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Monday, April 1, 2013

PAC Advisory Opinion Unenforceable and Not Reviewable

Illinois law authorizes the Public Access Counselor (PAC) office of the Attorney General to issue binding or advisory opinions in response to a request for review of a public body's actions under the Open Meetings Act or Freedom of Information Act.  Binding opinions are subject to review or appeal to the circuit court.  The statute is silent as to whether an advisory opinion issued by the PAC could similarly be reviewed or appealed to the circuit court.  The Fourth District Appellate Court recently held that they are not reviewable in Brown v. Grosskopf, 2013 IL App (4th) 120402, holding that a non-binding opinion of the PAC office is "merely the Attorney General's advisory and unenforceable statement on the matter" and "has no legal effect." 
In this case, the the Livingston County States Attorney filed a declaratory judgment action against the Attorney General to appeal an advisory opinion by the PAC that the States Attorney's office was a "public body" subject to FOIA. The Attorney General filed a motion to dismiss, alleging that there was no legal controversy because nonbinding opinions are nonreviewable.  The trial court agreed, dismissing the case.  The appellate court affirmed, finding that state statute did not provide for any appeal or review of nonbinding opinions issued by the PAC office.  The court determined that since the advisory opinion has no legal effect and cannot be enforced by the PAC, it cannot be the basis for a lawsuit or appeal.
This decision is at odds with an earlier Cook County Circuit Court decision that held that nonbinding opinions of the PAC are subject to administrative review in the circuit court. See Garlick v. OPRF, et al. 11 CH 7587 (July 17, 2012).   That case was previously reported on the blog
Post Authored by Julie Tappendorf, Ancel Glink


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