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Perry v. Department of Financial and Professional Regulation

Court of Appeals of Illinois, First District, Sixth Division

April 14, 2017


         Appeal from the Circuit Court of Cook County No. 14 CH 17994 Honorable Rita M. Novak, Judge Presiding.

          ROCHFORD JUSTICE delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Justice Delort dissented, with opinion.



         ¶ 1 Plaintiffs-appellants, Christopher J. Perry and Perry & Associates, LLC (collectively referred to as plaintiffs), filed an action in the circuit court under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)), against defendant-appellee, the Department of Financial and Professional Regulation, seeking the disclosure of a complaint filed with defendant against Mr. Perry's structural engineer's license, as well as reasonable attorney fees, and a finding for civil penalties on the basis that defendant had acted in bad faith by failing to disclose the complaint. Plaintiffs moved for summary judgment. The circuit court granted plaintiffs' motion in part and denied it in part. The court ruled that the complaint was not disclosable, but it ordered the release of certain exhibits attached to the complaint. Both parties moved for reconsideration. The circuit court granted defendant's motion for reconsideration and dismissed plaintiffs' FOIA action, in its entirety, ruling that a new statute under the Civil Administrative Code of Illinois (Code) (20 ILCS 2105/2105-117 (West Supp. 2015)), precluded the release of either the complaint or its exhibits to plaintiffs. The circuit court also dismissed plaintiffs' claims for attorney fees and civil penalties. Plaintiffs moved for reconsideration. The circuit court denied plaintiffs' motion. Plaintiffs appeal. We affirm.

         ¶ 2 I. Background Information

         ¶ 3 The FOIA provides that "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2014). If denied information by the public body, the requestor may bring either a request for review by the Public Access Counselor (PAC) established in the office of the Attorney General under section 9.5(a) of the FOIA (5 ILCS 140/9.5(a) (West 2014)), or an action in the circuit court for declaratory or injunctive relief under section 11(a) of the FOIA (5 ILCS 140/11(a) (West 2014)), or may pursue both. When the requestor seeks PAC review, the PAC may, in its discretion, issue either a nonbinding or binding opinion. 5 ILCS 140/9.5(f) (West 2014). A binding opinion issued by the PAC is considered a final decision of an administrative agency for purposes of administrative review. 5 ILCS 140/11.5 (West 2014).

         ¶ 4 By contrast, an action in the circuit court under section 11 of the FOIA is a de novo action, not an action for administrative review. 5 ILCS 140/11(f) (West 2014). In pertinent part, section 11(d) provides that 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." 5 ILCS 140/11(d) (West 2014). Section 11(i) provides that "[i]f a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs." 5 ILCS 140/11(i) (West 2014). Section 11(j) provides that "[i]f the court determines that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty of not less than $2, 500 nor more than $5, 000 for each occurrence." 5 ILCS 140/11(j) (West 2014).

         ¶ 5 II. Plaintiffs' FOIA Request

         ¶ 6 Plaintiffs' FOIA request stems from a complaint filed with defendant against Mr. Perry's structural engineer's license by an individual whose identity was not disclosed to Mr. Perry. Mr. Perry appeared at an administrative hearing in response to the complaint, and he claims that he was told by the panel that he could not be informed of the nature of the allegation against him other than a vague insinuation that he had "done wrong." Mr. Perry ultimately received a letter in January 2013 closing the matter with no adverse consequences but, also, advising him that the allegation would remain on his record and could later be used against him if any subsequent complaints were filed.

         ¶ 7 On January 21, 2013, plaintiffs filed their initial FOIA request with defendant, seeking disclosure of the complaint made against Mr. Perry's license. On January 23, 2013, defendant denied the request.

         ¶ 8 Plaintiffs sought review of defendant's denial with the PAC pursuant to section 9.5(a) of the FOIA. 5 ILCS 140/9.5(a) (West 2014).

         ¶ 9 On August 21, 2013, in a non-binding opinion letter, the PAC concluded that defendant properly refused to disclose the complaint against Mr. Perry's license under section 7(1)(d)(iv) of the FOIA (5 ILCS 140/7(1)(d)(iv) (West 2014)). Section 7(1)(d)(iv) exempts information from disclosure, where disclosure 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." Id. The PAC determined that disclosure of the complaint would unavoidably identify the person who filed the complaint with defendant in violation of section 7(1)(d)(iv).

         ¶ 10 On August 26, 2013, plaintiffs amended the FOIA request in accordance with the PAC's opinion and requested that defendant disclose the complaint "redacted to exclude proper names and 'confidential information" pursuant to section 7(1) of the FOIA. Section 7(1) provides that "[w]hen 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." 5 ILCS 140/7(1) (West 2014). Defendant denied the request.

         ¶ 11 On November 6, 2014, plaintiffs filed an action against defendant in the circuit court pursuant to section 11 of the FOIA. Plaintiffs requested that the court order defendant to produce the redacted complaint against Mr. Perry's license pursuant to section 11(d), and also sought an award of attorney fees pursuant to section 11(i), as well as the imposition of a civil penalty pursuant to section 11(j) for defendant's willful and bad-faith failure to comply with the FOIA. See 5 ILCS 140/11(d), (i), (j) (West 2014).

         ¶ 12 Plaintiffs moved for summary judgment or, in the alternative, for an in camera inspection of the complaint against Mr. Perry's license pursuant to section 11(f) of the FOIA. A hearing was held on July 27, 2015. The circuit court concluded, after an in camera inspection, that the complaint was exempt from disclosure under section 7(1)(d)(iv) of the FOIA, but that two exhibits to the complaint could be disclosed because they had previously been made available to third parties. Accordingly, the court granted in part and denied in part plaintiffs' motion for summary judgment.

         ¶ 13 Plaintiffs moved for reconsideration, arguing that the court should have ordered disclosure of the complaint with any names redacted that would have disclosed the complainant's identity.

         ¶ 14 Defendant also moved for reconsideration, arguing that the court should not have ordered the disclosure of the exhibits to the complaint, as those exhibits would necessarily reveal the complainant's identity in violation of section 7(1)(d)(iv) of the FOIA. Defendant also raised section 2105-117 of the Code (20 ILCS 2105/2105-117 (West Supp. 2015)), a statutory amendment that took effect on August 3, 2015, as a basis to find that the complaint and attached exhibits were exempt from disclosure even if all names and confidential information was redacted. Section 2105-117 provides:

"All information collected by the Department in the course of an examination or investigation of a licensee, registrant, or applicant, including, but not limited to, any complaint against a licensee or registrant filed with the Department and information collected to investigate any such complaint, shall be maintained for the confidential use of the Department and shall not be disclosed." Id.

         ¶ 15 Plaintiffs responded that section 2105-117 does not apply in this case because it was not in effect at the time plaintiffs made the FOIA request or when the circuit court issued its ruling on plaintiffs' summary judgment motion.

         ¶ 16 A hearing was held on the motions to reconsider on January 7, 2016. The circuit court noted that section 2105-117 had become effective about one week after its earlier ruling on plaintiffs' summary judgment motion, and thus the court could not have applied section 2105-117 when ruling on the motion. However, the court also noted it had retained jurisdiction over this case to consider the parties' motions for reconsideration, and that it was required under Kalven v. City of Chicago, 2014 IL App (1st) 121846, to apply the law currently in effect, i.e., section 2105-117, when ruling on the reconsideration motions. The court determined that under section 2105-117, plaintiffs were not entitled to the disclosure of either the redacted ...

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