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

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION


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.

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

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. § 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).

Clearly, the names of General Assembly scholarship recipients are personal information relating to students receiving educational or financial benefits from the legislature. Defendants claim that the information 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 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, 132 Ill. Dec. 184 (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, 216 Ill. Dec. 227 (5th Dist. 1996); Margolis v. Director of the Department of Revenue, 180 Ill. App. 3d 1084, 536 N.E.2d 827, 129 Ill. Dec. 777 (1st Dist. 1989); City of Monmouth v. Galesburg Printing & Publishing Co., 144 Ill. App. 3d 224, 494 N.E.2d 896, 98 Ill. Dec. 774 (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 Illinois Department of Revenue to disclose the names and addresses of applicants for certificates of registration to engage in retail sales in Cook County. Margolis, 180 Ill. App. 3d at 1086, 536 N.E.2d at 827-28. The court first found that the information plaintiff requested was contained in the section 7(1)(b) exemptions. The court then held that section 7 required a determination as to whether disclosure of the requested information would constitute a "clearly unwarranted invasion of privacy." Margolis, 180 Ill. App. 3d at 1089-90, 536 N.E.2d at 830. In adopting this approach, the court relied both on federal courts interpreting the federal FOIA (see United States Department of State v. Washington Post Co., 456 U.S. 595, 72 L. Ed. 2d 358, 102 S. Ct. 1957 (1982); 5 U.S.C. § 552(b)(6) (1996)) and on the Third District Appellate Court interpreting the section 7(1)(b) exemptions in the Illinois FOIA. See City of Monmouth, 144 Ill. App. 3d 224, 494 N.E.2d 896, 98 Ill. Dec. 774.

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 courts interpreting 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.) 5 ILCS 140/7(1)(b) (West 1994). Clearly, this language indicates that the information in those subsections is not the only information that is exempt under section 7(1)(b). If disclosure of some other type of information is found to be a clearly unwarranted invasion of personal privacy, that information is also exempt. The Margolis approach ignores the "is not limited to" language. Therefore, the first step of the Margolis test is inconsistent with the statutory language.

Even if this first step were eliminated, the balancing phase of the test described in Margolis 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, "the following shall be exempt from inspection and copying." (Emphasis added.) 5 ILCS 140/7(1) (West 1994). Subsection (b) provides that one of the types of information that "shall be exempt" under section 7(1) is information which would constitute a clearly unwarranted invasion of personal privacy if it is disclosed. Subsection (b) goes on to state that "information exempted under this subsection (b) shall include but is not limited to" the information categorized in subsections (i) through (v). (Emphasis added.) 5 ILCS 140/7(1)(b) (West 1994).

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 dissent argues that "if the legislature intended all subsection (b) exemptions to be per se, there would be no need to add the 'clearly unwarranted invasion of personal privacy' language." Slip op. at 17. The dissent's position, however, reflects a fundamental failure to give the plain language of the statute its clear and natural meaning. 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.

This conclusion 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, 94 Ill. Dec. 60 (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 subsections (i) through (v) is exempt per se, but that an exception to the exemption is names of witnesses to accidents and rescues. 5 ILCS 140/7(1)(b)(v) (West 1994). The clear inference to be drawn from this language, therefore, is that subsections (i) through (v) are per se exemptions.

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." 5 U.S.C. § 552(b)(6) (1996). The United States Supreme Court found that this provision is a deliberate result of Congress's intent to craft a general exemption, rather than specific statutory exemptions. United States Department of State v. Washington Post Co., 456 U.S. 595, 599, 72 L. Ed. 2d 358, 362, 102 S. Ct. 1957, 1961 (1982), quoting H.R. Rep. No. 1497, at 11 (1966), reprinted in 1966 U.S.C.C.A.N. 2428. The Court concluded that because the exemption is general and not specific, the statute requires courts to balance the public's interest in disclosure against the individual's interest in privacy to determine whether disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. Washington Post, 456 U.S. at 602-03, 72 L. Ed. 2d at 365, 102 S. Ct. at 1962.

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. 5 ILCS 140/7(1)(b) (West 1994). Other information may also be exempt under section 7(1)(b) if its disclosure would constitute a clearly unwarranted invasion of personal privacy. 5 ILCS 140/7(1)(b) (West 1994). Therefore, section 7(1)(b) contains a general exemption as well as several specific exemptions. In an action brought under the Illinois FOIA, the balancing approach enunciated in Washington Post is appropriate only where an agency seeking to withhold certain records cites the general exemption and claims that disclosure of the information contained in the requested documents would constitute a clearly unwarranted invasion of personal privacy even though the information does not fall within the framework of a specific exemption.

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, we believe that the federal FOIA decisions are only instructive in applying the general exemption of section 7(1)(b), but not the specific exemptions.

The dissent also relies on interpretations of the federal FOIA, citing a United States Supreme Court case which held that nothing in subsection (b)(6) of the federal FOIA indicates an intent to create a blanket exemption for personnel and medical files. Department of the Air Force v. Rose, 425 U.S. 352, 371, 48 L. Ed. 2d 11, 27, 96 S. Ct. 1592, 1604 (1976). However, this point further demonstrates that reliance on interpretations of the federal FOIA is misplaced. Subsection (b)(6) of the federal statute exempts "personnel and medical files *** the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (1996). There is no blanket exemption because only those files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy are exempt; other files must be disclosed. Moreover, the federal FOIA provides no specific categories of such files that "shall" fall under the "clearly unwarranted invasion of personal privacy" exemption of subsection (b)(6).

The Illinois FOIA, on the other hand, does provide specific categories of information that "shall" fall under the "clearly unwarranted invasion of personal privacy" exemption of section 7(1)(b). Those categories are listed in subsections (i) through (v). The Rose Court, in the portion cited by the dissent, based its holding on the federal FOIA's lack of precisely what the Illinois FOIA includes.

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. 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.

Therefore, we hold that in analyzing a dispute as to whether certain requested information is exempt under section 7(1)(b), the court must first determine whether the information is contained in any of the subsections to section 7(1)(b). If the information does fall within one of these subsections, it is exempt from disclosure per se. If it does not, the court must determine whether disclosure would nonetheless constitute a clearly unwarranted invasion of personal privacy under the general provision of section 7(1)(b). Contrary to the assertions of the dissent, this is the only result that comports with the plain language and intent of the statute.

In this case, plaintiffs seek the names and addresses of students who received General Assembly scholarships since 1992. Section 7(1)(b)(i) specifically exempts personal information maintained with respect to students receiving educational or financial services directly or indirectly from public bodies. Clearly, names and addresses are personal information, and these General Assembly scholarship recipients are receiving educational and financial services from their respective legislators. Therefore, the information plaintiffs request is exempt per se from disclosure under section 7(1)(b)(i).

Because we find that the information plaintiffs request is exempt under section 7(1)(b)(i), we do not address defendants' claim that nondisclosure is required under section 7(1)(a) and the Federal Family Educational Rights and Privacy Act (see 20 U.S.C. § 1232g (1996)).

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.

WOLFSON, J., dissents.

The Honorable Justice WOLFSON, dissenting:

Because I do not agree that section 7(1)(b) "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," I respectfully dissent. I do believe, however, that the trial court's grant of summary judgment should be vacated and the cause remanded for a hearing where the trial judge would weigh the four factors set out in Margolis v. Director of the Department of Revenue, 180 Ill. App. 3d 1084, 536 N.E.2d 827, 129 Ill. Dec. 777 (1989), and in a myriad of decisions interpreting the Federal FOIA.

I believe that Margolis was correctly decided. While we expressed reservations about its underpinnings in Blumenfeld v. Department of Professional Regulation, 263 Ill. App. 3d 981, 987, 636 N.E.2d 594, 201 Ill. Dec. 162 (1994), this District has continued to rely on the Margolis four-part balancing test. See Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1022, 640 N.E.2d 1299, 203 Ill. Dec. 926 (1994)

Likewise, courts in the third district ( Monmouth v. Galesburg Printing & Publishing Co., 144 Ill. App. 3d 224, 494 N.E.2d 896, 98 Ill. Dec. 774 (1986)) and the fifth district ( Lieber v. Southern Illinois University, 279 Ill. App. 3d 553, 664 N.E.2d 1155, 216 Ill. Dec. 227 (1996)) have rejected the per se approach in favor of a balancing test, which essentially weighs the public interest against individual privacy concerns.

Until now, only the Fourth Appellate District held the view that information coming within section 7(1)(b) is exempt per se. See Healey v. Teachers Retirement System, 200 Ill. App. 3d 240, 558 N.E.2d 766, 146 Ill. Dec. 803 (1990).

The majority opinion is well reasoned, but I believe it fails to examine the language of the statute as a whole, considering each part or section in connection with every other part or section, as we are obliged to do. See Antunes v. Sookhakitch, 146 Ill. 2d 477, 484, 588 N.E.2d 1111, 167 Ill. Dec. 981 (1992).

Section 1 of the Illinois FOIA is a statement of legislative intent. While the "Act is not intended to be used to violate individual privacy," we are told how the exemption provisions ought to be interpreted:

"These restraints on information access should be seen as limited exceptions to the general rule that people have a right to know the decisions, policies, procedures, rules, standards and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed to this end." (Emphasis added.) 5 ILCS 140/1 (West 1992).

Section 7(1)(b) does, as the majority points out, begin with "(1) The following shall be exempt from inspection and copying:" Those words are followed by 31 lettered exemptions, from (a) to (ee). They cover a broad range of governmental output. Several have more than one part. But only subsection (b) contains the phrase: "Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy..."

If the legislature intended all subsection (b) exemptions to be per se, there would be no need to add the "clearly unwarranted invasion of personal privacy" language. I believe addition of that phrase is an attempt to remain true to the section 1 statement of legislative intent while protecting personal privacy where warranted. A broad spectrum of per se exemptions would swallow legislative purpose and create serious first amendment issues. See Monmouth v. Galesburg Printing & Publishing Co., 144 Ill. App. 3d at 228.

While our Supreme Court has made no clear statement on this issue, I read Bowie v. Evanston Consolidated School District, 128 Ill. 2d 373, 538 N.E.2d 557, 131 Ill. Dec. 182 (1989), which involved a 7(b) claim, as rejection of a per se approach. The Court observed: "Moreover, the district recognizes that the requirement for public disclosure can, in this case, be balanced with the privacy interests of the students." Bowie, 128 Ill. 2d at 381.

We cannot easily dismiss the fact that section 7(1)(b) assumes that its exemptions will not be limited to those expressly contained in (i) through (v): "Information exempted under this subsection (b) shall include but is not limited to :" (Emphasis added.)

Does that mean items of unspecified information become per se exemptions if and when they are placed in a section 7(1)(b) pigeonhole? The majority recognizes the answer to that question must be no. To avoid an unacceptable situation, the majority establishes a balancing test for information that falls within 7(1)(b) but is not specifically listed. I see no legislative authority or principled reason for that inconsistent result.

Margolis was decided in 1989. Since then, effective January 1, 1994, the legislature added the subsection (v) proviso referred to in the majority opinion (P.A. 88-444). If the legislature intended to reverse Margolis it would have added the words per se to paragraph (b). That is, the last sentence of that first paragraph would read: "Information exempted per se under this subsection (b) shall include but is not limited to:" By its terms and location, the 1994 proviso applies only to traffic accident and rescue report information. I would keep it there.

I do not share the majority's view that the Margolis court made a mistake when it relied on Federal court interpretation of the Federal FOIA.

We have said the legislature "patterned the Illinois law after the Federal Freedom of Information Act (5 U.S.C. 552 [(1996)]) and case law construing the Federal statute should be used in Illinois to interpret our own FOIA." Cooper v. Department of the Lottery, 266 Ill. App. 3d at 1012.

Subsection (b) of the Federal act contains nine specific areas of exemption to the general rule of disclosure. Only one of them, subsection (b)(6), contains the phrase we explore in this opinion: "(6) personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Subsection (b)(6) of the Federal Act is the source of the phrase contained in section 7(1)(b) of the Illinois Act.

The United States Supreme Court has directly addressed the meaning of subsection (b)(6) of the Federal Act. It has held:

"...we find nothing in the wording of Exemption 6 or its legislative history to support the Agency's claim that Congress created a blanket exemption for personnel files. Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy, whether the documents are filed in 'personnel' or 'similar' files." Department of Air Force v. Rose, 425 U.S. 352, 371, 48 L. Ed. 2d 11, 27, 96 S. Ct. 1592, 1604 (1976).

And, again, in Department of State v. Ray, 502 U.S. 164, 175, 116 L. Ed. 2d 526, 541, 112 S. Ct. 541, 548 (1991):

"As we held in Rose, the text of the exemption requires the Court to balance 'the individual's right of privacy' against the basic policy of opening 'agency action to the light of public scrutiny.'" See also Department of State v. Washington Post Co., 456 U.S. 595, 72 L. Ed. 2d 358, 102 S. Ct. 1957 (1982).

I would look to the Supreme Court decisions for guidance.

Because I believe the request for disclosure made in this case requires a balancing of the public interest in disclosure against the personal privacy rights of the student recipients, and because I find nothing in Federal or State laws and regulations that would prohibit disclosure, I would send this case back to the trial court.

I believe the trial court erred when it concluded disclosure is required because the information "bears on the public duties of public employees and officials..." The School Code provision that authorizes each member of the General Assembly to nominate two scholarship recipients each year is permissive. See 105 ILCS 5/30-9 (West 1992). The trial court's expansive reading of that single phrase would destroy the delicate balance established by the legislature in section 7(1)(b).

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 the recipients' 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 of invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Margolis, 180 Ill. App. 3d at 1089-90, 129 Ill. Dec. 777, 536 N.E.2d 827.

In sum, I believe the balancing test approach taken in Margolis and in the Federal decisions best promotes 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.


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