Gibson v. State Board of Education

                                                             First Division
                                                              June 30, 1997













No. 1-96-2026

RAY GIBSON, and THE CHICAGO     )       Appeal from the
TRIBUNE COMPANY,                )       Circuit Court
                                )       of Cook County
     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,                       )       Honorable
                                )       JOHN K. MADDEN,
     Defendants-Appellants.     )       Judge Presiding.


                     Modified Upon Denial of Rehearing
     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 "[e]ach 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). 
Defendants claim that the information plaintiffs seek 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 (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 (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 (5th
Dist. 1996); Margolis v. Director of the Department of Revenue,
180 Ill. App. 3d 1084, 536 N.E.2d 827 (1st Dist. 1989); City of
Monmouth v. Galesburg Printing & Publishing Co., 144 Ill. App. 3d
224, 494 N.E.2d 896 (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.
     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 court interpretations of 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" (emphasis
added) the information contained in subsections (i) through (v).  
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 step
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 "[t]he 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 that would
constitute a clearly unwarranted invasion of personal privacy if
it were disclosed.  Subsection (b) goes on to state that
"[i]nformation 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 "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.
     The Illinois Supreme Court recently reached the same
conclusion in Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill 2d 401 (1997).  In Lieber, the owner of an
apartment building, Stan Lieber, filed a FOIA request with the
Board of Trustees of Southern Illinois University (the Board)
seeking the names and addresses of admitted freshmen who had
contacted the University about off-campus housing.  The Board
refused, invoking the privacy exemption of FOIA section
7(1)(b)(1).  The trial court granted summary judgment in favor of
the Board.  The Appellate Court, Fifth District, reversed,
applying the Margolis balancing test.  
     The supreme court rejected the balancing test and instead
adopted the per se approach we have described above.  The court
held that, under section 7(1)(b), the information categorized in
subsections (i) through (v) is exempt per se from the mandate of
FOIA.  Lieber, 176 Ill. 2d  at 408.  The court specifically
rejected the balancing approach when considering whether
information contained in subsections (i) through (v) is exempt
from disclosure.  Lieber, 176 Ill. 2d  at 409.  However, the court
noted that section 7(1)(b) does not purport to provide "an
exclusive list of information that, if disclosed, would
constitute a clearly unwarranted invasion of personal privacy." 
Lieber, 176 Ill. 2d  at 409.  Where a request for information not
contained in these subsections is rejected as constituting a
clearly unwarranted invasion of personal privacy, the balancing
test is appropriate.  Lieber, 176 Ill. 2d  at 409.
     The per se approach 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 (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 further 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, the
federal FOIA decisions are only instructive in applying the
general exemption of section 7(1)(b), but not the specific
exemptions.
     For these reasons, we reject the balancing approach adopted
by the Margolis court in favor of the per se approach to the
section 7(1)(b) exemptions that was enunciated in Lieber. 
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).  This is the only result
that comports with the plain language and intent of the statute.
     Plaintiffs also contend that the information they seek is
not exempt from disclosure because it does not constitute
"personal information" as contemplated in section 7(1)(b). 
Plaintiffs rely principally on the Lieber case.  Despite its
adoption of the per se approach to the section 7(1)(b)
exemptions, the supreme court in Lieber affirmed the appellate
court because the information requested by Lieber was not
personal information maintained with respect to students. 
Lieber, 176 Ill. 2d  at 410.  The individuals whose names Lieber
was seeking were not students because they were not yet enrolled
at the University, and they had not yet attended any classes
there.  Lieber, 176 Ill. 2d  at 410.  More importantly, the court
also held that the information requested was not "personal
information" because it was not "confidential" or "private." 
Lieber, 176 Ill. 2d  at 412.
     Plaintiffs contend that, as in Lieber, they are merely
requesting names and addresses, which the Lieber court expressly
held was not personal information.  However, plaintiffs in this
case are not simply seeking names and addresses of all admitted
freshmen or of all students.  We agree that such information
would not constitute personal information for purposes of section
7(1)(b).  Here, plaintiffs are seeking the names and addresses
only of those students receiving legislative scholarships. 
Clearly, disclosure of these names would reveal more about those
students than simply that they were admitted or enrolled at the
University.  By the very nature of the category of names and
addresses sought, disclosure would reveal that these people are
"receiving *** educational [and] *** financial *** care or
services directly or indirectly from *** public bodies."  5 ILCS
140/7(1)(b)(i) (West 1994).  We beleive the reciept of financial
aid or scholarship information is intensely "confidential" and
"private."  See Lieber, 176 Ill. 2d  at 412.  Therefore, the
information requested by plaintiffs is personal information under
section 7 (1)(b)(1).
     Since the names and addresses requested by plaintiffs are
personal information by virtue of their category, and the General
Assembly scholarship recipients are receiving educational and
financial services from their respective legislators, 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,[fn1] J., concurs.
     WOLFSON, J., dissents.
     JUSTICE WOLFSON, concurring in part, dissenting in part:
     When a request for information fits explicitly within the
terms of section 7(1)(b), that information is per se exempt from
disclosure under the Illinois Freedom of Information Act.
Lieber v. Board of Trustees of Southern Illinois University, No.
81220, (May 1, 1997), compels that conclusion. 
     The question that remains in this case is whether the names
of students receiving the General Assembly scholarships are
"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" as provided in section 7(1)(b)(i).  I do not
believe they are.  For that reason, while I concur in the
majority's reversal of the trial court's judgment, I dissent from
the majority's instruction to enter summary judgment in favor of
the defendants.   
     In Lieber, the Supreme Court examined section 7(b)(1)(i) 
and the University's claim that the names and addresses of
accepted freshmen constituted "personal information" within the
terms of the statute.  The Court concluded that statutory
references to "personal information" mean something more than
names and addresses.  That is, "When the legislature intended to
exempt a person's identity from disclosure, it did so
explicitly."  Lieber, slip op. at 8. 
     For example, said the Court, sections 7(1)(b)(v),           
                              16

7(1)(c)(iv), and 7(1)(u) use the word "identity" when presenting
clear legislative mandates that names not be disclosed.  On the
other hand, sections 7(1)(b)(ii) and 7(1)(b)(iii) use the phrase
"personal information" but cannot be read to mean the names of
elected officials and licensed professionals are safe from
disclosure.  The General Assembly, said the Court, could not have
"intended such absurd results."  Lieber, slip op. at 8.
   The Court concluded:
          "Accordingly, taken in context and considering the
     statute as a whole, the phrase 'personal information'
     must have been  intended by the legislature to be
     understood not in the sense  of basic identification, but
     in the sense of information that is 'confidential' or
     'private.' The very purpose of section 7(1)(b), after
     all, is to protect 'personal privacy.'"  Lieber, slip  op.
     at 8-9.
     The fact that the University was relying on the phrase
"personal information" to refuse disclosure of names and
addresses was held by the Supreme Court to be a second, but
"equally fundamental, impediment" to the University's reliance 
on section 7(1)(b)(i).  Lieber, slip op. at 8.  I believe the
same reasoning defeats the Board's claim of per se exemption in
this case.
     I understand an argument can be made that names of 

                              17

scholarship recipients somehow are more personal and private than
the names of individuals who contacted Southern Illinois
University about freshman housing.  But not that much more
personal and private.  Not "intensely confidential and private,"
as the majority suggests.  Not enough to warrant a per se
exemption.
     I believe this request for information falls within the
ambit of Margolis v. Director of the Department of Revenue, 180
Ill. App. 3d 1084, 536 N.E.2d 827 (1989).  That is, as the
Supreme Court said in Lieber:
          "Where a public body asserts an exemption for
     information that is not specifically included on the
     list and therefore not exempt per se, the court must
     evaluate the particular information on a case-by-case
     basis."  Lieber, slip op. at 6.
     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 a recipient's 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

                              18

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.
     In sum, because section 7(1)(b)(i) does not specifically
proscribe revealing the "identity" of scholarship recipients, I
believe applying the Margolis balancing test would best promote
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.  For that
reason, I would reverse the trial court's judgment and remand for
a Margolis hearing.
     [fn1]Justice Braden concurred in the disposition of this
appeal prior to his reassignment to the circuit court of Cook
County and was reassigned to the Illinois Appellate Court, First
District, first division, by the Illinois Supreme Court on May
21, 1997 pursuant to Supreme Court Order M.R. 1062, for the sole
and limited purpose of participating in the consideration of the
petition for rehearing in this case.