Chicago appeals panel has affirmed a Cook County judge’s decision, allowing the
city of Chicago to release subpoenaed records from a drug maker in accordance
with any Freedom of Information Act requests, saying public disclosure of the
material will not violate state laws protecting trade secrets.
March 31 ruling was authored by Justice Jesse Reyes, of the Illinois First
District Appellate Court, with concurrence from justices Robert Gordon and
Bertina Lampkin. The decision favored City Hall over Janssen Pharmaceuticals,
which is based in Raritan, N.J.
city started investigating Janssen several years ago, purportedly to see if the
drug manufacturer committed consumer fraud. The city suspected Janssen
allegedly hid the addictive properties of narcotics the company was marketing
to physicians and the public.
the investigation, the city obtained 114,230 documents from Janssen through
subpoena, with Janssen noting on the record the documents contained trade
secrets and other confidential business information. The city agreed to notify
Janssen if any party asked for the documents through the Freedom of Information
Act, so Janssen could try to head off the request. The city eventually lodged a
consumer fraud suit against Janssen and a number of other drug companies.
USA Today then filed a FOIA request with the city for copies of three Janssen
documents. The city told Janssen of the request and Janssen took court action
to block USA Today.
argued the documents were exempt from disclosure, because the state FOIA
prohibited release of trade secrets, and handing over the documents would make
it more difficult in the future for public bodies to induce parties to furnish
similar business documents. A "chilling effect" would set in,
according to Janssen.
County Judge Sanjay Taylor denied Janssen’s request and ordered the documents
be released to USA Today. Janssen asked Taylor to hold off on the release,
while Janssen took the matter to appellate court, but Taylor refused. Janssen
went ahead with the appeal for the sake of the remaining documents, which were
not tendered to USA Today, but would nevertheless be available for disclosure
via any future FOIA requests.
contended on appeal the False Claims chapter of Chicago’s municipal code, which
the city used in pursuing Janssen in court, should be considered “state law,”
because FOIA prohibits disclosure, if such disclosure breaches state law.
Specifically, Janssen pointed to the Illinois Administrative Procedure Act, as
prohibiting release of trade secrets.
maintained the ordinance is an “exercise of home rule power" by the city
and as a home rule unit, “Chicago has the same power as the State to legislate
[FOIA] exemptions,” so the ordinance amounts to a state law.
city responded the ordinance is not a state law and only the legislature
promulgates laws, while a home rule municipality promulgates ordinances. Consequently,
the ordinance does not bar disclosure, the city reasoned.
has failed to demonstrate how we can bypass the plain and ordinary
language" of the FOIA and "instead read into the statute that the
legislature intended that the words ‘State law’ include an ordinance,” Reyes
also found Janssen's "chilling effect" argument failed, because the
company did not show how disclosure would cause it "competitive harm"
or "even that the remaining documents are confidential."
has been represented by the Chicago firm of Sidley Austin.