2014 IL App (2d) 130708 No. 2

- 13

- 0708 O pinion filed April 1 4 , 2014

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ SAGE INFORMATION SERVICES and ) Appeal from the Circuit Court ROGER W. HURLBERT , ) of Winnebago County. ) Plaintiff s - Appellee s , ) ) v. ) No. 12

- MR

- 9 87 ) BREN DA M. S UHR , 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

. O PINION ¶ 1 Defendant, Brenda M. Suhr, Winnebago County chief deputy supervisor of assessments and department Freedom of Information Act o fficer , 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 sec tion 6 of the FOIA (5
ILCS 140/ 6 (West 2012)) and not on section 9

- 20 o f the Property Tax Code ( 35 ILCS 200/9

- 202014 IL App (2d) 130708

- 2

- (West 2012) ). Defendant recognizes that the trial court’s judgment was based on Sage Information Services v. Humm , 201 2 IL App (5th) 110580 , b ut she argues that Humm was decided wrongly. We affirm

. ¶ 2 By a letter dated October 12, 2012, plaintiffs request ed 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 m ore than the cost of the disc. ¶ 3 On November 5, 2012, d efendant 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 d efendant to release t he requested informat ion in the r equested form, at a c harge of no more than the actual cost of production. The complaint also sought attorney fees and costs. ¶ 5 P laintiffs mo ved for summary judgment (see 735 ILCS 5/2

- 1005(a) (West 2012)). On June 12, 2012, the trial court granted the motio n 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 a2014 IL App (2d) 130708

- 3

- 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, t his court dismissed t he 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 addres sed a matter that was collateral to the judgment, the notice of appeal was not premature. See General Motors Corp. v. Pappas , 242 Ill. 2d 16 3 , 173

- 74 (2011) . Further, the motion has now been resolved , s o that, in any event , there would be no bar to our j urisdiction. See In re Marriage of Knoerr , 37 7 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 statu t es, our ultimate goal is to e ffectuate 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, multi

township 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

r egulations of the custodian of the records. Upon request and payment of such2014 IL App (2d) 130708

- 4

- reasonable fee established by the custodian, a copy or printout shall be provided to any
person. Property record cards may be es tablished 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 Plaintiff s counter that section 6 (a) o f 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, t hat section reads:

“ W hen 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 electro nic 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 cost s of any search for and review of the records or other personnel costs associated with reproducing the records, except for commercial requests as provid ed 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 e lectronic format. ” (Emphases added.) 5 ILCS 140/6(a) (West 2012).2014 IL App (2d) 130708

- 5

- ¶ 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 Count y 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 F ifth D istrict began by observing that the circuit court had incorrectly relied on two
op inions 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 cost s of an y 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.” (Emphas e s 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 co urts correctly held that section 9

- 20 of the Property Tax Code
ap plied and not section 6(a) of the FOIA as it then read . The court explained that the two provisions relate d to the same subject matter; thus, section 9

- 20 applied because it was the more2014 IL App (2d) 130708

- 6

- specific of the two. Humm , 2012 IL App (5 th ) 110580, ¶ 17; see Hend erson , 397 Ill. App. 3d at 1064 (following King ); King , 391 Ill. App. 3d at 1031

- 32. ¶ 13 However, as Humm noted , a n amendment to section 6(a) had made Henderson and King obsolete. See Pub. Act 96

- 542, § 1 0 ( 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) distinguishe s between paper records and electronic records. Id. Although section 6(b) of the FOIA still allow s agencies to rely on another statute, such as the Property Tax Code, to charge a fee in excess of th e cost for the pro duction of paper records (see 5 ILCS 140/6(b) (West 201 2 ) ) , section 6(a) now
govern s electronic reproductions. And in doing so, it has narrowed the ex ception to the cost

only rule. ¶ 14 B efore 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, t o enable assessors’ offices to escape section 6(a)’s cost

- only rule for electronic records, there must be a statute that expressly provi des that the assessor may charge fees “ applicable to copies of public records when2014 IL App (2d) 130708

- 7

- furnished in a paper format

. ” (Emphasis added.) 5 ILCS 140/6(a) ( West 20 12 ). The Property Tax Code contain s 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 presen t narrow exception to the cost

only rule f or 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 cont ends 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

- 2 0 allows her office to charge a “reasonable fee” for a “copy or printout,” an d 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 h er 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 elect ronic records, th erefore (c) section 9

- 20 “expressly provides” that the fees for provi ding paper records apply to provi ding 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 in2014 IL App (2d) 130708

- 8

- 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 char ge reasonable fee s for provi ding 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 Proper ty 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 pr evail 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 fundamen tal rule that the plain meaning of a statute is the best guide to the legislature’s inte nt 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. Howeve r, the two statutes fit together . Section 6(a) creates a rule with a narrow exception; section 9

- 20 fails to come within th e 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 af firm the judgment of the circuit court of Winnebago County. ¶ 21 Affirmed.