Harris v. One Hope United, Inc. ( 2015 )

2015 IL 117200
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 117200)
ROBERT F. HARRIS, Appellee, v. ONE HOPE UNITED, INC., et al.,
Appellants.
Opinion filed March 19, 2015.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 In this case, the appellant, One Hope United, Inc. (One Hope), asks us to
recognize a new privilege in Illinois: a self-critical analysis privilege. We decline to
do so, as we consider the matter more appropriately a subject for legislative action.
Thus, we affirm the judgment of the appellate court, which similarly deferred this
question of public policy to the legislature. 2013 IL App (1st) 131152, ¶ 1.
¶2 BACKGROUND
¶3 One Hope contracts with the Illinois Department of Children and Family
Services (DCFS) to provide services with the objective of keeping troubled
families together. Seven-month-old Marshana Philpot died while her family
participated in One Hope’s “Intact Family Services” program. The Cook County
public guardian (Public Guardian), acting as administrator of Marshana’s estate,
filed this wrongful death case to recover damages against One Hope, its employee
Pixie Davis, and Marshana’s mother, Lashana Philpot.
¶4 The complaint alleges, inter alia, that DCFS received a complaint about
Lashana’s neglect and/or abuse of Marshana. DCFS investigated the complaint and
assigned the matter to One Hope. One Hope began monitoring the Philpot family
for counseling services. At one point, Marshana was hospitalized for failure to
thrive. When she was discharged, DCFS ordered that she live with her aunt,
Marlene Parsons. Under Ms. Parsons’ care, the child began to thrive. Eventually,
Marshana was returned to the care of her mother. According to the complaint, the
child subsequently drowned when Lashana left her unattended while bathing her.
The complaint alleges that One Hope failed to protect Marshana from abuse or
neglect, and should not have allowed Marshana to be returned to her mother
because of her unfavorable history and her failure to complete parenting classes.
¶5 In the course of this litigation, attorneys for the Public Guardian deposed the
executive director of One Hope, who revealed the existence of a “Priority Review”
report regarding Marshana’s case. According to the director, One Hope has a
“continuous quality review department” which investigates cases and prepares
these reports. The priority review process considers whether One Hope’s services
were professionally sound, identifies “gaps in service delivery” and evaluates
“whether certain outcomes have been successful or unsuccessful.” After One Hope
refused to produce the report in response to a discovery request, the Public
Guardian moved to compel its production. One Hope resisted, asserting that the
report was protected from disclosure by the self-critical analysis privilege.
¶6 The circuit court of Cook County determined that the privilege did not apply
and ordered One Hope to produce the priority review report. The court found that
One Hope’s refusal to produce the report after being ordered to do so was
contumacious. To facilitate One Hope’s request for appellate review of the
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privilege issue, the court found One Hope’s law firm 1 in “friendly” contempt of
court and fined it $1 per day. The fine order was immediately appealable under
Supreme Court Rule 304(b)(5) (Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010)). When
a contempt order based on a discovery violation is appealed, the underlying
discovery order is also subject to review. See Norskog v. Pfiel, 197 Ill. 2d 60, 69
(2001).
¶7 SELF-CRITICAL ANALYSIS PRIVILEGE
¶8 The self-critical analysis privilege appears to have originated in Bredice v.
Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), a medical malpractice case.
In Bredice, the court held that a decedent’s administratrix in a medical malpractice
suit could not obtain discovery of the minutes and reports of a hospital staff review
meeting. The court stressed that the confidentiality of the medical staff’s evaluation
of potential improvements in its procedures and treatments was so essential to the
self-review process that allowing discovery would chill the candor required for an
effective internal review. Id. at 250. In particular, the court recognized that the
long-term public benefits of improved health care outweighed the needs of the
litigant seeking discovery, and, thus, should not be sacrificed without a showing of
good cause. Id. at 251. 2
¶9 The fundamental purpose of what has come to be known as a “self-critical
analysis privilege” is to protect from disclosure documents that contain candid and
potentially damaging self-criticism, where disclosure of those documents would
harm a significant public interest. Scott v. City of Peoria, 280 F.R.D. 419, 424 (C.D.
Ill. 2011). Although the original purpose of the privilege was to encourage candor
when parties sought to improve their own procedures in providing medical care to
1
Although One Hope’s law firm is technically the only appellant in this case, for ease of
reference, we refer herein to “One Hope’s” arguments rather than the “law firm’s” arguments.
2
In the 1980s, our legislature recognized the desirability of a privilege in this limited context
and enacted the Medical Studies Act (735 ILCS 5/8-2101 et seq. (West 2012)), which provides,
inter alia, that “[s]uch information, records, statements, notes, memoranda, or other data, shall not
be admissible as evidence, nor discoverable in any action of any kind in any court or before any
tribunal, board, agency or person.” 735 ILCS 5/8-2102 (West 2012). As this court has stated: “The
purpose of the Act is to encourage candid and voluntary studies and programs used to improve
hospital conditions and patient care or to reduce the rates of death and disease.” Niven v. Siqueira,
109 Ill. 2d 357, 366 (1985).
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patients, some federal courts have relied upon the privilege in other factual settings.
When expanded to other circumstances, courts generally use it to encourage
activities that will protect human life or public health. Deel v. Bank of America,
N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005). Whether the privilege applies in a
particular fact situation depends in significant part on balancing the public interest
furthered by self-assessment against the interest in pursuing the search for truth.
Scott, 280 F.R.D. at 424.
¶ 10 The requisites for application of, what the Deel court described as, “this
purported privilege” (Deel, 227 F.R.D. at 458) have been variously set out as either
a three- or four-part test. In Dowling v. American Hawaii Cruises, Inc., 971 F.2d
423, 425-26 (9th Cir. 1992), the Ninth Circuit Court of Appeals noted that the
“generally required” elements, “if such a privilege exists,” are as follow: (1) the
information must result from a critical self-analysis undertaken by the party
seeking protection; (2) the public must have a strong interest in preserving the free
flow of the type of information sought; (3) the information must be of the type
whose flow would be curtailed if discovery were allowed; and (4) the document
was prepared with the expectation that it would be kept confidential and has in fact
been kept confidential.
¶ 11 As the Deel and Dowling courts’ comments suggest, whether the privilege
should be, or has been generally, recognized in the federal courts is a matter of
disagreement. As a district court has recently observed, “the Supreme Court has
explicitly declined to introduce a peer-review privilege—sometimes referred to as a
‘self-critical analysis’ privilege—into the federal common law,” a disinclination
which “is consistent with the reluctance of federal courts to contravene the general
rule in favor of admissibility by creating new privileges.” Williams v. City of
Philadelphia, No. 08-1979, 2014 WL 5697204, at *3 (E.D. Pa. Nov. 4, 2014)
(citing, inter alia, University of Pennsylvania v. Equal Employment Opportunity
Comm’n, 493 U.S. 182, 189 (1990), In re Grand Jury, 103 F.3d 1140, 1150 (3d Cir.
1997), and United States v. Nixon, 418 U.S. 683, 710 (1974) (cautioning that
privileges “are not lightly created nor expansively construed”)). Lower federal
courts appear to have exercised caution in this regard. See generally Alaska
Electrical Pension Fund v. Pharmacia Corp., 554 F.3d 342, 351 n.12 (3d Cir.
2009) (“The self-critical analysis privilege has never been recognized by this Court
and we see no reason to recognize it now.”); Williams, 2014 WL 5697204, at *3
(rejecting a contention that “there is a ‘developing trend’ in the federal courts
toward *** recognition” of the privilege); Granberry v. Jet Blue Airways, 228
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F.R.D. 647, 650 (N.D. Cal. 2005) (stating that no circuit court of appeals had
explicitly recognized the self-critical analysis privilege); Union Pacific R.R. Co. v.
Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000) (“This court has not recognized
this novel privilege.”); Medina v. County of San Diego, No. 08cv1252, 2014 WL
4793026, at *7 (S.D. Cal. Sept. 25, 2014) (“The Ninth Circuit does not recognize
the self-critical analysis privilege.”); Burden-Meeks v. Welch, 319 F.3d 897, 899
(7th Cir. 2003) (referring to the self-critical analysis privilege as “a privilege never
recognized in this circuit”). But see Scott, 280 F.R.D. at 423-24 (stating “[t]here
can be no doubt” that the Seventh Circuit recognized the privilege in Coates v.
Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985)).
¶ 12 ANALYSIS
¶ 13 The question before this court is whether Illinois should recognize the
self-critical analysis privilege. The parties agree that a de novo standard of review
applies. Indeed, the applicability of a discovery privilege is a matter of law (Niven,
109 Ill. 2d at 368) and rulings with respect thereto are subject to de novo review.
Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107, ¶ 27; Norskog,
197 Ill. 2d at 71.
¶ 14 Our appellate court has been asked to consider recognition of the self-critical
analysis privilege in at least three different contexts, including the case now before
us: People v. Campobello, 348 Ill. App. 3d 619 (2004); Rockford Police Benevolent
& Protective Ass’n v. Morrissey, 398 Ill. App. 3d 145 (2010); 2013 IL App (1st)
131152. In each instance, the appellate court declined to recognize the prospective
privilege.
¶ 15 The question arose in Campobello in the course of a criminal prosecution of a
priest for the alleged molestation of a young girl. The Roman Catholic Diocese of
Rockford (Diocese) was served with discovery requests by the State and refused to
comply. Among the items sought were the Diocese’s investigative records. The
Diocese urged the trial court to recognize a “critical self-analysis” privilege under
Illinois law and rule that the privilege protected those records from disclosure.
Campobello, 348 Ill. App. 3d at 625. The circuit court rejected the argument that
the records of the internal investigation of the defendant were protected by a
“critical self-analysis” privilege and ordered them produced. Id. The Diocese
respectfully requested a contempt order to facilitate an appeal, and the circuit court
complied.
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¶ 16 In the ensuing appeal, wherein other matters were also raised and addressed, the
appellate court “decline[d] to consider whether the [self-critical analysis] privilege
should be made part of Illinois law.” Id. at 637. The court noted the Diocese’s
concession that the privilege has never been recognized in Illinois common law.
The court found the “closest statutory analogue” to be section 8-2101 of the
Medical Studies Act (735 ILCS 5/8-2101 (West 2002)), which protects, against
discovery, hospital documents related to internal quality control. The appellate
court acknowledged the Diocese’s argument that its misconduct officer and
intervention committee records were the product of an analogous function and
should thus be protected from disclosure as well; however, the appellate court
concluded: “Whatever the force of this reasoning, it does not warrant an exercise in
‘judicial legislation’ [citation]. The privilege that the Diocese would have us
recognize implicates competing public policy considerations that are best weighed
by the General Assembly.” Campobello, 348 Ill. App. 3d at 637 (citing People ex
rel. Birkett v. City of Chicago, 184 Ill. 2d 521 (1998)).
¶ 17 More recently, the appellate court, in Rockford, considered the question of
privilege recognition in the context of a request for disclosure under the Freedom of
Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2006)). In Rockford, the
plaintiff, pursuant to the provisions of the FOIA, sought, inter alia, production of a
survey conducted by Rockford College at the behest of the Rockford police
department. The defendants, including the police department, represented that the
purpose of the survey was to assess the department’s performance, and was thus
exempt from disclosure pursuant to “the self-critical analysis privilege as
developed under the federal common law.” Rockford, 398 Ill. App. 3d at 148. The
circuit court rejected that contention, ruling that “the survey was not exempt from
disclosure either as an audit or pursuant to the self-critical analysis privilege, or any
other privilege.” Id. at 149.
¶ 18 On appeal, defendants argued multiple bases for exemption of records
requested, among them, applicability of a self-critical analysis privilege to the
survey sought in discovery. In rejecting defendants’ claim of privilege, the
appellate court first noted that “[a] self-critical analysis exemption is not to be
found among the enumerated exemptions” in the FOIA, and the court declined to
read such an exemption into the Act. Id. at 152. Second, the appellate court
observed that the self-critical analysis privilege has not been adopted by Illinois
courts. The appellate court reiterated the general principle that “privileges are
disfavored because they are in derogation of the search for truth” and quoted from
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Birkett, where this court stated that “ ‘the extension of an existing privilege or
establishment of a new one is a matter best deferred to the legislature.’ ” Id. at 153
(quoting Birkett, 184 Ill. 2d at 528). Third, the appellate court noted that the federal
cases cited by defendants are not binding upon state courts and, in any event, the
Illinois version of the FOIA differed from the federal version. Id. Finally, the
appellate court in Rockford, like the court in Campobello, rejected an argument that
a self-critical analysis privilege of broader application should be recognized based
upon an analogous statutory privilege created by the legislature in the Medical
Studies Act. The appellate court observed that the legislature “easily could have
codified the [privilege] into the FOIA, had it chosen to do so,” and “[t]he
privilege’s presence in the Medical Studies Act juxtaposed against its absence in
the FOIA strongly supports the opposite of defendants’ argument—that the
legislature deliberately omitted the privilege from the FOIA.” Id. at 153-54.
¶ 19 Recognition of a self-critical analysis privilege was most recently considered,
and rejected, by the appellate court in the case sub judice. The appellate court first
acknowledged that “[s]ome federal courts” have recognized a self-critical analysis
privilege, which, “on the federal level is created only by case law and not by federal
statutes or specific court rules.” 2013 IL App (1st) 131152, ¶¶ 1, 11. The appellate
court observed: “The parties do not dispute that the self-critical analysis privilege
has never been definitively established by any Illinois statute, court rule, or prior
state case law.” Id. ¶ 8. The appellate court noted that appellate panels in Rockford
and Campobello had considered recognition of the privilege, “albeit in somewhat
different contexts,” and had declined to recognize it. Id. ¶¶ 14-15.
¶ 20 Like the courts in Rockford and Campobello, the appellate court in this case
relied upon this court’s decision in Birkett, in this instance, for the propositions
that: (1) privileges against disclosure are strongly disfavored because they operate
to exclude relevant evidence and thus work against the truthseeking function of
legal proceedings; (2) privileges should not be applied unless they promote
sufficiently important interests to outweigh the need for probative evidence; and (3)
the extension of an existing privilege or establishment of a new one is a matter best
deferred to the legislature. Id. ¶ 13 (citing Birkett, 184 Ill. 2d at 527-28).
¶ 21 Having acknowledged those principles of general application, the appellate
court then considered two of defendants’ arguments specific to this case: (1) that
shielding self-critical documents would further the purposes of the Child Death
Review Team Act (20 ILCS 515/1 et seq. (West 2012)); and (2) that the impetus
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behind the statutory privilege afforded by the Medical Studies Act (735 ILCS
5/8-2101 (West 2012)) warrants judicial extension of an analogous privilege in this
context. The appellate court rejected both arguments.
¶ 22 In the first instance, the court found that “a close review of the [Child Death
Review Team] Act reveals that it encourages, rather than discourages, disclosure of
information of the sort sought here.” 2013 IL App (1st) 131152, ¶ 16.
“Additionally, the Act specifically states that ‘[a]ccess to information regarding
deceased children by *** multidisciplinary and multiagency child death review
teams is necessary for those teams to achieve their purposes and duties.’ ” Id.
(quoting 20 ILCS 515/5(7) (West 2012)). The appellate court determined that the
overriding need to determine the truth with respect to the cause of death of an infant
overrides the desire of One Hope to keep its self-evaluations confidential. Id. ¶ 17.
¶ 23 With respect to One Hope’s second argument, the appellate court pointed out
that the Medical Studies Act, by its very terms, does not apply to institutions such
as One Hope. Moreover, the appellate court observed that the Rockford court
“declined a similar invitation to adopt the Medical Studies Act privilege to
disclosure required by other statutes by analogy.” Id. ¶ 18.
¶ 24 The appellate court concluded, while neither Campobello nor Rockford is
squarely on point, their analyses nonetheless provided substantial support to the
court’s determination that the self-critical analysis privilege is not recognized in
Illinois. Id. “Absent the privilege, there is no dispute that the priority review report
is discoverable, as it may contain information admissible at trial or lead to such
information.” (Emphases added.) Id. ¶ 19. The appellate court thus affirmed the
circuit court’s order compelling production of the priority review report and
vacated the contempt order, acknowledging that the failure to comply with the
circuit court’s order involved a “good faith” effort “to secure appellate
interpretation of this rather novel issue.” Id. ¶ 20.
¶ 25 We now turn to Birkett, the oft-cited opinion in the state appellate court
decisions that have declined to recognize the self-critical analysis privilege. In
Birkett, this court was asked to adopt a common law “deliberative process
privilege” to exempt from discovery confidential advice given to those involved in
making decisions and policy for state and local government. Birkett, 184 Ill. 2d at
526. Unlike the privilege here at issue, which, at best, can be said to have gained a
foothold in the federal courts, this court in Birkett observed that the deliberative
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process privilege was “[w]idely recognized in the federal courts.” Id. The rationale
for the deliberative process privilege bears some similarity to that offered for the
self-critical analysis privilege in that, in both instances, the idea is to foster candor
and a frank exchange of opinion for decisional or remedial purposes. See id. at 527.
¶ 26 Having acknowledged the rationale underpinning the deliberative process
privilege, this court nonetheless hastened to add that “privileges are strongly
disfavored because they operate to ‘exclude relevant evidence and thus work
against the truthseeking function of legal proceedings.’ ” Id. (quoting People v.
Sanders, 99 Ill. 2d 262, 270 (1983)). This court noted that the decision to create a
privilege or extend an existing one involves a determination that the privilege
promotes sufficiently important interests to outweigh the need for probative
evidence, a determination that is best deferred to the legislature. Id. at 528 (citing,
inter alia, Illinois Educational Labor Relations Board v. Homer Community
Consolidated School District No. 208, 132 Ill. 2d 29, 34 (1989), and Sanders, 99 Ill.
2d at 269 (recognizing that the great majority of privileges recognized in Illinois are
statutory creations)).
¶ 27 Although this court in Birkett recognized that the creation of a new privilege in
Illinois is “presumptively a legislative task,” the court acknowledged that “Homer
allows for a court’s recognition of an evidentiary privilege, in ‘rare instances,’
where each of the following conditions are met: (1) the communications originated
in a confidence that they will not be disclosed; (2) this element of confidentiality is
essential to the full and satisfactory maintenance of the relation between the
parties; (3) the relation must be one which in the opinion of the community ought
to be sedulously fostered; and (4) the injury that would inure to the relation by
disclosure would be greater than the benefit thereby gained for the correct disposal
of litigation.” (Emphases in original.) Id. at 533 (citing Homer, 132 Ill. 2d at 35). In
Birkett, this court disposed of the proponent’s argument based on its failure to
establish the first element of the test. Id. at 534.
¶ 28 In Homer, where this court did recognize a qualified privilege protecting the
strategy deliberations of school boards and teachers’ unions engaged in collective
bargaining from disclosure, the court nonetheless began its analysis with this
cautionary quotation from Sanders:
“ ‘The expansion of existing testimonial privileges and acceptance of new
ones involves a balancing of public policies which should be left to the
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legislature. A compelling reason is that while courts, as institutions, find it easy
to perceive value in public policies such as those favoring the admission of all
relevant and reliable evidence which directly assist the judicial function of
ascertaining the truth, it is not their primary function to promote policies aimed
at broader social goals more distantly related to the judiciary. This is primarily
the responsibility of the legislature. To the extent that such policies conflict
with truthseeking or other values central to the judicial task, the balance that
courts draw might not reflect the choice the legislature would make.’ ” Homer,
132 Ill. 2d at 34 (quoting Sanders, 99 Ill. 2d at 271).
¶ 29 Thereafter, the court readily found three of the four conditions for recognition
of a privilege met and proceeded to consider the fourth. Id. at 35-36. In that part of
its analysis, this court first addressed an issue raised by the parties in the lower
courts: “whether the General Assembly created a statutory privilege for
collective-bargaining matters discussed at closed school board meetings by
exempting these matters from the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102,
par. 41 et seq.) and the Freedom of Information Act (Ill. Rev. Stat. 1987, ch. 116,
par. 201 et seq.).” Id. at 36. This court stated it was unclear from the language of the
acts that the General Assembly intended those statutes to create a statutory
privilege; however, the court believed the statutory language was “indicative of a
legislative intent that collective-bargaining strategy sessions be kept confidential.”
Id. at 37. Expressing concern that a statutory privilege based on those two acts
“would apply only to governmental bodies (here, the school district) and would not
prohibit union strategy meetings from being discovered,” the court “decline[d] to
base any privilege solely on these statutes, but instead view[ed] these acts as
evidence of a public policy favoring confidentiality in collective-bargaining
strategy.” (Emphasis added.) Id.
¶ 30 Looking elsewhere for indicia of legislative intent, the court next turned to the
Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, ¶ 1701 et
seq.). The court found support for recognition of a privilege in section 2(n) of the
Act, which prevented employees who may have knowledge of, or access to, school
board collective-bargaining strategy from joining labor organizations. That
prohibition, the court reasoned, evinced legislative intent to protect educational
employers from premature disclosure of their bargaining proposals and labor
relations policies that could undermine their bargaining strategies, an intent that
“would obviously be frustrated if labor organizations were allowed to obtain that
same information through discovery.” Homer, 132 Ill. 2d at 38.
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¶ 31 Finally, the court turned to federal labor law and found there, too, a policy of
preserving the confidentiality necessary to effective collective bargaining. Id. at
38-39.
¶ 32 Based upon its examination of pertinent legislative and administrative action,
this court concluded that “there exists a strong public policy protecting the
confidentiality of labor-negotiating strategy sessions” and, on that basis, found that
policy sufficiently satisfied the fourth element of the four-prong test. Id. at 39-40.
This court thus held “some type of privilege is necessary to prevent disclosure of
either party’s negotiating strategy during an unfair labor practice proceeding before
the Illinois Educational Labor Relations Board.” Id. at 40.
¶ 33 We find Birkett and Homer instructive insofar as they counsel, in the first
instance, against judicial infringement upon what is principally a policymaking
decision for the legislature, and in the second, for consideration of legislative
enactments that are in place before deciding whether expressions of public policy
therein warrant a “rare” exercise of judicial authority in furtherance thereof. See
Birkett, 184 Ill. 2d at 533 (“the creation of a new privilege is presumptively a
legislative task” and this court acts to recognize a new privilege only in “rare
instances”).
¶ 34 In the appellate court, One Hope argued the relevance of two legislative acts:
the Child Death Review Team Act (20 ILCS 515/1 et seq. (West 2012)) and the
Medical Studies Act (735 ILCS 5/8-2101 (West 2012)). We find these acts
significant in ascertaining legislative intent. See Homer, 132 Ill. 2d at 36-40
(examining, inter alia, the provisions of Illinois’s Open Meetings Act, the Freedom
of Information Act, and the Educational Labor Relations Act before concluding
“that there exists a strong public policy protecting the confidentiality of
labor-negotiating strategy sessions”).
¶ 35 First, we find the Rockford court’s reasoning sound and applicable in this
context as well. In Rockford, the appellate court rejected defendants’ invitation to
create a self-critical analysis privilege in relation to the FOIA, stating:
“The fact that the legislature codified this privilege in relation to the internal
quality control of medical institutions means that the legislature easily could
have codified the provision into the FOIA, had it chosen to do so. The
privilege’s presence in the Medical Studies Act juxtaposed against its absence
in the FOIA strongly supports the opposite of defendants’ argument—that the
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legislature deliberately omitted the privilege from the FOIA and we should not
engraft it into the FOIA.” Rockford, 398 Ill. App. 3d at 153-54.
As the appellate court in this case pointedly observed, “by its very terms, [the
Medical Studies Act] does not apply to institutions such as One Hope.” 2013 IL
App (1st) 131152, ¶ 18.
¶ 36 Obviously, the legislature could have extended this quality control privilege to
myriad scenarios involving all kinds of entities, public and private, based upon the
rationale that internal review might benefit others using those services or products
in the future. However, the legislature’s approach has been targeted and narrow.
This, we believe, evinces a legislative intent to limit, rather than expand, the scope
of the privilege.
¶ 37 With respect to the specific circumstances before us, further support for this
conclusion can be found in the Child Death Review Team Act. The stated policy of
the Act, as set forth in subsection (3) of section 5, underscores the need for “an
accurate and complete determination of the cause of death” as well as “the
development and implementation of measures to prevent future deaths from similar
causes.” 20 ILCS 515/5(3) (West 2012). To that end, the legislature has determined
that “[a]ccess to information regarding deceased children and their families by
multidisciplinary and multiagency child death review teams is necessary for those
teams to achieve their purposes and duties.” 20 ILCS 515/5(7) (West 2012).
Though section 30(b) of the Act limits public access to information, specifying that
“[r]ecords and information provided to a child death review team and the Executive
Council, and records maintained by a team or the Executive Council, are
confidential and not subject to the Freedom of Information Act ***, as provided in
that Act,” this subsection contains an important exemption:
“Nothing contained in this subsection (b) prevents the sharing or disclosure
of records, other than those produced by a Child Death Review Team or the
Executive Council, relating or pertaining to the death of a minor under the care
of or receiving services from the Department of Children and Family Services
and under the jurisdiction of the juvenile court with the juvenile court, the
State’s Attorney, and the minor’s attorney.” (Emphases added.) 20 ILCS
515/30(b) (West 2012).
Thus, subsection (b) of section 30 limits public access to records provided to child
death teams, and protects, to an even greater degree, records produced by a Child
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Death Review Team or the Executive Council. However, when a child dies who
was under the care of, or receiving services from, DCFS and under the jurisdiction
of the juvenile court, disclosure of records, other than those produced by the Child
Death Review Team or the Executive Council, is permissible to the minor’s
attorney.
¶ 38 We read this statutory provision as further, and clearer, evidence that the
legislature did not intend to expand any existing quality control privilege to the
circumstances before us in this case. DCFS was ultimately responsible for
Marshana’s care and well-being; One Hope was, by assignment, an extension of
DCFS. With the exception of those records actually produced by the Chold Death
Review Team or Executive Council, all other records pertinent to the child’s death
are subject to disclosure to the minor’s attorney. The records at issue in this case
address the circumstances of Marshana’s death and the services that were provided
by One Hope. Subsection (b) obviously envisions the use of records in potential
prosecution and litigation after a child’s death as it addresses and allows for
disclosure of information to both the prosecutor and the minor’s attorney.
¶ 39 CONCLUSION
¶ 40 We conclude that relevant legislative acts and omissions evince a public policy
determination by the General Assembly that the type of information sought in
discovery here is not subject to a “self-critical analysis privilege” that would
protect it from disclosure. As the appellate court concluded: “Absent the privilege,
there is no dispute that the priority review report is discoverable, as it may contain
information admissible at trial or lead to such information.” 2013 IL App (1st)
131152, ¶ 19.
¶ 41 For the reasons stated, we affirm the judgment of the appellate court, including
its vacation of the contempt order.
¶ 42 Affirmed.
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