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                                      Appellate Court                           Date: 2017.07.10
                                                                                07:49:54 -05'00'




                  Perry v. Department of Financial & Professional Regulation,
                                  2017 IL App (1st) 161780



Appellate Court          CHRISTOPHER J. PERRY and PERRY & ASSOCIATES, LLC,
Caption                  Plaintiffs-Appellants, v. THE DEPARTMENT OF FINANCIAL
                         AND PROFESSIONAL REGULATION, Defendant-Appellee.



District & No.           First District, Sixth Division
                         Docket No. 1-16-1780


Filed                    April 14, 2017
Rehearing denied         May 18, 2017



Decision Under           Appeal from the Circuit Court of Cook County, No. 14-CH-17994; the
Review                   Hon. Rita M. Novak, Judge, presiding.



Judgment                 Affirmed.


Counsel on               John L. Ladle, P.C., of Chicago (Gregory F. Ladle, of counsel), for
Appeal                   appellants.

                         Lisa Madigan, Attorney General, of Chicago (Aaron T. Dozeman,
                         Assistant Attorney General, of counsel), for appellee.



Panel                    JUSTICE ROCHFORD delivered the judgment of the court, with
                         opinion.
                         Justice Cunningham concurred in the judgment and opinion.
                         Justice Delort dissented, with opinion.
                                              OPINION

¶1       Plaintiffs-appellants, Christopher J. Perry and Perry & Associates, LLC (collectively
     referred to as plaintiffs), filed an action in the circuit court under the Freedom of Information
     Act (FOIA) (5 ILCS 140/1 et seq. (West 2010)), against defendant-appellee, the Department of
     Financial and Professional Regulation, seeking the disclosure of a complaint filed with
     defendant against Mr. Perry’s structural engineer’s license, as well as reasonable attorney fees
     and a finding for civil penalties on the basis that defendant had acted in bad faith by failing to
     disclose the complaint. Plaintiffs moved for summary judgment. The circuit court granted
     plaintiffs’ motion in part and denied it in part. The court ruled that the complaint was not
     disclosable, but it ordered the release of certain exhibits attached to the complaint. Both parties
     moved for reconsideration. The circuit court granted defendant’s motion for reconsideration
     and dismissed plaintiffs’ FOIA action, in its entirety, ruling that a new statute under the Civil
     Administrative Code of Illinois (Code) (20 ILCS 2105/2105-117 (West Supp. 2015)),
     precluded the release of either the complaint or its exhibits to plaintiffs. The circuit court also
     dismissed plaintiffs’ claims for attorney fees and civil penalties. Plaintiffs moved for
     reconsideration. The circuit court denied plaintiffs’ motion. Plaintiffs appeal. We affirm.

¶2                                    I. Background Information
¶3       The FOIA provides that “[a]ll records in the custody or possession of a public body are
     presumed to be open to inspection or copying. Any public body that asserts that a record is
     exempt from disclosure has the burden of proving by clear and convincing evidence that it is
     exempt.” 5 ILCS 140/1.2 (West 2014). If denied information by the public body, the requestor
     may bring either a request for review by the Public Access Counselor (PAC) established in the
     office of the Attorney General under section 9.5(a) of the FOIA (5 ILCS 140/9.5(a) (West
     2014)), or an action in the circuit court for declaratory or injunctive relief under section 11(a)
     of the FOIA (5 ILCS 140/11(a) (West 2014)), or may pursue both. When the requestor seeks
     PAC review, the PAC may, in its discretion, issue either a nonbinding or binding opinion. 5
     ILCS 140/9.5(f) (West 2014). A binding opinion issued by the PAC is considered a final
     decision of an administrative agency for purposes of administrative review. 5 ILCS 140/11.5
     (West 2014).
¶4       By contrast, an action in the circuit court under section 11 of the FOIA is a de novo action,
     not an action for administrative review. 5 ILCS 140/11(f) (West 2014). In pertinent part,
     section 11(d) provides that the circuit court “shall have the jurisdiction to enjoin the public
     body from withholding public records and to order the production of any public records
     improperly withheld from the person seeking access.” 5 ILCS 140/11(d) (West 2014). Section
     11(i) provides that “[i]f a person seeking the right to inspect or receive a copy of a public
     record prevails in a proceeding under this Section, the court shall award such person
     reasonable attorney’s fees and costs.” 5 ILCS 140/11(i) (West 2014). Section 11(j) provides
     that “[i]f the court determines that a public body willfully and intentionally failed to comply
     with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body
     a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.” 5 ILCS
     140/11(j) (West 2014).



                                                  -2-
¶5                                      II. Plaintiffs’ FOIA Request
¶6         Plaintiffs’ FOIA request stems from a complaint filed with defendant against Mr. Perry’s
       structural engineer’s license by an individual whose identity was not disclosed to Mr. Perry.
       Mr. Perry appeared at an administrative hearing in response to the complaint, and he claims
       that he was told by the panel that he could not be informed of the nature of the allegation
       against him other than a vague insinuation that he had “done wrong.” Mr. Perry ultimately
       received a letter in January 2013 closing the matter with no adverse consequences but, also,
       advising him that the allegation would remain on his record and could later be used against him
       if any subsequent complaints were filed.
¶7         On January 21, 2013, plaintiffs filed their initial FOIA request with defendant, seeking
       disclosure of the complaint made against Mr. Perry’s license. On January 23, 2013, defendant
       denied the request.
¶8         Plaintiffs sought review of defendant’s denial with the PAC pursuant to section 9.5(a) of
       the FOIA. 5 ILCS 140/9.5(a) (West 2014).
¶9         On August 21, 2013, in a nonbinding opinion letter, the PAC concluded that defendant
       properly refused to disclose the complaint against Mr. Perry’s license under section 7(1)(d)(iv)
       of the FOIA (5 ILCS 140/7(1)(d)(iv) (West 2014)). Section 7(1)(d)(iv) exempts information
       from disclosure, where disclosure would “unavoidably disclose the identity of a confidential
       source, confidential information furnished only by the confidential source, or persons who file
       complaints with or provide information to administrative, investigative, law enforcement, or
       penal agencies.” Id. The PAC determined that disclosure of the complaint would unavoidably
       identify the person who filed the complaint with defendant in violation of section 7(1)(d)(iv).
¶ 10       On August 26, 2013, plaintiffs amended the FOIA request in accordance with the PAC’s
       opinion and requested that defendant disclose the complaint “redacted to exclude proper
       names and ‘confidential information’ ” pursuant to section 7(1) of the FOIA. Section 7(1)
       provides that “[w]hen a request is made to inspect or copy a public record that contains
       information that is exempt from disclosure under this Section, but also contains information
       that is not exempt from disclosure, the public body may elect to redact the information that is
       exempt.” 5 ILCS 140/7(1) (West 2014). Defendant denied the request.
¶ 11       On November 6, 2014, plaintiffs filed an action against defendant in the circuit court
       pursuant to section 11 of the FOIA. Plaintiffs requested that the court order defendant to
       produce the redacted complaint against Mr. Perry’s license pursuant to section 11(d) and also
       sought an award of attorney fees pursuant to section 11(i), as well as the imposition of a civil
       penalty pursuant to section 11(j) for defendant’s willful and bad-faith failure to comply with
       the FOIA. See 5 ILCS 140/11(d), (i), (j) (West 2014).
¶ 12       Plaintiffs moved for summary judgment or, in the alternative, for an in camera inspection
       of the complaint against Mr. Perry’s license pursuant to section 11(f) of the FOIA. A hearing
       was held on July 27, 2015. The circuit court concluded, after an in camera inspection, that the
       complaint was exempt from disclosure under section 7(1)(d)(iv) of the FOIA but that two
       exhibits to the complaint could be disclosed because they had previously been made available
       to third parties. Accordingly, the court granted in part and denied in part plaintiffs’ motion for
       summary judgment.




                                                   -3-
¶ 13       Plaintiffs moved for reconsideration, arguing that the court should have ordered disclosure
       of the complaint with any names redacted that would have disclosed the complainant’s
       identity.
¶ 14       Defendant also moved for reconsideration, arguing that the court should not have ordered
       the disclosure of the exhibits to the complaint, as those exhibits would necessarily reveal the
       complainant’s identity in violation of section 7(1)(d)(iv) of the FOIA. Defendant also raised
       section 2105-117 of the Code (20 ILCS 2105/2105-117 (West Supp. 2015)), a statutory
       amendment that took effect on August 3, 2015, as a basis to find that the complaint and
       attached exhibits were exempt from disclosure even if all names and confidential information
       was redacted. Section 2105-117 provides:
               “All information collected by the Department in the course of an examination or
               investigation of a licensee, registrant, or applicant, including, but not limited to, any
               complaint against a licensee or registrant filed with the Department and information
               collected to investigate any such complaint, shall be maintained for the confidential use
               of the Department and shall not be disclosed.” Id.
¶ 15       Plaintiffs responded that section 2105-117 does not apply in this case because it was not in
       effect at the time plaintiffs made the FOIA request or when the circuit court issued its ruling on
       plaintiffs’ summary judgment motion.
¶ 16       A hearing was held on the motions to reconsider on January 7, 2016. The circuit court
       noted that section 2105-117 had become effective about one week after its earlier ruling on
       plaintiffs’ summary judgment motion, and thus, the court could not have applied section
       2105-117 when ruling on the motion. However, the court also noted it had retained jurisdiction
       over this case to consider the parties’ motions for reconsideration and that it was required
       under Kalven v. City of Chicago, 2014 IL App (1st) 121846, to apply the law currently in
       effect, i.e., section 2105-117, when ruling on the reconsideration motions. The court
       determined that under section 2105-117, plaintiffs were not entitled to the disclosure of either
       the redacted complaint against Mr. Perry’s license or the exhibits attached to the complaint.
       Accordingly, the court granted defendant’s motion for reconsideration and dismissed
       plaintiffs’ FOIA action.
¶ 17       Plaintiffs filed a motion to reconsider the January 7, 2016, judgment, arguing that the court
       erred by applying section 2105-117, by failing to specifically address their claim for attorney
       fees under section 11(i) of the FOIA, and by failing to specifically address their claim for a
       civil penalty against defendant under section 11(j) of the FOIA.
¶ 18       The circuit court denied plaintiffs’ motion to reconsider and reaffirmed its dismissal of
       plaintiffs’ FOIA action, ruling that section 2105-117 prevented the disclosure of the redacted
       complaint against Mr. Perry’s license or the exhibits attached to the complaint.
¶ 19       The circuit court also dismissed plaintiffs’ claim for attorney fees under section 11(i) of the
       FOIA because plaintiffs were not prevailing parties.
¶ 20       Finally, the circuit court dismissed plaintiffs’ claim for a civil penalty against defendant
       under section 11(j) of the FOIA.

¶ 21                                       III. Plaintiffs’ Appeal
¶ 22       Initially, we note that plaintiffs characterize their action here as one for administrative
       review. Plaintiffs’ characterization is incorrect as they appeal the circuit court’s granting of

                                                    -4-
       defendant’s motion for reconsideration of its earlier summary judgment ruling and dismissing
       plaintiffs’ claim for injunctive relief under section 11(d) of the FOIA which, as discussed
       earlier in this order, is a de novo action and not an administrative review action.
¶ 23        We proceed to address plaintiffs’ appeal.
¶ 24        The parties agree that, if applicable, section 2105-117 of the Code prevents the disclosure
       of the redacted complaint against Mr. Perry’s structural engineer’s license and the attached
       exhibits to the complaint. However, plaintiffs argue that the circuit court erred in applying
       section 2105-117 retroactively to their FOIA action. Whether a statutory amendment will be
       applied prospectively or retrospectively is a matter of statutory construction that is reviewed
       de novo. Thomas v. Weatherguard Construction Co., 2015 IL App (1st) 142785, ¶ 63.
¶ 25        Plaintiffs contend that the circuit court misapplied the test set forth in Landgraf v. USI Film
       Products, 511 U.S. 244 (1994), in determining whether an amended statute may be applied
       retroactively. Under the Landgraf test, “if the legislature has clearly indicated the temporal
       reach of the amended statute, that expression of legislative intent must be given effect, absent a
       constitutional prohibition. If, however, the amended statute contains no express provision
       regarding its temporal reach, the court must go on to determine whether applying the statute
       would have a retroactive impact, ‘keeping in mind the general principle that prospectivity is
       the appropriate default rule.’ ” People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193,
       ¶ 29 (quoting Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 330-31 (2006)).
¶ 26        Under Landgraf, “[a]n amended statute will be deemed to have retroactive impact if
       application of the new statute would impair rights a party possessed when he acted, increase a
       party’s liability for past conduct, or impose new duties with respect to transactions already
       completed. [Citations.] If the court finds that retrospective application of the new law would
       have a retroactive impact or result in inequitable consequences, ‘the court must presume that
       the legislature did not intend that it be so applied.’ ” Id. ¶ 30 (quoting Caveney v. Bower, 207
       Ill. 2d 82, 91 (2003)).
¶ 27        However, Illinois courts rarely look beyond the first step of the Landgraf analysis. Bower,
       207 Ill. 2d at 94. “This is because an amendatory act which does not, itself, contain a clear
       indication of legislative intent regarding its temporal reach, will be presumed to have been
       framed in view of the provisions of section 4 of our Statute on Statutes (5 ILCS 70/4 (West
       2000)).” J.T. Einoder, Inc., 2015 IL 117193, ¶ 31. Section 4 is a general savings clause, which
       the supreme court has interpreted as meaning that “procedural changes to statutes will be
       applied retroactively, while substantive changes are prospective only.” People ex rel. Alvarez
       v. Howard, 2016 IL 120729, ¶ 20.
¶ 28        In the present case, plaintiffs argue that section 2105-117 (which contains no express
       provision regarding its temporal reach) is a substantive amendment that exempts from
       disclosure all complaints, even redacted ones, against a licensee filed with defendant and also
       exempts from disclosure all information collected to investigate any such complaint, even
       information that is not confidential. Plaintiffs contend the application of section 2105-117
       would have a retroactive impact on plaintiffs by impairing their rights to examine the
       complaint (and attached exhibits) filed against Mr. Perry’s structural engineer’s license.
       Accordingly, plaintiffs argue that, under Landgraf and section 4 of the Statute on Statutes,
       section 2105-117 may not be retroactively applied.



                                                    -5-
¶ 29        We disagree with plaintiffs’ argument, finding Kalven, 2014 IL App (1st) 121846, Center
       for Biological Diversity v. United States Department of Agriculture, 626 F.3d 1113 (9th Cir.
       2010), and Wisniewski v. Kownacki, 221 Ill. 2d 453 (2006), to be controlling.
¶ 30        In Kalven, the plaintiff submitted FOIA requests to the Chicago police department (CPD),
       seeking disclosure of two types of documents related to complaints of police misconduct. CPD
       denied the requests, and the plaintiff filed suit seeking an injunction requiring CPD to produce
       the documents. Kalven, 2014 IL App (1st) 121846, ¶ 2.
¶ 31        The parties filed cross-motions for summary judgment. Id. ¶ 7. The circuit court found that
       one type of document was exempt from disclosure under the FOIA but that the other type was
       not exempt. Id. Both parties appealed. Id.
¶ 32        The appellate court noted that the threshold question to be resolved is which version of the
       FOIA applies to this case. Id. ¶ 8. The plaintiff requested the documents from the CPD in
       November 2009, and after CPD denied the request, the plaintiff filed suit on December 22,
       2009. Id. While the case was pending in the circuit court, an amended version of the FOIA
       went into effect on January 1, 2010. Id. The plaintiff argued on appeal that the appellate court
       should apply the 2009 version of the FOIA because it was in effect when the FOIA request was
       denied by the CPD; however, defendants argued that the 2010 version of the statute should be
       applied. Id.
¶ 33        The appellate court held: “Injunctive and declaratory relief are prospective forms of relief
       because they are concerned with restraining or requiring future actions rather than remedying
       past harms.” Id. ¶ 10; see, e.g., PHL, Inc. v. Pullman Bank & Trust Co., 216 Ill. 2d 250, 267-68
       (2005) (discussing the difference between an injunction and present claims for damages in the
       context of sovereign immunity). When claims are prospective, a court must apply the law that
       is in effect at the time of its decision. See, e.g., Bartlow v. Costigan, 2014 IL 115152, ¶¶ 30-31
       (in the context of a suit seeking a declaration that a statute is unconstitutional and an injunction
       prohibiting its enforcement, amended version of the statute must be examined in order to
       determine whether the plaintiff is entitled to relief); see also Forest Preserve District v. City of
       Aurora, 151 Ill. 2d 90, 94-95 (1992) (same). In this case, although the 2009 FOIA statute was
       in effect when plaintiff filed suit, the statute has since been amended. “In order to determine
       whether plaintiff is entitled to production of the documents, we must therefore apply the
       version of the statute that is currently in effect.” Kalven, 2014 IL App (1st) 121846, ¶ 10.
¶ 34        In Center for Biological Diversity, the Center for Biological Diversity submitted a FOIA
       request to the Animal and Plant Health Inspection Service (APHIS) for the specific GPS
       coordinates of certain wolf attacks. Center for Biological Diversity, 626 F.3d at 1115. APHIS
       refused to provide the GPS coordinates, and the Center brought suit against APHIS and the
       United States Department of Agriculture (collectively, the USDA). Id.
¶ 35        The district court granted the Center’s motion for summary judgment and denied that of the
       USDA, finding that the GPS coordinates must be disclosed. Id. The district court held that
       section 8791 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. § 8791 (Supp. II
       2008)), which exempted the disclosure of the GPS coordinates, did not apply because it was
       enacted after the USDA withheld the GPS coordinates. Center for Biological Diversity, 626
       F.3d at 1115. The USDA appealed. Id. at 1116.
¶ 36        The Ninth Circuit Court of Appeals (Ninth Circuit) reversed. Id. at 1118-19. The Ninth
       Circuit noted the two-step test set forth in Landgraf for determining the applicability of
       legislation enacted after the acts that gave rise to the suit and found under the first step that

                                                    -6-
       Congress had not expressly prescribed section 8791’s temporal reach. Id. at 1117. As to the
       second step, whether section 8791 would have retroactive effect, the Ninth Circuit cited an
       earlier case in which a conservation group brought a FOIA action to compel the Forest Service
       to release location data about an endangered bird. Southwest Center for Biological Diversity v.
       United States Department of Agriculture, 314 F.3d 1060, 1061 (9th Cir. 2002). While the
       action was pending in the district court, Congress passed new legislation permitting the
       withholding of such information from the public. Id. In determining whether the new
       legislation applied in that case, the appellate court concluded there was no impermissible
       retroactive effect because “the ‘action’ of the [conservation group] was merely to request or
       sue for information; it was not to take a position in reliance upon existing law that would
       prejudice the [conservation group] when that law was changed.” Id. at 1062. As a result, the
       new legislation applied. Id.
¶ 37        The Ninth Circuit held that “Southwest requires the conclusion that there is no
       impermissible retroactive effect in applying Section 8791 to the Center’s pending FOIA
       action. As in Southwest, the only action the Center took was to request information and file
       suit. It engaged in no other action in reliance on then-existing law. We have already explicitly
       rejected the theory that there is an impermissible retroactive effect just because ‘the Center had
       a right to the information when it filed its suit *** and it loses that right by application of the
       new exemption.’ [Citation.] *** ‘[W]hen the intervening statute authorizes or affects the
       propriety of prospective relief, application of the new provision is not retroactive.’ [Citation.]
       Here, the Center seeks the prospective relief of an injunction directing the USDA to provide it
       with certain information. Section 8791 merely affects the propriety of this prospective relief
       and is therefore not impermissibly retroactive when applied in this case.” Center for Biological
       Diversity, 626 F.3d at 1118.
¶ 38        In Wisniewski, the plaintiff filed a lawsuit alleging that defendant Kownacki, a priest, had
       sexually abused him. Wisniewski, 221 Ill. 2d at 455. The plaintiff sought discovery of the
       records of Kownacki’s mental health treatment and alcohol-abuse counseling. Id. The
       defendants objected to the disclosure of the records, asserting that the records were privileged
       under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality
       Act) (740 ILCS 110/1 et seq. (West 2002)) and the Alcoholism and Other Drug Abuse and
       Dependency Act (Dependency Act) (20 ILCS 301/30-5 et seq. (West 2002)). Wisniewski, 221
       Ill. 2d at 455-56. The circuit court concluded that neither statute applied to records created
       prior to the effective dates of the statutes and ordered that the records be turned over. Id. at 456.
       Defendants refused to turn over the records, and the circuit court held defendants in contempt.
       Id. Defendants ultimately appealed to the supreme court. Id.
¶ 39        In pertinent part, our supreme court stated:
                    “Plaintiff argues that applying the nondisclosure provisions of the Confidentiality
                Act and the Dependency Act to Kownacki’s preenactment treatment records would
                have a retroactive impact because it would impose new duties with respect to
                documents and transactions completed years before the statutes’ enactment. We reject
                this argument and conclude that the applicability of the Confidentiality Act and the
                Dependency Act to Kownacki’s treatment records does not hinge upon a retroactivity
                analysis. Disclosure, which is the act regulated by both statutes, takes place only in the
                present or the future. Thus, any new duties regarding disclosure or nondisclosure
                would likewise be imposed only in the present or the future, not in the past. In other

                                                     -7-
                words, applying the nondisclosure provisions of the Confidentiality Act and the
                Dependency Act to preenactment treatment records and communications would not
                impair anyone’s rights with respect to past transactions. Neither statute impacts any
                actions that may have taken place in the past with regard to Kownacki’s records. For
                these reasons, we conclude that the Confidentiality Act and the Dependency Act are
                applicable to treatment records and communications that were created pursuant to
                treatment given prior to the effective dates of those statutes.” Id. at 462-63.
¶ 40        Kalven, Center for Biological Diversity, and Wisniewski compel the conclusion that when
       a statutory amendment only affects the present or future disclosure of information (either by
       allowing for its disclosure or exempting it from disclosure) and does not otherwise impair
       anyone’s rights with respect to completed transactions made in reliance on the prior law, the
       application of the amendment has no impermissible retroactive effect, and therefore, the
       amendment must be applied by the court if it is in effect at the time of the court’s decision.
¶ 41        In the present case, as section 2105-117 of the Code only exempts the complaint and
       exhibits requested by plaintiffs from present or future disclosure and does not otherwise impair
       plaintiffs’ rights with respect to any completed transactions made in reliance on any prior law,
       its application has no impermissible retroactive effect. Therefore, the court properly applied
       section 2105-117 when ruling on the reconsideration motions and dismissing plaintiffs’ FOIA
       request.
¶ 42        Our holding is further bolstered because plaintiffs sought injunctive relief, which is a
       prospective form of relief for which the circuit court must apply the law in effect at the time of
       its decision, i.e., section 2105-117. Kalven, 2014 IL App (1st) 121846, ¶ 10.
¶ 43        Plaintiffs argue that J.T. Einoder, Inc., compels a different result. In J.T. Einoder, Inc., the
       office of the Illinois Attorney General filed a complaint against the defendants alleging they
       had been violating the Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2000)),
       by engaging in open dumping and by permitting the deposit of construction and demolition
       debris waste above grade without a permit. J.T. Einoder, Inc., 2015 IL 117193, ¶¶ 1-2. In
       addition to monetary penalties, the State sought a mandatory injunction pursuant to section
       42(e) of the Act requiring the defendants to remove the above-grade waste pile. Id. ¶ 17. The
       defendants argued that the version of section 42(e) of the Act in effect at the time of the
       violations did not allow for mandatory injunctive relief. Id. The State responded that the
       amended version of section 42(e), which permits courts to issue mandatory injunctions,
       applied in this case. Id. The circuit court ruled that amended section 42(e) applied, and
       accordingly the court granted the State’s request for a mandatory injunction. Id. ¶ 19. The
       appellate court affirmed. Id. ¶ 20.
¶ 44        Our supreme court reversed the appellate court’s finding that amended section 42(e) of the
       Act may be applied retroactively, noting that the amended section “creates an entirely new type
       of liability—a mandatory injunction—which was not available under the prior statute.
       Applying it retroactively here would impose a new liability on defendants’ past conduct. For
       that reason, it is a substantive change in the law and cannot be applied retroactively.” Id. ¶ 36.
¶ 45        In contrast to J.T. Einoder, Inc., the present case involves section 2105-117 of the Code,
       which only affects present or future disclosure of information and which does not impose any
       new liability on past conduct. As such, section 2105-117 has no impermissible retroactive
       effect and therefore was properly applied by the circuit court when ruling on the parties’
       reconsideration motions and dismissing plaintiffs’ FOIA action.

                                                     -8-
¶ 46       Next, plaintiffs argue that the circuit court erred in dismissing their claim for attorney fees
       under section 11(i) of the FOIA. Section 11(i) only allows the recovery of attorney fees when
       “a person seeking the right to inspect or receive a copy of a public record prevails in a
       proceeding under this Section.” (Emphasis added.) 5 ILCS 140/11(i) (West 2014). Plaintiffs
       here did not prevail in their FOIA proceeding, and therefore the circuit court did not err by
       dismissing plaintiffs’ claim for attorney fees.
¶ 47       Finally, on the conclusion page of their appellants’ brief, plaintiffs cursorily argue that the
       matter should be remanded for a hearing on the application of civil penalties against defendant
       under section 11(j) of the FOIA. Plaintiffs forfeited review by failing to make an adequate
       argument regarding the imposition of civil penalties under section 11(j). See Ill. S. Ct. R.
       341(h)(7) (eff. Jan. 1, 2016).
¶ 48       For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 49      Affirmed.

¶ 50       JUSTICE DELORT, dissenting.
¶ 51       On January 21, 2013, and again on August 26, 2013, the plaintiffs requested records from
       the Illinois Department of Financial and Professional Regulation pursuant to FOIA. The
       Department ultimately denied their request. On November 6, 2014, plaintiffs filed this action
       to obtain the records. Almost a year later, on August 3, 2015, the General Assembly enacted a
       law which exempted the records from disclosure. The circuit court dismissed the plaintiff’s
       complaint on the sole basis of the new law. This case thus presents the issue of whether the
       General Assembly can thwart a FOIA request by passing a new law exempting those records
       from disclosure, after the records were denied by the agency holding the records and while the
       matter is in litigation. I believe that the trial court erred by applying the new statute to bar the
       plaintiffs’ request and, therefore, respectfully dissent.
¶ 52       Our supreme court has explained that the retroactive application of a statute is determined
       under the test set forth in Landgraf, 511 U.S. at 280. Under the first part of the test, “if the
       legislature has clearly prescribed the temporal reach of the statute, the legislative intent must
       be given effect absent a constitutional prohibition.” Hayashi v. Illinois Department of
       Financial & Professional Regulation, 2014 IL 116023, ¶ 23. The second part of the test
       provides that if the new law contains no “express provision regarding the temporal reach, the
       court must determine whether applying the statute would have a ‘retroactive’ or ‘retrospective’
       impact; that is, ‘whether it would impair rights a party possessed when he acted.’ ” (Emphasis
       added.) Id. (quoting Landgraf, 511 U.S. at 280). If “applying the statute would have a
       retroactive impact, then the court must presume that the legislature did not intend that it be so
       applied.” Id. (citing Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 38
       (2001)); see also J.T. Einoder, Inc., 2015 IL 117193, ¶ 30 (applying same analysis).
¶ 53       “Illinois courts will rarely, if ever, need to go beyond step one of the Landgraf analysis.
       This is because an amendatory act which does not, itself, contain a clear indication of
       legislative intent regarding its temporal reach, will be presumed to have been framed in view of
       the provisions of section 4 of our Statute on Statutes.” J.T. Einoder, Inc., 2015 IL 117193, ¶ 31.
       Section 4 of the Statute on Statutes, in turn, provides: “[n]o new law shall be construed to
       repeal a former law, whether such former law is expressly repealed or not, as to *** any right
       accrued, or claim arising under the former law.” (Emphasis added.) 5 ILCS 70/4 (West 2014).

                                                    -9-
       The law at issue here, section 2105-117 of the Code (20 ILCS 2105/2105-117 (West Supp.
       2015)), contains no language suggesting that its temporal reach was intended to be retroactive
       so that it would affect record requests validly made before its enactment. Accordingly, section
       4 of the Statute on Statutes suggests the plaintiffs are entitled to consideration of their FOIA
       request on the merits regardless of the later enactment of section 2105-117 of the Code.
¶ 54       In considering whether section 2105-117 should be construed to be retroactive, we should
       also be guided by section 1 of FOIA itself, which states:
                    “The General Assembly hereby declares that it is the public policy of the State of
               Illinois that access by all persons to public records promotes the transparency and
               accountability of public bodies at all levels of government. It is a fundamental
               obligation of government to operate openly and provide public records as expediently
               and efficiently as possible in compliance with this Act.” 5 ILCS 140/1 (West 2014).
¶ 55       Public bodies are required to fulfill valid FOIA requests within a few weeks, at most. 5
       ILCS 140/3 (West 2014). Additionally, FOIA requires courts to prioritize FOIA litigation over
       other types of cases. 5 ILCS 140/11(h) (West 2014) (“Except as to causes the court considers
       to be of greater importance, proceedings arising under this Section shall take precedence on the
       docket over all other causes and be assigned for hearing and trial at the earliest practicable date
       and expedited in every way.”). When, as here, public bodies fail to fulfill FOIA requests
       “expediently” and require requestors to seek judicial relief to vindicate their rights, the public
       policy enunciated in FOIA demands that those rights not be thwarted by an unduly strained
       interpretation of our state’s retroactivity jurisprudence.
¶ 56       To avoid this result, the majority cites several authorities, none of which are persuasive.
       Wisniewski concerned the release of medical records created before the enactment of statutes
       shielding them from disclosure. The request for the records was first made as part of discovery
       in the underlying lawsuit. The lawsuit itself was not filed until years after the statutes had been
       enacted. Our supreme court held that the records need not be released, reasoning that:
               “Disclosure, which is the act regulated by both statutes, takes place only in the present
               or the future. Thus, any new duties regarding disclosure or nondisclosure would
               likewise be imposed only in the present or the future, not in the past. In other words,
               applying the nondisclosure provisions of the [statutes] to preenactment treatment
               records and communications would not impair anyone’s rights with respect to past
               transactions. Neither statute impacts any actions that may have taken place in the past
               with regard to Kownacki’s records.” Wisniewski, 221 Ill. 2d at 463.
       Here, in contrast, the plaintiffs’ request was filed and denied before section 2105-117 of the
       Code was enacted. Wisniewski is therefore distinguishable.
¶ 57       The majority also relies on a case interpreting the federal FOIA, Center for Biological
       Diversity. There, the court held that amendments to the federal version of FOIA enacted while
       the lawsuit was pending barred disclosure of documents requested before the amendment’s
       enactment. This case is distinguishable for several reasons. First, the federal version of FOIA
       does not include the strong statement of public policy and the specific declaration of citizens’
       “right[s]” contained in the Illinois FOIA. Compare 5 U.S.C. § 552 (2012), with 5 ILCS 140/1
       (West 2014). Second, while cases interpreting the federal version of FOIA are often helpful in
       interpreting identical provisions in the Illinois FOIA, “Illinois courts have repeatedly noted
       that the Illinois version of the FOIA is different from the federal version and is, therefore,
       subject to a different interpretation.” Rockford Police Benevolent & Protective Ass’n, Unit No.

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       6 v. Morrissey, 398 Ill. App. 3d 145, 153 (2010). Similarly, in American Federation of State,
       County & Municipal Employees (AFSCME) v. County of Cook, 136 Ill. 2d 334, 345 (1990), our
       supreme court stated: “we decline to interpret the Illinois [FOIA] as narrowly as [the Court of
       Appeals for the District of Columbia Circuit] interpreted the Federal Freedom of Information
       Act.”
¶ 58       The majority also relies on Kalven, in which the court held that a court hearing an appeal
       from a FOIA denial should apply the version of FOIA in existence at the time of its ruling.
       Kalven, 2014 IL App (1st) 121846, ¶ 10. I was on the panel that decided Kalven but did not join
       that part of the opinion. Instead, I specially concurred, stating: “I would instead find that the
       plaintiff’s rights to the records vested when he made the request and could not later be
       rescinded by legislative action. To hold otherwise would encourage governmental bodies to
       stall FOIA responses until some future time when the legislature might amend the statute in a
       favorable manner, or to actively lobby for an amendment which shields particular
       embarrassing records from disclosure.” Id. ¶ 36 (Delort, J., specially concurring). The Kalven
       opinion does not discuss the key—and highly relevant—declaration in section 4 of the Statute
       on Statutes that “[n]o new law shall be construed to repeal a former law, whether such former
       law is expressly repealed or not, as to *** any right accrued, or claim arising under the former
       law.” (Emphasis added.) 5 ILCS 70/4 (West 2014).
¶ 59       Also, the Kalven court did not have the benefit of the more recent Illinois Supreme Court
       case of J.T. Einoder, Inc., in which the court found that a new law cannot apply retrospectively
       where it would “have a retroactive impact or result in inequitable consequences.” J.T. Einoder,
       Inc., 2015 IL 117193, ¶ 30. Here, the Department eventually denied the plaintiffs’ request,
       requiring the plaintiffs to seek judicial relief to vindicate their rights under FOIA. Under these
       facts, applying section 2015-117 of the Code retroactively would, indeed, have “inequitable
       consequences.”
¶ 60       Accordingly, I must respectfully dissent. I would instead reverse the order dismissing the
       complaint and remand for further proceedings.




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