## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Lucas v. Prisoner Review Board , 2013 IL App (2d) 110698

Appellate Court Caption SHAUN B. LUCAS, Plainti ff -Appellant, v. PRI SONER REVI EW BO ARD; KENNET H D. TUPY, Fr eedom o f Information Offic er, Prisoner Review Boa

rd; and L I SA WEI TEKAMP, Fr eedom of Information Offic er, The Depa rt m ent of Correc tions, DefendantsAppellee s.

District & N o. Second District Docke t No. 2-11-0698

Filed October 24, 2013

Held (Not e: This syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court properly dismiss ed t h e co mp laint of a convicted sex offe nder ag ainst the Prisoner Review Boa rd and fre edom of information office rs of the Boa

rd and the Depa

rtment of C o rr ec t ions, alleg ing violations of the Fr eedom of Information Act based on the failure of the Boa rd and the De p artment to rele ase documents plaintiff soug ht, including documents in his “master fi l e” held by the Department, si nce the rec ords plaintiff soug ht w ere exempt fr om disc losure under the Act.

Dec ision Under Review Appea l from the Circuit Court of L ee County , No. 10-MR-66; the Hon. Daniel A. F ish and the Hon. Jacquely n D. Acke rt, J udg es, pre siding.

J udg ment Affir med.Counsel on

Appea l Shaun B. L ucas, of Bridge view, appe llant pro se

.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Ge nera l, a

nd Timothy K. McPike, Assistant Attorney Gene ral, of counse l), for a

ppellees.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Hudson and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Shaun B. Lucas, appea ls from the trial court’s June 22, 2011, order dismiss ing, with prejudice
, his complaint a g a in s t d e f e n d a nts, the Prisoner Review Boa rd (PRB), Kenne th D. Tupy
, and L isa Weitekamp, alleg ing violations of the I llinois Fr eedom of Information Act (F OIA). 5 I L CS 140/ 1.1 et seq. (West 2010). We aff irm.

¶ 2 I . BA CKGROUND ¶ 3 On April 9, 1999, Lucas was convic t ed o f p re datory criminal sexual assault of a child (720 I L C S 5 / 1 2 -1 4 .1(a) (1) (West 1998)). He was sentenc ed to a term of 121⁄2 year s’ imprisonment in the I llinois Depa rtment of Correc tions (DOC). As part of a prer elea se sexoffe nder evaluation, a repor t was g ener ated that included an excerpt from a letter written by the fianc é of the victim. The letter was orig inally sent to the PRB. The PRB forwa rded a copy to the DOC and it was plac ed in Lucas’ s “master file.” ¶ 4 Lucas then decide d to sue the letter’ s author for libel. On August 18, 2010, Lucas filed under the FOIA a reque st that the PRB allow him to inspect “[a]ny and all progress repor ts submitt ed to the [P RB] via [t he DOC] Clini cal Service s.” Additionally
, he reque sted that he be allowe d to inspect “[o] bjection letters f rom the victim, her f

iancé , rela

tives and friends, and fr om the State.” ¶ 5 In response , Tupy
, the PRB’s i n fo rm at i o n office r, denied the first reque st pursuant to sections 1610.30(b)( 1)(A) and (b) (2) of title 20 of the I llinois Administrative Code (20 I ll. Adm. Code 1610.30(b)( 1)( A)
, (b)(2) (1985))

. Section 1610.30(b)( 1)(A) provides that the PRB can deny evidenc e to i n m at es where the evidenc e is specific ally found to include information that, if disclosed, would damag e the thera peutic rela

tionship betwee n the inmate and a mental health profe ssional. Additionally
, section 1610.30(b)( 2) provides that the PRB will not provide direct access to any documents subm itted to it that bear the s igna ture of a mental hea lth professional or c linical service s employee of the DOC. ¶ 6 Tupy denied the second reque st pursuant to section 1610.30(b)( 1)(B ) of title 20 of the

-2-I llinois Administrative Code (20 I ll. Adm. Code 1610.30(b)( 1)(B ) (1985)) and section 7 of

the FOIA (5 I L CS 140/7(1)( a), 7(1)( c)( vii), (7)(1) (e) (West 2010) ). Tupy ’s response stated that “sec tion 7(1)(a ) provides the information i s specific ally prohibited from disclosure by fede ral or state law or

rules and r egulations adopted under fede ral or sta

te law.” ¶ 7 Additionally
, on August 18, Lucas reque sted th at t he DOC provide him a copy of the victim’s obje ction letter, which had been forwa rded to the DOC from the PRB. On August 25, W ei t ek am p, the DOC’s information office r, denied Lucas’ s reque st for the objection letter pursuan t t o s ection 3-5-1(b) of the Unified Code of C orre ctions (Corre ctions Code), which provides that “[a]ll files shall be confide ntial and acc ess shall be limit ed to authorized
personne l of the respe ctive Depa rtment. Personnel of other corr ectional
, welfa re or law enfor ceme nt ag encie s may have acc ess to files under rules and regulations of the respe ctive Depa rtment.” 730 I L CS 5/3-5-1(b) (West 2010). W eitekamp also relied on sec tion 7(1)(a )

o f the FOIA, which exempts from inspection and copying “[i] nformation specific ally prohibited from disclosure by fede ral o r S tate law or rules and reg ulations adopted under fede ral or State la

w.” 5 I L CS 140/ 7(1)( a) ( West 2010). ¶ 8 Lucas filed a four- count complaint in the trial court, seeking : (1) a decla ratory judgme nt that the objection letter was not exempt from production under the FOIA and was acc essible
to L ucas as a public rec ord (count I ); (2) a decla ratory jud gm ent that the clinical service s repor t was not exempt from production under the FOI A and that Lucas had a right to revie w the document (count I I ); (3) injunctive relief stating that Lucas was e n t i tled to inspect and
copy all public rec ords (count I I I ); and (4) a wr i t o f mandamus ordering defe ndants to provide the reque sted documents for Lucas to revie w, copy , or challeng e (count IV). He also
soug ht mone tary damag es, attorney fee s, and reimburse ment of costs. Reg arding the letter, Lucas soug ht “full disclosure of this rec ord for the purpose of initiating civi l l i t i gat ion
ag ainst it’s [ sic ] author for the common law tort of libel.” Fur ther, Lucas asser

ted that “[t] his information is nece ssary to the prosec ution of [hi s] s uit for libel, both to perfe ct his claims and for the identification of any rea l parties in interest” in order to “deliver summons to the author.” In his complaint, Lucas quoted ext en s i v el y from the “objec tion letter” sent by “John/ J ane D oe.” ¶ 9 On Fe bruar

y 7, 2011, pursuant to section 2-619.1 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-619.1 (West 2010)), defe ndant s mo v e d f o r dismiss al under sections 2-615 and 2-619 of the Code. See 735 I L CS 5 / 2 -615, 2-619, 2-619.1 (West 2010) (sec tion 2-619.1 providingfor c ombined motions seeking r elief unde r sec tions 2-615 and 2-619). ¶ 10 On Fe bruar

y 9, Lucas’ s motion for substitut ion ofjudge as a matter of right was grante d. On J une 22, arguments on defe ndants’ motion to dismiss wer e hear d; the motion was grante d and L ucas’ s complaint was dismissed in its entirety with prejudice

. ¶ 11 Lucas timely

appea led.

¶ 12 I I . ANALYSI S ¶ 13 Def

endants sought di smissal pursuant to section 2 -6 1 5 and section 2-619 of the Code. “A section 2-615 motion attacks the leg al sufficie ncy of the plaintiff’s claims, while a section 2-619 motion admits the leg al sufficie ncy of the claims but raises defe cts, defe nses, or other

-3-aff irmative matter, appea

ring on the fac e of the complaint or est ab l i s h ed by external submissi ons, that defe ats the ac tion.” Aurelius v. Stat e Farm Fire & Casualty Co. , 384 I ll. App. 3d 969, 972-73 (2008). As explained below, we conclude that the complaint was subject to dismiss al under section 2-619, based on the aff i rm at i v e matter that the rec ords
reque sted wer e exempt from disclosure under the FOI A (5 I L CS 140/7 (W es t 2010)). Acc ording ly
, we need not consider the leg al sufficie ncy of the complaint. See Aurelius
, 384 I ll. App. 3d at 978. ¶ 14 Section 2-619 provides in pe rtinent part:

“(a) Def endant may , within the time for pleading
, file a motion for dismiss al of the action or for other a ppropriate relief upon any of the following grounds. I f the grounds do not
appea r on the fa ce of

the pleadingattacke d the motion shall be supported by aff idavit: * * * (9) That the claim asser

ted ag ainst defe ndant is barr ed by other aff irmative matter

av o i d i n g the l eg al effec t of or defe ating the claim.” 735 I L CS 5/2-619(a) (9) (W es t 2010).
A dismiss al pursuant to section 2-619 is revie wed de novo

. Central Laborers’ Pension Fund

v. Nicholas & Associates, Inc.
, 2011 I L App (2d) 100125, ¶ 16. When revie wi n g an order
granting dismiss al on this basis, we may consider all fac ts prese n t ed in the pleading s, aff idavits, and depositions found in the rec ord, and the pleading s and supporting documents
must be interpr eted in the light most favorable to the nonm oving party

. Id. This court may aff irm the trial court’s g rant of a section 2-619 motion on any prop er b as i s fo u nd in the

rec ord. CNA International, Inc. v. Bae r , 2012 I LApp (1st) 112174, ¶¶ 31, 47. ¶ 15 Whether the recor ds are exempt from dis closure under the FOIA (5 I L CS 140/ 7 (West 2010)), a s defe ndants claim, i s a matter of st atutory construction, and our

revie w proc eeds de novo

. Stern v. W

heaton-W arrenville Community Unit School District 200
, 233 I ll. 2d 396, 404 (2009). Where, as here
, the reque sting party challeng es t h e p ub l i c body ’s denial of a FO I A re quest, the publ ic body must demonstrate that the records requested fall within t h e claimed exemption. Id

. at 406; see 5 I L CS 140/11(f) (West 2010) (“Any public body that

asser ts that a rec ord is exempt from disclosure has the burden of proving that it is exempt by clea r and c onvincingevidenc e.”)

. ¶ 16 Lucas’ s arguments co n fl at e th e t wo separ ate documents reque sted (clinica l service s repor t and objection letter), even though differ ent considerations apply to ea ch. We will differ entiate be tween the two for the pur poses of our a

naly sis.

¶ 17 A. Clinical Services Repor t ¶ 18 Under section 3(a) of the FOIA, the PRB is obligated to disclose the re p o rt to Lucas, “except as otherwise provided in Section 7 o f t h i s Ac t .” 5 I L CS 140/3(a) (West 2010). Section 7(1)( a) provides an exemption for “[i] nformation specific ally prohib i t ed from disclosure by fede ral or State law or rules and reg ulations implementing fede ral or State law.” 5 IL CS 140/ 7(1)( a) ( West 2010). ¶ 19 In turn, section 1610.30(b)( 1)(A) of title 20 of the I llinois Administrative Code prohibits

-4-disclosure of t h e re p o rt if it includes the signature of a mental health or clinical service s

employee of

the DOC. ¶ 20 Fur

ther, sec tion 1610.30(b)(2) pr ovides: “An inmate who wishes t o revie w a document subm itted to the Board which bear s the signature of a mental health or clinical service s employee of the Depa rtment of Correc tions must reque st that revie w through the Depa rtment of Correc tions pursuant to Depa rtment Regulations (20 I ll. Adm. Code 107). The Boa rd will not prov i de direc t

acc ess to any

documents in this categ ory .” 20 I ll. Adm. Code 1610.30(b)(2) (2013). Section 107.310(a) provides: “The master rec ord files of offe nders shall be confide ntial and

acc ess shall be limit ed to authorized persons. Offe nders shall not be permitted acc ess to their
master rec ord files except as expressly permitted by law
, i n cl u d ing this Subpart.” 20 I ll. Adm. Code 107.310(a) (2013). ¶ 21 The PRB’s denial of L ucas’ s reque st for the “progress repor ts submitt ed to the [P RB] via [the DOC] Clini cal Service s” was proper under section 3-5-1(b) of the Correc tions Code, which, as noted, states that “[a]ll files shall be co n fi d ential and acc ess shall be limit ed to authorized personne l of the respe ctive Depa rtment. Personnel of other corr ectional, welfa re

or law enfo rc em en t agenc ies may have acc ess to files under rules and regulations of the
respe ctive Department.” 730 I L CS 5/3-5-1(b) (West 2010). Further, the denial was proper pursuant to the FOIA beca use, as a matter of law, the documents soug ht are co mp letely exempt from disclosure under section 1610.30(b)( 2) of title 20 of the I llinois Administrative Code, in that they

include the signature of a me ntal health or c linical service s employee of the DOC. ¶ 22 Lucas argues that, “whe never possible,” section 107.310(a) must be rea d in pari m ateria with statu t es

. He conclude s that “the leg islature hasn’t ‘spec ifically prohibit[ ed]’ inmates from ac cessingtheir master files.” How ever , this court in Holloway v. Mey er , 311 I ll. App. 3d 818 (2000), recognized that, while t he FOIA create d a gene ral right o f ac ce ss to public

rec ords and included no specific limit ation on an inmate’s ability to exercise his right, section 3-7-2( e) of the Correc tions Code (730 I L CS 5/3-7-2(e ) (West 1998)) contained more specific provisions, and, to the extent that it conflicte d with the FOIA, it applied to limit the inmate’s right of acc ess. See Mey er , 311 I ll. App. 3d at 824 (the FOIA was not controlling in that context). Her e, in addition to DOC regulations, section 3-5-1 (b ) o f the Correc tions Code
p ro v i des that all master rec ord files “shall be confide ntial and acc ess shall be limit ed to authorized personne l.” 730 I L CS 5/3-5-1(b) (West 2010). Lucas cites to nothing that ref utes the holding in Mey er

. Any claim that the FOIA, the g ener al statute, controls over t he Correc tions Code, the specific sta tute, lacks merit. ¶ 23 We deter

mine that acc ess was limit ed to authorized personne l and that disclosure of the clinical ser

vices report was pr ohibited by the FO IA. Applying Mey er ’s re asoning , we hold that the denial of the reque st was proper and that the trial court corr ectly dismiss ed Lucas’ s claim.

¶ 24 B. O bjection L etter ¶ 25 Section 10(b) of the Open Paro l e He ar i n gs Act provides that a “victim may enter a

-5-statement ei t h er o ra l
, written, on video tape, or other elec tronic means in the form and

manner described by the Prisoner Review Boa rd to be considere d at the time of a parole consideration hearing.” 730 I L CS 105/10(b) (West 2010)

. Lucas makes leng thy arguments reg arding defe ndan t s ’ denials of his reque sts for the letter contained in his “master file.” Despite his asser

tions that he was not g iven acc ess to his file, common sense tells us that the
contents of the letter wer e disclosed to him, since he quoted it extensively in his complaint. He aver red that he sought specific ally the name and addre ss of the letter’s author and/or the addre ss of the victim, in order to initiate and perf ect his claims in a libel lawsuit ag ainst the letter’s author, and for the “identification of any rea l parties in interest” in order to “deliver
summons to t he author .” ¶ 26 As stated above, section 3-5-1(b) of the Correc tions Code provides that all files shall be confide ntial with acc ess limit ed to authorized personne l of the DOC. Personnel of other

corr ectional, welfa

re, or law enfor ceme nt ag encie s may have acc ess to files under rules and

re gu l ations of the DOC. 730 I L CS 5/3-5-1(b) (West 2010). Section 7(1) of t h e FO I A provides that “[ w]hen a reque st is made to inspect or copy a public rec ord that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elec t to reda ct the information that is e x empt.” 5 I L CS 140/ 7(1) ( West 2010). The re maining inf ormation is the n available for inspection and c opying. Sec tion 7(1)(d)( vi) provides: “Subject to this require ment, the following shall be exempt from inspection and copying: (d) Records in the possession of any public body cre ated in the course of

a d min is tra ti v e e n f o rceme nt proce eding s, and any law enfor ceme nt or corr ectional a g e n c y for law enfor ceme nt purposes, but only to the extent that dis closure w ould: * * * (vi) endang er the life or phy sical safe ty of law enfor ceme nt personne l or any other person.” 5 I L CS 140/ 7(1)( d)(vi) ( West 2010).
Fur ther, section 1 6 1 0.30(b)( 1)(B ) of title 20 of the I llinois Administrative Code allows

acc ess t o re co rd s by the inmate unless the evidenc e is specific ally found to “[s] ubject any person to the actua l risk of phy sical harm.” 20 I ll. Adm. Code 1610.30(b)( 1)(B ) (1985). The reda cted materia l here appea rs to be only the name and addre ss o f t he author of the letter, althoug h the record does not include a copy of the letter itself. Howeve r, contained with i n Lucas’ s complaint are purported quotations from the let ter indicating that the victim had

re ce i ved threats from Lucas; that the vi ctim was afra id that Lucas would “come after” h er when he was rele ased; and that he wanted the name and addre ss of the author. Thus, Lucas’ s complaint is that the name and address of th e au t h o r of the letter and/or the addre ss of t he

v i ct im wer e reda cted from the letter provided him, and he asser ts that this was i n erro r. Under these c ircumstance s, no err or occ urre d. ¶ 27 We do not have the letter to revie w, and “[w]here it is alleg ed that the evidenc e pre sented

was actua lly insufficient to support the court’s finding
, the burde n o f p rese rving said evidenc e rests with the party who appeals from said order .” Foutch v. O’Bry ant , 99 I ll. 2d 389, 394 (1984). As noted above, Lucas’ s complaint purports t o quote t h e letter verbatim, and his reque st for the author’s name and addre ss, ostensibly to file a civil lawsuit aga i n st

-6-the author, w as prope rly denied pur suant to section 1610.30(b)( 1)(B ). ¶ 28 We deter

mine that defe ndants met their burden and proved b y cl ea r an dconvincing evidenc e that the letter was exempt. There fore
, the trial court’s dismiss al under section 2-619

was c orre ct.

¶ 29 C. Appointment of Attorney and F ees ¶ 30 Lucas argues that the trial court abused its discretion when it ref used to appoint counsel

on appea l and order ed him to pay a reduc ed filing fee

. Whil e the trial court has the discretion
t o appoint an attorney to repr esent an indige nt prisoner in a civil suit, there is no right to appointed counsel in civil cases t h at do not conce rn confine ment. Newsome v. Prisoner Rev iew Board
, 333 I ll. App. 3d 917, 922 (2002). We agree with def en d an ts that Lucas’ s FOIA claims ar e ci v i l and do not conce rn the length or conditions of his confine ment. There fore
, he has no righ t t o t h e appointment of counsel to repr esent him. See Dupree v. Hardy
, 2011 I L App (4th) 100351, ¶ 54 (an inmate has no constitutiona l ri gh t t o t h e appointment of counsel in a mandamus case ). The trial court did not abuse its discretion, and we will not overturn its dec ision. ¶ 31 Lucas complains that the trial court abused its discr etion when it or dere d him to “pay a reduc ed filing fee even though he was indige nt.” L eave to prosecu t e an action as a poor person is within the sound discretion of the trial court, subject t o reve rsal only when such discretion has been abused. Dear v. Locke
, 128 I ll. App. 2d 356, 362 (1970). We deter mine that the t rial court did not abuse its discretion where the trial court gra nted Lucas almost a complete wa iver of f

ees, c harg ing him only

$64 in filing fe es.

¶ 32 D. Prisoner Review Boa rd ¶ 33 Finally
, we addre ss Lucas’ s argu m en t t h at , “as a matter of law, the PRB isn’t a law enfor ceme nt ag ency or corr ectional ag ency .” Citi ng sections 3 -3-1( a) and 3-3-2 of the Correc tions Code (730 I L CS 5/3-3-1(a), 3-3-2 (West 2010)), he co ncludes that the PRB “isn’t g iven law enfor ceme nt power s, so rec ords can’ t be in its possessi o n ” fo r l aw enfor ceme nt purposes. This argument fails beca use, under section 3-3-1( a)( 5), the PRB has the authority to se t c onditions for parole and mandatory supervised rele ase and to ma intain files, re cords, a

nd documents for

merly under the control of the now-a bolished “Parole and Pardon B oard.” See 730 I L CS 5/ 3-3-1( a)( 5), 3-3- 2(a) (3) ( West 2010).

¶ 34 I I I . CONCLUSI ON ¶ 35 For

the re asons stated, the judgment of the c ircuit court of L ee County

is affirme d.

¶ 36 Affir

med.

-7-