RAY GIBSON et al., Plaintiffs-Appellees, v. ILLINOIS STATE BOARD OF EDUCATION et al., Defendants-Appellants.
No. 1-96-2026
First District (1st Division)
February 18, 1997
Rehearing denied June 26, 1997
Modified opinion filed June 30, 1997.
Finally, defendants claim that sanctions should be imposed on plaintiff for abuse of the judicial process, pursuant to Supreme Court Rules 137 and 375. 134 Ill. 2d Rs. 137, 375. Defendants’ motion for Rule 137 sanctions was denied by the circuit court. In order to preserve that issue for appellate review, defendants were required to file a cross-appeal. Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 31, 652 N.E.2d 410, 413 (1995). Defendants’ failure to file a cross-appeal constitutes a waiver of the sanctions issue.
With respect to defendants’ request for
For the foregoing reasons, the decision of the circuit court of Cook County is affirmed.
Affirmed.
O‘BRIEN and GALLAGHER, JJ., concur.
Baker & McKenzie, of Chicago (Michael A. Pollard and Ellenore Angelidis, of counsel), and Office of University Counsel, of Urbana (Mark D. Henss, of counsel), for appellants University of Illinois and James J. Stukel.
Sonnenschein, Nath & Rosenthal (James A. Klenk and Gregory R. Naron, of counsel), and Chicago Tribune Company (Dale M. Cohen and Paulette Dodson, of counsel), both of Chicago, for appellees.
JUSTICE BUCKLEY delivered the opinion of the court:
Plaintiffs Ray Gibson and the Chicago Tribune Company (the Tribune) brought this action under the
The Illinois School Code provides that each member of the General Assembly of the Illinois legislature may award two “General Assembly scholarships” annually to individuals from his or her district.
Gibson is a reporter for the Chicago Tribune who has been investigating the circumstances surrounding the awarding of these scholarships. As part of their investigation, plaintiffs asked each individual legislator for the names of his or her scholarship recipients. Some of the legislators complied with plaintiffs’ request; others denied it. Plaintiffs made the same request of the University and the Board, both of which are state agencies in possession of records containing the information plaintiffs seek. Both agencies refused to release their records.
Plaintiffs then filed formal FOIA requests with the University and the Board seeking the names and addresses of all scholarship recipients since January 1, 1992. Both defendants again denied the requests, claiming that FOIA exempts the records from disclosure. Plaintiffs’ appeals to Stukel and Spagnolo were also denied.
On February 23, 1996, plaintiffs filed this action seeking an order enjoining defendants from withholding the information. Plaintiffs filed a motion for summary judgment. The Board and Spagnolo filed a cross-motion for summary judgment, and the University and Stukel filed a motion to dismiss. On June 11, 1996, the trial court granted plaintiffs’ motion and denied defendants’ motions, finding that “the public‘s right to know is greater than an individual‘s alleged privacy rights” and that public disclosure of “information that bears on the public duties of public employees and officials shall not be considered an invasion of *** personal privacy.” The court ordered that defendants disclose the requested information, and defendants appealed. On June 20, 1996, this court granted defendants’ motion for stay of the circuit court‘s order pending appeal.
FOIA provides that “[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7.”
“(1) The following shall be exempt from inspection and copying:
***
(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and of-
ficials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to: (i) files and personal information maintained with respect to *** students or other individuals receiving *** educational [or] financial *** care or services directly or indirectly from federal agencies or public bodies.”
5 ILCS 140/7 (West 1994) .
Defendants claim that the information plaintiffs seek is exempt per se under section 7. Plaintiffs counter that information categorized in the subsections of section 7(1)(b) is not exempt per se, but rather, it is subject to a balancing test, which weighs in favor of disclosure.
The parties’ arguments in this case reflect a split in the Illinois appellate districts. Defendants rely principally on the fourth district case of Healey v. Teachers Retirement System, 200 Ill. App. 3d 240, 558 N.E.2d 766 (1990). In Healey, the Illinois Federation of Teachers (IFT) asked the Teachers Retirement System (TRS) to provide the names, addresses and phone numbers of its enrollees, as well as certain information about the enrollees’ employment status and history. TRS denied the request, and IFT brought an action seeking to compel the disclosure under FOIA. Healey, 200 Ill. App. 3d at 241, 558 N.E.2d at 767.
The Fourth District Appellate Court held that “the exemptions contained within the subsections of section 7(b) are per se exemptions and do not require courts [to employ a balancing test] to determine whether disclosure of the information described in each exemption would constitute a ‘clearly unwarranted invasion of personal privacy.’ ” Healey, 200 Ill. App. 3d at 243, 558 N.E.2d at 768, quoting Staske v. City of Champaign, 183 Ill. App. 3d 1, 5, 539 N.E.2d 747, 750 (1989). The court found that since the information IFT sought fell within the ambit of section 7(1)(b)(i) as personal information concerning individuals receiving financial services from a public body, TRS was not required to disclose it under FOIA. Healey, 200 Ill. App. 3d at 243, 558 N.E.2d at 768.
The First, Third and Fifth Districts of the Appellate Court have rejected a per se interpretation of the section 7(1)(b) exemptions in favor of a balancing approach. Lieber v. Southern Illinois University, 279 Ill. App. 3d 553, 664 N.E.2d 1155 (5th Dist. 1996); Margolis v. Director of the Department of Revenue, 180 Ill. App. 3d 1084, 536 N.E.2d 827 (1st Dist. 1989); City of Monmouth v. Galesburg Printing & Publishing Co., 144 Ill. App. 3d 224, 494 N.E.2d 896 (3rd Dist. 1986). Margolis is the leading case in the first district. In that case, the plaintiff brought an action under FOIA to compel the Director of
The Margolis approach requires a two-step analysis. The first step is to determine whether the information requested falls into one of the categories listed in the subsections of section 7(1)(b). If it is not contained therein, the information is not exempt, and it must be disclosed. If the requested disclosure is contained in these subsections, the analysis proceeds to step two, which entails balancing four factors to determine whether disclosure of the requested information would constitute a “clearly unwarranted invasion of personal privacy.” These factors, adopted from federal court interpretations of the federal FOIA exemptions, are (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 information. Margolis, 180 Ill. App. 3d at 1089-90, 536 N.E.2d at 830.
Defendants argue that the per se interpretation adopted in Healey is consistent with the plain language of FOIA, and that the Margolis decision erred in relying on the federal FOIA. We agree, and, therefore, we break from Margolis.
The approach espoused in Margolis cannot be reconciled with the plain language of section 7. The Margolis test provides that if the requested information is not contained in subsections (i) through (v), the analysis is over, and the information must be disclosed. Margolis, 180 Ill. App. 3d at 1089-90, 536 N.E.2d at 830. However, the statute provides that information exempted under section 7(1)(b) includes “but is not limited to” the information contained in subsections (i) through (v). (Emphasis added.)
Even if this first step were eliminated, the balancing step is also inconsistent with the language of section 7(1)(b). The exemptions of section 7 are clearly written and explicitly state that information contained in any of the subsections of section 7(1)(b) is exempt.
Section 7 twice uses mandatory terms in setting out these exemptions. First, the introductory language in section 7(1) states “[t]he following shall be exempt from inspection and copying.” (Emphasis added.)
This provision clearly expresses the legislature‘s finding that disclosure of the information in subsections (i) through (v) necessarily constitutes a clearly unwarranted invasion of personal privacy. Therefore, disclosure of such information is per se a clearly unwarranted invasion of personal privacy under the statute. The “clearly unwarranted invasion of personal privacy” language in section 7(1)(b) is necessary because the reach of that provision “is not limited to” the information that falls within the specific categories of per se exempt information. Other information, not specifically exempted per se, may also be exempt if its disclosure would constitute a clearly unwarranted invasion of personal privacy.
The Illinois Supreme Court recently reached the same conclusion in Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401 (1997). In Lieber, the owner of an apartment building, Stan Lieber, filed a FOIA request with the Board of Trustees of Southern Illinois University (the board) seeking the names and addresses of admitted freshmen who had contacted the university about off-campus housing. The board refused, invoking the privacy exemption of FOIA section 7(1)(b)(1). The trial court granted summary judgment in favor of the board. The Appellate Court, Fifth District, reversed, applying the Margolis balancing test.
The supreme court rejected the balancing test and instead adopted the per se approach we have described above. The court held that, under section 7(1)(b), the information categorized in subsections
The per se approach finds further support in the language of the fifth specific exemption under section 7(1)(b). Subsection (v) provides that information exempt under section 7(1)(b) includes
“(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies; provided, however, that identification of witnesses to traffic accidents, traffic accident reports, and rescue reports may be provided by agencies of local government, except in a case for which a criminal investigation is ongoing, without constituting a clearly unwarranted per se invasion of personal privacy under this subsection.” (Emphasis added.)
5 ILCS 140/7(1)(b)(v) (West 1994) .
It is well settled that courts should construe statutes so that no term is rendered meaningless. Niven v. Siqueira, 109 Ill. 2d 357, 365, 487 N.E.2d 937, 942 (1985). In stating that witnesses to accidents and rescues may be identified “without providing a clearly unwarranted per se invasion of personal privacy under this subsection,” the provision indicates that information categorized in subsections (i) through (v) is exempt per se, but that an exception to the exemption is names of witnesses to accidents and rescues.
We believe that Margolis‘s reliance on federal courts’ interpretation of the federal FOIA is misplaced. The federal FOIA exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
In relying on the Washington Post case to determine that the Illinois FOIA contemplates a similar balancing test, the Margolis court failed to recognize that, unlike the federal FOIA, the Illinois FOIA contains specific statutory exemptions in addition to a general exemption. As discussed above, the plain language of section 7(1)(b) states that the specific information listed in subsections (i) through (v) is exempt as constituting a clearly unwarranted invasion of personal privacy if disclosed, but the information exempted under section 7(1)(b) “is not limited to” the specific exemptions.
On the other hand, where requested information falls squarely within a specific exemption, the Washington Post rationale cannot apply because that decision was based on the lack of specific exemptions in the federal FOIA. Therefore, the federal FOIA decisions are only instructive in applying the general exemption of section 7(1)(b), but not the specific exemptions.
For these reasons, we reject the balancing approach adopted by the Margolis court in favor of a per se approach to the section 7(1)(b) exemptions that was enunciated in Lieber. Section 7(1)(b) provides an exemption applying to information that “shall include but is not limited to” the information contained in subsections (i) through (v). The specifically listed information, therefore, must be exempt per se because, under section 7(1)(b), its disclosure would necessarily constitute a clearly unwarranted invasion of personal privacy. But since the section 7(1)(b) exemption “is not limited to” such information, a balancing test must be employed when a FOIA request for information not contained in subsections (i) through (v) is challenged as constituting a clearly unwarranted invasion of personal privacy.
Plaintiffs also contend that the information they seek is not exempt from disclosure because it does not constitute “personal information” as contemplated in section 7(1)(b). Plaintiffs rely principally on the Lieber case. Despite its adoption of the per se approach to the section 7(1)(b) exemptions, the supreme court in Lieber affirmed the appellate court because the information requested by Lieber was not personal information maintained with respect to students. Lieber, 176 Ill. 2d at 410. The individuals whose names Lieber was seeking were not students because they were not yet enrolled at the university, and they had not yet attended any classes there. Lieber, 176 Ill. 2d at 410. More importantly, the court also held that the information requested was not “personal information” because it was not “confidential” or “private.” Lieber, 176 Ill. 2d at 412.
Plaintiffs contend that, as in Lieber, they are merely requesting names and addresses, which the Lieber court expressly held was not personal information. However, plaintiffs in this case are not simply seeking names and addresses of all admitted freshmen or of all students. We agree that such information would not constitute personal information for purposes of section 7(1)(b). Here, plaintiffs are seeking the names and addresses only of those students receiving legislative scholarships. Clearly, disclosure of these names would reveal more about those students than simply that they were admitted or enrolled at the University. By the very nature of the category of names and addresses sought, disclosure would reveal that these people are “receiving *** educational [and] *** financial *** care or services directly or indirectly from *** public bodies.”
Since the names and addresses requested by plaintiffs are personal information by virtue of their category, and the General Assembly scholarship recipients are receiving educational and financial
For the foregoing reasons, the decision of the circuit court of Cook County is reversed, and the case is remanded to the trial court with instructions to enter summary judgment in favor of defendants.
Reversed and remanded.
BRADEN, J., concurs.1
JUSTICE WOLFSON, concurring in part, dissenting in part:
When a request for information fits explicitly within the terms of section 7(1)(b), that information is per se exempt from disclosure under the
The question that remains in this case is whether the names of students receiving the General Assembly scholarships are “personal information maintained with respect to *** students or other individuals receiving *** educational [or] financial *** care or services directly or indirectly from Federal agencies or public bodies” as provided in section 7(1)(b)(i). I do not believe they are. For that reason, while I concur in the majority‘s reversal of the trial court‘s judgment, I dissent from the majority‘s instruction to enter summary judgment in favor of the defendants.
In Lieber, the supreme court examined section 7(1)(b)(i) and the university‘s claim that the names and addresses of accepted freshmen constituted “personal information” within the terms of the statute. The court concluded that statutory references to “personal information” mean something more than names and addresses. That is, “When the legislature intended to exempt a person‘s identity from disclosure, it did so explicitly.” Lieber, 176 Ill. 2d at 412.
The court concluded:
“Accordingly, taken in context and considering the statute as a whole, the phrase ‘personal information’ must have been intended by the legislature to be understood not in the sense of basic identification, but in the sense of information that is ‘confidential’ or ‘private.’ The very purpose of section 7(1)(b), after all, is to protect ‘personal privacy.’ ” Lieber, 176 Ill. 2d at 412.
The fact that the university was relying on the phrase “personal information” to refuse disclosure of names and addresses was held by the supreme court to be a second, but “equally fundamental, impediment” to the university‘s reliance on section 7(1)(b)(i). Lieber, 176 Ill. 2d at 411. I believe the same reasoning defeats the Board‘s claim of per se exemption in this case.
I understand an argument can be made that names of scholarship recipients somehow are more personal and private than the names of individuals who contacted Southern Illinois University about freshman housing. But not that much more personal and private. Not “intensely confidential and private,” as the majority suggests. Not enough to warrant a per se exemption.
I believe this request for information falls within the ambit of Margolis v. Director of the Department of Revenue, 180 Ill. App. 3d 1084, 536 N.E.2d 827 (1989). That is, as the Supreme Court said in Lieber:
“Where a public body asserts an exemption for information that is not specifically included on the list and therefore not exempt per se, the court must evaluate the particular information on a case-by-case basis.” Lieber, 176 Ill. 2d at 409.
I do not mean to trivialize any individual‘s right to personal privacy. It may be the trial court would find, if given the opportunity, that disclosure of the names of scholarship recipients would be a clearly unwarranted invasion of their personal privacy.
Then, again, disclosure might enhance a recipient‘s standing on campus. Either way, that decision should first be made in the trial court, which would weigh: (1) the plaintiff‘s interest in disclosure; (2) the public interest in disclosure; (3) the degree invasion of personal
In sum, because section 7(1)(b)(i) does not specifically proscribe revealing the “identity” of scholarship recipients, I believe applying the Margolis balancing test would best promote the salutary disclosure policy of the Illinois FOIA while entrusting to our courts their traditional role as protectors of the privacy and dignity of individual citizens. For that reason, I would reverse the trial court‘s judgment and remand for a Margolis hearing.