The State Journal-Register v. The University of Illinois Springfield , 2013 IL App (4th) 120881 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881Appellate Court THE STATE JOURNAL-REGISTER and BRUCE RUSHTON,
Caption Plaintiffs-Appellants, v. THE UNIVERSITY OF ILLINOIS
SPRINGFIELD; and HARRY BERMAN, in His Official Capacity as
Interim Chancellor of the University of Illinois Springfield, Defendants-
Appellees.
District & No. Fourth District
Docket No. 4-12-0881
Filed August 8, 2013
Held In a newspaper’s action under the Freedom of Information Act seeking
(Note: This syllabus the disclosure of documents related to the resignation of three coaches at
constitutes no part of defendant state university, the trial court erred in denying plaintiffs’
the opinion of the court request for an e-mail string containing a student complaint, once redacted,
but has been prepared an internal communications concerning a personnel matter, once
by the Reporter of redacted, and the coaches’ witness statements, once redacted; however,
Decisions for the the balance of the trial court’s order, including the finding that the name
convenience of the of the student who was the victim of the conduct of one of the coaches
reader.)
was exempt from disclosure, was affirmed.
Decision Under Appeal from the Circuit Court of Sangamon County, No. 11-MR-131; the
Review Hon. Eric S. Pistorius, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on Donald M. Craven (argued) and Esther J. Seitz, both of Donald M.
Appeal Craven, P.C., of Springfield, for appellants.
J. William Roberts and Charles R. Schmadeke (argued), both of Hinshaw
& Culbertson, LLP, of Springfield, for appellees.
Panel JUSTICE HOLDER WHITE delivered the judgment of the court, with
opinion.
Justices Pope and Harris concurred in the judgment and opinion.
OPINION
¶1 In March 2011, plaintiffs Bruce Rushton, a reporter, and the State Journal-Register, a
newspaper (collectively, the Journal), filed a complaint in the Sangamon County circuit court
against defendants, the University of Illinois-Springfield and its interim chancellor, Harry
Berman (collectively, UIS), seeking enforcement of two Freedom of Information Act (FOIA)
(5 ILCS 140/3 (West 2010)) requests for documents pertaining to the resignation of three
UIS coaches. UIS produced some of the requested documents, but it denied the rest as
exemptions under section 7 of FOIA. The parties filed cross-motions for summary judgment.
The trial court granted UIS’s motion for summary judgment in part, ordering UIS to produce
some, but not all, of the requested documents.
¶2 The Journal appeals, asserting the trial court erred in finding a majority of UIS
documents exempt under FOIA. Specifically, the Journal argues UIS failed to prove
disclosure was exempt as (1) part of the predecisional and deliberative process (5 ILCS
140/7(1)(f) (West 2010)), (2) an unwarranted invasion of privacy (5 ILCS 140/7(1)(c) (West
2010)), and (3) prohibited by federal law (5 ILCS 140/7(1)(a) (West 2010)), namely, by the
Family Educational Rights and Privacy Act (Educational Privacy Act) (20 U.S.C. § 1232g
(2006)). We affirm in part and reverse in part.
¶3 I. BACKGROUND
¶4 In January 2010, the Journal filed the following FOIA request with UIS:
“[a]ll records, documents, and correspondence, written and electronic, including but not
limited to emails, letters, notes and reports concerning the conduct of Joe Fisher and Roy
Gilmore during a trip to Florida in March, 2009 with the women’s softball team.
Furthermore, I request all records, documents, and correspondence, written and
electronic, including but not limited to emails, letters, notes and reports concerning
communications deemed inappropriate between any student(s) and Jay Davis.”
-2-
¶5 In January 2011, the Journal filed a second FOIA request for “the names of individuals
and/or entities that have received $200,000 in [UIS] funds since September 1, 2009.”
¶6 Before disclosing any documents, UIS sought advice from the Attorney General’s Public
Access Counsel (Access Counsel). UIS received preapproval to assert the deliberative
process exemption for a series of e-mails and the witness statements and later received
preapproval to deny disclosure under the Educational Privacy Act. However, the Access
Counsel did not preauthorize UIS to assert the personal privacy exemption, explaining UIS
had not met its burden of proof regarding that exemption. The Journal sought further review
from the Access Counsel, after which UIS disclosed several documents, including (1) a
release and settlement agreement for one student (name redacted) reflecting a settlement of
$200,000 due to a UIS coach’s misconduct during a 2009 softball team trip, (2) a ledger
reflecting payment of exactly $200,000 to a female and her attorney (both names redacted),
and (3) an entirely redacted letter sent March 23, 2009, to Chancellor Richard Ringeisen and
campus legal counsel Mark Henss entitled “Sexual Assault and Battery by UIS Softball
Coach.” UIS later provided a copy of the letter with fewer redactions, showing the letter was
sent by the victim’s attorney, who expressed concern UIS might try to “sweep this matter
under the rug” and accused Roy Gilmore of assaulting members of the women’s softball
team in what he described as “not isolated abberant behavior.”
¶7 During this time period, the Journal published numerous articles regarding the alleged
misconduct of the UIS coaches, containing information such as (1) a UIS student entered into
a $200,000 settlement agreement with UIS following allegations of sexual impropriety by
a softball coach in 2009; (2) the student’s attorney informed UIS of the softball coach’s
assault on the student; (3) the allegations prompted the resignations of two softball coaches,
Roy Gilmore and Joe Fisher, at the request of UIS; (4) Roy Gilmore admitted he exercised
“poor judgment” and made a “poor decision”; and (5) golf coach Jay Davis resigned for
unknown reasons.
¶8 In March 2011, the Journal filed a complaint in the Sangamon County circuit court,
seeking (1) disclosure of the documents requested pursuant to FOIA, (2) attorney fees, (3)
court costs, and (4) civil penalties authorized by FOIA. UIS maintained the documents were
exempt from disclosure under section 7 of FOIA.
¶9 In May 2011, the Journal filed a motion to compel UIS to provide the requested
documents for an in camera review. The trial court imposed additional requirements that UIS
provide an index of the documents with detailed descriptions and claimed exemptions for
each document. The court then ordered the parties to file briefs regarding the application of
any exemptions.
¶ 10 UIS’s index, sorted by bates-stamped numbers (with preceding zeroes omitted), detailed
the documents and their claimed exemptions as follows:
(1) Bates Nos. 1-6: e-mail string with staff opinions and communications regarding
“the incident”; exempt as predecisional materials.
(2) Bates Nos. 7-19: UIS personnel documents describing employees’ status,
compensation, and accrued vacation and sick leave; exempt as unwarranted invasion of
personal privacy.
-3-
(3) Bates Nos. 20-23: e-mail string with staff opinions and communications regarding
“the incident”; exempt as predecisional materials.
(4) Bates Nos. 24-26: typed staff notes describing interviews with coaches regarding
“the incident”; exempt as predecisional material, unwarranted invasion of personal
privacy, and violation of the Educational Privacy Act.
(5) Bates Nos. 27-34: typed staff notes describing interviews with students; exempt
as predecisional material, unwarranted invasion of personal privacy, and violation of the
Educational Privacy Act.
(6) Bates Nos. 35-37: handwritten staff notes describing interviews with student’s
parent exempt as predecisional material, unwarranted invasion of personal privacy, and
violation of the Educational Privacy Act.
(7) Bates No. 40: e-mail string reflecting communications between student and
coach; exempt as predecisional material, unwarranted invasion of personal privacy, and
violation of the Educational Privacy Act.
(8) Bates Nos. 41-50: handwritten notes describing UIS administrators’ meeting
regarding “the incident”; exempt as predecisional material, unwarranted invasion of
personal privacy, and violation of the Educational Privacy Act.
(9) Bates Nos. 51-52: e-mail string of correspondence between a student and UIS
administrator; exempt as unwarranted invasion of personal privacy and violation of the
Educational Privacy Act.
(10) Bates Nos. 53-54: correspondence from student’s parent to UIS president
regarding the incident; exempt as unwarranted invasion of personal privacy and violation
of the Educational Privacy Act.
(11) Bates No. 55: e-mail regarding internal communication with respect to a
“personnel matter”; exempt as predecisional material, unwarranted invasion of personal
privacy, violation of the Educational Privacy Act.
(12) Bates Nos. 56-57: correspondence between student’s attorney and UIS
(previously disclosed in part with redactions); exempt as predecisional material,
unwarranted invasion of personal privacy, and violation of the Educational Privacy Act.
(13) Bates Nos. 58-59: release and settlement agreement (previously disclosed in its
entirety except for victim’s name), exempt as an unwarranted invasion of personal
privacy and violation of the Educational Privacy Act.
(14) Bates Nos. 60-66: UIS communications regarding UIS’s response to “the
incident,” exempt as an unwarranted invasion of personal privacy and violation of the
Educational Privacy Act.
(15) Bates No. 67: ledger sheet reflecting $200,000 payment (previously disclosed
in its entirety except for victim’s name), exempt as an unwarranted invasion of personal
privacy and violation of the Educational Privacy Act.
¶ 11 In July 2011, UIS and the Journal filed cross-motions for summary judgment pursuant
to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). UIS
attached an affidavit to its motion from the victim’s attorney, which will be discussed in its
-4-
entirety later in this opinion, asking the court not to subject the victim to any further
embarrassment, noting the victim’s right to privacy significantly outweighed the public
prurient interests.
¶ 12 In September 2011, the trial court held a hearing on the cross-motions for summary
judgment. During the hearing, the court mentioned the numerous articles published by the
Journal, stating:
“I don’t know what more you can find that makes things any worse than they are. He
did–they did a pretty good job beating up these two guys and [UIS]. I’m not sure what
else out there there [sic] is other than the kind of nasty dirty stuff that allegedly took
place, and I don’t see a great deal of public interest in that as relates to the personal
private interest of the girls that were involved.”
The court also inquired about UIS allowing the coaches to resign rather than initiating
termination proceedings. UIS responded by explaining the resignation of the coaches allowed
UIS to quickly resolve the employment status of the coaches without a prolonged termination
proceeding that could have resulted in the coaches retaining their positions. The court agreed
UIS acted very quickly in securing the resignations of the coaches.
¶ 13 After hearing arguments, the trial court tabled its ruling in anticipation of the Seventh
Circuit’s interpretation of the Educational Privacy Act in a pending case. See Chicago
Tribune Co. v. University of Illinois Board of Trustees, 781 F. Supp. 2d 672, 673 (N.D. Ill.
2011), vacated sub nom. Chicago Tribune Co. v. Board of Trustees of the University of
Illinois, 680 F.3d 1001 (7th Cir. 2012). When the Seventh Circuit declined to reach the
substantive issue regarding the applicability of the Educational Privacy Act, the trial court
filed its order.
¶ 14 In issuing its order, the trial court found UIS had an obligation to comply with the
Educational Privacy Act due to its receipt of federal funding, noting, “The court specifically
finds that the records sought, but not produced, other than those hereinafter referenced, were
appropriately either redacted or withheld entirely pursuant to [FOIA] and/or [the Educational
Privacy Act].” The court thereafter ordered the disclosure of several documents: Bates Nos.
12, 14, 17, 20-21, and 60-66. UIS disclosed those documents as ordered.
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, the Journal asserts the trial court erred in finding a majority of UIS documents
exempt under FOIA. Specifically, the Journal argues UIS failed to prove disclosure was
exempt as (1) part of the predecisional and deliberative process (5 ILCS 140/7(1)(f) (West
2010)), (2) an unwarranted invasion of privacy (5 ILCS 140/7(1)(c) (West 2010)), and (3)
prohibited by federal law (5 ILCS 140/7(1)(a) (West 2010)), namely, by the Educational
Privacy Act (20 U.S.C. § 1232g (2006)). We address these arguments in turn.
¶ 18 A. Standard of Review
¶ 19 In this case, the parties filed cross-motions for summary judgment, conceding that only
-5-
issues of law remained. Summary judgment is appropriate when “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” 735 ILCS 5/2-1005(c) (West 2010). The trial court’s ruling with regard to summary
judgment is subject to de novo review. Reppert v. Southern Illinois University, 375 Ill. App.
3d 502, 504, 874 N.E.2d 905, 907 (2007). A reviewing court “may affirm a grant of summary
judgment on any basis appearing in the record, regardless of whether the trial court relied
upon that ground.” Perez v. Sunbelt Rentals, Inc., 2012 IL App (2d) 110382, ¶ 7, 968 N.E.2d
1082.
¶ 20 B. The Purpose and Operation of FOIA
¶ 21 Before addressing the parties’ arguments, we first outline the purpose of FOIA. It is “the
public policy of the State of Illinois 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.” 5 ILCS 140/1 (West 2010).
The purpose of FOIA is to “open governmental records to the light of public scrutiny.”
Reppert, 375 Ill. App. 3d at 505, 874 N.E.2d at 907. In furtherance of this policy, FOIA is
to be liberally construed while exemptions are to be read narrowly. Southern Illinoisan v.
Illinois Department of Public Health, 218 Ill. 2d 390, 416, 844 N.E.2d 1, 15 (2006).
However, FOIA “is not intended to cause an unwarranted invasion of personal privacy.” 5
ILCS 140/1 (West 2010). When a novel FOIA issue arises regarding the Illinois FOIA
statute, Illinois courts often look to cases citing the federal FOIA statute (5 U.S.C. § 552(2006)) for interpretation, due to the similarity of the statutes. Harwood v. McDonough, 344
Ill. App. 3d 242, 248, 799 N.E.2d 859, 864 (2003).
¶ 22 Pursuant to FOIA, the public body seeking to deny access to documents has the burden
of showing, by clear and convincing evidence, the requested documents fall within one of
the FOIA exemptions. 5 ILCS 140/1.2 (West 2010); see also Harwood, 344 Ill. App. 3d at
245-46, 799 N.E.2d at 862. Satisfying this burden requires the public body to provide a
detailed explanation for asserting the exemptions in order for those reasons to be tested in
an adversarial proceeding. Lieber v. Board of Trustees of Southern Illinois University, 176
Ill. 2d 401, 408, 680 N.E.2d 374, 377 (1997). The trial court shall conduct an in camera
inspection of the files to determine whether the public body can sustain its burden of proof.
5 ILCS 140/11(f) (West 2010). Although the burden is on UIS, we recognize the Journal is
put at a disadvantage as it argues in favor of disclosure since the Journal is unaware of the
content of the documents it is requesting.
¶ 23 Having outlined the purpose and procedures of FOIA, we now turn to the documents at
issue in this case.
¶ 24 C. Whether the Deliberative Process Exemption
Applies to the Journal’s FOIA Request
¶ 25 The Journal argues the trial court erred in finding several requested documents fell under
the deliberative process exemption of FOIA (5 ILCS 140/7(1)(f) (West 2010)). The relevant
-6-
portion of that subsection exempts the following documents:
“Preliminary drafts, notes, recommendations, memoranda and other records in which
opinions are expressed, or policies or actions are formulated, except that a specific record
or relevant portion of a record shall not be exempt when the record is publicly cited and
identified by the head of the public body.” 5 ILCS 140/7(1)(f) (West 2010).
¶ 26 The purpose of exempting predecisional and deliberative material is “to protect the
communications process and encourage frank and open discussion among agency employees
before a final decision is made.” Harwood, 344 Ill. App. 3d at 248, 799 N.E.2d at 864.
Otherwise, those who expect their remarks to be made public “ ‘may well temper candor with
a concern for appearances and for their own interests to the detriment of the decisionmaking
process.’ ” Enviro Tech International, Inc. v. United States Environmental Protection
Agency, 371 F.3d 370, 374 (7th Cir. 2004) (quoting United States v. Nixon, 418 U.S. 683,
705 (1974)).
¶ 27 Purely factual material must be disclosed once a final decision has been made, unless the
factual material is inextricably intertwined with predecisional and deliberative discussions.
Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 36, 980 N.E.2d 733 (quoting Enviro Tech
International, Inc., 371 F.3d at 374-75). Factual information includes that which is collected
within investigative reports, such as affidavits of witnesses and investigator’s interviews,
though personal information should be redacted. Poss v. National Labor Relations Board,
565 F.2d 654, 658 (10th Cir. 1977); see also Watkins, 2012 IL App (1st) 100632, ¶ 38, 980
N.E.2d 733. Communications after an agency has issued a decision are not exempt from
disclosure. National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 151-52
(1975).
¶ 28 In this case, UIS classifies a majority of its documents as being part of the predecisional,
deliberative process. The “e-mail strings” containing the staff opinions and general
communications regarding the process of the investigation or the scheduling of meetings
during the investigative process (Bates Nos. 1-6 and 22-23) are clearly protected within this
exemption, as the administrators collected information in order to guide them in reaching a
decision as to whether misconduct occurred and the type of remedy to provide for any proved
misconduct. The content of the e-mail strings is precisely the type of communication
Harwood refers to in permitting frank and open discussion with the administration. Nothing
in those documents contains a factual accounting of events subject to disclosure under FOIA.
The Journal asserts UIS did not provide adequate details to allow the Journal to test UIS’s
assertions in an adversarial proceeding, but we find the court exercised the appropriate
remedy by granting the Journal’s motion for an in camera inspection of the records.
¶ 29 Additionally, the redacted portions of the letter submitted to UIS from the victim’s
attorney (Bates Nos. 56-57) is exempt from disclosure as a predecisional document. The
letter does contain a brief synopsis of what the victim contends occurred. However, the
remaining undisclosed portion outlines the opinion of the victim and her attorney regarding
how they wish to proceed with resolving the victim’s potential legal claims against UIS. This
information would have undoubtedly been relied upon by UIS in formulating a plan or policy
for settling potential litigation with the victim. Moreover, for reasons discussed below with
-7-
regard to the witness statements, we find the redacted factual information contained within
the letter to be of a highly personal nature and, therefore, exempt under section 7(1)(c).
¶ 30 Conversely, the documents containing witness statements (Bates Nos. 24-50) are not
exempt from disclosure as predecisional and deliberative documents, despite UIS’s reliance
on the documents prior to making its decision and PAC’s preauthorization for use of the
exemption. These documents, which contain factual accountings of the events by witnesses,
are capable of standing alone, with no evidence they are “inextricably intertwined” with the
predecisional process. See Watkins, 2012 IL App (1st) 100632, ¶ 36, 980 N.E.2d 733.
However, for reasons discussed below, we conclude these documents are subject to the
personal privacy exemption. See 5 ILCS 140/7(1)(c) (West 2010).
¶ 31 The “internal communication re: personnel matter” document (Bates No. 55) is also not
subject to exemption under section 7(1)(f). The communication reflects a final decision, so
it clearly is not part of the predecisional, deliberative process. As discussed below with
regard to documents within a personnel file, we additionally find this document is not subject
to the personal privacy exemption under section 7(1)(c) because this type of communication
was for the benefit of the administrators and, thus, would not receive the same exemption as
those documents which are properly contained within a personnel file. Finally, as discussed
later in this order, we further conclude this document is not exempt from disclosure pursuant
to the Educational Privacy Act.
¶ 32 After review of the sealed documents, we conclude (1) the e-mails circulated in order to
schedule and coordinate proceedings (Bates Nos. 1-6, 22-23) and (2) the undisclosed portion
of the letter from the victim’s attorney (Bates Nos. 56-57) are exempt under FOIA. However,
the witness statements taken during the investigative process (Bates Nos. 24-50) are not
subject to exemption under section 7(1)(f), but most portions are subject to the personal
privacy exemption under section 7(1)(c), as explained below. Additionally, we conclude the
internal communication regarding a “personnel matter” is not subject to exemption under
section 7(1)(f), nor, as we discuss later in this opinion, subject to exemptions under section
7(1)(c) or section 7(1)(a) of FOIA. Accordingly, the “internal communication re: personnel
matter” must be disclosed by UIS.
¶ 33 D. Whether the Personal Privacy Exemption
Applies to the Journal’s FOIA Request
¶ 34 The Journal next asserts the trial court erred in finding the requested documents subject
to the personal privacy exemption of FOIA (5 ILCS 140/7(1)(c) (West 2010)). The section
exempts:
“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
-8-
considered an invasion of personal privacy.” 5 ILCS 140/7(1)(c) (West 2010).
¶ 35 A person has an “individual interest in avoiding disclosure of personal matters.” Whalen
v. Roe, 429 U.S. 589, 599 (1977). In particular, the United States Constitution provides
individuals have the right to privacy in personal decisions of a sexual nature, such as
marriage, procreation, and contraception. People v. Beard, 366 Ill. App. 3d 197, 204, 851
N.E.2d 141, 148 (2006). The Illinois Constitution extends this right with a broad,
unrestrictive provision that recognizes a “zone of personal privacy.” (Internal quotation
marks omitted.) Beard, 366 Ill. App. 3d at 204, 851 N.E.2d at 148; Ill. Const. 1970, art. I,
§ 6; see also Kunkel v. Walton, 179 Ill. 2d 519, 537, 689 N.E.2d 1047, 1055 (1997).
¶ 36 1. Documents Contained Within the Coaches’ Personnel Files
¶ 37 The Journal contends UIS must disclose information from the personnel files of those
coaches who allegedly committed misconduct (Bates Nos. 7-11, 13, 15-16, and 18-19). UIS
disagrees, arguing those documents contained within personnel files are exempt under
section 7(1)(c).
¶ 38 Though information contained within a personnel file is generally exempt from
disclosure for personal privacy reasons, “information that bears on the public duties of public
employees and officials” is not exempt under the personal privacy exemption. See Gekas v.
Williamson, 393 Ill. App. 3d 573, 583, 912 N.E.2d 347, 356 (2009) (disclosing records of
internal affairs investigation into sheriff’s activities is not an invasion of privacy). To allow
an exemption for every document a public body placed within a “personnel file” would allow
a public body to subvert the purposes of FOIA. Id. Therefore, “the trial court must determine,
through an in camera inspection of the file, whether the requested information is exempt as
a clearly unwarranted invasion of personal privacy and whether the presence of exempt
private information can be cured through redaction.” Stern v. Wheaton-Warrenville
Community Unit School District 200, 384 Ill. App. 3d 615, 622, 894 N.E.2d 818, 825 (2008),
aff’d in part & vacated in part, 233 Ill. 2d 396, 910 N.E.2d 85 (2009).
¶ 39 The Journal relies on Stern to support its argument that documents contained within the
personnel files of public employees are not exempt from disclosure. In Stern, a newspaper
made a request for a school superintendent’s contract while comparing superintendent
salaries in other districts. Stern, 233 Ill. 2d at 400-01, 910 N.E.2d at 89. The supreme court
held the contract was not exempt from disclosure under FOIA because the contract contained
the duties of a public official. Stern, 233 Ill. 2d at 415, 910 N.E.2d at 97. However, the court
noted any personal information, such as social security numbers and bank account numbers,
should be redacted. Stern, 233 Ill. 2d at 414, 910 N.E.2d at 97.
¶ 40 Conversely, UIS cites to Copley Press, Inc. v. Board of Education for Peoria School
District No. 150, 359 Ill. App. 3d 321, 325, 834 N.E.2d 558, 561-62 (2005), which held
documents that were properly contained within a personnel file, such as performance
evaluations and records of disciplinary actions, were per se exempt from disclosure.
¶ 41 In this case, the information sought by the Journal includes documents reflecting the
coaches’ compensation for accrued vacation and sick time, employee status, and other related
documents. The Journal interprets Stern too broadly, inferring any document within a
-9-
personnel file can be subject to disclosure as bearing on the “public duties” of the employees.
A closer reading of Stern shows the case was limited to the disclosure of employment
contracts, as those contracts set forth the duties of public employees and the compensation
paid from public funds. We find the present case more analogous to Copley. We fail to see
how the coaches’ election for the disbursement of accrued vacation, sick leave, and related
documents have any bearing on their alleged misdeeds or public duties. Instead, we conclude
this information is of a highly personal nature, contained appropriately in a personnel file,
and exempt from disclosure.
¶ 42 2. Witness Statements, Settlement Agreement, and Other Documents
¶ 43 The Journal next asserts it is entitled to witness statements (Bates Nos. 24-39 and 41-50),
the unredacted settlement agreement and ledger (Bates Nos. 58-59 and 67), and other
documents for which UIS claims the personal privacy exemption under section 7(1)(c) (Bates
Nos. 51-52, 53-54, and 40).
¶ 44 Courts are required to balance the individual’s right to privacy with the public’s
legitimate interest in disclosure. See Lieber v. Southern Illinois University, 279 Ill. App. 3d
553, 561, 664 N.E.2d 1155, 1160 (1996), aff’d sub nom. Lieber v. Board of Trustees of
Southern Illinois University, 176 Ill. 2d 401, 680 N.E.2d 374 (1997). In weighing those
interests, the court should consider “(1) the plaintiff’s interest in disclosure; (2) the public
interest in disclosure; (3) the degree of invasion of personal privacy; and (4) the availability
of alternative means of obtaining the requested information.” Lieber, 279 Ill. App. 3d at 561,
664 N.E.2d at 1160.
¶ 45 a. Witness Statements
¶ 46 The Journal asserts it is entitled to witness statements generated during the investigation
of alleged misconduct by UIS coaching staff (Bates Nos. 24-39, 41-50). UIS, in turn, argues
these statements are exempt from disclosure under section 7(1)(c) as an unwarranted
invasion of personal privacy.
¶ 47 Under the first prong of Lieber, the Journal argues its interest in disclosure is to inform
the public of a violent crime and UIS’s attempt to conceal the misconduct of its coaches. The
Journal compares this instance to Jane Doe-3 v. White, 409 Ill. App. 3d 1087, 951 N.E.2d
216 (2011), in which the Bloomington-Normal school district failed to disclose a former
teacher’s resignation due to sexual abuse of students to the Champaign County school
district, which later hired the same teacher. The court held that when the Bloomington-
Normal school district took the affirmative step of writing falsified letters of
recommendation on behalf of the teacher, it assumed a special duty of care that could lead
to potential liability. Jane Doe-3, 409 Ill. App. 3d at 1100, 915 N.E.2d at 229. We find the
Journal’s reliance on Jane Doe-3 unconvincing, as UIS did inform the public about sexual
impropriety by one or more coaches and has not attempted to falsify the coaches’ records in
an attempt to hide any allegations. Moreover, Jane Doe-3 was not a FOIA case; rather, it
concerned the school district’s civil liability under tort law, which is unpersuasive when
applied to the case at bar.
-10-
¶ 48 UIS asserts the Journal’s interest is economic in nature, as publishing the salacious
content would serve to increase its newspaper sales and sensationalize the underlying
misconduct. UIS asserts the Journal’s interests have been satisfied because it has already
published numerous articles regarding the coaches’ misconduct, such as (1) softball coach
Roy Gilmore resigned after allegedly sexually assaulting a softball player on a team trip to
Florida in 2009; (2) the head coach of the softball team, Joe Fisher, resigned due to the
allegations against Gilmore; (3) the student who made allegations against Gilmore received
$200,000 in a settlement with UIS; (4) golf coach Jay Davis unexpectedly resigned in 2009;
and (5) all coaches were asked to resign by UIS. We agree to an extent. While the Journal
has minimal interest in the explicit details of events that occurred on the softball trip, it does
have an interest in the events leading up to the misconduct.
¶ 49 In satisfying the second prong of Lieber, the Journal explains the public interest in
disclosure is to know about sexual misconduct of UIS coaches and UIS’s reaction to the
misconduct in order to better protect the public and community, as shown in Jane Doe-3.
UIS again asserts the public interest has been satisfied by the numerous articles previously
published by the Journal regarding the incidents, which disclose acts of sexual impropriety
by the coach.
¶ 50 In its argument in support of public disclosure, the Journal relies, in part, upon Florida
Star v. B.J.F., 491 U.S. 524 (1989), to suggest the public interest in news regarding a violent
crime, such as sexual assault, trumps the victim’s interest in personal privacy. In Florida
Star, the police department allowed unrestricted media access to police reports, then the
media published the information contained within the police reports, including the victim’s
name, which was contrary to Florida law. Florida Star, 491 U.S. at 527. The Supreme Court
concluded “that where a newspaper publishes truthful information which it has lawfully
obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a
state interest of the highest order, and that no such interest is satisfactorily served by
imposing liability” under the set of facts presented to the Court. Florida Star, 491 U.S. at
541. The Court reasoned the police department was in a better position to self-regulate the
release of sensitive material rather than punishing a newspaper for printing material it
obtained legally from the police. Florida Star, 491 U.S. at 538.
¶ 51 We find Florida Star unpersuasive and inapposite to the case at bar, as Florida Star
represents an instance of a victim trying to undo the damage after the fact. In the present
case, the damage to the victim’s personal privacy can be prevented. However, the public does
have a legitimate concern in the decisions of UIS or its coaches that led to the behaviors
preceding the sexual misconduct (Bates Nos. 24-25). This information would be of legitimate
interest to not only the general public, but to parents of students.
¶ 52 The Journal also explains the public has an interest in UIS’s actions, particularly in
allowing the coaches to resign rather than terminating them. No evidence supports a
university-wide attempt to hide the general facts regarding the resignations of the coaches.
As the UIS attorney explained, the coaches were allowed to resign in lieu of a prolonged
administration process that could have resulted in the coaches retaining their positions. UIS’s
decision allowed for a very swift response.
-11-
¶ 53 Under the third prong of Lieber, UIS asserts the disclosure of the witness statements
would greatly invade the personal privacy of the student witnesses and cause the victim to
relive the traumatizing experience. As the victim’s attorney stated in an affidavit to the court:
“The UIS student who was my client did not wish and does not wish to be subjected
to public embarrassment nor to have the facts and circumstances related to this
invasion of her most private, intimate, and personal safety made public. *** The only
current public interest, given the passage of time, is a prurient and licentious interest
which interest is significantly outweighed by my client’s interest in her privacy. ***
My client has a substantial and compelling interest in not having these matters which
caused her emotional trauma to be brought back up and subjected to public scrutiny.
My client was one of the victims and any disclosure would subject her to additional
trauma.”
¶ 54 The Journal contends redacting the records would be sufficient to protect the privacy
interests of the witnesses and victims. However, given the few members of the softball and
golf teams, disclosing any detailed information about the offenses would make the student
more easily identifiable. Having said that, some information contained within the coaches’
statements (Bates Nos. 24-25) could be redacted and disclosed without an unwarranted
invasion of the students’ personal privacy. Specifically, we refer to actions and observations
made by the UIS softball coaches preceding the sexual misconduct.
¶ 55 At this stage, the undisclosed information consists of (1) the detailed accounting of the
sexual misconduct and (2) the actions and behaviors of the coaches preceding the act of
sexual misconduct. The Journal and the public know an act or acts of sexual misconduct by
a softball coach led to the swift resignation of two UIS softball coaches, resulting in a
$200,000 settlement paid to a student. As the trial court noted after reviewing the articles
published by the Journal:
“I don’t know what more you can find that makes things any worse than they are. He
did–they did a pretty good job beating up these two guys and [UIS]. I’m not sure what
else out there there is other than the kind of nasty dirty stuff that allegedly took place, and
I don’t see a great deal of public interest in that as relates to the personal private interest
of the girls that were involved.”
¶ 56 We agree with the trial court’s assessment. The details of that sexual misconduct are
highly personal, which weighs heavily in favor of exemption. The same cannot be said for
the actions and behaviors of the coaches preceding the sexual misconduct, which does not
affect the personal privacy rights of the students, but instead reflects on the decisions of UIS
and its coaches.
¶ 57 To satisfy the fourth prong of Lieber, the Journal contends it had no practical alternative
means by which to obtain the requested information. UIS notes the Journal had already
received significant information from UIS, which the Journal published in its newspaper.
Additionally, the Journal could easily obtain the rosters from the 2009 softball and golf teams
and request interviews with the players. We agree with UIS. The Journal could easily obtain
the names of female golf and softball players and coaches in 2009 and ask those individuals
for interviews or other information.
-12-
¶ 58 Based on this particular set of facts, specifically the fact that the Journal has been able
to publish numerous articles informing the public of (1) UIS’s actions in asking the coaches
to resign and (2) the general allegations against the coaches, we conclude the unwarranted
invasion of privacy outweighs the public interest with regard to the majority of the witness
statements. Therefore, we conclude the witness statements (Bates Nos. 26-39 and 41-50) are
exempt from disclosure under section 7(1)(c) of FOIA. However, we also conclude the
public interest outweighs personal privacy in redacted portions of the coaches’ statements
in Bates Nos. 24-25, which describe the events preceding the act of sexual misconduct. As
explained later in this opinion, the Educational Privacy Act does not apply to these redacted
portions of the coaches’ statements, which means UIS must disclose the documents as
redacted. Specifically, in Bates No. 24, UIS must disclose the first three paragraphs after
redacting the names of the softball players mentioned in those paragraphs. The remaining
paragraphs are not subject to disclosure. With regard to Bates No. 25, UIS must disclose the
final paragraph after redacting the names of the softball players mentioned in that paragraph.
The remaining paragraphs are not subject to disclosure.
¶ 59 b. Settlement Agreement and Ledger
¶ 60 With respect to the settlement agreement and ledger reflecting the settlement payment,
the only portion of those documents not previously disclosed by UIS is the name of the
victim. The Journal contends it is in the public’s interest to know how public university
funds are spent and the recipient of those funds. See 5 ILCS 140/2.5 (West 2010). While we
agree the public has a legitimate interest in the spending of a public university such as UIS,
the public already knows UIS paid a student $200,000 to settle allegations of sexual
impropriety by a coach during a 2009 softball team trip to Florida. The payment amount and
details of the reasoning behind the settlement are sufficient to satisfy the legitimate interests
of the public without disclosing the student’s name. If the Journal questions whether UIS
made the payment as required, it could contact the victim’s lawyer, who is named in the
ledger, to ensure UIS remitted payment to the victim in a timely fashion. There is no
legitimate public interest in the name of the victim; thus, the victim’s personal privacy
interests far outweigh the interest of the public or of the Journal.
¶ 61 Moreover, at the trial court and again on appeal, the Journal insists it is not interested in
the individual names of students, yet does not withdraw its request for the unredacted
settlement agreement and ledger. As Rushton noted in his formal request for review under
FOIA, when presented with the redacted settlement agreement: “I cannot fathom how a
public body can withhold the identity of an individual or entity that received public funds.”
However, because the Journal persists in arguing it is uninterested in student names, its
subsequent request for what amounts to the name of the victim is appropriately denied as an
abandoned argument. See Senior Housing, Inc. v. Nakawatase, Rutkowski, Wyns & Yi, Inc.,
192 Ill. App. 3d 766, 770, 549 N.E.2d 604, 607 (1989) (“Generally, an appeal will be
considered as abandoned where the appellant fails to prosecute the appeal or does some act
inconsistent with its prosecution.”).
¶ 62 We conclude the trial court did not err in finding the victim’s name contained within the
-13-
settlement agreement and ledger (Bates Nos. 58-59 and 67) exempt from disclosure.
¶ 63 c. Other Documents
¶ 64 UIS also claims the personal privacy exemption with respect to various correspondence
arising from but not directly related to the coaches’ resignation. One of the pieces of
correspondence is an e-mail string containing a student complaint and an administrator
arranging a meeting with that student (Bates Nos. 51-52). The second is correspondence from
the parent of an affected UIS student addressed to the UIS president (Bates Nos. 53-54). The
third item is a private communication between an affected student and one of the coaches
(Bates No. 40).
¶ 65 With respect to the two sets of e-mail correspondence, in balancing the Lieber factors,
the Journal and public have an interest in the opinions of students and the parents of students
with regard to the resignation of the coaches, especially if those individuals believe UIS is
attempting to conceal information from the public. Conversely, the individuals who
composed each correspondence have a privacy interest in being able to privately express their
opinions and concerns to UIS. Parents and students should feel free to address the
administration without fear their correspondence will be on the front page of the morning
newspaper. If the student or parents wanted their concerns and opinions to be publicized,
they could have easily contacted the media in order to express those opinions.
¶ 66 However, our inquiry cannot stop there. The question then becomes whether redaction
of the correspondence, consistent with section 7(1) of FOIA, would remedy any personal
privacy concerns. A closer inspection of the correspondence from the parent reveals
redaction is not a potential remedy because the affected student could easily be identified
through the context of the letter. After balancing the interests, under section 7(1)(c) of FOIA,
we conclude the parent’s letter to UIS (Bates No. 53-54) is exempt from disclosure.
However, with regard to the correspondence to UIS from a student, we conclude redaction
would adequately protect the privacy interests because nothing in the content of the e-mail,
other than the student’s name, identifies the student. Thus, the student’s complaint (Bates
No. 51-52) must be disclosed after redaction of any identifying information because the
document is not exempt under section 7(1)(c) of FOIA or under the Educational Privacy Act,
as further discussed below.
¶ 67 The third communication is directly related to one coach’s resignation, which would
undoubtedly be of public interest under the Lieber balancing test. We note the public is
already aware the coach resigned due to inappropriate behavior but knows none of the details
leading to that resignation. However, in this situation, given the highly personal nature of the
communication and the method by which it came to UIS’s attention, we find the public
interest is outweighed by the unwarranted invasion of privacy of the student when balancing
the Lieber factors.
¶ 68 E. Whether the Educational Privacy Act
Prevents Disclosure of Records Under FOIA
-14-
¶ 69 Having concluded that all but three documents are exempt from disclosure under section
7(1)(c) or 7(1)(f) of FOIA, we now turn to the three remaining documents, which consist of
(1) the “internal communication re: personnel matter” (Bates No. 55), (2) the e-mailed
student complaint (Bates No. 51-52), and (3) coaches’ witness statements (Bates Nos. 24-25)
to determine whether the Educational Privacy Act requires exemption of those documents.
¶ 70 The purpose of the Educational Privacy Act is to “ensure access to educational records
for students and parents and to protect the privacy of such records from the public at large.”
Student Press Law Center v. Alexander, 778 F. Supp. 1227, 1228 (D.D.C. 1991). Section
1232g(b)(1) of the Educational Privacy Act provides:
“No funds shall be made available under any applicable program to any educational
agency or institution which has a policy or practice of permitting the release of education
records (or personally identifiable information contained therein other than directory
information, as defined in paragraph (5) of subsection (a) of this section) of students
without the written consent of their parents to any individual, agency, or organization
***.” 20 U.S.C. § 1232g(b)(1) (2006).
The statute defines “education records” as records, files, documents, or other materials which
(1) “contain information directly related to a student” and (2) “are maintained by an
educational agency or institution or by a person acting for such agency or institution.” 20
U.S.C. § 1232g(a)(4)(A) (2006).
¶ 71 A cursory examination of the “internal communication re: personnel matter” reveals it
is not subject to the Educational Privacy Act because it is not a student education record, nor
does its content reference, directly or indirectly, any information regarding a student. Further,
this communication makes no reference to any underlying details of alleged misconduct. We
would also note the majority of the content within this communication has already been
disclosed to the Journal and the public. Therefore, we conclude the Educational Privacy Act
does not apply to this “internal communication” (Bates No. 55).
¶ 72 Likewise, we conclude the student complaint (Bates No. 51-52), on its face, is not subject
to the Educational Privacy Act. The complaint does not contain information directly related
to a student; rather, it expresses the voluntarily expressed opinion of a student with no
identifying characteristics once the student’s name has been redacted.
¶ 73 Finally, a cursory examination of the nonredacted portions of the coaches’ witness
statements (Bates Nos. 24-25) reveals those statements are not subject to the Educational
Privacy Act, as they reflect on the actions and behaviors of the coaches, not the students.
None of the disclosed statements would directly relate to a student, as required for exemption
under the Educational Privacy Act.
¶ 74 Accordingly, we conclude the Educational Privacy Act does not prevent the disclosure
of (1) the “internal communication re: personnel matter” (Bates No. 55), (2) the student
complaint (Bates Nos. 51-52), or (3) nonredacted portions of the coaches’ witness statements
(Bates Nos. 24-25). Because an examination of the documents convinces us these documents
do not, on their face, fall within the parameters of the Educational Privacy Act, we need not
address whether the Educational Privacy Act specifically prohibits the disclosure of
education records in Illinois, as necessary to satisfy section 1(a) of FOIA.
-15-
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, we conclude the trial court erred in denying the Journal’s
FOIA request for (1) the e-mail string containing a student complaint (Bates Nos. 51-52)
once redacted, (2) the “internal communication re: personnel matter” (Bates No. 55), and (3)
the coaches’ witness statements (Bates Nos. 24-25), once redacted. The remainder of the
court’s order is affirmed.
¶ 77 Affirmed in part and reversed in part.
-16-