply with this Act, or otherwise acted in bad faith, the court shall also impose

upon the public body a civil penalty of not less than $2,500 nor more than $5,000

for each occurrence.” 5 ILCS 140/11(j) (West 2016).

¶ 15 While the circuit court considered only written pleadings and attachments in

denying petitioner’s request for civil penalties, the court had to resolve factual disputes regarding

-7- the Department’s actions. As such, we apply the same standard of review as in Rock River Times

v. Rockford Public School District 205, 2012 IL App (2d) 110879, ¶ 48, 977 N.E.2d 1216, where

the Appellate Court, Second District, reviewed the circuit court’s factual determination the

respondent did not willfully and intentionally fail to comply with FOIA or act in bad faith under

the manifest weight of the evidence standard of review. With that standard, a reviewing court

will only overturn a factual finding when the opposite conclusion is apparent or when the finding

appears to be unreasonable, arbitrary, or not based on the evidence. Rock River Times, 2012 IL

App (2d) 110879, ¶ 48.

¶ 16 Section 11 of FOIA provides, in pertinent part, as follows:

“(a) Any person denied access to inspect or copy any public record by a

public body may file suit for injunctive or declaratory relief.

(a-5) In accordance with Section 11.6 of this Act, a requester may file an

action to enforce a binding opinion issued under Section 9.5 of this Act.” 5 ILCS

140/11 (West 2016).

Here, the Bureau’s March 2017 letter expressly found the matter did not require the issuance of a

binding opinion. “The decision not to issue a binding opinion shall not be reviewable.” 5 ILCS

140/9.5(f) (West 2016). Thus, petitioner cannot challenge the Bureau’s decision not to issue a

binding opinion. Also, since the Bureau did not issue a binding opinion, section 11.6 of FOIA (5

ILCS 140/11.6 (West 2016)), which contains a rebuttable presumption the public body willfully

and intentionally failed to comply with FOIA, does not apply in this case. Additionally,

petitioner fails to cite any authority in support of his contention the Department’s failure to

comply with the Bureau’s letter should be considered a rebuttable presumption that the

Department willfully and intentionally failed to comply with FOIA.

-8- ¶ 17 Moreover, in reviewing the circuit court’s determination, we will not consider the

exhibits attached to petitioner’s notice of appeal and any arguments based on those documents.

While petitioner asserts he presented them to the circuit court at the May 2019 hearing, the

record on appeal lacks a report of proceedings for that hearing, and the record contains no other

evidence showing those documents were in fact presented to the circuit court. As the appellant,

petitioner “ha[d] the burden to present a sufficiently complete record of the proceedings at trial

to support a claim of error.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959

(1984). “Any doubts which may arise from the incompleteness of the record will be resolved

against the appellant.” Foutch, 99 Ill. 2d at 392, 459 N.E.2d at 959.

Additionally, we point out the civil penalties provided in section 11(j) are

mandatory only ‘[i]f the court determines that a public body willfully and intentionally failed to

comply with [FOIA], or otherwise acted in bad faith.” 5 ILCS 140/11(j) (West 2016). Here, the

circuit court implicitly found respondent did not willfully and intentionally fail to comply with

FOIA or act in bad faith when it denied petitioner’s request for additional relief in its August

2018 order. Further, contrary to petitioner’s assertion, the record does not show the circuit court

denied petitioner’s motion for modification based on respondent’s compliance with the court’s

August 2018 order. They were two separate issues the circuit court addressed at the May 2019

hearing.

¶ 18 Petitioner contends the Bureau’s March 2017 letter clearly indicates respondent

acted in bad faith and willfully and intentionally failed to comply with FOIA. However, in its

letter, the Bureau found the Department did not sufficiently explain how it searched for records

and thus the Bureau could not determine if the Department conducted a reasonable search for

responsive records. Additionally, the materials the Department did produce in August 2018 were

-9- created after January 2016 and would not have been available at the time of petitioner’s initial

request. Moreover, the Department did reply each time the Bureau asked it to do so, except for

after the March 2017 letter. However, at that point, the Department had given essentially the

same answer three times. The Bureau’s letter indicated a concern with the narrowness of the

Department’s search for responsive documents and not an utter disregard of petitioner’s four-part

FOIA request. Based on the facts before the circuit court, we do not find the court’s implicit

ruling the Department did not willfully and intentionally fail to comply with FOIA or otherwise

act in bad faith was against the manifest weight of the evidence.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we affirm the Sangamon County circuit court’s judgment.

¶ 21 Affirmed.

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