Gibson v. Illinois State Board of Education

JUSTICE WOLFSON, concurring in part, dissenting in part:

When a request for information fits explicitly within the terms of section 7(l)(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, 176 Ill. 2d 401 (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(l)(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)(l)(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, 176 Ill. 2d at 412 .

For example, said the court, sections 7(l)(b)(v), 7(l)(c)(iv), and 7(l)(u) use the word "identity” when presenting clear legislative mandates that names not be disclosed. On the other hand, sections 7(l)(b)(ii) and 7(l)(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, 176 Ill. 2d at 412 .

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(l)(b), after all, is to protect 'personal privacy.’ ” Lieber, 176 Ill. 2d at 412 .

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(l)(b)(i). Lieber, 176 Ill. 2d at 411 . 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 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, 176 Ill. 2d at 409 .

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 plaintiffs interest in disclosure; (2) the public interest in disclosure; (3) the degree 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(l)(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.