Timpone v. Illinois Student Assistance Comm'n ( 2020 )

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Appellate Court Date: 2020.06.16
21:10:08 -05'00'
Timpone v. Illinois Student Assistance Comm’n, 2019 IL App (1st) 181115Appellate Court BRIAN TIMPONE, Plaintiff-Appellee, v. THE ILLINOIS STUDENT
Caption ASSISTANCE COMMISSION, Defendant-Appellant.
District & No. First District, Third Division
No. 1-18-1115
Filed December 11, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 2016-CH-
Review 0011386; the Hon. Kathleen M. Pantle, Judge, presiding.
Judgment Reversed.
Counsel on Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
Appeal Solicitor General, and Mary C. Labrec, Assistant Attorney General, of
counsel), for appellant.
James J. McQuaid and Jeffrey M. Schwab, of Liberty Justice Center,
of Chicago, for appellee.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Brian Timpone filed a Freedom of Information Act (FOIA) (5 ILCS 140/3(a) (West 2014))
request with the Illinois Student Assistance Commission (ISAC or commission) to obtain the
names of all students who received grants in 2015 through the State’s Monetary Award
Program (MAP), as well as the name of the college or university that each student attended.
ISAC routinely distributes statistics that include the name of every school where MAP grants
are disbursed, the number of grants, total dollars, and mean recipient income per institution, as
well as details about the grants. ISAC cited privacy concerns for withholding the student names
from Timpone but produced a spreadsheet aggregating the 2015 MAP grants by city and
detailing the total dollar amount and number of recipients for each location. Timpone then filed
an action in the circuit court of Cook County to compel the public disclosure of each student’s
name (see 5 ILCS 140/11(a) (West 2014)), and there he prevailed on cross-motions for
summary judgment. The commission appeals the determination that it “improperly” withheld
the information and argues that together section 7(1)(a) of FOIA and section 2700.55 of the
commission’s regulations exempt public disclosure of “personally identifiable information” (5
ILCS 140/7(1)(a) (West 2014); 23 Ill. Adm. Code 2700.55 (2014)) and that section 7(1)(b) of
FOIA exempts public disclosure of “[p]rivate information” (5 ILCS 140/7(1)(b) (West 2014)).
In the event we find either of ISAC’s exemption arguments persuasive, we would vacate not
only the circuit court’s October 2017 summary judgment order but also its May 2018 decision
to award Timpone $10,478 based on the FOIA language that entitles a person who “prevails
in a proceeding under this Section” to an award of his or her reasonable attorney fees and costs.
5 ILCS 140/11(i) (West 2014). Enforcement of the circuit court orders has been stayed pending
this appeal.
¶2 ISAC’s timely filing of a notice of appeal on May 31, 2018, complied with Illinois Supreme
Court Rule 303 (eff. Jan. 1, 2015). Accordingly, we have jurisdiction under Illinois Supreme
Court Rule 301 (eff. Feb. 1, 1994).
¶3 ISAC administers the financial grant program known as MAP pursuant to the Illinois
Higher Education Student Assistance Act. See 110 ILCS 947/35, 20(f) (West 2014); What is
MAP?, Ill. Student Assistance Comm’n, https://www.isac.org/home/map-matters/about.html
(last visited Dec. 3, 2019) [https://perma.cc/6T64-VM39]. MAP grant money may be offered
to residents of Illinois and citizens or permanent residents of the United States who are
“deterred by financial considerations” from completing their postsecondary education. 110
ILCS 947/35(a) (West 2014). Initial eligibility is entirely need-based and does not take into
account high school grades or test scores, but grant renewals are conditioned on good academic
standing. What is MAP?, Ill. Student Assistance Comm’n, https://www.isac.org/home/map-
matters/about.html (last visited Dec. 3, 2019) [https://perma.cc/6T64-VM39]; 110 ILCS
947/35(b)(1)-(3) (West 2014).
¶4 Students apply for various forms of financial aid, including MAP grants, by disclosing their
financial details, as well as their parents’ or spouse’s financial details, to the United States
Department of Education (DOE) on the Free Application for Federal Student Aid form, which
is commonly known as FAFSA. What is MAP?, Ill. Student Assistance Comm’n, https://
www.isac.org/home/map-matters/about.html (last visited Dec. 3, 2109) [https://perma.cc/
6T64-VM39]; see also 23 Ill. Adm. Code 2735.30(a), amended at 37 Ill. Reg. 9528 (eff. July
1, 2013); Dependency Status, Ill. Student Assistance Comm’n, https://www.isac.org/students/
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before-college/financial-aid-planning/completing-the-fafsa/dependency-status.html (last
visited Dec. 3, 2019) [https://perma.cc/2XM3-ZYNB]. ISAC’s website indicates that
“[a]pplicants are automatically considered to be dependent students for financial aid purposes
(meaning financial aid eligibility will be determined including parent information) unless they
meet the federal definition of an independent student.” Dependency Status, Ill. Student
Assistance Comm’n, https://www.isac.org/students/before-college/financial-aid-planning/
completing-the-fafsa/dependency-status.html (last visited Dec. 3, 2019) [https://perma.cc/
2XM3-ZYNB]. DOE then shares the individual or family financial data with ISAC. What is
MAP?, Ill. Student Assistance Comm’n, https://www.isac.org/home/map-matters/about.html
(last visited Dec. 3, 2109) [https://perma.cc/6T64-VM39]. Students who list an approved
Illinois college on their FAFSA are “automatically” considered for MAP grants. How to Apply,
Ill. Student Assistance Comm’n, https://www.isac.org/students/during-college/types-of-
financial-aid/grants/monetary-award-program/index.html#How_to_Apply) (last visited Dec.
3, 2019) [https://perma.cc/KKT3-Y3EP].
¶5 Each student may be granted up to $6468 per academic year (110 ILCS 947/35(c)(1) (West
2014)) but MAP funds are “apportioned among otherwise eligible applicants on the basis of
relative financial resources and available funds” (23 Ill. Adm. Code 2735.10(a) (1998)
(summary and purpose of MAP)). In the last five years, “more than 600,000 Illinois students
received over $1.8 billion in MAP grants to help them attend college.” What is MAP?, Ill.
Student Assistance Comm’n, https://www.isac.org/home/map-matters/about.html (last visited
Dec. 3, 2019) [https://perma.cc/6T64-VM39].
¶6 ISAC routinely divulges detailed statistics about MAP disbursements and the recipients of
those funds. ISAC maintains an annual “Data Book” on its website in which the State agency
specifies each year’s appropriation history and the formula used to grant or deny that year’s
applications. See, e.g., 2015 Data Book, Ill. Student Assistance Comm’n, https://www.isac.
org/e-library/research-policy-analysis/data-book/2015-data-book.html (last visited Dec. 3,
2019) [https://perma.cc/JB7B-4NC9]. ISAC also compiles numerous tables of statistics about
each year’s disbursements. MAP disbursements are, for instance, reported in the Data Book by
type of educational program, including all schools, public four-year institutions, private
nonprofit institutions, and so forth. See 2015 Data Book, Ill. Student Assistance Comm’n,
https://www.isac.org/e-library/research-policy-analysis/data-book/2015-data-book.html (last
visited Dec. 3, 2019) [https://perma.cc/JB7B-4NC9]. ISAC then specifies each institution’s
tuition and fees, MAP receipts, average award, and number of MAP recipients. See 2015 Data
Book, Ill. Student Assistance Comm’n, https://www.isac.org/e-library/research-policy-
analysis/data-book/2015-data-book.html (last visited Dec. 3, 2019) [https://perma.cc/JB7B-
4NC9]. ISAC also discloses the mean income per recipient and the mean income per denied
applicant at each school. Ill. Student Assistance Comm’n, Average Income by Dependency
Status, http://www.isac.org/e-library/research-policy-analysis/data-book/documents/2015-
data-book/2015DataBookTable2.3d.pdf (last visited Dec. 3, 2019) [https://perma.cc/EKT6-
MWFX]. The tables for fiscal year 2015 indicate, for instance, that the mean income of parents
of all eligible dependent students was $30,652 and the mean income of parents whose
dependent children used MAP dollars to attend public four-year schools was $33,098. Ill.
Student Assistance Comm’n, Average Income by Dependency Status, http://www.isac.org/e-
library/research-policy-analysis/data-book/documents/2015-data-book/2015DataBookTable2.
3d.pdf (last visited Dec. 3, 2019) [https://perma.cc/EKT6-MWFX]. Within the data about
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public four-year schools, it is disclosed that parents whose dependent children used MAP
dollars to attend University of Illinois-Urbana had a mean income of $38,170 and parents
whose dependent children used MAP dollars to attend Chicago State University had a mean
income of $20,682. Ill. Student Assistance Comm’n, Average Income by Dependency Status,
http://www.isac.org/e-library/research-policy-analysis/data-book/documents/2015-data-book/
2015DataBookTable2.3d.pdf (last visited Dec. 3, 2019) [https://perma.cc/EKT6-MWFX]. The
corresponding income figures for independent students receiving MAP grants in fiscal year
2015 were $16,268 for all recipients, $14,610 for recipients who attended public four-year
schools, $9338 for recipients who attended University of Illinois-Urbana, and $12,575 for
recipients who attended Chicago State University. Ill. Student Assistance Comm’n, Average
Income by Dependency Status, http://www.isac.org/e-library/research-policy-analysis/data-
book/documents/2015-data-book/2015DataBookTable2.3d.pdf (last visited Dec. 3, 2019)
[https://perma.cc/EKT6-MWFX]. Thus, ISAC publicly discloses how it handles MAP dollars,
and it divulges detailed data about the income of MAP grant recipients.
¶7 In May 2016, Timpone submitted a FOIA request by e-mail, seeking the name of every
student who received a 2015 MAP grant, as well as the name of his or her college or university
and home address. After ISAC declined to disclose “private information” or “personal financial
information,” Timpone amended his request to seek the home cities or zip codes of each
student, rather than his or her home address. We note that it was unclear from Timpone’s e-
mail whether he meant to abandon his request for the students’ names, however, ISAC
construed Timpone’s response as a decision to forgo that portion of his initial request. Timpone
subsequently asked whether ISAC would “separate out” the high schools attended by the
recipients, stating that it “[w]ould be great to have that too,” but that he would “take zip if it is
all that is possible.” ISAC then generated a spreadsheet in excess of 50 pages aggregating the
2015 MAP grants by city and disclosing the total dollar amount and number of recipients in
each location. In June 2016, Timpone objected to the fact that the spreadsheet he received did
not include the student names. ISAC reiterated the basis for its denial, specifying that MAP
was a financial need-based program and that student names had been obtained by ISAC
through “the FAFSA[,] which is private.”
¶8 Later that year, Timpone filed the complaint at issue in which he sought individual student
names, and ISAC filed its answer and affirmative defenses citing various federal and State
provisions ISAC contended exempted the information from disclosure to the public. The
parties next filed motions for summary judgment, which the circuit court resolved in
Timpone’s favor. The parties also filed cross-motions for reconsideration, in which Timpone
sought the addition of zip codes and high school names (that is, seeking information mentioned
in his e-mails to ISAC but not included in his circuit court complaint), and ISAC argued for
reversal of the summary judgment ruling. Timpone also filed a motion for attorney fees and
costs. The circuit court denied the parties’ cross-motions for reconsideration but granted
Timpone’s fee petition. ISAC contends here that the judgment and fee award were in error.
¶9 Relevant to our analysis is that, under FOIA, public records are presumed to be open and
accessible to the light of public scrutiny. Hites v. Waubonsee Community College, 2016 IL
App (2d) 150836, ¶ 53, 56 N.E.3d 1049 (citing Stern v. Wheaton-Warrenville Community Unit
School District 200, 233 Ill. 2d 396, 405, 910 N.E.3d 85, 91 (2009)); 5 ILCS 140/1.2 (West
2014) (“[a]ll records in the custody or possession of a public body are *** open to inspection
or copying”). The term “public records” is broad and includes “all records *** having been
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prepared by or for, or having been or being used by, received by, in the possession of, or under
the control of any public body.” 5 ILCS 140/2(c) (West 2014). Furthermore, it is “a
fundamental obligation of government to operate openly and provide public records as
expediently and efficiently as possible in compliance with this Act.” 5 ILCS 140/1 (West
2014). As ISAC is one of the “commissions of this State,” it is a “[p]ublic body” whose records
are subject to FOIA’s disclosure requirements (see 5 ILCS 140/2(a) (West 2014) (“ ‘Public
body’ means *** commissions of this State ***.”)) and it has not been disputed by ISAC that
MAP data is a “public record[ ]” within the meaning of FOIA. 5 ILCS 140/2.5 (West 2014).
Thus, this appeal turns on whether the Illinois legislature exempted ISAC’s MAP records from
the presumption that they will be disclosed upon request.
¶ 10 A public body is required to comply with a valid request for information, unless the
information comes within one of the narrow statutory exemptions set out in FOIA’s section 7.
Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 13, 980 N.E.2d 733.
“Restraints on access to information, to the extent permitted by [FOIA], are limited
exceptions to the principle that the people of this State have a right to full disclosure of
information relating to the decisions, policies, procedures, rules, standards, and other
aspects of government activity that affect the conduct of government and the lives of
any or all of the people.” 5 ILCS 140/1, 3(a) (West 2014).
FOIA “shall be construed in accordance with this principle.” 5 ILCS 140/1 (West 2014). FOIA
is, therefore, to be read “liberally *** in order to provide the public with easy access to
government information” and the exceptions to disclosure set out in the statute “are to be
interpreted narrowly so as not to defeat FOIA’s purpose.” Hites, 2016 IL App (2d) 150836,
¶ 53; Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378,
538 N.E.2d 557, 559 (1989) (“FOIA is to be given a liberal construction”).
¶ 11 Nevertheless, FOIA “may not be used to violate individual privacy rights,” and the courts
are vigilant in this regard. Watkins, 2012 IL App (1st) 100632, ¶ 13 (where inmate alleged his
confession had been coerced by police officers, the court distinguished between police
personnel records, which are exempt from disclosure, and police misconduct allegations,
which are not necessarily exempt from disclosure); 5 ILCS 140/1 (West 2014) (FOIA “is not
intended to cause an unwarranted invasion of personal privacy”); Bowie, 128 Ill. 2d at 378(“the court must be vigilant against invasions of privacy”).
¶ 12 When a requesting party challenges the public body’s denial of a FOIA request, as Timpone
has done here, the public body bears the burden of demonstrating that the requested records
are exempt. Watkins, 2012 IL App (1st) 100632, ¶ 13; 5 ILCS 140/1.2 (West 2014) (“Any
public body that asserts that a record is exempt from disclosure has the burden of proving by
clear and convincing evidence that it is exempt.”). In order to meet this burden and assist the
court in its analysis, the public body must detail its justification for its claimed exemption.
Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 408, 680 N.E.2d
374, (1997).
¶ 13 This court reviews de novo whether ISAC’s denial is proper. Chicago Tribune Co. v.
Department of Financial & Professional Regulation, 2014 IL App (4th) 130427, ¶¶ 25-26, 8
N.E.3d 11. The de novo standard also governs when we review the interpretation of statutes
and the entry of summary judgment. Perry v. Department of Financial & Professional
Regulation, 2018 IL 122349, ¶ 30, 106 N.E.3d 1016; Stern, 233 Ill. 2d at 404.
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¶ 14 When presented with statutory questions, we are “to ascertain and give effect to the true
intent of the legislature” by giving the statutory language “its plain, ordinary and popularly
understood meaning.” Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n,
2015 IL 117418, ¶¶ 20-21, 30 N.E.3d 288. Courts must not to depart from the legislature’s
plain language and meaning of its statute by reading in exceptions, limitations, or conditions
that the legislature did not express. Illinois State Treasurer, 2015 IL 117418, ¶ 21.
¶ 15 “Courts construe administrative rules and regulations under the same principles that govern
the construction of statutes.” Perez v. Illinois Department of Children & Family Services, 384
Ill. App. 3d 770, 772, 894 N.E.2d 447, 450 (2008).
¶ 16 It is appropriate to enter summary judgment when “the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735
ILCS 5/2-1005(c) (West 2016); Perry, 2018 IL 122349, ¶ 30; Stern, 233 Ill. 2d at 404.
¶ 17 This case involving the version of FOIA in effect in 2015 presents a unique set of facts
because the statutory language has undergone multiple revisions. This court determined that
the language in effect in the 1990s did not permit the public disclosure of student names and
home address. See Gibson v. Illinois State Board of Education, 289 Ill. App. 3d 12, 683 N.E.2d
894 (1997). That version of FOIA generally exempted “ ‘[i]nformation that, if disclosed, would
constitute a clearly unwarranted invasion of personal privacy’ ” and specifically exempted
“ ‘files and personal information maintained with respect to *** students *** receiving ***
educational [or] financial *** care or services directly or indirectly from federal agencies or
public bodies.’ ” Gibson, 289 Ill. App. 3d at 15-16 (quoting 5 ILCS 140/7 (West 1994)).
However, different language was in effect when Timpone made his FOIA request. Then, while
this appeal was pending, in August 2018, Illinois legislators again amended FOIA, as well as
the Higher Education Student Assistance Act, with language that seems clearly intended to
preclude the type of disclosure that Timpone would like to obtain regarding the 2015 MAP
recipients. The General Assembly amended section 7.5 of FOIA with language incorporating
section 70 of the Higher Education Student Assistance Act and amended section 70 of the
Higher Education Student Assistance Act so that it now reads:
“(g) The personal identity and address of a scholarship, grant, or other financial
assistance applicant or recipient under a non-discretionary program administered by
the Commission, including, but not limited to, the Monetary Award Program under
Section 35 of this Act, where eligibility data is obtained from the Free Application for
Federal Student Aid authorized by 20 U.S.C. 1090 or is protected from disclosure under
federal or State law or under rules and regulations implementing federal or State law,
is information that is intended to remain private and shall be exempt from inspection
and copying under the Freedom of Information Act.” 110 ILCS 947/70(g) (West 2018).
¶ 18 Accordingly, our determinations today have limited application.
¶ 19 Although ISAC presents numerous theories for reversal, we need address only two of them.
The first argument is based on FOIA section 7(1)(a), which exempts from public disclosure all
“[i]nformation specifically prohibited from disclosure by federal or State law or rules and
regulations implementing federal or State law.” 5 ILCS 140/7(1)(a) (West 2014). ISAC
proposes that we read section 7(1)(a) along with the State regulations that implement the MAP
program and protect the confidentiality of financial information that applicants must divulge
about themselves and their parents or spouses. Section 2700.55 of ISAC’s regulations specifies
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that “personally identifiable information of an ISAC program applicant, participant or anyone
named in any materials related to program participation, or personally identifiable information
of an individual that ISAC accesses, receives or maintains in relation to its research or other
activities, is considered confidential personal information.” 23 Ill. Adm. Code 2700.55 (2014).
Section 2700.55 further states, “The confidential information shall not be sold or used, shared
or accessed for any purpose other than that which is directly related to the purpose for which
the confidential information was provided to the participating entity.” 23 Ill. Adm. Code
2700.55 (2014). ISAC’s regulations also provide, “Applicants, spouses and the parents of
applicants are required to submit financial information on the application that will be kept
confidential, regarding income, asset value and non-taxable income.” 23 Ill. Adm. Code
2735.30(b), amended at 37 Ill. Reg. 9528 (eff. July 1, 2013). The circuit court rejected this
argument, reasoning that student names were not encompassed by the regulation’s phrase
“regarding income, asset value and non-taxable income.” 23 Ill. Adm. Code 2735.30(b),
amended at 37 Ill. Reg. 9528 (eff. July 1, 2013). We do not reach the same conclusion about
the relevance of the regulations, however, in light of the income tables, which are available to
the public in the 2015 Data Book maintained on ISAC’s website, and the remarks on ISAC’s
website, which divulge the relatively modest income of 2015 MAP grant recipients and/or their
spouses or parents.
¶ 20 As we indicated above, ISAC’s 2015 Data Book specified that for Illinois fiscal year 2015,
the mean income of parents of all MAP eligible dependent students was $30,652 and the mean
income of all MAP eligible independent students was $16,268. Ill. Student Assistance
Comm’n, Average Income by Dependency Status, http://www.isac.org/e-library/research-
policy-analysis/data-book/documents/2015-data-book/2015DataBookTable2.3d.pdf (last
visited Dec. 3, 2019) [https://perma.cc/EKT6-MWFX]. The 2015 Data Book provided
additional figures, by type of school, specifying that the mean income of dependent and
independent MAP recipients at Illinois public four-year institutions was $33,098 and $14,610,
respectively; it was $41,151 and $20,561 respectively at this State’s private nonprofit
institutions, $23,540 and $15,343 at Illinois public two-year institutions, $39,595 and $23,763
at Illinois hospital schools, and $30,841 and $19,278 at Illinois proprietary schools. The 2015
Data Book also specified the income figures of dependent and independent MAP recipients at
each individual school, stating, for instance, that at the four-year public Chicago State
University, the mean family income of dependent MAP recipients was $20,682 and the mean
income of independent MAP recipients was $12,575; $32,533 and $15,943 were the income
figures for MAP recipients at the four-year public Eastern Illinois University; and $26,653 and
$19,482 were the income figures for MAP recipients at the four year public Governors State
University. ISAC has published and maintained this type of data every year on its website and
currently provides annual data books for fiscal years 2004 through 2018. See Data Book, Ill.
Student Assistance Comm’n, https://www.isac.org/e-library/research-policy-analysis/data-
book/ (last visited Dec. 3, 2019) [https://perma.cc/J996-MSWU] (indicating ISAC’s Research,
Planning, and Policy Analysis Division completes annual data books). Thus, the public has
access to detailed information about the mean income of 2015’s MAP recipient households.
¶ 21 Moreover, one need not delve into the tables of statistics in the 2015 Data Book in order to
find out the approximate income of each MAP recipient. ISAC’s website includes general
remarks that inform the public that “[m]ore than half (54%) of MAP recipients are so low-
income that the federal government doesn’t consider them able to contribute any resources to
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pay for college.” (Emphasis in original.) MAP Facts, Ill. Student Assistance Comm’n, https://
www.isac.org/home/map-matters/map-facts.html (last visited Dec. 3, 2019) [https://perma.cc/
V29Y-YG2F]. Also, “93% of MAP awards go to students who are Pell-[grant] eligible,”
meaning that most MAP recipients came from households earning less than $20,000 per year.
Ill. Student Assistance Comm’n, Basic ISAC Program Data 2 (Feb. 2016), https://www.isac.
org/e-library/research-policy-analysis/program-data/documents/2015_Basic_Program_Data.
pdf [https://perma.cc/M3M3-96UM]; Federal Grants, Scholarships.com, https://www.
scholarships.com/financial-aid/grants/federal-grants/ (last visited Dec. 3, 2019) [https://
perma.cc/WWB9-2G6J] (“most [of the 2015] Pell grant money [went] to students with a total
family income below $20,000”).
¶ 22 These published figures and remarks are put into perspective by the 2015 income figures
that were compiled for the United States as a whole and for Illinois in particular. In contrast to
the 2015 MAP median income figures of $30,652 and $16,268, according to the United States
Census Bureau, the nation’s median household income in 2015 was $57,652 and Illinois’s
median household income in 2015 was $61,229. Quick Facts, U.S. Census Bureau,
https://www.census.gov/quickfacts/fact/table/IL,US/INC110217 (last visited Dec. 3, 2019)
[https://perma.cc/Z4B6-GVPZ]. Thus, most of the 2015 MAP recipient households earned
income that was well below the income of other residents of the United States and Illinois. In
fact, MAP recipient median annual income is near the threshold for poverty in this country.
The federal Census Bureau indicates that in 2015, the poverty threshold for a couple with no
children was $15,391, the poverty threshold for a family of four was $24,257, and the poverty
threshold for a family of six was $32,542. U.S. Census Bureau, Income and Poverty in the
United States: 2015, 43 (Sept. 2016) https://www.census.gov/content/dam/Census/library/
publications/2016/demo/p60-256.pdf [https://perma.cc/E7PR-XVEZ]. Households earning
less than the poverty threshold reported to the Census Bureau a median net worth of just $2000.
U.S. Census Bureau, Median Value of Assets for Households, by Type of Assets Owned and
Selected Characteristics: 2015 (June 7, 2019) https://www.census.gov/data/tables/2015/demo/
wealth/wealth-asset-ownership.html [https://perma.cc/3QGA-KFCG].
¶ 23 In light of the mean income disclosures and remarks that are already available on ISAC’s
website, the further revelation of any 2015 MAP recipient’s name would inform Timpone of
the approximate income earned by that student and/or by that student’s spouse or parents.
However, FOIA section 7(1)(a) provides an exemption for all information that is specifically
prohibited from disclosure by State regulations. The State regulations put at issue here specify
that “personally identifiable information *** is considered confidential personal information”
and “confidential information shall not be *** shared *** for any purpose other than that which
is directly related to the purpose for which the confidential information was provided to the
participating entity.” 23 Ill. Adm. Code 2700.55 (2014). The State regulations also specify that
the income of the MAP applicant, spouse, and parents “will be kept confidential.” 23 Ill. Adm.
Code 2735.30(b), amended at 37 Ill. Reg. 9528 (eff. July 1, 2013). Read together, Illinois law
and regulations prevent ISAC from adding individual student names to the student income
information, which ISAC has already shared with or disclosed to the public through the
agency’s website. Once Timpone had individual student names as well as the income
characteristics which were already published for each learning institution, Timpone would
have the students’ “personally identifiable information” and “confidential information.”
Individual student names are thus exempted by section 7(1)(a) from Timpone’s FOIA request.
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¶ 24 There is an additional reason for denying Timpone’s FOIA request. The second argument
we consider dispositive of ISAC’s appeal is based on FOIA’s section 7(1)(b), which exempts
from public inspection and copying the disclosure of “Private information, unless disclosure is
required by another provision of this Act, a State or federal law or a court order.” 5 ILCS
140/7(1)(b) (West 2014). FOIA defines “Private information” as follows:
“ ‘Private information’ means unique identifiers, including a person’s social security
number, driver’s license number, employee identification number, biometric
identifiers, personal financial information, passwords or other access codes, medical
records, home or personal telephone numbers, and personal email addresses. Private
information also includes home address and personal license plates, except as otherwise
provided by law or when compiled without possibility of attribution to any person.” 5
ILCS 140/2(c-5) (West 2014).
¶ 25 The circuit court rejected ISAC’s reliance on this language, reasoning that the statute did
not expressly exempt names of students receiving financial aid and instead provided a list of
“unique identifiers,” none of which were names. We, however, do not read the statute to
include only “unique identifiers” because only the statute’s first few examples of “a person’s
social security number, driver’s license number, employee identification number, [and]
biometric identifiers,” 1 fit into the category of numbers or other information that identifies a
particular person. 5 ILCS 140/2(c-5) (West 2014). The statute’s concluding examples of
“personal financial information, passwords or other access codes, medical records, home or
personal telephone numbers, and personal email addresses” are not “identifiers” per se but are
instead documents, numbers, or other personal details that are commonly regarded as private
information.
¶ 26 The most relevant of the statute’s examples is “personal financial information,” and we
point out that personal financial information is “universally presumed to be private, not
public.” In re Boston Herald, Inc., 321 F.3d 174, 190 (1st Cir. 2003).
¶ 27 An illustrative case involved the financial disclosures of a former FBI agent, Connolly,
who was convicted of racketeering, obstruction of justice, and murder due to his involvement
in the 1980s with some of Boston’s infamous organized crime figures. In re Boston Herald,
321 F.3d 174. Connolly’s prosecution was the subject of “extensive media coverage and public
interest,” particularly in the city where he had worked for the FBI. In re Boston Herald, 321
F.3d at 176. As the various criminal charges progressed through the trial and appellate courts,
Connolly ran out of money to pay his defense counsel and applied for federal assistance
through the Criminal Justice Act of 1964 (Criminal Justice Act) (18 U.S.C. § 3006A (2000))
to pay some of his attorney fees and expenses. In re Boston Herald, 321 F.3d at 175.
¶ 28 Connolly documented his existing legal debts and also tendered some financial affidavits,
was granted assistance, and on Connolly’s motion, his comprehensive financial disclosures
were placed under seal. In re Boston Herald, 321 F.3d at 175. Like ISAC’s files, the court
clerk’s files were presumptively open to the public, but the court could in its discretion override
that presumption in cases where “disclosure could reasonably be expected to unduly intrude
upon the privacy of attorneys or defendants.” (Internal quotation marks omitted.) In re Boston
1
Some examples of biometric identifiers are fingerprints, palm veins, face recognition, DNA, palm
print, hand geometry, and iris recognition. Biometrics, Wikipedia, https://en.wikipedia.org/wiki/
Biometrics (last visited Nov. 27, 2019) [https://perma.cc/2PQF-QAE7].
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Herald, 321 F.3d at 179. The written order appointing Connolly’s lawyer under the Criminal
Justice Act always remained public and specified that although Connolly “possesses a number
of substantial assets, the total of these assets is less than half of his current liabilities.” (Internal
quotation marks omitted.) In re Boston Herald, 321 F.3d at 176.
¶ 29 Shortly after Connolly’s conviction in one of the criminal proceedings, the Boston Herald,
which was one of the two major daily newspapers in the region, asked the court to unseal
Connolly’s financial information. In re Boston Herald, 321 F.3d at 175-76. The newspaper
based its request on the first amendment and common law, but the magistrate, district court,
and reviewing court rejected both arguments. In re Boston Herald, 321 F.3d at 176.
¶ 30 In its analysis, the appellate court disagreed with the newspaper’s suggestion that the
documents should be released because of a tradition of access to information about the
expenditure of public funds. In re Boston Herald, 321 F.3d at 185. Historically, “Personal
financial information, such as one’s income or bank account balance, is universally presumed
to be private, not public.” In re Boston Herald, 321 F.3d at 190; see United States v. Amodeo,
71 F.3d 1044, 1051 (2d Cir. 1995) (there is a presumption of public access to documents filed
with the court, but the court should “consider the degree to which the subject matter [of the
documents] is traditionally considered private rather than public,” and that “[f]inancial records
of a wholly owned business *** and similar matters will weigh more heavily against access
than conduct affecting a substantial portion of the public”).
¶ 31 Instead, the court agreed with Connolly’s analogy that in government benefits programs,
the government adheres to a “strong tradition *** of confidentiality rather than disclosure.”
In re Boston Herald, 321 F.3d at 185 (federal act which establishes “safeguards to prevent
public disclosure of information about Social Security recipients” (citing 42 U.S.C. § 302(a)(7)
(2000))). The court noted that the disclosure of Connolly’s private financial data would affect
not only him, but also his family, and that it is only in exceptional instances that the public is
given access to the private financial data of government aid applicants and their immediate
families. In re Boston Herald, 321 F.3d at 185, 191 (“it [is] the exception, not the rule, to
require applicants for benefits programs to [publicly] disclose private financial data” and “the
invasiveness of the disclosure sought here is further intensified because the information
pertains not only to Connolly, but also to his wife and children [who are innocent third
parties]”).
¶ 32 Accordingly, despite the source of the funds and the presumption of public access to
government records, the appellate court affirmed the denial of any access to Connolly’s
personal financial information. In re Boston Herald, 321 F.3d at 191. Connolly’s privacy
interests outweighed the public’s interest in the use of its funds. In re Boston Herald, 321 F.3d
at 191.
¶ 33 Along these lines, we note that Illinois regulations regarding public assistance expressly
require confidentiality with client information. State regulations provide: “For the protection
of clients, any information about a client or case is confidential and shall be used only for
purposes directly related to the administration of the assistance programs, except [when staff
is cooperating with law enforcement and coordinating information with other benefit
programs].” 89 Ill. Adm. Code 10.230 (2000).
¶ 34 Here, too, private information, specifically personal financial information, is protected
from public inspection and copying.
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¶ 35 We disagree with Timpone’s contention that names, by themselves, are not private.
Timpone relies on Lieber, which concerned a FOIA request to Southern Illinois University
(SIU) in the early 1990s, when FOIA and privacy expectations were markedly different than
they are now. See Lieber, 176 Ill. 2d 401. In Lieber, the Illinois Supreme Court addressed
whether section 7(1)(b)’s then prohibition on releasing “ ‘[i]nformation that, if disclosed,
would constitute a clearly unwarranted invasion of personal privacy’ ” justified the denial of a
FOIA request for the names and addresses of individuals who had been admitted to SIU but
had not yet enrolled. Lieber, 176 Ill. 2d at 409-10 (quoting 5 ILCS 140/7(1)(b) (West 1994)).
The FOIA request came from an apartment building owner who wanted to market his rental
units. Lieber, 176 Ill. 2d at 404. In previous years, the school had distributed mailing labels
containing student names and addresses, but the school stopped this practice when there was a
decline in enrollment and occupancy of on-campus housing. Lieber, 176 Ill. 2d at 404. The
court determined that the names and addresses were not exempt from public disclosure and
that the FOIA request should have been granted. Lieber, 176 Ill. 2d at 414. Lieber involved
statutory language that is no longer in effect; it was decided in an era when privacy expectations
were different, and disclosing the names of all admitted students would not have revealed any
distinguishing information about those individuals. We do not consider Lieber to have any
relevance to the issue before us.
¶ 36 We find additional guidance in Kendrick, a case factually on point, in which the Alabama
Supreme Court addressed a local newspaper’s request in 2015 for the names of Alabama State
University (ASU) student football players whose athletic financial aid had been either reduced
or cancelled after the Fall 2014 semester. Kendrick v. Advertiser Co., 213 So. 3d 573, 574 (Ala.
2016).
¶ 37 Each reduction or cancellation was documented on a form that included a student’s name,
address, school identification number; the ASU sport or sports in which the student
participated; and the reason(s) the student’s athletic financial aid was reduced or cancelled.
Kendrick, 213 So. 3d at 575. Those reasons included:
“ ‘[r]endered him/herself ineligible for intercollegiate competition for any reason’;
‘[d]id not satisfy the institution’s academic requirements for like scholarship or grant-
in-aid’; ‘[f]raudulently misrepresented information’; ‘[e]ngaged in serious misconduct
warranting substantial disciplinary penalty’; ‘[v]oluntarily withdrew from the team for
personal reasons’; ‘[r]eceived any outside aid that exceeded the value of the cost of
attendance or affected their respective sport’s maximum award amounts/equivalences’;
and ‘[o]ther.’ ” Kendrick, 213 So. 3d at 575 n.2.
The head coach seeking to reduce or cancel a student’s athletic financial aid was instructed to
attach to the form “ ‘any disciplinary form, transcripts, medical records, correspondence,
etc.’ ” Kendrick, 213 So. 3d at 575.
¶ 38 When the school told the reporter in early 2015 that the financial aid forms he had requested
would have to be so heavily redacted “ ‘that there would be nothing on them,’ ” the reporter
said he would “ ‘take just the list of names of players whose scholarships have been revoked
since December [2014].’ ” (Emphasis in original.) Kendrick, 213 So. 3d at 575. The school
declined to disclose those names. Timpone’s request for a list of certain student names is
similar to the Alabama reporter’s request for a list of certain student names.
¶ 39 The Alabama school, however, was an educational institution that received federal funds,
and it was thus subject to federal laws that are not applicable to the State agency currently
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before us. In correspondence, the reporter argued that he was entitled to the information due to
language in Alabama’s Open Records Act providing “ ‘[e]very citizen has a right to inspect
and take a copy of any public writing of this state, except as otherwise expressly provided by
statute.’ ” Kendrick, 213 So. 3d at 575 (quoting Ala. Code § 36-12-40 (1975)). The school
countered that the federal statute commonly known as FERPA, the Family Educational Rights
and Privacy Act of 1974 (20 U.S.C. § 1232g (2012)), as well as a federal regulation
promulgated pursuant to FERPA (34 C.F.R. § 99 (2014)), prohibited the release of education
records without the student’s consent, and thus, the requested athletic financial aid information
was exempt from the Alabama Open Records Act. Kendrick, 213 So. 3d at 575. In a subsequent
mandamus action, the reporter argued that FERPA made an exception for the disclosure of
“ ‘directory information,’ ” 2 and that directory information is defined to include a student’s
name and the sport or sports in which the student participates. Kendrick, 213 So. 3d at 575-76.
The trial court then granted the reporter’s request and required the school to release the
information. Kendrick, 213 So. 3d at 576.
¶ 40 On appeal, however, the school argued that releasing the redacted financial aid forms
would disclose more than mere directory information because it would disclose information
about the students’ financial aid. Kendrick, 213 So. 3d at 577. The Alabama Supreme Court
agreed that each redacted financial aid form would inform the newspaper that the student’s
athletic financial aid has been reduced or cancelled, which was an improper disclosure.
Kendrick, 213 So. 3d at 578. This case illustrates that the context of the information disclosure
is significant. This case, rather than Lieber, 176 Ill. 2d 401, is on point, and it has helped frame
our perspective on the facts and the parties’ arguments.
¶ 41 Given the detailed personal income information of MAP applicants and recipients that has
been disclosed and is maintained on ISAC’s public website, we conclude that the further
disclosure of the names of MAP grant recipients would invade the privacy of those individuals.
Thus, the 2015 MAP recipient names are exempted from public disclosure by FOIA’s section
7(1)(b). 5 ILCS 140/7(1)(b) (West 2014).
¶ 42 Because of these conclusions, we need not reach ISAC’s additional arguments for reversal.
Based on the reasoning above, we reverse the circuit court’s summary judgment ruling in favor
of Timpone. In addition, because Timpone did not prevail on his FOIA claim, we reverse the
circuit court’s award of his attorney fees and costs. See 5 ILCS 140/11(i) (West 2014).
¶ 43 Reversed.
2
FERPA states:
“For the purposes of this section [of FERPA] the term ‘directory information’ relating to a student
includes the following: the student’s name, address, telephone listing, date and place of birth, major
field of study, participation in officially recognized activities and sports, weight and height of
members of athletic teams, dates of attendance, degrees and awards received, and the most recent
previous educational agency or institution attended by the student.” 20 U.S.C. 1232g(5)(A) (2012).
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