Perry v. Department of Financial and Professional Regulation

2018 IL 122349
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 122349, 122411 cons.)
CHRISTOPHER J. PERRY et al., Appellants, v. THE DEPARTMENT OF
FINANCIAL AND PROFESSIONAL REGULATION, Appellee.—INSTITUTE
FOR JUSTICE, Appellant, v. THE DEPARTMENT OF FINANCIAL
AND PROFESSIONAL REGULATION, Appellee.
Opinion filed May 24, 2018.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 In separate cases, both plaintiff-appellants, (1) Christopher J. Perry and Perry &
Associates, LLC (collectively, Perry), and (2) the Institute for Justice (Institute),
filed causes of action under section 11 of the Illinois Freedom of Information Act
(FOIA) (5 ILCS 140/11 (West 2012)) seeking the disclosure of certain information
from the Department of Financial and Professional Regulation (Department). After
the circuit court denied in part and granted in part Perry’s motion for summary
judgment, section 2105-117 of the Department of Professional Regulation Law
took effect, which, if applicable, would exempt the type of information sought by
Perry from disclosure. Pub. Act 99-227 (eff. Aug. 3, 2015) (adding 20 ILCS
2105/2105-117). Both Perry and the Department moved for reconsideration, and
the circuit court applied section 2105-117 to the action, concluding that the
information Perry sought was exempt from disclosure. The circuit court denied
Perry’s motion to reconsider, and the appellate court affirmed. Perry v. Department
of Financial & Professional Regulation, 2017 IL App (1st) 161780, ¶ 48.
¶2 During the pendency of the Institute’s lawsuit in the circuit court, Public Act
98-911 became effective on January 1, 2015, adding section 4-24 to the Barber,
Cosmetology, Esthetics, Hair Braiding, and Nail Technology Act of 1985 (Barber
Act), which, if applicable, would exempt the type of information sought by the
Institute from disclosure. Pub Act. 98-911 (eff. Jan. 1, 2015) (adding 225 ILCS
410/4-24). After the circuit court granted the Institute’s motion for summary
judgment and denied the Department’s motion for summary judgment, concluding
in part that section 4-24 could not be applied to the Institute’s action, the
Department appealed. The appellate court reversed. Institute for Justice v.
Department of Financial & Professional Regulation, 2017 IL App (1st) 162141-U,
¶ 29.
¶3 We allowed Perry’s and the Institute’s petitions for leave to appeal (Ill. S. Ct. R.
315 (eff. Nov. 1, 2017)), which have been consolidated to determine whether
section 2105-117 and section 4-24 are to apply to Perry’s and the Institute’s
pending causes of actions, respectively. We allowed the following parties to file
amicus curiae briefs: the American Civil Liberties Union of Illinois, the Better
Government Association, the Chicago Appleseed Fund for Justice, the Chicago
Council of Lawyers, the Citizen Advocacy Center, and the Illinois Press
Association; the Reporters Committee for Freedom of the Press; and the Illinois
Policy Institute and Edgar County Watchdogs.
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¶4 BACKGROUND
¶5 Perry’s Request for Review and Circuit Court Proceedings
¶6 On January 21, 2013, Perry filed a FOIA request with the Department seeking
disclosure of a complaint that had been made against his structural engineer’s
license. The Department denied his request on January 23, 2013. Perry sought
review of the Department’s denial by the Public Access Counselor (PAC). See 5
ILCS 140/9.5(a) (West 2012) (“A person whose request to inspect or copy a public
record is denied by a public body, except the General Assembly and committees,
commissions, and agencies thereof, may file a request for review with the Public
Access Counselor established in the Office of the Attorney General.”). In a
nonbinding opinion letter, the PAC concluded that Perry’s request was properly
denied under section 7(1)(d)(iv) of the Illinois FOIA because disclosure of the
complaint would “unavoidably disclose the identity of a confidential source,
confidential information furnished only by the confidential source, or persons who
file complaints with or provide information to administrative, investigative, law
enforcement, or penal agencies.” 5 ILCS 140/7(1)(d)(iv) (West 2014).
¶7 Perry amended the FOIA request on August 26, 2013, requesting that the
Department disclose the complaint “redacted to exclude proper names and
‘confidential information’ ” pursuant to section 7(1) of the FOIA. See 5 ILCS
140/7 (West 2012) (“When a request is made to inspect or copy a public record that
contains information that is exempt from disclosure under this Section, but also
contains information that is not exempt from disclosure, the public body may elect
to redact the information that is exempt.”). The Department denied the amended
request.
¶8 On November 6, 2014, Perry filed an action against the Department in the Cook
County circuit court. Pursuant to section 11(d), Perry requested the circuit court to
order the Department to produce the redacted complaint. 5 ILCS 140/11(d) (West
2014) (“The circuit court shall have the jurisdiction to enjoin the public body from
withholding public records and to order the production of any public records
improperly withheld from the person seeking access.”). Pursuant to sections 11(i)
and (j), respectively, Perry also sought an award of attorney fees and the imposition
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of a civil penalty for the Department’s willful and bad-faith failure to comply with
the Illinois FOIA. See 5 ILCS 140/11(i), (j) (West 2014).
¶9 Perry moved for summary judgment. Alternatively, Perry sought an in camera
inspection of the complaint by the circuit court. 5 ILCS 140/11(f) (West 2014). A
hearing was held on July 27, 2015. After an in camera inspection, the circuit court
concluded that, pursuant to section 7(1)(d)(iv), the complaint was exempt from
disclosure but that two of the complaint’s exhibits could be disclosed, as they had
already been made available to third parties. Thus, Perry’s motion for summary
judgment was granted in part and denied in part. Both Perry and the Department
moved for reconsideration, with Perry arguing that the court should have ordered
the disclosure of the complaint with redaction of any names that would have
revealed the complainant’s identity and the Department contesting the disclosure of
the exhibits because they would necessarily reveal the complainant’s identity.
¶ 10 As another basis for exempting disclosure of the complaint and exhibits,
regardless of redaction, the Department cited section 2105-117 of the Department
of Professional Regulation Law. 20 ILCS 2105/2105-117 (West Supp. 2015).
Section 2105-117 took effect on August 3, 2015, as a statutory amendment to the
Department of Professional Regulation Law. Pub. Act 99-227 (eff. Aug. 3, 2015)
(adding 20 ILCS 2105/2105-117). Perry asserted that section 2105-117 was
inapplicable to the case, as it was not yet in effect at the time Perry made the FOIA
request or at the time of the circuit court’s ruling on Perry’s summary judgment
motion.
¶ 11 On January 7, 2016, at a hearing on the motions to reconsider, the circuit court
observed that section 2105-117 had become effective about one week after its
initial ruling on Perry’s summary judgment motion and that it therefore could not
have applied section 2105-117 when ruling on the motion. The circuit court also
noted, however, that due to the parties’ motions for reconsideration, it had retained
jurisdiction over the case. As such, the circuit court determined that, per Kalven v.
City of Chicago, 2014 IL App (1st) 121846, it was required to apply section
2105-117, the current law in effect, when ruling on the motions for reconsideration.
Because under section 2105-117 Perry would not be entitled to disclosure of the
redacted complaint or exhibits, the circuit court granted the Department’s motion
for reconsideration and dismissed Perry’s cause of action.
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¶ 12 Perry filed a motion to reconsider, arguing that the circuit court erred in
applying section 2105-117 and failing to specifically address Perry’s claims for
attorney fees and a civil penalty against the Department. The circuit court denied
Perry’s motion to reconsider, reaffirmed its dismissal of Perry’s FOIA action,
dismissed Perry’s claim for attorney fees under section 11(i) because Perry was not
the prevailing party, and dismissed Perry’s claim for a civil penalty.
¶ 13 The Institute’s Request for Review and Circuit Court Proceedings
¶ 14 On September 12, 2013, the Institute filed a request pursuant to the Illinois
FOIA (5 ILCS 140/1 et seq. (West 2012)) seeking the disclosure of “[a]ll
complaints regarding licensed cosmetologists and hair braiders received by the
[Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Board] from
2011 to present.” The Department denied the request on September 30, 2013,
asserting that six separate FOIA exceptions exempted the requested records from
disclosure. On November 22, 2013, the Institute filed a request for review of the
denial with the PAC. See 5 ILCS 140/9.5(a) (West 2012) (“A person whose request
to inspect or copy a public record is denied by a public body, except the General
Assembly and committees, commissions, and agencies thereof, may file a request
for review with the Public Access Counselor established in the Office of the
Attorney General.”). For over a year, the Institute’s request remained pending with
the PAC without resolution. Pursuant to section 11, the Institute filed a complaint in
the Cook County circuit court. See 5 ILCS 140/11 (West 2012).
¶ 15 During the pendency of the lawsuit in the circuit court, Public Act 98-911
became effective on January 1, 2015. Pub. Act 98-911 (eff. Jan. 1, 2015) (adding
225 ILCS 410/4-24). Relevant here, the law added section 4-24 to the Barber Act,
providing that complaints against licensees on file with the Department are “for the
confidential use of the Department and shall not be disclosed” except to law
enforcement officials, other regulatory agencies, or pursuant to subpoena. Id. The
Department answered the Institute’s complaint on March 23, 2015, and, among
other asserted reasons, added as an affirmative defense that the recent enactment of
section 4-24 exempted the requested documents from disclosure.
¶ 16 The Institute and the Department filed cross-motions for summary judgment.
The circuit court granted the Institute’s motion for summary judgment on
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November 12, 2015, denied the Department’s cross-motion for summary judgment,
and continued the matter for presentation of a formal order and to resolve
miscellaneous issues.
¶ 17 On December 16, 2015, the circuit court issued an order, explaining that it
found inapplicable the six FOIA exemptions claimed by the Department, that
section 4-24 did not apply to the Institute’s request because section 4-24 was
enacted after the Institute’s FOIA request, and that section 4-24 did not apply
retroactively. On June 30, 2016, the court ordered the Department to produce the
requested records by December 23, 2016, and awarded the Institute $35,000 in
attorney fees and costs as the prevailing party. See 5 ILCS 140/11(i) (West 2012)
(“If a person seeking the right to inspect or receive a copy of a public record
prevails in a proceeding under this Section, the court shall award such person
reasonable attorneys’ fees and costs.”). In a separate order, the court denied the
Department’s motion for a stay of the production order. The Department appealed
the orders separately, which were consolidated on appeal by the appellate court.
¶ 18 The appellate court granted the Department’s motion for a stay of the
production order pending appeal.
¶ 19 Appellate Court Analysis
¶ 20 In his appeal, Perry argued that the circuit court erred in applying section
2105-117 of the Department of Professional Regulation Law retroactively to his
FOIA action. Citing Landgraf v. USI Film Products, 511 U.S. 244 (1994), and
section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)), Perry asserted that,
because it is a substantive amendment and its application would have a retroactive
impact on him by impairing his rights to examine the complaint and exhibits,
section 2105-117 may not be retroactively applied.
¶ 21 In its appeal, the Department argued only that section 4-24 of the Barber Act
applied to the Institute’s request. The Institute asserted that, because section 4-24
contained no express provision regarding its temporal reach and because it is a
substantive amendment that “redefines confidentiality protections and information
availability,” its application would have a retroactive impact upon the Institute.
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¶ 22 The appellate court majority’s analysis and reasoning was similar for both
cases. See Perry, 2017 IL App (1st) 161780 (Delort, J., dissenting); Institute for
Justice, 2017 IL App (1st) 162141 (Delort, J. dissenting). The appellate majority
explained, in both decisions:
“Kalven, [2014 IL App (1st) 121846,] Center for Biological Diversity [v.
United States Department of Agriculture, 626 F.3d 1113 (9th Cir. 2010)], and
Wisniewski [v. Kownacki, 221 Ill. 2d 453 (2006),] compel the conclusion that
when a statutory amendment only affects the present or future disclosure of
information (either by allowing for its disclosure or exempting it from
disclosure) and does not otherwise impair anyone’s rights with respect to
completed transactions made in reliance on the prior law, the application of the
amendment has no impermissible retroactive effect, and therefore, the
amendment must be applied by the court if it is in effect at the time of the
court’s decision.” Perry, 2017 IL App (1st) 161780, ¶ 40.
See also Institute for Justice, 2017 IL App (1st)162141-U, ¶ 22.
¶ 23 Regarding Perry’s case, the appellate majority stated that:
“as section 2105-117 of the [Department of Professional Regulation Law] only
exempts the complaint and exhibits requested by the plaintiffs from present or
future disclosure, and does not otherwise impair plaintiffs’ rights with respect
to any completed transactions made in reliance on any prior law, its application
has no impermissible retroactive effect. Therefore, the court properly applied
section 2105-117 when ruling on the reconsideration motions and dismissing
plaintiffs’ FOIA request.” Perry, 2017 IL App (1st) 161780, ¶ 41.
¶ 24 The appellate majority rejected Perry’s claim that the circuit court erred in
dismissing Perry’s claim for attorney fees under section 11(i) because section 11(i)
only allows recovery of attorney fees when “ ‘a person seeking the right to inspect
or receive a copy of a public record prevails in a proceeding’ ” under section 11.
(Emphasis omitted.) Id. ¶ 46 (quoting 5 ILCS 140/11(i) (West 2014)). Because
Perry did not prevail in the FOIA proceeding, the appellate majority held that the
circuit court did not err in dismissing the claim for attorney fees. Id. The appellate
majority also rejected Perry’s assertion that the matter should be remanded for a
hearing on the application of civil penalties against the Department under section
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11(j). The appellate majority determined that Perry had forfeited review of this
issue by failing to make an adequate argument regarding the imposition of civil
penalties under section 11(j).
¶ 25 As to the Institute’s case, the appellate majority stated:
“[a]s section 4-24 of the Barber Act only exempts the requested records from
disclosure, and does not otherwise impair the Institute’s rights with respect to
any completed transaction made in reliance on any prior law, its application has
no impermissible retroactive effect. Therefore, the circuit court should have
applied section 4-24, which was in effect at the time of its ruling, and exempted
the requested records from disclosure. Accordingly, we reverse the November
12, 2015, order granting the Institute’s motion for summary judgment, and the
June 30, 2016, order requiring the Department to produce the subject records
and awarding the Institute $35,000 in attorney fees as a prevailing requestor.”
Institute for Justice, 2017 IL App (1st) 162141-U, ¶ 23.
¶ 26 Citing Kalven, 2014 IL App (1st) 121846, ¶ 10, the appellate majority
explained that, as to both cases, its holding was bolstered since Perry and the
Institute had sought “injunctive relief, which is a prospective form of relief for
which the circuit court must apply the law in effect at the time of its decision.”
Perry, 2017 IL App (1st) 161780, ¶ 42; Institute for Justice, 2017 IL App (1st)
162141-U, ¶ 24.
¶ 27 The appellate majority also rejected both Perry’s and the Institute’s arguments
that this court’s decision in People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL
117193, compelled a different result. Further, unlike in J.T. Einoder, Inc., the
application of section 2105-117 in Perry’s case and the application of section 4-24
in the Institute’s case “affect[ ] present or future disclosure of information and
which do[ ] not impose any new liability on past conduct” and thus have “no
impermissible retroactive effect.” (Emphasis in original.) Perry, 2017 IL App (1st)
161780, ¶ 45; Institute for Justice, 2017 IL App (1st) 162141-U, ¶ 28.
¶ 28 Separately, Perry and the Institute petitioned for leave to appeal to this court.
Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). We granted leave to appeal and consolidated
the matters for review.
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¶ 29 ANALYSIS
¶ 30 We must decide whether section 2105-117 of the Department of Professional
Regulation Law and section 4-24 of the Barber Act apply to Perry’s and the
Institute’s requests for information, respectively. 20 ILCS 2105/2105-117 (West
Supp. 2015); 225 ILCS 410/4-24 (West 2016). First, however, we must determine
the proper governing analysis. The standard of review is de novo, as this appeal
presents an issue of statutory construction and also because it arises from a
summary judgment order. See Stern v. Wheaton-Warrenville Community Unit
School District 200, 233 Ill. 2d 396, 404 (2009). “Summary judgment is proper if,
when viewed in the light most favorable to the nonmoving party, the pleadings,
depositions, admissions, and affidavits on file demonstrate that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 93 (2010).
¶ 31 Section 2105-117 provides:
“Confidentiality. All information collected by the Department in the course of
an examination or investigation of a licensee, registrant, or applicant, including,
but not limited to, any complaint against a licensee or registrant filed with the
Department and information collected to investigate any such complaint, shall
be maintained for the confidential use of the Department and shall not be
disclosed. The Department may not disclose the information to anyone other
than law enforcement officials, other regulatory agencies that have an
appropriate regulatory interest as determined by the Director, or a party
presenting a lawful subpoena to the Department. Information and documents
disclosed to a federal, State, county, or local law enforcement agency shall not
be disclosed by the agency for any purpose to any other agency or person. A
formal complaint filed against a licensee or registrant by the Department or any
order issued by the Department against a licensee, registrant, or applicant shall
be a public record, except as otherwise prohibited by law.” 20 ILCS
2105/2105-117 (West Supp. 2015).
¶ 32 Section 4-24 provides:
“Confidentiality. All information collected by the Department in the course of
an examination or investigation of a licensee or applicant, including, but not
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limited to, any complaint against a licensee filed with the Department and
information collected to investigate any such complaint, shall be maintained for
the confidential use of the Department and shall not be disclosed. The
Department may not disclose the information to anyone other than law
enforcement officials, other regulatory agencies that have an appropriate
regulatory interest as determined by the Secretary, or a party presenting a
lawful subpoena to the Department. Information and documents disclosed to a
federal, State, county, or local law enforcement agency shall not be disclosed
by the agency for any purpose to any other agency or person. A formal
complaint filed against a licensee by the Department or any order issued by the
Department against a licensee or applicant shall be a public record, except as
otherwise prohibited by law.” 225 ILCS 410/4-24 (West 2016).
¶ 33 Prior to the effective dates of both sections 2105-117 and 4-24, certain
information collected by the Department could properly be sought and disclosed.
No one contends otherwise. Both Perry and the Institute filed their respective
Illinois FOIA causes of action prior to the effective dates of both sections. Thus,
both Perry’s and the Institute’s cases were pending at the time sections 2105-117
and 4-24 went into effect. If sections 2105-117 and 4-24 are held to apply to Perry’s
and the Institute’s pending causes of actions, then under section 7(1)(a) of the
Illinois FOIA, the information sought would be exempt. See 5 ILCS 140/7(1)(a)
(West 2016) (“Information specifically prohibited from disclosure by federal or
State law or rules and regulations implementing federal or State law.”). By way of
background, section 1 of the Illinois FOIA provides, in part:
“The General Assembly hereby declares that it is the public policy of the
State of Illinois that access by all persons to public records promotes the
transparency and accountability of public bodies at all levels of government. It
is a fundamental obligation of government to operate openly and provide public
records as expediently and efficiently as possible in compliance with this Act.
***
*** This Act shall be construed to require disclosure of requested
information as expediently and efficiently as possible and adherence to the
deadlines established in this Act.” 5 ILCS 140/1 (West 2016).
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¶ 34 Under the Illinois FOIA, statutory exemptions are to be construed narrowly.
Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407
(1997). Additionally, “public records are presumed to be open and accessible.” Id.
“FOIA is to be given a broad construction.” Bowie v. Evanston Community
Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989).
¶ 35 Accordingly, we must decide whether sections 2105-117 and 4-24 apply to
causes of action pending at the time of both sections’ effective dates. We now turn
to the parties’ arguments regarding the proper analysis to employ to determine
whether sections 2105-117 and 4-24 are to apply to Perry’s and the Institute’s
causes of actions. Perry and the Institute assert that this court should simply apply
its retroactivity analysis, which is summarized below. Were section 2105-117 and
section 4-24 to be applied to Perry’s and the Institute’s cases, respectively, Perry
and the Institute contend that application thereof would have a retroactive impact,
which would result in inequitable consequences in contravention of J.T. Einoder,
Inc. and strip them of their accrued causes of actions under Illinois FOIA, which
they contend became vested rights, their entitlement to the requested documents
and attorney fees, and their settled expectations regarding the law at the time of the
requests.
¶ 36 The Department maintains that this court need not utilize a retroactivity
analysis because Perry and the Institute seek declaratory and injunctive relief.
According to the Department, because declaratory relief allows a court to announce
the scope of a person’s present right to information and injunctive relief allows it to
order the public body to disclose information in the future based on present rights,
the application of a statute that becomes effective during a pending FOIA action is
not retroactive. A law applies if it is effective at the time the court determines,
under current law, whether a public body can be ordered to disclose information in
the future. Because FOIA determines present rights, not past rights, the Department
maintains that there can be no vested right at issue, as prospective relief merely
allows a court to declare present rights and order future compliance with those
rights. Therefore, because “prospective relief is the only relief available here, the
court need not engage in Illinois’s modified Landgraf retroactivity analysis.”
¶ 37 The Department explains that, “[u]nlike in the typical Landgraf analysis, the
court is not looking back at an event and applying present law to a past moment to
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determine whether a right that vested should remain free from interference . . . [a]nd
because it is not retrospectively assessing the legality of a past event involving a
vested right, no present laws are being applied retroactively.” In response to the
Department’s prospective relief argument, Perry and the Institute claim that they
are both actually seeking retrospective relief in the form of a mandatory injunction
to remedy the Department’s past misconduct.
¶ 38 We begin by detailing Illinois’s retroactivity jurisprudence, which parties still
appear to be confused by, understandably, given its convoluted and muddled
evolution. See Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27,
33 (2001) (describing First of America Trust Co. v. Armstead, 171 Ill. 2d 282,
287-88 (1996), as “[r]ecognizing that the principles for determining whether a
statutory amendment applies to an existing controversy on appeal ha[s] ‘not been
consistently stated’ ”); Kopec v. City of Elmhurst, 193 F.3d 894, 906 (7th Cir. 1999)
(Posner, C.J., dissenting) (“Illinois law on retroactivity is in a state of some
muddle”); Orlicki v. McCarthy, 4 Ill. 2d 342, 346 (1954) (acknowledging that
various Illinois decisions considered the issue of retrospectivity in the context of
vested or nonvested rights, jurisdiction, whether a provision is substantive or
procedural, legislative intent, by statutes of construction, or by a combination
thereof).
¶ 39 In Commonwealth Edison Co., this court adopted the United States Supreme
Court’s retroactivity analysis as set forth in Landgraf, 511 U.S. 244.
Commonwealth Edison Co., 196 Ill. 2d at 39. We adopted the Landgraf analysis
“with its focus on legislative intent, because we believed it provided the appropriate
framework for evaluating whether a new law should apply to existing
controversies.” Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 411 (2009). Thus, with
our adoption of the Landgraf approach, we “switched the focus of the first step of
the retroactivity analysis from ‘vested rights’ to legislative intent.” Id.
¶ 40 Under step one of Landgraf, a court first determines whether the legislature has
“ ‘expressly prescribed’ ” the temporal reach of the new law. See Commonwealth
Edison Co., 196 Ill. 2d at 39-40 (quoting Landgraf, 511 U.S at 280). If the
legislature has clearly indicated the temporal reach, then such temporal reach must
be given effect unless to do so would be constitutionally prohibited. Id. at 42-43.
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¶ 41 However, in Caveney v. Bower, this court subsequently explained that, in light
of section 4 of the Statute on Statutes, Illinois courts need not go beyond step one of
the Landgraf approach. 207 Ill. 2d 82, 94 (2003). Step two of Landgraf is triggered
where the legislature’s intent as to temporal reach is not clear. But, as has
repeatedly been explained, if the temporal reach has not been clearly indicated
within the text of the new law, then the legislature’s intent as to temporal reach is
provided by default in section 4. People v. Hunter, 2017 IL 121306, ¶¶ 21-22;
People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 20; Caveney, 207 Ill. 2d at
100 (Freeman, J., specially concurring, joined by McMorrow, C.J., and Kilbride, J.)
(“the court errs when it holds that section 4 serves as the clear expression of
legislative intent that is contemplated in the first step of the Landgraf analysis”).
¶ 42 Moreover, where the legislature has not expressly indicated its intent as to
temporal reach, “a presumption arises that the amended statute is not to be applied
retroactively.” J.T. Einoder, Inc., 2015 IL 117193, ¶ 34. As we noted in Hunter,
section 4 of the Statute on Statutes was adopted in 1874 and has never been
amended. 2017 IL 121306, ¶ 21; see Ill. Rev. Stat. 1874, ch. 131, § 4 (Hurd 1874).
Section 4 provides:
“No new law shall be construed to repeal a former law, whether such former
law is expressly repealed or not, as to any offense committed against the former
law, or as to any act done, any penalty, forfeiture or punishment incurred, or
any right accrued, or claim arising under the former law, or in any way
whatever to affect any such offense or act so committed or done, or any penalty,
forfeiture or punishment so incurred, or any right accrued, or claim arising
before the new law takes effect, save only that the proceedings thereafter shall
conform, so far as practicable, to the laws in force at the time of such
proceeding. If any penalty, forfeiture or punishment be mitigated by any
provisions of a new law, such provision may, by the consent of the party
affected, be applied to any judgment pronounced after the new law takes effect.
This section shall extend to all repeals, either by express words or by
implication, whether the repeal is in the act making any new provision upon the
same subject or in any other act.” 5 ILCS 70/4 (West 2016).
¶ 43 “Section 4 is a general savings clause, which this court has interpreted as
meaning that procedural changes to statutes will be applied retroactively, while
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substantive changes are prospective only.” Howard, 2016 IL 120729, ¶ 20 (citing
People v. Glisson, 202 Ill. 2d 499, 506-07 (2002)). If a statutory change is
procedural, then the change will apply retroactively, i.e., to pending cases in the
absence of a constitutional impediment to such retroactive application. Hunter,
2017 IL 121306, ¶ 23. As made clear in Hunter, section 4 of the Statute on Statutes
“contemplates the existence of proceedings after the new or amended statute is
effective to which the new procedure could apply.” Id. ¶ 31; see also People v. Zito,
237 Ill. 434, 438 (1908) (under section 4, “what remained to be done” must
conform to the mode of procedure under the new act). Conversely, if a statutory
change is substantive, then the change is not to be applied retroactively. J.T.
Einoder, Inc., 2015 IL 117193, ¶ 36; Caveney, 207 Ill. 2d at 95-96; Glisson, 202 Ill.
2d at 507.
¶ 44 Thus, after determining that a change is substantive, we need not reach the issue
of whether application of the substantive change would have a retroactive impact or
operation. Were we to undertake this inquiry, we would essentially be engaging in
step two of the Landgraf analysis, which this court does not utilize. See Caveney,
207 Ill. 2d at 95 (“Thus, for purposes of Landgraf’s first step, the legislature always
will have clearly indicated the temporal reach of an amended statute, either
expressly in the new legislative enactment or by default in section 4 of the Statute
on Statutes.” (Emphasis in original.)).
¶ 45 To illustrate this distinction, we cite the Landgraf analysis:
“When a case implicates a federal statute enacted after the events in suit, the
court’s first task is to determine whether Congress has expressly prescribed the
statute’s proper reach. If Congress has done so, of course, there is no need to
resort to judicial default rules. When however, the statute contains no such
express command, the court must determine whether the new statute would
have retroactive effect, i. e., whether it would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute would
operate retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a result.” Landgraf, 511
U.S. at 280.
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¶ 46 Thus, under the Landgraf analysis, federal courts will engage in a retroactive
impact inquiry if a statute’s reach has not been expressly prescribed. Landgraf, 511
U.S. 244. Conversely, this court has made clear that, where our legislature has not
expressly indicated the temporal reach of a change in law, we look to whether the
change is procedural or substantive, at which point our focus is still upon
discerning “legislative intent.” Hunter, 2017 IL 121306, ¶ 22; Howard, 2016 IL
120729, ¶ 20; J.T. Einoder, Inc., 2015 IL 117193, ¶¶ 31-32; Allegis Realty
Investors v. Novak, 223 Ill. 2d 318, 331-32 (2006); Caveney, 207 Ill. 2d at 92. If
step two of Landgraf considers retroactive operation to discern temporal reach, a
step which this court never reaches, it follows that our inquiry into legislative intent
ends upon determining that a change is substantive. Before proceeding further
under Illinois’s retroactivity analysis, we now turn to the Department’s arguments
as to why a retroactivity analysis need not be applied.
¶ 47 Department’s Prospective Relief Argument
¶ 48 In support of its argument that a retroactivity analysis is inapplicable where
prospective relief is sought, the Department relies upon several cases. We now
examine each in turn, beginning with the Illinois cases.
¶ 49 First, the Department cites Wisniewski v. Kownacki, 221 Ill. 2d 453 (2006). In
Wisniewski, the plaintiff sought discovery of a defendant priest’s (Kownacki)
mental health and alcohol-abuse counseling records in connection with the
plaintiff’s lawsuit alleging in part that defendant had sexually abused him. Id. at
455. The church, also a defendant, objected, citing two Illinois statutes that made
such records not subject to disclosure. Id. at 455-56. Specifically, defendants
claimed that the records were privileged under the Mental Health and
Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS
110/1 et seq. (West 2002)) and the Alcoholism and Other Drug Abuse and
Dependency Act (Dependency Act) (20 ILCS 301/30-5 et seq. (West 2002)).
Wisniewski, 211 Ill. 2d at 455-56. This court explained:
“Plaintiff argues that applying the nondisclosure provisions of the
Confidentiality Act and the Dependency Act to Kownacki’s preenactment
treatment records would have a retroactive impact because it would impose
new duties with respect to documents and transactions completed years before
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the statutes’ enactment. We reject this argument and conclude that the
applicability of the Confidentiality Act and the Dependency Act to Kownacki’s
treatment records does not hinge upon a retroactivity analysis. Disclosure,
which is the act regulated by both statutes, takes place only in the present or the
future. Thus, any new duties regarding disclosure or nondisclosure would
likewise be imposed only in the present or the future, not in the past. In other
words, applying the nondisclosure provisions of the Confidentiality Act and the
Dependency Act to preenactment treatment records and communications would
not impair anyone’s rights with respect to past transactions. Neither statute
impacts any actions that may have taken place in the past with regard to
Kownacki’s records. For these reasons, we conclude that the Confidentiality
Act and the Dependency Act are applicable to treatment records and
communications that were created pursuant to treatment given prior to the
effective dates of those statutes.” (Emphasis added.) Id. at 462-63.
¶ 50 The Department asserts that, in Wisniewski, this court “faced the question of
whether the future disclosure of information had any retroactive impact” and
“correctly concluded that it did not.” The Department also points to the italicized
portion above for support that, because disclosure occurs only in the future, a
retroactivity analysis is inapplicable.
¶ 51 We disagree. Wisniewski analyzed whether the nondisclosure provisions of the
Confidentiality Act and the Dependency Act could be applied to treatment records
that were created nearly 20 years before either act’s effective date. Id. at 462.
Moreover, both the Confidentiality Act and the Dependency Act’s effective dates
predated the discovery requests and filing of the lawsuit. Id. at 455-56, 458-59.
Specifically, the Confidentiality Act became effective on January 9, 1979, and the
Dependency Act became effective on July 1, 1988. Id. at 458-59. It was not until
October 2002, after the Confidentiality Act and Dependency Act became effective,
that the plaintiff filed the lawsuit and subsequently sought disclosure of the subject
documents. Id. at 455. Thus, Wisniewski does not stand for the broad proposition
that, in any context, disclosure of information can only occur in the present or
future and therefore that a retroactivity analysis will never apply. We find
Wisniewski distinguishable.
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¶ 52 Second, the Department cites Hayashi v. Illinois Department of Financial &
Professional Regulation as also standing for the proposition that a retroactivity
analysis is inapplicable where only prospective relief is at issue. 2014 IL 116023,
¶ 25 (citing Cox v. Hart, 260 U.S. 427, 435 (1922) (“A statute is not made
retroactive merely because it draws upon antecedent facts for its operation.”)).
Relevant here, at issue in Hayashi was section 2105-165 of the Department of
Professional Regulation Law (Act) (20 ILCS 2105/2105-165 (West 2012)), which
mandated the permanent revocation, without a hearing, of the license of a health
care worker who had been convicted of specific criminal offenses. Hayashi,
161023, ¶ 8. After the Act went into effect, the Department sent notices to the three
plaintiffs, whose cases were consolidated for review, informing each that the
Department intended to revoke their licenses pursuant to the Act because each had
been convicted of one of the specified crimes. Id. ¶¶ 9, 11. Plaintiffs filed separate
actions seeking injunctive relief and a judicial declaration that the Act applied only
to convictions postdating the Act’s effective date. Id. ¶ 8. Plaintiffs’ licenses were
revoked by administrative order. Id.
¶ 53 This court determined that “the plain language of the Act clearly indicate[d]
that the legislature intended it to apply to convictions predating its effective date.”
Id. ¶ 17. Next, the court considered plaintiffs’ argument that, even if they fell
“within the plain language of the Act based on their prior convictions, the
application of section 2105-165 to them is impermissibly retroactive in violation of
their substantive due process rights.” Id. ¶ 22. We explained:
“Applying the Landgraf test to the Act, we find that the legislature plainly
indicated the temporal reach by stating that the license of a health care worker
who has been convicted of one of the triggering offenses shall by operation of
law be permanently revoked without a hearing. [Citation.] The Act provides
that revocation of health care licenses pursuant to its provisions takes place
only after its effective date. Thus, the Act is solely prospective and not
retroactive in its operation. That being so, there is no need to turn to the
alternative statutory sources suggested by plaintiffs in order to define the
temporal reach of the Act. Section 4 of the Statute on Statutes [citation] controls
by default only where the legislature has not clearly defined the temporal reach
of a statute. [Citation.] If the legislature has clearly indicated the temporal reach
of a provision, section 4 is inapplicable. [Citation.]” Id. ¶ 24.
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¶ 54 However, despite the court’s conclusion regarding the plainly indicated intent
as to prospective reach, plaintiffs argued that the Act was retroactive “as applied to
them because their health care licenses were revoked as a consequence of their
prior convictions.” Id. ¶ 25. Noting that the Act relied upon antecedent facts for its
operation, this court explained that the Act did not apply retroactively to plaintiffs
because the Act defined “new per se eligibility requirements with which licensees
must comply in order to practice their health care professions in Illinois.” Id. ¶ 26.
Citing Wisniewski, this court explained that “[a]n amended statute which creates
new requirements to be imposed in the present or future, and not in the past, does
not have a retroactive impact on the parties.” Id. Because the Act affected only the
present and future eligibility of plaintiffs to continue to use their health care
licenses, the court stated that the impact of applying the Act to plaintiffs was thus
“solely prospective and not impermissibly retroactive within the meaning of the
test articulated in Landgraf.” Id.
¶ 55 Like Wisniewski, Hayashi does not support the Department’s argument. First
and foremost, Hayashi is distinguishable because the legislature had clearly
prescribed the temporal reach of the Act, unlike in the present cases. In such cases
where temporal reach is not clearly expressed, as here, the analysis is instead
guided by section 4 of the Statute on Statutes. Second, Hayashi did not involve the
issue of whether the amended statute could properly be applied to a pending cause
of action. In Hayashi, all three plaintiffs initiated suit after the amendment went
into effect.
¶ 56 Finally, the Department relies upon several federal cases to support its assertion
that, where prospective relief is sought, a retroactivity analysis does not govern.
¶ 57 Every federal case cited by the Department involves an analysis of the second
step of Landgraf, which Illinois courts never reach. See, e.g., Center for Biological
Diversity, 626 F.3d at 1118; City of Chicago v. United States Department of the
Treasury, Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777, 783 (7th Cir.
2005); Southwest Center for Biological Diversity v. United States Department of
Agriculture, 314 F.3d 1060, 1062 (9th Cir. 2002).
¶ 58 In its brief, the Department asserts that Perry and the Institute “start from the
misunderstanding that a right to information vested at some point before the
intervening amendments became effective.” Rather, the Department starts from the
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misunderstanding that Illinois courts will skip over section 4 of the Statute on
Statutes and instead conduct a retroactive impact inquiry. See Thomas v.
Guardsmark, LLC, 487 F.3d 531, 536-37 (7th Cir. 2007) (“[A]n Illinois court (and
consequently, a federal court applying substantive Illinois law) need never go
beyond step one of the Landgraf test.”). As previously mentioned, Illinois courts do
not utilize the second step of Landgraf, which considers whether (1) there would be
an impairment of a party’s rights that such party possessed when he or she acted,
(2) a party’s liability for past conduct would be increased, or (3) there would be an
imposition of new duties with respect to transactions already completed. Landgraf,
511 U.S. at 280. Nor do we look to the point in time at which the relief sought could
be effectuated to determine the legislative intent as to temporal reach. In
determining whether to apply a change in law to a pending cause of action, Illinois
courts simply consider the legislature’s intent, moving on to constitutional
prohibitions only if the legislature evinces an intent for retroactive operation.
¶ 59 Although the Department does not cite Kalven, to the extent that the appellate
majority relied upon Kalven for the proposition that, “[w]hen claims are
prospective, a court must apply the law that is in effect at the time of its decision,”
the appellate majority’s reliance was misplaced. See Kalven, 2014 IL App (1st)
121846, ¶ 10. For this proposition, the Kalven court cited Bartlow v. Costigan,
2014 IL 115152, ¶¶ 30-31, and Forest Preserve District v. City of Aurora, 151 Ill.
2d 90, 94-95 (1992). Kalven, 2014 IL App (1st) 121846, ¶ 10. However, both
Bartlow and City of Aurora were addressing the context-specific issue of whether a
constitutional challenge to a statute was rendered moot by amendment. See, e.g.,
Bartlow, 2014 IL 115152; City of Aurora, 151 Ill. 2d 90. Thus Bartlow and City of
Aurora are inapplicable where, as here, no constitutional challenges to the
enforcement of a statute have been made and therefore mootness is not at issue.
¶ 60 Accordingly, to the extent that Kalven conflicts with our decision herein, it is
hereby overruled. See 2014 IL App (1st) 121846, ¶ 10.
¶ 61 Vested Rights
¶ 62 We note that the parties contest whether any vested rights are at issue so as to
bar retroactive application of section 2105-117 and section 4-24 to Perry’s and the
Institute’s causes of actions, respectively. For example, the Department cites
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Armstead for the proposition that “there is no vested right in the mere continuance
of a law” and that “[t]he legislature has an ongoing right to amend a statute.” 171
Ill. 2d at 291.
¶ 63 Under the vested rights approach, if an amendment had no retroactive impact, a
court would not apply further rules of construction to determine legislative intent.
Id. at 290 (“a reviewing court should simply apply the law as it exists at the time of
the appeal, unless doing so would interfere with a vested right”). The vested rights
approach is founded upon an understanding of “true retroactivity,” under which a
change in law is retroactive if it “takes away or impairs the vested rights acquired
under existing laws, or creates a new obligation, imposes a new duty, or attaches a
new disability in respect of transactions or considerations already past.” (Internal
quotation marks omitted.) Commonwealth Edison Co., 196 Ill. 2d at 34 (quoting
Armstead, 171 Ill. 2d at 290). For illustration, Black’s Law Dictionary contains a
selected quotation referencing “true retroactivity” under its definition of
“retroactivity”:
“ ‘Retroactivity’ is a term often used by lawyers but rarely defined. On analysis
it soon becomes apparent, moreover, that it is used to cover at least two distinct
concepts. The first, which may be called ‘true retroactivity,’ consists in the
application of a new rule of law to an act or transaction which was completed
before the rule was promulgated. The second concept, which will be referred to
as ‘quasi-retroactivity,’ occurs when a new rule of law is applied to an act or
transaction in the process of completion. . . . [T]he foundation of these concepts
is the distinction between completed and pending transactions . . . .” (Internal
quotation marks omitted.) Black’s Law Dictionary 1511-12 (10th ed. 2014)
(quoting Trevor C. Hartley, The Foundations of European Community Law 129
(1981)).
¶ 64 Illinois courts no longer utilize a vested rights analysis to determine temporal
reach. See Commonwealth Edison Co., 196 Ill. 2d at 39 (“[W]e hereby adopt the
approach to retroactivity set forth in Landgraf.”). To consider whether a right has
vested necessarily involves an inquiry into retroactive impact, which would
contravene this court’s repeated holding that we do not reach step two of Landgraf.
Hunter, 2017 IL 121306, ¶ 21; Howard, 2016 IL 120729, ¶ 29. If a provision is a
substantive change such that it is only to be applied prospectively, and not to a
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pending cause of action, it follows that a court would never consider if retroactive
application thereof would have an impermissible retroactive impact upon a vested
right. See Kopec, 193 F.3d at 906-07 (Posner, C.J., dissenting) (“the older approach
of Illinois law to issues of retroactivity, an approach that may have retained some
vitality despite Armstead,” “created a presumption *** against the retroactive
application of a statute that makes a substantive change”)). Stated differently, a
lack of retroactive impact in a pending case does not somehow negate or trump the
legislature’s intent that a change of law is to be applied to future cases only. See
Commonwealth Edison Co., 196 Ill. 2d at 47 (noting that, although Henrich v.
Libertyville High School, 186 Ill. 2d 381 (1998), “was decided under the principles
espoused in Armstead,” Henrich remained “relevant in this case insofar as it
defines those interests that are protected from legislative interference by the due
process clause of the Illinois Constitution”)). If, however, the legislature indicates
that it wants a change of law to be applied retroactively, then a court must ask
whether effectuating the legislature’s intent would be constitutionally prohibited,
which in turn would take into account vested rights, as such rights are
constitutionally protected. In sum, the Department is arguing for an
“impact-before-intent” analytical approach that no longer finds support in Illinois
law. We now apply Illinois’s retroactivity analysis.
¶ 65 Legislative Intent as to Temporal Reach
¶ 66 We first ask whether the legislature has clearly prescribed the temporal reach of
sections 2105-117 and 4-24. Examining the plain language of both sections, we
find that the legislature has not done so. To illustrate, we note that the legislature is
undoubtedly aware of how to clearly indicate its intent that a statute apply to causes
of action currently pending in the courts. Lazenby, 236 Ill. 2d at 95 (“Section 9(f)
states that ‘[t]his Section applies to all causes of action that have accrued, will
accrue, or are currently pending before a court of competent jurisdiction, including
courts of review.’ ” (quoting 425 ILCS 25/9f (West 2004))); Doe A., 234 Ill. 2d at
407 (Section 13-202.2(e) “specifically provides that the 2003 amendment applies
to actions pending when the changes took effect on July 24, 2003, as well as to
‘actions commenced on or after that date.’ ” (quoting 735 ILCS 5/13-202.2(e)
(West 2006))); Allegis Realty Investors, 223 Ill. 2d at 333 (General Assembly
expressly indicated temporal reach where new section was “specifically directed to
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specified Road District taxes authorized by electors at annual or special township
meetings during certain years prior to Public Act 94-692’s enactment”);
Commonwealth Edison Co., 196 Ill. 2d at 42 (amendments expressly stated that the
amendments’ validation of taxes “applies to all cases pending on or after the
effective date of this amendatory Act of 1994” and one amendment also expressly
validated levies adopted “either before, on or after the effective date of [the Act]”
(internal quotation marks omitted)).
¶ 67 We also presume that the legislature is fully aware of both section 4 and this
court’s case law. In re Marriage of O’Neill, 138 Ill. 2d 487, 495 (1990) (“It is a
well-established principle of statutory construction that ‘where terms used in [a]
statute have acquired a settled meaning through judicial construction ***, they are
to be understood and interpreted in the same sense theretofore attributed to them by
the court ***.” (quoting People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75,
78-79 (1935))).
¶ 68 Because the legislature has not expressly prescribed its intent as to the temporal
reach of either section 2105-117 or section 4-24, we now discern the legislature’s
intent by examining whether sections 2105-117 and 4-24 are procedural or
substantive changes in law. Hunter, 2017 IL 121306, ¶ 22; Howard, 2016 IL
120729, ¶ 28; Glisson, 202 Ill. 2d at 506-07. At the outset, we note that the
Department takes no position on whether the changes made by sections 2105-117
and 4-24 are properly characterized as substantive or procedural due to its
wholesale reliance upon its prospectivity argument.
¶ 69 As has previously been acknowledged by our case law, distinguishing between
procedural and substantive changes can sometimes be unclear. See People v.
Atkins, 217 Ill. 66, 71-72 (2005). “Procedural ramifications of a substantive
amendment do not make the amendment procedural.” Id. at 73. To aid our analysis,
we turn to several dictionary definitions. Webster’s Third New International
Dictionary provides the following definitions: “procedural” is defined as “of or
relating to procedure <~ details>; esp : of or relating to the procedure used by courts
or other bodies (as governmental agencies) in the administration of substantive law
(~ due process)” (Webster’s Third New International Dictionary 1807 (2002));
“procedure,” as relevant here, is defined as “an established way of conducting
business (as of a deliberative body): as *** (2) : the established manner of
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conducting judicial business and litigation including pleading, evidence, and
practice” (Webster’s Third New International Dictionary 1807 (2002)); and
“substantive law” is defined as “a branch of law that prescribes the rights, duties,
and obligations of persons to one another as to their conduct or property and that
determines when a cause of action for damages or other relief has arisen”
(Webster’s Third New International Dictionary 2280 (2002)).
¶ 70 Black’s Law Dictionary defines “procedural law” as “[t]he rules that prescribe
the steps for having a right or duty judicially enforced, as opposed to the law that
defines the specific rights or duties themselves.” Black’s Law Dictionary 1398
(10th ed. 2014). “Substantive law” is in turn defined as “[t]he part of the law that
creates, defines, and regulates the rights, duties, and powers of the parties.” Black’s
Law Dictionary 1658 (10th ed. 2014).
¶ 71 Because both sections 2105-117 and 4-24 alter the scope of information that is
accessible, both amendments are substantive changes. The scope of accessible
information necessarily determines whether a cause of action would arise or accrue
under the Illinois FOIA. Certainly, sections 2105-117 and 4-24 do not speak to
pleading, evidence, or steps and practice. Nor can sections 2105-117 or 4-24 be
said to be changes to special remedial statutes. See Glisson, 202 Ill. 2d at 509
(“courts can apply retroactively statutory changes to procedural or remedial
provisions”). Having determined that sections 2105-117 and 4-24 are substantive
changes in law, sections 2105-117 and 4-24 may not be retroactively applied to
either Perry’s or the Institute’s causes of actions. See Caveney, 207 Ill. 2d at 92.
Fatally, the Department “has not directed our attention to anything in the United
States or Illinois Constitution which would prohibit the law[s] from being applied”
in this way. See People v. Brown, 225 Ill. 2d 188, 201 (2007).
¶ 72 The Department asserts that both Perry and the Institute always had and still
have causes of action under section 11 of the Illinois FOIA but that sections
2105-117 and 4-24 changed Perry’s and the Institute’s present right to information.
This argument is unpersuasive, as we have already rejected the Department’s
prospective relief argument. Before the effective dates of sections 2105-117 and
4-24, a party could seek and potentially obtain the type of information sought by
Perry and the Institute. Today, a party would not be able to do so.
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¶ 73 Briefly, we note that any concern that our holding would impermissibly order a
public officer to disclose documents which the legislature has dubbed confidential
and therefore exempt from disclosure under section 7 of the Illinois FOIA is
baseless. See 5 ILCS 140/7(1)(a) (West 2016). Such an argument would mean that
a court would have to ignore the legislature’s clear intent. If the legislature has
made clear that a change in law is not to apply to pending causes of action, then it
follows that, in select cases, a public official is not legally constrained by a new
provision.
¶ 74 In a similar vein, as to the Institute’s case, the Department insinuates that,
because the Institute’s complaint sought disclosure of documents “from 2011 to the
present,” that the word “present” is still operative in the future sense. However, the
circuit court already determined that the word “present” meant until December 23,
2013, ordering that “[d]efendant shall provide to Plaintiff ‘[a]ll complaints
regarding licensed cosmetologists and hair braiders received by the Board from
January 1, 2011 to December 23, 2013.’ ” Further, the record also reveals that the
Department understood “present” to hold the same meaning. In its response to
Perry’s motion to establish the scope of document production, the Department
contended “the scope of the FOIA request only extends from 2011 to September
12, 2013.”
¶ 75 As to relief, Perry requests that the grant of summary judgment for the
Department be reversed with direction to provide the documents as redacted and
further that this matter be remanded for further hearings as to the application and
assessment of costs as permitted under section 11(j) or other relief as this court
deems just and proper. See 5 ILCS 140/11(j) (West 2016) (“If the court determines
that a public body willfully and intentionally failed to comply with this Act, or
otherwise acted in bad faith, the court shall also impose upon the public body a civil
penalty of not less than $2,500 nor more than $5,000 for each occurrence.”). We
reverse the grant of summary judgment for the Department with directions that the
circuit court hold a hearing to reconsider whether Perry is also entitled to disclosure
of the subject complaint in a redacted form and, if Perry is the prevailing party,
whether Perry is entitled to attorney fees under section 11(i). See 5 ILCS 140/11(i)
(West 2016) (“If a person seeking the right to inspect or receive a copy of a public
record prevails in a proceeding under this Section, the court shall award such
person reasonable attorney’s fees and costs.”).
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¶ 76 With respect to Perry’s request for a hearing to be held on section 11(j)
penalties, we note the Department’s argument that Perry forfeited any claim for
penalties and makes no argument to this court that the appellate court’s forfeiture
finding was an abuse of discretion. See Perry, 2017 IL App (1st) 161780, ¶ 47.
However, we are also mindful of the fact that the circuit court mistakenly made no
finding on whether the Department willfully and intentionally violated FOIA due to
its erroneous belief it need not reach the issue after concluding that Perry was not
entitled to the information. Regardless, forfeiture does not serve as a jurisdictional
bar to this court’s ability to reach the issue. People v. Peterson, 2017 IL 120331,
¶ 67. Though we express no view upon whether the Department willfully and
intentionally violated the Illinois FOIA, we direct the circuit court to hold a hearing
on section 11(j) civil penalties, as it should have in the first instance.
¶ 77 With respect to the Institute, we reverse the appellate court’s order and reinstate
the circuit court’s grant of summary judgment in favor of the Institute.
¶ 78 CONCLUSION
¶ 79 Illinois’s retroactivity analysis governs where a change of law becomes
effective during the pendency of a lawsuit. Because the legislature did not clearly
prescribe its intent as to whether sections 2105-117 and 4-24 should be applied to
pending lawsuits, we considered whether, under section 4 of the Statute on Statutes,
the changes in law are procedural or substantive. As both sections 2105-117 and
4-24 are substantive changes to the law, sections 2105-117 and 4-24 are to apply
prospectively only. Accordingly, as to Perry, we reverse the grant of summary
judgment for the Department with directions that the circuit court hold a hearing to
reconsider whether Perry is also entitled to disclosure of the subject complaint in a
redacted form and, if Perry is the prevailing party, whether Perry is entitled to
attorney fees under section 11(i). See 5 ILCS 140/11(i) (West 2016). We also direct
the circuit court to hold a hearing on section 11(j) civil penalties. With respect to
the Institute, we reverse the appellate court’s order and reinstate the circuit court’s
grant of summary judgment in favor of the Institute.
¶ 80 No. 122349, Reversed.
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¶ 81 No. 122411, Reversed and remanded with directions.
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