Garlick v. Naperville Township

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Appellate Court Date: 2017.11.08
08:45:54 -06'00'
Garlick v. Naperville Township, 2017 IL App (2d) 170025
Appellate Court WARREN R. GARLICK, Plaintiff-Appellant, v. NAPERVILLE
Caption TOWNSHIP, Defendant-Appellee.
District & No. Second District
Docket No. 2-17-0025
Filed September 15, 2017
Decision Under Appeal from the Circuit Court of Du Page County, No. 14-CH-2263;
Review the Hon. Paul M. Fullerton, Judge, presiding.
Judgment Affirmed.
Counsel on Warren R. Garlick, of River Forest, appellant pro se.
Appeal
Steven B. Adams, Kenneth M. Florey, and M. Neal Smith, of Robbins,
Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices McLaren and Zenoff concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Warren R. Garlick, sought, under the Freedom of Information Act (Act) (5 ILCS
140/1 et seq. (West 2016)), from defendant, Naperville Township, an electronic copy of its
real-property database in its native file format. The township declined to provide an electronic
copy of the database, but it directed plaintiff to its website, where he could search for the
records on a parcel-by-parcel basis. 5 ILCS 140/8.5 (West 2016). Plaintiff, pro se, filed a
complaint for declaratory and injunctive relief, arguing that access to the data on a
parcel-by-parcel basis on the website did not constitute reasonable access. See id. The trial
court granted the township’s motion to dismiss. This court reversed and remanded, holding
that plaintiff properly pleaded the reasonable-access claim, which presented a question
appropriately addressed in a summary judgment motion or at trial. Garlick v. Naperville
Township, 2016 IL App (2d) 150381-U, ¶ 27.
¶2 On remand, upon the parties’ cross-motions for summary judgment, the trial court denied
plaintiff’s motion and granted the township’s. The court rejected plaintiff’s claim that because
industry-wide database standards could be expressed in only a few ways, there was no
intellectual-property protection over any database. It also found that two statutory exemptions
applied to preclude disclosure of the database in its native file format because the township’s
software vendor, JRM Consulting, Inc. (JRM), asserted confidentiality, trade secret, and
copyright claims over its intellectual property. 5 ILCS 140/7(1)(a) (West 2016) (information,
such as copyrights or trade secrets that are prohibited from disclosure by federal or state law);
5 ILCS 140/7(1)(g) (West 2016) (proprietary or confidential trade secret or financial
information, where disclosure would cause competitive harm). Plaintiff, pro se, appeals. We
affirm.
¶3 I. BACKGROUND
¶4 A. Proceedings Leading to First Appeal
¶5 Plaintiff is a resident of River Forest, which is situated in Cook County. The township is a
unit of local government situated in Du Page County and a “public body” under the Act. 5
ILCS 140/2(a) (West 2016).
¶6 The township assesses all real property within its boundaries for local taxation purposes.
There are about 32,000 real property records on parcels within its jurisdiction. As part of the
assessment process, the township gathers, assembles, and maintains information concerning
the valuation and assessment of the parcels. The information is entered into and stored in a
database that the township commissioned.
¶7 As part of the database system, a webserver allows the public to retrieve property
information on a parcel-by-parcel basis from the database. The server does not allow a user to
search multiple parcels at one time. Further, a user cannot perform a search based on any other
property information on the data-display page, such as property size or age and number of
bedrooms or bathrooms. Nor can one perform a collective statistical analysis of the parcels.
¶8 On December 4, 2014, plaintiff submitted to the township a request pursuant to the Act
(FOIA request). First, he noted that the township’s website “enables the public to search for
property details based on” parcel numbers and that the details are stored in the database (“most
likely [Microsoft] SQL Server or MySQL”). Further, “[p]ursuant to FOIA, I request a copy of
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this database in its native file format,” which “refers to the file format which the application
works with during creation, edition or publication of a file.” 1 Second, as to photographs,
improvement sketches, and site maps, all of which were in the form of .jpeg files and were not
contained in the database, plaintiff sought a copy of the “N07” root or parent directory and all
subdirectories, including the .jpeg files stored therein, preserved onto a suitable electronic
medium. Plaintiff stated that his request was “nothing more than a simple ‘copy and paste’ of
the database in question to a suitable electronic media (such as a DVD) along with a similar
‘copy and paste’ of the ‘N07’ directory and all subdirectories and files beneath that directory.”
¶9 On December 12, 2014, the township sent plaintiff a letter denying his request. It asserted
that, pursuant to section 8.5 of the Act (5 ILCS 140/8.5 (West 2016)), which had been recently
enacted, it was no longer required to provide these electronic records in the manner or format
that plaintiff had requested because it had posted the information on its website. It directed
plaintiff to the website for the data, noting that it consisted of over 32,000 individual property
records.
¶ 10 The township further stated:
“The property records software, as currently constituted, is incapable of generating
assessment records on a Township-wide basis. In addition, it is not feasible to provide
the records requested, as the Assessor’s Office does not have possession of or access to
the database in its native file format. (See 5 ILCS 104/6(a)). Nor is the Assessor’s
Office required to create such a file under [the Act]. (See 5 ILCS 140/1).”
The township also stated that although plaintiff’s request was silent on the issue, the township
was treating his request as a commercial request.
¶ 11 On December 19, 2014, plaintiff filed against the township his complaint for declaratory
and injunctive relief, alleging a violation of the Act. 5 ILCS 140/11(a) (West 2014). He
asserted that his request amounted to “nothing more than a single ‘cut and paste’ operation,
imposing no significant burdens on the Township.” Plaintiff argued that the township was
compelling him to launch 32,000 independent web database search queries and to copy and
paste each of them into a table of his own creation. He estimated that such a project would
involve over 2600 hours of his time, which could not have been the General Assembly’s intent
in enacting section 8.5. Addressing the township’s claim that it could not feasibly provide the
requested records, plaintiff asserted that the township possessed and had access to the data,
which was stored on its local server at its office and backed up in the “cloud.” He also asserted
that copying the database did not constitute the creation of a new record that the township had
no statutory obligation to provide.
¶ 12 The township moved under section 2-615 of the Code of Civil Procedure (Code) (735
ILCS 5/2-615 (West 2016)) to dismiss plaintiff’s complaint, arguing that plaintiff failed to
state a cause of action under the Act because (1) the Act unambiguously no longer required a
public body to copy public records that are available online, (2) the undisputed facts showed
that plaintiff had reasonable access to the records he requested and that section 8.5 of the Act
did not dictate how or in what form records must be posted online, (3) the legislative history
supported the township’s position, and (4) the Act did not require a public body to spend funds
to benefit private individuals, such as by creating, maintaining, or producing records in a
specific format. Accordingly, the township sought dismissal with prejudice. (The motion did
1
Subsequently, plaintiff clarified that the native file format is the SQL Server format.
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not address the township’s statement in its denial letter that its software was incapable of
generating the records on a township-wide basis or that it did not possess or have access to the
database in its native file format.)
¶ 13 After a hearing, the trial court granted the township’s motion, finding that (1) the township
complied with section 8.5 of the Act, (2) there were no allegations that any information was
unavailable, and (3) “[i]t just requires a little longer format and search, but it is published as
required by law.”
¶ 14 On appeal, this court reversed and remanded, holding that dismissal was improper because
plaintiff stated a claim that the requested records were not reasonably accessible pursuant to
section 8.5 of the Act, thus presenting a question appropriately addressed in a summary
judgment motion or at trial. Garlick, 2016 IL App (2d) 150381-U, ¶ 27.
¶ 15 B. Proceedings on Remand
¶ 16 On April 21, 2016, plaintiff moved for summary judgment (735 ILCS 5/2-1005 (West
2016)). He alleged that the effort required for him to recreate the database—over 2600 hours of
his time—and the ease with which the township could provide the same were not in contention;
the only remaining question was the reasonable-access issue; and the policy behind the Act
dictates that requiring him to engage in one year’s worth of effort to retrieve the records online
fails the reasonable-access threshold.
¶ 17 In its response, the township argued that plaintiff’s motion must fail because (1) plaintiff
failed to present any verified pleadings, depositions, admissions, or affidavits to support his
claim for summary judgment and (2) factual and legal issues precluded summary judgment in
plaintiff’s favor, including that the township could not provide plaintiff the database in its
native file format because it does not possess the data in that format, plaintiff rejected the
spreadsheet the township offered, and, even if the township possessed the database in its native
file format, the information plaintiff seeks is protected intellectual property that is exempt from
disclosure under the Act. The township invoked (1) section 7(1)(g) of the Act (5 ILCS
140/7(1)(g) (West 2016)), arguing that disclosure would cause competitive harm to JRM
because the data contains proprietary information; (2) section 7(1)(i) of the Act (5 ILCS
140/7(1)(i) (West 2016)), arguing that the request was subject to JRM’s claim that the
information contains valuable formulae and designs, the disclosure of which could reasonably
be expected to produce private gain; and (3) section 7(1)(a) of the Act (5 ILCS 140/7(1)(a)
(West 2016)), arguing that under the federal copyright statute and the Illinois Trade Secrets
Act (765 ILCS 1065/1 et seq. (West 2016)), it was prohibited from providing the requested
information.
¶ 18 The township attached to its response a copy of a May 20, 2016, letter to plaintiff in which
it offered to settle the case by providing “the data maintained in the Assessors IMS©
program,” which JRM maintains and licenses to the township to use and is subject to a
software license agreement. The letter further noted that the township could have the data
transferred to a Microsoft Excel spreadsheet upon payment of $350. The letter noted that under
its license agreement with JRM, the township’s use and distribution of the software was
restricted by JRM’s claim of copyright protection and its claim that the unlicensed disclosure
of the data in its native file format violates JRM’s proprietary interests in the software. The
letter further noted the statutory exemptions.
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¶ 19 In a scheduling order, dated June 7, 2016, the trial court noted that plaintiff had rejected the
township’s offer to provide the requested data in an Excel spreadsheet.
¶ 20 On July 6, 2016, the township filed a cross-motion for summary judgment, arguing that (1)
it does not possess the database in its native file format and, by requesting the native file format
and rejecting the spreadsheet, plaintiff is actually requesting JRM’s copyrighted software,
which is not a public record under the Act; and (2) even if the township possessed the
information as requested, the information is exempt from disclosure under (a) section 7(1)(g)
of the Act, as trade secrets or proprietary confidential information; (b) section 7(1)(i), as
containing valuable formulae and designs, the disclosure of which could reasonably be
expected to produce private gain; and (c) section 7(1)(a) of the Act, as trade secrets and
copyrighted information.
¶ 21 In support of its first argument, the township attached to its motion a July 6, 2016, affidavit
from Jerry Marquardt, JRM’s president. Marquardt averred that JRM develops and licenses
custom software for small- and medium-sized businesses and provides consulting services in
connection with the use of its software. The Assessors IMS© program is a mass-appraisal
software system that JRM developed and created in 1993. The system is proprietary and
copyright protected, and JRM is its exclusive owner. The software is “designed for the use of
real property assessment entities in maintaining, sorting and organizing real property
characteristics, data, values and other information associated with real properties located
within their assessment jurisdictions.” Marquardt averred that the software and its data files, in
their native file format, are subject to copyright protection and contain proprietary information,
trade secrets, and valuable formulae, including “information on program code, database fields,
database names, database schemas and table layouts and are sufficiently secret to derive
economic value, actual or potential, from not being generally known to other unauthorized
persons who can obtain economic value from their disclosure or use.” JRM licensed the
township to use the software, subject to certain terms and conditions, including that the
township is prohibited from disclosing the data from the software in its native file format and
does not possess the native file format. Marquardt averred that the data is translated to the
township’s website for public reference and that the website does not contain the copyrighted,
proprietary, and trade secret information contained in the software. Marquardt reviewed
plaintiff’s request, and he determined that disclosing the requested information in its native file
format would disclose JRM’s protected intellectual property, trade secrets, and proprietary
information. JRM did not consent to any such disclosure, which “would cause substantial
competitive harm to JRM” because plaintiff or others could use the information for
commercial gain. Specifically, plaintiff or others could create a competing software program
with similar or identical program code, database fields, database names, database schemas, and
table layouts. Finally, he averred that JRM was willing to transfer, for $350, the requested data
to a single, sortable electronic database file, such as a Microsoft Excel spreadsheet, “which can
be disclosed to Plaintiff without the unauthorized disclosure of JRM’s intellectual property,
trade secrets or proprietary information in connection with the Assessors IMS© software.”
¶ 22 The software license agreement between JRM and the township, which the township also
attached to its motion, states that the township
“has no right to transfer, disclose or otherwise make available the Software, the
program code, the database fields, the database names and all data related items to any
third parties, the Software, the program code, the database fields, the database names
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and all data related items being protectable intellectual property. *** [The township]
will not attempt to access or directly access, query or analyze any of the Assessors
IMS© database tables using any other means or software which includes but is not
limited to the database schemas or any other portions of the Software. [JRM] maintains
all copyrights and other property interests pertaining to the Software and ha[s] the
exclusive right to license its use for commercial purposes. *** [The township]
acknowledges and agrees that breach by it of any of the provisions of this agreement
could cause irreparable injury to JRM which by its nature would be continuing and
substantial, and for which no adequate remedy at law exists.”
¶ 23 In his response, plaintiff argued that Marquardt’s affidavit was conclusory and should be
stricken; that there is no trade secret protection for the database in its native file format because
the basis for the property tax is widely known to the public; that there is no copyright
protection for it, because development of a database follows well-established industry
standards such that there is very little variation in databases’ schema, tables, and field names;
and, alternatively, that plaintiff should be permitted to depose Marquardt under Illinois
Supreme Court Rule 191(b) (eff. Jan. 4, 2013).
¶ 24 Plaintiff also argued that a February 11, 2014, affidavit by Warren Dixon, the township’s
assessor, which was filed in another case, supports his claim that the township possesses the
database in its native file format. In the affidavit, Dixon averred that the township’s valuation
and assessment of real property includes “gathering, assembling, and maintaining information
related to the property on individual Record Cards in a computerized database.” The township
hired JRM “to create a custom computer database that is capable of generating” reports; the
township inputs information it has gathered into the database; and the township uses the
database to generate reports. He further averred, and plaintiff focused on this statement, that
the “property information is stored on a local server at the Township Assessor’s office and is
backed up locally and in the cloud.” Dixon also averred that if a report other than a sales-ratio
report, equity report, or new construction/deconstruction report needs to be generated, the
township must hire a software company to reprogram the database to generate a new report
containing the specific information in question.
¶ 25 On August 3, 2016, plaintiff moved for additional discovery under Rule 191(b), seeking to
depose Marquardt “and other [unspecified] persons possessing knowledge of material facts” to
show the “falsity of positions” the township articulated in its summary judgment motion,
specifically, the falsity of the claim that responding to plaintiff’s request would breach trade
secret and copyright protections. In addition to the depositions, plaintiff sought to propound
“interrogatories and request[s] for production of documents” from JRM and the township.
Plaintiff attached his affidavit to the motion, averring that the deposition topics would include
(1) the extent to which JRM has incorporated Illinois Department of Revenue guidelines,
property-assessment formulas, and other related material into its software; (2) the extent to
which JRM has incorporated industry-wide standards common throughout the
database-development industry; and (3) all other matters relevant to defeating any claims of
trade-secret and copyright protection over the database.
¶ 26 Also in August 2016, the township offered to provide plaintiff with the data in an SQL
Server database file and waive the $350 fee. Plaintiff declined.
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¶ 27 C. Trial Court’s Findings
¶ 28 On September 9, 2016, the trial court issued its findings in a 17-page memorandum. First,
it addressed plaintiff’s summary judgment motion, wherein plaintiff argued that the township
failed to comply with section 8.5 of the Act because its website did not provide him with
reasonable access to its real property records in their entirety. The trial court found that
plaintiff failed to provide evidence supporting his argument that it would take over 2600 hours
to compile the requested data from the website. Accordingly, the court denied plaintiff’s
motion, determining that there remained a factual question on the reasonableness issue.
¶ 29 Second, the court addressed the township’s cross-motion for summary judgment. The court
rejected plaintiff’s argument that Marquardt’s affidavit be stricken as conclusory. See Ill. S. Ct.
R. 191(a) (eff. Jan. 4, 2013) (summary judgment affidavits “shall not consist of conclusions
but of facts admissible in evidence”). The court noted that the affidavit was made on
Marquardt’s personal knowledge as JRM’s president; he attested to facts, not conclusions; he
relied on and referred to the license agreement; he attested that the software and its data in the
native file format are subject to copyright and trade secret protection and contain proprietary
information and valuable formulae, including program codes and data fields; he attested that
the township has only a license to use the Assessors IMS© program and that it is
nontransferable; and he attested that providing the data in its native file format to plaintiff
would cause substantial competitive harm in that plaintiff or others could use it for commercial
gain. Further, Marquardt stated that he could competently testify if called to do so. The court
also found that the facts in Marquardt’s affidavit were deemed admitted because plaintiff had
filed no counteraffidavit.
¶ 30 Next, the court addressed the township’s claim that it should be granted summary
judgment because it does not possess the database in its native file format and because the
database in its native file format, which JRM possesses, is not a public record. The court found
that, unless an exemption applied, the database in its native file format, which is the format
maintained by the township, is a public record subject to disclosure, regardless of whether
JRM or the township possesses it. See 5 ILCS 140/7(2) (West 2016) (public record possessed
not by public body but by party with whom public body has contracted to perform
governmental function on its behalf, and that directly relates to such function and is not
otherwise exempt, is considered a public record of the public body).
¶ 31 The trial court next turned to the exemptions. Preliminarily, the court found that the
township did not forfeit the issue by failing to include them in its denial letter to plaintiff
because the statute mandates that the trial court conduct de novo review. See 5 ILCS 140/11(f)
(West 2016).
¶ 32 First, the court addressed section 7(1)(g) of the Act, which protects trade secrets and
financial information that are proprietary or confidential and disclosure of which would cause
competitive harm. The court pointed to Marquardt’s affidavit and the license agreement, which
reflected that JRM allowed the township to use the software in exchange for the township
treating it as confidential and protectable intellectual property. The court found that since
disclosure would have a chilling effect upon the township’s subsequent ability to receive
helpful software or tools from similar companies, the database in its native file format was
exempt from disclosure under section 7(1)(g). The court noted that the fact that the basis for
taxation is widely known under the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2016))
did not preclude a finding that the software is proprietary or that the database in its native file
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format is a trade secret and contains confidential and proprietary information. Further, the
court noted that plaintiff had not provided a counteraffidavit or other evidence to support his
“blanket” argument that the basis for taxation is widely known.
¶ 33 Next, the court addressed section 7(1)(i) of the Act, which protects valuable formulae and
designs “when disclosure could reasonably be expected to produce private gain or public loss.”
5 ILCS 140/7(1)(i) (West 2016). The court declined to grant summary judgment as to this
exemption, finding that the issues of private gain and public loss presented factual questions
here. The court noted, however, that Marquardt’s affidavit and the license agreement
demonstrated that the database, in its native file format, includes valuable formulae and
designs the disclosure of which could reasonably be expected to produce public loss because,
under the license agreement, JRM could terminate the township’s right to use the software and
JRM could bring a breach-of-contract claim against the township.
¶ 34 As to section 7(1)(a) of the Act, which protects information―such as trade secrets and
copyrights―prohibited from disclosure by federal or state law, the trial court found that
because the Trade Secrets Act precludes disclosure of the database in its native file format
(because JRM has not consented to disclosure and the township has a contractual duty to
maintain secrecy under the license agreement), the exemption applies. The court rejected
plaintiff’s arguments that (1) the basis for taxation is widely known, noting that plaintiff had
not provided a counteraffidavit or other evidence, and (2) because industry-wide database
standards could be expressed in only a few ways, the court should invoke the “merger
doctrine,” which dictates that if there is only one feasible way to express an idea, the
expression is not protected by federal copyright law. The court found that the merger doctrine
does not apply because there is not only one feasible way of creating the software and
formatting work such as table layouts. The exemption applies because JRM is the exclusive
owner of the software containing the original program code and table layouts, which are
subject to copyright law, and is the only party that can distribute it to the public.
¶ 35 Finally, the trial court denied plaintiff’s motion for additional discovery, finding that
plaintiff’s affidavit lacked the necessary disclosures under Rule 191(b). Specifically, plaintiff
failed to allege that Marquardt is the only person with knowledge of any material facts and
failed to allege what he believed Marquardt would testify to, and plaintiff essentially
challenged the validity of JRM’s copyright and trade secret protections, which is “far afield
from” the issues in this case and for which the trial court is not an appropriate forum.
¶ 36 In summary, the trial court denied plaintiff’s summary judgment motion, denied his motion
for additional discovery, and granted the township’s summary judgment motion.
¶ 37 On September 12, 2016, the trial court set the case for hearing “as to reasonableness of
making the information available [online], in Excel [s]preadsheet format or SQL Server
format.”
¶ 38 On September 20, 2016, plaintiff moved for clarification on whether the hearing would
include the factual issue of public loss/private gain, the burden of proof as to reasonable access,
and the extent of the data encompassed by the reasonable-access inquiry (i.e., the data
published online versus all public data within the database). He attached printouts of, among
other things, Department of Revenue publications and Marquardt’s e-mails to at least two
other townships.
¶ 39 The township also moved for clarification of the court’s September 12, 2016, order, noting
that the court’s findings on September 8, 2016, were that the database in its native file format
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was exempt from disclosure under sections 7(1)(g) and 7(1)(a) of the Act and, thus, no issues
remained pending (or they were rendered moot). As to the reasonable-access issue, the
township argued that the issue was moot because (1) plaintiff never tried to retrieve the records
online and (2) the township no longer claimed that plaintiff’s request can be satisfied by the
online database. Further, it noted that it had offered plaintiff all of the information contained in
the requested records, in two different comparable formats. He could, it suggested, reformat
his request and “probably be entitled to receive some records from” the township. The
township reiterated that it was willing to provide plaintiff with the information in an Excel
spreadsheet, an SQL Server database file, or some other reasonable format, so long as it did not
contain JRM’s proprietary information. Thus, the township argued, no factual issues remained
to be resolved because plaintiff could either make a new FOIA request, accept the township’s
offer, or appeal.
¶ 40 Plaintiff responded that the reasonable-access issue was not moot merely because the
township had changed its position (presumably to avoid the imposition of civil penalties), also
noting that attorney fees had not been adjudicated. He also argued that the imposition of a $350
transfer fee violated the Act, where his request was not for commercial purposes, and that an
Excel spreadsheet was not the format in which he requested the data. Finally, plaintiff argued
that any ruling must include all of the disclosable public data within the database (which
consists, he stated, of considerably more data than is published online). He asserted that (1) he
did not seek program code, which is protected; (2) the source of any valuable formulae is the
Department of Revenue and such data is not protected; (3) database fields, names, and schemas
and table layouts are not protected because they are based on industry-wide database standards
and thus can be considered ideas (which, unlike expressions of ideas, are not copyrightable)
because the standards dictate so few ways of expressing these ideas; and (4) protecting the
expression of the ideas in this case would effectively accord protection to the ideas themselves
and confer a monopoly over them, in contravention of the Act. Finally, plaintiff argued that the
township had not proposed how proprietary information can be extracted without rendering the
database unusable, “given that the very elements that the Township alleges are proprietary
information are integral to the database itself and have arisen from the dictates of database
industry standards.”
¶ 41 On January 10, 2017, the trial court clarified that its September 9, 2016, order granted
summary judgment to the township “in full,” for the reasons stated in the original
memorandum and order on the same date and for the “reasons stated on the record today.”2 It
further found that its order was final and appealable and that the “hearing as to
‘reasonableness’ will not proceed.” Plaintiff appeals.
2
At the hearing, the court commented that “what got lost” in its September 8, 2016, decision was
that plaintiff requested the information only in its native file format. The court clarified that there were
no remaining material factual questions. “[W]hat I should have done is granted summary judgment in
full” to the township. It also found moot plaintiff’s motion for clarification. The court reiterated that it
had determined that the township does not have to provide the database in its native file format. Thus,
plaintiff could (1) revise his FOIA request, (2) retrieve the records online, (3) accept the township’s
proposal, or (4) appeal. Also at this hearing, plaintiff clarified that “native file format” means SQL
Server format.
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¶ 42 II. ANALYSIS
¶ 43 Plaintiff argues that the trial court erred in granting summary judgment to the township and
requests that we reverse and remand for further proceedings. For the following reasons, we
conclude that the trial court correctly found that the exemption under section 7(1)(a) of the Act
for trade secrets and copyrights, precludes the disclosure of the database in its native file
format.
¶ 44 Summary judgment may be granted where “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS
5/2-1005(c) (West 2016). “In making this determination the pleadings, depositions,
admissions, exhibits, and affidavits are to be construed strictly against the movant and liberally
in favor of the opponent.” Delaney Electric Co. v. Schiessle, 235 Ill. App. 3d 258, 263 (1992).
“In addition, the court must draw all reasonable inferences from the record in favor of the
nonmoving party.” Id. However, although the court may draw inferences from undisputed
facts, summary judgment should be denied where reasonable persons can “draw divergent
inferences from undisputed facts.” Outboard Marine Corp. v. Liberty Mutual Insurance Co.,
154 Ill. 2d 90, 102 (1992). We review de novo summary judgment rulings. Crum & Forster
Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993). Further, whether an
exemption applies under the Act is a question of statutory construction, which we review
de novo. City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870, ¶ 13.
We also review de novo a ruling on a motion to strike an affidavit made in conjunction with a
summary judgment ruling. Jackson v. Graham, 323 Ill. App. 3d 766, 773 (2001).
¶ 45 Plaintiff’s data request was as follows: noting that the township’s website “enables the
public to search for property details based on” parcel numbers and that the details are stored in
a database (“most likely SQL Server or MySQL”), “[p]ursuant to FOIA, [he] request[ed] a
copy of this database in its native file format,” which “refers to the file format which the
application works with during creation, edition or publication of a file.” 3 The township
maintains that it offered to provide the contents of the database in SQL server format, without
any fee, but the offer was rejected. The township seeks to protect the software in which the
contents are maintained, and it notes that this software is provided under the license agreement
and is copyrighted and furnished under a claim that it is proprietary and confidential.
¶ 46 A. Preliminary Issues
¶ 47 First, we address several preliminary issues. Plaintiff argues that the township should have
been barred from raising the exemptions in its summary judgment motion. He asserts that the
township forfeited the exemptions by failing to raise them earlier in the proceedings,
specifically, when it moved to dismiss plaintiff’s complaint. He suggests that the township
should have filed a section 2-619.1 motion to dismiss (735 ILCS 5/2-619.1 (West 2014)),
raising the exemptions as affirmative matter under section 2-619(a)(9) (735 ILCS
3
Plaintiff also sought .jpeg files in the root directory and subdirectories. To the extent that these
files are distinct from the property details in the database, we find any arguments concerning the files
forfeited because plaintiff does not specifically address them on appeal.
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5/2-619(a)(9) West 2014)). 4 According to plaintiff, the township obtained a second and
impermissible de novo review after remand. See 5 ILCS 140/11(f) (West 2016) (“In any action
considered by the court, the court shall consider the matter de novo, and shall conduct such
in camera examination of the requested records as it finds appropriate to determine if such
records or any part thereof may be withheld under any provision of this Act.” (Emphasis
added.)). This, he argues, runs counter to the public policy underlying the Act, which
encourages prompt disclosure and prioritizes some cases. 5 ILCS 140/1, 11(h) (West 2016).
We disagree. A party may file a summary judgment motion at any time, even before filing an
answer, and an affirmative matter may be raised in the motion even though it was not raised in
an answer. See, e.g., Falcon Funding, LLC v. City of Elgin, 399 Ill. App. 3d 142, 156 (2010);
Metropolitan Sanitary District v. Anthony Pontarelli & Sons, Inc., 7 Ill. App. 3d 829, 838
(1972); see also 735 ILCS 5/2-1005(a), (b) (West 2016) (“[a]ny time after the opposite party
has appeared ***, a plaintiff may move *** for summary judgment”; a “defendant may, at any
time, move *** for summary judgment”). Further, the filing of a combined motion under
section 2-619.1 is optional, not mandatory. See 735 ILCS 5/2-619.1 (West 2016) (“Motions
with respect to pleadings under Section 2-615, motions for involuntary dismissal or other relief
under Section 2-619, and motions for summary judgment under Section 2-1005 may be filed
together as a single motion in any combination.” (Emphasis added.)). Plaintiff cites no case
law and relies merely on the Act’s general policy. We believe that, had the legislature, in
enacting the Act and specifying its general goals, intended to supplant the Code’s pleading
options, it would have explicitly done so. Finally, we note that nowhere in this court’s decision
in the first appeal did we limit the proceedings or available defenses on remand.
¶ 48 Next, plaintiff argues that the trial court did not adequately address the data stored within
the database but not published online. He contends that, via FOIA requests to other townships
that license the JRM software (which he submitted with his motion for clarification, though
without any affidavits from the individuals who forwarded him the information), he has been
able to ascertain that there is “substantially more” data stored within the database than is
published online. This data, he notes, is in keeping with the Property Tax Code’s requirements.
Plaintiff contends that the township refuses to disclose this data on the basis that doing so
would violate JRM’s trade secret and copyright protections. Plaintiff argues that this premise
turns FOIA on its ear and that even assuming that JRM has a copyright claim to the database, it
cannot use copyright law to prevent disclosure on the ground that the public data is so
inextricably intertwined with the copyrightable elements of its design that the public data
cannot be extracted without revealing these copyrightable elements. He relies on Assessment
Technologies of WI, LLC v. WIREdata, 350 F.3d 640 (7th Cir. 2003), to support this claim. We
conclude that plaintiff’s argument fails because the township has offered to provide all of the
contents of the database, excluding the software. And we note that to the extent that the
contents include more information than is available via the website, this satisfies plaintiff’s
request. The township has not refused to disclose any public records, but only the software that
it claims is protected intellectual property. In Assessment Technologies, a
copyright-infringement case, not an open-records case, the plaintiff copyright owner of a
database sued the defendant, seeking to protect noncopyrighted data (specifically, property
4
Plaintiff states in his brief that he is not arguing that the township forfeited the exemptions by not
including them in its denial letter.
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assessment data that was in the public domain) in the database by blocking the defendant from
obtaining it from the plaintiff’s licensees, which were several Wisconsin municipalities that
collected the raw data in the database. The plaintiff argued that the data could not be extracted
without infringing on its copyright for the database. The court rejected the plaintiff’s claim,
holding that the data was beyond the scope of the plaintiff’s copyright because data is not
copyrightable. Id. at 646-47. The court listed several ways in which the defendant could obtain
the data without infringing on the plaintiff’s copyright and noted that the method would be
selected by each municipality “in light of applicable trade-secret, open-records, and contract
laws.” Id. at 647. The court cautioned that the plaintiff would have lost the case even if the raw
data could not be extracted without making a copy of the program. Id. at 644. This was so
because the purpose of copying would be limited to extracting only noncopyrighted material.
Id. at 645.5 Here, plaintiff contends that Assessment Technologies stands for the proposition
that a party cannot use copyright law to prevent disclosure of public data on the ground that the
data is inextricably intertwined with the copyrightable elements of a program’s design. We fail
to see how that point is relevant here. Again, the township has not refused to disclose any
public records, but only the software that JRM claims is protected intellectual property.
Plaintiff rejected the township’s offer to provide the contents of the database in SQL server
format.
¶ 49 Next, plaintiff argues that Marquardt’s affidavit is conclusory and thus should have been
stricken. He also contends that Marquardt’s deposition in another case “raises serious
questions” that warrant “a clearer explanation.” We reject these arguments. The trial court
correctly found that the affidavit is not conclusory and refused to strike it. Marquardt averred
that JRM develops and licenses custom software for small- and medium-sized businesses and
provides consulting services in connection with the use of its software. The Assessors IMS©
program is a mass-appraisal software system that JRM developed and created in 1993. The
system is proprietary and copyright protected, and JRM is its exclusive owner. The software is
“designed for the use of real property assessment entities in maintaining, sorting and
organizing real property characteristics, data, values and other information associated with real
properties located within their assessment jurisdictions.” Marquardt averred that the software
and its data files, in their native file format, are subject to copyright protection and contain
proprietary information, trade secrets, and valuable formulae, including “information on
program code, database fields, database names, database schemas and table layouts and are
sufficiently secret to derive economic value, actual or potential, from not being generally
known to other unauthorized persons who can obtain economic value from their disclosure or
use.” JRM licensed the township to use the software, subject to certain terms and conditions,
including that the township is prohibited from disclosing the data from the software in its
native file format and does not possess the native file format. Marquardt averred that the data is
5
Further, in rejecting the defendant’s argument that the plaintiff’s database was insufficiently
original to be copyrightable, the Assessment Technologies court noted that, in contrast to patent law,
copyright law “does not require substantial originality,” but “only enough to enable a work to be
distinguished from similar works that are in the public domain.” Id. at 643. The database at issue
satisfied the “modest requirement *** because no other real estate assessment program arranges the
data collected by the assessor in these 456 fields grouped into these 34 categories, and because this
structure is not so obvious or inevitable as to lack the minimal originality required, [citation], as it
would if the compilation program simply listed data in alphabetical or numerical order.” Id.
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translated to the township’s website for public reference and that the website does not contain
the copyrighted, proprietary, and trade secret information contained in the software. Marquardt
reviewed plaintiff’s request, and he determined that disclosing the requested information in its
native file format would disclose JRM’s protected intellectual property, trade secrets, and
proprietary information. JRM did not consent to any such disclosure, which “would cause
substantial competitive harm to JRM” because plaintiff or others could use the information for
commercial gain. Specifically, plaintiff or others could create a competing software program
with similar or identical program code, database fields, database names, database schemas, and
table layouts. A “public body can meet its burden [to show that an exemption applies] only by
providing some objective indicia that the exemption is applicable under the circumstances.”
(Emphasis in original.) Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d
456, 470 (2003). Affidavits can satisfy this burden, unless they are “conclusory, merely recite
statutory standards, or are too vague or sweeping.” Id. at 469. We conclude that the trial court
did not err in finding that Marquardt’s affidavit is not conclusory, vague, or sweeping. He
sufficiently provided detailed objective facts concerning his company’s software and his
claims that the software is proprietary and protected. Plaintiff offered no counteraffidavit or
other evidence to raise a material factual issue concerning the application of the exemptions.
¶ 50 Plaintiff’s reliance on Marquardt’s deposition in another case is misplaced. He contends
that Marquardt’s deposition responses in that case were “an exercise in futility and
obstruction” because Marquardt’s attorney objected to “the majority of the questions” on the
grounds that answering them would reveal proprietary information. We find these responses
consistent with the township’s position here that it is precluded by the license agreement from
disclosing JRM’s proprietary information. Plaintiff fails in his attempt to characterize this
position as obstructive and a basis for striking the affidavit.
¶ 51 Plaintiff also argues that Marquardt was unable to competently testify to any economic loss
JRM would suffer from the release of the database in its native file format. He points to
Marquardt’s statement that the unauthorized and unlicensed disclosure of the database in its
native file format would cause JRM substantial competitive harm. Next, plaintiff points to
Marquardt’s deposition testimony in the other case, wherein he stated that he had “no idea” of
the economic value a party could derive from making the data available to the public.
Assuming that consideration of the deposition is proper, we reject plaintiff’s argument because
we do not believe that Marquardt was required to identify the particular economic value.
¶ 52 Next, plaintiff sought to depose Marquardt and other unspecified persons and asserted that
they possessed “information demonstrating the falsity of positions articulated in” the
township’s summary judgment motion and Marquardt’s affidavit, specifically, the trade secret
and copyright claims. The trial court denied the motion, finding that plaintiff’s affidavit
violated Rule 191(b) by stating only generally that he sought to depose knowledgeable persons
and that plaintiff inappropriately sought to challenge the validity of JRM’s copyright and trade
secret claims, which “is far afield from what is at issue” here. As we address below, we agree
with the trial court’s findings and conclude that proceedings under the Act are not avenues by
which to challenge the validity of trade secret and copyright claims and that the trial court and
this court are not proper forums in which to challenge a copyright.
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¶ 53 B. Exemption
¶ 54 Having resolved the preliminary matters, we turn to the merits. Plaintiff argues that section
7(1)(a)’s exemption for trade secrets and copyrights does not apply to preclude disclosure of
the requested information. For the following reasons, we conclude that the trial court did not
err in finding that the exemption applies.6 We conclude that plaintiff’s arguments essentially
challenge the validity of JRM’s trade secret and copyright claims, that proceedings under the
Act are not the proper mechanism to challenge such claims, and that this court is not the proper
forum in which to challenge a copyright claim.
¶ 55 Under the Act, Illinois has established a public policy that all “persons are entitled to full
and complete information regarding the affairs of government and the official acts and policies
of those who represent them.” 5 ILCS 140/1 (West 2016); see also Bowie v. Evanston
Community Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989) (statute’s purpose
is “to open governmental records to the light of public scrutiny”). Courts liberally construe the
Act to achieve the goal of “provid[ing] the public with easy access to government
information.” Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 416
(2006). The Act also provides that “[r]estraints on access to information, to the extent
permitted by this Act, are limited exceptions to the principle that the people of this State have a
right to full disclosure of information relating to the decisions, policies, procedures, rules,
standards, and other aspects of government activity that affect the conduct of government and
the lives of any or all of the people.” 5 ILCS 140/1 (West 2016). Thus, the Act’s exemptions
are narrowly construed. Janssen Pharmaceuticals, 2017 IL App (1st) 150870, ¶ 15.
¶ 56 The statute also provides: “This Act shall be the exclusive State statute on freedom of
information, except to the extent that other State statutes might create additional restrictions on
disclosure of information or other laws in Illinois might create additional obligations for
disclosure of information to the public.” 5 ILCS 140/1 (West 2016).
¶ 57 “A database is an aggregation of data, not a discrete document.” Hites v. Waubonsee
Community College, 2016 IL App (2d) 150836, ¶ 71. It “is akin to a file cabinet, and the data
that populates the database is like the files. [The Act] permits a proper request for a single file,
some of the files, or all of the files.” Id. “A public body may even be compelled to turn over an
entire database to the extent that the information is not exempt from disclosure.” Id. ¶ 36.
¶ 58 Section 7(1)(a) of the Act provides that the following “shall be exempt from inspection and
copying”:
“(a) Information specifically prohibited from disclosure by federal or State law or
rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West
2016).
The relevant laws here are, again, the Trade Secrets Act and federal copyright law.
¶ 59 The trial court determined that the Trade Secrets Act precludes disclosure of the database
in its native file format, because JRM has not consented to disclosure and the township has a
contractual duty under the license agreement to maintain the secrecy of the database. The court
also found that federal copyright law precluded disclosure.
6
Because we affirm on this basis, we need not address the other exemptions the trial court
addressed.
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¶ 60 Plaintiff acknowledges, and we agree, that the proprietary nature of the JRM software has
been somewhat conflated with an SQL Server database storing the publicly-disclosable
property data to argue that the database format, per se, is a proprietary file format developed by
JRM, not Microsoft. However, it remains that plaintiff’s arguments essentially challenge the
township’s (and JRM’s) claims that the Assessors IMS© program is a trade secret and
copyrighted. For this reason, the arguments lack merit because challenges to the validity of
trade-secret or copyright claims are not proper proceedings under the Act. Further, this court is
not the proper forum for copyright claims. Plaintiff expends many pages of his briefs
addressing whether the formulae in JRM’s software are widely known and in the public
domain, arguing that the formulae cannot be subject to trade secret or copyright protection.
But, again, proceedings under the Act are not the proper mechanism, and this court is not the
proper forum, in which to raise such challenges. Further, as the trial court found, plaintiff
provided no counteraffidavit or other evidence to support his claim that, for example, the basis
for taxation is widely known.
¶ 61 As the township notes, JRM’s trade secret and copyright claims do not extend to any data
that has been entered into the database using JRM’s software. That is, the data concerning the
real property that the township assesses is not protected and has been offered to plaintiff in the
form of a sortable spreadsheet such as an Excel or an SQL Server database file, not including
JRM’s software. Plaintiff claims on appeal that he is not seeking the software, but asking only
for a copy of the SQL Server database file that contains the publicly-disclosable property data.
This apparently was the file that the township offered, and plaintiff offers no explanation as to
why he rejected it. Instead, he raises challenges to JRM’s intellectual property claims, and they
are unavailing.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.
¶ 64 Affirmed.
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