NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except 

in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 210527-U 

Order filed December 2, 2022

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022 

JASON E. COHEE, Director of 

Intelligence-R-Us, 

Plaintiff-Appellant, 

 v. 

PEORIA COUNTY STATE’S 

ATTORNEY’S OFFICE, 

Defendant-Appellee.

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Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Peoria County, Illinois.

Appeal No. 3-21-0527 

Circuit No. 21-MR-711 

The Honorable

Frank W. Ierulli, 

Judge, presiding.

_____________________________________________________________________________ 

JUSTICE DAUGHERITY delivered the judgment of the court.

 Presiding Justice O’Brien and Justice Holdridge concurred in the judgment.

_____________________________________________________________________________ 

ORDER

¶ 1 Held: In an appeal in a Freedom of Information Act (FOIA) case in which the publicbody defendant denied the requester plaintiff’s FOIA requests, the appellate court 

found that the trial court did not err in: (1) denying the plaintiff’s motion to 

continue; and (2) granting the defendant’s motion to dismiss the plaintiff’s 

complaint for judicial review. The appellate court, therefore, affirmed the trial 

court’s judgment. 

¶ 2 After his Freedom of Information Act (FOIA or Act) (5 ILCS 140/1 et seq. (West 2020)) 

requests were denied, plaintiff, Jason E. Cohee, filed a complaint for judicial review of the denial 
2 

in the trial court. Defendant, the Peoria County State’s Attorney’s Office, filed a motion to 

dismiss the complaint, alleging that the information that plaintiff sought was exempt from 

disclosure. Plaintiff opposed the motion to dismiss and also filed a motion to continue the 

hearing that had been scheduled on the motion to dismiss. The trial court denied plaintiff’s 

motion to continue, went forward with the hearing on defendant’s motion to dismiss, granted 

defendant’s motion, and dismissed plaintiff’s complaint for judicial review. Plaintiff appeals. 

We affirm the trial court’s judgment. 

¶ 3 I. BACKGROUND

¶ 4 In May 2021, plaintiff filed various FOIA requests with defendant seeking the disclosure 

of, among other things, the personnel files of the State’s Attorney and three of defendant’s 

employees. Plaintiff was using the requests to try to gather information about why defendant had 

decided not to charge plaintiff’s mother with the alleged financial exploitation of plaintiff. The 

following month, defendant sent plaintiff a letter denying the requests and claiming that the 

information that plaintiff sought to obtain was exempt from disclosure under section 7(1)(c) of 

the FOIA (5 ILCS 140/7(1)(c) (West 2020)) and well-established case law because plaintiff’s 

requests constituted an unwarranted invasion of personal privacy.1

¶ 5 In August 2021, plaintiff filed in the trial court the instant complaint for judicial review 

of defendant’s denial of plaintiff’s FOIA requests. As supporting documents, plaintiff attached 

to his complaint a copy of his FOIA requests and of defendant’s letter denying those requests. 

Plaintiff asked in the complaint that the requested documents be submitted to the trial court for 

1

 Only plaintiff’s FOIA requests that were denied outright are at issue in this appeal. Some of 

plaintiff’s FOIA requests were granted, at least in part, and some pertained to records that did not exist. 

In addition, some of plaintiff’s requests were deemed to be unduly burdensome, and plaintiff was asked to 

narrow down those requests.
3 

an in camera inspection. The following month, defendant filed a section 2-619 motion to 

dismiss the complaint (735 ILCS 5/2-619(a)(9) (West 2020)), claiming that the information that 

plaintiff sought to obtain was exempt from disclosure under section 7(1)(c) of the FOIA because 

disclosure would constitute an unwarranted invasion of personal privacy. Defendant noted in its 

motion that plaintiff had previously been charged with Threatening a Public Official in Peoria 

County where one of the victims in the case was the current State’s Attorney (Jodi Hoos) and 

had been found not guilty by reason of insanity. Plaintiff filed a response and opposed the 

motion to dismiss, and defendant filed a reply. As part of their pleadings, the parties fully 

briefed the issues that were before the trial court.

¶ 6 In November 2021, the trial court held a hearing on defendant’s motion to dismiss. The 

hearing had been scheduled since the end of September 2021. A few days before the hearing, 

plaintiff, who was self-represented in the trial court proceedings, filed a motion to continue the 

hearing so that he could craft a motion for declaratory judgment for violation of his equal 

protection rights and so that he could schedule an evidentiary hearing on his declaratoryjudgment motion. At the outset of the November 2021 hearing, the trial court pointed out to 

plaintiff that a declaratory-judgement action was a different action that belonged in a different 

courtroom, and plaintiff agreed. The trial court, therefore, denied plaintiff’s motion to continue, 

and the parties made their oral arguments on defendant’s motion to dismiss.

¶ 7 During oral arguments, the trial court asked plaintiff what he expected to find in the 

personnel files that pertained to defendant’s charging decision as to plaintiff’s mother. Plaintiff 

responded that he would not know until he saw what was in the files. As the trial court 

questioned plaintiff further about the reason why plaintiff wanted the documents, the following 

conversation, in pertinent part, ensued: 
4 

“THE COURT: --my guess is this: You’re punishing the State’s Attorney’s 

Office. They didn’t do something you want so how can you stick your thumb in 

their eye? You’re going to do it by requesting personnel records.

[PLAINTIFF]: You’re right.

THE COURT: ‘Cause that’s the only reason I can think of.

[PLAINTIFF]: You’re right. I’m not going to say you’re wrong, your 

Honor.” 

¶ 8 After the oral arguments had concluded, the trial court discussed its analysis of the issue 

and made its ruling. The trial court applied the four-part balancing test set forth in Lieber v. 

Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408-09 (1997), and found that

three of the four factors weighed strongly against disclosure. More specifically, the trial court 

concluded that plaintiff wanted the requested documents to try to punish defendant for denying 

plaintiff’s request (presumably, plaintiff’s request to have defendant charge plaintiff’s mother 

with financial exploitation of plaintiff), that the public had no interest in the disclosure, that the 

degree of invasion of personal privacy was high, and that plaintiff had no other means to obtain 

the documents. Based upon its weighing of the Lieber factors, the trial court concluded that 

plaintiff’s FOIA requests constituted an “unreasonable invasion of privacy” and granted 

defendant’s motion to dismiss plaintiff’s complaint for judicial review. Plaintiff appealed to 

challenge the trial court’s denial of plaintiff’s motion to continue and the trial court’s grant of 

defendant’s motion to dismiss.

2,3

2 For the convenience of the reader and to match the order in which the trial court made its 

rulings, we have changed the order of the issues presented by plaintiff on appeal.

3 Plaintiff initially raised as a third issue in this appeal whether this court should grant “Plaintiff’s 

request for an Internal Motion for Judgment on the Pleadings and Petition for Certiorari to the United 
5 

¶ 9 II. ANALYSIS

¶ 10 A. Denial of Plaintiff’s Motion to Continue

¶ 11 As his first point of contention on appeal, plaintiff argues that the trial court erred in 

denying his motion to continue. As best as we can discern, plaintiff asserts that the motion to 

continue should have been granted because: (1) defendant did not object to the motion; and (2) 

contrary to the trial court’s ruling, the motion did not pertain to a separate action but, rather, was 

merely an attempt by plaintiff to go directly to plaintiff’s underlying concern as to whether 

defendant could properly refuse to charge plaintiff’s mother with financial exploitation.4

 

Although not quite clear from plaintiff’s argument, we will presume that plaintiff is asking this 

court to reverse the trial court’s ruling on plaintiff’s motion to continue and on defendant’s 

motion to dismiss and to remand this case for further proceedings.

¶ 12 Defendant argues that the trial court’s denial of plaintiff’s motion to continue was proper 

and should be upheld. In making that argument, defendant notes that: the date of the hearing had 

been set for more than a month before plaintiff had filed his motion to continue; plaintiff was not 

required to present witnesses at the hearing since the hearing was not an evidentiary one; the 

parties had fully briefed the motion to dismiss; and plaintiff was seeking additional time to file a 

declaratory judgment action, not to prepare for the hearing on the motion to dismiss. Thus, 

States Supreme Court.” Plaintiff, however, did not raise that issue in the trial court or address that issue 

further in his opening brief on appeal, other than merely setting forth the issue in his list of issues 

presented. After defendant asserted in its response brief that the issue had been forfeited and that this 

court lacked jurisdiction to rule upon the issue, plaintiff stated in his reply brief that he “waive[d] any and 

all discussion” of the issue as defendant had suggested. We, therefore, deem the issue to be withdrawn by 

plaintiff and will not discuss it further in this appeal.

4 In his reply brief, plaintiff states that he “waives and concedes” that this issue is “moot 

according to law” because he failed to file an affidavit in support of his motion to continue. Defendant, 

however, has not raised that argument in support of the trial court’s denial of plaintiff’s motion to 

continue. We, therefore, take no position on that aspect of this issue.
6 

defendant contends that considering plaintiff’s reasons for requesting additional time and the 

procedural stance of the case, the trial court did not err in denying plaintiff’s motion to continue 

and in going forward with the hearing on defendant’s motion to dismiss. Defendant asks, 

therefore, that we affirm the trial court’s denial of plaintiff’s motion to continue in this case. 

¶ 13 Section 2-1007 of the Code of Civil Procedure governs requests for continuances in civil 

cases. See 735 ILCS 5/2-1007 (West 2020); In re M.R., 305 Ill. App. 3d 1083, 1086 (1999). 

The statute provides that a request for a continuance may be granted on good cause shown, in the 

discretion of the trial court, and on just terms. 735 ILCS 5/2-1007 (West 2020); M.R., 305 Ill. 

App. 3d at 1086. It is well established, however, that a party has no absolute right to a 

continuance. M.R., 305 Ill. App. 3d at 1086. The trial court, in its broad discretion, must decide 

if the motion to continue should be granted or denied. See Merchants Bank v. Roberts, 292 Ill. 

App. 3d 925, 927 (1997). A decisive factor in making that determination is whether the party 

seeking the continuance has acted diligently in proceeding with the case. See id. A trial court’s 

ruling on a motion to continue will not be reversed on appeal, absent an abuse of discretion. 

M.R., 305 Ill. App. 3d at 1086. The threshold for finding an abuse of discretion is high one and 

will not be overcome unless it can be said that the trial court’s ruling was arbitrary, fanciful, or 

unreasonable, or that no reasonable person would have taken the view adopted by the trial court. 

See Blum v. Koster, 235 Ill. 2d 21, 36 (2009); In re Leona W., 228 Ill. 2d 439, 460 (2008). In 

addition, the denial of a motion to continue will not be grounds for reversal on appeal unless the 

complaining party shows that he or she has been prejudiced by the denial. M.R., 305 Ill. App. 3d 

at 1086.

¶ 14 In the present case, after reviewing the record, we find that the trial court did not err in 

denying plaintiff’s motion to continue for three reasons. First, the motion to continue was not 
7 

promptly filed. Although the hearing date on defendant’s motion to dismiss had been set more 

than a month earlier, plaintiff waited until just shortly before the hearing date to file his motion 

to continue and did not provide the trial court with any reason for the delay. Second, despite 

plaintiff’s assertion to the contrary, the motion to continue did not pertain to the matter that was 

already pending before the trial court—defendant’s motion to dismiss plaintiff’s complaint for 

judicial review of the denial of his FOIA requests—but, rather, pertained to plaintiff’s separate 

underlying concern as to whether defendant could refuse to charge plaintiff’s mother with 

financial exploitation. Third and finally, the procedural stance of this case did not warrant 

granting plaintiff’s motion to continue. At the time that the motion to continue was filed and 

when plaintiff later appeared before the trial court, the case had already been scheduled for a 

hearing on defendant’s motion to dismiss. The parties had fully briefed that matter, and the trial 

court had set aside time for the hearing to take place. Plaintiff was not seeking additional time to 

prepare for the hearing, which was not an evidentiary hearing, but, rather, was seeking to pursue 

a separate matter as indicated above. Thus, based upon the facts of this case, we find that the 

trial court did not commit an abuse of discretion in denying plaintiff’s motion to continue. See

M.R., 305 Ill. App. 3d at 1086; Blum, 235 Ill. 2d at 36; Leona W., 228 Ill. 2d at 460. 

¶ 15 B. Grant of Defendant’s Motion to Dismiss 

¶ 16 As his second point of contention on appeal, plaintiff argues, although somewhat

implicitly, that the trial court erred in granting defendant’s motion to dismiss plaintiff’s 

complaint. Plaintiff asserts that the four-part Lieber balancing test was eliminated when the 

legislature made “sweeping changes” to the FOIA in January 2010 and should not have been 

used in this case. In making that assertion, however, plaintiff acknowledges that the Illinois 

Supreme Court recognized the continued validity of the Lieber case in the supreme court’s recent 
8 

decision in Mancini Law Group, P.C. v. Schaumburg Police Department, 2021 IL 126675, ¶ 36. 

Although not quite clear from plaintiff’s brief on appeal, as best as we can discern, plaintiff is 

asking that we reverse the trial court’s grant of defendant’s motion to dismiss and that we 

remand this case for further proceedings.5

¶ 17 Defendant argues that the trial court’s ruling was proper and should be upheld. In 

support of that argument, defendant makes three contentions. First, defendant asserts that even 

though the FOIA was amended in 2010, the four-part Lieber balancing test was, and continues to 

be, the appropriate test to be applied in analyzing the type of exemption claimed by defendant in 

this case (that the requested documents were exempt from disclosure under the FOIA because 

disclosure would constitute an unwarranted invasion of personal privacy). In keeping with that 

assertion, defendant maintains that the Lieber decision has not been overturned, that the four-part 

balancing test is consistent with the language of the FOIA, and that the appellate courts have 

continued to apply the Lieber test after the FOIA was amended. Second, defendant asserts that 

plaintiff cannot argue on appeal that the Lieber test does not apply because plaintiff cited the 

Lieber test in the trial court proceedings as the controlling law. See Stephens v. Taylor, 207 Ill. 

2d 216, 222 (2003) (recognizing the well-settled legal principle under Illinois law that a party 

cannot claim error on appeal when it induced the trial court’s mistake). Third and finally, 

defendant asserts that even if plaintiff has properly challenged the dismissal in this appeal

(defendant does not believe that plaintiff has done so because, according to defendant, plaintiff’s 

argument on appeal does not specifically challenge the dismissal), this court should still uphold 

5 In the conclusion paragraph of his initial brief on appeal, plaintiff indicates, although rather 

ambiguously, that he is seeking a remand in this case. In his reply brief, plaintiff asks that we remand this 

case with an order granting his prayer for relief in his complaint for judicial review. Our task on appeal 

as to this issue, however, is only to determine whether the trial court erred in granting defendant’s motion 

to dismiss.
9 

the dismissal. For all of the reasons set forth, therefore, defendant asks that we affirm the trial 

court’s judgment granting defendant’s motion to dismiss plaintiff’s complaint for judicial review.

¶ 18 In reply to defendant’s argument regarding invited error, plaintiff asserts that although he

mentioned Lieber in the brief attached to his original complaint in the trial court, he also 

questioned in the trial court whether the Lieber test was still valid. Thus, plaintiff contends that 

he did not invite or interject error into this case. For that reason and all of the other reasons 

stated, plaintiff again asks, albeit somewhat implicitly, that we reverse the trial court’s grant of 

defendant’s motion to dismiss plaintiff’s complaint for judicial review and that we remand this 

case to the trial court “with an Order granting [the] prayer for relief in [plaintiff’s complaint].”

¶ 19 Section 2-619 of the Code of Civil Procedure allows a litigant to obtain an involuntary 

dismissal of an action or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 

(West 2020); Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). The statute’s 

purpose is to provide litigants with a method for disposing of issues of law and easily proven 

issues of fact early in a case, often before discovery has been conducted. See Van Meter, 207 Ill. 

2d at 367; Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 

(2004). In a section 2-619 proceeding, the moving party admits the legal sufficiency of the 

complaint but asserts an affirmative defense or other matter to defeat the nonmoving party’s 

claim. Van Meter, 207 Ill. 2d at 367. Section 2-619 lists several different grounds for which an 

involuntary dismissal may be granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2020). 

Under subsection (a)(9), the subsection that applies in this case, a litigant may obtain an 

involuntary dismissal of a claim asserted against him if the claim is barred by other affirmative 

matter, which avoids the legal effect of or defeats the claim. Id. § 2-619(a)(9). An “affirmative 

matter” is something in the nature of a defense that negates the cause of action completely. Van 
10 

Meter, 207 Ill. 2d at 367. In ruling upon a section 2-619 motion to dismiss, the court must 

construe all of the pleadings and supporting documents in the light most favorable to the 

nonmoving party. Id. at 367-68. On appeal, a dismissal pursuant to section 2-619 is reviewed de 

novo. Id. at 368. The denial of a request for disclosure under the FOIA is also a matter that is 

subject to a de novo standard of review on appeal. Hosey v. City of Joliet, 2019 IL App (3d) 

180118, ¶ 9. When de novo review applies, the appellate court performs the same analysis that 

the trial court would perform. Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, 

¶ 43.

¶ 20 The overriding purpose of the Illinois FOIA is to open governmental records to the light 

of public scrutiny. See 5 ILCS 140/1 (West 2020); Bowie v. Evanston Community Consolidated 

School District No. 65, 128 Ill. 2d 373, 378 (1989). In keeping with that purpose, under the 

FOIA, public records are presumed to be open and accessible—to be open to the public for 

inspection and copying. See 5 ILCS 140/1.2 (West 2020); McGee v. Kelley, 2017 IL App (3d) 

160324, ¶ 12. “Such access is necessary to enable the people to fulfill their duties of discussing 

public issues fully and freely, making informed political judgments and monitoring government 

to ensure that it is being conducted in the public interest.” 5 ILCS 140/1 (West 2020). The 

provisions of the FOIA are to be construed broadly so as to achieve the Act’s goal of providing a 

free flow of information between the government and the people. See Perry v. Department of 

Financial & Professional Regulation, 2018 IL 122349, ¶ 34; Bowie, 128 Ill. 2d at 378.

¶ 21 When a public body receives a proper FOIA request, it must comply with that request 

unless one of the statutory exemptions applies. See 5 ILCS 140/3(a) (West 2020); Lieber, 176 

Ill. 2d at 407-08; McGee, 2017 IL App (3d) 160324, ¶ 13. The exemptions to the FOIA 

disclosure requirement are set forth in section 7 of the Act and are to be read narrowly so as not 
11 

to defeat the FOIA’s intended purpose. See 5 ILCS 140/7 (West 2020); Lieber, 176 Ill. 2d at 

407-08; McGee, 2017 IL App (3d) 160324, ¶ 12. If a public body denies a request for disclosure 

based upon one of the exemptions listed in section 7, it must give written notice of the denial to 

the requesting party and specify the particular exemption claimed. 5 ILCS 140/9(b) (West 

2020); Lieber, 176 Ill. 2d at 408; McGee, 2017 IL App (3d) 160324, ¶ 13.

¶ 22 The requesting party may then file a complaint for injunctive and/or declaratory relief in 

the trial court to challenge the denial of the request for disclosure. 5 ILCS 140/11(a) (West 

2020); McGee, 2017 IL App (3d) 160324, ¶ 13. If such an action is filed, the public body bears 

the burden in the trial court to prove by clear and convincing evidence that the requested records

fall within the exemption claimed. See 5 ILCS 140/1.2, 11(f) (West 2020); Lieber, 176 Ill. 2d at 

408; McGee, 2017 IL App (3d) 160324, ¶ 14. The trial court will review the FOIA request de 

novo and shall conduct such an in camera examination of the requested documents as the trial 

court finds appropriate to determine whether any portion may be withheld under the claimed 

exemption. See 5 ILCS 140/11(f) (West 2020); McGee, 2017 IL App (3d) 160324, ¶ 14.

¶ 23 In this particular case, the defendant claimed that the four personnel files were exempt 

under section 7(1)(c) of the FOIA. Section 7(1)(c) provides, in pertinent part, that the following 

information is exempt from disclosure:

“Personal information contained within public records, the disclosure of which 

would constitute a clearly unwarranted invasion of personal privacy, unless the 

disclosure is consented to in writing by the individual subjects of the information. 

‘Unwarranted invasion of personal privacy’ means the disclosure of information 

that is highly personal or objectionable to a reasonable person and in which the 

subject’s right to privacy outweighs any legitimate public interest in obtaining the 
12 

information. The disclosure of information that bears on the public duties of 

public employees and officials shall not be considered an invasion of personal 

privacy.” 5 ILCS 140/7(1)(c) (West 2020).

To determine whether the disclosure of requested documents would constitute an unwarranted 

invasion of personal privacy under section 7(1)(c) of the FOIA, courts apply the four-part Lieber

balancing test. See Lieber, 176 Ill. 2d at 408-09; McGee, 2017 IL App (3d) 160324, ¶ 17. In 

conducting that balancing test, the courts consider the following four factors: (1) the plaintiff’s 

interest in disclosure; (2) the public interest in disclosure; (3) the degree of invasion of personal 

privacy; and (4) the availability of alternative means of obtaining the requested information. 

McGee, 2017 IL App (3d) 160324, ¶ 17.

¶ 24 In the present case, after reviewing the record, we find that the trial court properly 

granted defendant’s section 2-619 motion to dismiss. See 735 ILCS 5/2-619 (West 2020); Van 

Meter, 207 Ill. 2d at 367. As the trial court correctly noted, three of the four Lieber factors 

weigh in favor of non-disclosure. First, plaintiff’s interest in disclosure was low since plaintiff

was only seeking the requested documents to try to punish defendant for refusing to charge 

plaintiff’s mother with financial exploitation. Second, the public had no interest in the disclosure 

of the personnel files at issue. And, third, the degree of invasion of personal privacy was high as 

the personnel files were likely to contain highly personal and confidential information, such as 

home addresses, phone numbers, and insurance and other benefit information. The only Lieber

factor that weighed in favor of disclosure was the fourth factor—that plaintiff had no other 

means of obtaining the requested information. Thus, when the four Lieber factors are balanced 

in this case, they weigh strongly against disclosure of the requested information. See Lieber, 176 

Ill. 2d at 408-09; McGee, 2017 IL App (3d) 160324, ¶ 17. We must conclude, therefore, that 
13 

disclosure of the requested documents would constitute an unwarranted invasion of personal 

privacy and was exempt under the FOIA. See 5 ILCS 140/7(1)(c) (West 2020). Accordingly, 

we find that the trial court properly granted defendant’s motion to dismiss plaintiff’s complaint.

¶ 25 In reaching that conclusion, we reject plaintiff’s argument—that the Lieber balancing test 

was eliminated when the FOIA was amended in 2010. As plaintiff himself acknowledges, our 

supreme court has already rejected that same argument in a slightly different context. See

Mancini Law Group, P.C., 2021 IL 126675, ¶ 36 (rejecting the argument that the 2010 

amendments to the FOIA overturned the waiver rule set forth in the Lieber case). In addition, 

the appellate court, in ruling upon the application of the unwarranted invasion of personal 

privacy exemption, has continued to apply the Lieber balancing test, despite the amendment of 

the FOIA. See, e.g., McGee, 2017 IL App (3d) 160324, ¶¶ 17-20; State Journal-Register v. 

University of Illinois Springfield, 2013 IL App (4th) 120881, ¶¶ 43-67. We, therefore, find no 

reason to deviate from the established law on this matter and affirm the trial court’s denial of 

defendant’s motion to dismiss. Having reached that conclusion, we need not address the parties’ 

other assertions on this issue.

¶ 26 III. CONCLUSION

¶ 27 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County. 

¶ 28 Affirmed.