Chicago Tribune Co. v. Cook County Assessor's Office
Chicago Tribune Co. v. Cook County Assessor's Office
Opinion
¶ 1 The Chicago Tribune requested records from the Cook County Assessor's Office under Illinois' Freedom of Information Act ( ( 5 ILCS 140/1.1 et seq. (West 2016) ). The Tribune requested records that pertain to the valuation of residential, commercial, and industrial property in Cook County for purposes of taxation. The Assessor's Office denied the FOIA request, maintaining that the information sought was exempt from disclosure under the Act (see 5 ILCS 140/7(1)(f) (West 2016) ). The Tribune filed this case, and the trial court ruled in its favor holding that the requested information was subject to disclosure under FOIA and not subject to any exemptions. The Assessor's Office appeals, and we affirm.
¶ 2 BACKGROUND
¶ 3 Plaintiff the Chicago Tribune Company sent a Freedom of Information request to defendant the Cook County Assessor's Office seeking to compel the Assessor's Office to produce records regarding its valuation of properties in Cook County. Specifically, the Tribune requested that the Assessor's Office turn over the spreadsheets and other records it uses to determine the value of properties for taxation purposes. The Assessor's Office denied the Tribune's Freedom of Information request, claiming that the "deliberative process exemption," sometimes also called the "preliminary records exemption," allowed the government to withhold the documents.
*876 ¶ 4 The Assessor's Office is responsible for valuing approximately 1.8 million parcels of Cook County property each year for taxation purposes. The Tribune requested that the Assessor's Office produce the spreadsheets used in the assessment of commercial and industrial properties and also that it produce residential property valuation reports that, in the Assessor's Office, are known as 65D reports. Both the spreadsheets and the 65D reports include the Assessor's Office's value of properties in Cook County for taxation purposes.
¶ 5 The Tribune subsequently also requested 65A reports which are township-level summaries of the 65D reports. The 65D reports contain information about a parcel of property such as the type of residence (townhouse, etc.), the square footage, and various other characteristics. After an analysis is done by the Assessor's Office, a value is assigned to the property and that value is put into the 65D report. The 65A reports take a more macro-level view; providing a breakdown by neighborhood and by class. The Tribune maintains that the preliminary records exemption claimed by the Assessor's Office does not apply to any of the requested records and, thus, that the documents have been improperly withheld.
¶ 6 In denying the FOIA requests by letter, the Assessor's Office maintained that the records sought by the Tribune amounted to the Office's "opinion of value." The Assessor's Office also stated that the requests sought "essentially our Office's employees' thought processes."
¶ 7 The Assessor's Office has a multi-step process for calculating and arriving at a property valuation. The first step conducted by the valuation department is that it runs a computerized regression model that compares a subject property to similar properties that have recently been sold. The result of running the models is a spreadsheet-type record in which properties are broken down by individual characteristics-attributes such as square footage, number of bathrooms, number of fireplaces, and the property's prior market value. Using the compiled data of sales files and characteristic files, a multiple regression analysis is conducted. The sales data and the characteristic data are all ultimately merged and all of that information is used in the subsequent analytical steps to arrive at the final valuation.
¶ 8 The next step after aggregating all the data and running it through the regression model is to look for outliers. "Outliers," for purposes of the analysts' review, are comparative properties where something looks out of the ordinary for valuation purposes, where the comparative property does not fit with the characteristics of the home being evaluated. Only approximately three to five percent of the properties register some type of an outlier. But if the Assessor's Office compares a property with another like property that has the same relevant characteristics but twice the estimated value, the outliers are edited out. The regression analysis is then rerun without any outlier data in order to create what the Assessor's Office deems to be the property's market value for taxation purposes. The newly-calculated proposed market values are included in the 65D report.
¶ 9 The 65D reports, with all fields filled in at this point, are hand checked by an analyst. Changes are made by an analyst to roughly 20 or 25% of the properties, but once that analysis is completed, the 65D report and the newly-calculated current market value therein are considered final. The process for assessing the value of commercial and industrial properties is similar, and the results from assessing non-residential property are contained in *877 spreadsheets that the Tribune also requested.
¶ 10 After its FOIA request was rejected, the Tribune filed its complaint alleging that the Assessor's Office was improperly withholding information that the public is entitled to view under FOIA. The Assessor's Office filed a motion to dismiss supported by the affidavits of two of its analysts, Alfonso Sarro and Mark Dwyer. Sarro and Dwyer were subsequently deposed about the processes for valuing property in Cook County. The deposition testimony and the affidavits generally describe the process set forth above regarding the Assessor's Office's valuation process. For both commercial and residential properties, the Assessor's Office maintains worksheets where data is contained about the character of the property. Recent sales data from nearby similar properties is also considered. Then, after an analyst reviews the proposed assessment and considers other factors such as appraisal tools, adjustments are made and a property value is set.
¶ 11 Based on the deponent-analysts' affidavits and deposition testimony and some other documentary evidence on file, cross-motions for summary judgment were presented to the trial court. The cross-motions called on the trial court to resolve the question of whether the spreadsheets valuing commercial and industrial property, the 65A reports, and the 65D reports are covered by the "deliberative process exemption" to FOIA.
¶ 12 The Assessor's Office took the position that, as one of its witnesses Mark Dwyer testified, the information requested by the Tribune is "the result of the analysts' research, data collection, thoughts, impressions and experience." The Tribune on the other hand stated that "far from revealing the give-and-take of a deliberative process, [the requested documents] reflect factual data."
¶ 13 In a detailed written order, the trial court held that the records were not exempt from disclosure. The trial court explained that, even in light of the affidavits and deposition testimony, the requested documents do not contain any information that supports that the documents fall within the deliberative process exemption. The trial court further explained that the requested documents "do not in any way reveal the subjective personal position or opinion of any individual in the [Assessor's Office]" such that the preliminary records exemption would apply. The trial court found, in fact, that none of the documents revealed "any debate" or "deliberation," but instead found that the documents "contain factual information and the results of the [Assessor's Office's] valuation which are not covered under the deliberative privilege."
¶ 14 The trial court also awarded attorney fees to the Tribune. FOIA provides that a party that prevails in court when challenging the government's denial of a FOIA request is entitled to reasonable attorney fees and costs. 5 ILCS 140/11(i) (West 2016).
¶ 15 In a final order, the trial court awarded the Tribune the full amount of attorney fees and costs that were sought. The trial court also ordered that the summary judgment briefing, the evidence submitted therewith, and the transcripts of the testimonial evidence remain sealed pending appeal. An order was entered by this court sealing the briefs and the record submitted on appeal.
¶ 16 The Assessor's Office appeals the entry of summary judgment in the Tribune's favor. It requests that we reverse that order and enter judgment in its favor. The Assessor's Office also argues that we should set aside the award of attorney fees *878 and costs because the petition was not supported by sufficient evidence, and because the amount awarded was not calculated based on the prevailing market rate or the other factors that trial courts are required to consider. The Tribune filed a cross-appeal arguing that the files in this case should be unsealed.
¶ 17 ANALYSIS
¶ 18 We review a trial court's decision to grant summary judgment
de novo
.
Illinois Tool Works Inc. v. Travelers Casualty & Surety Co.
,
¶ 19 I. The Deliberative Process Exemption
¶ 20 The Assessor's Office maintains that the trial court erred in granting the Tribune's motion for summary judgment. Under FOIA, certain records and information are exempt from disclosure. See generally 5 ILCS 140/7 (West 2016). The Assessor's Office argues that the records that were requested were properly withheld under the "deliberative process exemption" to FOIA (see 5 ILCS 140/7(1)(f) (West 2016) ). Among the information exempt from inspection and copying is "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated." 5 ILCS 140/7(1)(f) (West 2016). The deliberative process exemption is also sometimes referred to as the preliminary records exemption.
Harwood v. McDonough
,
¶ 21 The Freedom of Information Act's purpose is to open government records to the light of public scrutiny.
Day v. City of Chicago
,
¶ 22 The deliberative process exemption is designed to protect the communications
*879
process in government agencies and encourage frank and open discussion among agency employees before a final decision is made.
State Journal-Register v. University of Illinois Springfield
,
¶ 23 The General Assembly has set forth a clear public policy for the state of Illinois in consideration of the American constitutional form of government. That policy is that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1 (West 2016). The General Assembly has concluded that access to governmental information is "necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest."
¶ 24 The deliberative process exemption to the Illinois FOIA has been interpreted to be an equivalent to its corollary exemption in the federal Freedom of Information Act.
Day v. City of Chicago
,
¶ 25 The Assessor's Office argues that it is entitled to judgment as a matter of law because the undisputed facts demonstrate that the preliminary records exemption applies. It relies on the uncontradicted deposition testimony and cites the statute to argue that the information qualifies as exempt because it: (1) is preliminary; and (2) contains expressions of opinions or formulations of policies or actions. We disagree with the Assessor's Office's proffered characterizations of the information requested. The information requested does not fit within the scope of the deliberative process exemption.
¶ 26 Again, the deliberative process exemption states that the government is entitled to withhold preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated. 5 ILCS 140/7(1)(f) (West 2016). In this case, the requested records are final-not preliminary. The requested records are also not ones in which opinions are expressed or in which policies or actions are formulated-they are factual. They are the results of the assessment process. So the Assessor's Office's denial cannot be squared with the plain language of the deliberative process exemption. In addition, the Assessor's Office's rejection of the FOIA request in this case does not square with the purpose of the deliberative process exemption, and withholding the requested information is antithetical to the purpose of FOIA as a whole.
*880
¶ 27 Contrary to being preliminary records, the Tribune clearly seeks the disclosure of final documents. The word "preliminary" in the deliberative process exemption refers to predecisional intra-agency communications. See
Harwood v. McDonough
,
¶ 28 In order to qualify for the deliberative process exemption, a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated.
Enviro Tech International, Inc. v. U.S. E.P.A.
,
¶ 29 The policy reason for the deliberative process exemption is to encourage candid debates within agencies.
¶ 30 Documents reflecting data, like those at issue here, are not subject to exemption under the deliberative process exemption because they are not part of the predecisional, deliberative process.
State Journal-Register v. University of Illinois Springfield
,
¶ 31 The evidence on file reveals that after the assessment process has run its course, the valuations are final; the valuations are not subject to further
*881
change. The valuations and the reports that contain them represent final agency decisions and contain no predecisional communications-only the finalized results of the analysis. Documents adopted as final agency policy are not protected from disclosure.
Watkins v. McCarthy
,
¶ 32 Moreover, the reports sought in this case contain purely factual assessment data, despite the Assessor's Office's protestations to the contrary. Purely factual material must be disclosed under FOIA once a final decision has been made, unless the factual material is inextricably intertwined with predecisional and deliberative discussions.
State Journal-Register
,
¶ 33 The analysis starts with characteristics such as location, square footage, the number of bedrooms, the number of bathrooms-purely factual property characteristics. The information that is taken into account is all public and is gleaned from public records. The analysis proceeds by examining those purely factual characteristics which leads the Assessor's Office to produce another piece of factual data: the property's taxable market value. That information is discoverable under FOIA. See
Public Employees for Environmental Responsibility v. Environmental Protection Agency
,
¶ 34 The Assessor's Office argues that the Tribune is "not seeking these records because it wants to review a set of objective, empirical data," but rather that the Tribune "hopes to scrutinize the opinions and deliberations" that led to that data. But the fact that some of the final data could potentially be reverse engineered to shed light on decisionmaking does not make the factual data exempt. See,
e.g.
,
Reilly
,
¶ 35 The deliberative process exemption does not justify the withholding of purely factual material, nor does it permit the government to withhold documents reflecting its final policy decisions.
Enviro Tech
,
¶ 36 FOIA explicitly states that "[i]t is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible[.]" 5 ILCS 140/1 (West 2016). In furtherance of that ideal, the General Assembly has stated that access to governmental information is "necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest."
¶ 37 Property valuation, which results in the direct taxation of the citizenry, is a critical government purpose. "The fundamental theory of our tax structure is that all taxable property should bear its fair share of the cost and expense of government."
Mid-American Growers, Inc. v. Department of Revenue
,
¶ 38 The information requested by the Tribune in this case is critical in order for the public to understand how they are being taxed. To hold that the government can withhold would be antithetical to the overarching purpose of FOIA-that public records deserve the light of public scrutiny and they are presumed to be open and accessible.
Day
,
¶ 39 II. 65A reports
¶ 40 As the prior analysis makes clear, the Assessor's Office's reports do not come within the exemption under which it rejected the Tribune's FOIA request. However, the Assessor's Office argues that it should not be ordered to turn over what are known as 65A reports because the Tribune did not specifically request those reports in the FOIA request it transmitted.
¶ 41 65A reports are township-level synopses of 65D reports. The Tribune learned about the existence of 65A reports during the process of trying to get the other information subject to this appeal. In the trial court, the parties briefed and argued whether 65A reports were exempt from FOIA disclosure. The Assessor's Office relied on the same exemption, the deliberative process exemption, to argue that it was not required to produce 65A reports. It produced a 65A report for in *883 camera review before the trial court's ruling.
¶ 42 The Assessor's Office has waived any objection to producing 65A reports on the basis that the Tribune failed to file a FOIA request for them or demand them in the complaint. Waiver can result from conduct inconsistent with an intent to enforce a legal right.
Phillips v. Elrod
,
¶ 43 III. Attorney Fees
¶ 44 FOIA contains a fee-shifting provision that requires the court to award attorney fees and costs to a party that prevails in an action to obtain a wrongfully withheld record.
"If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs. In determining what amount of attorney's fees is reasonable, the court shall consider the degree to which the relief obtained relates to the relief sought." 5 ILCS 140/11(i) (West 2016).
¶ 45 The Assessor's Office argues that the Tribune's petition for attorney fees was insufficient because it simply set out that the attorney on the case spent 40.4 hours on the case and a paralegal spent 5.8 hours, but the assertions were not supported with any evidence. The Assessor's Office argues that the attorney fees awarded are in excess of the prevailing market rate and, instead of the goal of removing the burden of attorney fees on FOIA plaintiffs, the award here serves to punish the government.
¶ 46 Like other statutory attorney fee provisions, the award of attorney fees under FOIA will not be disturbed absent an abuse of discretion.
Chicago Alliance for Neighborhood Safety v. City of Chicago
,
¶ 47 The Act states that the trial court "shall" award attorney fees and costs to a prevailing plaintiff. 5 ILCS 140/11(i) (West 2016). The Act requires the court to consider "the degree to which the relief obtained relates to the relief sought."
¶ 48 The record makes clear that the trial court scrutinized the Tribune's requested fees and costs and found them to be reasonable. In ruling on the fee petition, the trial court stated its finding on the record that "with regard to the bills, it was perfect, in terms of time spent." In evaluating all of the considerations for awarding attorney fees, the trial
*884
court may and should rely on its own knowledge and experience when determining the reasonableness of the fees sought.
McHenry Savings Bank v. Autoworks of Wauconda, Inc.
,
¶ 49 IV. Cross-Appeal
¶ 50 The Tribune filed a cross-appeal arguing that the trial court erred when it ordered the court records in this case to be held under seal. At this point, in light of our judgment set forth above, there is no legitimate justification for keeping the court records under seal. There is no longer any concern that the Tribune or the public might gain backdoor access to the documents while judicial proceedings remain ongoing. The briefs, affidavits, and deposition testimony all reflect information that is not covered by the deliberative process exemption.
¶ 51 Customarily, there is a presumption of openness in judicial proceedings in Illinois.
Doe v. Doe
,
¶ 52 CONCLUSION
¶ 53 Accordingly, we affirm. All orders sealing documents in this case are vacated.
¶ 54 Affirmed.
Justices Harris and Mikva concurred in the judgment and opinion.
Reference
- Full Case Name
- CHICAGO TRIBUNE COMPANY, Plaintiff-Appellee/Cross-Appellant, v. COOK COUNTY ASSESSOR'S OFFICE, Defendant-Appellant/Cross-Appellee.
- Cited By
- 14 cases
- Status
- Unpublished