Perry v. Department of Financial & Professional Regulation
2018 IL 122349
Ill.2018Background
- Christopher Perry and the Institute for Justice separately sued the Illinois Department of Financial & Professional Regulation under FOIA seeking complaints and investigatory materials concerning licensed professionals; both requests predated later statutory amendments.
- While Perry’s suit was pending, the legislature enacted 20 ILCS 2105/2105-117 (effective Aug. 3, 2015), making investigatory materials confidential; the Department argued the new section exempted Perry’s requested records.
- While the Institute’s suit was pending, the legislature enacted 225 ILCS 410/4-24 (effective Jan. 1, 2015), making board complaints confidential; the Department asserted that section exempted the Institute’s requests.
- Circuit courts initially split: Perry’s court inspected records in camera and ordered limited disclosure (later reversed on reconsideration); the Institute’s court ordered disclosure and awarded fees; appellate court applied the new statutes and reversed in favor of the Department in both matters.
- The Illinois Supreme Court granted leave, consolidated the appeals, and addressed whether the two statutory confidentiality provisions apply to FOIA lawsuits that were pending when the statutes took effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether newly enacted confidentiality provisions (20 ILCS 2105/2105-117 and 225 ILCS 410/4-24) apply to FOIA suits pending when the statutes became effective | The statutes cannot be applied retroactively to pending FOIA actions; plaintiffs rely on Illinois retroactivity principles and J.T. Einoder to argue the changes are substantive and prospective only | The relief sought is prospective (injunctive/declaratory); courts should apply the law in effect at decision time, so the statutes govern pending cases | The statutes are substantive; under Illinois’s Statute on Statutes analysis they apply prospectively only and thus do not apply to these pending FOIA suits; appellate court reversals were reversed in part and circuit court rulings reinstated as to the Institute and remanded as to Perry for further proceedings |
| Whether courts should use a Landgraf-style retroactivity/impact inquiry or Illinois’s Statute on Statutes (procedural/substantive) approach | Plaintiffs: apply Illinois retroactivity framework (which focuses on legislative intent and section 4) and treat these as substantive changes | Department: no retroactivity analysis is needed because only prospective relief is sought; federal Landgraf second-step cases control | Illinois standard governs: first ask whether legislature expressly prescribed temporal reach; absent that, apply section 4 and classify change as procedural or substantive; courts do not perform Landgraf’s second-step retroactive-impact test |
| Whether applying the statutes would impair vested rights or require a constitutional inquiry | Plaintiffs: application would strip accrued FOIA rights, award of fees, and settled expectations | Department: no vested right in continuation of a law; no constitutional bar to applying the statutes | Court rejected vested-rights approach as the governing framework; only if the legislature had clearly intended retroactive application would a constitutional bar inquiry follow; none was shown |
| What relief should follow for Perry and the Institute | Perry: requested redacted disclosure, fees, and civil-penalty consideration | Department: argued for dismissal or reversal based on new confidentiality statutes | Court reinstated circuit court decision favoring the Institute (disclosure order and fees) and reversed appellate court; for Perry, reversed appellate decision for Department and remanded for hearing on redaction, attorney fees if prevailing, and a proper determination on civil penalties |
Key Cases Cited
- Landgraf v. USI Film Products, 511 U.S. 244 (1994) (establishes federal two-step retroactivity analysis focusing on legislative intent and retroactive effect)
- Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27 (2001) (Illinois adopts Landgraf approach and focuses first on legislative intent)
- People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193 (2015) (discusses presumption against retroactive application of substantive changes under section 4)
- Wisniewski v. Kownacki, 221 Ill. 2d 453 (2006) (concludes nondisclosure statutes applied where disclosure would occur only in present/future contexts)
- Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023 (2014) (interprets statutory temporal reach and prospective application where legislature clearly indicated it)
- Caveney v. Bower, 207 Ill. 2d 82 (2003) (explains reliance on section 4 of the Statute on Statutes where temporal reach is not expressly stated)
- Glisson, 202 Ill. 2d 499 (2002) (distinguishes substantive versus procedural amendments for retroactivity analysis)