Editor's note: This article has been revised to clarify the identity of the legal counsel representing a plaintiff in this legal action.
The Illinois Supreme Court has overruled lower court judges who had decided an Illinois state agency could wait until after a law is changed to use the change in the law to deny a public information request submitted before the law changed.
The state high court ruled the state legislature intended for the disclosure law in place when a Freedom of Information Act request is submitted, must apply, even if, while the request is pending, the law should change, making the requested information exempt from disclosure.
Justice Rita Garman
The May 24 opinion was authored by Justice Rita Garman, with concurrence from Chief Justice Lloyd Karmeier and Justices Thomas Kilbride, Charles Freeman, Anne Burke, Mary Jane Theis and Robert Thomas. The ruling favored Christopher Perry and the Institute for Justice in separate actions they brought in Cook County Circuit Court against the Illinois Department of Financial and Professional Regulation.
Perry is an engineer with Perry & Associates, a Chicago structural engineering firm. The Institute for Justice is a libertarian public interest law firm based in Arlington, Va.
Perry submitted a Freedom of Information Act request to the Department for information about a complaint lodged against his license. He said it was fine if the Department redacted information from the material, which could identify the person who made the complaint. However, the Department said nothing could be released, redacted or not.
The Institute submitted a FOIA request to the Department for disclosure of complaints against licensed cosmetologists and hair braiders from 2011 to 2013. The Department also refused the request on confidentiality grounds.
Perry and the Institute took action in circuit court for injunctions to force the Department to satisfy the FOIA requests. However, while their cases were pending, the Illinois General Assembly amended the Department of Professional Regulation Law – in Perry's case – and the Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Act – in the Institute's case. These changes tightened the rules on confidentiality, with the Department arguing the amendments barred any disclosure.
Associate Judge Rita Novak, who handled Perry's action, agreed with the Department, but Judge Rodolfo Garcia, handling the Institute's action, sided with the Institute. Perry and the Department then appealed to Illinois First District Appellate Court.
The appellate court ruled 2-1 in the Department's favor in both cases, reasoning Perry and the Institute “sought injunctive relief, which is a prospective form of relief for which the circuit court must apply the law in effect at the time of its decision.”
Perry and the Institute then traveled to the state high court, where their cases were consolidated. They contended the amendments should not be retroactively applied, because doing so would “strip them” of their “settled expectations regarding the law at the time of the requests.”
The Department maintained the law in effect at the time a FOIA decision is to be made, should prevail, because “FOIA determines present rights, not past rights.”
The state supreme court agreed with Perry and the Institute, finding the legislature’s “clear intent” was for the amendments not to be retroactive.
“If the legislature has made clear that a change in law is not to apply to pending causes of action, then it follows that, in select cases, a public official is not legally constrained by a new provision,” Justice Garman wrote.
As a consequence, Garman pointed out any worry the high court’s position would make the state disclose documents, which the legislature wants confidential, is “baseless.”
The Supreme Court remanded Perry’s case to circuit court for further proceedings and reinstated the circuit court decision for the Institute.
Perry has been represented by attorney Gregory F. Ladle of the Law Offices of John L. Ladle PC, of Chicago.
The Institute has been represented by the Chicago firm of Kirkland & Ellis.
The Department of Financial and Professional Regulation has been represented by Illinois Attorney General Lisa Madigan's office.
The case drew wide interest from civil liberties, free speech and government accountability groups. A number of them filed amicus curiae, or friend-of-the-court briefs, in the case, including: American Civil Liberties Union of Illinois; Better Government Association; Illinois Policy Institute; Edgar County Watchdogs; Reporters Committee for Freedom of the Press; Chicago Appleseed Fund for Justice; Chicago Council of Lawyers; Illinois Press Association; and Citizen Advocacy Center.