Perry v. Department of Financial & Professional Regulation
2017 IL App (1st) 161780
| Ill. App. Ct. | 2017Background
- Christopher J. Perry (and his firm) requested under Illinois FOIA the complaint filed against his structural-engineer license; the Department denied the request.
- Plaintiffs sought PAC review; PAC issued a nonbinding opinion that the complaint properly was withheld under FOIA exemption for complainant identities.
- Plaintiffs amended their request to seek a redacted complaint; the Department again refused and plaintiffs sued in circuit court under FOIA §11 for injunctive relief, attorney fees, and civil penalties.
- After in camera review the trial court ordered disclosure of two exhibits but withheld the complaint under FOIA §7(1)(d)(iv); both parties moved for reconsideration.
- While reconsideration was pending, the General Assembly enacted 20 ILCS 2105/2105-117 (effective Aug 3, 2015), making Department investigative files and complaints confidential; the trial court applied that new statute, granted defendant’s reconsideration, dismissed the FOIA action, and denied fees and penalties.
- Plaintiffs appealed; the appellate majority affirmed (applying the new statute prospectively to the court’s injunction request), while one justice dissented, arguing the law improperly extinguished plaintiffs’ vested FOIA rights and produced inequitable retroactive effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 20 ILCS 2105/2105-117 (effective Aug 3, 2015) may be applied to bar disclosure of records requested and denied before the statute’s enactment | Statute is substantive and cannot be applied retroactively to extinguish plaintiffs’ preexisting right to the records; the request vested when made | The statute governs disclosure at the time of the court’s decision and therefore bars production of the complaint and exhibits | Court: statute may be applied; no impermissible retroactivity because it governs present/future disclosure and plaintiffs sought prospective injunctive relief, so the law in effect at decision controls |
| Whether plaintiffs were entitled to a redacted copy of the complaint under FOIA §7(1) | Redaction would preserve complainant anonymity while allowing disclosure of nonexempt information | Redaction would still unavoidably identify complainant; the complaint and related investigation materials are exempt under §2105-117 | Court: complaint exempt; exhibits also barred under §2105-117 despite earlier in camera finding that some exhibits had been previously released |
| Whether plaintiffs prevailed and thus are entitled to attorney fees under FOIA §11(i) | Plaintiffs argued partial earlier ruling entitled them to fees | Defendant argued plaintiffs did not prevail because final judgment dismissed the claim under §2105-117 | Court: plaintiffs did not prevail; attorney fees denied |
| Whether plaintiffs preserved the claim for civil penalties under FOIA §11(j) | Plaintiffs urged remand for consideration of bad-faith penalties | Defendant argued plaintiffs failed to prevail and forfeited specific argument | Court: issue forfeited by inadequate briefing; no remand for penalties |
Key Cases Cited
- Landgraf v. USI Film Products, 511 U.S. 244 (U.S. 1994) (framework for determining when a statute may be applied retroactively)
- Center for Biological Diversity v. United States Dep’t of Agriculture, 626 F.3d 1113 (9th Cir. 2010) (statute enacted while FOIA suit pending can bar disclosure when it affects prospective relief)
- Wisniewski v. Kownacki, 221 Ill. 2d 453 (Ill. 2006) (nondisclosure provisions apply to records created pre-enactment because disclosure occurs in present/future)
- People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193 (Ill. 2015) (Landgraf analysis and presumption under Statute on Statutes regarding temporal reach)