                                      2017 IL App (1st) 150870

                                                                            FIFTH DIVISION
                                                                            March 31, 2017

No. 1-15-0870

                                                                 )   Appeal from the
THE CITY OF CHICAGO,                                             )   Circuit Court of
                                                                 )   Cook County
                Plaintiff-Appellee,                              )
                                                                 )
v.                                                               )   No. 13 L 10572
                                                                 )
JANSSEN PHARMACEUTICALS, INC.,                                   )
                                                                 )   Honorable
                Defendant-Appellant.                             )   Sanjay Tailor,
                                                                 )   Judge Presiding.


       JUSTICE REYES delivered the judgment of the court, with opinion.
       Presiding Justice Gordon concurred in the judgment and opinion.
       Justice Lampkin specially concurred in the judgment and opinion.


                                            OPINION


¶1     Defendant Janssen Pharmaceuticals, Inc. (Janssen) appeals the circuit court of Cook

County’s order denying a motion to enforce a protective order previously entered between

Janssen and plaintiff, the City of Chicago (City). On appeal, Janssen maintains that the

documents it provided to the City pursuant to the protective order were not subject to disclosure

under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)). Specifically,

Janssen argues that the documents are exempt from inspection and copying under two separate

provisions of FOIA as (1) their disclosure is specifically prohibited by State law (5 ILCS

140/7(1)(a) (West 2014)) and (2) the documents are trade secrets or commercial or financial

information furnished under a claim that they are confidential and such disclosure would cause
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competitive harm to Janssen’s business (5 ILCS 104/7(1)(g) (West 2014)). At oral argument, the

defendant argued only that their disclosure is prohibited by section 7(1)(a) (5 ILCS 140/7(1)(a)

(West 2014)). For the reasons that follow, we affirm.

¶2                                       BACKGROUND

¶3     Prior to filing the lawsuit, the City served Janssen with a subpoena pursuant to section 1­

22-050 of the False Claims chapter of the Chicago Municipal Code (Ordinance) (Chicago

Municipal Code § 1-22-050 (added Dec. 15, 2004), as it was seeking documents that pertained to

the City’s civil investigation into false claims submitted as a result of certain of Janssen’s

practices in marketing opioids, i.e. a synthetic narcotic. Janssen, however, declined to produce

the documents requested by the City. As a result, on September 23, 2013, the City filed the

instant suit due to Janssen’s failure to respond to the subpoena.

¶4     While the matter was pending in the circuit court, Janssen and the City negotiated a

“Confidentiality Stipulation and Protective Order” (protective order), which was entered by the

circuit court on November 12, 2013. The protective order provided in pertinent part that the

information produced by Janssen, regardless of confidentiality designation, could only be used in

accordance with the provisions of section 1-22-050(i) of the Ordinance, or as otherwise required

by law or court order. The City acknowledged in the protective order that the information

produced by Janssen may contain trade secrets or other confidential information and that Janssen

“considers this information to be protected and exempt from disclosure under the Illinois

Freedom of Information Act.” The protective order further provided that the City would notify

Janssen if a request was made by a third party to disclose the produced information so as to allow

Janssen “the opportunity to take steps to prevent disclosure; provided, however, that nothing in

this Protective Order shall be read to conflict with the City of Chicago’s duty to comply” with



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the public disclosure laws, including FOIA.

¶5     On November 20, 2013, the City withdrew its petition to enforce the subpoena without

prejudice and was granted leave to reinstate “before this Court in the event that further disputes

or issues arise between the parties with respect to the subpoena.” Janssen then produced 114,230

pages of documents to the City, many of which were marked “confidential” pursuant to the

protective order.

¶6     On June 2, 2014, the City filed suit against Janssen, Janssen’s parent, and various other

pharmaceutical companies alleging violations of the Ordinance. As a result of filing this lawsuit,

USA Today issued a FOIA request to the City seeking copies of documents in support of certain

claims the City asserted against Janssen. Pursuant to the protective order, the City notified

Janssen of the request and informed Janssen that it believed three documents were responsive to

USA Today’s request.

¶7     Ultimately, on October 22, 2014, Janssen filed a motion to enforce the protective order in

the circuit court alleging that the City was required to deny third-party requests brought under

FOIA pursuant to the protective order. Janssen further argued that the documents sought were

exempt from disclosure under section 7 of FOIA (5 ILCS 140/7 (West 2014)). Pertinent to this

appeal, Janssen specifically asserted two reasons the documents were exempt. First, that section

7(1)(a) prevented disclosure of the documents where the information sought was specifically

prohibited from disclosure by State law (5 ILCS 140/7(1)(a) (West 2014)). According to Janssen,

subsections (i) and (k) of the Ordinance (Chicago Municipal Code § 1-22-050(i), (k) (added Dec.

15, 2004)) qualified as such a “State law” as it manifested the required legislative intent to

prohibit public disclosure of subpoenaed documents. Second, Janssen maintained the documents

were exempt under section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g) (West 2014)) as the production



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of its confidential documents would make it more difficult for a public body to induce

individuals to submit similar information in the future, i.e. such production would have a

“chilling effect.” In addition to finding the documents sought by USA Today were exempt from

disclosure pursuant to FOIA, Janssen also requested the circuit court enter a declaratory

judgment prohibiting the City from disclosing all of Janssen’s nonpublic documents to third

parties under FOIA.

¶8     After the matter was fully briefed and argued, on February 26, 2015, the circuit court

issued a written memorandum denying Janssen’s motion. Pertinent to this appeal, the circuit

court found that Janssen’s documents were not exempt from FOIA under section 7(1)(a) because

the Ordinance “in no way” implements State law. The circuit court further found that even if the

Ordinance fell within the purview of section 7(1)(a) of FOIA, sections 1-22-050(i) and 1-22­

050(k) of the Ordinance did not prohibit disclosure. Specifically, section 1-22-050(i) expressly

allowed disclosure if the City determines, in its judgment, that it is necessary for the effective

enforcement of laws. In addition, section 1-22-050(k) does not generally prohibit disclosure,

“rather, the exemption from disclosure is limited by its express terms to the [Illinois

Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2014))].” As to section 7(1)(g) of

FOIA, the circuit court found the only party that could assert a “chilling effect” under section

7(1)(g) of FOIA was the public body in possession of the documents.

¶9     On March 23, 2015, Janssen filed its notice of appeal. Thereafter, Janssen moved to stay

enforcement of the circuit court’s order pending this appeal, and the circuit court denied the

request. Janssen moved for similar relief in this court, which we also denied. The City then

disclosed the relevant documents to USA Today on May 1, 2015.

¶ 10                                        ANALYSIS



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¶ 11    On appeal, Janssen argues that the circuit court erred when it determined the remaining

documents (which were not tendered to USA Today) were not exempt from disclosure under

sections 7(1)(a) and 7(1)(g) of FOIA. 5 ILCS 140/7(1)(a), (g) (West 2014). 1 Section 7(1)(a)

generally provides that information is exempt from disclosure where it is “specifically prohibited

from disclosure by federal or State law.” 5 ILCS 140/7(1)(a) (West 2014). Under section 7(1)(g),

information is exempt from disclosure where it consists of a “trade secrets or commercial or

financial information” that is “furnished under a claim that they are proprietary, privileged or

confidential” and that such disclosure “would cause competitive harm to the person or business”

in regards to the specific records requested. 5 ILCS 104/7(1)(g) (West 2014). As a result, Janssen

requests that this court reverse the order of the circuit court and find that, as a matter of law, all

nonpublic documents it produced to the City pursuant to the protective order are exempt from

disclosure under FOIA.

¶ 12    In response, the City argues that Janssen’s documents do not fall under the exceptions to

disclosure under FOIA because (1) the ordinance is not “State law” as required under section

7(1)(a), and (2) the policy concerns of section 7(1)(g) are not applicable here where the

disclosure of Janssen’s documents will have no effect on the City’s ability to acquire similar

information from others. 2

¶ 13    Whether the records are exempt from disclosure under FOIA (5 ILCS 140/7 (West

2014)), as Janssen claims, is a matter of statutory construction, and our review proceeds de novo.



        1
       We observe that Janssen admits in its brief that this appeal is moot with regards to the
documents which were already tendered to USA Today by the City.
        2
           The City initially asserted in its brief that Janssen’s appeal is moot because the
documents were already provided to USA Today. However, at oral argument the City conceded
that, in regards to the declaratory judgment action for the remaining documents, the appeal was
not moot.
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Lucas v. Prisoner Review Board, 2013 IL App (2d) 110698, ¶ 15; Stern v. Wheaton-Warrenville

Community Unit School District 200, 233 Ill. 2d 396, 404 (2009). For the reasons that follow, we

find that Janssen’s remaining documents are not exempt from disclosure under either section

7(1)(a) or section 7(1)(g) of FOIA.

¶ 14   We begin our analysis by explaining the purpose of FOIA, which is “to open

governmental records to the light of public scrutiny.” Bowie v. Evanston Community

Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989); see 5 ILCS 140/1 (West 2014).

Thus, we are directed by our legislature to view FOIA from the standpoint that, “All records in

the custody or possession of a public body are presumed to be open to inspection or copying.” 5

ILCS 104/1.2 (West 2014). The term “public body” is broadly defined in FOIA to include cities

such as the City of Chicago. 5 ILCS 140/2(a) (West 2014). Our legislature has further intended

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.” 5 ILCS 140/1 (West 2014).

¶ 15   “Based upon the legislature’s clear expression of public policy and intent set forth in

section 1 of the FOIA that the purpose of that Act is to provide the public with easy access to

government information, this court has held that the FOIA is to be accorded ‘liberal construction

to achieve this goal.’ ” Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d

390, 416 (2006) (quoting Bowie, 128 Ill. 2d at 378). Although FOIA outlines several exemptions

to disclosure, those exemptions are read narrowly. Day v. City of Chicago, 388 Ill. App. 3d 70,

73 (2009) (citing Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407

(1997)). “Thus, when a public body receives a proper request for information, it must comply

with that request unless one of the narrow statutory exemptions set forth in section 7 of the Act



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applies.” Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d 456, 463

(2003).

¶ 16      Our analysis of whether Janssen’s remaining documents fall within a FOIA exception is

guided by several well-established principles of statutory construction. It is well settled that the

primary objective of this court when construing the meaning of a statute is to ascertain and give

effect to the intent of the legislature. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279

(2003). In determining legislative intent, our inquiry begins with the plain language of the

statute, which is the most reliable indication of the legislature’s objectives in enacting a

particular law. In re Madison H., 215 Ill. 2d 364, 372 (2005). A fundamental principle of

statutory construction is to view all provisions of a statutory enactment as a whole. Accordingly,

words and phrases should not be construed in isolation, but must be interpreted in light of other

relevant provisions of the statute. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d

493, 504 (2000). “In construing a statute, we presume that the legislature, in its enactment of

legislation, did not intend absurdity, inconvenience or injustice.” Southern Illinoisan, 218 Ill. 2d

at 415. We use the same rules of construction when interpreting municipal ordinances as we do

when construing statutes. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 492

(2009)).

¶ 17      In the instant matter, Janssen first argues that the exemption to FOIA set forth in section

7(1)(a) (5 ILCS 140/7(1)(a) (West 2014)) applies to the documents it provided to the City.

Section 7(1)(a) states in pertinent part:

                 “(1) 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



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          information that is exempt. The public body shall make the remaining information

          available for inspection and copying. Subject to this requirement, 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 2014).

¶ 18      Janssen maintains that section k of the Ordinance (Chicago Municipal Code § 1-22­

050(k) (added Dec. 15, 2004)) qualifies as a “State law” that expressly prohibits the disclosure of

the documents it provided to the City pursuant to the protective order. Section k of the Ordinance

states:

                 “(k) Disclosure exemption. Any documentary material, answers to written

          interrogatories, or oral testimony provided under any subpoena issued under subsection

          (a) shall be exempt from disclosure under the Illinois Administrative Procedure Act.”

          (Emphasis in original.) Id.

Janssen reasons that the Ordinance is equivalent to a “State law” because the Ordinance is “a

valid exercise of home rule power,” and as a home rule unit, “Chicago has the same power as the

State to legislate [FOIA] exemptions.” Janssen further asserts that the plain language of section k

evidences an “unambiguous legislative [sic] intent to shield subpoenaed documents from public

disclosure.”

¶ 19      In response, the City contends that the section 7(1)(a) exemption does not apply here as

the Ordinance is not a State law or a rule or regulation implementing State law. The City

maintains that laws enacted by the State legislature do not include municipal ordinances and that

the Illinois Constitution makes it evident that only the legislature promulgates laws and that a



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home rule municipality only promulgates ordinances. Consequently, while ordinances

technically operate as effectively as a law passed by the legislature, municipal ordinances and

State laws are nonetheless distinct enactments. The City further asserts that the Ordinance “does

not prohibit disclosure on its own terms” where the Ordinance “expressly authorizes the

Corporation Counsel to make ‘available for examination by any individual’ subpoenaed

information, when ‘determined necessary by the corporation counsel and subject to the

conditions imposed by him or her for effective enforcement of the laws of this city, or as

otherwise provided by court order’ ” (quoting Chicago Municipal Code § 1-22-050(i)(2) (added

Dec. 15, 2004)).

¶ 20   In support of its argument that City of Chicago ordinances have the same force and effect

as “State law” so as to trigger the disclosure exemption under section 7(1)(a) of FOIA, Janssen

relies on the cases of City of Chicago v. Roman, 184 Ill. 2d 504, 512 (1998), and Palm v. 2800

Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 30, for the propositions that (1)

because the City is a home rule unit of local government its ordinances operate as effectively as a

law passed by the state legislature and (2) our constitution was written with the intention to

provide home rule units the broadest powers possible. While these propositions are undisputed

by the City, we find Janssen has failed to demonstrate how we can bypass the plain and ordinary

language of section 7(1)(a) and instead read into the statute that the legislature intended that the

words “State law” include an ordinance. Our fundamental rule of statutory construction is to

ascertain and give effect to the legislature’s intent. Krautsack v. Anderson, 223 Ill. 2d 541, 552­

53 (2006). The best indication of legislative intent is the language of the statute, given its plain

and ordinary meaning. People v. Jamison, 229 Ill. 2d 184, 188 (2008). Accordingly, if the

language of the statute is not ambiguous, we need not, as Janssen suggests, resort to other aids of



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statutory construction to determine the legislative intent. Alvarez v. Pappas, 229 Ill. 2d 217, 228

(2008).

¶ 21      Janssen maintains that our supreme court’s decision in Landis v. Marc Realty, L.L.C., 235

Ill. 2d 1 (2009), is dispositive and provides support for its proposition that “State law” should be

read to include an ordinance. We disagree. In Landis, our supreme court considered whether

subsection (f) of section 5-12-080 of the Residential Landlord and Tenant Ordinance (RLTO)

(Chicago Municipal Code § 5-12-080(f) (amended May 14, 1997)) imposes a “ ‘statutory

penalty’ ” within the meaning of section 13-202 of the Code of Civil Procedure (Code) (735

ILCS 5/13-202 (West 2004)). Landis, 235 Ill. 2d at 4. There, the plaintiffs filed suit against the

defendant-landlords pursuant to section 5-12-080 of the RLTO and asserted they were entitled to

damages as prescribed by subsection (f) of the ordinance. Id. at 5. The defendants moved to

dismiss the complaint contending that it was untimely under the two-year statute of limitations in

section 13-202, which provided that actions for damages for a statutory penalty shall be

commenced within two years. Id. at 5-6. In response, the plaintiffs argued that subsection (f) of

section 5-12-080 of the RLTO did not impose a “ ‘statutory penalty’ ” within the meaning of

section 13-202 and, therefore, their claim was governed either by the 5-year limitations period in

the “ ‘catch-all’ ” provision of section 13-205 of the Code or by the 10-year limitations period

for an action to enforce a written contract in section 13-206 of the Code. Id. at 6. The trial court

agreed with the defendants’ argument and found that the two-year limitation period applied,

dismissing the plaintiff’s complaint, and the appellate court affirmed. Id.

¶ 22      Our supreme court identified the main issue in Landis to turn on the proper interpretation

of the phrase “ ‘statutory penalty’ in section 13-202.” Id. In construing this phrase, the court first

determined that the phrase “statutory” was not defined by section 13-202 and, thus, it was



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presumed that the legislature intended the term to have its ordinary and popularly understood

meaning. Id. at 8. After examining various dictionary definitions of the word “statutory,” the

court concluded that the word was ambiguous (id. at 11) as some dictionaries defined “statutory”

as laws enacted by the act of a legislative power (id. at 9), while others interpreted it to mean

generally a law passed by a legislative body (id. at 10). Finding “statutory” to be ambiguous, the

court turned to other aids of statutory construction to discern the legislative intent, namely that

(1) statutes are to be given “the fullest, rather than the narrowest, possible meaning to which they

are susceptible” and (2) it is appropriate to consider the consequences that would result from

construing a statute one way or the other. Id. at 11-12. Our supreme court ultimately concluded

that “the legislature must have intended for a ‘statutory penalty’ to include a municipal

ordinance.” Id. at 12.

¶ 23   Janssen’s reliance on Landis is misplaced. First, the Landis court did not consider

whether the legislature intended that a “State law” included a municipal ordinance within the

context of FOIA. Second, Janssen assumes, without any argument in support, that the terms

“statutory” and “State law” are equivalent and that we must construe section 7(1)(a) similarly.

While no further discussion is necessary on this point as Janssen has forfeited it pursuant to Rule

341(h)(7), we observe that the word “statutory” and the phrase “State law” are distinct.

“Statutory” is an adjective and as such describes the particular quality of the word it modifies (in

Landis it was the word “penalty”). In contrast, the phrase “State law” involves a proper noun

which our legislature intended to refer to the State of Illinois. See 5 ILCS 140/1 (West 2014).

Accordingly, “State” and “statutory” are not equivalent and Janssen’s attempt at negating the

importance of “State” as a proper noun in its briefs by referring to this phrase as “state law”

(lower case), is not well taken.



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¶ 24    Third, Janssen relies on the proposition set forth in Landis that, “It is a general principle

of statutory interpretation that we give statutes the fullest, rather than the narrowest, possible

meaning to which they are susceptible.” Landis, 235 Ill. 2d at 11. While that proposition is in no

doubt correct, our legislature and, in turn, our supreme court have essentially limited it when it

comes to interpreting the FOIA exceptions. FOIA is intended to “open governmental records to

the light of public scrutiny” (Bowie, 128 Ill. 2d at 378), and, thus, under FOIA, “public records

are presumed to be open and accessible” (Lieber, 176 Ill. 2d at 407). FOIA expressly

contemplates “full and complete” disclosure of the affairs of government and recognizes that

such disclosure is necessary to enable the people to fulfill their duties to monitor government. 5

ILCS 140/1 (West 2014). To that end, our supreme court has held that “FOIA is to be accorded

‘liberal construction’ ” (Southern Illinoisan, 218 Ill. 2d at 416 (quoting Bowie, 128 Ill. 2d at

378)) and consequently that “the statutory exemptions from disclosure must be read narrowly”

(emphasis added) (Stern v. Wheaton-Warrenville Community Unity School District 200, 233 Ill.

2d 396, 411 (2009)). See Southern Illinoisan, 218 Ill. 2d at 416; Lieber, 176 Ill. 2d at 407. In

light of the explicit intention of our legislature to construe the exceptions narrowly and our

supreme court’s holdings in accordance with this principle, we conclude that the phrase “State

law” must be afforded its plain and ordinary meaning, which necessarily excludes municipal

ordinances. See Krautsack, 223 Ill. 2d at 552-53 (our fundamental rule of statutory construction

is to ascertain and give effect to the legislature’s intent); Jamison, 229 Ill. 2d at 188 (the best

indication of legislative intent is the language of the statute, given its plain and ordinary

meaning). As we have determined that the phrase “State law” does not include municipal

ordinances, it follows that section 7(1)(a) of FOIA does not exempt the documents from

inspection and copying via section k of the Ordinance.



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¶ 25       Janssen next argues that the exemption provided in section 7(1)(g) of FOIA applies to the

documents it submitted to the City pursuant to the protective order. Section 7(1)(g) provides in

pertinent part that the following shall be exempt from inspection and copying:

                  “(g) Trade secrets and commercial or financial information obtained from a

           person or business where the trade secrets or commercial or financial information are

           furnished under a claim that they are proprietary, privileged or confidential, and that

           disclosure of the trade secrets or commercial or financial information would cause

           competitive harm to the person or business, and only insofar as the claim directly applies

           to the records requested.” 5 ILCS 140/7(1)(g) (West 2014).

Janssen does not assert that its documents constituted “trade secrets” under section 7(1)(g) or

even that the remaining documents are confidential. Janssen also does not argue that disclosure

of its documents would cause it competitive harm. At most, Janssen contends that disclosure of

the documents would have a “chilling effect” on other organizations complying with a subpoena

issued by the City in the future. Janssen maintains that this court’s jurisprudence supports its

argument, as this court has construed the term “trade secrets” broadly to include “both

conventional trade secrets; i.e., information which if disclosed would ‘inflict substantial

competitive harm,’ and other commercial records; i.e., information which, if disclosed, would

‘make it more difficult for the agency to induce people to submit similar information in the

future.’ ” (quoting Roulette v. Department of Central Management Services, 141 Ill. App. 3d

394, 400 (1986)). Thus, Janssen maintains that because it “willingly” produced documents to the

City under the protective order, disclosure of these documents is prohibited due to its “chilling

effect.”

¶ 26       In support of this position, Janssen primarily relies upon this court’s decision in BlueStar



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Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990 (2007). In that case,

this court held that a confidential settlement agreement, which was willingly disclosed by a

corporation to a public body, was exempt from disclosure under section 7(1)(g) of FOIA because

“[d]isclosure of the information after the ICC’s representation that the documents would not be

disclosed would discourage [the corporation] and other similarly situated organizations from

providing the ICC with similar information in the future.” Id. at 995-96. In coming to this

conclusion the BlueStar court stated the main proposition upon which Janssen relies, namely

that, “The term trade secret in the context of the FOIA has been interpreted to include

information that (1) would either inflict substantial competitive harm or (2) make it more

difficult for the agency to induce people to submit similar information in the future.” (Emphasis

in original.) Id. at 995.

¶ 27    What neither party brings to this court’s attention, however, is that subsequent to this

court’s opinion in BlueStar, section 7(1)(g) of FOIA was substantively amended by our

legislature. Whereas before section 7(1)(g) excluded from disclosure “[t]rade secrets and

commercial or financial information obtained from a person or business where the trade secrets

or information are proprietary, or where disclosure of the trade secrets or information may cause

competitive harm” (emphases added) (5 ILCS 140/7(1)(g) (West 2004)), the relevant statute now

provides that “[t]rade secrets and commercial or financial information obtained from a person or

business where the trade secrets or commercial or financial information are furnished under a

claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets

or commercial or financial information would cause competitive harm to the person or business,

and only insofar as the claim directly applies to the records requested” (emphases added) (5

ILCS 140/7(1)(g) (West 2014)). Thus, the legislature set forth new requirements for a disclosure



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exemption under section 7(1)(g). It now requires, that for the exemption to apply, the document

must contain (1) a trade secret, commercial, or financial information, (2) that was obtained from

a person or business where the trade secrets or commercial or financial information are furnished

under a claim that they are either (a) proprietary, (b) privileged, or (c) confidential, and (3) that

disclosure of the trade secrets or commercial or financial information would cause competitive

harm to the person or business. Id.

¶ 28    It is presumed that, in enacting new legislation, the legislature acts with full knowledge of

previous judicial decisions addressing the subject matter of that legislation. Fink v. Ryan, 174 Ill.

2d 302, 308 (1996). Accordingly, we presume that the when the legislature amended section

7(1)(g) it was aware of this court’s decision in BlueStar. Consequently, this court’s statement in

BlueStar that “[t]he term trade secret in the context of the FOIA has been interpreted to include

information that (1) would either inflict substantial competitive harm or (2) make it more

difficult for the agency to induce people to submit similar information in the future” (emphasis in

original) (BlueStar, 374 Ill. App. 3d at 995) is only applicable to those FOIA requests made

pursuant to the earlier versions of the statute.

¶ 29    While the policy concerns that were at issue in BlueStar are still valid, in the present case

Janssen does not meet the threshold requirements of section 7(1)(g) so as to exempt its

documents from disclosure. Janssen has failed to assert both before the trial court and on appeal

why the disclosure of the alleged confidential information contained in the documents it

produced to the City would cause it competitive harm. See 5 ILCS 140/7(1)(g) (West 2014).

Because Janssen failed to provide this court with any basis as to why the disclosure of its

documents would cause it competitive harm, whether in the pleadings or the record, we conclude

Janssen has failed to meet its burden of persuasion and thus its claim for an exemption under



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section 7(1)(g) fails. See Yamnitz v. William J. Diestelhorst Co., 251 Ill. App. 3d 244, 250 (1993)

(the appellant has the burden of persuasion on appeal regarding its claims of error); Flynn v.

Vancil, 41 Ill. 2d 236, 241 (1968); Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

¶ 30    In sum, we find Janssen’s documents do not fall within either section 7(1)(a) or 7(1)(g) of

FOIA, and affirm the judgment of the circuit court.

¶ 31                                     CONCLUSION

¶ 32    For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 33    Affirmed.

¶ 34    JUSTICE LAMPKIN, specially concurring.

¶ 35    I concur with the majority’s holding and analysis concerning Janssen’s FOIA exception

arguments but write separately to address the parties’ statements that this appeal is moot

concerning the three documents the City already disclosed to USA Today.

¶ 36    The parties have misconstrued the law concerning mootness as it applies to the three

disclosed documents. An issue is moot where an actual controversy no longer exists between the

parties or where events have occurred that make it impossible for the court to grant effectual

relief. People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 198 (1997). Once an agency produces

all the records related to a plaintiff’s request, the merits of that plaintiff’s claim for relief

concerning the production of information becomes moot. Duncan Publishing, Inc., v. City of

Chicago, 304 Ill. App. 3d 778, 782 (1999). However, the straight-forward mootness inquiry

applicable in Duncan is not dispositive in the instant case, which involves a “reverse-FOIA

action” by Janssen, a business entity that was required to submit information to the City and

sought to prevent the City from revealing that information to a third party in response to the

latter’s FOIA request. See Twin-Cities Broadcasting Corp. v. Reynard, 277 Ill App. 3d 777, 781



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(1996).

¶ 37      Here, Janssen seeks typical appellate and declaratory relief: reversal of the circuit court’s

order and declaratory relief concerning the documents Janssen provided to the City. Janssen

continues to contest the question of whether the provided documents were exempt from

disclosure under sections 7(1)(a) and (g) of FOIA, and the City maintains that those FOIA

exceptions were not applicable. The City indicates that it will continue to apply this

interpretation of sections 7(1)(a) and (g) to FOIA requests, and Janssen remains subject to

submitting documents to the City pursuant to the municipal ordinance. The parties clearly have a

legally cognizable interest in the outcome of this appeal seeking declaratory relief. See

Beahringer v. Page, 204 Ill. 2d 363, 372 (2003) (the essential requirements of a declaratory

judgment action are: (1) a party with a legal tangible interest; (2) another party having an

opposing interest; and (3) an actual controversy between the parties concerning such interests).

Accordingly, the appeal is not moot regarding even the three documents already disclosed to

USA Today.




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