Sage Information Services v. Suhr , 2014 IL App (2d) 130708 ( 2014 )

2014 IL App (2d) 130708No. 2-13-0708
Opinion filed April 14, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
SAGE INFORMATION SERVICES and ) Appeal from the Circuit Court
ROGER W. HURLBERT, ) of Winnebago County.
)
Plaintiffs-Appellees, )
)
v. ) No. 12-MR-987
)
BRENDA M. SUHR, In Her Official Capacity )
as Winnebago County Chief Deputy )
Supervisor of Assessments and Department )
Freedom of Information Act Officer, )
) J. Edward Prochaska,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Jorgensen and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Brenda M. Suhr, Winnebago County chief deputy supervisor of assessments
and department Freedom of Information Act officer, appeals a judgment that (1) ordered her to
provide to plaintiffs, Sage Information Services and Roger W. Hurlbert, electronic records that
plaintiffs requested under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West
2012)) and (2) awarded plaintiffs attorney fees and costs. On appeal, defendant contends that the
trial court erred in basing the permissible charges for the records on section 6 of the FOIA (5
ILCS 140/6 (West 2012)) and not on section 9-20 of the Property Tax Code (35 ILCS 200/9-20
2014 IL App (2d) 130708(West 2012)). Defendant recognizes that the trial court’s judgment was based on Sage
Information Services v. Humm, 2012 IL App (5th) 110580, but she argues that Humm was
decided wrongly. We affirm.
¶2 By a letter dated October 12, 2012, plaintiffs requested from defendant “a copy, on CD or
similar electronic media, of the current real property assessment record file for the entire county,
together with an electronic copy of the sales file.” Citing Humm, the request stated that, under
section 6(a) of the FOIA (5 ILCS 140/6(a) (West 2012)), defendant could charge no more than
the cost of the disc.
¶3 On November 5, 2012, defendant responded that, to obtain the records, plaintiffs would
have to pay $6,290.45 (five cents per parcel). Defendant relied on section 9-20 of the Property
Tax Code, which allows a supervisor of assessments to charge a “reasonable fee” (35 ILCS
200/9-20 (West 2012)) for copying and providing records. She informed plaintiffs that section
9-20, and not the FOIA, governed the request.
¶4 On December 12, 2012, plaintiffs filed their complaint to compel defendant to release the
requested information in the requested form, at a charge of no more than the actual cost of
production. The complaint also sought attorney fees and costs.
¶5 Plaintiffs moved for summary judgment (see 735 ILCS 5/2-1005(a) (West 2012)). On
June 12, 2012, the trial court granted the motion and entered a judgment requiring defendant to
produce the requested records in electronic format within 30 days and awarding plaintiffs
attorney fees and costs. The court explained that it was bound by Humm, under which section
6(a) of the FOIA limited defendant to charging no more than the cost of purchasing the recording
medium. The court stayed the award of fees and costs, but not the order to produce the records,
pending the resolution of an appeal. On July 10, 2012, defendant filed a notice of appeal and a
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2014 IL App (2d) 130708motion to reconsider the partial denial of the motion to stay. On August 8, 2012, the trial court
granted the motion to reconsider and stayed the production order pending our resolution of the
appeal.
¶6 Initially, this court dismissed the appeal, on the basis that a pending motion to reconsider
made the notice of appeal premature. Defendant petitioned for a rehearing. We now vacate the
dismissal, agreeing with defendant that, because the motion to reconsider addressed a matter that
was collateral to the judgment, the notice of appeal was not premature. See General Motors
Corp. v. Pappas, 242 Ill. 2d 163, 173-74 (2011). Further, the motion has now been resolved, so
that, in any event, there would be no bar to our jurisdiction. See In re Marriage of Knoerr, 377
Ill. App. 3d 1042, 1049-50 (2007). We turn to the merits of the appeal.
¶7 We review de novo the grant of summary judgment. Matsuda v. Cook County
Employees’ & Officers’ Annuity & Benefit Fund, 178 Ill. 2d 360, 364 (1997). Issues of statutory
construction, such as are raised here, are appropriate for resolution by summary judgment, as
they raise questions of law subject to de novo review. Id. In construing statutes, our ultimate
goal is to effectuate the legislative intent, and we start with the statutory language itself. Id. at
365.
¶8 Here, the parties disagree on which statute governs what defendant may charge plaintiffs
for providing electronic records. Defendant invokes section 9-20 of the Property Tax Code:
“In all counties, all property record cards maintained by a township assessor, multi-
township assessor, or chief county assessment officer shall be public records, and shall be
available for public inspection during business hours, subject to reasonable rules and
regulations of the custodian of the records. Upon request and payment of such
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2014 IL App (2d) 130708reasonable fee established by the custodian, a copy or printout shall be provided to any
person.
Property record cards may be established and maintained on electronic equipment
or microfiche, and that system may be the exclusive record of property information.”
(Emphasis added.) 35 ILCS 200/9-20 (West 2012).
Defendant relies primarily on the language we have emphasized.
¶9 Plaintiffs counter that section 6(a) of the FOIA limits any charge to the cost of purchasing
the recording medium. They reason that section 6(a) makes section 9-20 of the Property Tax
Code inapplicable to electronic records. In pertinent part, that section reads:
“When a person requests a copy of a record maintained in an electronic format, the public
body shall furnish it in the electronic format specified by the requester, if feasible. If it is
not feasible to furnish the public records in the specified electronic format, then the
public body shall furnish it in the format in which it is maintained by the public body, or
in paper format at the option of the requester. A public body may charge the requester
for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or
other medium. A public body may not charge the requester for the costs of any search for
and review of the records or other personnel costs associated with reproducing the
records, except for commercial requests as provided in subsection (f) of this Section.
Except to the extent that the General Assembly expressly provides, statutory fees
applicable to copies of public records when furnished in a paper format shall not be
applicable to those records when furnished in an electronic format.” (Emphases added.)
5 ILCS 140/6(a) (West 2012).
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2014 IL App (2d) 130708¶ 10 Plaintiffs also invoke Humm, which, as defendant concedes, is indistinguishable. In
Humm, two judgments were on appeal, but only one concerns us here. The circuit court of
Franklin County ruled that the defendant could charge the plaintiffs (the same plaintiffs as here)
a fee, per section 9-20 of the Property Tax Code, of five cents per parcel for the entire county’s
property assessment record file. Humm, 2012 IL App (5th) 110580, ¶ 2. The appellate court
reversed, holding that section 6(a) of the FOIA applied and that the defendant could charge only
the cost of the electronic medium. Id. ¶ 15.
¶ 11 The Fifth District began by observing that the circuit court had incorrectly relied on two
opinions construing section 6(a) of the FOIA as it had read before 2010. See Sage Information
Services v. Henderson, 397 Ill. App. 3d 1060 (2010); Sage Information Services v. King, 391 Ill.
App. 3d 1023 (2009). The earlier version of section 6(a) read:
“Each public body may charge fees reasonably calculated to reimburse its actual cost for
reproducing and certifying public records and for the use, by any person, of the
equipment of the public body to copy records. Such fees shall exclude the costs of any
search for and review of the record, and shall not exceed the actual cost of reproduction
and certification, unless otherwise provided by State statute. Such fees shall be imposed
according to a standard scale of fees, established and made public by the body imposing
them.” (Emphases added.) 5 ILCS 140/6(a) (West 2006).
¶ 12 The Humm court noted that, in King and Henderson (also involving facts similar to those
now before us), the appellate courts correctly held that section 9-20 of the Property Tax Code
applied and not section 6(a) of the FOIA as it then read. The court explained that the two
provisions related to the same subject matter; thus, section 9-20 applied because it was the more
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2014 IL App (2d) 130708specific of the two. Humm, 2012 IL App (5th) 110580, ¶ 17; see Henderson, 397 Ill. App. 3d at
1064 (following King); King, 391 Ill. App. 3d at 1031-32.
¶ 13 However, as Humm noted, an amendment to section 6(a) had made Henderson and King
obsolete. See Pub. Act 96-542, § 10 (eff. Jan. 1, 2010). Previously, section 6(a) limited the
permissible charge, regardless of whether paper records or electronic records were requested, to
the actual cost of production “unless otherwise provided by State statute” (5 ILCS 140/6(a)
(West 2006)). Humm, 2012 IL App (5th) 110580, ¶ 18. Now, section 6(a) distinguishes between
paper records and electronic records. Id. Although section 6(b) of the FOIA still allows
agencies to rely on another statute, such as the Property Tax Code, to charge a fee in excess of
the cost for the production of paper records (see 5 ILCS 140/6(b) (West 2012)), section 6(a) now
governs electronic reproductions. And in doing so, it has narrowed the exception to the cost-
only rule.
¶ 14 Before the amendment, an agency could escape the rule if “otherwise provided by State
statute.” 5 ILCS 140/6(a) (West 2006). Now, “[e]xcept to the extent that the General Assembly
expressly provides, statutory fees applicable to copies of public records when furnished in a
paper format shall not be applicable to those records when furnished in an electronic format.”
(Emphasis added.) 5 ILCS 140/6(a) (West 2012). Thus, “[w]ith respect to electronic records,
the language allowing cross-referencing to other statutes, such as the Property Tax Code, no
longer exists.” Humm, 2012 IL App (5th) 110580, ¶ 18. Before the amendment, it was
sufficient that the Property Tax Code provided generally that an assessor’s office may levy a
reasonable charge for producing records. After the amendment, to enable assessors’ offices to
escape section 6(a)’s cost-only rule for electronic records, there must be a statute that expressly
provides that the assessor may charge fees “applicable to copies of public records when
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2014 IL App (2d) 130708furnished in a paper format.” (Emphasis added.) 5 ILCS 140/6(a) (West 2012). The Property
Tax Code contains no express authorization, and, thus, the defendant in Humm was limited to
charging cost-only for the requested electronic records. Humm, 2012 IL App (5th) 110580, ¶ 18.
¶ 15 We agree with Humm. The amendment to section 6(a) is unambiguous and inescapably
implies that defendant’s office may not avail itself of the present narrow exception to the cost-
only rule for electronic records. When a statute is unambiguous, we must apply it as written.
MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009).
¶ 16 Defendant makes two attacks on Humm. First, she contends that section 9-20 of the
Property Tax Code fits within the exception to the cost-only rule for electronic records.
According to defendant, the first paragraph of section 9-20 allows her office to charge a
“reasonable fee” for a “copy or printout,” and the second paragraph allows property record cards
to be established and maintained exclusively on electronic equipment or microfiche. 35 ILCS
200/9-20 (West 2012). Defendant concludes that, by section 9-20, the General Assembly has
expressly allowed her office to charge more than cost for electronic records. Defendant notes
that section 9-20 does not limit the “reasonable fee” to paper records. 35 ILCS 200/9-20 (West
2012).
¶ 17 We cannot accept defendant’s reasoning, which is a non sequitur. It does not follow that,
because (a) section 9-20 expressly allows her office to keep some or all of its records in
electronic form and (b) section 9-20 does not expressly distinguish between providing requesters
with paper records and providing requesters with electronic records, therefore (c) section 9-20
“expressly provides” that the fees for providing paper records apply to providing electronic
records. 5 ILCS 140/6(a) (West 2012). Section 9-20 simply does not contain this express
provision. The first paragraph authorizes, but does not require, assessors to keep records in
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2014 IL App (2d) 130708electronic form exclusively. It does not expressly authorize them to charge more than cost for
the electronic reproduction of these records. The second paragraph authorizes assessors to
charge reasonable fees for providing records. It does not expressly authorize them to charge the
same fees for electronic records as they may charge for paper records. Therefore, under the plain
meaning of section 6(a) of the FOIA, section 9-20 of the Property Tax Code does not allow
defendant to escape the cost-only rule for electronic records.
¶ 18 Defendant’s second argument is that Humm slights the rule of construction that, when
two statutes relate to the same subject matter, the more specific statute must prevail over the
more general one. Defendant essentially invokes King and Henderson, which, as Humm rightly
held, are no longer good law in view of the amendment to section 6(a) of the FOIA. The canon
that defendant cites does not prevail over the fundamental rule that the plain meaning of a statute
is the best guide to the legislature’s intent and may not be disregarded.
¶ 19 Moreover, defendant’s argument presupposes a conflict between section 6(a) of the FOIA
and section 9-20 of the Property Tax Code. However, the two statutes fit together. Section 6(a)
creates a rule with a narrow exception; section 9-20 fails to come within the exception. There is
no genuine conflict that would require us to “choose” between the statutes.
¶ 20 In sum, defendant may not charge more than the cost of purchasing the recording
medium for the requested electronic records. Therefore, we affirm the judgment of the circuit
court of Winnebago County.
¶ 21 Affirmed.
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