Perry v. Dep't of Fin. & Prof'l Regulation

2018 IL 122349

106 N.E.3d 1016

Christopher J. PERRY et al., Appellants,

v.The DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, Appellee.

Institute for Justice, Appellant,

v.The Department of Financial and Professional Regulation, Appellee.

Docket Nos. 122349

122411 cons.

Supreme Court of Illinois.

Opinion filed May 24, 2018

Jeffery J. Lula, Haris Hadzimuratovic, Kyle L. Voils, and Brendan E. Ryan, of Kirkland & Ellis LLP, of Chicago, for appellant Institute for Justice.

Gregory F. Ladle, of John L. Ladle, P.C., of Chicago, for appellants Christopher J. Perry and Perry & Associates, LLC.

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Aaron T. Dozeman, Assistant Attorney General, of Chicago, of counsel), for appellee.

Jeffrey M. Schwab, Jacob H. Huebert, and James J. McQuaid, of Liberty Justice Center, of Chicago, for amici curiae Illinois Policy Institute et al.

Andrew D. Prins (pro hac vice), Elana Nightingale Dawson, and Genevieve P. Hoffman (pro hac vice), of Latham & Watkins LLP, of Washington, D.C., for amicus curiae Reporters Committee for Freedom of the Press.

Isaac Rabicoff and Kenneth Matuszewski, of Rabicoff Law LLC, of Chicago, for amici curiae American Civil Liberties Union of Illinois et al.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

¶ 1 In separate cases, both plaintiff-appellants, (1) Christopher J. Perry and Perry & Associates, LLC (collectively, Perry), and (2) the Institute for Justice (Institute), filed causes of action under section 11 of the Illinois Freedom of Information Act (FOIA) ( 5 ILCS 140/11 (West 2012) ) seeking the disclosure of certain information from the Department of Financial and Professional Regulation (Department). After the circuit court denied in part and granted in part Perry's motion for summary judgment, section 2105–117 of the Department of Professional Regulation Law took effect, which, if applicable, would exempt the type of information sought by Perry from disclosure. Pub. Act 99–227 (eff. Aug. 3, 2015) (adding 20 ILCS 2105/2105–117 ). Both Perry and the Department moved for reconsideration, and the circuit court applied section 2105–117 to the action, concluding that the information Perry sought was exempt from disclosure. The circuit court denied Perry's motion to reconsider, and the appellate court affirmed. Perry v. Department of Financial & Professional Regulation , 2017 IL App (1st) 161780, ¶ 48, 413 Ill.Dec. 329, 77 N.E.3d 1136.

¶ 2 During the pendency of the Institute's lawsuit in the circuit court, Public Act 98–911 became effective on January 1, 2015, adding section 4–24 to the Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Act of 1985 (Barber Act), which, if applicable, would exempt the type of information sought by the Institute from disclosure. Pub Act. 98–911 (eff. Jan. 1, 2015) (adding 225 ILCS 410/4–24 ). After the circuit court granted the Institute's motion for summary judgment and denied the Department's motion for summary judgment, concluding in part that section 4–24 could not be applied to the Institute's action, the Department appealed. The appellate court reversed. Institute for Justice v. Department of Financial & Professional Regulation , 2017 IL App (1st) 162141–U, ¶ 29, 2017 WL 1386827.

¶ 3 We allowed Perry's and the Institute's petitions for leave to appeal ( Ill. S. Ct. R. 315 (eff. Nov. 1, 2017) ), which have been consolidated to determine whether section 2105–117 and section 4–24 are to apply to Perry's and the Institute's pending causes of actions, respectively. We allowed the following parties to file amicus curiae briefs: the American Civil Liberties Union of Illinois, the Better Government Association, the Chicago Appleseed Fund for Justice, the Chicago Council of Lawyers, the Citizen Advocacy Center, and the Illinois Press Association; the Reporters Committee for Freedom of the Press; and the Illinois Policy Institute and Edgar County Watchdogs.

¶ 4 BACKGROUND

¶ 5 Perry's Request for Review and Circuit Court Proceedings

¶ 6 On January 21, 2013, Perry filed a FOIA request with the Department seeking disclosure of a complaint that had been made against his structural engineer's license. The Department denied his request on January 23, 2013. Perry sought review of the Department's denial by the Public Access Counselor (PAC). See 5 ILCS 140/9.5(a) (West 2012) ("A person whose request to inspect or copy a public record is denied by a public body, except the General Assembly and committees, commissions, and agencies thereof, may file a request for review with the Public Access Counselor established in the Office of the Attorney General."). In a nonbinding opinion letter, the PAC concluded that Perry's request was properly denied under section 7(1)(d)(iv) of the Illinois FOIA because disclosure of the complaint would "unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies." 5 ILCS 140/7(1)(d)(iv) (West 2014).

¶ 7 Perry amended the FOIA request on August 26, 2013, requesting that the Department disclose the complaint "redacted to exclude proper names and ‘confidential information’ " pursuant to section 7(1) of the FOIA. See 5 ILCS 140/7 (West 2012) ("When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt."). The Department denied the amended request.

¶ 8 On November 6, 2014, Perry filed an action against the Department in the Cook County circuit court. Pursuant to section 11(d), Perry requested the circuit court to order the Department to produce the redacted complaint. 5 ILCS 140/11(d) (West 2014) ("The circuit court shall have the jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access."). Pursuant to sections 11(i) and (j), respectively, Perry also sought an award of attorney fees and the imposition of a civil penalty for the Department's willful and bad-faith failure to comply with the Illinois FOIA. See 5 ILCS 140/11(i), (j) (West 2014).

¶ 9 Perry moved for summary judgment. Alternatively, Perry sought an in camera inspection of the complaint by the circuit court. 5 ILCS 140/11(f) (West 2014). A hearing was held on July 27, 2015. After an in camera inspection, the circuit court concluded that, pursuant to section 7(1)(d)(iv), the complaint was exempt from disclosure but that two of the complaint's exhibits could be disclosed, as they had already been made available to third parties. Thus, Perry's motion for summary judgment was granted in part and denied in part. Both Perry and the Department moved for reconsideration, with Perry arguing that the court should have ordered the disclosure of the complaint with redaction of any names that would have revealed the complainant's identity and the Department contesting the disclosure of the exhibits because they would necessarily reveal the complainant's identity.

¶ 10 As another basis for exempting disclosure of the complaint and exhibits, regardless of redaction, the Department cited section 2105–117 of the Department of Professional Regulation Law. 20 ILCS 2105/2105–117 (West Supp. 2015). Section 2105–117 took effect on August 3, 2015, as a statutory amendment to the Department of Professional Regulation Law. Pub. Act 99–227 (eff. Aug. 3, 2015) (adding 20 ILCS 2105/2105–117 ). Perry asserted that section 2105–117 was inapplicable to the case, as it was not yet in effect at the time Perry made the FOIA request or at the time of the circuit court's ruling on Perry's summary judgment motion.

¶ 11 On January 7, 2016, at a hearing on the motions to reconsider, the circuit court observed that section 2105–117 had become effective about one week after its initial ruling on Perry's summary judgment motion and that it therefore could not have applied section 2105–117 when ruling on the motion. The circuit court also noted, however, that due to the parties' motions for reconsideration, it had retained jurisdiction over the case. As such, the circuit court determined that, per Kalven v. City of Chicago , 2014 IL App (1st) 121846, 379 Ill.Dec. 903, 7 N.E.3d 741, it was required to apply section 2105–117, the current law in effect, when ruling on the motions for reconsideration. Because under section 2105–117 Perry would not be entitled to disclosure of the redacted complaint or exhibits, the circuit court granted the Department's motion for reconsideration and dismissed Perry's cause of action.

¶ 12 Perry filed a motion to reconsider, arguing that the circuit court erred in applying section 2105–117 and failing to specifically address Perry's claims for attorney fees and a civil penalty against the Department. The circuit court denied Perry's motion to reconsider, reaffirmed its dismissal of Perry's FOIA action, dismissed Perry's claim for attorney fees under section 11(i) because Perry was not the prevailing party, and dismissed Perry's claim for a civil penalty.

¶ 13 The Institute's Request for Review and Circuit Court Proceedings

¶ 14 On September 12, 2013, the Institute filed a request pursuant to the Illinois FOIA ( 5 ILCS 140/1 et seq. (West 2012) ) seeking the disclosure of "[a]ll complaints regarding licensed cosmetologists and hair braiders received by the [Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Board] from 2011 to present." The Department denied the request on September 30, 2013, asserting that six separate FOIA exceptions exempted the requested records from disclosure. On November 22, 2013, the Institute filed a request for review of the denial with the PAC. See 5 ILCS...