Chicago Tribune Co. v. The Department of Financial and Professional Regulation
8 N.E.3d 11
Ill. App. Ct.2014Background
- Chicago Tribune requested the number of initial claims against several physicians from the Department under FOIA on Feb 25, 2010.
- Department denied access to initial-claim counts and related data; provided some case-specific information.
- Tribune filed a declaratory judgment action under FOIA in Sangamon County on Apr 18, 2011.
- Parties cross-moved for summary judgment; the circuit court granted Tribune’s motion and denied the Department’s.
- The Department invoked the Medical Practice Act and argued it does not maintain or compile the requested counts; per Alison Perona’s affidavit, counting would require manual file review not done in the ordinary course.
- The appellate court held the circuit court erred and reversed/remanded for entry of summary judgment for the Department.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FOIA requires disclosure of the number of initial claims. | Tribune seeks counts; Department maintains records do not exist or need compilation. | Department does not maintain or compile the initial-claim counts; disclosure would require creating a new record. | Affirmative; Department prevails; counts need not be disclosed. |
| Whether the Department waived its equally applicable defenses. | Department waived by not raising during denial/administrative review. | FOIA §11(f) allows de novo review; waiver does not apply here. | Waiver not applicable; defenses preserved and considered. |
| Whether Tribune’s request was properly framed as a FOIA public-record request or a request to create records. | Request seeks existing counts; FOIA should require disclosure. | Request would compel the Department to create a new tally not maintained as a record. | Tribune’s request effectively seeks creation of a new record; not required by FOIA. |
Key Cases Cited
- Kopchar v. City of Chicago, 395 Ill. App. 3d 762 (2009) (de novo FOIA review; exemptions not waived)
- Kenyon v. Garrels, 184 Ill. App. 3d 28 (1989) (FOIA does not compel answering questions or creating new records)
- Krohn v. Department of Justice, 628 F.2d 195 (D.C. Cir. 1980) (reasonable description requires identification of records, not data dumps)
- Fleury v. Clayton, 847 F.2d 1229 (7th Cir. 1988) (privacy interest in blemish-free medical license cited)
- Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373 (1989) (public records access policy and open-records purpose)