Kirkland & Ellis attorney Jeffery Lula never expected a seemingly straightforward pro bono case involving a Freedom of Information request about hair-braiding licensing to turn into the “fascinating case” he’s still working on three years and several hundred hours later.
The case for his client, the Institute for Justice, “quickly turned into something a lot more” and is a chance “to make good law,” Lula, who works in Kirkland’s Chicago office, told Bloomberg Law in a telephone interview.
The Illinois Supreme Court will decide whether a loophole in Illinois law that allows public bodies to retroactively shut down FOIA requests should remain, Lula said.
The loophole dissuades people from fighting for documents they’re entitled to under state FOI laws, Dana Berliner, the Institute’s senior vice president and litigation director, told Bloomberg Law.
The Institute for Justice is dedicated to limiting “the size and scope of government power,” it says on its website.
The case began as a FOI request by the Institute to aid in one of its research studies seeking to show that African hair braider licenses are over-regulated by some states, making it harder for hair braiders to work there.
In 2013 the institute sent a request to Illinois’s Department of Financial & Professional Regulation seeking all complaints concerning licensed cosmetologists and hair braiders for a specified period of time.
The request was denied, and the institute filed an appeal with the Illinois Attorney General’s office. That’s when—according to the institute’s brief with the Illinois Supreme Court—a “fortuitous coincidence” occurred.
The Illinois General Assembly passed a bill to prohibit the disclosure of information collected by the IDFPR during an investigation of a licensee, including any complaint against a licensee filed with the department and information collected to investigate any such complaint.
The bill went into effect after the institute filed a lawsuit against the department with an Illinois circuit court.
That court found for the institute and granted their request for an injunction ordering the department to disclose the records.
An Illinois appellate court reversed, however, finding that the law applied retroactively to the case.
The case is now bigger than the hair braiding report.
The appellate court’s ruling is “incredibly concerning” because it “opens the door” for government entities that don’t want to respond to information requests to successfully lobby the government to help them, Lula said.
The legislative history of the bill has language suggesting that the department lobbied for the amendment, he said.
The transcript of the Illinois Assembly’s debate the day the bill was passed describes the bill as “an initiative of the department” to “clean up some of the unintended consequences in the Licensure Act for the Cosmetology Act.”
This isn’t a good precedent to set, Berliner said.
The public has a right to information and policymakers need information to understand facts before making policy, she said.
“If state agencies can conceal information that helps people judge policies, you’ll have policies without an actual basis,” Berliner said.
As an example, she cited the institute’s study on licensing for hair braiders, which found that having a licensing requirement requiring hundreds of hours of classes deters people from starting their own businesses.
If every state concealed the requested information, it wouldn’t be possible to know that, Berliner said.
Illinois is a state with a “middle range of licensing requirements,” and that data would have been very helpful for the study, she said.
The case shows how important it is “to get the right outcome because of the implications,” Lula said.
Another consequence of the 2015 amendment is that it effectively invalidates the attorney’s fees provision in Illinois’s FOIA.
This provision requires a court to award “reasonable attorney’s fees and costs” to a FOIA requester that prevails in litigation.
If laws can be passed to retroactively make unavailable information a requester was granted, then the fees provision is meaningless, Lula said.
It will make attorneys “wary of representing any FOIA requester in litigation” because the lawsuit’s success and consequently an attorney’s compensation “depends on laws that have not been passed yet,” Lula told Bloomberg Law in an email.
Not an Outlier
The institute’s case has been consolidated with another that has overlapping issues and similar facts.
Christopher J. Perry is a professional engineer who sought information about a complaint that had been filed against his license.
He got a list of denials similar to the institute’s, Lula said, and commenced litigation to get the information.
While the suit was pending, the Illinois General Assembly changed the existing law to protect the information he was seeking, he said.
That case is Perry v. Dep’t of Fin. & Prof’l Regulation.
The department didn’t return a call for comments.
The case is Inst. for Justice v. Ill. Dep’t of Fin. & Prof’l Regulation.
Kyle L. Voils and Brendan E. Ryan, both of Kirkland’s Chicago office, also represent the Institute for Justice.
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