|||IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
|||March 28, 2001
|||THE SOUTHERN ILLINOISAN, A DIVISION OF LEE ENTERPRISES, INC., PLAINTIFF-APPELLEE,
THE DEPARTMENT OF PUBLIC HEALTH AND DR. JOHN LUMPKIN, DIRECTOR OF PUBLIC HEALTH, DEFENDANTS-APPELLANTS.
|||Appeal from the Circuit Court of Jackson County. No. 98-CH-5 Honorable
Kimberly L. Dahlen and Honorable John Speroni, Judges, presiding.
|||Attorneys for Appellants James E. Ryan, Attorney General, State of Illinois,
Joel D. Bertocchi, Solicitor General, Jerald S. Post, Assistant Attorney
General, 100 West Randolph Street, 12th Floor, Chicago, IL 60601 (for The
Department of Public Health and John Lumpkin as Director of the Department)
Saul J. Morse, Robert John Kane, Illinois State Medical Society, 600 South
Second Street, Suite 200, Springfield, IL 62704 (Amicus Curiae brief filed
in support of The Department and Director) Thaddeus J. Nodzenski, Illinois
Hospital & Healthsystems Association, 1151 E. Warrenville Road, P. O.
Box 3015, Naperville, IL 60566 (Amicus Curiae brief filed in support of
The Department) Attorneys for Appellee Donald M. Craven, Craven & Thornton,
PC, 1005 North Seventh Street, Springfield, IL 62702 (for Southern Illinoisan)
Bruce N. Cook, Cook, Shevlin, Ysursa, Brauer & Bartholomew, Ltd., 12
West Lincoln Street, Belleville, IL 62220-2085 (for Illinois Trial Lawyers
Association; Richard J. O'Brien, Jr., Sidley & Austin, One First National
Plaza, Chicago, IL 60603 (for Illinois Press Association) (Filed joint amici
|||Justices: Honorable Charles W. Chapman, P.J. Honorable Thomas M Welch,
J. Honorable Richard P. Goldenhersh, J. Concur
|||The opinion of the court was delivered by: Presiding Justice Chapman
|||The Southern Illinoisan, a division of Lee Enterprises, Inc., issued a
letter on October 28, 1997, to the Illinois Department of Public Health
(the Department), asking for copies of the documents relating to the incidence
of neuroblastoma from 1985 to the date of the letter, as they were available
by the type of cancer, zip code, and date of diagnosis. The Department denied
the Southern Illinoisan's request, citing the Medical Studies Act (735 ILCS
5/8-2001 et seq. (West 1998)) as the basis for the exemption from disclosure.
In response, the Southern Illinoisan filed a complaint in the circuit court
under the Freedom of Information Act (FOIA) (5 ILCS 140/1.1 et seq. (West
1998)), seeking an order requiring the release of the requested information.
The Department raised affirmative defenses, citing the Medical Studies Act
and the Illinois Health and Hazardous Substances Registry Act (Cancer Registry
Act) (410 ILCS 525/1 et seq. (West 1998)).
|||The parties filed cross-motions for judgment on the pleadings, partial
summary judgment, and/or summary judgment. On December 31, 1998, the circuit
court issued an order granting the plaintiff's motion for judgment on the
pleadings and partial summary judgment and denying the Department's cross-motion
for summary judgment. The court ordered the defendants to produce that portion
of the Illinois Cancer Registry (Cancer Registry) which lists the type of
cancer, date of diagnosis, and zip code of each cancer patient from 1985
to the date of the order. The parties were further ordered not to use the
resulting information to identify or to attempt to identify or contact cancer
patients. In a subsequent order, the court allowed the plaintiff's petition
for attorney fees.
|||The defendants appeal from the circuit court's orders and raise two issues
on appeal: first, whether the order requiring the Department to release
the information must be reversed and, second, whether the court erred in
assessing the plaintiff's attorney fees against the Department. We reverse
and remand for further proceedings.
|||The FOIA requires the full disclosure of public records unless the desired
information is exempted under clearly delineated statutory language. Local
1274, Illinois Federation of Teachers, AFT, AFL-CIO v. Niles Township High
School, District 219, 287 Ill. App. 3d 187, 190, 678 N.E.2d 9, 11 (1997);
5 ILCS 140/3(a) (West 1998). The public body has the burden of proving that
the records in question fall within the exemption it has claimed. Lieber
v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408,
680 N.E.2d 374, 377 (1997). In this case the Department claims that the
statutory exemption found in section 7(1)(b)(i) of the FOIA precludes the
dissemination of the information requested here.
|||"(1) The following shall be exempt from inspection and copying:
|||(b) Information that, if disclosed, would constitute a clearly unwarranted
invasion of personal privacy, unless the disclosure is consented to in writing
by the individual subjects of the information. *** Information exempted
under this subsection (b) shall include but is not limited to:
|||(i) files and personal information maintained with respect to clients,
patients, residents, students[,] or other individuals receiving social,
medical, educational, vocational, financial, supervisory[,] or custodial
care or services directly or indirectly from federal agencies or public
bodies[.]" 5 ILCS 140/7(1)(b)(i) (West 1998).
|||Attached to the Department's memorandum that was submitted to the trial
court was the affidavit of Mark J. Schmidt, assistant director of the Department.
Schmidt noted that neuroblastoma is a rare childhood cancer and that instances
of neuroblastoma are reported to the Department and contained in the Cancer
Registry. He stated that the Cancer Registry "contains files and personal
information maintained with respect to clients, patients, residents, students,
or other individuals receiving social, medical, educational, vocational,
financial, supervisory[,] or custodial care or services from public bodies,
including but not limited to the Illinois Department of Corrections."
|||The Department argues that the consideration of Schmidt's affidavit requires
a conclusion that the section 7(1)(b)(i) exemption precludes the dissemination
of the requested information. Although Schmidt stated that the requested
information fell within the language of the statute, it is evident that
Schmidt's statement is merely a conclusion without any supporting facts.
We conclude that section 7(1)(b)(i) of the FOIA does not expressly exempt
the particular information requested here.
|||The Southern Illinoisan's request was for documents relating to the incidence
of neuroblastoma. It is believed that this information is available by the
type of cancer, date of diagnosis, and zip code. Section 7(1)(b)(i) does
not expressly state that the disclosure of this information would constitute
a clearly unwarranted invasion of personal privacy. If information is not
expressly exempted under section 7(1)(b)(i), it is appropriate to consider
various factors in determining whether the information is exempt. In determining
if information falls within the personal-information exemption of the FOIA,
the court balances the plaintiff's interest in disclosure, the public's
interest in disclosure, the degree of invasion of personal privacy, and
the availability of alternative means of obtaining the requested information.
Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d
401, 409, 680 N.E.2d 374, 378 (1997).
|||The plaintiff's interest here is clear. As attested by Tom Woolf, metro
editor of the Southern Illinoisan, Lee Enterprises, Inc. is the publisher
of the most-circulated daily newspaper in the region, and it is uniquely
qualified to receive and report on the information requested. As Woolf stated,
"If there are clusters of neuroblastoma in Southern Illinois, similar
to the cluster in Taylorville, we want to know that."
|||As for the public's interest in disclosure, the Cancer Registry Act itself
states that the purpose of the registry is to monitor incidence trends of
cancer and to inform citizens about the risks, early detection, and treatment
of cancers whose incidence is known to be elevated in their communities.
410 ILCS 525/1 et seq. (West 1998). As Lawrence Gostin, who has written
on the topic of health information and privacy, states:
|||"[Health] data can help track the incidence, patterns, and trends
of injury and disease in populations.
|||*** Tracking disease and injury in the population and providing well-targeted
prevention services can reduce morbidity and mortality in the community
more effectively and inexpensively than technologically advanced medical
services. By providing public health access to comprehensive data on injuries
and diseases within broad populations, society can achieve remarkable benefits
for the vitality of the community." Lawrence O. Gostin, Health
|||Information Privacy, 80 Cornell L. Rev. 451, 482-84 (1995). Clearly, there
are strong reasons for the broad collection and use of health data. However,
with any dissemination of information there may be a trade-off in the loss
|||Health records include a vast amount of personal and private information.
It is elementary that if access to sensitive and personal information is
more open, it becomes more difficult to prevent the uses that may stigmatize
or otherwise harm the subjects of that information. Therefore, when the
disclosure of information that applies to a particular individual is sought
from government records, courts must determine whether the release of the
information would constitute a clearly unwarranted invasion of that person's
privacy. United States Department of State v. Washington Post Co., 456 U.S.
595, 603, 72 L. Ed. 2d 358, 102 S. Ct. 1957, 1961-62 (1982).
|||Here, even assuming that the information sought (type of cancer, date
of diagnosis, and zip code) could be used to determine the identities of
persons, we do not believe that the degree of the invasion of those persons'
privacy rises to the level of "a clearly unwarranted invasion of personal
privacy" that is required by section 7(1)(b).
|||As the first two variables in our balancing test demonstrate, the degree
of the plaintiff's interest in disclosure and the public's interest in disclosure
are high. Under the circumstances, the Southern Illinoisan's stated purpose
for the disclosure of the requested information is consistent with the General
Assembly's stated purpose for collecting the data:
|||"(b) It is the purpose of this Act to establish a unified Statewide
project to collect, compile[,] and correlate information on public health
and hazardous substances. Such information is to be used to assist in the
determination of public policy and to provide a source of information for
the public, except when public disclosure of the information would violate
the provisions of subsection (d) of Section 4 concerning confidentiality.
|||(c) In particular, the purpose of the collection of cancer incidence information
|||(1) monitor incidence trends of cancer to detect potential public health
problems, predict risks[,] and assist in investigating cancer clusters;
|||(2) more accurately target intervention resources for communities and
patients and their families;
|||(3) inform health professionals and citizens about risks, early detection[,]
and treatment of cancers known to be elevated in their communities; and
|||(4) promote high quality research to provide better information for cancer
control and to address public concerns and questions about cancer."
(Emphasis added.) 410 ILCS 525/2(b), (c) (West 1998).
|||Also relevant are the Illinois House debates, where Representative Barnes
|||"*** House Bill 3038 creates the Illinois Health and Hazardous Substance
Registry Act and the Illinois Cancer Registry Act, and the purpose of the
legislation is to create a single data basis [sic] in order to interrelate
environmental and public health data. And the Illinois Cancer Council ***
really want[s] to find out what causes all the cancer and hazardous related
problems so that, maybe, they can come up with some answers." 83d Ill.
Gen. Assem., House Proceedings, May 25, 1984, at 41 (statement of Representative
|||The fourth factor in determining if the requested information falls within
the personal-information exemption of the FOIA-the availability of alternative
means of obtaining the requested information-also favors public access.
The main purpose of the FOIA is to provide the public easy access to government
information, and the exemptions of section 7 should not be construed to
defeat that purpose. Lieber v. Southern Illinois University, 279 Ill. App.
3d 553, 563, 664 N.E.2d 1155, 1161 (1996), aff'd, 176 Ill. 2d 401, 680 N.E.2d
374 (1997). Access to the cancer data via the Cancer Registry is the Southern
Illinoisan's only practicable means for discovering the information sought.
|||The significance of disclosure and the fact that there is no practical
alternative means of obtaining the requested information outweigh the minimal
intrusion resulting from the release of the requested data for those patients
whose identity could possibly be detected. Thus, we conclude that the Department
did not meet its burden of proving that the FOIA's section 7(1)(b)(i) exemption
|||The Department also argues that the statutory exemption in section 7(1)(a)
of the FOIA (5 ILCS 140/7(1)(a) (West 1998)), which exempts from release
information specifically prohibited from disclosure by federal or state
law, precludes the release of the information. Specifically, the state law
to which section 7(1)(a) refers is section 4(d) of the Cancer Registry Act
(410 ILCS 525/4(d) (West 1998)), which provides:
|||"The identity, or any group of facts that tends to lead to the identity,
of any person whose condition or treatment is submitted to the Illinois
Health and Hazardous Substances Registry is confidential and shall not be
open to public inspection or dissemination." 410 ILCS 525/4(d) (West
|||The Department argues that the statutory phrase "group of facts that
tends to lead to the identity" means that any data which could be used
alone, or in conjunction with other data from any source to identify patients,
is exempt from disclosure. The Department maintains that, given the affidavit
of its expert, LaTanya Sweeney, the Department appropriately denied the
Southern Illinoisan's information request.
|||LaTanya Sweeney attested that she has lectured and published books and
articles on the topic of the ability to identify persons described in medical
data. Sweeney stated that she obtained information from the Illinois Cancer
Registry that included the type of cancer, date of diagnosis, and zip code
and then conducted an experiment to determine if specific persons could
be identified from only those three fields of information. She stated that
even though the information she received had explicit identifiers such as
names, addresses, and telephone numbers removed, she could show how persons
can be reidentified from the Cancer Registry when only the type of cancer,
date of diagnosis, and zip code are provided. Sweeney further stated that
her experiment shows 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 Cancer Registry.
|||The plaintiff argues that the trial court properly granted summary judgment
in its favor because Sweeney's affidavit is conclusory and provides no factual
basis on which the Department could meet its burden of proof. We disagree
with the latter contention. Sweeney's affidavit is not conclusory.
|||Under Supreme Court Rule 191(a) (145 Ill. 2d R. 191(a)), an affidavit
submitted in connection with a motion for summary judgment shall be made
on the personal knowledge of the affiant and shall consist not of conclusions
but of facts admissible in evidence. Sweeney's affidavit contains an explanation
of the experiment that Sweeney conducted in an attempt to reidentify persons
within the Cancer Registry using data provided. Her affidavit is not conclusory
or inadmissible. The affidavit does, however, raise a material issue of
fact, namely, "Is the requested data that which tends to lead to the
identity of any person whose condition is submitted to the Department?"
|||A movant may only be granted summary judgment where all the pleadings,
discovery materials, admissions, and permissible inferences, analyzed in
the light most favorable to the nonmoving party, so clearly favor the movant
that no fair-minded individual could dispute the movant's right to a judgment
in his or her favor. Drury Displays, Inc. v. Brown, 306 Ill. App. 3d 1160,
1165, 715 N.E.2d 1230, 1234 (1999). On appeal, the trial court's decision
to grant a summary judgment will be affirmed only if, after examining the
record, there is no genuine issue of material fact and the movant was entitled
to a judgment as a matter of law. See Fremont Indemnity Co. v. Special Earth
Equipment Corp., 131 Ill. App. 3d 108, 112, 474 N.E.2d 926, 930 (1985).
|||The phrase "group of facts that tends to lead to the identity"
must mean any group of facts that reasonably would tend to lead to the identity
of specific persons. The entire purpose of the Cancer Registry Act (see
410 ILCS 525/2(b), (c)) would be effectively repealed by subsection 4(d)
if we did not impose the reasonableness requirement, because any fact, no
matter how unrelated to identity, can tend to lead to identity and, therefore,
any and every fact would be exempt under subsection 4(d). However, since
one purpose of the Cancer Registry Act is to provide information to the
public, this cannot be what the legislature intended. If, however, one reads
the statutory phrase as precluding the release of information that reasonably
would tend to lead to identity, some information is exempt, while other
information is not exempt. In our judgment, whether the information sought
in this case would reasonably tend to lead to the identity of particular
individuals presents a question of fact.
|||The trial court was presented with Sweeney's affidavit, which raised a
factual question as to the identifying capability of the data requested
by the plaintiff. Because a material question of fact was presented, the
trial court erred in entering summary judgment. Therefore, we remand this
cause to the trial court for further proceedings to determine the answer
to the question of fact: Will the information sought reasonably tend to
lead to the identity of any person whose condition or treatment is submitted
to the Cancer Registry?
|||In light of our decision, we need not reach the issue of whether the information
sought from the Cancer Registry is exempt from disclosure under the Medical
Studies Act (735 ILCS 5/8-2001 et seq. (West 1998)).
|||Finally, in addition to ordering the Department to release information
from the Cancer Registry, the circuit court awarded the Southern Illinoisan
attorney fees pursuant to section 11(i) of the FOIA (5 ILCS 140/11(i) (West
1998)). That section provides:
|||"If a person seeking the right to inspect or receive a copy of a
public record substantially prevails in a proceeding under this Section,
the court may award such person reasonable attorneys' fees if the court
finds that the record or records in question were of clearly significant
interest to the general public and that the public body lacked any reasonable
basis in law for withholding the record." 5 ILCS 140/11(i) (West 1998).
|||We note that in the past the Department has been, in our judgment, clearly
wrong in withholding documents from people who were authorized to obtain
their release. Buss v. Edwards, 203 Ill. App. 3d 992, 561 N.E.2d 356 (1990),
and May v. Central Illinois Public Service Co., 260 Ill. App. 3d 41, 633
N.E.2d 97 (1994), are examples. In Buss, the Department refused to produce
the minor plaintiff's Apgar scores, although the plaintiff had only requested
her own records from the Department. In May, the Department refused to release
any documents relating to its investigation of the Taylorville CIPS site
and the outbreak of neuroblastoma, even though part of what was sought were
the plaintiff's own records, materials that were clearly required to be
produced. May v. Central Illinois Public Service Co., 260 Ill. App. 3d 41,
633 N.E.2d 97 (1994). Although the Department has a history of inexcusable
noncompliance, we do not find that conduct present in this litigation, because
there exists a material question of fact for which this cause must be remanded.
Therefore, we find the trial court's award of attorney fees to be premature
at this time. The trial court's award of attorney fees is reversed.
|||In conclusion, we believe that it is unrealistic to try to mold a public
health information system that promises both the ready availability of information
and absolute privacy. Public health data collection is a worthwhile cause
in the name of reducing morbidity and mortality. Although the strict confidentiality
of health data is a noble cause and is worthy of statutory protections,
ultimately a balance must be struck between public health concerns and privacy
|||Here, the Department did not meet its burden of proving that the FOIA
section 7(1)(b)(i) exemption applies. However, because the question "Will
the information sought reasonably tend to lead to the identity of any person
whose condition or treatment is submitted to the Cancer Registry?"
is a material question of disputed fact, the trial court erred in entering
summary judgment as to section 4(d) of the Cancer Registry Act. On remand
the court is free to consider additional evidence on this issue. The summary
judgment is reversed, and this cause is remanded for further proceedings.
In addition, the trial court's award of the plaintiff's attorney fees is
|||Reversed; cause remanded.
|||WELCH and GOLDENHERSH, JJ., concur.
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