Mancini Law Group, P.C. v. Schaumburg Police Department , 2021 IL 126675 ( 2021 )

2021 IL 126675IN 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 1779
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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