Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
Defendant Board of Education of the City of Chicago (Board) appeals from an order of the circuit court denying the Board's motion to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1998)), an injunction action filed by plaintiff Chicago Tribune Company (Tribune) seeking certain student information under the Freedom of Information Act (Act) (5 ILCS 140/1 et seq. (West 1998)) and granting the Tribune's motion for summary judgment. On appeal, the Board contends that the requested data is per se exempt pursuant to section 7(1)(b)(i) of the Act (5 ILCS 140/7(1)(b)(i) (West 1998)), is exempt pursuant to section 7(1)(a) of the Act (5 ILCS 140/7(1)(a) (West 1998)) because the federal Education Rights and Privacy Act (federal act) (20 U.S.C. §1232g (2002)) and the Illinois School Student Records Act (Student Records Act) (105 ILCS 10/6 (West 1998)) prohibit disclosure of the information, and the request is burdensome. On cross-appeal, the Tribune contends that the trial court erred in denying its request for attorney fees pursuant to the Act. For the reasons set forth below, we reverse.
On December 20, 1999, David Jackson, a Tribune reporter, submitted a request to the Board, pursuant to the Act, for the following information with respect to each student, approximately 1.1 million, current and noncurrent: school; room number; active or inactive status; leave code; medical status; guardian relationship code; special education status or code; cumulative absence for the semester; consecutive absences for the semester; race; transportation status and reason for transportation ("OK, IK, special education, etc."); free or reduced lunch status; class rank; grade point average; zone; bilingual education status; date of birth; and standardized test scores. With respect to inactive students, who constituted approximately 678,000 individuals, Jackson requested information with respect to the date of departure, where the student went, and the reason for the departure (drop out, graduated, incarcerated, dead, home schooled, lost, etc.). Jackson also made a request for the Board's "membership database," seeking information as to the school, grade, number of students who belonged, number of students who entered, number of students who left, the total number of days absent, and the total number of days present. On March 17, 2000, the Board denied Jackson's request, stating that it was burdensome, there was a high risk of disclosure of personal information and, thus, the information was exempt pursuant to section 7(1)(b)(i) of the Act, and the federal act and the Student Records Act prohibited disclosure of the information. On August 24, the Tribune appealed the Board's decision denying its request for the information. On September 21, the Board denied the Tribune's appeal request.
On January 17, 2001, the Tribune filed a complaint for injunctive and other relief under the Act, seeking an order requiring the Board to disclose the information. On February 14, the Board filed a motion to dismiss the complaint pursuant to section 2-619 of the Code, contending that disclosure was prohibited by state and federal statutes and that the request was overly burdensome and disruptive to the Board's proper and normal functioning. On May 10, the Tribune filed a motion for summary judgment, contending that the "masked" records it sought, without identifying information, were disclosable, and that under Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 538 N.E.2d 557 (1989), disclosure was required. The Tribune also sought attorney fees pursuant to section 11 of the Act. In its response to the Board's motion to dismiss, filed the same day, the Tribune argued that neither the Act, nor other state or federal statutes, prevented disclosure of the information it sought. In addition, the Tribune maintained that the request was not burdensome for the Board. On July 5, the Board replied to the Tribune's response to its motion to dismiss and responded to the Tribune's motion for summary judgment. On August 30, the Tribune filed a reply to the Board's response to its motion for summary judgment, arguing that this case involved a matter of profound public importance, that the Board could not meet its burden of showing that students could easily be traceable from the requested data, and that the request was not unduly burdensome.
On September 6, the trial court heard arguments on both the Board's and Tribune's motions. On September 26, the court filed its memorandum opinion and order. With respect to the Tribune's request, the court, citing Bowie, stated that "[t]his information [information about private citizens], if masked to hide the identity of the student, is subject to FOIA disclosure as they are no longer individual records." With respect to the federal act and the Student Records Act, the court first noted that if the Board's argument that the information sought was exempt under either of the acts, then a per se exemption applied and the court would not conduct any balancing of interests. The court concluded, however, that neither act prohibited disclosure because the data requested would not identify students or render their identities easily traceable. With respect to the Board's argument that the breadth of the request would allow the Tribune to easily identify students in some schools, the court stated that "[t]his may be true in certain isolated situations but not in the main," and, it was the court's opinion, that the "mere possibility of identification is not sufficient proof of an invasion of privacy." The court then noted that Jackson had agreed to execute an affidavit promising to keep the information confidential, which the court believed would protect the students' privacy interests. With respect to the Board's argument that disclosure would constitute an "unwarranted invasion of privacy," citing section 7(1)(a)(2), *fn1 the court found this exemption not applicable for the reasons set forth with respect to the federal act and the Student Records Act. *fn2 With respect to the Board's contention that the request was burdensome because there was no current computer program to extract the data, the court found that the Board's expert's opinion was "less than helpful" because he based it only on an educated guess. The court then stated that the Board provided no authority and, it could not find any, indicating an amount or other factors to determine what amount of programing would be burdensome. Based on the above findings, the trial court denied the Board's motion to dismiss and granted the Tribune's motion for summary judgment. The court also denied the Tribune's request for attorney fees, finding that because the Tribune's request was so broad, the Board rightfully had concerns with respect to invasion of privacy and declined to award fees.
On October 3, the Board filed a motion to stay the trial court's September 26 order, which the trial court denied on October 10. This appeal and cross-appeal followed. On November 9, we granted the Board's motion to stay the trial court's order of September 26. *fn3
We review the trial court's decision with respect to a section 2-619 motion de novo (Board of Managers of Village Center Condominium Ass'n, Inc. v. Wilmette Partners, 198 Ill. 2d 132, 137, 760 N.E.2d 976 (2001)), as well as its decision granting summary judgment (Chicago Journeymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d 192, 195, 761 N.E.2d 1227 (2001)).
The Act "implements the public policy of this state to provide its citizens with full access to information regarding the affairs of government. [Citations.] *** Upon receiving a proper request for information, a public body must comply with that request unless one of the exemptions apply under the Act." Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 195. Section 7 of the Act sets forth various exemptions, providing, in pertinent part:
"(1) The following shall be exempt from inspection and copying:
(a) Information specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.
(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 ...