January 24, 2002

NO. 4-01-0225

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On August 24, 2000, plaintiff, the Illinois EducationAssociation (Association), an Illinois not-for-profit corporation, filed a complaint in the circuit court of Sangamon Countyagainst defendant, the Illinois State Board of Education (Board),seeking a declaratory judgment that the Association was entitledto certain documents from the Board under the Freedom of Information Act (FOIA) (5 ILCS 140/1 through 11 (West 1998)). TheAssociation and the Board filed motions for summary judgment. OnFebruary 13, 2001, the trial court entered judgment in favor ofthe Board. We affirm.

On July 17, 2000, the Association delivered to theBoard a "Freedom of Information Act Request." The Associationsought the disclosure of documents that the Board provided to theIllinois Attorney General (Attorney General) in the course ofrequesting four Attorney General opinions.

Paragraph 1 of the Association's request sought:

"Any and all materials provided to the Illinois Attorney General's Office by the Illinois State Board of Education with regard toits request for an Attorney General's opinionon the issue of whether Local ProfessionalDevelopment Committees and/or Regional Professional Development Review Committees aresubject to the Illinois Open Meetings Act."

The requested materials comprised a letter directed to AttorneyGeneral Jim Ryan from Michael J. Hernandez, then general counselto the Board. The letter requested an opinion from the AttorneyGeneral as to three questions regarding local professionaldevelopment committees and regional professional developmentreview committees. The Board denied the Association access tothe materials pursuant to section 7(1)(n) of the FOIA, "whichexempts from disclosure communications between an attorney and apublic body that would not be subject to discovery in litigation." Subsequent to the release of the Attorney General'sopinion in response to the Board's request, the Board no longerclaimed privilege with respect to the materials requested inparagraph 1 of the Association's request.

Paragraph 2 of the Association's request sought:

"Any and all materials provided to the Illinois Attorney General's Office by the Illinois State Board of Education with regard toits request for an Attorney General's opinionon the issue of whether the Illinois StateBoard of Education can require current teaching certificate holders who apply to exchangetheir existing certificate for a new StandardTeaching Certificate to answer certain specific questions."

The requested materials did not exist. The Board offered that"no such request for an opinion of the Attorney General wasmade."

Paragraph 3 of the Association's request sought:

"Any and all materials provided to the Illinois Attorney General's Office by the Illinois State Board of Education with regard toits request for an Attorney General's opinionon the issue of whether the Illinois StateBoard of Education can require applicants whoapply for a new teaching certificate or forrenewal of an existing teaching certificateto answer certain specific questions on theirapplication."

The requested materials comprised a letter directed to AttorneyGeneral Jim Ryan from Harry A. Blackburn, then acting generalcounsel to the Board. The letter requested an opinion from theAttorney General as to whether the questions asked of applicantsfor teaching certificates may be asked when a certificate isrenewed. The Board denied the Association access to the materials pursuant to section 7(1)(n) of the FOIA, "which exempts fromdisclosure communications between an attorney and a public bodythat would not be subject to discovery in litigation." Subsequent to the release of the Attorney General's opinion in response to the Board's request, the Board no longer claimedprivilege with respect to the materials requested in paragraph 3of the Association's request.

Paragraph 4 of the Association's request sought:

"Any and all materials provided to the Illinois Attorney General's Office by the Illinois State Board of Education with regard toits request for an Attorney General's opinionon the issue of whether the Illinois StateBoard of Education and/or the IllinoisTeacher Certification Board has authority tohear cases where an applicant for a teachingcertificate has been found to be more than 30days delinquent in payment of child support,has failed to comply with a subpoena or warrant relating to a paternity or child supportproceeding and/or has failed to make thecertificate required by Section 10-65 of theIllinois Administrative Procedure Act, 5 ILCS100/10-65."

The Board offered that the requested materials comprise a letterdirected to Attorney General Jim Ryan from Respicio F. Vazquez,general counsel to the Board. The letter requests an opinionfrom the Attorney General as to whether the Board and/or theIllinois Teacher Certification Board has decision-making authority relative to the determination of delinquency in child supportpayments called for in section 10-65 of the Illinois Administrative Procedure Act (5 ILCS 100/10-65 (West 1998)). The Boarddenied the Association access to the materials pursuant tosection 7(1)(n) of the FOIA, "which exempts from disclosurecommunications between an attorney and a public body that wouldnot be subject to discovery in litigation."

The Association filed a complaint in the circuit courtof Sangamon County against the Board, seeking a declaratoryjudgment that the Association was entitled to the requesteddocuments from the Board under the FOIA. The Association and theBoard filed motions for summary judgment. The trial courtentered judgment in favor of the Board. This appeal followed.

The issue in this case is whether the FOIA requires theBoard to provide to the Association the documents that the Boardprovided to the Attorney General in the course of requesting anAttorney General opinion. (We note that the requested materialsin paragraph 2 did not exist and, further, the Board no longerclaimed privilege with respect to the materials requested inparagraph 1 and paragraph 3 of the Association's request.)

"A motion for summary judgment is properly granted when the pleadings, depositions,admissions, and affidavits establish that nogenuine issue of material fact exists andthat the moving party is entitled to judgmentas a matter of law. [Citations.] When parties file cross-motions for summary judgment,they agree that (1) no material issue of factexists; and (2) only a question of law isinvolved. In such a case, we review de novo the trial court's decision." Subway Restaurants of Bloomington-Normal, Inc. v. Topinka,322 Ill. App. 3d 376, 381, 751 N.E.2d 203,208 (2001).

The FOIA provides that "[e]ach public body shall makeavailable to any person for inspection or copying all publicrecords, except as otherwise provided in Section 7 of this Act." 5 ILCS 140/3 (West 1998). Section 7(1)(n) provides an exemptionfor "[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 1998).

In Environmental Protection Agency v. Pollution ControlBd., 69 Ill. 2d 394, 398-99, 372 N.E.2d 50, 51 (1977), thesupreme court opined:

"Article V, section 15, of the 1970Constitution provides that the Attorney General is the legal officer of the State. *** [T]his court has consistently held, underboth the 1870 and 1970 constitutions, thatthe Attorney General is the chief legal officer of the State; that is, he or she is 'thelaw officer of the people, as represented inthe State government, and its only legalrepresentative in the courts.' [Citations.] Although there has been criticism of thisvirtually exclusive grant of power to theAttorney General, this court has not waveredfrom that view, and critics recognize this isthe law."

In defining the attorney-client privilege, the supremecourt has stated:

"[W]here legal advice of any kind is soughtfrom a professional legal advisor in hiscapacity as such, the communications relatingto that purpose, made in confidence by theclient, are protected from disclosure byhimself or the legal advisor, except theprotection be waived." Fischel & Kahn, Ltd.v. Van Straaten Gallery, Inc., 189 Ill. 2d579, 584, 727 N.E.2d 240, 243 (2000).

Vazquez stated in an affidavit that the letters atissue, requesting an opinion from the Attorney General, weredrafted with the intent that they remain confidential. Theletters were created to obtain legal advice from the state'schief legal officer, the Attorney General. The Attorney General,by affidavit of Michael J. Luke, bureau chief of the opinionsbureau of the Illinois Attorney General, stated that the officeof the Attorney General "treat[s] documents relating to pendingrequests for Attorney General opinions in confidence."

The Association argues that "it is important for the[Association] and other members of the public to have access tothe requests for opinions [because] it would give interestedparties the opportunity to submit supplemental information to theAttorney General so that it would have all of the informationnecessary to issue a complete and correct opinion." The AttorneyGeneral Act (Act) (15 ILCS 205/0.01 through 6a (West 1998)) doesnot provide for consultation with and advice to "interestedparties." The Act provides that the duties of the AttorneyGeneral shall be:

"To consult with and advise the governor andother state officers, and give, whenrequested, written opinions upon all legal orconstitutional questions relating to theduties of such officers respectively." 15ILCS 205/4 (Sixth) (West 1998).

The Association argues further that "an AttorneyGeneral's opinion is given so much weight by the courts, it isimportant for the public to know the factual premises that form abasis for the opinion." An Attorney General's opinion is notbinding on a reviewing court in this state. Mulligan v. JolietRegional Port District, 123 Ill. 2d 303, 317-18, 527 N.E.2d 1264,1271 (1988). In City of Springfield v. Allphin, 50 Ill. App. 3d44, 47, 365 N.E.2d 249, 252 (1977), we stated, "An opinion of theAttorney General is not binding on the courts. However, thereasoning in an opinion may be given considerable weight." Wenote that in City of Springfield this court did not base itsdecision on the Attorney General's opinion even though we foundthe opinion to be well-reasoned and persuasive. Should there becontroversy concerning the issue of whether the Illinois StateBoard of Education and/or the Illinois Teacher CertificationBoard has authority to hear cases where an applicant for ateaching certificate has been found to be more than 30 daysdelinquent in payment of child support, has failed to comply witha subpoena or warrant relating to a paternity or child supportproceeding, and/or has failed to make the certificate required bysection 10-65 of the Illinois Administrative Procedure Act (5ILCS 100/10-65 (West 2000)), an Attorney General's opinion may beconsidered. At the same time, the party disagreeing with theopinion has fair and full opportunity to attack its merit.

In light of our decision, we need not address theAssociation's remaining argument referencing the mootness doctrine.

For these reasons, we affirm the judgment of thecircuit court of Sangamon County.

Affirmed.

TURNER, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent. I would hold that the Boardhas no attorney-client relationship with the Attorney General inthis case that justifies its refusal to turn over its requestsfor Attorney General's opinions. Although the Board has voluntarily turned over the requests in this case that resulted inopinions, it takes the position that it is not required to do so. The question presented is accordingly a broad one: whether apublic body which requests an opinion from the Attorney Generalmay ever be forced to disclose that request under the FOIA.

Perhaps there is some reason why the Attorney Generalshould be able to decline requests for opinions. In this case,however, it is not the Attorney General, but the public body,which refuses the request. The reason for refusal has nothing todo with the process of issuing Attorney General opinions. Instead, the refusal is based on the standard attorney-clientprivilege enjoyed by every citizen. It seems a real stretch tosay that the same attorney-client relationship that existsbetween a lawyer and his client in traffic court also exists whena pubic body asks the Attorney General for an opinion.

I have no doubt that public bodies may in some casesassert that the Attorney General is their lawyer and that anattorney-client privilege exists. After the Attorney Generalentered his appearance for the Board in this case, for example, Iam confident that his discussions with the Board about thepending case were covered by the privilege. Where there is nopending case, however, and only a request for an opinion, thesituation seems much different. The body making a request for anopinion may have no adversarial position and may seek only anunderstanding of an issue of law. There is a difference betweenthe published opinions of the Attorney General and the privateadvice he gives litigants whom he is representing in a courtproceeding.

The FOIA imposes a broad requirement that the publicbody involves here, the Board, make available its public records. The FOIA does not require a showing of cause for such records,but there does seem to be a reason for the disclosure of requestssuch as those in this case. Attorney General opinions can beread with more understanding if the requests to which thoseopinions respond are examined. Given the breadth of the languageof the FOIA requiring disclosure, we should be hesitant to readthe attorney-client privilege so as to swallow up the duty todisclose.

Is the Attorney General just representing his clientwhen he issues an opinion? The Board (or perhaps the AttorneyGeneral) attempts to have it both ways. It argues that AttorneyGeneral opinions are not binding on the courts, and seems todispute the proposition that Attorney General opinions are givengreat weight by the courts. The Board/Attorney General thenargues:

"This is not to say that the Attorney General's opinion should be anything less than afull and objective assessment of the law. The Attorney General in issuing formal opinions endeavors to correctly determine the lawand does not just provide opinions to agencyofficials that are convenient, popular, oragreeable."

The Attorney General does occupy a unique role when hepublishes his opinions. He is not just another lawyer advisinghis client. We should not stretch the attorney-client privilegeto the breaking point in order to justify a refusal to apply theFOIA in this case.