Mancini Law Group, P.C. v. Schaumburg Police Department

2021 IL 126675

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 126675)

MANCINI LAW GROUP, P.C., Appellant, v. THE SCHAUMBURG

POLICE DEPARTMENT, Appellee.

Opinion filed December 16, 2021.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Theis, Neville, Michael J. Burke, and

Overstreet concurred in the judgment and opinion.

Justice Carter specially concurred, with opinion.

OPINION

¶1 Mancini Law Group filed a request, pursuant to the Freedom of Information

Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)), seeking copies of traffic accident

reports from the Schaumburg Police Department (Department). The Department’s

response indicated that certain information was redacted from the traffic accident

reports. Relevant here, the parties filed cross-motions for summary judgment. See

735 ILCS 5/2-1005 (West 2016). The circuit court of Cook County held that the

Department had met its burden in demonstrating that the information at issue was

exempt. The circuit court also rejected Mancini Law Group’s argument that the

Department was precluded from asserting that the information was exempt because

it had voluntarily provided unredacted traffic accident reports to LexisNexis, a

third-party vendor approved by the State of Illinois for purposes of assisting the

Department in satisfying its mandatory reporting obligations under the Illinois

Vehicle Code. See 625 ILCS 5/11-408 (West 2016). Mancini Law Group appealed

only the issue of whether the Department was barred from arguing that the

information was exempt based on its arrangement with LexisNexis. A majority of

the appellate court panel affirmed. See 2020 IL App (1st) 191131-U, ¶ 25. We

allowed Mancini Law Group’s petition for leave to appeal. See Ill. S. Ct. R. 315

(eff. Oct. 1, 2020).

¶2 BACKGROUND

¶3 On July 13, 2017, Mancini Law Group sent a commercial FOIA request 1 to the

Department seeking disclosure of all traffic accident reports for all motor vehicle

accidents having occurred within the Village of Schaumburg between June 30,

2017, and July 13, 2017. In its request, Mancini Law Group asked that the

Department redact certain personal information, including driver’s license

numbers, license plates, and dates of birth of the parties involved. On August 7,

2017, the Department informed Mancini Law Group that the request was granted

in part and denied in part. The Department provided redacted accident reports,

asserting that section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2016)) exempted

private information contained in the reports, specifically including driver’s license

numbers, personal telephone numbers, home addresses, and personal license plates.

Additionally, the Department relied upon section 7(1)(c) of FOIA (id. § 7(1)(c)) in

1

Section 3.1 of FOIA governs “Requests for commercial purposes.” 5 ILCS 140/3.1 (West

2016). Section 2(c-10) of FOIA defined “commercial purpose” in part as “the use of any part of a

public record or records, or information derived from public records, in any form for sale, resale, or

solicitation or advertisement for sales or services.” Id. § 2(c-10).

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redacting dates of birth and policy account numbers. The names of those involved

in the accidents—including drivers and witnesses—were left unredacted.

¶4 Mancini Law Group filed suit 2 on October 17, 2017, alleging that the

Department had willfully and intentionally violated FOIA by refusing to produce

unredacted accident reports. See id. § 11(a) (“Any person denied access to inspect

or copy any public record by a public body may file suit for injunctive or

declaratory relief.”). On October 27, 2017, the Department filed a motion to dismiss

pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West

2016)), which was denied. Thereafter, Mancini Law Group and the Department

filed cross-motions for summary judgment, which were fully briefed. 3

¶5 In its order, the circuit court noted that Mancini Law Group raised the issue of

voluntary disclosure for the first time in its reply to its motion for summary

judgment. Specifically, Mancini Law Group cited Lieber v. Board of Trustees of

Southern Illinois University, 176 Ill. 2d 401, 413 (1997), for the proposition that,

because the Department had provided unredacted copies of traffic accident reports

to LexisNexis, it could not refuse to provide those records to Mancini Law Group.

Mancini Law Group attached an affidavit of one of its attorneys, Michael Camarata,

to show that he was able to purchase unredacted traffic accident reports from

LexisNexis on numerous occasions. Attached to the affidavit was an e-mail-

generated receipt from LexisNexis and a copy of an unredacted traffic accident

report.

¶6 In its response, the Department argued first that Lieber is no longer good law in

light of the 2010 amendments to FOIA. Furthermore, the Department contended

that Lieber considered a different exemption under FOIA than that at issue here.

Finally, the Department alternatively asserted that Lieber is distinguishable.

Specifically, the Department explained in part:

2

See 5 ILCS 140/9.5(b) (West 2016) (“A person whose request to inspect or copy a public

record is made for a commercial purpose as defined in subsection (c-10) of Section 2 of this Act

may not file a request for review with the Public Access Counselor.”).

3

Mancini Law Group titled the motion for summary judgment as a motion for “partial”

summary judgment. As noted by the circuit court, the motion did not indicate what portion of the

complaint it sought to partially move on. The court indicated that it construed the motion as

excluding Mancini Law Group’s request for a declaration that the Department willfully and

intentionally violated FOIA. This interpretation of Mancini’s motion has not been challenged.

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“Here, the facts establish that Lexis-Nexis only receives as a verified third-party

vendor for the State of Illinois in order to allow the Village to comply with the

mandated reporting under the Illinois Vehicle Code. [Citation.] The crash

reports are uploaded into approved software that is managed through both a

contract between the Village and Lexis-Nexis and additionally, Lexis-Nexis has

a contract with the State of Illinois. [Citations.] Contrary to the Plaintiff’s

argument that there are no restrictions on what LexisNexis can provide, Ms.

Brack testified that the Village has monitored and restricted access to police

reports to try and keep confidential information safe and that the agreement with

LexisNexis requires compliance with FOIA. [Citation.]

A key distinction in this case compared to Lieber is that Lexis-Nexis is not

receiving these reports through a FOIA request or for preferential treatment. In

fact, Lexis-Nexis routinely submits FOIA requests for accident reports and has

to go through the same process as everyone else and is subject to redactions.

[Citation.] They do not merely access the crash report database to pull the

reports they want without paying. [Citation.] Rather, LexisNexis receives these

reports as part of the Village’s state mandating [sic] reporting. This is very

different than the situation in Lieber, where the documents were disclosed to

the newspapers and part of the public domain. These were not in the public

domain, but are managed on a server and only accessible to limited individuals

and privacy agreements.”

¶7 The circuit court rejected the Department’s arguments that the 2010

amendments to FOIA overruled Lieber and that Lieber was not on point because it

addressed a different FOIA exemption. The court observed that it could decline to

consider Mancini Law Group’s arguments regarding Lieber and voluntary

disclosure because Mancini had not raised the argument in its opening motion for

summary judgment but would address the argument based upon the Department’s

acquiescence.

¶8 The circuit court concluded that Lieber was distinguishable, explaining:

“In Lieber, the university selectively and voluntarily disclosed the disputed

requested information to other third parties on a routine basis, while here, there

is no evidence of the Department voluntarily or selectively releasing such

information previously requested by Mancini to other third parties. Rather, any

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disclosure by the Village is to comply with Illinois law. Specifically, the Village

is statutorily mandated to provide similar information, namely un-redacted

accident reports, to Lexis Nexis to comply with the Vehicle Code’s mandatory

reporting requirements. *** The Court finds that this disclosure to LexisNexis

does not rise to the level of selective, voluntary disclosure articulated in Lieber

and thus does not find any waiver of the asserted exemptions by the Village.”

(Emphasis added.)

Accordingly, the court held that the Department met its burden, by clear and

convincing evidence, that the information at issue was exempt and thus was

appropriately redacted. See 5 ILCS 140/11 (West 2016). By extension, the court

determined that Mancini Law Group had not met its burden in showing the

Department had failed to produce all of the non-exempt records under FOIA.

¶9 Mancini Law Group appealed only the issue of whether the Department had

lost any right to withhold the unredacted accident report records due to having

previously and voluntarily provided unredacted accident reports to LexisNexis. See

2020 IL App (1st) 191131-U, ¶ 2; see also id. ¶ 8 (noting that Mancini Law Group

did “not argue that the redacted information is not exempt”).

¶ 10 A majority of the panel affirmed entry of summary judgment in favor of the

Department, concluding that, “based on the actual record before us, [Mancini Law

Group] has not presented sufficient facts to establish that [the Department’s]

conduct amounts to waiver under the rule articulated in Lieber.” Id. ¶ 25.

¶ 11 Justice Hyman dissented, arguing that Mancini Law Group showed that the

Department contracted “with LexisNexis to allow it to sell the unredacted accident

reports to the public, without restrictions or privacy protections.” Id. ¶ 32 (Hyman,

J., dissenting). Thus, according to the dissent, the Department went beyond

contracting with LexisNexis to simply satisfy its reporting requirement and violated

Lieber. Id. ¶ 35. The dissent observed that the Illinois FOIA is patterned after the

federal FOIA and that federal case law is instructive. See id. ¶ 36. The dissent cited

Watkins v. United States Bureau of Customs & Border Protection, 643 F.3d 1189

(9th Cir. 2011), for the proposition that a statutorily required disclosure can still

lead to “waiver” of an exemption where there is a “no-strings-attached” disclosure.

2020 IL App (1st) 191131-U, ¶ 37 (Hyman, J., dissenting) (“ ‘[t]his no-strings-

attached disclosure *** voids any claim to confidentiality and constitutes a

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waiver’ ” (quoting Watkins, 643 F.3d at 1197)). Ultimately, the dissent would

reverse and remand for further proceedings, concluding that a question of material

fact remained as to whether LexisNexis “sells unredacted reports to its customers.”

Id. ¶ 43. The dissent further concluded that, “in disclosing unredacted accident

reports to LexisNexis without restrictions (as provided in the contract with [the

Department]), [the Department] fails to protect the privacy of individuals.” Id. ¶ 45;

see also id. (observing that “[t]he contract between [the Department] and

LexisNexis *** places no restriction on LexisNexis and provides none of the

privacy protections the FOIA envisions”).

¶ 12 Mancini Law Group filed for leave to appeal pursuant to Illinois Supreme Court

Rule 315 (eff. Oct. 1, 2020), which this court allowed.

¶ 13 ANALYSIS

¶ 14 This appeal arises from the circuit court’s resolution of the parties’ cross-

motions for summary judgment. Motions for summary judgment are governed by

section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2016)).

Pielet v. Pielet, 2012 IL 112064, ¶ 29. Pursuant to section 2-1005,

“summary judgment should be granted only where the pleadings, depositions,

admissions and affidavits on file, when viewed in the light most favorable to

the nonmoving party, show that there is no genuine issue as to any material fact

and that the moving party is clearly entitled to judgment as a matter of law.” Id.

¶ 15 “When parties file cross-motions for summary judgment, they mutually agree

that there are no genuine issues of material fact and that only a question of law is

involved.” Rushton v. Department of Corrections, 2019 IL 124552, ¶ 13 (citing

Jones v. Municipal Employees’ Annuity & Benefit Fund, 2016 IL 119618, ¶ 26).

Accordingly, “[i]n appeals from summary judgment rulings, our review is

de novo.” Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill. 2d

456, 459 (2003) (citing Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197

Ill. 2d 278, 292 (2001)).

¶ 16 In conducting our review, we must be mindful that, pursuant to FOIA, “public

records are presumed to be open and accessible.” Illinois Education Ass’n, 204 Ill.

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2d at 462 (citing Lieber, 176 Ill. 2d at 407). Section 1 of FOIA prescribes the public

policy of Illinois and legislative intent of FOIA. 5 ILCS 140/1 (West 2016). That

section provides, in pertinent part:

“The General Assembly hereby declares that it is the public policy of the

State of Illinois that access by all persons to public records promotes the

transparency and accountability of public bodies at all levels of government. It

is a fundamental obligation of government to operate openly and provide public

records as expediently and efficiently as possible in compliance with this Act.

This Act is not intended to cause an unwarranted invasion of personal

privacy, nor to allow the requests of a commercial enterprise to unduly burden

public resources, or to disrupt the duly-undertaken work of any public body

independent of the fulfillment of any of the fore-mentioned rights of the people

to access to information.” Id.

Furthermore, a presumption exists that “[a]ll records in the custody or possession

of a public body are presumed to be open to inspection or copying.” Id. § 1.2. In

the event a public body asserts that a record is exempt from such disclosure, the

public body bears the burden of proving by clear and convincing evidence that the

record is exempt. Id. Exemptions are provided in section 7 of FOIA. Id. § 7; see

also id. § 3(a) (“Each public body shall make available to any person for inspection

or copying all public records, except as otherwise provided in Sections 7 and 8.5 of

this Act.”). In line with the presumption set forth in section 1.2 of FOIA,

exemptions “are to be read narrowly.” Lieber, 176 Ill. 2d at 407.

¶ 17 Before this court, Mancini Law Group asserts only that the Department is

precluded from asserting applicable exemptions by voluntarily disclosing the

information to LexisNexis when it did not redact the accident reports in any way

nor proscribe what LexisNexis could do with those reports. Mancini Law Group

frames the issue as “Did [the Department] waive the right to withhold names and

addresses on traffic accident reports where [the Department] previously produced

the entirely unredacted reports to a third-party reseller without restriction?” As

established, however, the Department did not redact names appearing on the traffic

accident reports. Furthermore, Mancini Law Group’s argument targets more than

just names and home addresses—if Mancini Law Group prevails, it would

additionally have access to individuals’ home or personal phone numbers, personal

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license plates, driver’s license numbers, dates of birth, and insurance policy account

numbers.

¶ 18 Despite Mancini Law Group’s lack of argument as to whether any of the

information contained in the accident reports was properly held by the circuit court

to be exempt, we briefly mention the two exemptions at issue below. For purposes

of this appeal, section 7 of FOIA provides, in relevant part:

“(1) When a request is made to inspect or copy a public record that contains

information that is exempt from disclosure under this Section, but also contains

information that is not exempt from disclosure, the public body may elect to

redact the information that is exempt. The public body shall make the remaining

information available for inspection and copying. Subject to this requirement,

the following shall be exempt from inspection and copying:

***

(b) Private information, unless disclosure is required by another

provision of this Act, a State or federal law or a court order.

***

(c) Personal information contained within public records, the disclosure

of which would constitute a clearly unwarranted invasion of personal

privacy, unless the disclosure is consented to in writing by the individual

subjects of the information. ‘Unwarranted invasion of personal privacy’

means the disclosure of information that is highly personal or objectionable

to a reasonable person and in which the subject’s right to privacy outweighs

any legitimate public interest in obtaining 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.” 5 ILCS

140/7(1) (West 2016).

Again, the circuit court held—and Mancini Law Group did not contest on appeal—

that section 7(1)(b) exempted driver’s license numbers, personal telephone

numbers, home addresses, and personal license plates as constituting private

information that was not required to be disclosed by another “provision of this Act,

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a State or federal law or a court order.” 4 See id. § 7(1)(b). Also, the court held

section 7(1)(c) exempted dates of birth and policy account numbers as qualifying

as “personal information.” See id. § 7(1)(c).

¶ 19 Here, Mancini Law Group does not dispute that the Department has mandatory

reporting requirements under the Vehicle Code such that accident reports must be

forwarded to the Secretary of State and the Department of Transportation. See 625

ILCS 5/11-408 (West 2016). However, Mancini Law Group takes issue with

several facets of how the Department has opted to fulfill this obligation.

¶ 20 First, Mancini Law Group complains that, although LexisNexis is a state-

approved vendor for purposes of fulfilling the Department’s reporting obligation,

nothing required the Department to use LexisNexis. Mancini Law Group

characterizes LexisNexis as a third-party business and contends that the

Department could instead have sent the traffic accident reports directly to the State.

¶ 21 Second, Mancini Law Group takes issue with the fact that LexisNexis is

permitted to sell the traffic accident reports for $13 and remits $5 to the Department.

Mancini Law Group argues that, if the Department was providing the reports

directly, it would not be allowed to charge more than $5 per report. As such,

Mancini Law Group posits that the Department’s arrangement with LexisNexis

circumvents the $5 statutory cap on charges per report. See id. § 11-416.

¶ 22 Third, Mancini Law Group asserts there are no restrictions in the agreement

between the Department and LexisNexis as to what information in the reports

LexisNexis may provide. Mancini additionally strongly intimates that any member

of the public could access the traffic accident reports in unredacted form simply by

paying $13 to LexisNexis. Mancini Law Group thus cites Lieber for the proposition

4

The circuit court also noted that FOIA defines “private information” as

“unique identifiers, including a person’s social security number, driver’s license number,

employee identification number, biometric identifiers, personal financial information,

passwords or other access codes, medical records, home or personal telephone numbers, and

personal email addresses. Private information also includes home address and personal license

plates, except as otherwise provided by law or when compiled without possibility of attribution

to any person.” 5 ILCS 140/2(c-5) (West 2016).

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that “voluntary disclosure in one situation can preclude later claims that records are

exempt from release to someone else.” See Lieber, 176 Ill. 2d at 413.

¶ 23 The Department counters that Lieber’s waiver rule was overturned by the 2010

amendments to FOIA and thus does not apply. The Department adds that Lieber

interpreted a different FOIA exemption, which used different standards for

disclosure. Finally, the Department contends that, even if Lieber is applicable,

waiver did not occur by virtue of the Department’s production of the unredacted

accident reports to LexisNexis where said production is part of the Department’s

statutory duty. We now turn to a detailed discussion of Lieber.

¶ 24 Lieber v. Board of Trustees of

Southern Illinois University

¶ 25 At issue in Lieber was whether Southern Illinois University (SIU) was required

by FOIA to provide Lieber, the owner of an apartment building approved for

freshman students, with a list of names and addresses of those who had contacted

SIU about freshman housing. Id. at 403. SIU’s past practice was to supply Lieber

and other owners of approved off-campus housing with this information to enable

the owners to directly contact incoming freshman about their respective housing

options. Id. at 404. Additionally, SIU “routinely supplied” a local newspaper and

various religious organizations with mailing labels filled out with the names and

addresses of incoming students. Id. SIU provided students’ names and addresses to

state representatives who requested them. Id. Lastly, SIU provided other

educational institutions that students had transferred from with those students’

Social Security numbers, academic major, and number of hours of study completed.

Id.

¶ 26 Following dropping enrollment and a decline in occupancy rates in student

housing, the result was “more competition between the various housing providers.”

Id. SIU responded by requiring off-campus housing owners to rely on their own

resources for advertising and publicity and became uncooperative in releasing

incoming students’ names and addresses to Lieber. Id. Lieber in turn filed FOIA

requests seeking release of the names and addresses of incoming students. Id. SIU

granted the request as to freshman enrolled in the fall of 1992. Id. at 405.

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¶ 27 The next year, SIU officially discontinued providing names and addresses of

incoming students to owners of approved off-campus housing. Lieber received at

least one more list of admitted freshmen’s names and addresses. Upon discovering

this release of information, SIU’s vice president of student affairs directed that the

new policy be implemented and forbade dissemination of address labels to

landlords of approved off-campus housing for freshmen. Id.

¶ 28 Lieber again filed a FOIA request seeking release of address list information

for those inquiring about freshman housing for the upcoming academic year,

including inquiries from accepted freshmen. Id. at 405-06. Lieber sought this

information so he could do the mailings himself as he had done previously. Id. SIU

denied Lieber’s request, asserting that (1) FOIA does not require release of

information that is intended to be used for commercial purposes and (2) the

information was exempt from disclosure because federal law restricted release of

student information. Id. at 406.

¶ 29 Lieber sought judicial review, and SIU maintained its argument that Lieber was

not entitled to relief because he sought the information for commercial purposes,

but this time, SIU cited a different exemption. Id. at 406-07. SIU instead argued

that the information was exempt under section 7(1)(b) 5 because it constituted

“personal information maintained with respect to students or other individuals

receiving educational services from a public body.” Id. at 406. The circuit court

granted summary judgment in favor of SIU, citing its argument that the requested

information was for commercial purposes. Id. at 407. The appellate court reversed

and remanded with directions that summary judgment be entered in Lieber’s favor

in part because SIU had failed to show that the requested information was exempt

under section 7 of FOIA. Id.

¶ 30 This court initially noted the appellate court’s analytical error. The Lieber court

explained that the appellate court erroneously engaged in a balancing test to

determine whether the information was exempt. Id. at 408-09 (citing 5 ILCS

140/7(1)(b) (West 1994)); see also id. at 408 (noting that the appellate court held

“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

5

At the time of Mancini Law Group’s suit, section 7(1)(b) provided for a different exemption

than that addressed in Lieber.

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unwarranted invasion of personal privacy’ ”). Instead, this court made clear that a

“per se” approach was to be followed where information fell into the specific,

narrow exemptions set forth in section 7. Id. at 409. Such per se exemptions protect

information that, “by definition, constitute[s] ‘[i]nformation that, if disclosed,

would constitute a clearly unwarranted invasion of personal privacy.’ ” Id. at 409-

10 (quoting 5 ILCS 140/7(1)(b) (West 1994)). This per se approach, according to

the Lieber court, is consistent with the “clear and unambiguous language of the

statute.” Id. at 409 (citing Healey v. Teachers Retirement System, 200 Ill. App. 3d

240, 244-45 (1990)). Where the public body proves that the requested information

“falls within one of these specifically enumerated categories ***, no further inquiry

by the court is necessary.” (Emphasis added.) Id. at 408. The plain language of

section 7 provides that these documents “ ‘shall be exempt from inspection and

copying.’ ” Id. (quoting 5 ILCS 140/7(1) (West 1994)). This per se rule applies to

most of the section 7 exemptions. Id.

¶ 31 However, in detailing the proper analysis, the Lieber court was careful to note

that it was not holding that the factors considered by the appellate court would never

be “appropriate in determining whether information is exempt under section

7(1)(b).” Id. at 409. This is because section 7(1)(b) did not purport to contain an

exhaustive list of information that would constitute a clearly unwarranted invasion

of personal privacy if disclosed. Id.

¶ 32 The Lieber court then stated that, “[d]espite 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.” Id. at 410. The court observed that section

7(1)(b)(i) did not apply to the information requested by Lieber because the

information did not pertain to students or those receiving educational services from

a public body. Id. (explaining that one is not normally considered a student until

having attended class at the institution). Lieber’s request was technically aimed at

those who would not be freshmen until the following academic year, who might

decide not to live in approved off-campus housing, and who might still decide not

to attend SIU. Id. at 411. Ultimately, this court concluded that the information

sought (1) did not constitute a per se exemption nor (2) “ ‘[i]nformation that, if

disclosed, would constitute a clearly unwarranted invasion of personal privacy.’ ”

Id. at 410 (quoting 5 ILCS 140/7(1)(b) (West 1994)).

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¶ 33 Lieber explained that “[t]here is another, equally fundamental, impediment to

the University’s reliance on section 7(1)(b)(i).” Id. at 411. SIU’s argument also

failed because the legislature had intended that “personal information” encompass

not simply basic identification information of just anyone. Id. at 411-12. Rather,

that provision was meant to protect the “personal information” of only certain

specified individuals. Id. at 412. “Personal information,” according to Lieber, was

meant to be understood as “information that is ‘confidential’ or ‘private.’ ” Id.

¶ 34 After this court explained that “personal information” meant more than basic

identification information, i.e., names and addresses, the court reached the topic of

voluntary disclosure and waiver. It is to this part of the opinion that the parties direct

our attention. Lieber explained:

“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,

485-85 (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

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campus ministries and the local newspaper, the University has no valid basis

for withholding them from Stan Lieber.” (Emphases added.) Id. at 412-13.

¶ 35 Returning to the instant appeal, the parties focus our attention on the purported

voluntary and selective aspects of the arrangement between the Department and

LexisNexis and alternatively propose that this court adhere to one of two different

waiver rules. We now address the parties’ arguments.

¶ 36 First, we reject the Department’s argument that Lieber’s waiver rule is no longer

valid following the 2010 amendments to FOIA. At the time of Lieber, section 7(1)

stated only that “[t]he following shall be exempt from inspection and copying.” 5

ILCS 140/7(1) (West 1994). Pertinent to this argument, section 7(1) was amended

to provide:

“When a request is made to inspect or copy a public record that contains

information that is exempt from disclosure under this Section, but also contains

information that is not exempt from disclosure, the public body may elect to

redact the information that is exempt. The public body shall make the remaining

information available for inspection and copying.” (Emphasis added.) Pub. Act

96-542, § 10 (eff. Jan. 1, 2010) (amending 5 ILCS 140/7(1)).

The Department asserts that this amendment means that a public body may pick

and choose when to redact exempt information—and that such legislatively

bequeathed discretion means the Department cannot be found to have waived its

ability to assert that information is exempt. The proposition simply is not borne out

by the amendment. Lieber is also not rendered inapplicable on the basis that the

legislature restructured the exemptions under FOIA. The Department contends that,

by adding a specific definition and exemption for “private information” to section

7 of FOIA, the legislature further intended to overturn Lieber. Instead, the

legislature’s addition of the exemption for private information indicates that the

legislature decided to break with Lieber on this basis and afford protection to a

broader category of information that was not previously deemed to be exempt.

Regardless, as noted below, Mancini Law Group relies on Lieber not for its

exemption analysis but for its waiver rule.

¶ 37 Second, we make clear that we are not bound by Lieber’s waiver rule because

Lieber is distinguishable. Unlike in Lieber, where SIU failed to prove that the

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information at issue was protected by an exemption, there is no dispute as to

whether the information at issue here is protected under sections 7(1)(b) and

7(1)(c). In Lieber, after explaining why the names and addresses of yet-to-be

students did not qualify as exempt, the court went on to demonstrate what

essentially was a hypocritical position taken by SIU. The court explained that the

“notion that the names and addresses of accepted students are private and must be

protected from disclosure” was directly undermined by SIU’s previous behavior of

freely disseminating the information to various groups. (Emphasis added.) Lieber,

176 Ill. 2d at 412-13. The court cited two federal cases in support of its discussion

of voluntary disclosure and the impermissibility of selective disclosure by the

government and preferential treatment of persons or interest groups. Id. at 413

(citing Cooper v. Department of the Navy, 594 F.2d 484, 485-85 (5th Cir. 1979),

and State ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978)). The Lieber

court thereafter noted that “[t]he only reason the University has treated Lieber

differently is that he is in direct competition with the University for what is

apparently a dwindling freshman housing market.” Id. Also, as noted, the

legislature later clarified that home addresses are exempt information. See 5 ILCS

140/2(c-5), 7(1) (West 2010).

¶ 38 We instead rely on since-evolved federal case law that is directly applicable to

the issue before us. See In re Appointment of Special Prosecutor, 2019 IL 122949,

¶ 55 (“Due to the similarity of the statutes, Illinois courts often look to federal case

law construing the federal FOIA for guidance in construing FOIA.”).

¶ 39 Sherman v. United States Department of the Army

¶ 40 Though cited by neither party, in Sherman v. United States Department of the

Army, 244 F.3d 357, 359 (5th Cir. 2001), the Fifth Circuit Court of Appeals

addressed whether the United States Army waived the ability to redact service

personnel’s Social Security numbers (SSNs) from award orders. By way of

background, when Army officials approved individual or unit decorations, that

action was announced via an award order. Id. Typically, such orders contained the

following information: a soldier’s name, rank, and unit; specific information

relating to the conduct warranting the award; and a soldier’s identification number.

Id. Before 1968, the soldiers listed in the awards were identified by Army serial

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number. Id. However, beginning in 1968 and through the 1990s, those soldiers were

instead identified by their Social Security numbers. Id.

¶ 41 The Army had hired a contractor to compile the award orders issued during the

Vietnam era into a computerized database. Id. The public could still access paper

copies of most of the award orders, including those issued between 1965 and 1973

via the Army or the National Archives. Id. at 359-60. However, to investigate

Vietnam-era award inquiries and fulfill related information requests, the Army

predominately relied on the computerized database. Id. at 360. Stephen Sherman

requested computer-tape copies of the orders issued between 1965 and 1973. Id.

The Army offered computer copies of the orders issued from 1964 to 1967 but, for

the orders from 1968 to 1973, redacted all Social Security numbers pursuant to

exemption 6 6 of the federal FOIA and a corresponding Army regulation “to avoid

a clearly unwarranted invasion of the privacy interests of Army personnel.” Id.

¶ 42 Relevant here, Sherman sought an injunctive order requiring the Army to

produce unredacted copies of the requested documents. Id. Following cross-

motions for summary judgment, the district court held that the redaction was proper

pursuant to exemption 6. Id. On appeal to the Fifth Circuit, Sherman raised two

issues for review. The first issue required the Fifth Circuit to consider the following:

“(1) Did the Army waive its authority to exercise exemption 6 by publicly releasing

the SSNs of service personnel to the public in other instances.” Id. The Sherman

court began its review by noting that the United States Supreme Court had broadly

interpreted the files falling under exemption 6 to include “any ‘information which

applies to a particular individual.’ ” Id. (quoting United States Department of State

v. Washington Post Co., 456 U.S. 595, 602 (1982)). When exemption 6 is at issue,

federal courts “ ‘determine whether release of the information would constitute a

clearly unwarranted invasion of that person’s privacy’ ” (id. at 361 (quoting

Washington Post Co., 456 U.S. at 602)) necessitating a balancing of “ ‘the

individual’s right of privacy’ against the basic policy of opening ‘agency action to

6

Exemption 6 of the federal FOIA “allows agencies to exempt from disclosure information

contained in ‘personnel and medical files and similar files the disclosure of which would constitute

a clearly unwarranted invasion of personal privacy.’ ” Sherman, 244 F.3d at 361 (quoting 5 U.S.C.

§ 552(b)(6) (2000)).

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the light of public scrutiny’ ” (id. (quoting United States Department of State v.

Ray, 502 U.S. 164, 175 (1991))).

¶ 43 The Sherman court observed that the United States Supreme Court had defined

the pertinent public interest as “ ‘the extent to which disclosure would serve the

core purpose of the FOIA, which is contribut[ing] significantly to the public

understanding of the operations or activities of the government.’ ” Id. (quoting

United States Department of Defense v. Federal Labor Relations Authority, 510

U.S. 487, 491 (1994)). Furthermore, the United States Supreme Court has observed

that “[t]hat interest is not implicated by disclosure of information about private

citizens that has accumulated in various government files but reveals little or

nothing about an agency’s own conduct.” Id. (citing United States Department of

Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773

(1989)). As to the privacy interest protected by exemption 6, the court noted that it

was defined more broadly and “ ‘encompasses [an] individual’s control of

information concerning his or her person.’ ” Id. at 362 (quoting Department of

Defense, 510 U.S. at 500).

¶ 44 Next, the Sherman court addressed whether the Army’s alleged “pervasive

public use of SSNs” waived the Army’s authority to rely on exemption 6. Id. at

363. Specifically, Sherman noted the following: recreational passes and other

orders contained both the names and SSNs of service members, which were

distributed to other service members, airlines, hotels, and other public

organizations; officers’ whose promotion necessitated congressional confirmation

had their SSNs published in the Congressional Register; the Army had purportedly

“sold lists of officers, together with their SSNs and birth dates, through the

Government Printing Office”; and the award orders Sherman sought were

apparently published in hometown newspapers when issued. Id. The Sherman court

considered and rejected two district court cases cited in support of Sherman’s

waiver argument. Id. Pertinent here, the Sherman court observed that one of those

cases, Kimberlin v. Department of Justice, 921 F. Supp. 833 (D.D.C. 1996),

“considered the role of waiver in the more analogous context of exemption 7(C).” 7

7

Exemption 7(C) applies to “records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement records or information *** (C)

could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.

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Sherman, 244 F.3d at 363. Kimberlin had held that the Justice Department could

not use exemption 7(C) to prevent the disclosure of sensitive files that had been

released to the press. Id. The Kimberlin court had reasoned that any privacy interest

in the information had been eradicated by the previous disclosure. Id. Furthermore,

the Kimberlin court reasoned that a contrary holding would mean that the Justice

Department “ ‘could selectively disclose non-public information to favored sources

and then invoke FOIA exemptions to prevent disclosure to press sources not in their

favor.’ ” Id. (quoting Kimberlin, 921 F. Supp. at 835). Sherman likewise proposed

that, if the Army was found not to have waived reliance on exemption 6, the Army

could then “selectively control disclosure of any documents containing SSNs.” Id.

¶ 45 Nonetheless, the Sherman court explained:

“While we share the Kimberlin court’s concern regarding selective

disclosure with respect to those exemptions that protect the government’s

interest in non-disclosure of information, we conclude that this concern, and the

related waiver analysis, are not implicated when a government agency relies on

exemption 6 to prevent disclosure of personal information. The Supreme Court

has explained that the privacy interest at stake in FOIA exemption analysis

belongs to the individual, not the agency holding the information. [Citation.]

Moreover, as noted, the fact that otherwise private information at one time or

in some way may have been placed [in] the public domain does not mean that

a person irretrievably loses his or her privacy interest in the information.

[Citations.] Consistent with these established principles, we hold that only the

individual whose informational privacy interests are protected by exemption 6

can effect a waiver of those privacy interests when they are threatened by a[ ]

FOIA request. For that reason, we do not accept Sherman’s argument that the

Army waived its authority to implement exemption 6.” (Emphasis in original.)

Id. at 363-64.

§ 552(b)(7)(C) (2000). The Sherman court noted that circuit courts that had considered a waiver

argument in the exemption 7(C) context reached similar results. 244 F.3d at 364 n.12 (noting that

the Department of Justice “did not waive individual’s privacy interest in investigation files

recognized in exemption 7(C) by notifying public of ongoing criminal investigation involving

individual” (citing Fiduccia v. United States Department of Justice, 185 F.3d 1035, 1047 (9th Cir.

1999))).

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¶ 46 Having found that the Army did not waive its reliance on exemption 6, the

Sherman court next considered whether the district court had properly balanced the

public interest in disclosure of the information contained in Sherman’s request. Id.

at 364-66. Ultimately, the court concluded that the “invasion of the informational

privacy interest of individual soldiers in disclosure of their SSNs would clearly be

unwarranted in the absence of any public interest in those SSNs” and the Army had

properly redacted the SSNs. Id. at 366-67.

¶ 47 The Instant Case

¶ 48 Here, we adopt the reasoning set forth in Sherman and conclude that an Illinois

public body does not have the ability to waive an individual’s interest in his or her

personal or private information that is contained in a document subject to a FOIA

request. 8 Mancini Law Group’s arguments are a near mirror-image of those

presented by the requester in Sherman. We additionally find that Sherman’s holding

applies to the information at issue here—whether it was redacted under section

7(1)(b) or 7(1)(c), which concern private and personal information, respectively.

The information at issue is attributable to private individuals and cannot be waived

by the Department’s handling or mishandling thereof. See also Lakin Law Firm,

P.C. v. Federal Trade Comm’n, 352 F.3d 1122, 1124 (7th Cir. 2003) (relying on

Sherman and holding that the Federal Trade Commission’s release of withheld

information to other law enforcement via a consumer fraud database did not waive

individual consumers’ privacy interests).

¶ 49 For purposes of completeness, we observe that we need not go on to engage in

the balancing test undertaken by the Fifth Circuit in Sherman to determine if the

public’s interest in the information nevertheless outweighs personal privacy

interests. The Sherman court first considered the issue of waiver before addressing

whether the Army had “carried its burden in demonstrating that invasion of the

personal privacy interest in preventing disclosure of SSNs would be clearly

8

Though not at issue here, waiver of an individual’s interest in private information has been

found where the individual voluntarily divulged the information at issue and placed it into the public

domain. See The Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d

885, 896 (D.C. Cir. 1995); see also 5 ILCS 140/7(1)(c) (West 2016) (providing that personal

information may be disclosed where “the disclosure is consented to in writing by the individual

subjects of the information”).

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unwarranted by the public interest in disclosure of those SSNs.” Sherman, 244 F.3d

at 364.

¶ 50 Here, as mentioned, the circuit court already held that the Department carried

its burden proving, by clear and convincing evidence, that the information at issue

is exempt under sections 7(1)(b) and 7(1)(c). 9 The court conducted the relevant

inquiries pursuant to sections 7(1)(b) and 7(1)(c), Mancini Law Group does not

take issue with the court’s determinations, and we see no reason to revisit this aspect

of the court’s order.

¶ 51 Accordingly, we find that Mancini Law Group’s arguments are meritless. First,

it is irrelevant whether the Department could have chosen to fulfill its mandatory

reporting obligations under the Vehicle Code in a different way. No one contests

that LexisNexis was a state-approved vendor and thus the Department did not

independently concoct its arrangement with LexisNexis. Although this court in

Lieber disapproved of selective disclosure by the government that amounts to

preferential treatment, the Sherman court later acknowledged such concerns only

took shape when it was the “government’s interest” in the information. (Emphasis

in original.) Id. at 363. Here, we are dealing with individuals’ interests in their

personal or private information contained within traffic accident reports. No

inference arises that selective or preferential treatment was thus given to

LexisNexis. Furthermore, a common thread between Lieber and the two federal

court decisions it cited in support of this proposition was the public body’s or

government’s attempt to undermine an adversary’s position. See Lieber, 176 Ill. 2d

at 413 (observing that “[t]he only reason the University has treated Lieber

differently is that he is in direct competition with the University for what is

apparently a dwindling freshman housing market”); Cooper, 594 F.2d 484

(concerning an endorsement to an aircraft accident report that was given to defense

counsel without authorization but not to counsel who was representing the

survivors of one killed in a Marine Corps helicopter crash); Andrus, 581 F.2d 177

9

Furthermore, Illinois FOIA exemptions are structured differently than those of the federal

FOIA. Specifically, certain exemptions do not require a balancing test to determine whether

disclosure would constitute a “ ‘clearly unwarranted invasion of personal privacy’ ” like in Sherman.

See Lieber, 176 Ill. 2d at 408 (quoting 5 ILCS 140/7(1)(b) (West 1994)); see also id. at 409-10

(noting that, where information falls under the express terms of a FOIA exemption, “it would, by

definition, constitute ‘[i]nformation that, if disclosed, would constitute a clearly unwarranted

invasion of personal privacy’ [citation] and be automatically exempt from disclosure”).

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(involving a government attorney’s voluntary disclosure of documents to opposing

counsel in a separate litigation where that recipient’s interests were adverse to that

of North Dakota’s in a different litigation). Furthermore, like Cooper, the Sherman

decision originated out of the Fifth Circuit; the Fifth Circuit clearly found the two

situations distinguishable.

¶ 52 Second, and by extension, that LexisNexis is selling the traffic accident reports

for $13 and remitting $5 to the Department does not bear on the relevant waiver

analysis. In Sherman, it was argued that the Army had “sold lists of officers,

together with their SSNs and birth dates, through the Government Printing Office.”

Sherman, 244 F.3d at 363. Still, the Sherman court was not in any way persuaded

by this fact and, by not further discussing it, indicated that it was not factored into

the waiver analysis. Regardless of the financial arrangement between the

Department and LexisNexis, 10 the Department could not waive the privacy

interests of the individuals whose exempt information is contained in the traffic

accident reports.

¶ 53 Finally, even accepting, for argument’s sake, Mancini Law Group’s

representations that the agreement between the Department and LexisNexis does

not proscribe what LexisNexis may do with the unredacted reports containing

individuals’ personal and private information, per Sherman, this is not a material

issue for purposes of waiver. Even accepting that such a purported lack of

restrictions meant that any member of the public may have been able to access an

unredacted report by paying $13, we will not entertain this rigid argument to the

detriment of private individuals. See id. at 363-64 (noting that “the fact that

otherwise private information at one time or in some way may have been placed

[in] the public domain does not mean that a person irretrievably loses his or her

privacy interest in the information”); Reporters Committee, 489 U.S. at 763

(rejecting such “cramped notion of personal privacy”). 11

10

We express no opinion on this matter.

11

Mancini Law Group’s discussion of the “no-strings-attached” disclosure in Watkins is

uncompelling. See Watkins, 643 F.3d 1189. That case considered exemption 4, which exempts from

disclosure “ ‘trade secrets and commercial or financial information obtained from a person and

privileged or confidential.’ ” Id. at 1194 (quoting 5 U.S.C. § 552(b)(4) (2006)). The information at

issue was commercial in nature. Id. at 1197.

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¶ 54 We add that, as similarly observed by the Sherman court, the personal and

private information contained in the traffic accident reports would not shed light on

the Department’s actions or behavior. See 5 ILCS 140/1 (West 2016) (stating that

“all persons are entitled to full and complete information regarding the affairs of

government and the official acts and policies of those who represent them as public

officials and public employees” (emphases added)); Sherman, 244 F.3d at 366; see

also id. at 365-66 (discussing the “dire consequences of identity theft and other

forms of fraud” attendant to disclosure of an individual’s private information); see

generally Maracich v. Spears, 570 U.S. 48, 52 (2013) (holding that lawyers’ use of

drivers’ personal information contained in the records of state motor vehicle

departments for solicitation purposes was prohibited by the Driver’s Privacy

Protection Act of 1994 (18 U.S.C. §§ 2721-2725 (2006))).

¶ 55 For these reasons, we hold that, as a matter of law, the Department could not

and did not waive the ability to redact the private and personal information

contained in the traffic accident reports. We affirm the grant of summary judgment

entered in the Department’s favor.

¶ 56 CONCLUSION

¶ 57 Because an Illinois public body does not have the ability to waive an

individual’s interest in his or her own personal or private information, we hold that

the Department is not precluded from asserting that the information redacted from

the traffic accident reports is exempt under sections 7(1)(b) and 7(1)(c) of FOIA

despite having provided LexisNexis, a state-approved vendor, unredacted copies of

the subject traffic accident reports to comply with its mandatory reporting

obligations under the Vehicle Code.

¶ 58 Judgments affirmed.

¶ 59 JUSTICE CARTER, specially concurring:

¶ 60 The issue on appeal is whether the Department is precluded from arguing that

the information sought was exempt due to its contractual arrangement with

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LexisNexis. Under that contract, the Department voluntarily disclosed the

unredacted information to LexisNexis, allegedly without any restrictions. While I

concur in this court’s judgment, I write separately for two reasons.

¶ 61 First, I respectfully disagree with the majority’s decision to reject, without

analysis, the Department’s argument that the 2010 amendment to section 7(1) of

the Freedom of Information Act (FOIA) (Pub. Act 96-542, § 10 (eff. Jan. 1, 2010)

(amending 5 ILCS 140/7(1)) granted it discretion to determine whether exempt

information should be redacted. Supra ¶ 36. As amended, section 7(1) states:

“When a request is made to inspect or copy a public record that contains

information that is exempt from disclosure under this Section, but also contains

information that is not exempt from disclosure, the public body may elect to

redact the information that is exempt. The public body shall make the remaining

information available for inspection and copying.” (Emphasis added.) 5 ILCS

140/7(1) (West 2016).

Applying review in a statutory construction argument, our primary objective is to

give effect to the plain and unambiguous language of the statute as the best indicator

of legislative intent. When the language under consideration is clear, our task is to

effectuate it without resorting to any extrinsic aids of statutory construction. In re

Marriage of Dahm-Schell, 2021 IL 126802, ¶ 35.

¶ 62 In lieu of conducting that type of textual analysis, however, the majority merely

concludes that “[t]he proposition simply is not borne out by the amendment.” Supra

¶ 36. I respectfully suggest that the plain language of the amended statute allows a

public body to elect to redact information in its purview. This court is obliged to

imbue each word of the amended statute with reasonable meaning whenever

possible and avoid rendering any part of the statute superfluous. Dahm-Schell, 2021

IL 126802, ¶ 35. I believe that we can harmonize the plain language of the

amendment with the underlying goals of FOIA.

¶ 63 Section 7 makes information exempt from a FOIA request when disclosing it

“would constitute a clearly unwarranted invasion of personal privacy,” meaning

that it would reveal “information that is highly personal or objectionable to a

reasonable person” and “the subject’s right to privacy outweighs any legitimate

public interest in obtaining that information.” (Emphases added.) 5 ILCS

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140/7(1)(C) (West 2016). The subjective nature of that inquiry and the balancing

tests that must be applied recognize the lack of clarity that may surround whether a

specific piece of information is exempt from disclosure.

¶ 64 When addressing requests for records containing both exempt and nonexempt

data, the 2010 amendments permit a public body to determine when specific data

must be redacted as exempt. That conclusion gives meaning to all parts of the

statute by upholding both the public policy underlying FOIA, giving anyone

“access by all persons to public records [to] promote[ ] the transparency and

accountability of public bodies at all levels of government” (id. § 1), and the plain

and unambiguous language of section 7(1)’s 2010 amendment, allowing “[t]he

public body [to] elect to redact the information that is exempt” (id. § 7(1)).

Applying that construction, a public body is able to maximize the transparency of

governmental records while providing optimal protection of private information.

Because the opinion fails to undertake any statutory analysis, however, I cannot

join its unexplained rejection of the Department’s textual argument. I believe this

court has an obligation to explain its rationale more explicitly.

¶ 65 Second, I do not join in the portion of the opinion relying on a federal Fifth

Circuit Court of Appeals case not cited by either party and, consequently, reviewing

a question that is not raised in this appeal. Supra ¶¶ 39-46 (citing Sherman v. United

States Department of the Army, 244 F.3d 357 (5th Cir. 2001)). While I agree with

the majority’s discussion of Sherman, I cannot overlook the fact that it is focused

on an issue not raised here: who may waive the relevant privacy interests. Supra

¶ 40 (citing Sherman, 244 F.3d at 359). After its thorough discussion of that court’s

analysis, the majority adopts its reasoning and reaches the same conclusion here,

explaining that “ ‘only the individual whose informational privacy interests are

protected by [the] exemption *** can effect a waiver of those privacy interests

when they are threatened by a[ ] FOIA request.’ ” Supra ¶ 45 (quoting Sherman,

244 F.3d at 364). While I do not disagree with that analysis, it fails to address the

statutory construction arguments made by the parties and, instead, resolves a matter

that is not at issue here.

¶ 66 This court has long adhered to the traditional principles of party presentation in

its analyses. “ ‘[A]s a general rule, [o]ur adversary system is designed around the

premise that the parties know what is best for them and are responsible for

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advancing the facts and arguments entitling them to relief.’ ” (Internal quotation

marks omitted.) Western Illinois University v. Illinois Educational Labor Relations

Board, 2021 IL 126082, ¶ 64 (quoting People v. Givens, 237 Ill. 2d 311, 324 (2010),

quoting Greenlaw v. United States, 554 U.S. 237, 244 (2008)). “ ‘Were we to

address these unbriefed issues, we would be forced to speculate as to the arguments

that the parties might have presented had these issues been properly raised before

this court. To engage in such speculation would only cause further injustice; thus

we refrain from addressing these issues sua sponte.’ ” Givens, 237 Ill. 2d at 324

(quoting People v. Rodriguez, 336 Ill. App. 3d 1, 14 (2002)).

¶ 67 The parties here neither cited Sherman nor advanced the proposition that

resolution of this appeal turns on who possesses the relevant privacy interests. See

supra ¶ 40 (noting Sherman was not cited by either party). “That absence of any

written argument strongly suggests that the parties believe their consideration is

unnecessary for a proper resolution of this appeal, and I agree.” People v. Murray,

2019 IL 123289, ¶ 60 (Kilbride, J., specially concurring, joined by Karmeier, C.J.).

¶ 68 I do concur, however, with the majority opinion on a number of other points. I

agree that the financial arrangement between the Department and LexisNexis did

not permit it to waive the interests of those whose exempt information was in the

traffic reports and that the Department could not waive its statutory duty to redact

private information in those reports. Supra ¶¶ 52-53. I also agree that the existence

of other ways for the Department to fulfill its mandatory state reporting duty and

the Department’s receipt of a portion of the money LexisNexis receives from its

sales of traffic accident reports are irrelevant here. Moreover, the Department’s

decision to hire LexisNexis to meet its reporting obligation does not support the

inference that the Department gave it preferential treatment, running afoul of

Lieber. Supra ¶ 51. I also agree with the majority that, even if the contract between

the Department and LexisNexis failed to limit what the latter could do with the

unredacted records, the matter is not a material consideration in our waiver analysis.

This case invokes the provisions of FOIA, and the release of that information in no

way provides the types of insights into governmental affairs and official conduct

that FOIA is intended to make accessible to the public. Supra ¶¶ 16, 53. Therefore,

respectfully, I specially concur in the court’s opinion in this case.

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