Rushton v. Department of Corrections

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Supreme Court Date: 2021.01.29
14:13:03 -06'00'
Rushton v. Department of Corrections, 2019 IL 124552Caption in Supreme BRUCE RUSHTON et al., Appellees, v. THE DEPARTMENT OF
Court: CORRECTIONS et al. (Wexford Health Sources, Inc., Appellant).
Docket No. 124552
Filed December 19, 2019
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of Sangamon County, the Hon.
Brian T. Otwell, Judge, presiding.
Judgment Appellate court judgment affirmed.
Circuit court judgment reversed.
Remanded.
Counsel on Andrew Ramage, of Brown, Hay & Stephens, LLP, of Springfield, and
Appeal Andrew R. DeVooght, Laura K. McNally, Nina Ruvinsky, and Robin
V. Waters, of Loeb & Loeb LLP, of Chicago, for appellant.
Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for
appellees.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Justices Kilbride, Garman, Karmeier, and Neville concurred in the
judgment and opinion.
Justice Theis dissented, with opinion.
Chief Justice Burke took no part in the decision.
OPINION
¶1 Wexford Health Sources, Inc. (Wexford), contracts with the Illinois Department of
Corrections (DOC) to provide medical care to inmates. At issue is whether a settlement
agreement between Wexford and the estate of an inmate who died from cancer is subject to the
Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)). We hold that it is.
¶2 BACKGROUND
¶3 In August 2015, Bruce Rushton, a journalist for the Illinois Times, sent the following
records request to the DOC:
“All settlement agreements pertaining to claims and/or lawsuits filed in connection with
the death of Alfonso Franco, a former inmate at Taylorville Correctional Center who
died from cancer in 2012. This request includes but is not limited to settlement
agreements involving any private entities charged with providing health care to Mr.
Franco, including but not limited to Wexford Health Sources.”
The DOC responded that it did not have a copy of the settlement agreement but was attempting
to obtain it from Wexford. Wexford declined to turn over the settlement agreement to the DOC,
claiming that it was “confidential in nature.” In further conversations with the DOC, Wexford
argued that the settlement agreement was not a public record for purposes of FOIA.
¶4 The DOC’s chief legal counsel wrote to Wexford that it was required to provide the
document to the DOC so that the DOC’s FOIA officer could review it. Wexford continued to
maintain that it was not required to give the settlement agreement to the DOC but agreed to
provide a redacted version. The DOC responded that the settlement agreement was a public
record under section 7(2) of FOIA (id. § 7(2)) and renewed its request for an unredacted
version. The DOC told Wexford that, if the unredacted version was not forthcoming, it would
provide plaintiff with a copy of the redacted version, along with an explanation that it was not
able to obtain the unredacted version. Wexford did not provide the unredacted agreement, and
the DOC gave Rushton the redacted version.
¶5 In April 2017, Rushton and the Illinois Times filed a complaint against the DOC, seeking
an unredacted copy of the settlement agreement. The Sangamon County circuit court allowed
Wexford to intervene in the lawsuit. The court later ordered Wexford to provide an unredacted
version of the agreement to the court under seal.
¶6 Wexford moved for summary judgment. In its motion, Wexford argued that the settlement
agreement was not subject to FOIA. Wexford cited section 7(2), which provides as follows:
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“A public record that is not in the possession of a public body but is in the possession
of a party with whom the agency has contracted to perform a governmental function on
behalf of the public body, and that directly relates to the governmental function and is
not otherwise exempt under this Act, shall be considered a public record of the public
body, for purposes of this Act.” Id.
Wexford argued that the settlement agreement did not “directly relate” to the governmental
function that it performs on behalf of the DOC because it simply memorializes its independent
business decision to settle a legal claim. Wexford pointed out that the settlement agreement
did not mention Franco’s medical condition or the medical care that Wexford provided to
Franco. Alternatively, Wexford argued that the redacted portions of the agreement were
exempt under various provisions of FOIA.
¶7 Plaintiffs also moved for summary judgment. In a memorandum attached to their motion,
plaintiffs argued that the settlement agreement was a public record under section 7(2).
Plaintiffs explained that Wexford is clearly performing a governmental function on behalf of
the DOC when it provides medical care to prisoners. Moreover, plaintiffs contended that the
settlement agreement directly relates to that governmental function, as it is the settlement of a
claim that Wexford failed to perform its governmental function properly. Plaintiffs further
argued that none of the exemptions raised in Wexford’s motion to dismiss applied to the
settlement agreement.
¶8 Following a hearing, the trial court denied plaintiffs’ summary judgment motion and
entered summary judgment for Wexford. The court agreed with Wexford that the settlement
agreement is a business decision that is not directly related to its provision of medical services
for the DOC. Plaintiffs had argued that the amount of the settlement agreement affected
taxpayers because the amount of the settlement would impact any future contracts between
Wexford and the DOC. The trial court stated that this was a good policy argument but that it
was speculative and any such consequence was only an indirect result of the settlement
agreement.
¶9 Plaintiffs appealed, and the appellate court reversed. 2019 IL App (4th) 180206. The court
first noted that FOIA is to be liberally construed and that its exemptions are to be narrowly
construed. Id. ¶ 25. The court then explained that this court had held in Better Government
Ass’n v. Illinois High School Ass’n, 2017 IL 121124, ¶ 62, that the purpose of section 7(2) is
to ensure that governmental entities may not avoid disclosure obligations by delegating their
responsibilities to private entities. 2019 IL App (4th) 180206, ¶ 26. The appellate court
declined to define the term “ ‘directly relates.’ ” Id. ¶ 30. The court explained that in Chicago
Tribune v. College of Du Page, 2017 IL App (2d) 160274, ¶ 48, the Second District had
declined to define the term “governmental function” in section 7(2) because it was concerned
that any definition “ ‘might prove to be insufficiently flexible.’ ” 2019 IL App (4th) 180206,
¶ 27 (quoting Chicago Tribune, 2017 IL App (2d) 160724, ¶ 48). For the same reason, the
appellate court here declined to define “directly relates.” Id. ¶ 30. Rather, the court held that a
court faced with an issue of whether a document directly relates to a delegated government
function should conduct a fact-specific inquiry while considering the term “directly relates” in
light of FOIA’s liberal construction rule. Id. The court then held that the Wexford settlement
agreement directly relates to the governmental function that it performs for the DOC because
it “involved the settling of a claim arising out of its rendering of medical care.” Id. ¶ 33.
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Accordingly, the court reversed the summary judgment for Wexford and remanded to the trial
court to consider the other issue raised in Wexford’s summary judgment motion: whether the
redacted portions of the settlement agreement were exempt under FOIA. Id. ¶ 35.
¶ 10 We allowed Wexford’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018).
¶ 11 ANALYSIS
¶ 12 In arguing that the settlement agreement is not subject to disclosure, Wexford relies on two
sections of FOIA. First, Wexford contends that the settlement agreement is not a “public
record” under section 2.20 of FOIA (5 ILCS 140/2.20 (West 2014)). This section is titled
“Settlement and severance agreements” and provides that
“[a]ll settlement agreements entered into by or on behalf of a public body are public
records subject to inspection and copying by the public, provided that information
exempt from disclosure under Section 7 of this Act may be redacted.” Id.
Wexford notes that this section refers to public bodies and does not say anything about
settlement agreements of private contractors. 1 Alternatively, Wexford argues that the
settlement agreement does not “directly relate” to the government function it performs for the
DOC and is thus not subject to disclosure under section 7(2).
¶ 13 This appeal arises from the resolution of cross-motions for summary judgment. See 735
ILCS 5/2-1005 (West 2014). When parties file cross-motions for summary judgment, they
mutually agree that there are no genuine issues of material fact and that only a question of law
is involved. Jones v. Municipal Employees’ Annuity & Benefit Fund, 2016 IL 119618, ¶ 26.
Resolving this appeal requires us to construe various provisions of FOIA. Accordingly, our
review is de novo. See Perry v. Department of Financial & Professional Regulation, 2018 IL
122349, ¶ 30 (“The standard of review is de novo, as this appeal presents an issue of statutory
construction and also because it arises from a summary judgment order.”).
¶ 14 When interpreting a statute, the court’s primary objective is to ascertain and give effect to
the intent of the legislature. Van Dyke v. White, 2019 IL 121452, ¶ 46. The most reliable
indicator of legislative intent is the statutory language, which must be given its plain and
ordinary meaning. Id. We consider the statute in its entirety, keeping in mind the subject it
addresses and the apparent intent of the legislature in enacting it. People ex rel. Madigan v.
Wildermuth, 2017 IL 120763, ¶ 17. Words and phrases should not be construed in isolation but
must be interpreted in light of other relevant provisions of the statute. Id. No part of a statute
should be rendered meaningless or superfluous. Skaperdas v. Country Casualty Insurance Co.,
2015 IL 117021, ¶ 15.
1
We note that section 2.20 does not merely refer to settlement agreements entered into by public
bodies. It also applies to settlement agreements entered into “on behalf of” public bodies. In State ex rel.
Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 10, 287 P.3d 364, the court construed
the phrase “on behalf of” in New Mexico’s Inspection of Public Records Act’s definition of “public
records” to include records of private parties who contract to perform governmental functions. The
court noted that “ ‘on behalf of’ ” means “ ‘in the interest of’ ” or “ ‘as a representative of.’ ” Id.(quoting Merriam-Webster’s Collegiate Dictionary 103 (10th ed. 1996)). Here, plaintiffs have not
argued that the settlement agreement was entered into on behalf of the DOC, and thus we do not reach
that question.
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¶ 15 The public policy behind FOIA is stated in its opening section:
“Pursuant to the fundamental philosophy of the American constitutional form of
government, 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 government 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 monitoring government to ensure that it is being
conducted in the public interest.
The General Assembly hereby declares that it is the public policy of the State of
Illinois that access by all persons to public records promotes the transparency and
accountability of public bodies at all levels of government. 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).
Under FOIA, “public records are presumed to be open and accessible.” Lieber v. Board of
Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997); see also 5 ILCS 140/1.2
(West 2014) (“All records in the custody or possession of a public body are presumed to be
open to inspection or copying.”). Based upon the legislature’s clear expression of public policy
and intent, this court has held that FOIA is to be accorded liberal construction, while its
exemptions are to be construed narrowly. Southern Illinoisian v. Illinois Department of Public
Health, 218 Ill. 2d 390, 416 (2006). Therefore, “ ‘when a public body receives a proper request
for information, it must comply with that request unless one of the narrow statutory exemptions
set forth in section 7 of the Act applies.’ ” Id. at 417 (quoting Illinois Education Ass’n v. Illinois
State Board of Education, 204 Ill. 2d 456, 463 (2003)).
¶ 16 Section 2.20
¶ 17 Wexford first argues that the court need look no further than section 2.20. Wexford points
out that this section refers only to settlement agreements entered into by or on behalf of public
bodies. Because the statute does not mention settlement agreements entered into by private
entities who contract to perform government functions, that ends the inquiry. Wexford argues
that this interpretation is supported by section 2.20’s simultaneous enactment with section 7(2).
According to Wexford, “the simultaneous creation and enactment of Section 7(2) and Section
2.20 readily demonstrates that the legislature was fully aware of the role of private entities in
performing governmental functions, but chose, as was its prerogative, to limit disclosure
obligations exclusively to public entities’ settlement agreements.”
¶ 18 We disagree with Wexford that section 2.20 is dispositive, and we do not believe it can be
read in isolation from section 7(2). First, we see nothing particularly significant about section
2.20’s use of the term “public body.” FOIA is a statute governing the disclosure obligations of
public bodies. That term is used in almost every section of the statute. Wexford acknowledges
that section 2.20 was added to FOIA to clarify that settlement agreements are indeed public
records and are not governed by the exemption for insurance-related matters. Thus, the effect
of section 2.20 is to clarify that settlement agreements are indeed public records. Section 2(c)
is the principal section governing what is a “public record,” and this section also uses the term
“public body” and says nothing about private parties who contract to perform government
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functions. Thus, it cannot be the case that the mere use of the term “public body” excludes
parties who contract to perform governmental functions on behalf of a public body.
¶ 19 As this court has made clear, a fundamental principle of statutory construction is that all
provisions of an enactment should be viewed as a whole and words and phrases should be read
in light of other relevant provisions of the statute. J.S.A. v. M.H., 224 Ill. 2d 182, 197 (2007).
Words and phrases must not be construed in isolation. Id. Section 7(2) is the section dealing
with records held by parties who contract to perform government functions. Section 2(c) and
section 2.20 are both concerned with defining what is a public record, while section 7(2)
governs which records of government contractors are considered public records of a public
body and therefore subject to disclosure.
¶ 20 Wexford contends that the simultaneous enactment of sections 2.20 and section 7(2) shows
that the legislature did not intend to make settlement agreements of government contractors
subject to disclosure. According to Wexford, this simultaneous enactment shows that the
legislature was aware of the role of private contractors who perform government functions but
specifically chose to exempt them from section 2.20. But one could more convincingly make
the opposite argument. The fact that the legislature knew that it was now clarifying that
settlement agreements are public records but did not exempt them in the section dealing with
records of government contractors shows that the legislature did intend them to be subject to
disclosure when they directly relate to the governmental function. Again, section 7(2) is the
exclusive section of FOIA dealing with records held by contractors, and the only requirement
it imposes is that the record directly relate to the government function. There is no exemption
for settlement agreements or any other type of document typically considered a public record.
Moreover, Wexford specifically acknowledges that section 2.20 was intended as a clarification
that settlement agreements are public records and are not exempt under the exemption for
insurance-related matters. In other words, the legislature intended for settlement agreements to
be public records even before section 2.20 was enacted.
¶ 21 Section 7(2)
¶ 22 This case is governed by section 7(2). The appellate court treated the section 7(2) analysis
in almost summary fashion. That court explained that the settlement agreement “directly
relates to a governmental function because that settlement agreement involved the settling of
a claim arising out of [Wexford’s] rendering of medical care.” (Emphasis in original.) 2019 IL
App (4th) 180206, ¶ 33. In a sense, the case really is that simple. Nevertheless, we will try to
more fully explain why this is so.
¶ 23 In Better Government Ass’n, 2017 IL 121124, ¶¶ 61-62, we explained the meaning and
purpose of this section as follows:
“Section 7(2) was added to the FOIA in 2010 by Public Act 96-542 (eff. Jan. 1,
2010) to extend the definition of what is considered a public record of a public body,
where the records are not in the public body’s possession. If a public body contracts
with a party to perform a governmental function on behalf of the public body, records
that are in that party’s possession that directly relate to that governmental function and
are not otherwise exempt are public records of the public body.
The [Better Government Association (BGA)] asserts that, in adding section 7(2), it
was the General Assembly’s intent to respond to the growing concern related to the
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privatization of government responsibilities and its impact on the right of public
information access and transparency. As the BGA points out, when governmental
functions are privatized, there is a risk of decreased accountability and transparency.
We agree that such an interpretation is consistent with the purpose of the FOIA, which
is expressly based on a policy of full, complete disclosure regarding the affairs of
government to promote accountability in government and an informed citizenry. 5
ILCS 140/1 (West 2014); Bowie v. Evanston Community Consolidated School District
No. 65, 128 Ill. 2d 373, 378-79 (1989). To that end, we agree that section 7(2) ensures
that governmental entities must not be permitted to avoid their disclosure obligations
by contractually delegating their responsibility to a private entity.” 2
¶ 24 In that case, this court stated that the question raised under section 7(2) was “whether the
IHSA has contracted with District 230 to perform a governmental function on its behalf and,
if so, whether the requested records are directly related to that governmental function.” Id.
¶ 63. Recasting that question for this case, the question is whether Wexford has contracted with
the DOC to perform a governmental function on its behalf and, if so, whether the requested
settlement agreement directly relates to that governmental function. The first element is not in
dispute. Illinois has both a constitutional and a statutory duty to provide medical care to
inmates. See People v. Manning, 227 Ill. 2d 403, 422 (2008) (“The eighth amendment to the
United States Constitution requires that inmates receive adequate medical care.”); 730 ILCS
5/3-7-2(d) (West 2014) (“All institutions and facilities of the Department shall provide every
committed person with a wholesome and nutritional diet at regularly scheduled hours, drinking
water, clothing adequate for the season, bedding, soap and towels and medical and dental
care”). The DOC has contracted with Wexford to perform this governmental function on its
behalf.
¶ 25 Thus, the only question is whether this settlement agreement directly relates to that
governmental function, i.e., does the settlement agreement directly relate to the provision of
medical care to inmates. Although the settlement agreement is in the record, the complaint in
the underlying action that it settled is not. Nevertheless, the parties agree what that complaint
alleged. The complaint was filed by the estate of an inmate who died from cancer. In its
opening brief, Wexford states: “To be sure, Mr. Franco’s underlying complaint pertained to
the healthcare he received as an inmate.” In their appellees’ brief, plaintiffs claim that the 42-
count complaint alleged, among other things, wrongful death, negligence, and violations of the
eighth amendment. In its reply brief, Wexford states that the matter of the underlying Franco
lawsuit is “undisputed.” Thus, the question may be stated as whether the settlement of a claim
that an inmate died from inadequate medical care directly relates to the provision of medical
care to inmates.
¶ 26 In arguing that the settlement agreement does not directly relate to its governmental
function, Wexford points to the different language the legislature used in sections 2(c) and
7(2). In section 2(c), which is the section defining what is a public record, the legislature
referred to records “pertaining to the transaction of public business.” 5 ILCS 140/2(c) (West
2
Even the defendant school district, which was arguing against disclosure, argued in its brief that,
“[i]n applying the ‘directly related’ test, a reasonable and practical approach is to consider whether the
requested records would be subject to FOIA if the public body had not contracted out the governmental
function.” (Emphasis in original.)
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2014). By contrast, section 7(2) uses the language “directly relates to the governmental
function.” Id. § 7(2). Wexford contends that the use of “directly relates” instead of “pertains”
in section 7(2) shows that the legislature intended this section to require a “heightened nexus”
between the record and the governmental function. Wexford contends that Pennsylvania has
the same language in its Right-to-Know Law (see 65 Pa. Cons. Stat. § 67.506(d)(1) (2012))
and has imposed a heightened nexus requirement. See, e.g., Allegheny County Department of
Administrative Services v. Parsons, 61 A.3d 336, 346 (Pa. Commw. Ct. 2013) (construing
“directly relates to the governmental function” to mean directly related to performance of the
governmental function). Wexford further argues that FOIA requires a “document by
document” inquiry. Wexford then focuses on the four corners of the document and points out
that the settlement agreement does not say anything about the medical care it provided to
Franco. Further, Wexford claims that the agreement simply memorializes a business decision
to settle a legal dispute between private parties. Wexford argues that “the Confidential Franco
Settlement Agreement focuses exclusively on the resolution of legal proceedings, the discharge
of legal claims, execution of release documents, and the legal covenants governing all past,
present, and future claims.”
¶ 27 Plaintiffs, by contrast, argue that the settlement agreement is directly related to the
governmental function that Wexford performs for the DOC. The governmental function
Wexford performs for the DOC is provision of medical care to inmates, and the document in
question is the settlement of a claim that Wexford provided inadequate medical care to an
inmate. Plaintiffs focus on the plain meaning of the terms “direct” and “relate” and contend
that there is a self-evident connection between Wexford’s governmental function (provision of
medical care to inmates) and its settlement of malpractice, civil rights, and negligence claims
brought against it and its employees as a result of their exercise of this governmental function.
¶ 28 The appellate court did not attempt to define the statutory term “directly relates.” The court
was concerned that any definition it provided could prove to be “insufficiently flexible in future
cases.” 2019 IL App (4th) 180206, ¶ 30. The court instead held that whether a document
directly relates to a government function must be a fact-specific inquiry guided by liberal
construction principles. Id. We generally agree with this approach. When statutory terms are
undefined, we presume that the legislature intended them to have their ordinary and popularly
understood meaning. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 8 (2009). However, looking
at the plain meaning of “directly” and “related” is not particularly helpful. “Related” means
“having relationship : connected by reason of an established or discoverable relation”
(Webster’s Third New International Dictionary 1916 (1993)), and “directly” means “in close
relational proximity” (id. at 641). This court has explained that, if the meaning of an enactment
is unclear from the statutory language, the court may consider the purpose behind the law and
the evils the law was designed to remedy. Gruszeczka v. Illinois Workers’ Compensation
Comm’n, 2013 IL 114212, ¶ 12. Thus, the meaning of “directly relates” must be considered in
light of FOIA’s policy, which is relayed in section 1, and also the specific policy and purpose
behind section 7(2). This court explained in Better Government Ass’n that section 7(2) was the
legislature’s response to “the privatization of government responsibilities and its impact on the
right of public information access and transparency” and that this section “ensures that
governmental entities must not be permitted to avoid their disclosure obligations by
contractually delegating their responsibility to a private entity.” Better Government Ass’n,
2017 IL 121124, ¶ 62.
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¶ 29 As for Wexford’s argument that section 7(2)’s “directly relates” language creates a
heightened nexus for records of governmental contractors, the different language the
legislature used in sections 2(c) and 7(2) is better understood as simply reflecting the different
circumstances of a public body and a private party that contracts to perform a specific
governmental function. Section 2(c) broadly applies to a wide variety of materials pertaining
to the transaction of public business. This section applies to all such materials “having been
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). Moreover, “[a]ll records in the
custody or possession of a public body are presumed to be open to inspection or copying.”
(Emphasis added.) Id. § 1.2. By contrast, a private party that contracts to perform a specific
governmental function does not subject all its records to FOIA. See Chicago Tribune, 2017 IL
App (2d) 160274, ¶ 53 (explaining that section 7(2)’s “directly relates” requirement “makes
clear the legislature’s intention that the general public may not access all of a third party’s
records merely because it has contracted with a public body to perform a governmental
function”). Rather, the only records subject to FOIA are those that “directly relate” to the
governmental function. See Better Government Ass’n, 2017 IL 121124, ¶ 61 (“If a public body
contracts with a party to perform a governmental function on behalf of the public body, records
that are in that party’s possession that directly relate to that governmental function and are not
otherwise exempt are public records of the public body.”). This helps to ensure that parties are
only able to access records of private contractors that are truly related to its exercise of a
governmental function and not those records that are only incidentally or tangentially related
to the contract with the government.
¶ 30 As far as Wexford’s argument that Pennsylvania has imposed a heightened nexus by
requiring that the requested record directly relate to performance of the governmental function,
this is little more than an application of the plain language of the statute. The relevant
Pennsylvania language mirrors section 7(2) in that it refers to parties who have contracted to
“perform a governmental function” and states that records that directly relate to the
governmental function are considered public records. 65 Pa. Cons. Stat. § 67.506(d)(1) (2012);
see 5 ILCS 140/7(2) (West 2014). In East Stroudsburg University Foundation v. Office of Open
Records, 995 A.2d 496, 504 (Pa. Commw. Ct. 2010), the court explained the meaning of this
statutory language as follows:
“The General Assembly also used the term ‘governmental function’ to limit access
to only those records in a contractor’s possession that relate to that function, not other
records that a contractor maintains during the normal scope of business. Access is
further restricted to records that ‘directly’ relate to carrying out the governmental
function, to avoid access [to records] that may relate to the contract but do not relate to
its performance. For example, material used in preparation for the bid for the
governmental contract would not be subject to access because those records do not
directly relate to carrying out the governmental function.”
¶ 31 East Stroudsburg University Foundation’s analysis shows that the Pennsylvania standard
is no different from the one this court imposed in Better Government Ass’n that public bodies
must not be able to avoid disclosure responsibilities by delegating their governmental function
to a third party. After giving the above description of how section 506(d)(1) of Pennsylvania’s
Right-to-Know Law works, the East Stroudsburg University Foundation court explained that
its interpretation was confirmed by the Iowa Supreme Court’s decision in Gannon v. Board of
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Regents, 692 N.W.2d 31 (Iowa 2005). East Stroudsburg University Foundation, 995 A.2d 496at 505. In that case, an Iowa taxpayer wanted to access certain records of the Iowa State
University Foundation, which had contracted to perform certain governmental tasks on behalf
of Iowa State University. Gannon, 692 N.W.2d at 33. The Iowa Supreme Court held that these
records were subject to disclosure, applying a provision of the Iowa Code that stated that “ ‘[a]
government body shall not prevent the examination or copying of a public record by
contracting with a nongovernment body to perform any of its duties or functions.’ ” Id. at 39(quoting Iowa Code § 22.2(2) (2001)). The East Stroudsburg University Foundation court
explained that both its statute’s “directly relates” requirement and Iowa’s provision that public
bodies may not avoid disclosure responsibilities by contracting with third parties to provide
governmental functions serve the same function: “providing access to records from contractors
that relate to carrying out normal government business.” Here, the governmental function that
Wexford contracted to perform for the DOC—its normal government business—was the
provision of medical care to inmates. The settlement agreement directly relates to performance
of that governmental function. It is the settlement of a claim that Wexford’s inadequate medical
care—its alleged inadequate performance of its governmental function—led to the death of an
inmate. The connection is neither indirect nor tangential. It is direct and obvious.
¶ 32 Wexford’s position would allow precisely what section 7(2) forbids. Again, this court
explained in Better Government Ass’n that section 7(2) prevents public bodies from avoiding
their disclosure obligations by contractually delegating their responsibilities to private entities.
Here, Wexford stood in the shoes of the DOC when it provided medical care to Franco.
Wexford conceded at oral argument that, if this settlement agreement were between Franco’s
estate and the DOC directly, it would be subject to disclosure. Thus, according to Wexford,
when inmates die in the custody of the DOC and their estates sue the DOC for the negligent
provision of medical care, the public has a right to access documents settling those claims if
the medical care was provided by the DOC. If the DOC contracts with a private party to
perform this governmental function, however, then those documents may be shielded from
public view. In other words, Wexford’s position is that the DOC can avoid this disclosure
responsibility by delegating its governmental function to a private entity—precisely the
situation section 7(2) was intended to prevent.
¶ 33 We are also not persuaded by Wexford’s “four corners of the document” argument.
Wexford conceded at oral argument that, even if the document did explain that it was the
settlement of a claim that an inmate died because of inadequate medical care, Wexford would
still contend that the document was not subject to disclosure. Moreover, Wexford describes
the settlement agreement in a way that obfuscates the direct relationship between the document
and the governmental function. For instance, Wexford argues that the settlement agreement is
between private parties and simply memorializes its independent business decision to settle a
legal claim. The direct relationship becomes apparent, however, when the relevant information
is added back in. In other words, if we say that “the settlement agreement was between the
estate of an inmate and an entity that contracted to provide medical care to that inmate on
behalf of the DOC” or “the document memorializes a business decision to settle a claim that,
in discharging its governmental function to provide medical care to inmates, Wexford
negligently caused the death of an inmate,” the direct relationship between document and
governmental function is easy to see. We cannot allow a private party to defeat its disclosure
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obligation simply by describing the document in a way that obscures the direct relationship to
its governmental function.
¶ 34 Moreover, saying that FOIA requires a document-by-document inquiry does not mean that
a court simply focuses on the four corners of the document and fails to consider it in context.
Wexford argues that we should be guided by Pennsylvania’s construction of its analogous
statute (section 506(d)(1) of Pennsylvania’s Right-to-Know Law (65 Pa. Cons. Stat.
§ 67.506(d)(1) (2012))). A case applying that section, Giurintano v. Department of General
Services, 20 A.3d 613 (Pa. Commw. Ct. 2011), shows precisely why a document needs to be
considered in context in order to see whether a direct relationship to the governmental function
exists. In that case, the requester sought records relating to a contract between the Pennsylvania
Department of General Services (DGS) and Language Services Associates (LSA). DGS
contracted with LSA to perform telephone translation services. Specifically, the requester
wanted to see the independent contractor agreements between LSA and interpreters who
provide telephone services pursuant to the contract. Id. at 614. The Office of Open Records
(OOR) ruled that only the agreements between LSA and those interpreters who had performed
under the contract were subject to disclosure. Id. On appeal, the requester argued that the OOR
should have also granted the request with respect to interpreters who had not performed under
the contract. Applying section 506(d)(1), the court upheld the decision of the OOR. The court
explained that agreements between LSA and interpreters who had not actually performed
services pursuant to the contract were not directly related to the contract but rather were only
indirectly related because of the possibility that those interpreters might perform under the
contract. Id. at 615. Thus, it was impossible to determine whether these documents directly
related to the governmental function simply by looking at what was provided within their four
corners. All the requested documents were contracts between LSA and interpreters. Only by
looking at which interpreters had performed services pursuant to LSA’s contract with DGS
could the court determine whether the agreements “directly related” to the governmental
function. Similarly, here, the only way to know whether this settlement agreement directly
relates to Wexford’s governmental function is to know the nature of the claims and whether
they were brought by a DOC inmate treated by Wexford.
¶ 35 We note that the Court of Appeals of New Mexico recently was faced with the same issue
and, not surprisingly, reached the same conclusion as our appellate court did and that we reach
today. While the relevant statutory language differs from ours, the court was guided by the
same principles that we are, and the analysis mirrors ours in several respects. In New Mexico
Foundation for Open Government v. Corizon Health, No. A-1-CA-35951, 2019 WL 4551658(Sept. 13, 2019), the New Mexico Corrections Department (NMCD) had contracted with
Corizon Health to provide health care services in certain New Mexico detention centers. As a
result of the medical care Corizon provided, several inmates filed civil suits against Corizon,
alleging improper care and/or sexual assault. Corizon settled at least 59 of the claims. Id. at *1.
The petitioners filed requests for copies of the settlement agreements under New Mexico’s
Inspection of Public Records Act (IPRA) (N.M. Stat. Ann. § 14-2-1 et seq. (2019)). New
Mexico Foundation for Open Government, 2019 WL 4551658, *1. The initial request was
made to NMCD, who responded to the request with an explanation that Corizon provides
medical care to the inmates and that Corizon “ ‘pays all settlement amounts, pays its own
attorneys to settle or try the case, and pays the inmate’s attorney fees and any judgments or
verdicts entered in these cases.’ ” Id. NMCD explained that Corizon is the custodian of
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settlement agreements involving medical care of inmates and provided petitioners with
Corizon’s contact information. Id. Petitioners then requested the settlement agreements from
Corizon, who responded that “ ‘IPRA does not compel production of this information. Further,
the confidentiality agreements executed by the parties prohibit[ ] disclosure of the requested
information.’ ” Id.¶ 36 Petitioners filed for a writ of mandamus requiring disclosure of the settlement agreements.
Id. at *2. In response, Corizon made the same argument that Wexford makes here. Corizon
argued that the settlement agreements “(1) are private contracts between Respondent and
private persons which require confidentiality pursuant to clauses in the agreements; and (2) are
not a component of the public function Respondent contracted to perform for the State.” Id.
The trial court rejected this argument and granted the writ of mandamus. The court explained
that Corizon was performing a public function and acting on behalf of NMCD in providing
medical care to inmates, that the settlement agreements related to Corizon’s performance of
this public function, and that Corizon could not, through the use of confidentiality clauses,
contract away the public’s right to IPRA disclosure. Id.
¶ 37 Corizon appealed, and the New Mexico Court of Appeals affirmed. New Mexico’s statute
differs from ours in that it does not have a section specifically dealing with records held by
government contractors. Rather, the courts have found such records to be covered under the
general definition of “public records,” which includes records that are held “ ‘on behalf of any
public body and relate to public business.’ ” Id. at *4-5 (quoting N.M. Stat. Ann. § 14-2-1(A)
(2019)); see N.M. Stat. Ann. § 14-2-6(G) (2013). New Mexico had previously held that the
“on behalf of” language included records held by private contractors who perform
governmental functions. See Toomey v. City of Truth or Consequences, 2012-NMCA-104,
¶ 20, 287 P.3d at 369.
¶ 38 In finding that the settlement agreements were subject to disclosure, the court relied on
three factors. First, the court relied on the plain language of IPRA. The court explained that
the settlement agreements clearly related to a public business—the medical care and safety of
NMCD inmates. New Mexico Foundation for Open Government, 2019 WL 4551658, at *5.
The court reiterated that Corizon was acting on behalf of NMCD when it provided medical
services to inmates and then stated that “[t]he settlement agreements were created as a result
of Respondent’s public function acting on behalf of NMCD as they involve alleged
mistreatment of inmates while in the custody of the State of New Mexico.” Id. Second, the
court relied on the public policy behind IPRA: that “ ‘all persons are entitled to the greatest
possible information regarding the affairs of government.’ ” Id. (quoting N.M. Stat. Ann. § 14-
2-5 (2019)). The court explained that “[a]llowing private entities who contract with a public
entity ‘to circumvent a citizen’s right of access to records by contracting’ with a public entity
to provide a public function ‘would thwart the very purpose of IPRA and mark a significant
departure from New Mexico’s presumption of openness at the heart of our access law.’ ” Id.(quoting Toomey, 2012-NMCA-104, ¶ 26). Third, the court noted that the settlement
agreements clearly would have been subject to disclosure if they had been entered into directly
with NMCD. Id. at *6. For all these reasons, the court held that the settlement agreements were
subject to disclosure. “Regardless of whether Respondent was a third-party private entity, the
settlement agreements at issue arose from allegations resulting from Respondent’s
performance of a public function—providing medical care to inmates—and as such, the
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settlement agreements resulted from the medical care provided to New Mexico inmates while
under contract with the State.” Id.
¶ 39 Thus, although the New Mexico statute contains different language, the court was guided
by the same principles that inform our analysis. The statute is to be construed broadly in favor
of disclosure. The contractor stood in the shoes of the Department of Corrections when it
provided medical care to inmates. Settlement agreements in inmate suits alleging inadequate
medical care are clearly subject to disclosure when entered directly with the government. The
settlement agreement was related to the provision of medical care to inmates, and public bodies
may not avoid disclosure obligations by delegating their governmental function to a third party.
The conclusion that the settlement agreements were subject to disclosure was as obvious to the
New Mexico court as it is to us.
¶ 40 CONCLUSION
¶ 41 For all the above reasons, we affirm the judgment of the appellate court, which held that
the settlement agreement was subject to disclosure. In the language of section 7(2), the
settlement agreement is in the possession of Wexford, with whom the DOC has contracted to
provide medical care to inmates on its behalf, and the settlement agreement directly relates to
the medical care that Wexford provided to an inmate. Thus, it is a public record of the DOC
for purposes of FOIA. Because the trial court concluded that the agreement was not subject to
disclosure, it did not consider Wexford’s alternative argument that certain information in the
agreement was exempt under various provisions of FOIA and should be redacted. We thus
remand the case to the trial court for consideration of that issue.
¶ 42 Appellate court judgment affirmed.
¶ 43 Circuit court judgment reversed.
¶ 44 Remanded.
¶ 45 JUSTICE THEIS, dissenting:
¶ 46 The primary goal of statutory construction is to determine and to effectuate the legislature’s
intent as expressed through the statutory language. Yet, in finding this document subject to
disclosure, the majority overrides the clearly expressed legislative intent regarding the type of
settlement agreements that are public records under FOIA. Further, the majority reaches
beyond the text of the document and relies on unwarranted assumptions to conclude that a
financial transaction between two private parties constitutes a public record that must be
disclosed under FOIA. Therefore, I respectfully dissent.
¶ 47 To reach its conclusion that this document is subject to disclosure, the majority essentially
rewrites sections 2.20 and 7(2) of FOIA. The majority first edits the words “by or on behalf of
a public body” from section 2.20. See supra ¶ 18 (“section 2.20 was added to FOIA to clarify
that settlement agreements are indeed public records”); supra ¶ 20 (“section 2.20 was intended
as a clarification that settlement agreements are public records”). Then, though it mentions the
phrase “directly relates to the governmental function” in section 7(2), the majority glosses over
the fact that this record, standing alone, does not directly relate to Wexford’s provision of
medical care. The majority recites established principles of statutory construction (see supra
¶ 14), but it fails to adhere to them.
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¶ 48 At issue here is whether Wexford’s settlement agreement with the decedent’s estate is a
public record that must be disclosed under FOIA. Because FOIA contains a specific provision
addressing settlement agreements, our analysis must begin there. Section 2.20 provides, in part,
that “[a]ll settlement agreements entered into by or on behalf of a public body are public
records subject to inspection and copying by the public, provided that information exempt from
disclosure under Section 7 of this Act may be redacted.” 5 ILCS 140/2.20 (West 2014). Based
on this unambiguous text, the public is entitled to inspect and copy two types of settlement
agreements: (1) those entered into by a public body and (2) those entered into on behalf of a
public body.
¶ 49 Wexford’s settlement agreement with Mr. Franco’s estate fits into neither statutorily
prescribed category. A public body is defined as “all legislative, executive, administrative, or
advisory bodies of the State, state universities and colleges, counties, townships, cities,
villages, incorporated towns, school districts and all other municipal corporations, boards,
bureaus, committees, or commissions of this State, any subsidiary bodies of any of the
foregoing including but not limited to committees and subcommittees thereof, and a School
Finance Authority created under Article 1E of the School Code.” Id. § 2(a). Wexford is none
of those; it is a correctional health care company. Thus, the agreement was not entered into by
a public body.
¶ 50 Additionally, though Wexford has contracted with a public body, this settlement agreement
was not on behalf of the Illinois Department of Corrections. Indeed, in a pleading before the
circuit court, the DOC clarified that neither it nor its employees were involved in the decedent’s
case. Rather, Wexford, through its insurer, chose to settle a lawsuit brought by the decedent’s
estate. The DOC was not a party to, or even mentioned in, the agreement. It only received a
copy of that document in connection with these proceedings.
¶ 51 Further, Wexford’s settlement with the decedent’s estate was not paid with public funds.
One of the main justifications for requiring disclosure of a public body’s settlement agreement
is that the public has a right to know how the public body has spent public resources. Under
FOIA, “[a]ll records relating to the obligation, receipt, and use of public funds of the State,
units of local government, and school districts are public records subject to inspection and
copying by the public.” Id. § 2.5; see State Journal-Register v. University of Illinois
Springfield, 2013 IL App (4th) 120881, ¶ 60 (observing that “the public has a legitimate
interest in the spending of a public university”); see also Better Government Ass’n v. Village
of Rosemont, 2017 IL App (1st) 161957, ¶ 27 (confirming “that the public has a right to know
about the sources and dispositions of public funds”). That justification does not apply here,
where public funds did not satisfy the settlement.
¶ 52 The majority makes the stunning assertion that the legislature’s use of the term “public
body” in section 2.20 is not “particularly significant.” Supra ¶ 18. Its analysis of that provision
essentially ignores the phrase “by or on behalf of a public body.” However, the legislature
included those words in the statute to clarify that only settlement agreements entered by a
public body, or on behalf of a public body, would be deemed public records. See Chicago
Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566,
¶ 15 (noting that, where possible, “[e]ach word, clause, and sentence of a statute must be given
a reasonable meaning”). The majority asserts that section 2.20 does nothing more than “clarify
that settlement agreements are indeed public records.” Supra ¶ 18. However, the plain
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language demonstrates that there is an express limitation on the type of settlement agreements
that are public records.
¶ 53 The majority further contends that “it cannot be the case that the mere use of the term
‘public body’ excludes parties who contract to perform governmental functions on behalf of a
public body.” Supra ¶ 18. We have long found that the statutory language is the “most reliable
indicator” of the legislature’s intent. Gaffney v. Board of Trustees of the Orland Fire Protection
District, 2012 IL 110012, ¶ 56. And “no rule of construction *** authorizes a court to declare
that the legislature did not mean what the plain language of the statute imports.” Kunkel v.
Walton, 179 Ill. 2d 519, 534 (1997).
¶ 54 Through section 2.20 of FOIA, the General Assembly chose to constrain the category of
settlement agreements that will be deemed public records to those that are either by, or on
behalf of, a public body. Given the definition of public records, “all *** documentary materials
pertaining to the transaction of public business” (5 ILCS 140/2(c) (West 2014)), this limitation
makes sense. The legislature rationally could have determined that only specified settlement
agreements, for example, those paid with public funds, pertain to the transaction of public
business, such that they should be disclosed to the public. See generally Estate of Cole v.
Ferrell, 2011-IA-01103-SCT (Miss. 2012) (ruling that, where a “settlement agreement is
between private parties, does not involve matters of public concern, and is not necessary to
resolve the [underlying] claim, its confidentiality should be preserved”). This settlement
agreement was not satisfied with public funds and does not directly speak to the governmental
function that Wexford performs—providing medical care to inmates. Therefore, it presents no
public interest.
¶ 55 In sum, because Wexford’s settlement agreement with the decedent’s estate was not
entered into by or on behalf of a public body, the plain language of section 2.20 dictates that it
was not a public record and, thus, not subject to disclosure. See, e.g., Nelson v. Kendall County,
2014 IL 116303, ¶ 23 (“If the language of the statute is clear, it must be given effect without
resort to other interpretive aids.”).
¶ 56 Section 2.20 specifically addresses settlement agreements; therefore, that provision
governs this case, not section 7(2) as the majority holds. See, e.g., People ex rel. Madigan v.
Burge, 2014 IL 115635, ¶ 32 (“ ‘The more specific of two statutes dealing with a common
subject matter generally will prevail whether it has been passed before or after the more general
statute.’ ” (quoting 82 C.J.S. Statutes § 482 (2010))). That said, Wexford’s settlement
agreement also was not subject to disclosure under section 7(2). Under that section, “[a] public
record that is not in the possession of a public body but is in the possession of a party with
whom the agency has contracted to perform a governmental function on behalf of the public
body, and that directly relates to the governmental function and is not otherwise exempt under
this Act, shall be considered a public record of the public body, for purposes of this Act.” 5
ILCS 140/7(2) (West 2014).
¶ 57 No one disputes that Wexford has contracted with the DOC to provide medical, dental,
mental health, and pharmacy services to inmates in the DOC’s custody. Wexford clearly
performs a governmental function. Thus, the question before us is whether this settlement
agreement (not the subject matter of the estate’s underlying complaint) directly relates to
Wexford’s provision of medical care to the decedent, or any other inmate, such that it can be
considered a public record.
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¶ 58 Simply put, the answer is no. The settlement agreement does not directly relate to
Wexford’s provision of medical care. “Directly relates” was not defined in the statute, but we
have found it “appropriate to employ a dictionary to ascertain the meaning of an otherwise
undefined word or phrase.” Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 8 (2009). The word
“directly” in the statute modifies the verb “relates.” Webster’s Third New International
Dictionary defines “directly,” in part, as “without any intermediate step.” Webster’s Third New
International Dictionary 641 (1993). It defines “relate,” in part, as “to be in relationship.”
Webster’s Third New International Dictionary 1916 (1993). Accordingly, a record possessed
by a government contractor will be deemed a public record of the public body when it has an
uninterrupted relationship with the governmental function. See Chicago Tribune v. College of
Du Page, 2017 IL App (2d) 160274, ¶ 53 (“[F]or relief to be granted under section 7(2), a
record must ‘directly relate’ to the governmental function performed on behalf of a public
body. [Citation.] This requirement makes clear the legislature’s intention that the general
public may not access all of a third party’s records merely because it has contracted with a
public body to perform a governmental function.”).
¶ 59 For example, putting privacy concerns to the side, medical records documenting the
treatment that Wexford’s employees provided to the decedent would have an uninterrupted
relationship with the governmental function that it performs. Also, training manuals that
Wexford’s employees rely on to provide medical care to inmates would be directly related to
the governmental function. Those documents have a direct relationship with its governmental
function of providing health care.
¶ 60 By contrast, Wexford’s settlement agreement with the decedent’s estate does not have an
uninterrupted relationship with its governmental function. The document does not discuss any
aspect of the decedent’s medical condition or Wexford’s provision of medical care. Instead, it
merely confirms that the estate made allegations against Wexford and that the company paid a
certain amount of money to resolve the lawsuit, though it expressly denied liability for the
claims. The settlement agreement may have a tangential relationship to Wexford’s
performance of a governmental function, but that does not suffice to make it a public record
under section 7(2).
¶ 61 The majority reaches the contrary conclusion by misstating the question as “whether the
settlement of a claim that an inmate died from inadequate medical care directly relates to the
provision of medical care to inmates.” Supra ¶ 25. It is unclear what basis the majority has for
resurrecting allegations from the estate’s lawsuit in federal court, rather than looking to the
text of the settlement agreement itself, to determine whether the agreement is subject to
disclosure. The majority concludes that this document constitutes a public record because it
“involved the settling of a claim arising out of [Wexford’s] rendering of medical care.”
(Internal quotation marks omitted.) Supra ¶ 22. The statute, however, requires the record to do
more than simply “arise out” of the governmental function. It must “directly relate” to the
function to be deemed a public record. See In re Michelle J., 209 Ill. 2d 428, 437 (2004)
(observing that this court is not at liberty to rewrite statutes).
¶ 62 In finding the connection between this settlement agreement and Wexford’s performance
of the governmental function “direct and obvious,” the majority credits the allegation that
“Wexford’s inadequate medical care *** led to the death of an inmate.” Supra ¶ 31. This
assertion is problematic for at least two reasons. First, the majority implies that “ ‘Wexford
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negligently caused the death of an inmate’ ” (see supra ¶ 33), even though there was neither a
trial nor findings of fact to establish such causation. The record on appeal reveals that the
decedent was a cancer patient. That condition may cause death even where an individual
receives proper treatment.
¶ 63 Second, the fact that Wexford settled this lawsuit does not demonstrate its guilt. Companies
choose to enter settlement agreements for reasons unrelated to their culpability. See, e.g.,
People ex rel. Wilcox v. Equity Funding Life Insurance Co., 61 Ill. 2d 303, 316 (1975)
(observing that “[m]any factors enter into the consideration of the parties to litigation in
arriving at a compromise settlement”); Liberty Mutual Insurance Co. v. American Home
Assurance Co., 368 Ill. App. 3d 948, 960 (2006) (“an agreement to settle does not constitute
an admission of guilt”). In short, there is no basis to question Wexford’s denial of liability for
the decedent’s death.
¶ 64 Despite the majority’s heavy reliance on Better Government Ass’n v. Illinois High School
Ass’n, 2017 IL 121124, it does not support the conclusion that this settlement agreement is
subject to disclosure under FOIA. Better Government Ass’n did not involve a request for
disclosure of a settlement agreement. At issue in that case was whether an association that
“govern[ed] and coordinate[d] interscholastic athletic competitions for public and private
secondary schools in Illinois” was a public body under FOIA and whether certain of its records
should be considered public records of a public body. Id. ¶ 1. Specifically, a FOIA request had
been made for all the association’s “contracts for accounting, legal, sponsorship, and public
relations/crisis communications services and all licensed vendor applications” for two fiscal
years. Id. ¶ 8.
¶ 65 We observed that “section 7(2) ensures that governmental entities must not be permitted to
avoid their disclosure obligations by contractually delegating their responsibility to a private
entity.” Id. ¶ 62. That said, we determined that the association had not contracted to perform a
governmental function on behalf of the public body. Because no contract to perform a
governmental function existed, we were not required to assess whether the documents were
directly related to a governmental function before concluding that the records were not public
records under section 7(2). Id. ¶ 65.
¶ 66 In this case, as noted above, there was a contract to perform a government function.
However, nothing suggests that the DOC entered that contract to avoid its disclosure
obligations. The DOC’s contract with Wexford was renewed in 2011, well before plaintiffs
initiated these proceedings. No evidence indicates that it entered the contract to avoid
disclosing materials under FOIA. Further, the record shows that the DOC furnished these
plaintiffs with responsive documents that were in its possession. As such, Better Government
Ass’n is inapposite.
¶ 67 The majority finds that it would be incongruous to allow public access to settlement
documents when the DOC provides medical care to an inmate, who then dies in its custody,
but not when a private party provides the care. Supra ¶ 32. However, as I noted earlier, a key
justification for requiring disclosure of settlement agreements by a public body is the public’s
right to know how public resources have been spent. See 5 ILCS 140/2.5 (West 2014). Where
public funds did not satisfy the settlement, and without more, there is no basis to conclude that
this settlement agreement between private entities constitutes a public record.
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¶ 68 The majority acknowledges that private parties occupy a different position from public
bodies as to their disclosure requirements under FOIA. Supra ¶¶ 29-30. Nonetheless, the
majority has distorted two provisions of the statute to require disclosure of a settlement
agreement between two private parties. I cannot agree. Accordingly, I respectfully dissent.
¶ 69 CHIEF JUSTICE BURKE took no part in the consideration or decision of this case.
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