SECOND DIVISION

								jUNEJune 28, 2002

No. 1-01-3704

CHICAGO TRIBUNE COMPANY, 

		Plaintiff-Appellee,

				v.

BOARD OF EDUCATION OF THE CITY OF

CHICAGO, 

		Defendant-Appellant.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Patrick E. McGann, 

Judge Presiding.

	PRESIDING JUSTICE BURKE delivered the opinion of the court:

	Defendant Board of Education of the City of Chicago (Board)

appeals from an order of the circuit court denying the Board's

motion to dismiss, pursuant to section 2-619 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619 (West 1998)), an injunction

action filed by plaintiff Chicago Tribune Company (Tribune) seeking

certain student information under the Freedom of Information Act

(Act) (5 ILCS 140/1 et seq. (West 1998)) and granting the Tribune's motion for summary judgment.  On appeal, the Board contends that

the requested data is per se exempt pursuant to section 7(1)(b)(i) of the Act (5 ILCS 140/7(1)(b)(i) (West 1998)), is exempt pursuant

to section 7(1)(a) of the Act (5 ILCS 140/7(1)(a) (West 1998))

because the federal Education Rights and Privacy Act (federal act)

(20 U.S.C. §1232g (2002)) and the Illinois School Student Records

Act (Student Records Act) (105 ILCS 10/6 (West 1998)) prohibit disclosure of the information, and the request is burdensome.  On

cross-appeal, the Tribune contends that the trial court erred in

denying its request for attorney fees pursuant to the Act.  For the

reasons set forth below, we reverse.

	STATEMENT OF FACTS

	On December 20, 1999, David Jackson, a Tribune reporter,

submitted a request to the Board, pursuant to the Act, for the

following information with respect to each student, approximately

1.1 million, current and noncurrent: school; room number; active or

inactive status; leave code; medical status; guardian relationship

code; special education status or code; cumulative absence for the

semester; consecutive absences for the semester; race;

transportation status and reason for transportation ("OK, IK,

special education, etc."); free or reduced lunch status; class rank; grade point average; zone; bilingual education status; date

of birth; and standardized test scores.  With respect to inactive

students, who constituted approximately 678,000 individuals,

Jackson requested information with respect to the date of

departure, where the student went, and the reason for the departure

(drop out, graduated, incarcerated, dead, home schooled, lost,

etc.).  Jackson also made a request for the Board's "membership database," seeking information as to the school, grade, number of

students who belonged, number of students who entered, number of

students who left, the total number of days absent, and the total number of days present.  On March 17, 2000, the Board denied

Jackson's request, stating that it was burdensome, there was a high

risk of disclosure of personal information and, thus, the

information was exempt pursuant to section 7(1)(b)(i) of the Act,

and the federal act and the Student Records Act prohibited

disclosure of the information.  On August 24, the Tribune appealed

the Board's decision denying its request for the information.  On

September 21, the Board denied the Tribune's appeal request.

	On January 17, 2001, the Tribune filed a complaint for

injunctive and other relief under the Act, seeking an order

requiring the Board to disclose the information.  On February 14,

the Board filed a motion to dismiss the complaint pursuant to

section 2-619 of the Code, contending that disclosure was

prohibited by state and federal statutes and that the request was

overly burdensome and disruptive to the Board's proper and normal

functioning.  On May 10, the Tribune filed a motion for summary

judgment, contending that the "masked" records it sought, without

identifying information, were disclosable, and that under Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 538 N.E.2d 557 (1989), disclosure was required.  The Tribune

also sought attorney fees pursuant to section 11 of the Act.  In

its response to the Board's motion to dismiss, filed the same day,

the Tribune argued that neither the Act, nor other state or federal

statutes, prevented disclosure of the information it sought.  In

addition, the Tribune maintained that the request was not burdensome for the Board.  On July 5, the Board replied to the

Tribune's response to its motion to dismiss and responded to the

Tribune's motion for summary judgment.  On August 30, the Tribune

filed a reply to the Board's response to its motion for summary

judgment, arguing that this case involved a matter of profound

public importance, that the Board could not meet its burden of

showing that students could easily be traceable from the requested

data, and that the request was not unduly burdensome.

	On September 6, the trial court heard arguments on both the

Board's and Tribune's motions.  On September 26, the court filed

its memorandum opinion and order.  With respect to the Tribune's

request, the court, citing to Bowie, stated that "[t]his information [information about private citizens], if masked to hide the

identity of the student, is subject to FOIA disclosure as they are

no longer individual records."  With respect to the federal act and

the Student Records Act, the court first noted that if the Board's

argument that the information sought was exempt under either of the

acts, then a per se exemption applied and the court would not conduct any balancing of interests.  The court concluded, however,

that neither act prohibited disclosure because the data requested

would not identify students or render their identities easily

traceable.  With respect to the Board's argument that the breadth

of the request would allow the Tribune to easily identify students

in some schools, the court stated that "[t]his may be true in

certain isolated situations but not in the main," and, it was the court's opinion, that the "mere possibility of identification is

not sufficient proof of an invasion of privacy."  The court then

noted that Jackson had agreed to execute an affidavit promising to

keep the information confidential, which the court believed would

protect the students' privacy interests.  With respect to the

Board's argument that disclosure would constitute an "unwarranted

invasion of privacy," citing section 7(1)(a)(2),1 the court found this exemption not applicable for the reasons set forth with

respect to the federal act and the Student Records Act.2  With respect to the Board's contention that the request was burdensome

because there was no current computer program to extract the data,

the court found that the Board's expert's opinion was "less than

helpful" because he based it only on an educated guess.  The court

then stated that the Board provided no authority and, it could not

find any, indicating an amount or other factors to determine what

amount of programing would be burdensome.  Based on the above

findings, the trial court denied the Board's motion to dismiss and

granted the Tribune's motion for summary judgment.  The court also

denied the Tribune's request for attorney fees, finding that

because the Tribune's request was so broad, the Board rightfully had concerns with respect to invasion of privacy and declined to

award fees.  

	On October 3, the Board filed a motion to stay the trial

court's September 26 order, which the trial court denied on October

10.  This appeal and cross-appeal followed.  On November 9, we

granted the Board's motion to stay the trial court's order of

September 26.3

	ANALYSIS

	We review the trial court's decision with respect to a section

2-619 motion de novo (Board of Managers of Village Center Condominium Ass'n, Inc. v. Wilmette Partners, 198 Ill. 2d 132, 137, 760 N.E.2d 976 (2001)), as well as its decision granting summary

judgment (Chicago Journeymen Plumbers' Local Union 130, U.A. v. Department of Public Health,  327 Ill. App. 3d 192, 195, 761 N.E.2d 1227 (2001)).

	The Act "implements the public policy of this state to provide

its citizens with full access to information regarding the affairs

of government.  [Citations.]  ***  Upon receiving a proper request

for information, a public body must comply with that request unless

one of the exemptions apply under the Act."  Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 195.  Section 7 of the Act sets forth various exemptions, providing, in pertinent

part:

			"(1) The following shall be exempt from

inspection and copying:

			(a) Information specifically prohibited

from disclosure by federal or State law or

rules and regulations adopted under federal or

State law.

			(b)  Information that, if disclosed,

would constitute a clearly unwarranted

invasion of personal privacy, unless the

disclosure is consented to in writing by the

individual subjects of the information.  *** 

Information exempted under this subsection (b)

shall include[,] but is not limited to:

				(i) files and personal

information maintained with respect

to *** students or other individuals

receiving social, medical,

educational, vocational, financial,

supervisory or custodial care or

services directly or indirectly from

federal agencies or public bodies." 

5 ILCS 140/7(1)(a), (b) (West 1998).

Under subsection (b), two types of exemptions are set forth.  The first, contained in the first sentence, delineates a general

exemption and applies when a public body asserts that the requested

information constitutes a clearly unwarranted invasion of personal

privacy.  Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 196.  The second type of exemptions are specifically set

forth in subparagraphs (i) through (v).  Information falling under

these exemptions are per se prohibited from disclosure.  Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 196.  See also Gibson v. Illinois State Board of Education, 289 Ill. App. 3d 12, 20, 683 N.E.2d 894 (1997).  If the public body contesting

disclosure claims that the general exemption applies, the court

must evaluate the information on a case-by-case basis and conduct

a balancing test to determine whether the disclosure would

constitute a clearly unwarranted invasion of personal privacy. 

Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 409, 680 N.E.2d 374 (1997); Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 196.  However, if the requested information falls within a per se exemption, the court shall conduct no further inquiry and must uphold the body's

decision not to disclose the information.  Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 196; Gibson, 289 Ill. App. 3d at 21.  "Personal information," as used in

subparagraph (b)(i), has been defined as that information which is

private and confidential.  Lieber, 176 Ill. 2d at 412; Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 197.  

	The Board first contends that the data requested by the

Tribune falls within the exemption set forth in section 7(1)(b)(i)

of the Act and, therefore, is per se prohibited from disclosure.  According to the Board, the trial court ignored or overlooked this per se specific exemption.  

	In general, the Tribune responds that all exemptions under the

Act are to be narrowly construed and are only applicable if the

release of information would subject individual students to the

risk of identification, which the Board cannot demonstrate.  The

Tribune argues that the Board simply advances a hypothetical that

individual students could be identified, but that the mere

possibility of identification does not equate to an invasion of

privacy.  The Tribune maintains that the privacy issue, and, thus,

whether the exemption applies, depends entirely on identification

and, where students cannot be identified, the exemption is not

applicable.  With respect to section 7(1)(b), the Tribune contends,

relying on Bowie, that this exemption is not applicable to "masked" data, such as the data it has requested in the instant case. 

Additionally, the Tribune argues that the release of the data in

the instant case would not affect any student's privacy because the

Tribune has demonstrated, by affidavit, that it cannot and will not

identify individual students.4

	Amicus curiae Illinois Association of School Boards (Illinois Association) has filed a brief in support of the Board's position. 

According to the Illinois Association, there is a plethora of

personal facts that the Tribune seeks and, it is possible, even in

a large school district such as Chicago, that some students could

personally be identified.  According to the Illinois Association,

although the trial court itself acknowledged this, it nonetheless

found such possible identification inconsequential.  With respect

to the exemption set forth in section 7(1)(b)(i), the Illinois

Association also maintains that the data and information sought by

the Tribune falls squarely within this exemption.  According to the

Illinois Association, this court should set forth a bright line

rule so that all school districts in Illinois are treated equally

and can act upon such requests in the same manner as the Board did

in the instant case.

	Amicus curiae Illinois Press Association (Press Association) has filed a brief in support of the Tribune's position.  The Press

Association maintains that the per se exemption does not apply in this case because that exemption applies only to personal

information attached to specific individuals, whereas here the

Tribune is not seeking confidential or private information, but

rather is seeking "masked" information.

	Six other amicus curiae public interest organizations (Organizations) also have filed a brief in support of the Tribune's

position.  The Organizations maintain that the starting point for any analysis under the Act is Bowie.  The Organizations argue that here, as in Bowie, the Tribune is seeking only "masked" information and, therefore, the Tribune's request is not exempt.

	Initially, we find that the trial court, the Tribune, and its amici's arguments with respect to the ability or inability to identify any particular student is irrelevant to any analysis under

section 7(1)(b)(i).  The clear and plain wording of the exemption

does not contain any language with respect to identification of

individuals in order to invoke the exemption.  Likewise, the

exemption does not contain any language such as, "However, if a

particular student cannot be indentified from the information, the

body shall then disclose the information."  We cannot read words

into a statute that are not there.  In re County Treasurer and Ex- Officio Collector of Cook County, 323 Ill. App. 3d 1044, 1049, 753 N.E.2d 363 (2001).  Moreover, it has been pointed out by several

courts that where the legislature intended to exempt identification

or make identification relevant, it explicitly stated so in that

particular exemption.  Lieber, 176 Ill. 2d at 411-12; Chicago Journeymen Plumbers' Local Union 130, 327 Ill. App. 3d at 197-98.  Thus, those arguments with respect to the ability to identify

students from the information sought are irrelevant to the analysis

of whether the section 7(1)(b)(i) exemption is applicable.

	Additionally, contrary to the arguments set forth by the

Tribune and various amici, the Bowie decision is not relevant to analyzing the exemption set forth in subparagraph (b)(i) of section 7.  Most importantly, this is true because the Bowie court simply did not address the subparagraph (b)(1i) this exemption.5  Bowie addressed the general exemption in section 7(1)(b), e.g., "unwarranted invasion of privacy."6  The Bowie court did not address the language utilized in that exemption, specifically

"personal information" or "files maintained with respect to

students."  If the applicability of subparagraph (b)(i) had been

decided, we presume the supreme court would have discussed and

analyzed it.   In addition, it would be illogical to conclude that

the Bowie court addressed subparagraph (b)(i) and found it inapplicable to requests under the Act, sub silento, because such a holding would render subparagraph (b)(i) a nullity since it would

basically write the exemption out of the Act.  While subparagraph

(b)(i) is a part of paragraph (b), both are clearly separate and

distinct provisions and different analyses are applied to each provision.  Thus, we do not find the Tribune's argument, that Bowie must have addressed subparagraph (b)(i) because it addressed

paragraph (b), persuasive.  We also note that the information

sought in Bowie, standardized test scores by race, is not of the same kind or same type of information sought in the instant case. 

Accordingly, we conclude that Bowie does not control here.  

	Additionally, although our review is de novo and we are not bound by the trial court's decision, we note that the trial court

failed to address the specific exemption under subparagraph (b)(i) 

of section 7 and it made no findings in this regard.  Rather, the

trial court only addressed the general exemption or the general

"unwarranted invasion of privacy" provision and did not address the

per se exemption set forth in subparagraph (b)(i).  As such, based on our determination that Bowie does not control the analysis under subparagraph (b)(i), we also find that the trial court's reliance

on Bowie was erroneous.

	Substantively, we further find that the Tribune's request

squarely falls within the exemption set forth in subparagraph

(b)(i) of section 7.  First, the exemption utilizes the very broad

terms of "files *** maintained with respect to *** students."  5

ILCS 140/7(1)(b)(i) (West 1998).  There can be no rational argument

that the data requested by the Tribune is not contained in files

maintained by the Board with respect to students.  In fact, the

testimony of the Board's expert witness, Frank Spoto, the manager

of the Board's student information system (SIS), unequivocally and undisputedly demonstrates that such data is contained in

approximately 50 files located in the SIS.  As such, the exemption

set forth in subparagraph (b)(i) is applicable to the instant case.

	In addition, much, if not all, of the data requested would

constitute "personal information" because it is private and

confidential.  One specific example of personal information is the

information with respect to a student's receipt of free or reduced

lunches.  This is akin, if not the same, to a student's receipt of

financial aid.  Receipt of financial aid has been deemed

confidential and private information.  Gibson, 289 Ill. App. 3d at 21.  Moreover, the Tribune is asking for even more personal and

confidential information in seeking a student's medical status,

guardianship status, special education status, and bilingual

status.

	Based on the foregoing, we conclude that the data requested by

the Tribune falls within the per se exemption set forth in subparagraph (b)(i) of section 7.  We therefore find that the Board

properly refused to disclose the information requested by the

Tribune.  Accordingly, we hold that the trial court erred in

denying the Board's motion to dismiss and in granting the Tribune's

motion for summary judgment.  Based upon our disposition, which

terminates this matter in its entirety, we need not address the

remaining issues raised by the parties, including defe.the Tribune's

cross-eaappeal.

	CONCLUSION

	For the reasons stated, we reverse the judgment of the circuit

court of Cook County.

	Reversed.

	GORDON and McBRIDE, JJ., concur.