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Chicago Tribune Company v. the Department of Financial and Professional Regulation

Court of Appeals of Illinois, Fourth District

March 6, 2014

CHICAGO TRIBUNE COMPANY, Plaintiff-Appellee,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; and DONALD W. SEASOCK, in His Official Capacity as Acting Director of the Division of Professional Regulation, Defendants-Appellants

Appeal from Circuit Court of Sangamon County. No. 11MR167. Honorable John Schmidt, Judge Presiding.

Reversed and remanded with directions.

SYLLABUS

In an action under the Freedom of Information Act against the Department of Financial and Professional Regulation, the trial court erred in granting summary judgment for plaintiff newspaper as to its request for the number of initial sexual misconduct claims received by the Department against multiple named physicians licensed by the Department, since granting plaintiff's request would require the Department to create a record the Department did not maintain and was not required to maintain by law; therefore, the trial court's decision was reversed and the cause was remanded with directions to enter summary judgment for defendants.

Thomas P. Schanzle-Haskins (argued), of Brown, Hay & Stephens, LLP, of Springfield, for appellants.

Donald M. Craven and Esther J. Seitz (argued), both of Donald M. Craven, P.C., of Springfield, for appellee.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Turner and Holder White concurred in the judgment and opinion.

OPINION

HARRIS, JUSTICE

Page 12

[¶1] On February 25, 2010, plaintiff, Chicago Tribune Company, requested defendants, the Department of Financial and Professional Regulation (Department) and Donald W. Seasok, in his official capacity as acting director of the division of professional regulation, to disclose the number of initial claims received by the Department against multiple named physicians licensed

Page 13

by the Department. The Department denied plaintiff's request. On April 18, 2011, plaintiff filed a declaratory judgment complaint in the circuit court of Sangamon County pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/11(a) (West 2010)). The parties filed cross-motions for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). On May 16, 2012, the circuit court entered a written order granting plaintiff's motion for summary judgment and denying the Department's motion for summary judgment.

[¶2] The Department appeals, arguing the circuit court erred by granting summary judgment in plaintiff's favor. We reverse and remand with directions.

[¶3] I. BACKGROUND

[¶4] On April 18, 2011, plaintiff filed a complaint for declaratory relief (735 ILCS 5/2-701 (West 2010)) in the circuit court of Sangamon County pursuant to section 11(a) of FOIA (5 ILCS 140/11(a) (West 2010)), alleging the Department improperly withheld " the number of claims or informal complaints filed against each of the identified physicians." (Emphasis in original.) The complaint and attached exhibits demonstrate the following.

[¶5] On February 25, 2010, plaintiff submitted two FOIA requests to the Department. In the first request, plaintiff sought the following: (1) " [t]he number of license holders overseen by the [D]epartment's 'medical prosecutions' unit who have ever been identified by the [Department] as sex offenders *** and not just during your most recent comparisons of [Illinois] professional license-holders and registered sex offenders" ; (2) " [t]he names of those medical professionals who were identified as sex offenders" ; (3) " [t]he total number of 'initial claims,' the total number of 'complaints,' and the total number of 'formal complaints' that have ever been issued against each of these sex offenders" ; (4) " [t]he dates of these claims, complaints, and formal complaints, how they were resolved, and when" ; (5) " [w]hat type of disciplinary action was taken against medical license holders for sex crimes convictions and when" ; and (6) " [t]he number of claims of sexual misconduct of any kind that have been made against medical license-holders that fall under the 'Medical prosecutions' unit since 2000."

[¶6] The second FOIA request named nine individual " license-holders" whose licenses had been suspended or revoked for various acts of sexual misconduct. Most held a physician and a surgeon license. Plaintiff sought one or more of the following regarding each individual: (1) a timeline of each case " going back to the initial 'claim' *** including what actions were taken and when" ; (2) a copy of the " formal complaint" ; (3) a copy of the order and notice of suspension or revocation, and any transcripts; (4) the " number of other claims, complaints and formal complaints" filed against each individual, when each claim, complaint, and formal complaint was made, and how and when each claim, complaint, and formal complaint was resolved; (5) " [w]hether the [D]epartment aware [ sic ] of any criminal charges ever faced by [each individual]" ; and (6) the dates on which the Department was notified of a criminal charge and/or criminal conviction specific to each named individual.

[¶7] On March 22, 2010, the Department sent plaintiff a response to plaintiff's second FOIA request. The Department provided plaintiff information and documents specific to " all the cases in which a Formal Complaint was filed against [each individual named in the second FOIA request]." However, the Department denied plaintiff's request for information regarding

Page 14

" additional claims and complaints made against these licensees," maintaining the information was exempt from disclosure under section 7 of FOIA. Further, the Department asserted " information regarding the Department's awareness of criminal charges against these licensees is maintained in the Department's investigative files," and investigative files are also exempt from disclosure under section 7 of FOIA.

[¶8] On April 6, 2010, the Department responded to plaintiff's first request " regarding statistics about sex offenders and sexual misconduct." The Department provided plaintiff a list of 17 individuals, their professional license numbers, case numbers associated with each individual, the date each case was opened, and the status of the individual's license. " Regarding the other, more general information" requested, the Department stated it did not maintain the information in an " accessible format."

[¶9] On April 21, 2010, plaintiff sought administrative review of the Department's denial with the Attorney General's Public Access Counselor. See 5 ILCS 140/9.5 (West 2010). Plaintiff stated it sought only (1) " the numbers of claims and complaints" against each individual identified in the Department's April 6, 2010, response to plaintiff's FOIA request, when the claims and complaints were made, and how and when they were resolved" ; and (2) " the numbers of claims and complaints" made against licensed medical professionals identified by the Department as sex ...


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