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02/18/97 RAY GIBSON v. ILLINOIS STATE BOARD

February 18, 1997

RAY GIBSON, AND THE CHICAGO TRIBUNE COMPANY, PLAINTIFFS-APPELLEES,
v.
ILLINOIS STATE BOARD OF EDUCATION, JOSEPH A. SPAGNOLO, PRESIDENT, ILLINOIS STATE BOARD OF EDUCATION, UNIVERSITY OF ILLINOIS, AND JAMES J. STUKEL, PRESIDENT, UNIVERSITY OF ILLINOIS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable JOHN K. MADDEN, Judge Presiding.

As Modified June 30, 1997. Rehearing Denied June 26, 1997. Released for Publication July 21, 1997.

The Honorable Justice Buckley delivered the opinion of the court. Braden*, J., concurs. Wolfson, J., dissents.

The opinion of the court was delivered by: Buckley

Modified Upon Denial of Rehearing

The Honorable Justice BUCKLEY delivered the opinion of the court:

Plaintiffs Ray Gibson and the Chicago Tribune Company (the Tribune) brought this action under the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1994)) in the chancery division of the circuit court of Cook County against the University of Illinois (the University), University President James J. Stukel, the Illinois State Board of Education (the Board), and Board President Joseph A. Spagnolo. Plaintiffs' complaint sought to enjoin defendants from denying plaintiffs access to the names and addresses of individuals awarded "General Assembly scholarships" by their state legislators. See 105 ILCS 5/30-9 (West 1994). The trial court granted plaintiffs' motion for summary judgment and ordered defendants to comply with plaintiffs' request. Defendants appealed, contending that (1) FOIA specifically exempts the requested information from disclosure, and (2) FOIA and the Federal Family Educational Rights and Privacy Act (20 U.S.C. ยง 1232g (1996)) work together to prohibit such disclosure.

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. 105 ILCS 5/30-9 (West 1994). The scholarships allow recipients to attend a state-supported university of the legislator's choosing free of tuition. 105 ILCS 5/30-9 (West 1994). The selection of recipients is within the discretion of the individual legislators.

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 "each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7." 5 ILCS 140/3 (West 1994). Defendants claim that section 7 contains exemptions that entitle them to deny plaintiffs access to the names of the General Assembly scholarship recipients. Defendants rely on the following provision:

"(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 officials 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, 146 Ill. Dec. 803 (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 ...


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