Robinson v. Township High School District 113

2022 IL App (2d) 210107-U

• Court: Appellate Court of Illinois
• Decided: January 19, 2022
• Docket: 2-21-0107
• Status: Unpublished

Opinion

2022 IL App (2d) 210107-U No. 2-21-0107 Order filed January 19, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

MARY ROBINSON, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 19-CH-1318 ) TOWNSHIP HIGH SCHOOL DISTRICT 113, ) Honorable ) Stacey L. Seneczko, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.

ORDER

¶1 Held: Because the record on appeal did not include the emails that the trial court reviewed in camera, the appellate court presumed that the order entered by the trial court denying the plaintiff access to those emails was in conformity with law and had a sufficient factual basis.

¶2 Plaintiff, Mary Robinson, filed this action against defendant, Township High School

District 113 (the District), seeking disclosure of documents pursuant to the Freedom of Information

Act (FOIA) (5 ILCS 140/1 et seq. (West 2018)). The trial court determined that certain emails

were exempt from disclosure, granting the District’s motion for summary judgment and denying

Robinson’s cross-motion for summary judgment. Robinson appeals. The record on appeal does 2022 IL App (2d) 210107-U

not contain the emails that the court reviewed in camera. We hold that the incomplete record

prevents us from addressing the merits of the parties’ arguments. In accordance with Foutch v.

O’Bryant, 99 Ill. 2d 389 (1984), we affirm the judgment based on the presumption that the order

entered by the trial court was in conformity with law and had a sufficient factual basis.

¶3 I. BACKGROUND

¶4 Robinson sent multiple FOIA requests to the District. Only the following request is relevant

to this appeal:

“All records dated from September 1, 2015 to today’s date relating to communications

between the District (including but not limited to current and former Board of Education

members, superintendents, administration, Highland Park High School principals and

assistant principals, attorneys retained by the District) and any child sex offender, or

individual acting on behalf of a child sex offender, concerning access to District property

and events.”

In reviewing Robinson’s request, the District determined that, of all the parents of students enrolled

in the District, only one parent was a convicted child sex offender. The District also determined

that documents responsive to Robinson’s request included emails between that sex offender/parent

and school officials.1 The District declined to produce these emails to Robinson. In its brief on

appeal, the District indicates that the emails in dispute consist of “37 unique email strings” that

1 On appeal, Robinson abandons her request for three emails that were part of an email

string contained in the documents Bates stamped W520-530. The District claimed that these three

emails were nonresponsive to Robinson’s FOIA request, contained privileged legal advice, and

were “preliminary/predecisional records that were used to formulate District action.”

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“address specific students by name, contain information about student activities and events, a

student’s ability to have her parents attend her school events, and even student medical

information.”

¶5 The District claimed that the emails were “school student records” within the meaning of

the Illinois School Student Records Act (105 ILCS 10/1 et seq. (West 2018)). See also 105 ILCS

10/2(d) (West 2018) (defining “school student record,” in relevant portion, as “any writing or other

recorded information concerning a student and by which a student may be individually identified,

maintained by a school or at its direction or by an employee of a school, regardless of how or

where the information is stored”). Because Robinson was not statutorily authorized to obtain such

school student records, the District asserted that the subject emails were exempt from disclosure

pursuant to both section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2018) (exempting

“[i]nformation specifically prohibited from disclosure by federal or State law”)) and section 7.5(r)

of FOIA (5 ILCS 140/7.5(r) (West 2018) (exempting “[i]nformation prohibited from being

disclosed by the Illinois School Student Records Act)).

¶6 For similar reasons, the District claimed that the subject emails constituted protected

“education records” under the Family Educational Rights and Privacy Act (FERPA). See 20 U.S.C.

§ 1232g(a)(4)(A) (2016) (defining “education records,” in relevant portion, as “records, files,

documents, and other materials which (i) contain information directly related to a student; and (ii)

are maintained by an educational agency or institution or by a person acting for such agency or

institution”). According to the District, because FERPA prohibited the disclosure of the emails,

the emails were exempt from disclosure pursuant to section 7(1)(a) of FOIA.

¶7 Finally, the District claimed that the emails were exempt from disclosure pursuant to

section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2018)), which exempts “[p]ersonal information

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contained within public records, the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy, unless the disclosure is consented to in writing by the individual

subjects of the information.” The statute defines “unwarranted invasion of personal privacy” as

“the disclosure of information that is highly personal or objectionable to a reasonable person and

in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the

information.” 5 ILCS 140/7(1)(c) (West 2018). The statute indicates that “[t]he disclosure of

information that bears on the public duties of public employees and officials shall not be

considered an invasion of personal privacy.” 5 ILCS 140/7(1)(c) (West 2018).

¶8 Robinson filed a complaint in the circuit court of Lake County, alleging that the subject

emails were not exempt from disclosure. The parties filed cross-motions for summary judgment.

Following an in-camera review of the emails, the court granted the District’s motion for summary

judgment and denied Robinson’s motion. Robinson timely appealed.

¶9 The record on appeal does not contain any reports of proceedings or bystander’s reports,

and the court’s written order on the parties’ cross-motions for summary judgment does not specify

the basis or bases for the court’s ruling. The record also does not include the emails that the court

reviewed in camera.

¶ 10 II. ANALYSIS

¶ 11 Robinson concedes that information in the subject emails identifying the sex

offender/parent, any student, a student’s extracurricular activities, or a student’s medical

information may be redacted. Robinson contends that, with those redactions, the emails (1) would

not constitute “school student records” under the Illinois School Student Records Act, (2) would

not be subject to FERPA, and (3) would not result in a “clearly unwarranted invasion of personal

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privacy” if disclosed. As a preliminary matter, the District argues that the record is insufficient for

appellate review, given the omission of the emails that the trial court reviewed in camera.

¶ 12 We could reverse the judgment only if we determined that none of the exemptions claimed

by the District apply. But without seeing the emails that the trial court reviewed in camera, we

have no way of evaluating the applicability of the exemptions. Accordingly, we hold that the record

is insufficient to support Robinson’s claim of error.

¶ 13 Robinson insists that the subject emails, upon being redacted along the lines that she

proposes, would not “concern[ ] a student” so as to fall within the scope of the Illinois School

Student Records Act and would not “contain information directly related to a student” for purposes

of FERPA. The District disagrees. We cannot evaluate the parties’ legal arguments in a factual

vacuum. In the trial court, Robinson suggested the following guidelines for redacting the emails:

“[I]f an email says ‘Mr. Jones wants to attend his daughter Kelly’s soccer match and the

protocol we have decided on is for him check [sic] in with the soccer coach when he arrives

and when he leaves,’ [the District] should produce ‘_____ wants to attend _____’s _____

and the protocol we have decided on is for him to check in with the _____ coach when he

arrives and when he leaves.”

The problem is that, even if we agreed that redactions consistent with Robinson’s hypothetical

would be appropriate, we have no idea whether the emails at issue contain content of this precise

nature. Nor do we know whether there would be anything of substance left in the emails if the

District made the redactions that Robinson proposes.

¶ 14 The same problem is evident with respect to the parties’ arguments about whether

disclosing redacted records would result in an “unwarranted invasion of personal privacy” for

purposes of section 7(1)(c) of FOIA. Evaluating the parties’ arguments would require us to balance

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the privacy interests at stake against “the public’s legitimate interest in disclosure.” State Journal-

Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶ 44. Such balancing

inherently must occur “on a case-by-case basis” (Stern v. Wheaton-Warrenville Community Unit

School District 200, 233 Ill. 2d 396, 407 (2009)), so there is no way that we could conduct a

meaningful analysis without knowing the exact contents of the emails.

¶ 15 Robinson essentially wants a “masked” record of the emails, devoid of information that

would identify specific students. See Bowie v. Evanston Community Consolidated School District

No. 65, 128 Ill. 2d 373, 379 (1989) (“A masked record, which deletes individual identifying

information, does not fall within the definition of a school student record, and is not prohibited

from disclosure under the [Illinois School Student Records] Act.”). One of the District’s responses

is that the subject emails cannot be masked. According to the District, there is only one family in

the District that meets the criteria of Robinson’s FOIA request, and some members of the

community already know the identity of that family. Although the record on appeal does not reflect

the basis or bases for the trial court’s ruling, it is entirely possible that the court made a factual

determination upon reviewing the emails that student identities could not be masked through

redaction. Without seeing the subject emails, we have no way of addressing the parties’ disputes,

let alone reviewing any findings that the court might have made.

¶ 16 Nevertheless, in a footnote in her reply brief, Robinson asserts that there is no need for us

to review the emails, as “there is no dispute about their contents.” A few pages later, though,

Robinson accuses the District of mischaracterizing the emails. Moreover, in crafting her

arguments, Robinson makes assumptions about the emails (which she has not seen) that we have

no way to verify. For example, Robinson asserts that “the focus of the records here is not any

student, but a parent and the District 113 officials responsible for ensuring that any visits by such

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parent to District 113 property in the presence of minor students were properly managed and

supervised.” Elsewhere in her brief, Robinson maintains that the subject emails reference students

only incidentally. In her reply brief, Robinson says that a student merely “happens to be

mentioned” in the emails. Without reviewing the emails, we are in no position to discern their

focus or whether they reference students only incidentally. Additionally, contrary to Robinson’s

suggestion, the record does not reflect whether all the emails concern a sex offender/parent who

was “in the presence of minor students.” Robinson requested communications regarding sex

offenders’ “access to District property and events,” not just such access occurring in the presence

of minor students.

¶ 17 Robinson, as the appellant, “has the burden to present a sufficiently complete record of the

proceedings at trial to support a claim of error.” Foutch, 99 Ill. 2d at 391. “[I]n the absence of such

a record on appeal, it will be presumed that the order entered by the trial court was in conformity

with law and had a sufficient factual basis.” Foutch, 99 Ill. 2d at 392. We must resolve any doubts

arising from an incomplete record against the appellant. Foutch, 99 Ill. 2d at 392; see also Bocock

v. Will County Sheriff, 2018 IL App (3d) 170330, ¶¶ 42-43 (Foutch applied where an appellant

argued that a policy manual was exempt from FOIA but where the manual that the trial court

reviewed in camera was not included in the record on appeal). “Even where a party is not privy to

materials reviewed in camera and found to be privileged from discovery, that party can request

the circuit court to submit those materials under seal for appellate review.” Cascade Builders Corp.

v. Rugar, 2021 IL App (1st) 192410, ¶ 28.

¶ 18 We hold that the record is insufficient to support Robinson’s claim of error. Consequently,

in accordance with Foutch, we must presume that the court’s order was in conformity with law

and had a sufficient factual basis.

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¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 21 Affirmed.

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