2014 IL App (2d) 130708

No. 2-13-0708

Opinion filed April 14, 2014

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

SAGE INFORMATION SERVICES and ) Appeal from the Circuit Court

ROGER W. HURLBERT, ) of Winnebago County.

)

Plaintiffs-Appellees, )

)

v. ) No. 12-MR-987

)

BRENDA M. SUHR, In Her Official Capacity )

as Winnebago County Chief Deputy )

Supervisor of Assessments and Department )

Freedom of Information Act Officer, )

) J. Edward Prochaska,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion.

Justices Jorgensen and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Brenda M. Suhr, Winnebago County chief deputy supervisor of assessments

and department Freedom of Information Act officer, appeals a judgment that (1) ordered her to 

provide to plaintiffs, Sage Information Services and Roger W. Hurlbert, electronic records that 

plaintiffs requested under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 

2012)) and (2) awarded plaintiffs attorney fees and costs. On appeal, defendant contends that the 

trial court erred in basing the permissible charges for the records on section 6 of the FOIA (5 

ILCS 140/6 (West 2012)) and not on section 9-20 of the Property Tax Code (35 ILCS 200/9-20 
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(West 2012)). Defendant recognizes that the trial court’s judgment was based on Sage 

Information Services v. Humm, 2012 IL App (5th) 110580, but she argues that Humm was 

decided wrongly. We affirm.

¶ 2 By a letter dated October 12, 2012, plaintiffs requested from defendant “a copy, on CD or 

similar electronic media, of the current real property assessment record file for the entire county, 

together with an electronic copy of the sales file.” Citing Humm, the request stated that, under 

section 6(a) of the FOIA (5 ILCS 140/6(a) (West 2012)), defendant could charge no more than 

the cost of the disc.

¶ 3 On November 5, 2012, defendant responded that, to obtain the records, plaintiffs would 

have to pay $6,290.45 (five cents per parcel). Defendant relied on section 9-20 of the Property 

Tax Code, which allows a supervisor of assessments to charge a “reasonable fee” (35 ILCS 

200/9-20 (West 2012)) for copying and providing records. She informed plaintiffs that section 

9-20, and not the FOIA, governed the request.

¶ 4 On December 12, 2012, plaintiffs filed their complaint to compel defendant to release the 

requested information in the requested form, at a charge of no more than the actual cost of 

production. The complaint also sought attorney fees and costs.

¶ 5 Plaintiffs moved for summary judgment (see 735 ILCS 5/2-1005(a) (West 2012)). On 

June 12, 2012, the trial court granted the motion and entered a judgment requiring defendant to 

produce the requested records in electronic format within 30 days and awarding plaintiffs 

attorney fees and costs. The court explained that it was bound by Humm, under which section 

6(a) of the FOIA limited defendant to charging no more than the cost of purchasing the recording 

medium. The court stayed the award of fees and costs, but not the order to produce the records, 

pending the resolution of an appeal. On July 10, 2012, defendant filed a notice of appeal and a 
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motion to reconsider the partial denial of the motion to stay. On August 8, 2012, the trial court 

granted the motion to reconsider and stayed the production order pending our resolution of the 

appeal.

¶ 6 Initially, this court dismissed the appeal, on the basis that a pending motion to reconsider 

made the notice of appeal premature. Defendant petitioned for a rehearing. We now vacate the 

dismissal, agreeing with defendant that, because the motion to reconsider addressed a matter that 

was collateral to the judgment, the notice of appeal was not premature. See General Motors 

Corp. v. Pappas, 242 Ill. 2d 163, 173-74 (2011). Further, the motion has now been resolved, so

that, in any event, there would be no bar to our jurisdiction. See In re Marriage of Knoerr, 377

Ill. App. 3d 1042, 1049-50 (2007). We turn to the merits of the appeal.

¶ 7 We review de novo the grant of summary judgment. Matsuda v. Cook County 

Employees’ & Officers’ Annuity & Benefit Fund, 178 Ill. 2d 360, 364 (1997). Issues of statutory 

construction, such as are raised here, are appropriate for resolution by summary judgment, as 

they raise questions of law subject to de novo review. Id. In construing statutes, our ultimate

goal is to effectuate the legislative intent, and we start with the statutory language itself. Id. at 

365.

¶ 8 Here, the parties disagree on which statute governs what defendant may charge plaintiffs 

for providing electronic records. Defendant invokes section 9-20 of the Property Tax Code:

“In all counties, all property record cards maintained by a township assessor, multitownship assessor, or chief county assessment officer shall be public records, and shall be 

available for public inspection during business hours, subject to reasonable rules and 

regulations of the custodian of the records. Upon request and payment of such 
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reasonable fee established by the custodian, a copy or printout shall be provided to any 

person.

Property record cards may be established and maintained on electronic equipment 

or microfiche, and that system may be the exclusive record of property information.” 

(Emphasis added.) 35 ILCS 200/9-20 (West 2012).

Defendant relies primarily on the language we have emphasized.

¶ 9 Plaintiffs counter that section 6(a) of the FOIA limits any charge to the cost of purchasing 

the recording medium. They reason that section 6(a) makes section 9-20 of the Property Tax 

Code inapplicable to electronic records. In pertinent part, that section reads:

“When a person requests a copy of a record maintained in an electronic format, the public 

body shall furnish it in the electronic format specified by the requester, if feasible. If it is 

not feasible to furnish the public records in the specified electronic format, then the 

public body shall furnish it in the format in which it is maintained by the public body, or 

in paper format at the option of the requester. A public body may charge the requester 

for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or 

other medium. A public body may not charge the requester for the costs of any search for 

and review of the records or other personnel costs associated with reproducing the 

records, except for commercial requests as provided in subsection (f) of this Section. 

Except to the extent that the General Assembly expressly provides, statutory fees 

applicable to copies of public records when furnished in a paper format shall not be 

applicable to those records when furnished in an electronic format.” (Emphases added.) 

5 ILCS 140/6(a) (West 2012).
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¶ 10 Plaintiffs also invoke Humm, which, as defendant concedes, is indistinguishable. In 

Humm, two judgments were on appeal, but only one concerns us here. The circuit court of 

Franklin County ruled that the defendant could charge the plaintiffs (the same plaintiffs as here) 

a fee, per section 9-20 of the Property Tax Code, of five cents per parcel for the entire county’s 

property assessment record file. Humm, 2012 IL App (5th) 110580, ¶ 2. The appellate court

reversed, holding that section 6(a) of the FOIA applied and that the defendant could charge only 

the cost of the electronic medium. Id. ¶ 15.

¶ 11 The Fifth District began by observing that the circuit court had incorrectly relied on two

opinions construing section 6(a) of the FOIA as it had read before 2010. See Sage Information 

Services v. Henderson, 397 Ill. App. 3d 1060 (2010); Sage Information Services v. King, 391 Ill. 

App. 3d 1023 (2009). The earlier version of section 6(a) read:

“Each public body may charge fees reasonably calculated to reimburse its actual cost for 

reproducing and certifying public records and for the use, by any person, of the 

equipment of the public body to copy records. Such fees shall exclude the costs of any 

search for and review of the record, and shall not exceed the actual cost of reproduction 

and certification, unless otherwise provided by State statute. Such fees shall be imposed 

according to a standard scale of fees, established and made public by the body imposing 

them.” (Emphases added.) 5 ILCS 140/6(a) (West 2006).

¶ 12 The Humm court noted that, in King and Henderson (also involving facts similar to those 

now before us), the appellate courts correctly held that section 9-20 of the Property Tax Code 

applied and not section 6(a) of the FOIA as it then read. The court explained that the two 

provisions related to the same subject matter; thus, section 9-20 applied because it was the more 
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specific of the two. Humm, 2012 IL App (5th) 110580, ¶ 17; see Henderson, 397 Ill. App. 3d at 

1064 (following King); King, 391 Ill. App. 3d at 1031-32.

¶ 13 However, as Humm noted, an amendment to section 6(a) had made Henderson and King

obsolete. See Pub. Act 96-542, § 10 (eff. Jan. 1, 2010). Previously, section 6(a) limited the 

permissible charge, regardless of whether paper records or electronic records were requested, to 

the actual cost of production “unless otherwise provided by State statute” (5 ILCS 140/6(a) 

(West 2006)). Humm, 2012 IL App (5th) 110580, ¶ 18. Now, section 6(a) distinguishes between 

paper records and electronic records. Id. Although section 6(b) of the FOIA still allows

agencies to rely on another statute, such as the Property Tax Code, to charge a fee in excess of 

the cost for the production of paper records (see 5 ILCS 140/6(b) (West 2012)), section 6(a) now 

governs electronic reproductions. And in doing so, it has narrowed the exception to the costonly rule.

¶ 14 Before the amendment, an agency could escape the rule if “otherwise provided by State 

statute.” 5 ILCS 140/6(a) (West 2006). Now, “[e]xcept to the extent that the General Assembly 

expressly provides, statutory fees applicable to copies of public records when furnished in a 

paper format shall not be applicable to those records when furnished in an electronic format.” 

(Emphasis added.) 5 ILCS 140/6(a) (West 2012). Thus, “[w]ith respect to electronic records, 

the language allowing cross-referencing to other statutes, such as the Property Tax Code, no 

longer exists.” Humm, 2012 IL App (5th) 110580, ¶ 18. Before the amendment, it was 

sufficient that the Property Tax Code provided generally that an assessor’s office may levy a 

reasonable charge for producing records. After the amendment, to enable assessors’ offices to 

escape section 6(a)’s cost-only rule for electronic records, there must be a statute that expressly 

provides that the assessor may charge fees “applicable to copies of public records when 
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furnished in a paper format.” (Emphasis added.) 5 ILCS 140/6(a) (West 2012). The Property 

Tax Code contains no express authorization, and, thus, the defendant in Humm was limited to 

charging cost-only for the requested electronic records. Humm, 2012 IL App (5th) 110580, ¶ 18.

¶ 15 We agree with Humm. The amendment to section 6(a) is unambiguous and inescapably 

implies that defendant’s office may not avail itself of the present narrow exception to the costonly rule for electronic records. When a statute is unambiguous, we must apply it as written. 

MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009).

¶ 16 Defendant makes two attacks on Humm. First, she contends that section 9-20 of the 

Property Tax Code fits within the exception to the cost-only rule for electronic records. 

According to defendant, the first paragraph of section 9-20 allows her office to charge a 

“reasonable fee” for a “copy or printout,” and the second paragraph allows property record cards 

to be established and maintained exclusively on electronic equipment or microfiche. 35 ILCS 

200/9-20 (West 2012). Defendant concludes that, by section 9-20, the General Assembly has 

expressly allowed her office to charge more than cost for electronic records. Defendant notes 

that section 9-20 does not limit the “reasonable fee” to paper records. 35 ILCS 200/9-20 (West 

2012).

¶ 17 We cannot accept defendant’s reasoning, which is a non sequitur. It does not follow that, 

because (a) section 9-20 expressly allows her office to keep some or all of its records in 

electronic form and (b) section 9-20 does not expressly distinguish between providing requesters 

with paper records and providing requesters with electronic records, therefore (c) section 9-20 

“expressly provides” that the fees for providing paper records apply to providing electronic 

records. 5 ILCS 140/6(a) (West 2012). Section 9-20 simply does not contain this express 

provision. The first paragraph authorizes, but does not require, assessors to keep records in 
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electronic form exclusively. It does not expressly authorize them to charge more than cost for 

the electronic reproduction of these records. The second paragraph authorizes assessors to 

charge reasonable fees for providing records. It does not expressly authorize them to charge the 

same fees for electronic records as they may charge for paper records. Therefore, under the plain 

meaning of section 6(a) of the FOIA, section 9-20 of the Property Tax Code does not allow

defendant to escape the cost-only rule for electronic records.

¶ 18 Defendant’s second argument is that Humm slights the rule of construction that, when 

two statutes relate to the same subject matter, the more specific statute must prevail over the 

more general one. Defendant essentially invokes King and Henderson, which, as Humm rightly

held, are no longer good law in view of the amendment to section 6(a) of the FOIA. The canon

that defendant cites does not prevail over the fundamental rule that the plain meaning of a statute 

is the best guide to the legislature’s intent and may not be disregarded.

¶ 19 Moreover, defendant’s argument presupposes a conflict between section 6(a) of the FOIA 

and section 9-20 of the Property Tax Code. However, the two statutes fit together. Section 6(a) 

creates a rule with a narrow exception; section 9-20 fails to come within the exception. There is 

no genuine conflict that would require us to “choose” between the statutes.

¶ 20 In sum, defendant may not charge more than the cost of purchasing the recording 

medium for the requested electronic records. Therefore, we affirm the judgment of the circuit 

court of Winnebago County.

¶ 21 Affirmed.