Lieber v. Board of Trustees of Southern Illinois University

LIEBER v. BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, No. 81220

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 81220--Agenda 12--January 1997.
STAN LIEBER, Appellee, v. THE BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY, Appellant.
Opinion filed May 1, 1997.

JUSTICE HARRISON delivered the opinion of the court:
The issue in this case is whether the Freedom of Information
Act (Act) (5 ILCS 140/1 et seq. (West 1994)) requires Southern
Illinois University (SIU) to provide the owner of an apartment
building approved by the University for freshman students with a
list containing the names and addresses of individuals who had
contacted the University about freshman housing. The circuit court
held that SIU did not have to give the building's owner access to
this information and granted summary judgment in favor of the
University. The appellate court reversed and remanded with
directions to enter summary judgment against SIU and in favor of
the building's owner. 279 Ill. App. 3d 553. We granted SIU's
petition for leave to appeal (155 Ill. 2d R. 315) and now affirm
the appellate court's judgment.
Summary judgment is proper where
"the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." 735 ILCS 5/2--1005(c) (West 1994).
In this case, the record discloses the following facts. SIU
requires unmarried freshmen under the age of 21 who do not live
with their parents to reside either in a University dormitory on
campus or in privately owned off-campus housing approved by the
University. Stan Lieber, the plaintiff in this case, owns a
University-approved off-campus housing facility known as the
Stevenson Arms.
In the past the University supplied Lieber and other owners of
approved off-campus housing with information about incoming
freshmen so that the owners could contact them directly with
information about their respective housing units. They also
routinely supplied mailing labels containing names and addresses of
incoming students to the Southern Illinoisan, a Carbondale
newspaper, and to various religious organizations. In addition, the
University honored requests from various state representatives for
the names and addresses of SIU students who resided in their
legislative districts, and it provided numerous other educational
institutions with information about students who had transferred
from those institutions to SIU, including social security numbers,
academic major, and number of hours of study completed.
In the spring of 1992, SIU sent a letter to the manager of the
Stevenson Arms noting that enrollment at the University was
declining and that occupancy rates in student housing had dropped,
resulting in more competition between the various housing
providers. The University cautioned the Stevenson Arms about the
need to clear its advertisements and promotions with the
University. It also placed the facility on notice that it would no
longer include brochures on approved off-campus housing for
freshmen in the materials mailed out by the University's Central
Housing Office. According to the University, owners of approved
off-campus housing would be required to rely on their own resources
for advertising and publicity.
Subsequent to this correspondence, the University became
uncooperative in releasing the names and addresses of incoming
students to the Stevenson Arms. As a result, Lieber, the owner,
filed formal requests for the information in accordance with the
Freedom of Information Act. The requests were filed in October and
November of 1992. The University granted Lieber's request with
respect to freshmen enrolled in the fall of 1992. In addition,
according to answers to interrogatories given on behalf of SIU by
its vice president of student affairs, the University provided the
manager of the Stevenson Arms with lists of freshmen who had been
accepted for the following academic year.
In January of 1993, SIU officially discontinued the practice
of providing the names and addresses of accepted students to owners
of approved off-campus housing, citing "the need to develop a
consistent approach on providing information for all owners and
assure compliance with the law and University policy on release of
student information." Instead of releasing information about the
prospective students to the private owners, SIU advised that it
would send information supplied by the private owners to the
incoming students, and to any others who requested information
about freshman housing, along with information about the on-campus
housing opportunities provided by the University itself.
Following the change in policy, Leiber was given at least one
additional list of freshmen admitted for the 1993-94 academic year.
After the University's vice president of student affairs discovered
this, he directed that the new policy be implemented and that
address labels not be given to any landlords of approved off-campus
housing for freshmen. Employees of the Stevenson Arms subsequently
provided the University with materials on their facility, but the
University returned a substantial amount of the materials without
including them in its mailings, contrary to the representations it
had made.
Leiber responded by filing another Freedom of Information Act
request to obtain address list information for individuals who had
inquired about freshman housing for the coming academic year,
including inquiries from accepted freshmen, so he could do the
mailings himself, as he had before. By letter dated April 15, 1993,
the president of SIU denied Lieber's request, claiming (1) that the
Freedom of Information Act does not require release of information
to be used for furthering a commercial enterprise and (2) that
address list information for accepted freshmen is exempt from
disclosure because the release of student information is restricted
by federal law. Although the letter did not cite the pertinent
statutory provision, the president's reference to federal law was
clearly meant to invoke section 7(1)(a) of the Act (5 ILCS
140/7(1)(a) (West 1994)), which exempts from inspection and copying
"[i]nformation specifically prohibited from disclosure by federal
or State law."
Lieber sought judicial review of the president's decision by
filing suit for injunctive relief in the circuit court of Jackson
County pursuant to section 11 of the Act (5 ILCS 140/11 (West
1994)). In the circuit court, SIU abandoned its claim that federal
law barred disclosure of the names and addresses of admitted
freshmen who had inquired about housing. Instead, it challenged
Leiber's lawsuit on the grounds that such information is exempt
from disclosure under a separate provision, section 7(1)(b) (5 ILCS
140/7(1)(b) (West 1994)), because it constitutes personal
information maintained with respect to students or other
individuals receiving educational services from a public body. SIU
also contended that Lieber is not entitled to relief under the
statute because he is seeking the information for commercial
purposes, namely, to obtain tenants for his building, and section
1 of the law specifically states that it is not intended to be used
"for the purpose of furthering a commercial enterprise." 5 ILCS
140/1 (West 1994).
Following various proceedings not relevant here, the circuit
court granted summary judgment in favor of SIU. It did not address
the applicability of section 7(1)(b) (5 ILCS 140/7(1)(b) (West
1994)), but agreed with SIU's contention that Leiber is not
entitled to relief under the Act because he is seeking the
requested information for purely commercial purposes.
As noted at the outset of this opinion, the appellate court
reversed and remanded with directions that summary judgment be
entered in favor of Lieber. 279 Ill. App. 3d 553. The court held
that Lieber's purpose in requesting the information did not
automatically defeat his claim and that the trial court erred in
requiring Lieber to explain his purpose in requesting the
information and in denying his request on the basis that the
information would further his commercial enterprise. The appellate
court further held that the University had failed to meet its
burden of showing that the information requested by Lieber was
exempt under section 7 of the Act.
This court granted the University's petition for leave to
appeal (155 Ill. 2d R. 315), and the matter is now before us for
review. In conducting our analysis, we are guided by the principle
that under the Freedom of Information Act, public records are
presumed to be open and accessible. The Act does create exceptions
to disclosure, but those exceptions are to be read narrowly. Bowie
v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989).
When a public body receives a proper request for information,
it must comply with that request unless one of the narrow statutory
exemptions applies. American Federation of State, County &
Municipal Employees v. County of Cook, 136 Ill. 2d 334, 341 (1990).
The exemptions are set forth in section 7 of the Act (5 ILCS 140/7
(West 1994)). If the public body seeks to invoke one of the
exemptions in section 7 as grounds for refusing disclosure, it is
required to give written notice specifying the particular exemption
claimed to authorize the denial. 5 ILCS 140/9(b) (West 1994);
American Federation of State, County & Municipal Employees, 136 Ill. 2d at 341. If the requesting party subsequently challenges the
denial in circuit court (5 ILCS 140/11 (West 1994)), the public
body has the burden of proving that the records in question fall
within the exemption it has claimed. See Carbondale Convention
Center, Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 476-77
(1993).
Most of the exemptions set forth in section 7 of the Act (5
ILCS 140/7 (West 1994)) are specific, identifying the particular
public records that are not subject to disclosure. Where the public
body claims that a requested document falls within one of these
specifically enumerated categories and is able to prove that claim,
no further inquiry by the court is necessary. The documents "shall
be exempt from inspection and copying." 5 ILCS 140/7(1) (West
1994). This per se rule applies to the specific exemptions set
forth in the subsections of section 7(1)(b) of the Act (5 ILCS
140/7(1)(b) (West 1994)), which pertains to "[i]nformation that, if
disclosed, would constitute a clearly unwarranted invasion of
personal privacy," just as it does to the other exemptions in
section 7. See Healey v. Teachers Retirement System, 200 Ill. App.
3d 240, 243 (1990).
The appellate court here took a different view, holding that
even if information falls within a specific exemption, the court
must still make an independent determination as to whether
disclosure would amount to "a clearly unwarranted invasion of
personal privacy," taking into account (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 requested information. 279 Ill.
App. 3d at 561. Although this approach is not unprecedented (see,
e.g., Margolis v. Director of the Department of Revenue, 180 Ill.
App. 3d 1084, 1089 (1989); City of Monmouth v. Galesburg Printing
& Publishing Co., 144 Ill. App. 3d 224, 226 (1986)), we agree with
the court in Healey v. Teachers Retirement System, 200 Ill. App. 3d
at 244-45, that it cannot be squared with the clear and unambiguous
language of the statute.
This is not to say that consideration of the various factors
identified by the appellate court is never appropriate in
determining whether information is exempt under section 7(1)(b) of
the Act. That section does not purport to be an exclusive list of
information that, if disclosed, would constitute a clearly
unwarranted invasion of personal privacy. To the contrary, the
section expressly provides that it is not limited to the items
enumerated. 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.
In the matter before us, the University claimed that the
information requested by Lieber in this case did fall within one of
section 7(1)(b)'s specific exemptions. The appellate court was
therefore wrong to make an individualized assessment of whether
disclosure of the information would invade anyone's personal
privacy. If the information consisted of personal information
maintained with respect to students or other individuals receiving
educational services and was therefore covered by the express terms
of section 7(1)(b)(i), it would, by definition, constitute
"[i]nformation that, if disclosed, would constitute a clearly
unwarranted invasion of personal privacy" (5 ILCS 140/7(1)(b) (West
1994)) and be automatically exempt from disclosure.
Despite the appellate court's analytical error, we agree with
its conclusion that section 7(1)(b)(i) does not apply to the
information requested by Lieber here. As previously indicated, that
section applies to personal information maintained with respect to
students or other individuals receiving educational services from
a public body. Lieber, however, was not seeking such information.
Lieber's request was limited to information about housing
inquiries from or on behalf of people who had been accepted as
freshman, but who had not yet enrolled. The University has not
cited, and we have not found, any precedent for construing the term
"student" to include such individuals. In normal discourse, a
person is usually not regarded as being a student at a school
unless and until he has attended class there. See, e.g., Webster's
Third New International Dictionary 2268 (1986) (student, 1a: "one
enrolled in a class or course in a school, college, or
university"). Other laws governing access to school records have
incorporated this conventional interpretation. For example, section
2(a) of the Illinois School Student Records Act (105 ILCS 10/2(a)
(West 1994)) defines "student" as "any person enrolled or
previously enrolled in a school." Similarly, the Federal Family
Educational Rights and Privacy Act states that the term "student"
"does not include a person who has not been in attendance" at an
educational agency or institution. 20 U.S.C. 1232g(a)(6) (1994).
Although section 7(1)(b)(i)'s exemption applies to "other
individuals receiving *** educational *** services," as well as to
"students" (5 ILCS 140/7(1)(b)(i) (West 1994)), it still does not
fit Lieber's request. Assuming, for the sake of argument, that
freshmen student housing constitutes an "educational service"
within the meaning of the law, the University cannot escape the
fact that none of the subjects of Lieber's request had actually
availed themselves of those services, directly or indirectly. By
definition, they could not have. Only freshmen can live in freshmen
housing. Lieber's request, however, pertained exclusively to
inquiries by or on behalf of people who would not be freshmen until
the following academic year, people who might decide against
attending SIU and never enroll as freshmen there, and who, if they
did enroll, might opt to live in approved off-campus housing and
never utilize the University's housing services at all. To adopt
the University's position under these circumstances would require
us to hold, in effect, that asking about a service is the same as
receiving it. In law, as in life, that is not the case.
There is another, equally fundamental, impediment to the
University's reliance on section 7(1)(b)(i). The University claims
that the names and addresses of accepted freshmen constitute
"personal information" within the meaning of the statute. Although
names and addresses are unquestionably personal in the sense that
they are specific to particular persons, the statutory reference to
"personal information" means more than simply that. This is
apparent when one considers the provision as a whole. For example,
sections 7(1)(b)(ii) and 7(1)(b)(iii), which follow the provision
at issue here, employ the same term. They exempt from disclosure
"personal information" about elected officials and licensed
professionals. If the University's construction were correct and
"personal information" embraced even basic identification, the
public would have no right to learn the names of officials they had
placed in office, and, under this statute, a person could not
confirm that the doctor who was about to perform surgery on him was
actually licensed to practice medicine. We do not believe the
General Assembly intended such absurd results.
Where the legislature intended to exempt a person's identity
from disclosure, it did so explicitly. For example, the exemption
in section 7(1)(b)(v) refers to "information revealing the
identity" of certain persons providing information to
administrative, investigative, law enforcement or penal agencies;
section 7(1)(c)(iv) speaks of the "identity of a confidential
source"; and section 7(1)(u) exempts from disclosure information
regarding a university's adjudication of grievance or disciplinary
cases to the extent that disclosure would "reveal the identity" of
the person involved. 5 ILCS 140/7(1)(b)(v), 7(1)(c)(iv), 7(1)(u)
(West 1994). 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."
Even if one disagrees with this proposition, the University's
claimed exemption must fail. Although the University has
strenuously invoked the notion that the names and addresses of
accepted students are private and must be protected from
disclosure, materials submitted to the trial court indicate that
the University routinely makes available to other groups, including
the local newspaper and religious organizations, lists containing
the names and addresses of individuals who have been accepted by
the University but who have not yet enrolled. In addressing similar
situations under the federal Freedom of Information Act, the
federal courts have held that voluntary disclosure in one situation
can preclude later claims that records are exempt from release to
someone else. Cooper v. United States Department of the Navy, 594 F.2d 484, 485-86 (5th Cir. 1979). As the Eighth Circuit Court of
Appeals explained, selective disclosure by the government
"is offensive to the purposes underlying the FOIA and
intolerable as a matter of policy. Preferential treatment
of persons or interest groups fosters precisely the
distrust of government the FOIA was intended to obviate."
State of North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978).
We agree with these principles and believe they should be
applied here to bar the University from asserting an exemption
under section 7(1)(b)(i) of Illinois' Freedom of Information Act.
If the address lists can be disclosed to campus ministries and the
local newspaper, the University has no valid basis for withholding
them from Sam Lieber.
The only reason the University has treated Lieber differently
is that he is in direct competition with the University for what is
apparently a dwindling freshmen housing market. And so we arrive at
the other justification given by the University for denying
disclosure and the reason given by the circuit court for granting
summary judgment in the University's favor, namely, that Lieber is
seeking the information for commercial purposes. The University and
the circuit court based their position on section 1 of the FOIA,
which states that it is not intended to be used "for the purpose of
furthering a commercial enterprise." 5 ILCS 140/1 (West 1994). We
note, however, that section 1 is simply a declaration of policy or
preamble. As such, it is not part of the Act itself (Triple A
Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989)) and has no
substantive legal force (see Monarch Gas Co. v. Illinois Commerce
Comm'n, 261 Ill. App. 3d 94, 99 (1994)).
For the foregoing reasons, the information requested by Lieber
was, as a matter of law, not exempt from disclosure. Accordingly,
the appellate court was correct in reversing summary judgment in
favor of the University and remanding with directions that summary
judgment be entered in favor of Lieber. The appellate court's
judgment is therefore affirmed.

Affirmed.