State Journal-Register v. Univ. of Ill. Springfield

• Decision Date: 08 August 2013
• Docket Number: No. 4–12–0881.,4–12–0881.
• Citation: 373 Ill.Dec. 936,2013 IL App (4th) 120881,994 N.E.2d 705
• Parties: The STATE JOURNAL–REGISTER and Bruce Rushton, 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.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 120881
994 N.E.2d 705
373 Ill.Dec. 936

The STATE JOURNAL–REGISTER and Bruce Rushton, 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.

No. 4–12–0881.

Appellate Court of Illinois,
Fourth District.

Aug. 8, 2013.

[994 N.E.2d 708]

Donald M. Craven (argued) and Esther J. Seitz, Donald M. Craven, P.C., Springfield, for appellants.

J. William Roberts and Charles R. Schmadeke (argued), Hinshaw & Culbertson, LLP, Springfield, for appellees.

OPINION
Justice HOLDER WHITE delivered the judgment of the court, with opinion.

[373 Ill.Dec. 939]¶ 1 In March 2011, plaintiffs Bruce Rushton, a reporter, and the State Journal–Register, a newspaper (collectively, [373 Ill.Dec. 940]

[994 N.E.2d 709]

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.”

¶ 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, [373 Ill.Dec. 941]

[994 N.E.2d 710]

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) 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 [373 Ill.Dec. 942]

[994 N.E.2d 711]

“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 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...