State can deny FOIA'd documents under new law even though law changed after request filed: Panel

By Jonathan Bilyk | Apr 17, 2017

Illinois state regulators can use a state law shielding certain public records from disclosure to prevent a business owner from obtaining public records related to a regulatory complaint filed against his business, even though the state law was enacted after the business owner had tried, failed and then sued to force the regulators to give him the documents.

On April 14, a divided three-justice panel of the Illinois First District Appellate Court ruled 2-1 in favor of the Illinois Department of Financial and Professional Regulation in the agency’s ongoing Freedom of Information dispute with plaintiff Christopher Perry, of Chicago-based structural engineering firm Perry & Associates LLC.

The ruling upheld the determination of Cook County Circuit Judge Rita Novak, who had also sided with the IDFPR’s argument a 2015 amendment to the Illinois Freedom of Information Act (FOIA) could be used to shut down Perry’s lawsuit, which he filed in 2014, aimed at forcing the state to hand over a copy of the complaint filed against his business license.

Justice Mary K. Rochford authored the majority opinion, with Justice Joy V. Cunningham concurring.

Justice Mathias W. Delort dissented.

“This case … presents the issue of whether the General Assembly can thwart a FOIA request by passing a new law exempting those records from disclosure, after the records were denied by the agency holding the records and while the matter is in litigation,” Delort wrote.

The case had first landed in Cook County Circuit Court in 2014, after the IDFPR had denied Perry’s document request related to an investigation the state agency launched against Perry.

At some point before 2013, Perry had appeared at an administrative hearing conducted by the agency in connection with a complaint lodged with them against Perry’s business license. At that time, the state would not tell Perry what precisely the case involved, or who had accused him of wrongdoing, beyond “a vague insinuation that he had ‘done wrong.’”

The matter was eventually concluded in January 2013, with no adverse action taken against him. However, the state told Perry in a letter the matter would remain part of his record and could be used against him should another complaint be lodged against him in the future.

Perry then filed a FOIA request with the agency, demanding to see the complaint.

The state refused, however, even after Perry offered to allow them to issue a version of the complaint redacting the name of the accuser or those otherwise identified and other confidential information that could be used to identify the accuser.

Perry then filed suit in Cook County court.

Initially, Judge Novak granted Perry a partial win, by ordering the release of certain exhibits related to the complaint, which had been purportedly already released to a third party.

However, both sides asked the judge to reconsider the ruling – Perry, arguing the judge had erred in not also releasing the redacted complaint, and the state arguing the judge should not have released the exhibits.

Judge Novak then denied Perry’s request outright, citing the 2015 FOIA amendment, known as Section 2015-117, which the state argued barred the release of any documents related to any complaint lodged against anyone’s Illinois professional license.

Perry then appealed, arguing the 2015 change to the law should not be applied retroactively to his request, filed in 2013, and his lawsuit, filed in 2014.

The two justices in the majority, however, said Illinois case law is on the side of the state, as the amendment “only exempts the complaint and exhibits requested by plaintiffs from present or future disclosure, and does not otherwise impair plaintiffs’ rights with respect to any completed transactions made in reliance on any prior law” and therefore can be applied retroactively.

The majority also cited the 2014 First Appellate District decision in Kalven v Chicago, which instructed courts to apply the law in effect when ruling on a motion for reconsideration.

In his dissent, however, Delort said the majority’s analysis of the case fell short. And he particularly noted his concerns with the Kalven decision, as he had served on the appellate panel hearing that case, and had disagreed at that time with the conclusion pertaining to the reconsideration motions.

He pointed to his special concurrence in Kalven, in which he wrote: “I would instead find that the plaintiff’s rights to the records vested when he made the request and could not later be rescinded by legislative action. To hold otherwise would encourage governmental bodies to stall FOIA responses until some future time when the legislature might amend the statute in a favorable manner, or to actively lobby for an amendment which shields particular embarrassing records from disclosure.”

And Delort said Kalven may be flawed now, as the Illinois Supreme Court since ruled in the 2015 case People ex rel. Madigan v. J.T. Einoder, Inc., “that a new law cannot apply retrospectively where it would ‘have a retroactive impact or result in inequitable consequences.’”

“Here, the Department eventually denied the plaintiffs’ request, requiring the plaintiffs to seek judicial relief to vindicate their rights under FOIA,” Delort wrote. “Under these facts, applying section 2015-117 of the Code retroactively would, indeed, have ‘inequitable consequences.’”

According to Cook County court records, Perry was represented by attorney John L. Ladle Jr., of Chicago.

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Illinois Attorney General Illinois Department of Financial and Professional Regualtion Illinois First District Appellate Court Illinois Supreme Court John L. Ladle P.C.

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