ORDER 20 yc HoON81-210 UNITED STATES OF AMERICA, STATE OF ILLINOIS, COUNTY OF DU PAGE DGAR D PAL IN THE CIRCUIT COURT OF THE FIGHTRENTH JUDICIAL CIRCUIT. 2022C 11000181 CASE NUMUER 23 Jul21 PM 03:10 CLERK OF THE ISTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS “vs. CITY OF ET AL ORDER Ir comes before the eou for ruling after bearing on Plaintifs Combined Mersorzndum of Law in Support of His Petition for Attoeneys* sition to Defendants’ Motion to Dismiss (“Plant's Memorandun"), Plaintill Edgar Pal (Pal) filed a fore 2023, Count I alleged a violation of the Open Meeting Act (*OMA") and Counts H-IV al violations of she Freedom: of Information of Act (“FOIA In his eomplait, Pal prayed For multiple items of reli ineluding: Frees and Costs and in Op «count complaint on Sepremb Declare that CITY COUNCIL violated OMA; Enjoin CITY COUNCIL from properly dis sing matter Order CITY COUNCIL to produ the recordings and minutes of the closed session; Declare that CITY of ELMHURST violated FOIA; Order 1 TY of ELMHURST to conduet an adequate search for the requested records Order CITY OF ELMHURST to produce th scons Bajoin CITY of ELMHURST fiom withholding non-exempt publi records under FOIA; Osde Defencdantsto pay civil pensltes pursuant to 5 ILCS 140/116) Award Plaintiff's reasonable atiorneys’ fees and costs; and Award such other elie the Court considers appropiate The substance ofthe allegations relate to » mecting beld on November 23, 2020 in which the City Couneil went into closed session when discussing a conditional use permit previously granted to Elmhurst Extended Care Center, The court previously denied Def radars’ City ‘CANDICE ADAMS, CLERK OF THE INTH JUDICIAL WILEATON, ILLINOIS 60187-0707 Visit mpyinewwi2fle neve to validate this document. Vslidation 1D: DP-072 C CIRCUIT COURT © Paget of -OsIu-USi34ORDER mnacuo0ols1-210 of Elmhurst City") and City of Flmhurst City Council (“City Counes!”) Motion to Distniss Complaint Pursuant to 735 ICS 5/2-619.1 (Motion to Dismiss”) filed on November 4, 2022 as moot on Mazch 21, 202 forthe reasons articulated in opch court. At the hearing om ‘the Motion to Dismiss counse! for Pal argued the motion should be dismissed as she issues were moot with the exception of the cequest for storey's fees and then withdrew all remaising prayers for relie that had not alveady been satisfied, ie. the production o! the had the opportunity to declare, whether the city of Elmhurst violated the FOIA the Plait requested records, ‘Therefore, this court never declared, fr the OMA as those prayers for relief were withérawn b Ate the denial af the Motion to Dismiss, Plaintif fied 2 Statement of Uncostroverted Pacts Envitling Plain ta Reasonable Attorneys Fees aid Costs (“Statement of Facts”) in support oF his request for fees. Defendants then fled ¢ Response in Opposition to Plaintf?'s Stateinent of Uncontroverted Facts Entitling Plaintitto Reasonable Attorneys" Fees and Costs whiels included an affidavit fom the City of Flmhurst Deputy Clerk und the Mayor ofthe City of Flmburst, The court finds hat with the addition of these two pleadings there is sufficient factual record for the court to make a determination as wo wither Plaintiff has established the four factors requited to establish eligibility for atomey’s fees While the awarding of determine whether the awarding of fes is proper and the application offsets to this tests a factual determination. Pal's underlying ‘complaint was not verified, nor was his Memorandam, While Pa atached a Declaration ta his Memorandum, si declaration was not ‘consistent with Rule 191 in setting forth the foundation for exhibits he referenced, Moreover, Pl has failed to provide affidavits or vetified declarations as to many ofthe exhibits i his Complain pursuant to FOIA does not require a court order, the controlling case law sets forth a four-part test to Plaintiff ass this court to “take judicial notice of the Mayors statements, the press release and che fact thatthe Mayor was not provided ‘ny indication that te deFendants would decide to release the Records absent this ligation.” Plaitll"s Statement of Faers,p. 2. Dlixois Rule of Dvidence 201 govems the judicial notice of adjudicaive facts which are defined as “one not subject to reasonable dispute in that itis either (1) generally known within the terstorial jurisdietion ofthe tral cout of (2) capable of accurate and ready detertination by Fesort to sources whose accuracy cunt reasonably be questioned.” TL, R. Evid. 201(b). Ie is mandatory forthe eourt to take judicial notice ifa party makes a request to do so and the party supplied the couct wilh the necessary information, fd. at 201(a). As relates to the press release atzehed to Pal’s declaration, he has filed to provide the requisite information ta take judicial notice ofthe document The declaration indicates thatthe document "isu tue and correct copy” of the press release issued by the Cuy. However, the declaration fails to include any information as to how Pal obtained said document or any information about the soutees From which it was obtained to determine whether those sources are one whose 1 to take judicial not of the press rclease is denied, Pal attested tothe fact that he received no contac: from the City following the AG's don of the Cys equest forzecansideration, That statement was not refuted in ether affidavit offered by Defendants, Further, both parties discussed and argued the Mayor's comments at the City Couneil meeting of September 6, 2022. As such, there is no need to take judicial notice of these one, the re not reasonably be questio As discussed above, she genosis of this lawsuit was a meeting by the City Couneil on November 25, 2020 in which the Couneil went ints in good faith piven Uhe issue was being discussed atthe instant meeting. The Mayor went on so rote that they continne n recording Irors the Novenber 23, 2020 me meeting, they voted to approve ionod whether the deision (fk 1 believe that we appropriately entered into executive session under the litigation exception We consiesed defending that lawsuit to prove our point and we talked about it in executive session about whether we should defend that Iasesuit and in the ead we devided the attozaey's fees that would be incurreé would not justify the effort. On September 8, 202: Defendants produced the requested records. Pal notes that no one from the City eontaeted him after Uke AG desied the City's request to reconsider the July 5, 2022 decision, Pal further indicated tha, prior tothe Filing of the laws, no ane from ehe City oF the City Coun save ht any indication that they were going to “acquiesce” to the AG's decision and release the records, Under the 2010 amendments to section 1 1() of FOUA “a trial eourt must award reasonable attorney's fees and eosts to a plain who prevails ina FOIA action.” Edgar County Watchdogs v. Joliet Township, 2023 Il, App. 3d 2109520, 923 (2023). To prevail uader the current version ofthe FOIA, four reguiremerts must be met: “(1) a lawsuit against the public estiy, (2) the dacuent’s production, 3) ‘he lawsuit (o have eaused the production of the dacumtents, and (4) the lawsuit o have boon reasonably necessary to ebtain those documents.” fd. However, the court went oto note that std “amendments were not “intended to open the floodgates for any li neritorious oF not ~ to receive afore tncrtoriows FOIC requests.” fd. at {24. Another woal ofthe fee-shifting provision was to avoid unnecessary litigation, Donley ». City of eld, 2022 M1 App (Ath) 210378 (2022), 450 s fees” but rather cellect the legislature's intent 1 “be more favorable to individuals who make Spring Any store's fees as it relates to the allegations concerning a violation of OMA contained in Count 1 of Pal’s complaint are denied ‘With respect to civil action brought under OMA, a “eourt ray assess against a party reasonable atlorney’s Fes sneurced by the ater party who substantially prevails in an action.” $ ILCS 120/3(¢), The amendments discussed above are not applicable to the eligibility of atomey’s fees as it relates to OMA violations. And as discussed above, Pal withdrew al allegations related to the OMA violations and therefore there is no court order indiealing that Pal sunstamtially prevailed which would allow him t recaver attorney's Fes, Turning now to the determination of eligibility for atomney’s fees as it relates to the POA allegations contained within Counts HIN With respeet 1 the firs sno dispute that the lawsuit was against a public entity and the Sdocunsents were produced. Pal must also demonstrate the remaining two clersents- the lnssuit to have caused the production ofthe documents and the lawsuit to have been reesonably necessary to obian those documents. Plaintif asserts that Pal is entitled to reasonable atiomey’s fees because Defendants only produced the records because ofthis lawsuit, Defendants argue thatthe City prepaged the solutions in advance of the meeting which releots an indication to release the records. However, there is nothing in the record that suggests these the lawsuit thatthe City intended to comply with the AG's dovision, Even if the Defesdnts had provided these two resolutions, ane cannot determine from the resolutions 19 elements of the foursprong tes, th solutions were provided 'o Pal or that he was informed prior 1 his Ging o lhsmselves what portion of the meeting minutes would be released and not released or what portion of the verbatim recording would he made available for inspection. Without tha inforrsation, 13s impossible o determine thatthe City was going, to rslease the minutesirccordings at issue. In his August 5, 2022 letter to Pal the Mayor das no indicate thatthe City Coun was going to vote 10 release the records or that he would encourage the Council todo so, He sinnply advised thatthe issue of releasing the records would be considered. Finally and most significantly, he Mayor's statements a the City Couneil meeting indicate that the Defendants continued 19 beliove they were corre in going into elosed session snd that they released the records fo avail the atlomey’s fees fom the litigation CANDICE ADAMS, CLERK OF TIE ISTH TUDICIAT, CIRCU WIILATON, ILLINOIS 60187-0707 Visit hips aie nevis to validate tis document, Validation ID: DP-U72 CouRTS Page dat osto-0st34‘onda I 2022cH000181-210 Based om these facts, itis document sar the lawsuit caused the production af the docunients andthe lawsuit was ressonably necessary to obtain the Thotefare, Pal’s Petition for Attorney’s Fees and Costs is granted, Plaintiffs given teave to supplement is previously filed Attomn then given fourteen (14) Fees time entries for any additonal tine entries within fourteen (14) days of this court order, Defendants are clays to file any ojctions to the fees sought. A court date wilt follow Submitted by: JUDGE ANNE THERIEAU HAYES DuPage Attomey Number sagas nerds OER RAAY Tur Validation 1D : DP-07212023-0310-05 134 Attomey for ANNE THERIFAUTIAVES Address: City/StaterZin: Phone number: Date: o7r21/2023, CANDICE ADAMS, CLERK OF THE INTH JUDICIAL CIRCUIT COURT © Pages of WHEATON, ILLINOIS 60187-0707 Visit nipvww file newdy to validate this doesent, Validation 1D: DP-07212023-08 10.0134