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Ill. High Court Weighs if FOIA Spirit Violated by New Laws

15 March 2018

The Illinois Supreme Court on Thursday heard twin arguments in consolidated cases against the Illinois Department of Financial and Professional Regulation, which appellants say denied public records requests after stalling long enough for the legislature to pass narrow laws to prohibit the release of the information sought in the requests.

Attorneys for a libertarian-leaning law firm and a structural engineering firm both had Freedom of Information Act requests denied by the IDFPR, and both requesters claim the department shielded itself from releasing the information sought with laws that just so happened to materialize during the time the cases were pending.

Jeffery Lula of Kirkland & Ellis LLP, who represents the free-market Institute for Justice in the case, told Law360 on Wednesday that the new laws that blocked the FOIA requests were not likely to have been coincidences. Though chancery courts ruled in favor of both the Institute for Justice, an appellate panel reversed the rulings that would have released the FOIA request, based on amendments the General Assembly had made regarding FOIA while the cases were being litigated. Lula said the appellate ruling should not stand.

"The appellate ruling would encourage governmental entities to stall [answering the] FOIA ... then actively lobby the legislature to enact law," Lula said. "It would create a bad system where public bodies could deny FOIA requests ... in hopes that new law would come in either by luck or by lobbying."

Lula told the court the same on Thursday, as he argued for the Institute for Justice to gain access to the information it was originally seeking in its FOIA request back in September of 2013. The Institute for Justice asked the IDFPR for information about complaints made by Illinois citizens against hair braiders, as the institute was researching what it considers overregulation of professionals for a research paper it was planning to release.

But the department denied the institute’s request, and in late 2014, Lula filed suit in chancery court in order to gain access to the documents. But in the middle of that litigation, the state’s Barber Act, which regulates hair-related professionals in Illinois, was narrowly amended to exempt from FOIA the category of complaints that the institute was seeking with its records request.

Similarly, Christopher Perry filed two FOIA requests with the department in 2013, seeking information regarding a complaint made against his professional license in his capacity as owner of structural engineering firm Perry & Associates LLC. He was notified of a complaint against him in 2010, but he was told he could not be informed of the nature of the allegation against him. In early 2013, Perry was told that the matter was closed, but that the allegation would remain on his record and could later be used against him if any subsequent complaints were filed.

Soon after, Perry filed his first FOIA request, and then later in 2013, Perry filed a second. In 2015, a trial court partially ruled in Perry’s favor, finding that some of the documents in Perry’s request were public records, though it could not force the IDFPR to turn over the complaint. However, as Perry had technically won, the court would determine how much the department owed Perry in attorneys' fees.

But five days later, an amendment to the Civil Administrative code narrowly made the same documents that the trial court had just determined were public and subject to FOIA now un-FOIA-able.

Perry’s attorney, Gregory Ladle of John L. Ladle PC, told the high court justices Thursday that the issue of attorneys’ fees should make it clear that applying the new law retroactively is ludicrous.

“[The attorney’s fees would have] ma[de] him whole based on the money he had to pay because the department wrongfully withheld documents as determined by the court,” Ladle said. “Five days later, the law changed, and lo and behold, Perry is no longer a prevailing party … Essentially, Perry had monetary relief trying to make him whole stripped away by a new law.”

Both Lula and Ladle told the justices that neither law change was specifically meant to be retroactive, so the appellate court had erred in relying on it to reverse the chancery courts’ findings in favor of the plaintiffs.

Questioning Assistant Attorney General Aaron Dozeman, who represented the IDFPR, Justice Robert Thomas asked about the timing of the new laws.

“Is it a fair statement that the department dragged its feet on compliance with a valid FOIA long enough to see the laws change?” Thomas asked. “And if so, is that a public policy we want to encourage?”

“Absolutely not,” Dozeman answered. “The timing is out of our hands at some point once we deny the request. Litigation takes time, but that is really with the circuit court at that moment … FOIA is forward-looking because it regulates the public’s right to information, it doesn’t regulate anyone’s past right.”

The court heard the arguments at the University of Illinois at Urbana-Champaign as part of the justices’ annual tradition of “riding the circuit” — events in a more public space than the usual venue at the Supreme Court building in Springfield.

The Institute for Justice is represented by Jeffery Lula, Kyle Voils and Brendan Ryan of Kirkland & Ellis LLP.

Perry is represented by Gregory Ladle of John L. Ladle PC.

The IDFPR is represented by Assistant Attorney General Aaron Dozeman.

The case is Institute for Justice et al., Appellants, v. The Department of Financial and Professional Regulation, Appellee, consolidated case numbers 122411 and 122349, in the Illinois Supreme Court.

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