Perry v. Department of Financial & Professional Regulation
77 N.E.3d 1136
| Ill. App. Ct. | 2017Background
- Plaintiffs (Christopher J. Perry and his firm) requested under Illinois FOIA the complaint filed with the Department of Financial and Professional Regulation (DFPR) against Perry’s structural-engineer license and later sought a redacted copy after an initial denial.
- The Public Access Counselor (PAC) issued a nonbinding opinion that the complaint would unavoidably identify the complainant and therefore was exempt under FOIA §7(1)(d)(iv).
- Plaintiffs sued in circuit court under FOIA §11 seeking production of a redacted complaint, attorney fees, and civil penalties; the court performed an in camera review.
- The circuit court initially found the complaint exempt under FOIA §7(1)(d)(iv) but ordered disclosure of two exhibits; after a legislative amendment (20 ILCS 2105/2105-117) took effect while litigation was pending, the court granted DFPR’s reconsideration motion and dismissed the action entirely.
- The court held the new statute (which makes investigation records and complaints maintained by the Department confidential) applied at the time of the court’s decision and thus barred disclosure; plaintiffs’ claims for fees and penalties were dismissed because they did not prevail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 20 ILCS 2105/2105-117 (enacted after request) applies to bar disclosure while FOIA suit pending | Statute cannot be applied retroactively; plaintiffs’ rights vested when request/denial occurred | Court should apply the law in effect at time of judicial decision; statute bars disclosure of complaint and exhibits | The court applied the statute; new exemption governs prospective relief and may be applied when in effect at decision time (statute not impermissibly retroactive) |
| Whether the application of §2105-117 has an impermissible retroactive impact under Landgraf | Application would impair plaintiffs’ vested rights to the records and is substantive, thus prospective only | The statute affects only present/future disclosure (procedural in effect), so no retroactive impact | No impermissible retroactivity; statute affects only present/future disclosure and may be applied to pending FOIA injunctive claims |
| Whether plaintiffs prevail and are entitled to attorney fees under FOIA §11(i) | Plaintiffs argued court previously ordered partial disclosure and thus should recover fees | DFPR argued plaintiffs did not prevail because final dismissal was entered under §2105-117 | Plaintiffs did not prevail under §11; attorney-fee claim dismissed |
| Whether civil penalties under FOIA §11(j) should be assessed for bad-faith withholding | Plaintiffs sought remand for determination of penalties | DFPR implicitly argued no bad faith because statute bars disclosure | Plaintiffs forfeited the argument on appeal by inadequate briefing; court did not remand |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (statutory retroactivity framework)
- Center for Biological Diversity v. United States Dep’t of Agriculture, 626 F.3d 1113 (intervening statutory exemption applied to pending FOIA request)
- Wisniewski v. Kownacki, 221 Ill. 2d 453 (nondisclosure statutes applied to preenactment records because disclosure is a present/future act)
- J.T. Einoder, Inc. v. City of 2015 IL 117193 (amendment that imposes new substantive liability cannot be applied retrospectively)