2013 I LApp (2d) 110698 No. 2-11-0698 Opinion filed Octobe r 24, 2013

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ SHAUN B . L UCAS, ) Appea l from the Circuit Court ) of L ee County

. Plaintiff-Appellant, ) ) v. ) No. 10-MR-66 ) PRI SONER REVI EW BOARD; KENN ETH ) D. TUPY, F ree dom of I nformation Of fice r, ) Prisoner Review B oard; a nd L I SA ) WEI TEKAMP, Fr eedom of I nformation ) Honora ble Offic er, The Depa

rtment of Corre ctions, ) Daniel A. F ish and ) J acque ly

n D. Acke rt, Def endants-A

ppellees. ) J udg es, Presiding

.

______________________________________________________________________________ J USTI CE McL AREN deliver ed the judg ment of the c ourt, 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 J une 22, 2011, order dismiss ing, w ith prejudice , his complaint a g ainst defe ndants, the Prisoner Review Boa rd (PRB) , Kenne th D. Tupy , and L isa Weitekamp, alleg ing violations of the I llinois Fr eedom of I nformation 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 convicted of predatory criminal sexual assault of a child (720 I L CS 5/12-14.1(a) (1) (West 1998)). He was sentenc ed to a term of 121⁄2 y ear s’ imprisonment in the2013 I LApp (2d) 110698

I llinois Depa

rtment of Correc tions (DOC). As part of a prer elea se sex-offende r evalua tion, a repor t was g ener ated that include d an excer pt 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 place d in Lucas’ s “master file.” ¶ 4 Lucas then decide d to sue the letter’s author for libel. On Aug ust 18, 2010, Lucas filed under the FO I A a r equest that the P RB allow him to inspect “[a]ny and all prog ress re ports submitt ed to the [P RB] via [t he DOC] Clini cal Service s.” Additionally , he reque sted that he be allowed to inspect “[o] bjection letters f

rom the victim, her f

iancé , rela tives and fr iends, and fr om the State.” ¶ 5 I n response , T u

p y , th e PRB ’s information office r, denied the first reque st pursuant to sections 1610.30(b)( 1)(A) and (b)( 2) of title 2 0 o f 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 inmates wher e the evidenc e is specific ally found to include in f o r ma tion that, if disclosed, would damag e the thera

peutic rela tionship betwee n the inmate and a mental health profe s sional. Ad d itionally , section 1610.30(b)( 2) provides that the PRB will not provide direc t acc ess t o an y documents submitt ed to it that bear the signature of a mental health profe ssional or clinical service s employ ee of

the DOC. ¶ 6 Tupy denied the second reque st pursuant to section 1610.30(b)( 1)(B ) of title 20 of the I llinois Administrative Code (20 I ll. Adm. Code 1610.30(b)( 1)(B ) (1985)) and s ec tion 7 of the FOIA (5 I L CS 140/7(1)(a ), (c) (vii), (e) (West 2010)). Tupy ’s response stated that “sec tion 7(1)( a) provides the information is specific ally prohibited from disclosure by fede ral or state l aw o r rul es and regulations adopted under fede ral or sta te law.”

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¶ 7 Additionally , on Aug ust 18, Lucas reque sted that the DOC provide him a copy of the victim’s objection letter, which had been forwa rded to the DOC from the PRB. On Aug ust 25, Weitekamp, the DOC’s information office r, denied Lucas’ s reque st for the objection letter pursuant to section 3- 5-1(b) of the Unified Code of Correc tions (Corre ctions Code), which provides that “[a]ll files shall be confi d en t i al 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 reg

ulations of the respe ctive Depa rtment.” 730 I L CS 5/3-5-1(b) (West 2010). Weitekamp also relied on section 7(1)( a) of the FOIA, which exempts from inspe ct i o n and copying “[i] nformation specific ally prohibited from disclosure by fede ral or State law or rule s a n d r e g u lations adopted unde r fe dera l or State law.” 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 Lucas as

a public rec ord (count I ); (2) a decla ratory judgme nt that the clinical service s repor t was not exempt from produc tion under the F OI A and that Lucas had a rig ht to review the document (c ount I I ); (3) injunctive relief stating that Lucas was entitled to inspect and copy all public rec ords (count I I I ); and (4) a writ of mandamus order ing defe ndants to provide the reque sted documents for Lucas to revie w, copy , or challeng e (count I V). He also soug ht monetary damag es, attorney fee s, and reimburse ment of costs. Reg arding the let t er , L u cas soug ht “full disclosure of this rec ord for the purpose of initiating civil litigation ag ainst it’s [ sic ] author for the c ommon law tort of libel.” F urther, L ucas

asser ted that “[t] his information is nece ssary to the prosec ution of [hi s] suit for libel, both to perf ect his c laims a

nd for the identification of any rea l parties in interest” in or der to “ deliver summons to

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the author.” I n his complaint, Lucas quoted extensively 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)), de fenda nts moved for dism issal 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 providin g for combined motions seeking relief under se ctions 2-615 and 2- 619). ¶ 10 On Fe bruar

y 9, L ucas’ s motion for substitut ion of judge as a matter of rig ht was g rante d. On J une 22, arg

uments on defe ndants’ motion to dismiss wer e hear d; the motio n wa s gra n t ed and Lucas’ s complaint was dismissed in its entirety with prejudice

. ¶ 11 Lucas timely

appea led. ¶ 12 I I . ANAL YSI S ¶ 13 Def

endants soug ht dismi ssal pursuant to sec tion 2-615 and sec tion 2-619 of t he C ode. “A section 2-615 motion attacks the leg al sufficie ncy of the plainti ff ’s cl aim s, while a section 2-619 motion admits the l eg al s ufficie ncy of t he claims but raises defe cts, defe nses, or other affirmative matter, a ppear ing on the fac e of the complaint or established by external submissions , that defe ats the action.” Aurelius v. State 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 affirmative matter that the records requested were exempt from dis closure un d er the FOI A (5 I L C S 140/7 (West 2010)). Acc ording ly , we need not consider the leg al sufficie ncy of t h e complaint. See Aurelius , 384 I ll. App. 3d at 978. ¶ 14 Section 2-619 provides in pe rtinent part:

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“(a ) Defenda

nt may , within t h e t i me for pleading , file a motion for dism issal of t he action

or for other appropr iate relief upon any of the following gro u nds. I f the g rounds do not appea r on the fa ce of

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

ted ag ainst defe ndant is barr ed by other aff irmative matter avoiding the leg al ef

fec t of or def

eating the claim.” 735 I L CS 5/ 2-619(a )(9) (West 2010). A dismiss al pursua n t t o s ec t i o n 2-619 is revie wed de novo . Central Laborers’ Pension Fund v. Nicholas & Associates, Inc. , 2011 I L App (2d) 100125, ¶ 16. When re v iewing an order g ranting dismiss al on this basis, we may consider all fac ts prese nted in the pleading s, aff i d av i t s , and depositions found in the rec ord, and the pleading s and supporting documents must be interpre ted in the l ight most favor able to the nonm oving party

. Id

. This court may aff irm the t rial court’s g rant of a section 2-619 motion on any proper basis found in the rec ord. CNA International, Inc. v. Baer , 2012 I LApp (1st) 112174, ¶¶ 31, 47. ¶ 15 Whether the rec ords are exempt from disclosure under the FO I A (5 I L C S 1 4 0 / 7 (West 2010)), as defe ndants claim, is a matter of statutory construction, and our revie w proce eds de novo . St er n v. W

h ea ton-W arrenville Community Unit School District 200 , 233 I ll. 2d 396, 404 (2009). Where, as here , the reque sting party ch al l en ges t h e public body ’s denial of a FOIA reque st, the public body

must de monstrate that the rec ords reque sted fall within the claimed exemption. Id . at 406; see 5 I L CS 140/11(f) (West 2010) (“A ny public body that asser ts that a rec ord is exempt from disclosure ha s the burden of proving that it is ex empt by clea r and c onvincing evidenc e.”)

.

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¶ 16 Lucas’ s arguments confla te t he two separ ate documents reque sted (clinica l service s repor t and objection letter), even though differ ent considerations apply to eac h. W e wi l l differ entiate betwee n the two for the purposes of our analy sis. ¶ 17 A. Clinical Services Repor t ¶ 18 Under section 3(a) of the FOIA, the PRB is obligated to disclose the repor t to L ucas, “except

as oth er wi se provided in Section 7 of this Act.” 5 I L CS 140/3(a) (West 2010). Section 7(1)( a) provides an exemption for “[i] nformation specific ally prohibited from disclosure by fede ral or State law or rules and reg

ulations implementing fede ral or State law.” 5 I L CS 140/7(1)(a ) (West 2010). ¶ 19 I n turn, section 1610.30(b)( 1)(A) of title 20 of the I llin o i s Ad minist rative Code prohibits disclosure of the repor

t if it includes the signature of a mental health or clinical service s employ ee of the DO C. ¶ 20 Fur

ther, sec tion 1610.30(b)(2) pr ovides: “An inmate who wishes t o re v i ew a document submitt ed to the Boa rd which bear s the signature of a mental health or clinical service s employ ee of the Depa rtment of Correc tions must reque st that revie w throug h the Depa rtment of Correc tions pu rs u an t t o Depa rtment Reg ulations (20 I ll. Adm. Code 107). The Boa rd wi l l not provide direc t acc ess to any documents in this categ ory .” 20 I ll. Adm. Code 1610.30(b)(2) (1985). 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 e x pressly

permitted by

law, including this S ubpart.” 20 I ll. Adm. Code 107.310(a) (2013).

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¶ 21 The P RB’s denial of L ucas’ s reque st for the “prog ress reports s ubmitted to the [ PRB] vi a [t he 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 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). Fur

ther, the denial was proper pursuant to the FOIA beca use, as a matter of law, the documents soug ht are completely exempt from dis cl o s u re under section 1610.30(b)( 2) of title 20 of the I llinois Administrative Code, in that they include the signature of a mental health or clinical service s employ ee of

the DOC. ¶ 22 Lucas argues that, “whe never possible,” section 107.310(a) must be rea d in p a r i materia with statutes. He conclude s that “the leg islature hasn’t ‘spec ifically prohibit[ ed]’ inmates from acc essing their masterf

iles.” Howeve r, this court in Holloway v. Mey er , 311 I ll. App

. 3 d 8 1 8 (2000),

rec og nized that, while the FOI A cre ated a g ener al rig ht of acc ess to public rec ords and included no specific limit at ion on an inmate’s ability to exercise his rig ht, 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 rig ht 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) of the Correc tions Code provides 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 the Correc tions Code, the specific sta tute, lacks mer it.

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¶ 23 We deter

mine that acc ess was limit ed to authorized personne l and that d i s cl o s u re o f t h e clinical service s repor

t was prohibited by the FOIA. Apply ing Mey er ’s rea soning, we hold that the denial of the reque st was prope r and tha t the trial court c orre ctly dismiss ed L

ucas’ s claim. ¶ 24 B. O bjection L etter ¶ 25 Section 10(b) of the Open Parole Hea ring s Act provides that a “victim may enter a statement either oral, writt en, o n v ideo t ape, or other electronic means i n the form and manner described by the Prisoner Review Boa

rd to be considere d at the time of a parole consideration hear ing.” 730 I L CS 105/10(b) (West 2010). Lucas makes leng thy arguments reg arding defe ndants ’ d en i al s of his reque sts for the letter contained in his “master file.” Despite his asser tions t h at h e 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 av er re d t h at he soug ht specific ally the name and addre ss of the letter’s author and/or the addre s s o f t h e v ictim, 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 pa rties in interest” in or der to “ deliver summons to the author.” ¶ 26 As stated above, section 3-5-1( b) of the Correc tions C o d e p ro v i d es t h at all files shall be conf i d en t ial 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 fi l es u n d er rules and regulations of the DOC. 730 I L CS 5/3-5-1(b) (West 2010). Section 7(1) of the FOIA 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 exempt.” 5 I L CS 140/7(1) (West 2010).

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The rema ini n g information is then available for inspection and copying. Section 7(1)( d)(vi) provides: “Subject to this require ment, the following shall be exempt from inspection and c opy ing: (d) Rec ords in the possession of any public body

cre ated in the c ourse of

a d minist rative enfor ceme nt proce eding s, and any law enfor ceme nt or corr ectional ag enc y f o r law enf orce ment 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 pe rson[.] ” 5 I L CS 140/ 7(1)( d)(vi) ( West 2010). Fur ther, section 1610.30(b)( 1)(B ) of title 20 of the I llinois Administrative Code all o ws acc ess to

rec ords by the inmate unless the evidenc e is specific ally found to “[s] ubject any person to the actua l ri s k o f phy sical harm.” 20 I ll. Adm. Code 1610.30(b)( 1)(B ) (1985). The reda cted materia l h er e appea rs to be only the name and addre ss of the author o f t h e l et t er, althoug h the rec ord does not i n clude a copy of the letter itself. Howeve r, contained within Lucas’ s complaint are purp o rt ed quotations from the letter indicating that the victim had rec eived threa ts from Lucas; that the victim was afra id that L

ucas would “come afte r” he r whe n he wa s relea sed; and that he wanted the name and addre ss of the author. Thus, Lucas’ s complaint is that the name and addre ss of the author of the letter and/or the addre ss of the victim wer e reda cted from the letter provided him, and he asser ts that this was in error . Under

these c ircumstance s, no err or occ urre d. ¶ 27 We do not have the letter to revie w, and “[w]here i t is alleg ed that the evide n ce p re s en t ed

was actua lly insufficient to support the court’s finding , the burden of prese rving said evidenc e rests with the party who appeals from said order. ” F outch v. O’Bry ant , 99 I ll. 2d 389, 394 (1984). As

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noted above, Lucas’ s complaint purports to quote the letter verbatim, and his reque st for the author’s

name and addre ss, ostensibly to file a civil lawsuit ag ainst the author, was proper ly denied pursuant to section 1610.30(b)( 1)(B ). ¶ 28 We deter

mine that defe ndants met their burden and proved by clea r and convincing evidenc e that the l etter was ex empt. There fo re , t h e trial court’s dismi ssal under section 2-619 was corr ect. ¶ 29 D. Appointment of Attorney and F ees ¶ 30 Lucas argues that the trial court abused its discretion when it r efuse d to a ppoint c ounsel on appea l and order ed him to pay a reduc ed filing fee

. Whil e the trial court has the discretion to appoint

an attorney to repr esent an indige nt prisoner in a civil suit, there is no rig ht to appointed counsel in civil case s that do not conce rn confine ment. Newsome v. Prisoner Rev iew Board , 333 I ll. App. 3d 917, 922 (2002). We ag ree with defe ndants that Lucas’ s FOIA claims are civil and do not conce rn the leng th or conditions of his confine ment. There fore , he has no rig ht to the appointment of counsel t o re prese nt him. See Dupree v. Hardy , 2011 I L App (4th) 100351, ¶ 54 (an inmate has n o constitutional rig ht to the appointment of counsel in a mandamus case ). The trial court did not abuse its discretion, and we will not overturn its decision. ¶ 31 Lucas complains that the trial court ab u s ed its discretion when it order ed him to “pay a reduc ed fili ng fee even though he was indig ent.” L eave to prosecute an ac tion as a poor pe rson is within the sound discretion of the trial court, subject to 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 trial court did not abuse its discr etion wher e the trial court g rante d Lucas almost a complete waiver of fee s, char g ing him only $64 in filing fe es. ¶ 32 E. Prisoner ReviewBoa rd

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¶ 33 Finally , we addre ss Lucas’ s arg ument that, “as a m at t er o f l aw , t h e P R B 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 conclude s that the PRB “isn’t g iv en law enfor ceme nt power s, so rec ords ca n ’t be in its possession” for law enfor ceme nt purposes. This argument fails beca

use, under section 3-3-1( a)( 5), the PRB has the authority to s et co n d i t i ons for parole and mandatory supervised re l ea s e an d to maintain files, rec ords, and documents former ly under the control of the now-a bolished “Parole and Pardon Boa rd.” See 730 I L CS 5/3-3-1(a )(5) , 3- 3-2(a )(3) (West 2010). ¶ 34 I I I . CONCL USI ON ¶ 35 For

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

is affirme d. ¶ 36 Affir

med.

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