lawsuits were filed and then they were consolidated so if it closes the court there were a number of attorneys that participated in writing the brief selection just let us know how safeguarding of this very important information in the personal information protection act the name and social security number together is personal information and that personal information all along with the other information in the cobra open and remnant list which included certain health information health insurance information whether or not there and i think there is no statutory duty that we're pointing to where we're asking this credit to create to the us to create it going back took to create the these with the information that was in those cam flights let me suggest that you're not asking us to create it you're here asking us to recognize a duty that already exists because security numbers or are safeguarded by everyone i mean nobody discloses their social security number to anyone else in fact now the city and the shorthand way of doing it is always by the last one numbers as opposed to all  seven nine nine nine so you're asking us to recognize the beauty and you're asking us to recognize that duty under the duty analysis of our supreme court that looks like negligence and negligence itself is something that could violate if you get stronger that would be a common law negligence i'm not sure that there's there's a snafu exception to of the existence of a duty to safeguard security and i agree with you and i think that the rector said sure by coming out with the personal information protection act and to purchase the credit protection once the the she found out the social security number had been the seminude it she's been paying about seven or eight dollars a  one year so if you had a chance to be looking at seventeen hundred plus social security numbers and never a bit only one year of coverage was out there once a year passes i think identity theft can become rampant she's been paying it for much more than a year now to what it what it is what if it was recognized by individuals that the way he said so security number operate and i don't know but i it would make sense that because of the publicity given to this particular problem with with the prayer and the run year that was after for seventeen hundred people knew that it was only going to be for one year and i think it's pretty clear that out of that number it's possible and it's a much greater number out of that number it's possible that there could be identity theft we only find that out through discovery and we haven't gotten there yet because the motions the smiths granted i think that based on the to statu create your own damages and that's what that's what that argument sounds like sounds like one of the plaintiffs spent money to protect herself and therefore she was damage it's like she's creating your own damage but there's also an allegation of the charge that this across the united states without the disclosure of so security numbers i mean it could be explained by virtue of that reality to her she just happened to be one of those individuals and it had nothing to do with the release of personal security number to very difficult cases and they are difficult cases and that's why you know that the duty element is maybe less difficult to deal with although i'm sure that's the apple claim and that was the trial judge just seemed that she relied on the absence of a duty to build her ruling around and she is the one that used the word snafu and i think that it just at this point but that shouldn't be the basis for allowing the defendant to avoid liability and i  credit protection coverage they can balance the existence of factual injury that ignition alone should be sufficient to withstand a motion to dismiss a pleading stage second of all many of these injuries take place over many many years and while  selling it why isn't the purpose of identity protection insurance no different than protecting them protection that auto insurance gives you it doesn't acknowledge that an accident that has happened or will happen it simply says in the event something should happen you are going to be protected by law isn't it why isn't it now and i think it's not analogous because as the district court noted in the road decision judge hitler noted that the possibility or likelihood trial court got twisted in the analysis by looking for limiting unfairly in unnecessarily the act ability of civil rights laws in one nine hundred eighty three only the traditional sort of black versus white prot previously wrote that it qualifies as some sort of medical disclosure because all it if you ask someone are you a state employee in a sense you've just received information regarding that individual's health ensure programer lease you hear me down to two or three or four options at that individual as as a state employee so i don't understand why the simple disclosure that this person who elected one program over another is some sort of medical disclosure well if you look at the case law in this area they look at the courts have looked at several different areas and have concluded that each is entitle the fourth amendment privacy protection they've looked well i think given the nature of the relationship it's going to impose an extra duty of care on the defendants for the ending of the information and will allow the jury each will word and answer exemplary damages where they would not otherwise be privacy and in this regard i think this sort of theft feels very nicely with the one nine hundred eighty three argument but i think what's important to recognize here is that technology has a for all the unsavory behavior of certain individuals in our society has a fault in soche too should the law we need to recognize that when bassey was originally decided that it didn't the best thing to look and said ok well there's no specific illinois statute that we health policy from the illinois legislature and a recognition by other courts since that that we should provide protection to that and recognize that privacy interest with respect to this and for that reason we think it's regarding duty either arises out of common law and it can be recognized much later in the process immediately or it arises from the stance of the let's say your absolutely right not have to create common law judy common law itself recognizes it and there are duties that arise in the process of of cases that come up with her and there are a multitude of cases i believe sense and i and i and i have a little difficulty in accepting that the board can do anything it wants to do with the so security numbers that it doesn't have to see card them at all because it claims not to have any duty to safeguard that i find that that the board could intentionally disclose this social security numbers and things of that like i couldn't it intentionally do it because if it wanted to information employment records health but employer from the definition of health information ok no medical records were disclosed and the social security number is not a key to medical records i mean if you give somebody you so security number you don't think i will say that it makes it a little difficult to to get to the to the what really is the essence of the claim we were confined to the statutory basis for the  well if you are there when we're talking about the information that was disclosed here which i'm a social security numbers and other information that's given to it to the employer from the employee there's no you relationship there the the board of education neither the board of education nor the employee had the ability to say no i'm not going to give that information because the federal government were choir's that information so there's no the message that i'm sorry that what i'm speaking to today is that no case in illinois or that i know of has impose a fiduciary duty on an employer and former employees and no statute has forfeited that challenge to the privacy clause because they didn't argue it in their opening brief nevertheless it if you look at kelley versus franco that's the first district that's the only case that the board of education could find that discusses that discusses whether the privacy clause creates a kind of right of action and the holding there as i understand is that if it's not or if you're honest if if in your discussions regarding duty in negligence i didn't want to address that it hasn't brought them brought up by plaintiff's counsel but the board is immune from liability see whether there's you know we can get it at least for the next because we're not suggesting that all the elements fall down with duty it's far from the case but we can't reach those of other elements until we get past security and  i commented counsel i find it pretty remarkable that there's that the board is claiming and all and you as an agent of the board can claim that you have no duty at all to to preserve or to not disclose there any duty is there any case has any court ever recognized such a duty she said no they haven't and then plaintiffs admitted in their briefing that no they have it and they admitted that before th now historically torts have developed and common watch courts have been created under circumstances where there are serious injuries and serious damage to us like the swing vote cases for example i mean those are situations where the court says this is such a horrendous injury that we're going to maybe it's never been recognized before in this i don't think this court was i don't think when we look at  roast for this court and i was solving it i got a phone call out i forgot that i'd felt that i'd come back and there's too much salt in the pot roast it is going to be it keep something we don't not the basis of a tort and that except when you when you think of it in terms of not the individual but let's say let's say the cumulative injury to all the seven hundred former  if they all feel a little bit back that they're so scared the number was disclosed to someone else when you consider the cumulative impact on all seventeen hundred it becomes a serious  when you say that it's not to be taken lightly how do we prevent it from happening again unless the law says there is a duty on the part of those who receive social security numbers by their employees because it's so it's require that's a simple matter wasn't it could i respond this should i hardly ever opened a record on appeal that doesn't have some inadvertently file pleading from another case you can't therefore record on appeal you can't even go on  record because the record in fact that hardly anyone is out there looking through records today and in fact it may be restricted to the parties involved in the case all i'm saying is that the clerk's office makes mistakes and compiling or filing fact that it was written as it was written which is hit the wall just like general assembly saying or we don't live in a perfect world mistakes do happen when they happen here's what you got into and you got to do it right away as soon as you know a mistake it's happened you know to everybody who's received this well the poor did that plus they went beyond that and they bought this year of credit protection are they going to want to make sure that they never spend another two hundred thousand dollars for your credit protection pos the bad publicity plus that you know well of course they are do they need to work created to give them incentive to handle their whether you're arguing that there is no duty well or that there is a duty in the duty was satisfied in this case and that sure when they're two different things that are going on here and i think these were two things that justice nowak consider i think as i said she consider that no court even though this does happen in there a lot of cases i know of court had ever decided to and owes a duty under acts like this she also knowledge that this is a fact leaning state we don't have that and would like if the court gives me some time to distinguish the road decision which we did not get a chance to address in our briefs because it was raised in the reply brief for the first time that she was doing something greater than that she looked at all praying and she said you're with a contract you know with the board you don't have to proofread anything and then she looked at the big picture and said look plaintiffs you can't state a cause   contractor is the front for a nigerian identity fraud company and the board disclose send that information to that company i can't see how we could simply say that the board  was did not violate a duty your honor because we're we're dealing in the real world and the good all human beings are not perfect we cannot disclosure of private bad which creates all the while your honor in this case judge no no have ruled that there was no cause of action or a right to privacy because what was disclosed were not private acts in the sense that they told you anything at all about the individual what they are is an arbitrary is i don't know who so scary number that that number itself has no significance the significance is the linking of that so scary number to an individual and that's what the board provided by that president under illinois thought disclose any facts that we consider private it is personal information and the premise of tried to blur that wind and contend that you know anything about me i private information i would suggest very strongly that we disclose just as we go through our day every day what is considered personal information what we know we don't disclose with consider private information district judge of a motion to dismiss in that case in contrast our case there was hit but information and private personal information such as employment information  court was looking at was for that they can just say i'm emotionally distressed and that's good enough and what even that district court decision said was you how can i have some kind of immediate damages rebuttal i wanted to make sure since we've been talking a lot about judy today that the record is clear at least that oral argument in terms of statutory bases for the duty of the plaintiffs in this case and exist that create and or imply a duty where the violation of that statute would constitute evidence of negligence and those include i thought the privacy act of one nine hundred seventy four which coincidentally specifically says that you cannot be punished by a governmental entity for refusing to provide your social security number and expressively says that there be necessarily fine the federal government is recognizing that sets security numbers of information to be clear the duty arises of both step by statute and common law and i would also add that most of the cases that have been cited in the briefs where there's a rejection of a claim or so hundred eighty three and elsewhere where they look at that it's all been developed after a full factual record in discovery something we've not had the benefit of here in terms of the immunity argument that was raised by the respondents i think it's important to point out here that that tort immunity does not applied does not apply for two reasons one this was not a uniquely governmental function and second it didn't fall off the exercise of any discretion they submitted the information to the about its present or former employees that's not uniquely government and private businesses do this all the time because they too are subject to cope now at council mention that daily bread a recipient now a g frankly i don't think that applies at all in this case and i would consistent with emotional distress not sure a sickness except so there were physical sickness allegations as well as the financial type allegations that relate from the purchasing of additional credit