Reppert v. Southern Illinois University

Opinion

NO. 4-06-1014 Filed 8/15/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JERRY REPPERT and the GAZETTE DEMO- ) Appeal from CRAT, ) Circuit Court of Plaintiffs-Appellants, ) Sangamon County v. ) No. 06MR481 SOUTHERN ILLINOIS UNIVERSITY and ) WALTER V. WENDLER, ) Honorable Defendants-Appellees. ) Leo J. Zappa, Jr., ) Judge Presiding. _________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In August 2006, plaintiffs, Jerry Reppert and the

Gazette Democrat, filed a complaint against defendants, Southern

Illinois University (SIU) and SIU chancellor Walter V. Wendler,

seeking disclosure of the employment contracts of several SIU

employees. In October 2006, the trial court granted defendants'

motion for summary judgment on plaintiffs' claim that the Freedom

of Information Act (FOIA) (5 ILCS 140/1 through 11 (West 2004))

compelled disclosure of the requested documents. In November

2006, the court granted defendants' motion to dismiss the remain-

ing counts with prejudice.

Plaintiffs appeal, arguing that the trial court erred

by granting summary judgment on their FOIA claim. We agree and

reverse and remand for further proceedings.

I. BACKGROUND The following facts were gleaned from the parties’

pleadings and exhibits.

In March 2006, plaintiffs submitted a request to SIU

under the FOIA for the following:

"1. Employment contracts covering the

time period of January 1, 2000, to the pres-

ent for [SIU] President Glenn Poshard,

[f]ormer [SIU] President James Walker,

[Wendler,] and [SIU] employees John Jackson

and Mike Lawrence.

2. Independent contractor contracts, if

applicable, covering the time period of Janu-

ary 1, 2000, to the present for [SIU] employ-

ees John Jackson and Mike Lawrence."

In April 2006, SIU denied plaintiffs' request, and plaintiffs

appealed the denial. Wendler denied the appeal and informed

plaintiffs of their right to appeal the denial through the

judicial-review process.

In August 2006, plaintiffs filed a three-count com-

plaint against defendants, seeking the disclosure of the docu-

ments in question. The complaint alleged as follows: (1) the

Illinois Constitution required the disclosure of any contract

that obligated the expenditure of public funds (count I), (2) the

FOIA compelled disclosure of any such documents (count II), and

- 2 - (3) Wendler had a ministerial duty to release the documents to

the public (count III).

In September 2006, defendants filed a motion to dismiss

counts I and III of plaintiffs' complaint and a motion for

summary judgment as to count II. In their summary-judgment

motion, defendants argued that (1) the employment contracts were

part of each employee's personnel file and (2) the contracts were

thus per se exempt from disclosure under section 7(1)(b)(ii) of

the FOIA (the personnel-file exemption) (5 ILCS 140/7(1)(b)(ii)

(West 2004)). In October 2006, plaintiffs filed a response to

the summary-judgment motion, arguing, in part, that the fact that

the contracts were included in personnel files did not mean that

they were exempt from disclosure under the FOIA. Later in

October 2006, the trial court granted defendants' motion for

summary judgment as to count II. In so doing, the court found

that the requested employment contracts were exempt from disclo-

sure under the FOIA, pursuant to the personnel-file exemption (5

ILCS 140/7(1)(b)(ii) (West 2004)). In November 2006, the court

granted with prejudice defendants' motion to dismiss counts I and

III.

This appeal followed.

II. ANALYSIS

A. Summary Judgments and the Standard of Review

Summary judgment is proper if, "when viewed in the

- 3 - light most favorable to the nonmoving party, the pleadings,

depositions, admissions, and affidavits on file demonstrate that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law."

Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653,

661, 837 N.E.2d 922, 928 (2005); see 735 ILCS 5/2-1005(c) (West

2004). "Summary judgment should only be granted if the movant's

right to judgment is clear and free from doubt." Bluestar Energy

Services, Inc. v. Illinois Commerce Comm'n, No. 1-06-1277, slip

op. at 5 (June 29, 2007), ___ Ill. App. 3d ___, ___, ___ N.E.2d

___, ___. We review de novo the trial court's grant of summary

judgment. Big Sky Excavating, Inc. v. Illinois Bell Telephone

Co., 217 Ill. 2d 221, 234, 840 N.E.2d 1174, 1182 (2005).

B. The FOIA

Aside from our de novo standard of review being dic-

tated by the summary-judgment posture of this case, this case

involves a question of statutory interpretation. We review de

novo issues of statutory interpretation. NDC LLC v. Topinka, No.

2-05-1206, slip op. at 23 (June 15, 2007), ___ Ill. App. 3d ___,

___, ___ N.E.2d ___, ___. In Southern Illinoisan v. Illinois

Department of Public Health, 218 Ill. 2d 390, 415, 844 N.E.2d 1,

14 (2006), the supreme court discussed statutory interpretation

of the FOIA, as follows:

"Our review of the FOIA *** is guided by

- 4 - several well-established principles of statu-

tory construction. It is well settled that

the primary objective of [a] court when con-

struing the meaning of a statute is to ascer-

tain and give effect to the intent of the

General Assembly. [Citation.] In determin-

ing legislative intent, our inquiry begins

with the plain language of the statute, which

is the most reliable indication of the legis-

lature's objectives in enacting a particular

law. [Citation.] A fundamental principle of

statutory construction is to view all provi-

sions of a statutory enactment as a whole.

Accordingly, words and phrases should not be

construed in isolation, but must be inter-

preted in light of other relevant provisions

of the statute. [Citation.] In construing a

statute, we presume that the legislature, in

its enactment of legislation, did not intend

absurdity, inconvenience[,] or injustice."

The purpose of the FOIA is to open governmental records

to the light of public scrutiny. Thus, under the FOIA, a pre-

sumption exists that public records be open and accessible.

Bluestar Energy Services, slip op. at 6, ___ Ill. App. 3d at ___,

- 5 - ___ N.E.2d at ___. The legislative intent is set forth in

section 1 of the FOIA, which provides, in pertinent part, as

follows:

"Pursuant to the fundamental philosophy

of the American constitutional form of gov-

ernment, it is declared to be the public

policy of the State of Illinois that all

persons are entitled to full and complete

information regarding the affairs of govern-

ment and the official acts and policies of

those who represent them as public officials

and public employees consistent with the

terms of this Act. Such access is necessary

to enable the people to fulfill their duties

of discussing public issues fully and freely,

making informed political judgments and moni-

toring government to ensure that it is being

conducted in the public interest." 5 ILCS

140/1 (West 2004).

Based upon the legislature's clearly stated public policy and

intent, the supreme court has held that "the FOIA is to be

accorded 'liberal construction.'" Southern Illinoisan, 218 Ill.

2d at 416, 844 N.E.2d at 15, quoting Bowie v. Evanston Community

Consolidated School District No. 65, 128 Ill. 2d 373, 378, 538

- 6 - N.E.2d 557, 559 (1989). Thus, "the exceptions to disclosure set

forth in the FOIA are to be read narrowly so as not to defeat the

FOIA's intended purpose." Southern Illinoisan, 218 Ill. 2d at

416, 844 N.E.2d at 15. Accordingly, "[e]ach public body shall

make available to any person for inspection or copying all public

records, except as otherwise provided in [s]ection 7 of this

Act." 5 ILCS 140/3(a) (West 2004); see also Southern Illinoisan,

218 Ill. 2d at 417, 844 N.E.2d at 15 (noting that when a public

body receives a request for information, it must comply unless

one of the narrow statutory exceptions applies).

Section 2(c) of the FOIA defines "public re-

cords," in pertinent part, as follows:

"(c) *** 'Public records'

includes, but is expressly not limited

to: *** (vii) all information in any

account, voucher, or contract dealing

with the receipt of expenditure of

public or other funds of public bod-

ies; (viii) the names, salaries, ti-

tles, and dates of employment of all

employees and officers of public bod-

ies ***." 5 ILCS 140/2(c) (West

- 7 - 2004).

Section 7 of the FOIA provides, in pertinent part, as

"(1) The following shall be exempt from

inspection and copying:

***

(b) Information that, if dis-

closed, would constitute a clearly

unwarranted invasion of personal

privacy, unless the disclosure is

consented to in writing by the

individual subjects of the informa-

tion. The disclosure of informa-

tion that bears on the public du-

ties of public employees and offi-

cials shall not be considered an

invasion of personal privacy.

Information exempted under this

subsection (b) shall include but is

not limited to:

(ii) personnel files and per-

sonal information maintained with

respect to employees, appointees or

- 8 - elected officials of any public

body[,] or applicants for those

positions[.]" (Emphasis added.) 5

ILCS 140/7(1)(b)(ii) (West 2004).

If the public body seeks to invoke one of section 7's exemptions,

it must give written notice setting forth the particular exemp-

tion claimed to authorize the denial. Then, the party seeking

disclosure of information under the FOIA can challenge the public

body's denial at the trial level. The burden of proof at the

trial level is on the public body to establish that the requested

documents are exempt from disclosure. Bluestar Energy Services,

slip op. at 7, ___ Ill. App. 3d at ___, ___ N.E.2d at ___.

In addition, section 8 of the FOIA provides as follows:

"If any public record that is exempt

from disclosure under [s]ection 7 of this Act

contains any material which is not exempt,

the public body shall delete the information

which is exempt and make the remaining infor-

mation available for inspection and copying."

5 ILCS 140/8 (West 2004).

C. Plaintiffs' Claim That the Trial Court Erred by Granting Summary Judgment in Defendants' Favor as to Count II

Plaintiffs argue that the trial court erred by granting

summary judgment in defendants' favor as to count II. We agree.

Liberally construing the FOIA in accord with its

- 9 - intended purpose, we conclude that the statutory definition

of "public records" includes the information contained

in the employment contracts at issue. Indeed, at oral

argument, defendants' counsel conceded that the information

contained in the contracts was not confidential. In addition,

reading section 7(1)(b) of the FOIA narrowly, as we must, we

conclude that the individual contracts constitute "information

that bears on the public duties of public employees and offi-

cials" (5 ILCS 140/7(1)(b) (West 2004)). Thus, such documents

"shall not be considered an invasion of personal privacy" and, as

a matter of law, are not exempt from disclosure under section 7

(5 ILCS 140/7(1)(b) (West 2004)). Contrary to defendants'

suggestion, the mere fact that personnel files are per se exempt

from disclosure under section 7(1)(b)(ii) does not mean that the

individual contracts are also per se exempt simply because they

are kept in those files. See CBS, Inc. v. Partee, 198 Ill. App.

3d 936, 942, 556 N.E.2d 648, 651 (1990) ("To hold that all

information contained in a personnel file is exempt from public

disclosure simply because it is in a personnel file would permit

a subversion of the broad purposes of the [FOIA]"). In that

regard, we note that section 8 of the FOIA (5 ILCS 140/8 (West

2004)) explicitly permits the disclosure of nonexempt documents

(such as the employment contracts here) that are contained within

exempt public records (such as personnel files). Accordingly, we

- 10 - conclude that the trial court erred by granting summary judgment

in defendants' favor, and we reverse and remand for further

proceedings consistent with this opinion.

In so concluding, we decline to follow the Third

District's decision in Copley Press, Inc. v. Board of Education

for Peoria School District No. 150, 359 Ill. App. 3d 321, 834

N.E.2d 558 (2005). In that case, the Third District concluded

that performance evaluations and a letter summarizing the evalua-

tions were exempt under the personnel-file exemption of the FOIA

(5 ILCS 140/7(1)(b)(ii) (West 2004)). In so doing, the Copley

court also stated as follows:

"Given its plain and ordinary meaning, a

'personnel file' can reasonably be expected

to include documents such as a resume or

application, an employment contract, policies

signed by the employee, payroll information,

emergency contact information, training re-

cords, performance evaluations[,] and disci-

plinary records." Copley Press, Inc., 359

Ill. App. 3d at 324, 834 N.E.2d at 561.

We view the above-quoted language as broad dicta. Further, to

the extent that the Copley court purported to hold that employ-

ment contracts are per se exempt from disclosure under the FOIA,

we decline to follow it.

- 11 - III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings consistent with this

opinion.

Reversed and remanded.

MYERSCOUGH and KNECHT, JJ., concur.

- 12 -