Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1985.
Plaintiffs Family Life League, a not-for-profit corporation, its president, John Kelly, its executive director, Joan Solms, and Family Life League Educational Association, a not-for-profit corporation, brought this action for mandamus against defendants Illinois Department of Public Aid and its director, Jeffrey Miller. Plaintiffs sought an order that defendants make available to them defendants' records relating to the use of public funds paid to doctors and medical providers for welfare abortions and abortion-related services. Plaintiffs claimed entitlement to this information under the State Records Act (Ill. Rev. Stat. 1979, ch. 116, par. 43.4 et seq.). In their answer, defendants denied that they were required to disclose the information. On appeal, defendants contend that disclosure would impermissibly intrude upon the expected privacy rights of welfare recipients having abortions and the rights of doctors and providers of welfare abortions, and that it would compel defendants to create a new record not required by law.
Defendants are responsible for the disbursal of funds under the State's medical assistance programs. Payments are made to individuals and entities that provide medical services for recipients, people who lack sufficient income and resources to pay for the medical services and who otherwise meet the prerequisites for receiving these services. Under restricted circumstances, defendants pay doctors and providers for performing abortions and abortion-related services. *fn1
Defendants make and keep records regarding their payments. Included in these records are the identities of health care providers and doctors, and the amount of public funds paid to them for their services. Relying on the State Records Act, *fn2 plaintiffs, opponents of abortion, requested defendants on various occasions to provide them with access to defendants' records relating to abortions. In particular, plaintiffs sought to learn the identities of the doctors and providers of abortions, the number of claims made by each doctor and provider for abortions, and the amount of funds used to pay each doctor and provider for these services. Defendants denied plaintiffs access to this information, but offered to provide records that show (1) the number of welfare abortions for which defendants paid during a calendar or fiscal year, (2) the total monies defendants paid for welfare abortion services and (3) the names of all providers participating in defendants' general medical programs and total amounts paid them during each year without distinguishing doctors, providers or monies related to welfare abortions.
Plaintiffs moved for judgment on the pleadings. The trial court granted the motion in part and denied it in part. The court ordered defendants to provide plaintiffs with the names and addresses of the doctors and providers of welfare abortions, but further ordered that defendants were not required to provide records as to the number of welfare abortions performed by each doctor or provider or the amount of payments made to them for performing the welfare abortions. Plaintiffs appeal, and defendants cross-appeal those portions of the judgment adverse to their respective positions. The Illinois State Medical Society was permitted to intervene as a cross-appellant. Also, the Roger Baldwin Foundation of the ACLU, Inc., was allowed to file an amicus curiae brief. We reverse and remand.
The decision in this case requires a delicate balance between two competing rights: (1) the statutory right of the people to full and complete disclosure regarding the affairs of their government and (2) the constitutionally protected right of individuals to privacy in regard to their personal affairs which is inherent in the Bill of Rights *fn3 and which is expressly provided for in our Illinois Constitution. *fn4 Plainly, neither right can be subjugated to the other right without doing violence to the precepts vital to a free society.
In Roe v. Wade, the Supreme Court held that there is a constitutional right of privacy which encompasses a woman's decision whether to have an abortion. (Roe v. Wade (1973), 410 U.S. 113, 153, 35 L.Ed.2d 147, 177, 93 S.Ct. 705, 727.) Plainly, this right of privacy includes the ability to give effect to that right, and the right extends to all women, including those on welfare. Thus, the privacy issue that is involved in this case centers on the effect that disclosure of the information sought by plaintiffs would have on the right of welfare recipients to make and effectuate their abortion decisions.
• 1 Plaintiffs argue that the welfare recipients' right of privacy is not involved because they do not seek the names of the recipients. We believe that plaintiffs' perspective of the issue is unrealistic and far too constricted. Privacy rights involve different kinds of interests. Obviously, one interest concerns avoiding the disclosure of personal matters. However, another interest involves a woman's freedom to make a decision to have an abortion and to be able to effectuate that decision. (See Whalen v. Roe (1977), 429 U.S. 589, 599-600, 51 L.Ed.2d 64, 73, 97 S.Ct. 869, 876.) This interest includes not only the private relationship between a woman and her physician (Roe v. Wade (1973), 410 U.S. 113, 153, 35 L.Ed.2d 147, 177, 93 S.Ct. 705, 727), but also the need of the physician to freely practice medicine and perform legal abortions without arbitrary outside restraints (see Nyberg v. City of Virginia (8th Cir. 1974), 495 F.2d 1342, 1344). This is true because the abortion decisions of women and the ability of women to effectuate their decisions are necessarily dependent upon and intertwined with the responsibilities and decisions of their physicians. See City of Akron v. Akron Center for Reproductive Health, Inc. (1983), 462 U.S. 416, 430-31, 76 L.Ed.2d 687, 703, 103 S.Ct. 2481, 2493; Planned Parenthood of Central Missouri v. Danforth (1976), 428 U.S. 52, 61, 49 L.Ed.2d 788, 800, 96 S.Ct. 2831, 2837; Roe v. Wade (1973), 410 U.S. 113, 153, 35 L.Ed.2d 147, 177, 93 S.Ct. 705, 727.
Accordingly, if physicians are unable or unwilling to perform legal abortions for welfare recipients because of arbitrary outside restraints, welfare recipients would not be able to give effect to their constitutional right of privacy to obtain an abortion within the ambit of Roe v. Wade. Recognition of this reality is a significant consideration here. In our present social climate of dangerous emotional highs on both sides of the abortion issue, it can hardly be denied that the insidious threat of harassment and harm to physicians performing legal abortions and the terrorism of abortion clinics by antiabortion vigilante groups are very real. *fn5. Given these circumstances, it is reasonable to conclude that physicians would simply be unwilling to be a part of the abortion decisions of women on welfare if there is compelled disclosure of the information sought by plaintiffs. Thus, we believe that compelling disclosure of the information sought by plaintiffs would severely impact the ability of welfare recipients to effectuate their abortion decisions, which in turn would violate the women's constitutional right of privacy as stated in Roe v. Wade.
• 2 We therefore conclude that although plaintiffs do not seek the names of the welfare recipients receiving abortions, compelling disclosure of the physicians and providers that perform abortion services for welfare recipients would invade the welfare recipients' constitutional right of privacy to make and effectuate their abortion decisions. Thus, while we are dealing with a praiseworthy statute requiring complete disclosure regarding the affairs of government, in this rare instance the disclosure provisions of the statute must yield to the constitutionally protected privacy right of women on welfare to make and effectuate their abortion decisions.
• 3 We next address defendants' argument that they need not disclose the information sought by plaintiffs because the statute does not require defendants to create a new record, which defendants claim they would be required to do in order to accede to plaintiffs' request. In their answer, defendants state that they have "kept records for each medical service for the years 1978 through 1980 in electronic form and for 1976 and 1977 on microfilm or microfiche, but that upon such records abortion services are not listed separately from other medical services, and that to separate the abortion services would require that special computer programs be written and/or separate records produced." Defendants admit that they regularly produce a list which shows the names of recipients of abortions, the names of providers and the amounts paid. Finally, at oral argument, defendants candidly admitted that they have the ability to create records that contain only the information sought by plaintiffs.
Under the circumstances, we reject defendants' contention that because they maintain no records which contain only the information sought by plaintiffs, plaintiffs' request must be denied on that basis. Acceptance of defendants' contention would effectively gut the State Records Act and the Freedom of Information Act. *fn6 Plainly, these acts imply that the agency has a duty to delete confidential and nondisclosable information from that which may be disclosed in order to carry out the Acts' purpose of making available for public inspection all disclosable parts of the public record. Otherwise, any record which an agency is required by law to keep could be rendered inaccessible to public scrutiny by the inclusion of confidential material. Thus, we conclude that the disclosure of information sought, either by deleting confidential information from the existing record or by extracting the requested information therefrom, does not require the "creation" of a new public record. See State ex rel. Stephan v. Harder (1982), 230 Kan. 573, 583, 641 P.2d 366, 374.
Defendants raise other issues which we address summarily because we believe they are plainly without merit. Defendants contend that they have a defense to plaintiffs' action because the possibility of inadvertent disclosure of recipients' names could have a chilling effect on a woman's decision to seek an abortion. Also, defendants contend that they have a defense to plaintiffs' action because disclosure of the amount of monies doctors and providers receive for performing abortions would interfere with the doctors' and providers' right to privacy because they have a right not to have their professional and business dealings made public. Defendants contend that doctors are ...