Southern Illinoisan v. Dept. of Pub. Health

• Decision Date: 02 February 2006
• Docket Number: No. 98712.,98712.
• Citation: 844 N.E.2d 1,218 Ill.2d 390
• Parties: SOUTHERN ILLINOISAN, Appellee, v. The ILLINOIS DEPARTMENT OF PUBLIC HEALTH et al., Appellants.
• Court: Illinois Supreme Court

Page 1

844 N.E.2d 1

218 Ill.2d 390

SOUTHERN ILLINOISAN, Appellee, v. The ILLINOIS DEPARTMENT OF PUBLIC HEALTH et al., Appellants.

No. 98712.

Supreme Court of Illinois.

February 2, 2006.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, Jerald S. Post, Assistant Attorney General, Chicago, of counsel), for appellants.

Donald M. Craven, Springfield, for appellee.

Richard J. O'Brien, Eric S. Mattson and Jamie L. Secord, of Sidley, Austin, Brown & Wood, L.L.P., Chicago, for amici curiae Associated Press et al.

OPINION

Justice McMORROW delivered the judgment of the court, with opinion:

Plaintiff, the Southern Illinoisan newspaper, requested the Illinois Department of Public Health (Department) to release from the Illinois Health and Hazardous Substances Registry (Cancer Registry) certain data about incidents of neuroblastoma, a rare form of childhood cancer. The Department denied plaintiff's request. Thereafter, plaintiff filed a complaint in the circuit court of Jackson County pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 1998)), requesting judicial review of the Department's denial. The circuit court granted plaintiff summary judgment and ordered the Department to release the requested data. The appellate court reversed the judgment of the circuit court and remanded the cause for further proceedings. 319 Ill.App.3d 979, 254 Ill.Dec. 361, 747 N.E.2d 401 (2001) (Southern Illinoisan I). After a bench trial, the circuit court of Jackson County again ordered the release of the requested information. The appellate court affirmed the judgment of the circuit court and directed the Department to release the information requested by plaintiff. 349 Ill.App.3d 431, 285 Ill.Dec. 438, 812 N.E.2d 27 (Southern Illinoisan II). For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

We limit our discussion of the factual background and procedural history of the instant cause to only those points relevant to the issue presented in this appeal. Plaintiff, the Southern Illinoisan, is a daily newspaper published in Carbondale, Illinois. On October 28, 1997, plaintiff made a written request, pursuant to the FOIA (5 ILCS 140/3 (West 1998)), that the Department provide plaintiff with copies of documents relating to the incidence of neuroblastoma¹ in Illinois from 1985 to the date of the request. In its request, plaintiff wrote that it believed that these documents were "available by type of cancer, zip code and date of diagnosis," and asked that the information be delivered to plaintiff in that format. Plaintiff did not request that the Department release any other identifying information, such as the patients' names or addresses. In a letter dated November 18, 1997, the Department denied plaintiff's FOIA request. The Department based this denial on sections 7(1)(a) and (1)(b) of the FOIA (5 ILCS 140/7(1)(a), (1)(b) (West 1998)), which protects information that is specifically exempted from disclosure under state law. According to the Department, the Medical Studies Act (735 ILCS 5/8-2101 (West 1998)) prohibited the Department from disclosing any information "collected in a medical study."

On November 24, 1997, plaintiff appealed the denial of its FOIA request to Dr. John R. Lumpkin, the Director of the Department.² In a letter dated December 4, 1997, Dr. Lumpkin reaffirmed the denial of plaintiff's FOIA request. In his letter to plaintiff, Dr. Lumpkin explained the basis for the denial: "After reviewing the request, I must affirm the Department's denial of the information regarding the incidence of neuroblastoma by zip code and date of diagnosis based on the Medical Studies Act (735 ILCS 5/8-2101). I believe this information is, and should continue to be, protected as it is information collected in a medical study."

On January 23, 1998, plaintiff filed a complaint in the circuit court of Jackson County, pursuant to section 11 of the FOIA (5 ILCS 140/11 (West 1998)). The complaint requested, inter alia, judicial review of the Department's denial of plaintiff's information request. Plaintiff contended that no statutory disclosure exemption applied to the records it had requested from the Department. According to plaintiff, the records it sought to obtain from the Department under the FOIA were clearly of significant interest to the general public, as they would "reveal the existence or non-existence of cancer clusters in the State of Illinois." In support of its request for disclosure, plaintiff cited to the appellate court's decision in May v. Central Illinois Public Service Co., 260 Ill.App.3d 41, 198 Ill.Dec. 635, 633 N.E.2d 97 (1994), as controlling.

On June 8, 2005, plaintiff filed in the circuit court a motion for judgment on the pleadings or, in the alternative, a motion for partial summary judgment. According to plaintiff, the Department, in its answer to plaintiff's complaint, failed to raise any statutory exemption as an affirmative defense to plaintiff's FOIA request for disclosure. In addition, plaintiff asserted, the Department had failed to raise any factual basis in support of the claim that the documents were exempt from disclosure. Plaintiff argued that the instant cause was factually analogous to the appeal in May, wherein the appellate court upheld the trial court's order directing the Department to disclose records identical to those requested in this cause. Plaintiff noted that in May, the court held that the release of the records from the Cancer Registry by type of cancer, date of diagnosis and ZIP code would not result in an invasion of patient privacy. Accordingly, plaintiff asserted, a similar result was warranted here, and there existed no genuine issue of material fact to preclude entry of summary judgment in its favor.

Thereafter, the Department filed a response to plaintiff's summary judgment motion, as well as its own cross-motion for summary judgment.³ The Department argued, inter alia, that because disclosure of the information sought by plaintiff was prohibited by the Illinois Health and Hazardous Substances Registry Act (Registry Act) (410 ILCS 525/1 et seq. (West 1998)), it was therefore exempt under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 1998)). The Department explained in its pleadings that it could not satisfy plaintiff's FOIA request because although the FOIA provides that "each public body shall make available to any person for inspection or copying all public records" (see 5 ILCS 140/3(a) (West 1998)), there are certain exceptions to disclosure, including "[i]nformation specifically prohibited from disclosure by * * * State law or rules or regulations adopted under * * * State law" (see 5 ILCS 140/7(1)(a) (West 1998)). The Department argued that the information requested by plaintiff was prohibited from disclosure under this provision because the Registry Act precludes disclosure of information which reveals "[t]he identity, or any group of facts which tends to lead to the identity, of any person whose condition or treatment is submitted to the Illinois Health and Hazardous Substances Registry." See 410 ILCS 525/4(d) (West 1998).

In support of its position, the Department attached the affidavit of Dr. Latanya Sweeney, Ph.D., a professor of computer science and public policy at Carnegie Mellon University. In her affidavit, Dr. Sweeney attested that, at the behest of the Department, she conducted an experiment to determine if persons listed in the Cancer Registry could be identified from only the three information fields requested by plaintiff: the type of cancer, the date of diagnosis, and the patient's ZIP code. According to Dr. Sweeney, she compared the data in these three information fields to other data sets that are available to the general public, such as patient names, addresses, phone numbers, financial information, and other medical information. Even though the data in the Cancer Registry did not have identifiers such as names, addresses and telephone numbers, Dr. Sweeney attested that through her experiment she could "show how persons can be re-identified from the Illinois Cancer Registry when the combination of data elements that includes only type of cancer, date of diagnosis, and zip code is provided." According to Dr. Sweeney, her experiment "establishe[d] that a significant number of individuals in the general public with access to a personal computer, using traditional database software, who purchase or acquire public data sets will be able to reidentify individuals in the Illinois Cancer Registry," as this "seemingly anonymous information can be re-identified by linking the information to databases that are made available to the public."

Finally, although the Department noted that plaintiff relied upon the May case and also acknowledged that in May the court was faced with the same issue as in the instant matter, the Department attempted to draw one crucial difference between May and the instant cause: the court in May was not presented with any definitive showing of how the data contained in the Cancer Registry could be reidentified. The Department asserted that, based upon Dr. Sweeney's affidavit, it established how the dissemination of this information could tend to lead to a patient's identity, and, therefore, that the disclosure of the information was prohibited.

On December 31, 1998, the circuit court granted plaintiff's motion for summary judgment, and denied the Department's crossmotion for summary judgment. In the course of its ruling, the court noted that it had made an in camera inspection of the records requested by plaintiff under the FOIA and determined that the appellate court's decision in May was controlling. Accordingly, in its order, the circuit court directed the Department to "produce the Illinois Cancer Registry by listing the type of cancer, date of diagnosis and zip code of each cancer patient from 1985 to present." The circuit...