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 1-15-0870
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
1-15-0870
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
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
¶ 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. 5
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
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
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
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
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
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.
¶ 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.
¶ 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
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
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
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
(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.