ILLINOIS OFFICIAL REPORTS

Appellate Court

Taliani v. Herrmann, 2011 IL App (3d) 090138

Appellate Court

Caption

STEVEN A TALIANI, Plaintiff-Appellee and Cross-Appellant, v.

PATRICK J. HERRMANN, as State’s Attorney for Bureau County,

Illinois, Defendant-Appellant and Cross-Appellee.

 District & No. Third District

Docket No. 3-09-0138

Filed

Rehearing denied

August 19, 2011

September 29, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

An order awarding plaintiff attorney fees for the work performed by his

counsel in obtaining grand jury transcripts from defendant’s 1994

criminal trial pursuant to the Freedom of Information Act was reversed

on the ground that the Act is not the proper vehicle for obtaining grand

jury transcripts.

Decision Under 

Review

Appeal from the Circuit Court of Bureau County, No. 07-MR-30; the

Hon. Eugene P. Daugherity, Judge, presiding.

Judgment Reversed and vacated in part.
Counsel on

Appeal

Patrick J. Herrmann (argued), State’s Attorney, of Princeton, for

appellant.

Robert L. Caplan (argued), of Clarendon Hills, for appellee.

Panel JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

Justice Holdridge concurred in the judgment and opinion.

Justice Lytton dissented, with opinion.

OPINION

¶ 1 In an action under the Illinois Freedom of Information Act (the Act) (5 ILCS 140/1 et

seq. (West 2008)), the trial court ordered the defendant, Patrick J. Herrmann, in his capacity

as Bureau County State’s Attorney, to provide the plaintiff, Steven A. Taliani, with

transcripts of grand jury proceedings from Taliani’s 1994 criminal case. Taliani then

petitioned for an award of attorney fees pursuant to the Act. The petition included a request

for fees for time spent by Taliani’s attorney to prepare and argue the fee petition (commonly

called “fees on fees”). The trial court awarded Taliani attorney fees in an amount less than

he requested and denied his request for fees on fees. Herrmann appeals the award of attorney

fees; Taliani cross-appeals the denial of his petition for fees on fees. We reverse and vacate

the order granting Taliani attorney fees.

¶ 2 FACTS

¶ 3 Taliani is currently serving a 70-year sentence for murder and a 30-year sentence for

aggravated batterywith a firearm, both from convictions in 1994. In June 2007, he filed a pro

se complaint for declaratory and injunctive relief under the Act. In his complaint, Taliani

alleged that the Bureau County circuit court clerk denied his request for “a copy of Grand

Jury Transcripts from the case of People v. Taliani, Case No. 94-CF-37.” Taliani also stated

that pursuant to section 10 of the Act (5 ILCS 140/10 (West 2008)), he appealed the clerk’s

denial to Herrmann. In response, Herrmann sent Taliani a letter which stated, in part, “That

Grand Jury Transcript was provided to your attorney prior to trial. You should contact him

to receive a Grand Jury Transcript if you do not have it.”

¶ 4 Taliani then wrote a letter to his criminal trial lawyer asking for the grand jury transcripts.

In a responsive pleading, Taliani stated that his criminal trial attorney failed to respond to his

request for the transcripts. Subsequently, Herrmann sent Taliani a letter stating that he was

denying Taliani’s freedom of information request “[b]ecause the proceedings of the Grand

Jury are conducted in secrecy, matters other than deliberations and the vote cannot be

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disclosed by the State’s Attorney with only limited exceptions. The dissemination of Grand

Jury proceedings is covered by 725 ILCS 5/112-6.”

¶ 5 Robert Caplan entered his appearance as Taliani’s counsel in the matter; Taliani filed a

two-count amended complaint. In count II, Taliani named Herrmann, in his official capacity

as Bureau County State’s Attorney, as the defendant. Taliani asserted that Herrmann denied

his request for the grand jury transcripts and attached the letter from Herrmann.

¶ 6 Herrmann filed a motion to dismiss count II of Herrmann’s complaint. Taliani filed a

response to Herrmann’s motion and then a motion for judgment on the pleadings. The court

denied Herrmann’s motion to dismiss and granted Taliani’s motion for judgment on the

pleadings, ordering Herrmann to provide the grand jury transcripts to Taliani.

¶ 7 Taliani submitted a petition contending that under section 11(i) of the Act (5 ILCS

140/11(i) (West 2008)), he was entitled to attorney fees. In the petition, Taliani asserted that

Caplan’s hourly rate was $250. Taliani attached billing sheets from Caplan indicating that

Caplan had worked on the matter for 85 hours and 8 minutes, for a total bill of $19,951.50.

The billing sheets deducted $2,000 for work Caplan had done on count I of the complaint,

for a final total request of $17,951.50.

¶ 8 The court held a hearing on Taliani’s petition for attorney fees; at the beginning of the

hearing, Taliani submitted a supplemental petition for attorney fees, seeking fees on fees for

the time he spent preparing and litigating his original fee petition. AttorneyRandolph Gordon

testified as a witness for Taliani. Gordon opined that a $250 hourly rate was reasonable given

Caplan’s work on the case, his experience and what other judges in the circuit have approved

as an hourly rate in civil cases. Caplan testified that a $250 hourly rate was reasonable based

on his responsibility in the case, his many years of experience and the hourly rates for

lawyers in civil matters in several of the surrounding counties.

¶ 9 At the conclusion of the hearing, the court reduced the total hours from 85.1 to 57.86.

The court also reduced Caplan’s hourly rate from $250 to $162.50, finding that $162.50 was

a reasonable hourly rate in the area based on its experience. The court awarded Taliani fees

of $9,361.62. The court refused to award Taliani any fees on fees requested in his

supplemental petition.

¶ 10 Herrmann appeals the trial court’s award of attorneyfees to Taliani. Taliani cross-appeals

the trial court’s denial of the fees on fees.

¶ 11 ANALYSIS

¶ 12 The Act requires public bodies make “available to any person for inspection or copying

all public records, except as otherwise provided in Section 7 of this Act.” 5 ILCS 140/3(a)

(West 2008). Public records are broadlydefined under the Act. 5 ILCS 140/2(c) (West 2008).

Section 7 of the Act exempts certain records from its reach, notably, “[i]formation

specifically prohibited from disclosure by federal or State law.” 5 ILCS 140/7(1)(a) (West

2008).

¶ 13 Section 112-6 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/100-1

et seq. (West 2008)) is a state law that prohibits the disclosure of grand jury transcripts

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without a court order and thus exempts them from the Act. 725 ILCS 5/112-6 (West 2008).

Herrmann would have violated state law had he provided Taliani the requested documents

without a court order to do so. The Code indicates that grand jury proceedings are secret and

only open to the “State’s Attorney, his reporter and any other person authorized by the court

or by law.” 725 ILCS 5/112-6(a) (West 2008); People v. DiVincenzo, 183 Ill. 2d 239, 254

(1998); People v. Sampson, 406 Ill. App. 3d 1054, 1057 (2011). Taliani was only entitled to

a copy of the grand jury transcripts pursuant to section 112-6(c)(3) of the Code. It states:

“Disclosure otherwise prohibited by this Section of matters occurring before the Grand Jury

may also be made when the court, preliminary to or in connection with a judicial proceeding,

directs such in the interests of justice or when a law so directs.” 725 ILCS 5/112-6(3)(c)

(West 2008).

¶ 14 Taliani was only entitled to a copy of the grand jury transcripts pursuant to the Code and

the Code does not allow him to recover his fees. It was error for the trial court to award fees

to Taliani in this matter.

¶ 15 Contrary to the dissent’s assertions, in both this court and the trial court, Herrmann

argued that it was improper to award fees because a law other than the Act controlled his

ability to disclose the transcripts to Taliani. Thus, he raised an issue of law that this court 1

reviews de novo. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 153 (2005). No doubt the

Act’s attorney fees provision is to dissuade public officials from refusing to disclose public

records that the Act requires them to disclose. That is, the Act provides, in essence, that if

a public official requires one to hire a lawyer and file suit to obtain that which should have

been handed to him, the person who ultimately prevails in obtaining the records should be

entitled to recover attorney fees. This commonsense provision promotes the purposes of the

Act. On the other hand, it would be absurd to construe the statute to forbid a government

body from disclosing certain records without a court order and then require it to pay the

applicant’s attorney fees in securing the court order.

With all due respect, the dissent misconstrues both the record and the majority opinion. The 1

effect of the trial court’s order of August 8, 2008, was to order the turnover of the grand jury

transcripts. Herrmann complied with that order and, therefore, it is a fait accompli. The issue of

providing the records to Taliani is moot. Herrmann does not attack the August 8 order and we do not

reverse that order. We discuss the basis of the pleadings because they are relevant to the January 22,

2009, order awarding attorney fees. In essence, the trial court got the right result on August 8 for the

wrong reason. It was only with respect to the January order awarding fees that it became important

that the trial court ordered the disclosure of the grand jury transcripts under the Act. That is, had the

trial court denied the award of attorney fees, there would have been nothing for Herrmann to appeal.

We do not raise an issue sua sponte as alleged by the dissent. Rather, we address an issue that

Herrmann has raised from the beginning. Once Herrmann had a court order requiring the disclosure

of the grand jury transcripts, except with respect to the attorney fees issue, it mattered not to him

whether the order was issued pursuant to the Code, the Act, or any other statute. We address the

propriety of the Act count now because it goes to the very heart of the attorney fees issue and the

January 22, 2009, order which Herrmann appeals. Contrary to the dissent’s assertion, this opinion

reverses the January 2009 order awarding fees and only that order.

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¶ 16 We hold that, as a matter of law, the Act is not the proper vehicle for obtaining grand jury

transcripts. As Herrmann originally advised Taliani, disclosure of grand jury transcripts is

governed by section 112-6(c)(3). 725 ILCS 5/112-6(c)(3) (West 2008). The order of the trial

court awarding fees to Taliani is reversed. Given our resolution of this issue, we need not

address Taliani’s cross-appeal. Our holding that Taliani is not entitled to any fees renders the

fees on fees issue moot.

¶ 17 For the foregoing reasons, the judgment of the circuit court of Bureau County is reversed

and vacated with regard to the granting of attorney fees.

¶ 18 Reversed and vacated in part.

¶ 19 JUSTICE LYTTON, dissenting:

¶ 20 I dissent. The issue decided by the majority was never raised in the trial court or on

appeal. The only issue on appeal was the attorney fees award. Thus, the order granting

Taliani’s Freedom of Information Act (FOIA) complaint is not at issue in this appeal. This

court should be reviewing the only issue properly before it, which is the trial court’s attorney

fees award. I would affirm the trial court’s award of attorney fees to Taliani but remand to

determine the proper amount of fees, including fees on fees.

¶ 21 I

¶ 22 Illinois Supreme Court Rule 303(b)(2) provides that a notice of appeal “shall specify the

judgment or part thereof or other orders appealed from and the relief sought from the

reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff. June 4, 2008). Pursuant to Rule 303(b)(2),

when an appeal is taken from a specified judgment, the appellate court acquires no

jurisdiction to review other judgments or parts of judgments not specified or inferred from

the notice of appeal. Neiman v. Economy Preferred Insurance Co., 357 Ill. App. 3d 786, 790

(2005). Where a notice of appeal does not mention a specific order, the appellate court lacks

jurisdiction to review that order. See id. at 791.

¶ 23 Issues not raised in the trial court are forfeited on appeal. Rojas Concrete, Inc. v. Flood

Testing Laboratories, Inc., 406 Ill. App. 3d 477, 482 (2010). Similarly, all arguments not

raised in an opening appellate brief are forfeited. Jordan v. Civil Service Comm’n, 246 Ill.

App. 3d 1047, 1048 (1993).

¶ 24 It is improper for courts of review to raise issues sua sponte. Our supreme court

explained: “Illinoislaw is well settled that *** ‘a reviewing court should not normally search

the record for unargued and unbriefed reasons to reverse a trial court judgment.’ ” (Emphasis

omitted.) People v. Givens, 237 Ill. 2d 311, 323 (2010) (quoting Saldana v. Wirtz Cartage

Co., 74 Ill. 2d 379, 386 (1978)). The United States Supreme Court has articulated the reasons

for this policy:

“In our adversary system, in both civil and criminal cases, in the first instance and on

appeal, we follow the principle of party presentation. That is, we rely on the parties to

frame the issues for decision and assign to courts the role of neutral arbiter of matters the

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parties present. *** [A]s a general rule, ‘[o]ur adversary system is designed around the

premise that the parties know what is best for them, and are responsible for advancing

the facts and arguments entitled them to relief.’ [Citation.] As cogently explained:

‘[Courts] do not, or should not, sally forth each day looking for wrongs to right. We

wait for cases to come to us, and when they do we normally decide only questions

presented by the parties. Counsel almost always know a great deal more about their

cases than we do.’ [Citation.]” Greenlaw v. United States, 554 U.S. 237, 243-44

(2008).

¶ 25 Here, Taliani filed a FOIA request to obtain his grand jury transcripts. Herrmann denied

Taliani’s request with a letter stating: 

“That Grand Jury Transcript was provided to your attorney prior to trial. You should

contact him to receive a Grand Jury Transcript if you do not have it.

725 ILCS 5/12-6 prohibits any further disclosure of the Grand JuryTranscript to you

or anyone else.” 

Herrmann never asserted that the transcripts were exempt from FOIA, as he was required to

do upon denial of Taliani’s FOIA request. See Illinois Education Ass’n v. Illinois State Board

of Education, 204 Ill. 2d 456, 463-64 (2003) (when a public body receives a request for

information under FOIA, it must comply with that request or provide written notice

specifying the particular exemption, set forth in section 7 of FOIA, claimed to authorize the

denial).

¶ 26 Taliani filed a complaint for declaratory judgment and injunctive relief, alleging that

Herrmann violated FOIA. Herrmann filed a motion to dismiss the complaint, alleging that

the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/112-6(b) (West 2008))

prohibited disclosure of Taliani’s grand jurytranscripts. Again, Herrmann never asserted that

the transcripts were exempt from FOIA. Thereafter, Taliani filed a motion for judgment on

the pleadings. On August 8, 2008, the trial court granted Taliani’s motion and entered an

order granting Taliani the relief he requested in his complaint. On January 22, 2009, the trial

court entered an order granting Taliani attorney fees.

¶ 27 A. Notice of Appeal

¶ 28 Herrmann filed a notice of appeal, which provided:

“Patrick Herrmann *** hereby appeals the order *** entered on January 22, 2009

awarding attorney’s fees in the amount of $9,361.62. The appellant seeks the reversal of

the order entered January 22, 2009 awarding the attorney’s fees to the plaintiff, appellee,

Steven Taliani.”

The notice of appeal made no reference to the trial court’s August 8, 2008, order granting

Taliani judgment on his FOIA complaint nor did it seek reversal of that order, which did not

become appealable until the trial court ruled on the attorney fee request. See Hamer v. Lentz,

155 Ill. App. 3d 692, 695 (1987). Since the notice of appeal did not mention the August 8,

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2008, order, we lack jurisdiction to consider it.2

¶ 29 B. Trial and Appeal Record

¶ 30 Additionally, it was improper for the majority to rule that FOIA was “not the proper

vehicle for obtaining grand jurytranscripts” because that issue was neverraised byHerrmann

in the trial court or on appeal. Supra ¶ 17. In the trial court, Herrmann argued that the Code

did not authorize disclosure of the transcripts. He never argued that FOIA did not apply to

Taliani’s request for his grand jury transcripts or that the transcripts were exempt from

disclosure under FOIA. Thus, Herrmann forfeited review of the trial court’s decision that

FOIA required disclosure of the transcripts. See Rojas Concrete, Inc., 406 Ill. App. 3d at 482.

¶ 31 Furthermore, on appeal, Herrmann did not challenge the trial court’s order granting

Taliani’s motion for judgment on the pleadings. The only “Issue[ ] Presented for Review”

by Herrmann in his opening brief was “[w]hether the trial court erred in awarding attorney

fees.” Because the sole issue Herrmann presented to this court was the propriety of the

attorneyfees award, the trial court’s decision granting judgment to Taliani in the FOIA action

is not reviewable by this court. See Jordan, 246 Ill. App. 3d at 1048.

¶ 32 Here, the majority sua sponte raised the issue of whether Taliani’s underlying FOIA

complaint was proper. Because that issue was not raised by the parties in the trial court or

on appeal, the majority should not have decided it. See Givens, 237 Ill. 2d at 323.

¶ 33 II

¶ 34 Though I need only speak to the majority’s opinion, I think the substantive issues, the

only issues, raised by the parties should be addressed, that is (1) whether the trial court

properly granted attorney fees to Taliani’s attorney, and (2) whether Taliani’s attorney was

entitled to fees on fees. I would answer both questions in the affirmative.

¶ 35 A. Entitlement to Fees

¶ 36 The only prerequisite to an award of attorney fees under FOIA is that the party seeking

the information “substantially prevail[ ] in a proceeding.” 5 ILCS 140/11(i) (West 2008);

Callinan v. Prisoner Review Board, 371 Ill. App. 3d 272, 277 (2007). In order to

substantially prevail in a FOIA claim, the plaintiff must demonstrate that (1) the prosecution

of the action could reasonably be regarded as necessary to obtain the information, and (2) the

action substantially caused delivery of the information. People ex rel. Ulrich v. Stukel, 294

Ill. App. 3d 193, 202 (1997).

¶ 37 In determining a reasonable fee, the court may consider the fee arrangement between the

 The majority contend that they are not reviewing the trial court’s August 8, 2008, order. 2

However, it is the propriety of that order that leads the majority to conclude that no attorney fees

should have been allowed in this case. The majority find that attorney fees were improper because

the transcripts fall within an exception under FOIA. The problem is that Herrmann never raised that

issue at trial or appeal. Thus, it should not be decided by this court.

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attorney and the client. Renken v. Northern Illinois Water Co., 191 Ill. App. 3d 744, 751

(1989). Other factors to consider are: (1) the skill and standing of the attorney; (2) the nature

of the cause and the novelty and difficulty of the issue; (3) the amount and the importance

of the subject matter; (4) the degree of responsibility involved in managing the case; (5) the

time and labor required; (6) the usual and customary rate charged in the community; and (7)

the benefit to the client. Blankenship v. Dialist International Corp., 209 Ill. App. 3d 920, 927

(1991). A trial court is free to use its own knowledge and experience to evaluate the attorney

fees sought. McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill. App. 3d 104,

113 (2010).

¶ 38 The record shows that in 2007, Taliani requested his grand jury transcripts from

Herrmann through a FOIA request. Herrmann refused to turn over the transcripts to Taliani.

Only after Taliani instituted his FOIA action and the trial court ordered Herrmann to provide

the transcripts did Herrmann finally turn them over. Taliani substantially prevailed in his

FOIA action. See Stukel, 294 Ill. App. 3d at 202.

¶ 39 Taliani’s attorney, Caplan, provided sufficient information supporting his request for

attorney fees. Caplan’s fee petition contained a detailed list of the services Caplan performed

on Taliani’s behalf, the time spent on those services and the hourly rate he charged for his

work. Caplan also testified to his time and work product. Taliani’s expert testified to the

amount of work Caplan performed in the case, Caplan’s experience, and the customary rate

charged by attorneys in the community. The trial court considered this evidence to determine

the fee’s reasonableness, applying the Blankenship factors. See Blankenship, 209 Ill. App.

3d at 927. Additionally, the court properly relied upon its own knowledge and experience in

determining the fees. See McHenry Savings Bank, 399 Ill. App. 3d at 113. The trial court

properly determined that Taliani was entitled to attorney fees.

¶ 40 B. Fees on Fees

¶ 41 The question of whether the Illinois FOIA’s provision for attorney fees includes fees on

fees appears to be a matter of first impression. However, Illinois courts have permitted fees

on fees requests in other contexts. See Rackow v. Human Rights Comm’n, 152 Ill. App. 3d

1046, 1064 (1987) (allowing fees on fees under Human Rights Act); In re Estate of Marks,

74 Ill. App. 3d 599 (1979) (trial court approved attorney fees for time spent preparing

petition for attorney fees in contested probate case). We agree with this concept and believe

it should apply in FOIA cases.

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¶ 42 Courts have allowed fees on fees under similar state statutes, federal FOIA, and other 3 4

federal fee-shifting statutes. The denial of fees on fees attenuates the practical effect and the 5

intent of fee-shifting statutes. See In re Southern California Sunbelt Developers, Inc., 608

F.3d at 463 (“[I]t would be inconsistent to dilute a fees award by refusing to compensate

attorneys for the time they reasonably spent in establishing their rightful claim to the fee.”

(Internal quotation marks omitted)).

¶ 43 The primary purpose of the Illinois FOIA’s attorney fee provision is “to prevent the

sometimes insurmountable barriers presented byattorneyfees from hindering an individual’s

request for information and from enabling the government to escape compliance with the

law.” Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 786 (1999). The

purpose and intent of the Illinois FOIA’s attorney fees provision can only be fully

accomplished if fees on fees are allowed. I would find that the trial court erred in denying

Taliani’s request for fees on fees.

See Courier News v. Hunterdon County Prosecutor’s Office, 876 A.2d 806, 811 (N.J.

3

Super. Ct. App. Div. 2005) (time spent preparing a fee petition compensable under New Jersey’s

Open Records Act (N.J. Stat. Ann. § 47:1-6 (West 2002))); Hollen v. Hathaway Electric, Inc., 584

S.E.2d 523 (W. Va. 2003) (plaintiff entitled to fees for time spent preparing and arguing an attorney

fees petition under the West Virginia Wage Payment and Collection Act (W. Va. Code § 25-5-1 et

seq. (2000))).

See Ralph Hoar & Associates v. National Highway Traffic Safety Administration, 985 F. 4

Supp. 1 (D.D.C. 1997).

“ ‘In statutory fee cases, federal courts *** have uniformly held that time spent in 5

establishing the entitlement to and amount of the fee is compensable.’ [Citation.]” In re Southern

California Sunbelt Developers, Inc., 608 F.3d 456, 463 (9th Cir. 2010); see, e.g., American

Federation of Government Employees, AFL-CIO, Local 3882 v. Federal Labor Relations Authority,

994 F.2d 20 (D.C. Cir. 1993) (Back Pay Act); Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th

Cir. 1986) (Truth-in-Lending Act, Fair Credit Reporting Act and Fair Debt Collections Practices

Act); Sierra Club v. Environmental Protection Agency, 769 F.2d 796 (D.C. Cir. 1985) (Clean Air

Act); Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897 (3d Cir. 1985) (Civil

Rights Attorney’s Fees Awards Act of 1976); In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir.

1985) (Bankruptcy Reform Act); Prandini v. National Tea Co., 585 F.2d 47 (3d Cir. 1978) (Civil

Rights Act of 1964); AmericanCanoe Ass’n v. United States Environmental Protection Agency, 138

F. Supp. 2d 722 (E.D. Va. 2001) (Clean Water Act and Endangered Species Act).

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