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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.

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. ...


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