Osran v. Bus

589 N.E.2d 1027, 226 Ill. App. 3d 704, 168 Ill. Dec. 627
CourtAppellate Court of Illinois
DecidedMarch 20, 1992
Docket2—91—0643, 2—91—0652 cons.
StatusPublished
Cited by2 cases

This text of 589 N.E.2d 1027 (Osran v. Bus) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osran v. Bus, 589 N.E.2d 1027, 226 Ill. App. 3d 704, 168 Ill. Dec. 627 (Ill. Ct. App. 1992).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

This matter involves consolidated actions brought against defendants, the County of Kane (County), the Kane County Board of Supervisors, and a Kane County employee. Plaintiffs in one of the suits are nine townships, one municipality, and two private citizens (collectively, Townships), all located or residing in Kane County. Thomas Osran is plaintiff in the other action. All of the plaintiffs seek disclosure of certain documents in the possession of Kane County, the Townships pursuant to a consent decree between themselves and the County, and Osran pursuant to the Freedom of Information Act (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.).

Early in 1990 the Kane County Board of Supervisors (Board) adopted a policy favoring landfilling over incineration for disposal of the County’s solid waste. The Board publicly announced in April 1990 that it intended to acquire property and construct a new landfill of some 2,000 acres on one of five potential sites located in several of the plaintiff Townships.

In mid-May the County let it be known it was ready to pick a site and start acquiring the land. On May 25, three of the Townships filed a complaint (No. 90 — CH—0163) requesting that the County be restrained from siting the landfill within the County until the County had prepared and received approval of a comprehensive solid waste management plan as required by the Solid Waste Planning and Recycling Act (Solid Waste Act) (Ill. Rev. Stat. 1989, ch. 85, par. 5951 et seq.). A similar complaint (No. 90 — MR—0162) had been filed previously by a Kane County corporation and its principal stockholder. The two actions were subsequently consolidated. Also, the complaint was amended to add the remaining Townships and municipality.

In July 1990 the parties entered into a consent decree. Under the decree the County was prohibited from taking any further steps toward siting the landfill, or acquiring land for it, until the solid waste management plan was prepared, adopted, and submitted to the Illinois Environmental Protection Agency, as mandated by the statute. The decree also provided that the defendants would produce documents which had previously been requested by the plaintiffs and were subject to disclosure. Some, but not all, of the documents sought by plaintiffs had already been produced.

In August the plaintiffs made a written inquiry regarding production of the remaining documentation. Defendants offered additional materials but added that there remained several “very site specific” exhibits which would not be made available. Plaintiffs then moved for a rule to show cause against defendants, asserting that their refusal to produce the requested records was a violation of the consent decree. Following a hearing on the rule, the court ordered that the documents sought by plaintiffs were not subject to disclosure and, therefore, there had been no violation of the consent decree. The Townships appeal from that order.

Shortly before the Townships filed their complaint, Thomas Osran had submitted two requests to Kane County pursuant to the Freedom of Information Act (Information Act or Act) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.) for substantially the same documents as those sought by the Townships. Phillip Bus, the County development director, denied the requests, citing exemptions provided within the Information Act for certain real estate matters (hereinafter, real estate exemption) and for proposals and bids. Osran appealed to the County board chairman, Frank Miller, who upheld the denials. On July 10, 1990, Osran filed a complaint (No. 90 — MR—0208) for declaratory judgment seeking to compel disclosure of the documents. Osran’s case was ultimately consolidated with the action brought by the Townships.

In September 1990 Osran moved for an in camera inspection by the court of the records sought from the County. In October the defendants filed an “Amended and Restated Index of Exempt Records,” which was a list, including detailed descriptions, of the documents they claimed were exempt. In May 1991 the trial court entered an order indicating that, after a de novo hearing and an in camera review of the documents, it found the records withheld by the County to be exempt from disclosure under the real estate exemption that the County had relied on. Osran appeals from that order.

The Townships assert that the exemptions in the Information Act cannot be used to preclude disclosure of the records to them because their consent decree with the County provides for discovery of those records. They further argue, along with Osran, that, even if the provisions of the statute could properly be invoked, the records withheld by the County do not fall within any of the exceptions established by the Act. The County responds that the trial court correctly found the real estate exemption to be applicable and that the other exemptions it cited also effectively shield the records from disclosure. With regard to the Townships’ discovery argument, defendants posit that the trial court correctly interpreted the consent decree to mean that the County was allowed to assert any legally recognized privilege against disclosure. According to the County, the exemptions in the Information Act constitute just such a privilege. Inasmuch as the effectiveness of all of the parties’ contentions depends initially on whether the exemptions established by the Information Act apply to the withheld documents, we will decide that question first.

The County indicated on its amended index of exempt records that every one of the records listed was being withheld pursuant to several of the exemptions set forth in the Information Act. However, the trial court made clear in its orders that it relied only on section 7(lXs) of the Act to find that the documents were exempt from disclosure. That section states:

“§7. (1) The following shall be exempt from inspection and copying:
* * *
(s) The records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding *** records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court.” Ill. Rev. Stat. 1989, ch. 116, par. 207(1)(s).

In its order discharging the rule to show cause against the County, the court found that the documents it had reviewed in camera “relate to parcels involved in ‘... reasonably contemplated emminent [sic] domain proceedings.’ ” The final order entered in Osran’s case reflects the court’s finding that the exhibits “relate to ‘real estate purchase negotiations’ not yet completed or terminated or to an ‘actual or reasonably contemplated emminent [sic] domain proceeding.’ ”

Unlike the trial court, we do not have the undisclosed records themselves to review.

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Cite This Page — Counsel Stack

Bluebook (online)
589 N.E.2d 1027, 226 Ill. App. 3d 704, 168 Ill. Dec. 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osran-v-bus-illappct-1992.