Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. The Department Offinancial and Professional Regulation

Supreme Court of Illinois

May 24, 2018

CHRISTOPHER J. PERRY et al., Appellants,
v.
THE DEPARTMENT OFFINANCIAL AND PROFESSIONAL REGULATION, Appellee. INSTITUTE FOR JUSTICE, Appellant,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, Appellee.

          GARMAN JUSTICE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

          OPINION

          GARMAN JUSTICE.

         ¶ 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.

         ¶ 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.

         ¶ 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, 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 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."). For over a year, the Institute's request remained pending with the PAC without resolution. Pursuant to section 11, the Institute filed a complaint in the Cook County circuit court. See 5 ILCS 140/11 (West 2012).

         ¶ 15 During the pendency of the lawsuit in the circuit court, Public Act 98-911 became effective on January 1, 2015. Pub. Act 98-911 (eff. Jan. 1, 2015) (adding 225 ILCS 410/4-24). Relevant here, the law added section 4-24 to the Barber Act, providing that complaints against licensees on file with the Department are "for the confidential use of the Department and shall not be disclosed" except to law enforcement officials, other regulatory agencies, or pursuant to subpoena. Id. The Department answered the Institute's complaint on March 23, 2015, and, among other asserted reasons, added as an affirmative defense that the recent enactment of section 4-24 exempted the requested documents from disclosure.

         ¶ 16 The Institute and the Department filed cross-motions for summary judgment. The circuit court granted the Institute's motion for summary judgment on November 12, 2015, denied the Department's cross-motion for summary judgment, and continued the matter for presentation of a formal order and to resolve miscellaneous issues.

         ¶ 17 On December 16, 2015, the circuit court issued an order, explaining that it found inapplicable the six FOIA exemptions claimed by the Department, that section 4-24 did not apply to the Institute's request because section 4-24 was enacted after the Institute's FOIA request, and that section 4-24 did not apply retroactively. On June 30, 2016, the court ordered the Department to produce the requested records by December 23, 2016, and awarded the Institute $35, 000 in attorney fees and costs as the prevailing party. See 5 ILCS 140/11(i) (West 2012) ("If 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 attorneys' fees and costs."). In a separate order, the court denied the Department's motion for a stay of the production order. The Department appealed the orders separately, which were consolidated on appeal by the appellate court.

         ¶ 18 The appellate court granted the Department's motion for a stay of the production order pending appeal.

         ¶ 19 Appellate Court Analysis

         ¶ 20 In his appeal, Perry argued that the circuit court erred in applying section 2105-117 of the Department of Professional Regulation Law retroactively to his FOIA action. Citing Landgraf v. USI Film Products, 511 U.S. 244 (1994), and section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)), Perry asserted that, because it is a substantive amendment and its application would have a retroactive impact on him by impairing his rights to examine the complaint and exhibits, section 2105-117 may not be retroactively applied.

         ¶ 21 In its appeal, the Department argued only that section 4-24 of the Barber Act applied to the Institute's request. The Institute asserted that, because section 4-24 contained no express provision regarding its temporal reach and because it is a substantive amendment that "redefines confidentiality protections and information availability, " its application would have a retroactive impact upon the Institute.

         ¶ 22 The appellate court majority's analysis and reasoning was similar for both cases. See Perry, 2017 IL App (1st) 161780 (Delort, J., dissenting); Institute for Justice, 2017 IL App (1st) 162141 (Delort, J. dissenting). The appellate majority explained, in both decisions:

"Kalven, [2014 IL App (1st) 121846, ] Center for Biological Diversity [v. United States Department of Agriculture, 626 F.3d 1113 (9th Cir. 2010)], and Wisniewski [v. Kownacki, 221 Ill.2d 453 (2006), ] compel the conclusion that when a statutory amendment only affects the present or future disclosure of information (either by allowing for its disclosure or exempting it from disclosure) and does not otherwise impair anyone's rights with respect to completed transactions made in reliance on the prior law, the application of the amendment has no impermissible retroactive effect, and therefore, the amendment must be applied by the court if it is in effect at the time of the court's decision." Perry, 2017 IL App (1st) 161780, ¶ 40.

See also Institute for Justice, 2017 IL App (1st)162141-U, ¶ 22.

         ¶ 23 Regarding Perry's case, the appellate majority stated that:

"as section 2105-117 of the [Department of Professional Regulation Law] only exempts the complaint and exhibits requested by the 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, its application has no impermissible retroactive effect. Therefore, the court properly applied section 2105-117 when ruling on the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.