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May 7, 1996


Appeal from the Circuit Court of Jackson County. No. 93-MR-33. Honorable David W. Watt, Jr., Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court: Welch, J., and Maag, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, Stan Lieber, filed a complaint in the Jackson County circuit court seeking mandatory and permanent injunctions to require defendant, Southern Illinois University (SIU), to provide Lieber with certain information requested under the Illinois Freedom of Information Act (Act). 5 ILCS 140/1 et seq. (West 1992). On June 21, 1995, the trial court entered summary judgment in favor of SIU. On appeal, Lieber argues that the trial court failed to apply the proper legal analysis in reaching its decision and that summary judgment in favor of SIU is improper. For reasons we will more fully explain, we reverse.


Plaintiff filed his initial complaint on May 18, 1993, alleging that SIU had improperly refused his demand for information under the Act. In his demand, Lieber requested "a complete listing of any and all records relating to freshman housing inquiries, made for the 1993-1994 school year, including the name, address, and telephone number of each and every inquiry received by the University from an accepted freshman, from February 1st, 1993[,] to April 9th, 1993." Lieber owns Stevenson Arms, which is approved as off-campus housing for freshmen attending SIU. Unmarried freshmen at SIU who are under age 21 and who do not live with their parents are required to live in an on-campus dormitory or in approved off-campus housing such as Stevenson Arms.

On September 13, 1993, SIU filed a motion for judgment on the pleadings, alleging that "the information requested by Plaintiff is per se exempt under Section 7(1)(b)(i) [(5 ILCS 140/7(1)(b)(i) (West 1992))] because it is personal information maintained with respect to students (i.e., freshman [sic]) or other individuals receiving educational services (i.e., information about freshmen housing) from a public body." In the motion for judgment on the pleadings, SIU also argued that among the categories of information specifically exempted by the legislature are those listed in section 7(1)(b) of the Act, which provides as follows:

"(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. *** Information exempted under this subsection (b) shall include but is not limited to:

(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies." 5 ILCS 140/7(1)(b)(i) (West 1992).

Lieber filed a response to SIU's motion for judgment on the pleadings, arguing that the information he requested was not exempt under the Act and that, in any event, SIU published a student directory listing the same information it claimed to be an unwarranted invasion of the students' privacy. The student directory, which lists the names, addresses, and telephone numbers of SIU students, would not timely fulfill Lieber's demand under the Act.

Although the record does not indicate how the court ruled on SIU's motion for judgment on the pleadings, Lieber filed his first amended complaint for injunctive relief on December 20, 1993. The allegations of the amended complaint that are pertinent to this appeal are: that SIU "solicits prospective students from throughout the State of Illinois;" that SIU "owns and operates certain student housing facilities for its students;" that SIU charges each freshman student living in an on-campus dormitory more than $3,100 annually; that the costs of and services provided by off-campus housing, such as that owned by Lieber, are different from the costs of and services provided by SIU for on-campus housing; that SIU receives thousands of inquiries about its freshman housing facilities each year from students, their parents and guardians, and the public; that in the past Lieber made "numerous similar demands," pursuant to the Act, upon SIU; that at all prior times SIU "provided all materials sought;" and that SIU, by its president, John Guyon, refused Lieber's current request for information.

On January 12, 1994, SIU filed its answer and first affirmative defense to Lieber's first amended complaint. In the answer, SIU admitted all of the allegations of the complaint, except that SIU denied that Lieber made similar demands for information in the past or that SIU provided the information upon request in the past, and SIU denied that it had violated the Act. In its affirmative defense, SIU alleged that Lieber's request for information "was made for a purpose of generating income" for Lieber from Stevenson Arms; that the requested information would not disclose any information regarding "the conduct of government" or the official acts of any public official or public employee; that the individuals requesting information regarding freshman housing at SIU have a "personal privacy interest in their name, address and telephone number;" that the invasion of that privacy interest would be "unwarranted;" and that SIU had not violated the Act by denying Lieber's request for information.

Lieber filed a reply in objection to SIU's affirmative defense, arguing that the allegations did not amount to an affirmative defense, that SIU's previous practice of disseminating the very material it was seeking to conceal estopped SIU from asserting any such privacy right, and that SIU's "refusal to abide by the duty imposed by the [Act] deprives its applicants, who are not yet students, of timely access to all available freshman, university-approved, housing options and thus prejudices the choice of affordable university-approved housing."

On the 28th of December, 1994, the court granted SIU's motion for leave to file an amended affirmative defense. In its amended affirmative ...

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