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                                   Appellate Court                         Date: 2017.09.25
                                                                           13:08:20 -05'00'




         Better Government Ass’n v. Village of Rosemont, 2017 IL App (1st) 161957



Appellate Court        BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellee, v.
Caption                THE VILLAGE OF ROSEMONT, Defendant-Appellant.



District & No.         First District, Second Division
                       Docket No. 1-16-1957



Filed                  June 27, 2017



Decision Under         Appeal from the Circuit Court of Cook County, No. 15-CH-1061; the
Review                 Hon. Rita Novak, Judge, presiding.



Judgment               Affirmed.


Counsel on             Loevy & Loevy, of Chicago (Matthew Topic and Joshua Hart Burday,
Appeal                 of counsel), for appellant.

                       Rosenthal, Murphey, Coblentz & Donahue, of Chicago (Peter D.
                       Coblentz and Matthew D. Rose, of counsel), for appellee.



Panel                  JUSTICE NEVILLE delivered the judgment of the court, with
                       opinion.
                       Presiding Justice Hyman and Justice Mason concurred in the
                       judgment and opinion.
                                            OPINION

¶1       Better Government Association (BGA) made a request to see some contracts for use of
     entertainment venues owned by the Village of Rosemont. Rosemont produced the requested
     contracts, but it redacted from the contracts the rent and financial incentives, such as the
     distribution of revenue from food concessions. BGA filed a complaint under the Freedom of
     Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)), seeking an order requiring
     Rosemont to disclose the redacted portions of the contracts. The circuit court granted BGA’s
     motion for summary judgment on the complaint. Rosemont appeals from the order requiring
     disclosure of the redacted terms of the contracts.
¶2       We hold that FOIA does not exempt from disclosure the rent Rosemont charged and the
     negotiated financial incentives Rosemont provided to the persons who sought to use
     Rosemont’s facilities. Rosemont lacked authority to exempt from disclosure documents that
     FOIA required Rosemont to disclose. Accordingly, we affirm the trial court’s judgment.

¶3                                        BACKGROUND
¶4        In 2014, Garth Brooks played a concert at Allstate Arena, which Rosemont owns and
     operates. Stacy St. Clair of the Chicago Tribune sent a request to Rosemont for all contracts
     related to Brooks’s appearance at Allstate Arena. Rosemont redacted significant portions
     from the contracts it sent to St. Clair. On October 10, 2014, St. Clair filed with the Public
     Access Bureau of the Attorney General’s Office a request for review of Rosemont’s partial
     denial of her request for information.
¶5        On November 12, 2014, before the Attorney General issued an opinion concerning the
     request, Rosemont adopted Ordinance No. 2014-11-12, titled “An Ordinance Providing for
     the Protection of Confidential Financial and Proprietary Information Relating to the
     Operation of Village of Rosemont Entertainment Venues.” Rosemont Ordinance No.
     2014-11-12 (approved Nov. 12, 2014). The ordinance provides, “Notwithstanding *** the
     Illinois Freedom of Information Act, no officer or employee of the Village of Rosemont shall
     knowingly disclose confidential financial or proprietary information relating to any
     Amusement Event held or to be held at an Entertainment Venue.” Rosemont Ordinance No.
     2014-11-12 (approved Nov. 12, 2014). The ordinance defined “Entertainment Venues” to
     include Allstate Arena and the Donald E. Stephens Convention Center. Rosemont Ordinance
     No. 2014-11-12 (approved Nov. 12, 2014). The ordinance defined “Confidential Financial or
     Proprietary Information” to mean “information pertaining to the amount of money paid by a
     Producer to secure the use of an Entertainment Venue for production and presentation of an
     Amusement Event and any financial incentives, considerations or payments to be made to a
     Producer as an inducement to license or rent the Entertainment Venue for production and
     presentation of an Amusement Event.” Rosemont Ordinance No. 2014-11-12 (approved Nov.
     12, 2014).
¶6        Rosemont filed with the Public Access Bureau a response to St. Clair’s request for
     review, asserting that the ordinance exempted from disclosure the redacted parts of the
     contracts with Brooks.
¶7        On November 13, 2014, the day after Rosemont adopted Ordinance 2014-11-12, the
     BGA requested from Rosemont all contracts for events held at Allstate Arena and the


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       Convention Center in 2014. Rosemont sent BGA copies of the contracts, but it redacted from
       the contracts “confidential financial and proprietary information of the Village of Rosemont
       consisting of amounts paid as rent for use of the relevant entertainment venue for these
       events, and rebates or financial inducements, if any, paid by the Village of Rosemont for
       production and presentation of such amusement event[s] at the Allstate Arena or the
       Convention Center.”
¶8         On January 22, 2015, BGA filed a complaint charging Rosemont with violating the
       FOIA. The complaint initiated the lawsuit now before this court. Rosemont answered that
       sections 7(1)(a) and 7(1)(g) of the FOIA (5 ILCS 104/7(1)(a), (g) (West 2014)), as well as
       Ordinance 2014-11-12, exempted the redacted portions of the contracts from disclosure.
¶9         Section 7(1) of the FOIA provides:
                   “(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 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.
                                                   ***
                       (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)(a), (g) (West
                   2014).
¶ 10       On January 23, 2015, the Attorney General issued a binding opinion concerning St.
       Clair’s request for Rosemont’s contract with Brooks. The Attorney General said:
               “[T]he regulation of access to governmental information is an area in which ‘the state
               has a vital interest and a traditionally exclusive role.’ [City of Chicago v.] StubHub,
               [Inc.,] 2011 IL 111127, ¶ 25. Therefore, the Village of Rosemont’s Ordinance No.
               2014-11-12 does not pertain to the Village’s government and affairs within the
               meaning of article VII, section 6(a) of the Illinois Constitution of 1970, and
               consequently is not a valid exercise of home rule power. The Village cannot pass an
               Ordinance to avoid disclosing public records to the public. Thus, the Ordinance has
               no effect upon the Village’s duty to comply with Ms. St. Clair’s FOIA request. ***
                                                   ***
                   Under the plain language of article VIII, section 1(c) of the Illinois Constitution
               and section 2.5 of FOIA, a public body cannot withhold information concerning funds
               it expends or receives from its agreements with private entities. Moreover, section
               7(1)(g) does not apply to the financial terms of these agreements because the financial
               terms were not ‘obtained from a person or business’ as section 7(1)(g) plainly
               requires, but rather were negotiated between the parties. ***

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                                                    ***
                    *** The financial terms of contracts with public bodies are expressly subject to
               disclosure under *** section 2.5 of FOIA. ***
           ***
                    For the reasons stated above, it is the opinion of the Attorney General that the
               Village improperly denied, in part, Ms. St. Clair’s Freedom of Information Act
               request ***.” 2015 Ill. Att’y Gen. Op. No. 15-002, at 10, 12, 15,
               http://foia.ilattorneygeneral. net/pdf/opinions/2015/15-002.pdf.
¶ 11       Rosemont decided not to appeal from the Attorney General’s opinion. It sent St. Clair the
       Brooks contracts with the terms she sought.
¶ 12       Rosemont subsequently filed an answer to BGA’s complaint, raising again several of the
       arguments in raised in the litigation concerning Brooks’s contracts. Rosemont appended to its
       answer affidavits from the general manager of Allstate Arena and the executive director of
       the Convention Center, who said that public disclosure of the redacted information from the
       2014 contracts, including the rents and other negotiated terms of the contracts, would harm
       the competitive position of Allstate Arena, the Convention Center, and the persons who
       rented Allstate Arena and the Convention Center in 2014.
¶ 13       BGA filed a motion for summary judgment. The circuit court heard oral arguments on the
       motion and said that section 7(1)(g) of the FOIA did not protect Rosemont’s trade secrets,
       because Rosemont did not obtain its own secrets from any other person or business. Insofar
       as Rosemont sought to protect the secrets of persons who rented Allstate Arena or the
       Convention Center, the court found no evidence those parties considered the terms of the
       contracts confidential. The court held that section 7(1)(a) also did not preclude disclosure of
       the rental terms.
¶ 14       The circuit court found that the FOIA prevented Rosemont from adopting an ordinance
       that effectively prevented disclosure of documents that the FOIA subjected to disclosure. The
       circuit court said:
               “Now, is this to say that the ordinance is unconstitutional? Maybe to some extent. I
               don’t know if this ordinance would have some application other than how it would
               apply to this case. But certainly with respect to the Village’s attempt to control the
               determination of what documents are disclosable under FOIA and the scope of the
               exemptions, I think it’s preempted.”
¶ 15       Rosemont filed a motion for reconsideration, arguing that the circuit court’s ruling
       included a determination that Ordinance No. 2014-11-12 violated the Illinois Constitution
       and the circuit court should not reach constitutional issues when the court could decide the
       case on nonconstitutional grounds. The circuit court granted the motion, and on
       reconsideration, entered an order holding that the Attorney General’s decision concerning the
       Brooks contracts collaterally estopped Rosemont from relitigating the issue of whether the
       FOIA required disclosure of rent and other terms regarding payments for use of Rosemont’s
       entertainment venues. The court reasserted its ruling that sections 7(1)(g) and 7(1)(a) of the
       FOIA did not exempt the redacted portions of the contract from disclosure. The court vacated
       only its ruling on the validity of Rosemont’s ordinance. Rosemont now appeals.




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¶ 16                                         ANALYSIS
¶ 17       Rosemont argues that the Attorney General’s decision concerning the Brooks contracts
       should not collaterally estop Rosemont from contesting BGA’s FOIA request and sections
       7(1)(g) and 7(1)(a) of the FOIA, as well as Ordinance No. 2014-11-12, exempt from
       disclosure the redacted portions of the contracts. We review de novo the order granting a
       motion for summary judgment. Millennium Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d
       281, 309 (2010).

¶ 18                                         Collateral Estoppel
¶ 19       A party seeking to invoke collateral estoppel must show “(1) that the issue decided in the
       prior adjudication is identical with the one presented in the suit in question; (2) that there was
       a final judgment on the merits in the prior adjudication; and (3) that the party against whom
       estoppel is asserted was a party or in privity with a party to the prior adjudication.” Herzog v.
       Lexington Township, 167 Ill. 2d 288, 295 (1995). “Application of the doctrine of collateral
       estoppel must be narrowly tailored to fit the precise facts and issues that were clearly
       determined in the prior judgment.” Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 467 (1996).
       While the Attorney General stated as a general principle that the “financial terms of contracts
       with public bodies are expressly subject to disclosure under *** section 2.5 of FOIA,” the
       Attorney General needed to decide only whether the FOIA required Rosemont to disclose the
       terms of its contracts with Brooks, including the amount of rent charged and the financial
       incentives given to Brooks.
¶ 20       We find this case similar to Lardner v. Department of Justice, 638 F. Supp. 2d 14 (D.C.
       Cir. 2009) (Lardner II). Lardner initially requested complete files of pardon applications
       submitted by 25 people. The Department of Justice provided the files but redacted from the
       files the names of unsuccessful applicants for pardons. Lardner challenged the redactions.
       Lardner v. United States Department of Justice, No. Civ.A.03-0180, 2005 WL 758267, at *1,
       *3 (D.D.C. Mar. 31, 2005) (Lardner I). A court held that the department had a duty to
       disclose the redacted names. Lardner I, 2005 WL 758267, at *20.
¶ 21       Lardner then filed a new federal FOIA request, seeking “materials listing the identities of
       all clemency applicants whose applications were denied” during a specified period. Lardner
       II, 638 F. Supp. 2d at 22. Lardner argued that the prior decision collaterally estopped the
       department from contesting his request. The Lardner II court said,
               “although both actions broadly confront the propriety of withholding the identities of
               unsuccessful clemency applicants, the circumstances in which the withholdings were
               made vary substantially between the two matters. Moreover, Plaintiff seeks to apply
               the doctrine to litigation of a legal issue, not a factual one, and in such circumstances,
               the D.C. Circuit has counseled that there is ‘more room for a second look when the
               issue is one of law than when a fact question is at stake.’ [National Treasury
               Employees Union v. Internal Revenue Service 765 F.2d 1174, 1177 (D.C. Cir. 1985)].
               In light of this observation and the differences between the two actions, the Court is
               persuaded that it is appropriate to permit [the Office of Pardon Attorney (OPA)] the
               opportunity to demonstrate why the legal issue should be resolved differently in this
               case, given the differences between the actions, rather than precluding OPA from
               litigating the merits of the new situation.” Lardner II, 638 F. Supp. 2d at 23.


                                                   -5-
¶ 22       Here, both St. Clair’s litigation and BGA’s lawsuit against Rosemont concern the
       withholding of contractual terms, including negotiated incentives, for persons and businesses
       to use Rosemont’s entertainment venues. However, the kinds of incentives, as well as the
       value of the incentives, could vary widely from contract to contract. BGA, like Lardner,
       seeks to apply collateral estoppel to a legal issue and not to a factual determination the
       Attorney General made. In accord with the reasoning of Lardner II, we find that the court
       should give Rosemont the opportunity to demonstrate that the court should treat the legal
       issue differently for some of the contracts at issue here. Accordingly, we hold that collateral
       estoppel does not apply here to bar Rosemont from arguing that the FOIA and Ordinance
       2014-11-12 exempt the redacted portions of the contracts from disclosure.

¶ 23                                         Section 7(1)(g)
¶ 24       Rosemont argues that section 7(1)(g) of FOIA exempts the redacted portions of the
       contracts from disclosure. The General Assembly enacted FOIA “to open agency action to
       the light of public scrutiny and to protect the public from government malfeasance and
       misfeasance.” (Internal quotation marks omitted.) Roulette v. Department of Central
       Management Services, 141 Ill. App. 3d 394, 398 (1986). The General Assembly asserted, in
       FOIA’s public policy section, that “access [to public records] is necessary to enable the
       people to fulfill their duties of discussing public issues fully and freely, making informed
       political judgments and monitoring government to ensure that it is being conducted in the
       public interest.” 5 ILCS 140/1 (West 2014). Rosemont “must comply with a valid request for
       information unless one of the narrow statutory exemptions set forth in section 7 of the FOIA
       applies.” Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13. “It is the public body’s
       burden to prove by clear and convincing evidence that the requested records fall within any
       claimed exemption.” Better Government Ass’n v. Zaruba, 2014 IL App (2d) 140071, ¶ 19.
       “The legislature patterned the Illinois law after the Federal Freedom of Information Act
       [citation] and case law construing the Federal statute should be used in Illinois to interpret
       our own FOIA.” Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1012 (1994).
       Cases from other states concerning freedom of information may have persuasive force.
       Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (1989).
¶ 25       Rosemont cites as persuasive authority Providence Journal Co. v. Convention Center
       Authority, 774 A.2d 40 (R.I. 2001) (Providence Journal I). The Providence Journal requested
       from the Authority “ ‘documents regarding negotiations that led to the booking’ ” of two
       events, along with the contracts the Authority entered into in connection with the two events.
       Providence Journal I, 774 A.2d at 42. The Providence Journal I court looked to decisions
       interpreting the federal FOIA to help interpret Rhode Island’s law. Providence Journal I, 774
       A.2d at 46-48. The Providence Journal I court distinguished the documents produced during
       the negotiating process from the final contracts and upheld the Authority’s decision not to
       disclose the documents produced during negotiations. But the Authority could not withhold
       the contracts. The Providence Journal I court said, “ ‘[w]hile contracts may certainly contain
       information, such as the price of goods being sold, the entire contract itself cannot qualify as
       ‘information’ in any ordinary sense of either word.’ ” Providence Journal I, 774 A.2d at 50
       (quoting Piper & Marbury L.L.P. v. United States Postal Service, No. CIV.A. 99-2383, 2001
       WL 214217, at *4 (D.D.C. Mar. 6, 2001)). The Providence Journal I court reversed and



                                                  -6-
       remanded for further litigation concerning the contracts. Providence Journal I, 774 A.2d at
       50.
¶ 26       On remand, the superior court ordered the Authority to produce the three contracts, but
       the court permitted the Authority to redact from the contracts “the prices of food and
       beverages and related services ***; the rent charges for using the Convention Center building
       ***; and the prices for rooms and any reference to complimentary rooms.” Providence
       Journal Co. v. Convention Center Authority, 824 A.2d 1246, 1247 (R.I. 2003) (Providence
       Journal II). The superior court reasoned that the final negotiated “prices were items that the
       customers would want to remain confidential and that, as with the documents reflecting the
       negotiation process that we addressed in [Providence Journal I], the negotiated price should
       remain confidential.” (Internal quotation marks omitted.) Providence Journal II, 824 A.2d at
       1247-48. The Supreme Court of Rhode Island reversed the superior court, holding that
       “unlike documents reflecting the negotiation process, final agreements, the ‘fruits’ of
       negotiation, should be available to the public ***. *** Certainly, the final prices, the
       consideration offered by the purchaser of the goods and services, were part of the final
       contract and thus must be disclosed.” Providence Journal II, 824 A.2d at 1248 (citing
       Providence Journal I, 774 A.2d at 50).
¶ 27       We agree with the Providence Journal II court that the final negotiated price of a contract
       does not qualify as “information obtained” from the purchaser within the meaning of section
       7(1)(g). Rosemont admits that the redacted portions of the contracts include its standard
       rental rates for use of the entertainment venues. Rosemont told the purchasers Rosemont’s
       standard rates. Rosemont did not obtain information about Rosemont’s standard rates from
       the renters. See Bloomberg, L.P. v. Board of Governors of the Federal Reserve System, 601
       F.3d 143, 148 (2d Cir. 2010) (amount and rates of loans do not qualify as information
       obtained from borrowers). We also agree with the Providence Journal II court and the
       Attorney General’s opinion that the public has a right to know about the sources and
       dispositions of public funds. See 5 ILCS 140/2.5 (West 2014). Accordingly, we hold that
       section 7(1)(g) does not exempt from disclosure the redacted portions of the contracts at issue
       here.

¶ 28                                        Section 7(1)(a)
¶ 29       Section 7(1)(a) exempts from disclosure only “[i]nformation 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). Rosemont claims that the Illinois Trade Secrets Act
       (Trade Secrets Act) (765 ILCS 1065/1 et seq. (West 2014)) specifically prohibits disclosure
       of the terms of its contracts. But the Trade Secrets Act provides only that “[a]ctual or
       threatened misappropriation [of trade secrets] may be enjoined.” 765 ILCS 1065/3(a) (West
       2014). The Trade Secrets Act does not specifically prohibit any disclosures. Rosemont has
       not sought an injunction under the Trade Secrets Act, but even if a court had imposed such an
       injunction, disclosure would violate the court’s injunction and not a State or federal law or
       rules or regulations implementing State or federal law. Thus, section 7(1)(a) does not exempt
       from disclosure the redacted portions of the contracts at issue.
¶ 30       Moreover, we agree with BGA that the General Assembly adopted section 7(1)(g) as its
       prohibition on disclosure of trade secrets under the FOIA. Rosemont cites no case or
       legislative history to support its claim that the legislature intended to add a second

                                                  -7-
       prohibition on the disclosure of trade secrets in section 7(1)(a).

¶ 31                                       Ordinance 2014-11-12
¶ 32        Finally, Rosemont contends that its Ordinance 2014-11-12 exempts the redacted portions
       of the contracts from disclosure. Rosemont, a home rule unit, may exercise any power
       pertaining to its government and affairs. Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174
       (1992). The state legislature may preempt a home rule unit’s authority over a particular issue,
       but to do so, the state “legislation must contain express language that the area covered by the
       legislation is to be exclusively state controlled; it is not enough that the legislature
       comprehensively regulates an area which otherwise would fall into home rule authority.”
       Crawford v. City of Chicago, 304 Ill. App. 3d 818, 826 (1999).
¶ 33        FOIA provides, “This Act shall be the exclusive State statute on freedom of information,
       except to the extent that other State statutes might create additional restrictions on disclosure
       of information or other laws in Illinois might create additional obligations for disclosure of
       information to the public.” 5 ILCS 140/1 (West 2014). We find that in this provision, the
       legislature expressly stated its intent that only state statutes may create additional restrictions
       on disclosure of information, and other laws in Illinois, including ordinances of home rule
       units, may create additional obligations for disclosure but cannot create exemptions from
       disclosure.
¶ 34        Rosemont claims that the FOIA does not sufficiently specify the intent to have
       restrictions on disclosure come exclusively under state control. Under Rosemont’s
       interpretation, “the public disclosure of information in the possession of a [home rule unit]
       would be largely at the unfettered discretion of that body. This would derogate the purpose of
       both the State and Federal Freedom of Information Acts and the case law that has construed
       them.” Cooper, 266 Ill. App. 3d at 1024. “A reliance upon self-determination by public
       officials and public employees as to what should and what should not be disclosed to the
       public would frustrate the purpose of the FOIA.” Hoffman v. Department of Corrections, 158
       Ill. App. 3d 473, 476 (1987). Interpreting the FOIA “in its entirety, keeping in mind the
       subject it addresses and the legislature’s apparent objective in enacting it” (Hall v. Henn, 208
       Ill. 2d 325, 330 (2003)), we find that the FOIA precludes Rosemont from creating additional
       restrictions on public access to information.

¶ 35                                        CONCLUSION
¶ 36       An adjudication that the FOIA requires Rosemont to disclose all the terms of one contract
       does not collaterally estop Rosemont from contesting disclosure of the terms of other
       contracts. The trade secrets exemption in section 7(1)(g) of FOIA does not apply to
       information or offers, such as standard rental rates, supplied by the public body to a private
       contractor. Because no state or federal law prohibits disclosure of the redacted portions of the
       contracts at issue, section 7(1)(a) does not exempt those portions from disclosure. FOIA
       requires disclosure of all the negotiated terms of the contracts at issue, including rent and
       incentives Rosemont gave private contracting parties. Home rule units have the power to
       expand the duty to disclose, but they lack authority to exempt from disclosure documents and
       information for which FOIA mandates disclosure. Accordingly, we affirm the circuit court’s
       judgment directing Rosemont to disclose specific rental and incentive terms of its contracts


                                                    -8-
       for use of Allstate Arena and the Convention Center.

¶ 37      Affirmed.




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