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Southern Illinoisan v. Department Of Public Health

March 28, 2001

THE SOUTHERN ILLINOISAN, A DIVISION OF LEE ENTERPRISES, INC., PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF PUBLIC HEALTH AND DR. JOHN LUMPKIN, DIRECTOR OF PUBLIC HEALTH, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Jackson County. No. 98-CH-5 Honorable Kimberly L. Dahlen and Honorable John Speroni, Judges, presiding.

Justices: Honorable Charles W. Chapman, P.J. Honorable Thomas M Welch, J. Honorable Richard P. Goldenhersh, J. Concur

The opinion of the court was delivered by: Presiding Justice Chapman

The Southern Illinoisan, a division of Lee Enterprises, Inc., issued a letter on October 28, 1997, to the Illinois Department of Public Health (the Department), asking for copies of the documents relating to the incidence of neuroblastoma from 1985 to the date of the letter, as they were available by the type of cancer, zip code, and date of diagnosis. The Department denied the Southern Illinoisan's request, citing the Medical Studies Act (735 ILCS 5/8-2001 et seq. (West 1998)) as the basis for the exemption from disclosure. In response, the Southern Illinoisan filed a complaint in the circuit court under the Freedom of Information Act (FOIA) (5 ILCS 140/1.1 et seq. (West 1998)), seeking an order requiring the release of the requested information. The Department raised affirmative defenses, citing the Medical Studies Act and the Illinois Health and Hazardous Substances Registry Act (Cancer Registry Act) (410 ILCS 525/1 et seq. (West 1998)).

The parties filed cross-motions for judgment on the pleadings, partial summary judgment, and/or summary judgment. On December 31, 1998, the circuit court issued an order granting the plaintiff's motion for judgment on the pleadings and partial summary judgment and denying the Department's cross-motion for summary judgment. The court ordered the defendants to produce that portion of the Illinois Cancer Registry (Cancer Registry) which lists the type of cancer, date of diagnosis, and zip code of each cancer patient from 1985 to the date of the order. The parties were further ordered not to use the resulting information to identify or to attempt to identify or contact cancer patients. In a subsequent order, the court allowed the plaintiff's petition for attorney fees.

The defendants appeal from the circuit court's orders and raise two issues on appeal: first, whether the order requiring the Department to release the information must be reversed and, second, whether the court erred in assessing the plaintiff's attorney fees against the Department. We reverse and remand for further proceedings.

The FOIA requires the full disclosure of public records unless the desired information is exempted under clearly delineated statutory language. Local 1274, Illinois Federation of Teachers, AFT, AFL-CIO v. Niles Township High School, District 219, 287 Ill. App. 3d 187, 190, 678 N.E.2d 9, 11 (1997); 5 ILCS 140/3(a) (West 1998). The public body has the burden of proving that the records in question fall within the exemption it has claimed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408, 680 N.E.2d 374, 377 (1997). In this case the Department claims that the statutory exemption found in section 7(1)(b)(i) of the FOIA precludes the dissemination of the information requested here.

"(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 1998).

Attached to the Department's memorandum that was submitted to the trial court was the affidavit of Mark J. Schmidt, assistant director of the Department. Schmidt noted that neuroblastoma is a rare childhood cancer and that instances of neuroblastoma are reported to the Department and contained in the Cancer Registry. He stated that the Cancer Registry "contains 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 from public bodies, including but not limited to the Illinois Department of Corrections."

The Department argues that the consideration of Schmidt's affidavit requires a conclusion that the section 7(1)(b)(i) exemption precludes the dissemination of the requested information. Although Schmidt stated that the requested information fell within the language of the statute, it is evident that Schmidt's statement is merely a conclusion without any supporting facts. We conclude that section 7(1)(b)(i) of the FOIA does not expressly exempt the particular information requested here.

The Southern Illinoisan's request was for documents relating to the incidence of neuroblastoma. It is believed that this information is available by the type of cancer, date of diagnosis, and zip code. Section 7(1)(b)(i) does not expressly state that the disclosure of this information would constitute a clearly unwarranted invasion of personal privacy. If information is not expressly exempted under section 7(1)(b)(i), it is appropriate to consider various factors in determining whether the information is exempt. In determining if information falls within the personal-information exemption of the FOIA, the court balances the plaintiff's interest in disclosure, the public's interest in disclosure, the degree of invasion of personal privacy, and the availability of alternative means of obtaining the requested information. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 409, 680 N.E.2d 374, 378 (1997).

The plaintiff's interest here is clear. As attested by Tom Woolf, metro editor of the Southern Illinoisan, Lee Enterprises, Inc. is the publisher of the most-circulated daily newspaper in the region, and it is uniquely qualified to receive and report on the information requested. As Woolf stated, "If there are clusters of ...


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