¶ 30 We begin with a brief history of the attorney-fee provision of the FOIA and the relevant case law. One of the first cases to address section 11(i) was People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 228 Ill.Dec. 447, 689 N.E.2d 319 (1997). At the time, section 11(i) provided that if a “ ‘person seeking the right to inspect or receive a copy of a public record substantially prevails in a proceeding under this Section, the court may award such person reasonable attorneys' fees and costs.’ ”
Hence, the decision to award attorney fees under the Act is left to the discretion of the circuit court. See People ex rel. Ulrich v. Stukel, 294 Ill. App.3d 193, 202, 689 N.E.2d 319, 325 (1997). The circuit court's discretion will only be disturbed if there was an abuse of discretion.
In addition, several Illinois cases interpreted section 11(i) prior to the 2010 amendment. ¶ 14 In People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 201–02, 228 Ill.Dec. 447, 689 N.E.2d 319 (1997), the reviewing court observed that FOIA's federal counterpart also required the plaintiff to have “substantially prevailed” in order to be awarded attorney fees. The court found that the attorney fee provision required that (1) filing the action could be reasonably be regarded as a necessary step to obtain the information sought; (2) filing the action was a substantial cause of the government's delivery of the information; and (3) the government had no reasonable basis in law to withhold the requested records.
Here, the intent of the Act is to "encourage[] requestors to seek judicial relief in the event of an unlawful withholding of records by government agencies." People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 203, 689 N.E.2d 319, 326 (1998). The primary purpose of the Act's attorney fee provision "is to prevent the sometimes insurmountable barriers presented by attorney fees from hindering an individual's request for information and from enabling the government to escape compliance with the law."
As relevant here, payment of fees and information regarding fees are generally not privileged. See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 203-04 (Ill. App. Ct. 1997) ("It is well-recognized that information regarding a client's fees generally is not a "confidential communication" between an attorney and client, and thus is not protected by the attorney client privilege.") (citing Matter of Grand Jury Proceeding, Cherney, 898 F.2d 565, 567 (7th Cir. 1990)); Stopka v. Am. Family Mut. Ins. Co., Inc., 816 F. Supp. 2d 516, 532 (N.D. Ill. 2011) ("In the absence of any evidence of legal advice, documents relating to the payment of fees are only incidental to the attorney-client relationship.") Nonetheless, confidential communications relating to legal advice arising in connection with billing matters may be subject to protection. Hill v. Metro. Prop. & Cas. Co., No. 1-10-1588, 2011 WL 10069435, at *3 (Ill. App. Ct. May 12, 2011) ("[C]onfidential communications relating to legal advice will naturally arise from a retainer agreement or perhaps during negotiations in the creation of the agreement"); see also Matter of Witnesses Before the Special 1980 Grand
It is a "well-recognized" concept in Illinois that information about fee payments from client to attorney are incidental to the attorney-client relationship and not subject to the privilege. People ex rel. Ulrich v. Stukel, 689 N.E.2d 319, 327 (Ill. App. 1st Dist. 1998) (quoting Matter of Grand Jury Proc., Cherney, 898 F.2d 565, 567 (7th Cir. 1990)). This rationale logically extends to retainer agreements between attorneys and their clients.
Id. (citing People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 202-03, 689 N.E.2d 319 (1997), and Duncan Publishing, Inc. v. City of Chicago, 304 Ill.App.3d 778, 787, 709 N.E.2d 1281 (1999)).
Respondents insist "[i]t is unnecessary for [petitioners] to see the actual bills detailing services provided by [the executor's] attorneys while the parties are still litigating the Petition to Remove," for disclosure of those bills, with their detailed descriptions of the attorney's services, would violate the attorney-client privilege. See People ex rel. Ulrich v. Stukel, 294 Ill.App.3d 193, 201, 228 Ill.Dec. 447, 689 N.E.2d 319 (1997).¶ 56 If, as respondents contend, it is unnecessary for petitioners to see the billing statements and if it is enough for them to know merely the amount of attorney fees paid out of the estate, why were the billing statements generated in the first place? Why do law firms send billing statements to their clients, detailing the services provided, instead of just sending their clients a piece of paper saying simply, "Amount Due: X dollars?
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, 228 Ill.Dec. 447, 689 N.E.2d 319 (1997). ¶ 37 In determining a reasonable fee, the court may consider the fee arrangement between the attorney and the client.
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 attorney and the client.