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January 19, 1996


Appeal from Circuit Court of McLean County. No. 95CH44. Honorable Ronald C. Dozier, Judge Presiding.

Petition for Rehearing Denied March 12, 1996. Released for Publication March 12, 1996.

Honorable Robert W. Cook, P.j., Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J., Concurring

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

The Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1994)) encourages a free flow and disclosure of information between government and the people. The FOIA, nevertheless, specifically exempts from government disclosure numerous categories of information and documents. (5 ILCS 140/7 (West 1994).) The question raised by this appeal is whether a government entity in possession of information and documents may consent to disclosure when another government entity having a substantial interest in the determination wishes to assert an exemption.

On March 22, 1995, a meeting of the Illinois State University Athletic Council (Council) was held to discuss the elimination of certain athletic programs operated by Illinois State University (ISU). The meeting was not open to the public. The McLean County State's Attorney began an investigation and advised the board of regents (Board) which governs ISU that in the State's Attorney's opinion the Open Meetings Act (Act) (5 ILCS 120/1 through 6 (West 1994)) applied to meetings of the Council, and threatened criminal prosecution against ISU officials for violating the Act. In the course of the investigation, ISU delivered copies of the minutes and a transcript of the March 22 meeting to the State's Attorney. The record is unclear what compulsion, if any, prompted ISU to turn over those documents, but the parties at oral argument agreed they were not subpoenaed.

On June 15, 1995, the Board filed a complaint for declaratory judgment against the State's Attorney (Board of Regents v. Reynard (McLean Co. Cir. Ct.), No. 95-MR-89), seeking a declaration that the Act did not apply to the Council. The State's Attorney, in turn, filed a counterclaim for declaratory judgment, contending the Act did apply and requesting that further violations be enjoined. When the Peoria Journal Star served a request on the State's Attorney, under the FOIA, seeking copies of the minutes and transcript of the March 22 meeting, the Board filed, on July 20, 1995, a motion for preliminary injunction in cause No. 95-MR-89, seeking to prohibit the State's Attorney from releasing the minutes and transcript.

On August 4, 1995, plaintiff served an FOIA request on the State's Attorney for those same documents. The State's Attorney denied that request, on the basis that litigation was pending in cause No. 95-MR-89. Plaintiff appealed to the chairman of the McLean County Board (County Board), who also denied the request. Plaintiff then filed a verified petition for injunctive relief in this case, No. 95-CH-44, naming the State's Attorney and the chairman of the County Board, and seeking relief under the FOIA. The State's Attorney filed an answer which admitted all allegations of the complaint, but made a perfunctory request that relief be denied. Plaintiff then filed a motion for judgment on the pleadings which the State's Attorney did not oppose. When the motion came on for hearing, it was transferred to the docket of Judge Dozier, who consolidated it for hearing with No. 95-MR-89.

The trial court expressed concern that any protection from disclosure which the Board might enjoy under the FOIA would be lost if the State's Attorney were allowed to voluntarily turn over Board documents in its possession. The court made the further finding that there was a reasonable probability that the Board would prevail on its complaint for declaratory judgment (No. 95-MR-89) to establish that the Council was not a public body subject to the Act, rendering records of its meetings nondiscoverable under the FOIA. Based on that finding, the court denied plaintiff's motion for judgment on the pleadings in No. 95-CH-44, and enjoined the State's Attorney from releasing the documents in No. 95-MR-89.

The trial court then "severed" the two cases, and plaintiff appeals cause No. 95-CH-44 under Supreme Court Rule 307(a)(1) (155 Ill. 2d R. 307(a)(1)), which permits appeals from interlocutory orders refusing an injunction. Plaintiff argues the trial court erred in refusing to grant its motion for judgment on the pleadings because the State's Attorney's answer admitted each element of plaintiff's claim for injunctive relief.

After filing the notice of appeal, plaintiff requested and received a prehearing conference from this court under Supreme Court Rule 310 (134 Ill. 2d R. 310). The purpose of the conference was to expedite the appeal as the State's Attorney represented to the court that it agreed with the plaintiff's legal position and intended to confess error. Although a short briefing schedule was set, the Board filed a petition to intervene and to supplement the record with the trial proceedings from the Board of Regents v. Reynard case (No. 95-MR-89). Over objection, this court granted the Board permission to intervene on appeal to protect whatever interest it had. The motion to supplement the record was taken with the case, and we now grant that motion taking judicial notice of the record which was before the trial court in the related litigation.

On appeal, plaintiff relies upon the traditional argument that under the FOIA, the burden of proof is on the defendant to establish that the material in question is exempt from disclosure. ( Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 535, 548 N.E.2d 1110, 1113, 139 Ill. Dec. 554.) In this case, in response to the FOIA request, the State's Attorney admitted possession of the documents and made no claim that any statutory exemption to disclosure pertained to them. Based on these admissions, plaintiff contends the documents must be released. The State's Attorney agrees, arguing that the Board has no authority to control the actions of the State's Attorney, and the State's Attorney is free to release documents in its possession if it chooses. The Board, in turn, contends that it has an interest in keeping the documents confidential, even though the State's Attorney does not share that interest, and argues strenuously that the documents are not subject to disclosure under the FOIA because the Council is not a public body subject to the Act.

We have not discovered, and no party has cited to us, any precedent under Illinois law addressing the authority of an agency to disclose third-party documents in its possession which might arguably be subject to an exemption under the Illinois FOIA. We note, however, that the issue has frequently arisen in Federal courts under the Federal FOIA (5 U.S.C. ยง 552 (1994)) in what has come to be known as a "reverse-FOIA action." In such a case, typically, a submitter of information--usually a corporation or other business entity required to report various data on its policies, operations, or products--seeks to prevent the agency that collected the information from revealing it to a third party in response to the latter's FOIA request. The agency's decision to release the data normally will be grounded either in its view that none of the FOIA exemptions apply, and thus that disclosure is mandatory, or in its belief that release is justified in the exercise of its discretion, even though the data fall within one or more of the statutory exemptions. CNA Financial Corp. v. Donovan (D.C. Cir. 1987), 265 U.S. App. D.C. 248, 830 F.2d 1132, 1133 n.1.

Prior to oral argument, we asked the parties to address the applicability, if any, of the seminal case in this area, Chrysler Corp. v. Brown (1979), 441 U.S. 281, 60 L. Ed. 2d 208, 99 S. Ct. 1705. In Chrysler, plaintiff sought to enjoin the release of affirmative action plans Chrysler Corporation (Chrysler) was required to submit to the Secretary of Labor. Relying upon the Federal FOIA, Chrysler argued that if the information was subject to an exemption, the agency was required to withhold it. Conceding that certain of the exemptions reflect a sensitivity to the privacy interests of private individuals and nongovernmental entities, the Supreme Court found that this did not inexorably require the conclusion that the exemptions imposed ...

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