FOIA Corner: Two of the Illinois Supreme Court’s recent decisions concerning the Illinois Freedom of Information Act

Within the past year, the Illinois Supreme Court issued two holdings concerning the Illinois Freedom of Information Act (FOIA), granting split decisions: one for non-disclosure and one for disclosure. First, in Perry v. Department of Financial and Professional Regulation, the court determined that the FOIA provisions valid at the time of the FOIA request control, unless subsequent amendments to the law controlling the documents’ disclosure specifically state that the amendments apply retroactively.¹ In this consolidated appeal, the appellants requested public records from the Illinois Department of Financial and Professional Regulations. During the pendency of this request, the Illinois legislature amended the Department of Professional Regulation Law² to exempt the release of the requested documents.³ Citing this amendment, the circuit court dismissed the FOIA requesters’ lawsuits, which the appellate court affirmed.⁴ The Illinois Supreme Court, however, reversed, noting that the subsequent FOIA amendment did not specify that it applied retroactively to pending requests.⁵

Practice Tip: In determining the validity of a FOIA request, one needs to look at the status of the law at the time of the request, unless the FOIA amendment specifies retroactive application.

In In re Appointment of Special Prosecutor, the Illinois Supreme Court upheld the non-disclosure of grand jury documents, holding that they are exempt from disclosure under FOIA.⁶ Specifically, since the Illinois Code of Criminal Procedure protects the privacy of grand jury matters, Section 7(1)(a) of FOIA, which exempts from disclosure information specifically prohibited from disclosure by state law, applies.⁷

As part of this opinion, the Illinois Supreme Court provided a concise summary of the legislative intent and interpretation of FOIA:

Based on this clear expression of legislative intent, this court has held that public records are presumed to be open and accessible. FOIA is to be liberally construed to achieve the goal of providing the public with easy access to government information. Consequently, FOIA's exceptions to disclosure are to be construed narrowly so as not to defeat the intended statutory purpose. Thus, when a public body receives a proper request for information, it must comply with that request unless one of FOIA's narrow statutory exemptions applies. 5 ILCS 140/3(a) (West 2014).⁸

Practice Tip: In determining the validity of a FOIA request, one needs to look at whether a more specific state law (such as the Illinois Code of Criminal Procedure or the Illinois Mental Health Confidentiality Act) controls over the disclosure.

1. Perry v. Department of Financial and Professional Regulation, 2018 IL 122349 ¶ 79.