Stern v. Wheaton-Warrenville Community Unit

• Decision Date: 21 May 2009
• Docket Number: No. 107139.,107139.
• Citation: 233 Ill.2d 396,910 N.E.2d 85
• Parties: Mark O. STERN, Appellant, v. WHEATON-WARRENVILLE COMMUNITY UNIT SCHOOL DISTRICT 200, Appellee.
• Court: Illinois Supreme Court

910 N.E.2d 85

233 Ill.2d 396

Mark O. STERN, Appellant, v. WHEATON-WARRENVILLE COMMUNITY UNIT SCHOOL DISTRICT 200, Appellee.

No. 107139.

Supreme Court of Illinois.

May 21, 2009.

John A. Relias, Julie Heuberger Yura, and Katie L. Belpedio, of Franczek Radelet & Rose P.C., Chicago, for appellant.

Shawn M. Collins and Robert L. Dawidiuk, of The Collins Law Firm, P.C., Naperville, for appellee.

Lisa Madigan, Attorney General, Springfield (Michael A. Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, Chicago, of counsel), for amicus curiae Attorney General of Illinois.

Terry Pastika, Elmhurst, for amicus curiae Citizen Advocacy Center.

Donald M. Craven and Ester J. Seitz, Springfield, for amicus curiae Illinois Press Association.

OPINION

Chief Justice FITZGERALD delivered the judgment of the court, with opinion.

The principal issue in this appeal is whether a school superintendent's employment contract is exempt from disclosure under section 7 of the Freedom of Information Act (FOIA or Act) (5 ILCS 140/7 (West 2006)). We hold that it is not exempt from disclosure, and affirm in part and vacate in part the judgment of the appellate court (384 Ill.App.3d 615, 323 Ill.Dec. 792, 894 N.E.2d 818), and remand for further proceedings.

BACKGROUND

On January 26, 2006, plaintiff, Mark Stern, a resident of Wheaton, Illinois, submitted a FOIA request to defendant, Wheaton-Warrenville Community Unit School District 200 (the District), requesting, inter alia, a copy of the employment contract of the District's then school superintendent, Dr. Gary Catalani. The District's records keeper, Denie Young, denied Stern's FOIA request, stating that because the contract is contained in the superintendent's personnel file, it is exempt from disclosure.

Stern sought assistance from the Illinois Attorney General's office. In response, the Attorney General's Public Access Counselor sent a letter to Catalani, stating in relevant part:

"Please be advised that employment contracts are public information both under the Freedom of Information Act, 5 ILCS 140, and the Illinois Constitution.

The Act specifically identifies as public records, `all information in any account, voucher, or contract dealing with the receipt or expenditure of public or other funds of public bodies.' 5 ILCS 140/2(c). Access to certain kinds of public records also is guaranteed by article VIII, section 1(c) of the Illinois Constitution of 1970, which provides that `reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.'"

Stern thereafter renewed his FOIA request for a copy of the superintendent's employment contract. In a letter dated April 25, 2006, from the District's legal counsel, Stern's request was denied. Stern appealed that decision to the school board president, Andrew Johnson. Johnson denied the appeal. Stern again contacted the Attorney General's office. In response, the chief of the Attorney General's Public Access and Opinions Division sent a letter to the District's legal counsel, reiterating the Attorney General's position that the record sought by Stern is a "public record" that the school district is obligated to furnish under FOIA, and asking that the District reconsider Stern's requests. The District declined to do so. Thus, on November 21, 2006, Stern filed a complaint against the District in the circuit court of Du Page County seeking injunctive relief under FOIA.

In his complaint, Stern detailed the history of his FOIA requests, the District's denials, and the Attorney General's involvement. Although adhering to his position that the employment contract must be disclosed, Stern argued in the alternative that the District waived any statutory exemption when it disclosed the employment contract to other individuals, including members of the news media.

The District moved for summary judgment, arguing that no material issues of fact existed and that, pursuant to Copley Press, Inc. v. Board of Education for Peoria School District No. 150, 359 Ill.App.3d 321, 296 Ill.Dec. 1, 834 N.E.2d 558 (2005), an employment contract that is found in a personnel file is per se exempt from disclosure under section 7(1)(b)(ii) of FOIA (5 ILCS 140/7(1)(b)(ii) (West 2006)). In support of its motion, the District provided an affidavit from Dr. Lori Belha, the District's Assistant Superintendent for Human Resources, in which she attests that Catalani's employment contract is part of his personnel file and physically maintained therein.

In opposition to the District's summary judgment motion, Stern argued that the Copley case is inapplicable because it involved a FOIA request for disciplinary records, not an employment contract. Stern also argued that the personnel file exemption does not apply because the superintendent's employment contract "bears on [his] public duties" (5 ILCS 140/7(1)(b)(ii) (West 2006)) and must be disclosed. Stern further advanced the Attorney General's position: because the contract deals with the expenditure of public funds, disclosure is required under section 2(c)(vii) of FOIA (5 ILCS 140/2(c)(vii) (West 2006)) and article VIII, section 1, of the Illinois Constitution (Ill. Const.1970, art. VIII, § 1). Finally, Stern argued that, pursuant to Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 223 Ill.Dec. 641, 680 N.E.2d 374 (1997), the District waived any exemption when it disclosed the contract to the news media.

As to the waiver issue, Stern relied on Catalani's discovery deposition, as well as correspondence, fax transmittals, and e-mails documenting two FOIA requests from local newspapers. These sources reveal that on May 2, 2006, Catherine Edelman, a staff writer with the Daily Herald, sent a FOIA request to Catalani seeking a copy of his employment contract and all other documents dealing with the superintendent's "perks and compensation," for a "news story on how superintendents are paid." Edelman requested the information within seven working days, "as the law stipulates," and asked that any denial of her request identify the specific statutory exemption justifying the denial, as well as appeal procedures.

The record discloses that on May 8, 2006, Catalani, from his District office, faxed a copy of his employment contract to Edelman. In his discovery deposition, Catalani testified that Edelman's FOIA request did not go through the "typical FOIA mechanism" in that Denie Young, who handles FOIA requests, was not involved. According to Catalani, he chose not to involve the District and instead dealt with the request from the Daily Herald on a personal level, voluntarily furnishing a copy of his contract to Edelman. Catalani trusted that the Daily Herald would not publish his contract. Catalani explained that the Daily Herald FOIA request:

"was much different than any other request regarding contracts in that it was a request from a reporter that went to every single superintendent in Du Page County for the purpose of writing what I understood to be a comparative analysis of superintendent contracts in general, and in discussion with my colleagues throughout Du Page, I agreed to, along with them, furnish a personal copy of my contract."

According to Catalani, every superintendent in Du Page County responded to the Daily Herald FOIA request by furnishing a copy of his or her contract to the newspaper.

Catalani also testified that if Stern, like the Daily Herald, had directed his FOIA request to him directly, he would not have furnished a copy of his employment contract to Stern. Catalani explained that he objected to information posted on the website of "Educate 200," a citizen advocacy group with which Stern is affiliated, and did not have the same faith in Stern, as he did in the Daily Herald, as to how his employment contract would be used if it was disclosed. Catalani also testified that an article that appeared in the November 23, 2008, edition of the Daily Herald regarding Stern's lawsuit against the District accurately reported Catalani's view that Stern and Educate 200 have not used information to which they have had access "in a fair or honorable way."

The record further discloses that on October 11, 2006, Young received a FOIA request from a reporter at the Chicago Tribune, seeking a copy of Catalani's employment contract. The reporter noted that he was aware that Young had denied Stern's request for the same information, that the Attorney General's office consistently has maintained that the contract is a public record that the District is obligated to furnish, and that the Daily Herald was furnished a copy of the contract. In response, Young stated that under Copley, a contract placed in a personnel file is exempt from disclosure, and this is the reason Stern's FOIA request was denied. Young also advised the reporter: "You are correct that the contract was given to the Daily Herald under an FOI request, but we responded prior to being aware of the [Copley] decision. Since there is nothing unusual in Dr. Catalani's contract, he will make it available to you for review should you wish to * * * inspect it."

The circuit court found that the exemption in section 7 of FOIA for personnel files applied to the superintendent's employment contract and granted the District's motion for summary judgment. The circuit court explained that, under Lieber, any documents that fit within the specifically enumerated exemptions in section 7 are per se exempt from disclosure, and that under Copley, a personnel file can reasonably be expected to include an employment contract. Thus, the superintendent's contract was per se exempt from disclosure. The circuit court did not expressly address Stern's argument that the District waived any exemption. Stern took an immediate appeal.

The Second District reversed the grant of summary...