                                  Illinois Official Reports

                                          Appellate Court



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



Appellate Court              SAGE INFORMATION SERVICES and ROGER W. HURLBERT,
Caption                      Plaintiffs-Appellees, v. BRENDA M. SUHR, in Her Official Capacity
                             as Winnebago County Chief Deputy Supervisor of Assessments and
                             Department Freedom of Information Act Officer, Defendant-
                             Appellant.



District & No.               Second District
                             Docket No. 2-13-0708



Filed                        April 14, 2014
Rehearing denied             June 17, 2014


Held                         When plaintiff requested electronic records of the current real
(Note: This syllabus         property assessment record file pursuant to the Freedom of
constitutes no part of the   Information Act, the trial court properly limited defendant to charging
opinion of the court but     plaintiff only the cost of the electronic media that would hold the file
has been prepared by the     as provided by section 6 of the Act, not the charge of five cents per
Reporter of Decisions        parcel defendant set as a “reasonable fee” allowable by section 9-20 of
for the convenience of       the Property Tax Code for copying and providing records.
the reader.)




Decision Under               Appeal from the Circuit Court of Winnebago County, No.
Review                       12-MR-987; the Hon. J. Edward Prochaska, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Joseph P. Bruscato, State’s Attorney, of Rockford (Charlotte A.
     Appeal                   LeClercq and David J. Kurlinkus, Assistant State’s Attorneys, of
                              counsel), for appellant.

                              Donald M. Craven and Esther J. Seitz, both of Donald M. Craven,
                              P.C., of Springfield, for appellees.




     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Justices Jorgensen and Hudson concurred in the judgment and
                              opinion.




                                                OPINION

¶1         Defendant, Brenda M. Suhr, Winnebago County chief deputy supervisor of assessments
       and department Freedom of Information Act officer, appeals a judgment that (1) ordered her to
       provide to plaintiffs, Sage Information Services and Roger W. Hurlbert, electronic records that
       plaintiffs requested under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West
       2012)) and (2) awarded plaintiffs attorney fees and costs. On appeal, defendant contends that
       the trial court erred in basing the permissible charges for the records on section 6 of the FOIA
       (5 ILCS 140/6 (West 2012)) and not on section 9-20 of the Property Tax Code (35 ILCS
       200/9-20 (West 2012)). Defendant recognizes that the trial court’s judgment was based on
       Sage Information Services v. Humm, 2012 IL App (5th) 110580, but she argues that Humm was
       decided wrongly. We affirm.
¶2         By a letter dated October 12, 2012, plaintiffs requested from defendant “a copy, on CD or
       similar electronic media, of the current real property assessment record file for the entire
       county, together with an electronic copy of the sales file.” Citing Humm, the request stated that,
       under section 6(a) of the FOIA (5 ILCS 140/6(a) (West 2012)), defendant could charge no
       more than the cost of the disc.
¶3         On November 5, 2012, defendant responded that, to obtain the records, plaintiffs would
       have to pay $6,290.45 (five cents per parcel). Defendant relied on section 9-20 of the Property
       Tax Code, which allows a supervisor of assessments to charge a “reasonable fee” (35 ILCS
       200/9-20 (West 2012)) for copying and providing records. She informed plaintiffs that section
       9-20, and not the FOIA, governed the request.
¶4         On December 12, 2012, plaintiffs filed their complaint to compel defendant to release the
       requested information in the requested form, at a charge of no more than the actual cost of
       production. The complaint also sought attorney fees and costs.
¶5         Plaintiffs moved for summary judgment (see 735 ILCS 5/2-1005(a) (West 2012)). On June
       12, 2012, the trial court granted the motion and entered a judgment requiring defendant to


                                                   -2-
     produce the requested records in electronic format within 30 days and awarding plaintiffs
     attorney fees and costs. The court explained that it was bound by Humm, under which section
     6(a) of the FOIA limited defendant to charging no more than the cost of purchasing the
     recording medium. The court stayed the award of fees and costs, but not the order to produce
     the records, pending the resolution of an appeal. On July 10, 2012, defendant filed a notice of
     appeal and a motion to reconsider the partial denial of the motion to stay. On August 8, 2012,
     the trial court granted the motion to reconsider and stayed the production order pending our
     resolution of the appeal.
¶6       Initially, this court dismissed the appeal, on the basis that a pending motion to reconsider
     made the notice of appeal premature. Defendant petitioned for a rehearing. We now vacate the
     dismissal, agreeing with defendant that, because the motion to reconsider addressed a matter
     that was collateral to the judgment, the notice of appeal was not premature. See General
     Motors Corp. v. Pappas, 242 Ill. 2d 163, 173-74 (2011). Further, the motion has now been
     resolved, so that, in any event, there would be no bar to our jurisdiction. See In re Marriage of
     Knoerr, 377 Ill. App. 3d 1042, 1049-50 (2007). We turn to the merits of the appeal.
¶7       We review de novo the grant of summary judgment. Matsuda v. Cook County Employees’
     & Officers’ Annuity & Benefit Fund, 178 Ill. 2d 360, 364 (1997). Issues of statutory
     construction, such as are raised here, are appropriate for resolution by summary judgment, as
     they raise questions of law subject to de novo review. Id. In construing statutes, our ultimate
     goal is to effectuate the legislative intent, and we start with the statutory language itself. Id. at
     365.
¶8       Here, the parties disagree on which statute governs what defendant may charge plaintiffs
     for providing electronic records. Defendant invokes section 9-20 of the Property Tax Code:
              “In all counties, all property record cards maintained by a township assessor,
              multi-township assessor, or chief county assessment officer shall be public records, and
              shall be available for public inspection during business hours, subject to reasonable
              rules and regulations of the custodian of the records. Upon request and payment of such
              reasonable fee established by the custodian, a copy or printout shall be provided to any
              person.
                  Property record cards may be established and maintained on electronic equipment
              or microfiche, and that system may be the exclusive record of property information.”
              (Emphasis added.) 35 ILCS 200/9-20 (West 2012).
     Defendant relies primarily on the language we have emphasized.
¶9       Plaintiffs counter that section 6(a) of the FOIA limits any charge to the cost of purchasing
     the recording medium. They reason that section 6(a) makes section 9-20 of the Property Tax
     Code inapplicable to electronic records. In pertinent part, that section reads:
              “When a person requests a copy of a record maintained in an electronic format, the
              public body shall furnish it in the electronic format specified by the requester, if
              feasible. If it is not feasible to furnish the public records in the specified electronic
              format, then the public body shall furnish it in the format in which it is maintained by
              the public body, or in paper format at the option of the requester. A public body may
              charge the requester for the actual cost of purchasing the recording medium, whether
              disc, diskette, tape, or other medium. A public body may not charge the requester for
              the costs of any search for and review of the records or other personnel costs associated


                                                   -3-
                with reproducing the records, except for commercial requests as provided in subsection
                (f) of this Section. Except to the extent that the General Assembly expressly provides,
                statutory fees applicable to copies of public records when furnished in a paper format
                shall not be applicable to those records when furnished in an electronic format.”
                (Emphases added.) 5 ILCS 140/6(a) (West 2012).
¶ 10        Plaintiffs also invoke Humm, which, as defendant concedes, is indistinguishable. In
       Humm, two judgments were on appeal, but only one concerns us here. The circuit court of
       Franklin County ruled that the defendant could charge the plaintiffs (the same plaintiffs as
       here) a fee, per section 9-20 of the Property Tax Code, of five cents per parcel for the entire
       county’s property assessment record file. Humm, 2012 IL App (5th) 110580, ¶ 2. The appellate
       court reversed, holding that section 6(a) of the FOIA applied and that the defendant could
       charge only the cost of the electronic medium. Id. ¶ 15.
¶ 11        The Fifth District began by observing that the circuit court had incorrectly relied on two
       opinions construing section 6(a) of the FOIA as it had read before 2010. See Sage Information
       Services v. Henderson, 397 Ill. App. 3d 1060 (2010); Sage Information Services v. King, 391
       Ill. App. 3d 1023 (2009). The earlier version of section 6(a) read:
                “Each public body may charge fees reasonably calculated to reimburse its actual cost
                for reproducing and certifying public records and for the use, by any person, of the
                equipment of the public body to copy records. Such fees shall exclude the costs of any
                search for and review of the record, and shall not exceed the actual cost of reproduction
                and certification, unless otherwise provided by State statute. Such fees shall be
                imposed according to a standard scale of fees, established and made public by the body
                imposing them.” (Emphases added.) 5 ILCS 140/6(a) (West 2006).
¶ 12        The Humm court noted that, in King and Henderson (also involving facts similar to those
       now before us), the appellate courts correctly held that section 9-20 of the Property Tax Code
       applied and not section 6(a) of the FOIA as it then read. The court explained that the two
       provisions related to the same subject matter; thus, section 9-20 applied because it was the
       more specific of the two. Humm, 2012 IL App (5th) 110580, ¶ 17; see Henderson, 397 Ill. App.
       3d at 1064 (following King); King, 391 Ill. App. 3d at 1031-32.
¶ 13        However, as Humm noted, an amendment to section 6(a) had made Henderson and King
       obsolete. See Pub. Act 96-542, § 10 (eff. Jan. 1, 2010). Previously, section 6(a) limited the
       permissible charge, regardless of whether paper records or electronic records were requested,
       to the actual cost of production “unless otherwise provided by State statute” (5 ILCS 140/6(a)
       (West 2006)). Humm, 2012 IL App (5th) 110580, ¶ 18. Now, section 6(a) distinguishes
       between paper records and electronic records. Id. Although section 6(b) of the FOIA still
       allows agencies to rely on another statute, such as the Property Tax Code, to charge a fee in
       excess of the cost for the production of paper records (see 5 ILCS 140/6(b) (West 2012)),
       section 6(a) now governs electronic reproductions. And in doing so, it has narrowed the
       exception to the cost-only rule.
¶ 14        Before the amendment, an agency could escape the rule if “otherwise provided by State
       statute.” 5 ILCS 140/6(a) (West 2006). Now, “[e]xcept to the extent that the General Assembly
       expressly provides, statutory fees applicable to copies of public records when furnished in a
       paper format shall not be applicable to those records when furnished in an electronic format.”
       (Emphasis added.) 5 ILCS 140/6(a) (West 2012). Thus, “[w]ith respect to electronic records,
       the language allowing cross-referencing to other statutes, such as the Property Tax Code, no

                                                   -4-
       longer exists.” Humm, 2012 IL App (5th) 110580, ¶ 18. Before the amendment, it was
       sufficient that the Property Tax Code provided generally that an assessor’s office may levy a
       reasonable charge for producing records. After the amendment, to enable assessors’ offices to
       escape section 6(a)’s cost-only rule for electronic records, there must be a statute that expressly
       provides that the assessor may charge fees “applicable to copies of public records when
       furnished in a paper format.” (Emphasis added.) 5 ILCS 140/6(a) (West 2012). The Property
       Tax Code contains no express authorization, and, thus, the defendant in Humm was limited to
       charging cost only for the requested electronic records. Humm, 2012 IL App (5th) 110580,
       ¶ 18.
¶ 15       We agree with Humm. The amendment to section 6(a) is unambiguous and inescapably
       implies that defendant’s office may not avail itself of the present narrow exception to the
       cost-only rule for electronic records. When a statute is unambiguous, we must apply it as
       written. MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009).
¶ 16       Defendant makes two attacks on Humm. First, she contends that section 9-20 of the
       Property Tax Code fits within the exception to the cost-only rule for electronic records.
       According to defendant, the first paragraph of section 9-20 allows her office to charge a
       “reasonable fee” for a “copy or printout,” and the second paragraph allows property record
       cards to be established and maintained exclusively on electronic equipment or microfiche. 35
       ILCS 200/9-20 (West 2012). Defendant concludes that, by section 9-20, the General Assembly
       has expressly allowed her office to charge more than cost for electronic records. Defendant
       notes that section 9-20 does not limit the “reasonable fee” to paper records. 35 ILCS 200/9-20
       (West 2012).
¶ 17       We cannot accept defendant’s reasoning, which is a non sequitur. It does not follow that,
       because (a) section 9-20 expressly allows her office to keep some or all of its records in
       electronic form and (b) section 9-20 does not expressly distinguish between providing
       requesters with paper records and providing requesters with electronic records, therefore (c)
       section 9-20 “expressly provides” that the fees for providing paper records apply to providing
       electronic records. 5 ILCS 140/6(a) (West 2012). Section 9-20 simply does not contain this
       express provision. The first paragraph authorizes, but does not require, assessors to keep
       records in electronic form exclusively. It does not expressly authorize them to charge more
       than cost for the electronic reproduction of these records. The second paragraph authorizes
       assessors to charge reasonable fees for providing records. It does not expressly authorize them
       to charge the same fees for electronic records as they may charge for paper records. Therefore,
       under the plain meaning of section 6(a) of the FOIA, section 9-20 of the Property Tax Code
       does not allow defendant to escape the cost-only rule for electronic records.
¶ 18       Defendant’s second argument is that Humm slights the rule of construction that, when two
       statutes relate to the same subject matter, the more specific statute must prevail over the more
       general one. Defendant essentially invokes King and Henderson, which, as Humm rightly held,
       are no longer good law in view of the amendment to section 6(a) of the FOIA. The canon that
       defendant cites does not prevail over the fundamental rule that the plain meaning of a statute is
       the best guide to the legislature’s intent and may not be disregarded.
¶ 19       Moreover, defendant’s argument presupposes a conflict between section 6(a) of the FOIA
       and section 9-20 of the Property Tax Code. However, the two statutes fit together. Section 6(a)
       creates a rule with a narrow exception; section 9-20 fails to come within the exception. There is
       no genuine conflict that would require us to “choose” between the statutes.

                                                    -5-
¶ 20       In sum, defendant may not charge more than the cost of purchasing the recording medium
       for the requested electronic records. Therefore, we affirm the judgment of the circuit court of
       Winnebago County.

¶ 21      Affirmed.




                                                  -6-
