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Tuesday, April 11, 2017

Court Rules that 7(1)(a) FOIA Exemption Does Not Apply to Municipal Ordinances

A recent Illinois Appellate Court case found that municipal ordinances are not considered “state law” under Section 7(1)(a) of FOIA. 

In City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870 (March 31, 2017), the City of Chicago sent a subpoena to Janssen to obtain documents relating to a false claims investigation regarding Janssen’s marking of opioids.  Janssen did not comply with the subpoena, and the City filed a lawsuit. The parties entered into a protective order, which provided that the information produced by Janssen could only be used in accordance with Section 1-22-050 of the False Claims Chapter of the Chicago Municipal Code (“ordinance”), or by court order.  The protective order further provided that information produced by Janssen could be confidential and that Janssen considered it to be exempt from disclosure under FOIA. 

The City then withdrew its Petition to Enforce the subpoena and Janssen produced over 100,000 pages of documents to the City, many of which were marked “confidential.” The City filed  another suit against Janssen alleging violations of the ordinance. USA Today then issued a FOIA to the City to obtain copies of documents in support of the claims against Janssen. The City notified Janssen of USA Today’s FOIA request and stated that it believed three documents were responsive. 

Janssen then filed a motion to enforce the protective order, arguing: 1) that the order required the City to deny third party request brought under FOIA, 2) that the documents were exempt from disclosure under Section 7(1)(a) of FOIA as the ordinance qualified as “state law,” which was prohibited from disclosure, and 3) that the documents were exempt under 7(1)(g) of FOIA as production of confidential information would make it more difficult for a public body to obtain similar information in the future, creating a “chilling effect.”  The circuit court denied Janssen’s Motion, and Janssen appealed to the Illinois appellate court.

On appeal, the court affirmed.  The court first evaluated Section 7(1)(a) of FOIA, which exempts information specifically prohibited from disclosure by federal or state law.  Janssen argued that the ordinance qualified as state law, and was expressly prohibited from disclosure under 7(1)(a).  Janssen argued that as a home rule unit, the City has the same power as the state to legislate FOIA exemptions. The court found that the phrase “state law” must be given its plain and ordinary meaning, which excludes municipal ordinances. Since “state law” does not include municipal ordinances, the court held that the documents were not exempt under 7(1)(a).

The court next analyzed Janssen’s 7(1)(g) argument, that the disclosure of its documents would have a “chilling effect” on other organizations complying with a subpoena issued by the City.  The court similarly rejected this argument, finding that Janssen failed to assert why the disclosure of information would cause it competitive harm.  

Post Authored by Erin Baker, Ancel Glink


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