Shehadeh v. Raoul

NOTICE 2021 IL App (4th) 190422-UFILED
This Order was filed under May 28, 2021
Supreme Court Rule 23 and is NO. 4-19-0422
Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed
IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
JAMAL SHEHADEH, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Sangamon County
KWAME RAOUL, in His Official Capacity as Attorney ) No. 18MR546
General of the State of Illinois, )
Defendant-Appellant. ) Honorable
) Esteban F. Sanchez,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Harris and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding the circuit court’s dismissal of plaintiff’s
mandamus complaint was proper where plaintiff failed to state a claim upon
which relief could be granted.
¶2 Plaintiff, Jamal Shehadeh, filed a pro se complaint for a writ of mandamus against
defendant, the Illinois Attorney General, now Kwame Raoul (Attorney General), in his official
capacity. The Attorney General filed a motion to dismiss plaintiff’s complaint, which the circuit
court granted. Plaintiff appeals. We affirm.
¶3 I. BACKGROUND
¶4 Between October 2017 and May 2018, plaintiff filed seven requests to three
public bodies under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West
2016)). In two of his requests, plaintiff sought documents from the Kankakee County Sheriff’s
Office regarding communications between its employees and a law firm. The Kankakee County
sheriff denied the requests, asserting the documents were exempt from disclosure under sections
7(1)(a) and 7(1)(m) of the FOIA (id. § 7(1)(a), (m)). Following the denials, plaintiff submitted
requests for review to the Public Access Counselor (PAC). In both cases, based on the materials
submitted, the PAC determined “no further inquiry [was] warranted.”
¶5 In another request to the Kankakee County Sheriff’s Office, plaintiff sought
“records concerning the vendor or vendors that supply and service inmate kiosks.” In its
response, the Kankakee County Sheriff’s Office responded that some documents responsive to
the request were exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(e) of the FOIA
(id. § 7(1)(b), (e)). Plaintiff again submitted a request for review to the PAC. In his request,
plaintiff alleged the Kankakee County sheriff’s response violated the FOIA. Upon its review of
the materials submitted by plaintiff, the PAC determined “no further inquiry [was] warranted.”
¶6 In April 2018, plaintiff submitted two additional FOIA requests to the Logan
County Sheriff’s Office and one to the Lincoln Police Department. In his requests, plaintiff
sought records concerning calls for assistance in 2016 between a hospital and a residential
address. The Logan County Sheriff’s Office denied plaintiff’s requests, asserting any existing
records responsive to the requests would be exempt from disclosure under section 7(1)(e-10) of
the FOIA (Pub. Act 100-26 (eff. Aug. 4, 2017) (amending 5 ILCS 140/7(1)(e-10)). Similarly, the
Lincoln Police Department denied plaintiff’s request, asserting the records he requested were
exempt from disclosure under section 7(1)(e-8) of the FOIA (id. (amending 5 ILCS 140/7(1)(e-
8)). Plaintiff submitted requests for review to the PAC. Once again, after review of plaintiff’s
submitted materials, the PAC determined no further inquiry was warranted as to any of
plaintiff’s requests.
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¶7 Plaintiff submitted another FOIA request to the Lincoln Police Department in
May 2018, seeking “records concerning death investigations.” The Lincoln Police Department
denied plaintiff’s requests, concluding the documents were exempt from disclosure under section
7(1)(e-10) of the FOIA (id. (amending 5 ILCS 140/7(1)(e-10)). Plaintiff submitted a request for
review to the PAC. After review of the materials submitted by plaintiff, the PAC determined no
further inquiry was warranted.
¶8 In July 2018, plaintiff pro se filed a complaint for mandamus relief against the
Attorney General, alleging the PAC refused to perform “a clear ministerial duty” under the FOIA
when it denied his request for review “without obtaining the records at issue or conducting an
inquiry” as required by section 9.5 of the FOIA (id. § 9.5).
¶9 In October 2018, the Attorney General filed a combined motion to dismiss
plaintiff’s complaint for mandamus relief under section 2-619.1 of the Code of Civil Procedure
(Procedure Code) (735 ILCS 5/2-619.1 (West 2016)). Specifically, the Attorney General argued
plaintiff’s complaint should be dismissed under section 2-615 of the Procedure Code (id.
§ 2-615)) because he failed to state a claim for mandamus relief and did not follow proper
statutory procedures in challenging the denial of his FOIA requests. The Attorney General
additionally argued plaintiff’s complaint should be dismissed under section 2-619 of the
Procedure Code (id. § 2-619) because the circuit court lacked jurisdiction to review the Attorney
General’s decisions under sections 9.5 and 11.5 of the FOIA (5 ILCS 140/9.5, 11.5 (West 2016))
where it never issued any binding opinions in response to plaintiff’s requests for review.
¶ 10 In June 2019, the Sangamon County circuit court entered a written order granting
the Attorney General’s combined motion to dismiss. Citing sections 9.5(a) and (c) and 11.5 of
the FOIA (id. §§ 9.5(a), (c), 11.5), the court concluded it lacked jurisdiction to review plaintiff’s
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complaint for mandamus relief because the Attorney General never issued any binding opinions
in response to any of plaintiff’s requests for review and therefore granted the motion to dismiss
under section 2-619 of the Procedure Code (735 ILCS 5/2-619 (West 2016)). After determining
plaintiff failed to state a claim for mandamus relief because he did not demonstrate he had a clear
right to the relief he requested, the court also granted the Attorney General’s motion under
section 2-615 of the Procedure Code (id. § 2-615).
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, plaintiff argues the trial court erred when it granted the Attorney
General’s motion to dismiss because his complaint sufficiently stated a claim for mandamus
relief. The Attorney General responds dismissal was proper because the court lacked jurisdiction
to review plaintiff’s claim, and plaintiff failed to state a claim where the relief he sought
involved the exercise of discretion. We conclude dismissal of plaintiff’s mandamus complaint
was proper.
¶ 14 A. Mandamus Relief and Motions to Dismiss
¶ 15 “Mandamus relief is an extraordinary remedy to enforce, as a matter of right, the
performance of official duties by a public official where the official is not exercising discretion.”
Hatch v. Szymanski, 325 Ill. App. 3d 736, 739, 759 N.E.2d 585, 588 (2001). To establish a claim
for mandamus relief, the petitioner must show “ ‘a clear, affirmative right to relief, a clear duty
of the public official to act, and a clear authority in the public official to comply with the writ.’ ”
Hadley v. Montes, 379 Ill. App. 3d 405, 407, 883 N.E.2d 703, 705-06 (2008) (quoting People
ex rel. Ryan v. Roe, 201 Ill. 2d 552, 555, 778 N.E.2d 701, 703 (2002)).
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¶ 16 The trial court granted the Attorney General’s section 2-619.1 motion to dismiss
plaintiff’s complaint for mandamus relief, finding dismissal was warranted under both sections
2-615 and 2-619 of the Procedure Code. 735 ILCS 5/2-615, 2-619 (West 2016).
“A section 2-615 motion admits all well-pleaded facts and attacks the legal
sufficiency of the complaint; a section 2-619 motion admits the legal sufficiency
of the complaint, but raises defects, defenses, or other affirmative matter,
appearing on the face of the complaint or established by external submissions,
that defeat the action. [Citation.] Section 2-619.1 of the Code allows a litigant to
combine a section 2-615 motion to dismiss and a section 2-619 motion to dismiss
in one pleading.” Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 278,
818 N.E.2d 389, 398 (2004).
We review the court’s dismissal de novo. Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL
App (4th) 120139, ¶¶ 25, 31, 988 N.E.2d 984.
¶ 17 B. FOIA Review
¶ 18 A person whose FOIA request is denied may file a request for review with the
Attorney General’s PAC. 5 ILCS 140/9.5(c) (West 2016).
“Upon receipt of a request for review, the [PAC] shall determine whether further
action is warranted. If the [PAC] determines that the alleged violation is
unfounded, he or she shall so advise the requester and the public body and no
further action shall be undertaken. In all other cases, the [PAC] shall forward a
copy of the request for review to the public body within 7 business days after
receipt and shall specify the records or other documents that the public body shall
furnish to facilitate the review.” Id.-5-
¶ 19 In Garlick v. Office of the Public Access Counselor, 2013 IL App (1st) 122444,
¶¶ 10-11, 4 N.E.3d 503, the First District summarized this procedure as follows:
“Under section 9.5 of the FOIA, when a public body denies a request for a
copy of a public document, the requester may ask the PAC to review the public
body’s decision. The FOIA provides:
‘Unless the [PAC] * * * decides to address the matter without the
issuance of a binding opinion, the Attorney General shall examine the
issues and the records, shall make findings of fact and conclusions of law,
and shall issue to the requester and the public body an opinion in response
to the request for review within 60 days after its receipt. The opinion shall
be binding upon both the requester and the public body, subject to
administrative review under Section 11.5.
In responding to any request under this Section 9.5, the Attorney
General may exercise his or her discretion and choose to resolve a request
for review by mediation or by a means other than 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 2010).
Under the FOIA, when the PAC issues a binding opinion, the parties can
seek review only under the Administrative Review Law, with its limitations on
the court’s review of the agency’s decision. [Citations.] If the PAC ends its
involvement without issuing a binding opinion, the requester may seek relief
under section 11 of the FOIA (5 ILCS 140/11(f) (West 2010)), which permits the
requester to file an original lawsuit for an injunction or for declaratory relief. In
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such a proceeding, the court owes no deference to the PAC’s nonbinding
resolution of the request. See 5 ILCS 140/11 (West 2010). The court cannot
review the PAC’s decision not to issue a binding opinion. See 5 ILCS 140/9.5(f)
(West 2010). Instead, when the PAC issues no binding opinion, the court can
directly review the public body’s decision to deny the request for copies of public
documents. See 5 ILCS 140/11 (West 2010).”
¶ 20 C. This Case
¶ 21 Here, we agree with the Attorney General and find the trial court properly
dismissed plaintiff’s mandamus complaint because plaintiff failed to state a claim upon which
relief could be granted.
¶ 22 Plaintiff is not entitled to mandamus relief because he fails to demonstrate a clear
right to the relief he seeks. In responding to plaintiff’s requests, the PAC concluded no further
inquiry was necessary and notified plaintiff no further action would be taken. The Attorney
General, citing section 9.5(f) of the FOIA, argues the PAC’s decision to resolve plaintiff’s
request by means other than the issuance of a binding opinion was discretionary and therefore
not subject to mandamus. Plaintiff does not dispute this fact but rather clarifies his mandamus
complaint demands the PAC either “(1) notify [the] requestor his claims are unfounded; or
(2) order the public body to produce the records for *** in camera review,” citing section 9.5(c)
of the FOIA (id. § 9.5(c)). Plaintiff argues the PAC took neither of these actions as required by
the statute. This is incorrect. Although the PAC here did not explicitly state in its decision letters
that plaintiff’s claims were “unfounded,” the PAC fulfilled the duty to “determine whether
further action [was] warranted,” and informed plaintiff that “no further action [would] be
undertaken.” See id. The PAC was not required, in issuing its nonbinding decision, to
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specifically state it had determined the allegation was unfounded. The fact the PAC notified
plaintiff and the public body it would not take further action presumes it determined the alleged
violations were unfounded. The record shows—contrary to plaintiff’s arguments—the PAC
fulfilled the duties enumerated in section 9.5(c) of the FOIA. See id.
¶ 23 Moreover, plaintiff’s assertion the PAC “certainly cannot in good faith declare
[p]laintiff’s requests for review as ‘unfounded’ without first having obtained and reviewed the
records at issue” is not persuasive. There will be many instances where the PAC can determine,
based on the request for review, the requestor’s submitted materials, and the decision from the
public body—without reviewing “the records at issue”—that no further action is warranted. This
is especially true in instances where the public body determines it possesses no records
responsive to the request. Additionally, the applicability of certain statutory exemptions from
disclosure under FOIA may also be readily apparent on the face of a request for review and
obviate any need for the PAC to obtain or review “the records at issue.” We agree with the
Attorney General that although the PAC has authority to request from the public body any
documents it deems necessary to the investigation of a request for review, the PAC is not
required to request or obtain any documents at all. The PAC has discretion to decide what
information or documents would assist in its review process.
¶ 24 The Attorney General also argues dismissal was proper because the trial court
lacked subject matter jurisdiction to review the PAC’s decision to resolve plaintiff’s requests for
review by means other than issuing a binding opinion. We agree that under the FOIA, the
decision not to issue a binding opinion is not subject to administrative review. Id. §§ 9.5(f), 11.5;
see also Fagel v. Department of Transportation, 2013 IL App (1st) 121841, ¶ 24, 991 N.E.2d
365 (“Because the PAC’s ruling in the case at bar was not a binding opinion under the statute, it
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was not subject to administrative review under section 11.5 of FOIA.”). However, we find this
jurisdictional argument inapposite here because in his brief plaintiff specifically states he neither
seeks a binding opinion from the Attorney General nor challenges its decision not to issue one.
He also does not challenge the correctness of the decision to deny the request for review. Rather,
as stated above, plaintiff sought to compel the PAC to fulfill its statutory duties under section
9.5(c) of the FOIA. Although plaintiff ultimately failed to state a claim for relief, the court
possessed jurisdiction over his mandamus action. Ill. Const. 1970, art. VI, § 9 (“Circuit Courts
shall have original jurisdiction of all justiciable matters.”).
¶ 25 In conclusion, the circuit court properly granted the Attorney General’s motion to
dismiss because plaintiff failed to state a claim for mandamus relief. If plaintiff chooses, he may
seek direct review of the public bodies’ decisions to deny his FOIA requests by filing an original
lawsuit for an injunction or for declaratory relief against those bodies under section 11 of the
FOIA. 5 ILCS 140/11 (West 2016).
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the trial court’s judgment.
¶ 28 Affirmed.
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