arguments up obviously we may have actually got this right this weather seems to be coming in so we do appreciate your comedy vince and with that  plain language of the medical practice act is broad and the specific language is important in this case the statute provides that all information gathered by the department during its investigation including information subpoenaed under section twenty three or thirty eight of this act and the investigative file shall be kept for the confidential use of essentially the apartment and it's  as to the initial claims there are several ways in which the apartment gathers that they can be or written claims from members of the public they can be statutor mandated reporting of judgments against physicians they can be the reporting of the settlement of malpractise cases by department of insurance they can be reported by troll substances and finally they may be initiated by the department itself based upon media reports they may have had or information that is in the public domain that they think warrants an investigation of a license physician chief of medical investigations within the department the chief of medical investigations is then shards with determining whether the initial claim becomes a complaint which needs an additional within twenty four hours it's signed a number and put in the investigative file the information sought by the plate if it's clearly covered by section thirty six of the medical practice references the investigative file and states that the investigative file is to be kept confidential for the use of part the broader language of the statute which the public access counselor proceeding and in the filing of a complaint in this case to the number one and i think if you look at the the pleadings in this case it's clear that in this litigation is fine and again this is not a ministry to review eight binding opinion of the public access counsel this is litigation initiated under the terms of the freedom of information act and i think indicate that the plaintiff serves at issue in this appeal is whether the number nothing more of the claims and informal complaints against doctors is information gathered during an investigation and if that doesn't because the tribune is not asking for information in the file that is its contents but only for information showing the number of claims filed section twenty three is in applicable so i think the scope of the request here was initially for the documents but then was changed and there is no i in no way to construe i don't think the pleadings in this case is requesting anything but numbers is not retrievable as a record it's not an existing record kept by the department it is not a record it's kept in the ordinary course this is this pro this affidavit details what would be necessary to do that you would have to go to the paper file of each physician and she describes how those paper files are kept there may be multiple files they may be consolidated there are multiple files open for physicians you would have to go through each one of those files and in the ordinary course of this i believe that the narrowing of the request here from the initial request for documents to a claim for just a request of the numbers certainly leads to an inference that that was done because of a recognition that section thirty six of the medical practice act precluded the disclosure of the actual documents and again as i said i believe on the face of   act that the information is it's shielded from disclosed by the provisions of the medical practice act that we talked about i just discussed with the response of the plaintiff to our other two reasons for the nondisclosure is first wave the plaintiff contends that we waive all of the exemption and defenses which were not raised in the initial denial of freedom of information that and as i said i think the important distinction is this is not administrative review of the public access counsellors binding opinion this is of the affidavit allison problem which is filed in this case clearly details fact that these records are not kept in the ordinary course  find the regulation so what they're asking for is just to go through search of files create a record for them that doesn't exist during the order course of business and i made the analogy i think in my in my brief that it's like sending a set of iraq or tories to the department and asking them to answer it would lead to a situation where if this were this were go off and someone wanted to know every complaint very set up that the files are not sent up by complaints about individual programs so that is not the facts in this case that is certainly ramification of the rule of a ruling that it's permissible to send questions to the department and ask them to answer those questions by producing or creating a record there were two requests at least two letters that such or a number of requests placed him first love letter and then in the those looking back the record were in that's just one line item the right i'm talking about a lot of the others that were contained generally and they were more general requests for information along the lines of what you d digging in on this i believe what they provided was essential what was a summary of what was in the formal complaints which were the documents or provide ok but did they respond to questions as opposed to producing records i think they produce records and then summarize what was in the produce records as to the name of the physician the date the imposition or the discipline was imposed and that's part of the response to the freedom of information act i do know that they asserted their objection to the production of the initial claims and the complaints process and operators but i believe the information and again this is not from a detail going back reviewing them i believe my recollection is that the information that was contained in the responses to the freedom of information act was essentially what was in the formal complaint which is a matter of r but i believe that again the case law and the language of the freedom of information act clearly states that the act does not create an obligation to maintain or create public pressure that this does not constitution due process the plaintiff in their brief suggests that the seventh circuit decision in the gary case precludes argument based upon due process because the information  sought by them which was not provided did not involve actual discipline of a physician were collimator it documents within the investigative file i believe that the license language and fleury applied only to defendants which raible to just one physician and that is the nature of the defendant in this case the issue presented here requires looking a described in the regulation is and the initial claim which results from the terminations that the initial claim percents of the potential violation of medical records so in order to create a complaint from an initial claim the department  notice period or for any input when the determination is made by the department that the initial claim constitutes second a potential violation of the yeah so i believe that under flurry there is an open question believe there's a distinction between the disclosure perhaps of one complaint which would create a blemish as opposed to the disclosure of twenty complaints which in which there are term potential violations i'm sure that that distinction would be important to a physician who's going to have disclosure of the complaints on file with the with the department of professional regulation those records pertaining to specific information and it was in this case limited to information showing the number of initial claims received by the hartmann about twenty two  specifically identified by my client but what we're looking for are records were simply looking for records that show how many initial claims were received in connection with each of these doctors and so the fact that we're looking for numbers doesn't mean that we are looking for the department to create a list of numbers for us but rather it is clear in the department's owns filings that every time administrative code sixty eight atman administrative code section twelve eighty five dash two one five he says that all initial claims shall be reported and when the department receives these initial claims and reports them or creates a file and there has to be a cracker what we're seeking is not necessarily the contents of what is the substance what's of what's in the record but records showing how many claims department received so even if the department produces eat each record that was created in in response to an initial claim that  received now it can be that that record entirely it is long as it produces two ice records showing the number of initial claims that's that it received in connection with these two twenty two gentlemen here i think there's one lady then then released we're not asking the department i'm a search for one but you're saying you so they read that everything what is left what we're what we're looking for is simply the number of the n obviously but it could be just a file that says initial claims concerning dr jones and then that i can see what this person was accused of doing could be redacted because again we we did limit to provide that to you no it would not have to and the reason for that is because every time the department receives an initial claim from from a citizen for example it creates a follow up reading so even if they're so i i get in a complaint i'm the department requests for records from tribune where they're looking for the number records showing the number of initial letters received by ne the department then i believe that the brackets that show that i have received an initial record here it would have been a request or an initial quite of it in a data file document that you know that that's its title why not just request that document information that act that is a public record statute and what we want is records that show this now we don't get in the original letter to the reporter actually use the initial claim i mean  wouldn't they have allowed you to just proceed on there or if you wanted to clarify so we are requesting the initial quite form she did say that she was interested in you're right there were a list of things he was interested in that time and it was a narrow but she was looking for the number of and i think the terminology to use was a little bit off because that's that's the department's lingo but she i think there now we know that the initial document received an initial claim i think she said initial complaint but the department has then produce the complaint when they call a complaint which is something that happens later they first received the initial claim then there's this proceeding or investigation and then there's the complaint in the form of so big they agree that the complaint is something that ought to be released now in the under state the initial complaint to stand for i everybody is clear that that's what that's what we're seeking now we're not asking them to compile or produce records for us those records already exist and we simply want the production of crackers that show how many is very clear that if a public body wants to invoke an exemption it shall do so within five business days and it has to supply not only legal bases up but also a factual basis for why a specific record can be withheld needed tory they're simply something that they can avail themselves of but if they want to do that they need to do it within the first five days under section nine and the times in the court and rocker times a second  the argument under section thirty six of the mouth practice act would be triggered under section one eight of the freedom of information act which the state per the exemption that applies to matters that are specifically prohibited under another law and this court's in better government association verses for voyage said that they specifically prohibited language that means that it really needs to be specifically prohibited that is not just matters that are gathered that is so black that by the department as part of the investigation certainly are exempt but that is not what initial claims is and that's what the public access counsel's office said as well the initial that indicates that this is a request for documents it's a request for records and i don't see how you can say when you have a response to a summary judgment that says again because the tribune is not asking for information in the file that has its contents but only information showing the number of claims filed section twenty three is an apple they are asking here for numbers and the reason they're asking is because the actual disclosure of the documents is covered by the medical practice act which is incorporated into the freedom of information act through the statute and basically subpoenaed information and the investigative five the evidence in this case is the evidence contained in the affidavit that was submitted by the department the plaintiffs had an opportunity to depose those witnesses they want to do or present other information the only information in the record and i detail that for you indicates that when the complaint is received and it's not just something that's mailed it can be something as initiated by the alison perona and she says you know computerized record keeping system the parliament has a record and can recreate the numbers of files associated with the name licensee and yet this record will not however provide the initial claims or complaints contained in the file concerning the particular licensee in order to make that determination employs the department would be required to review each team each paper file bearing the name of the particular physician i'm not going to read the you but that's the record before the court there isn't a record that shows what the plaintiff seat without going through all these files and making one and the freedom of information act does not require