SIXTH DI VISI ON December 7, 2006

No. 1-06-1158 MICHA EL COR DTS, ) ) Appeal from the Plaintiff -Appella nt, ) Circuit Court of

) Cook County

, Illi nois. v. ) ) No. 04 L 9146 CHICAGO TRI

BUNE COMPANY ) and MEDEVAL CORPORATI ON, ) Honorab le ) Kathy M. Flana

gan Defend ants-App ellees. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Plaintiff, Michael Cordts, brought claims entitled "invasion of privacy " and "defamation" against his employe

r, Chicago Tribune Company (Chicago Tribune), and Medeval Corpora tion (Medev al), a c ompan y hired by Chi cago Tri bune t o eval uate t he dis abili ty claims of Chi cago Tribune e mploy ees. Cordt s alle ged

that a n emp loy ee of Mede val w rong fully discl osed to hisexwife that he was receiving tre atment for depression after the Medeval e mployee lear

ned of the fact while evaluating his disability claim. Defendants brought a joint motion to dismiss the defamation claims based on section 2-615 of the Code of Civil Procedure (735 I LCS 5/2-615 (West 2004)), and a motion to dismiss the "invasion of privacy " claims based on section 2-619 of the Code o f Civil Proc edure ( 735 I LCS 5/2 -619 (Wes t 2004)). The circ uit court g

ranted b oth

mo ti on s a nd Co rd ts no w a pp ea ls on ly t he se ct io n 2 -6 19 di sm is sa l o f h is "i nv as io n o f p ri va cy" claims. For the reasons that follow, we affirm in par t, reverse in part, and remand for fur ther procee dings.No. 1-06-1158

2 I. BACKGROUND Cordts filed his complaint and jury demand on Aug ust 19, 2005. Count II of the complaint is entitled "Chicago Tribune Company - Invasion of Privacy " and count IV is entitled "Medeval - I

nvasion of Privacy." The two counts, which are nearly identical, allege the following pertinent facts. I n March of 2004, Cordts applied to his employe r, Chicago Tribune, for shor t-term di sability

benefit s and Chic ago Tr

ibune, in t

urn, req uested that Medev al provid e it with a recommendation regarding Cordts's request. In Aug ust of 2004, Cathy Channing, a n employee of Me deval who learned of Cordts's request for disability benefits through he r employment, disclosed to Cordts's ex-wife, K athleen, that Cordts was receiving treatment for depression. Cordts discovered that his health information had been disclosed to his ex-wife on August 19, 2004. Cordts's complaint further alleged that Chicago Tribune had provided him with a document entitled " Information Concernin g Privac y Pr actice s Under T

ribune G roup Be nefits Plan and Employee Assistance Plan" that ensured him that his health information would not be disclosed to unauthorized parties. Cordts asserted that the confidential information disclosed was of the kind that would be highly offensive to a reasonable person and that the disc losure was especially de

vastating to him due to the "special relationship" he ha d with his ex-wife. The complain t next state d that def

endants: "owed a duty

of care to [Cordts] so as not to unreasonably g ive publicity to the private life of [Cordts] and additionally owed a duty of care to [Cordts] under 740 IL CS 110/3, commonly known as the Mental Health and De velopmentalNo. 1-06-1158

3

Disabilities Confidentiality Act and also under the D efendant Tribune's own privacy policies." Def end ant s di d no t fi le a n an swe r bu t m ove d t o di sm is s t he c om pl ain t, st ati ng: "Co unt s II and IV of the Compl aint are claim s for damages bas ed upon the t ort, invas ion of priv acy." Defend ants a ssert ed, ci ting Doe v. TCF Bank Illinois , 302 Ill. App. 3d 839, 841, 707 N.E.2d 220, 221 (1999 ), that to s tate a c ause of a ction for public dis closure

of priva te facts , a plaint

iff must plead: "(a) Defendants g ave publicity; (b) to Plaintiff' s private, not public, life; (c) the matter publicized

was hig hly offensi ve to a re asonable

person; a nd (d) the matter pu

blished wa s not a legitimate public concern." Def endant acknowledged that the publicity element of the tort may be satisfied by disclosing the matter to a small number of persons if those persons have a " special relat ions hip" w ith t he pla inti ff. Ho wever, defend ants a verred , again citi ng Doe , 302 Ill. App. 3d at 842-43, 707 N.E.2d at 221, that the publicity e lement of the tort is not satisfied where the persons to whom the information is disclosed have a "natural and prope r interest" in the information. Defend ants arg ued that Cordts's e

x-wife Ka

thleen ha d a "nat ural and proper i nterest" in Cordts's treatment for depression because he was "financially

responsible for medical and life insurance as well as college tuition and expenses for his daug hter." In support of this contention, defendants attached a copy of the judgement order for the dissolution of the Cordts's marr iage, dated December 1, 2005, as well as a " marital settlement agreement," which was executed by Cordt s and K athle en in c onju nctio n wit h thei r divo rce. In ad diti on to setti ng fort h Cord ts's responsibilities with regard to maintaining health and life insuranc e policies for their child andNo. 1-06-1158

4

for otherwise supporting her, the marital settlement ag reement contained a section, entitled "joint parenti ng ag reemen t," that s tated in p art: "The pa rties ag ree tha t the maximum i

nvolveme nt and coo

peration of both parents is required and in the child's best interests, and a ccordingly

the parties shall confer with each other about and jointly decide all important matters pertaining to the child's health, welfar e, education and upbringing with a view toward a rriving at a har monious pol icy

designe d to promot

e the chi ld's bes t interest s.

*** The parties agree that they are attempting to resolve their differe nces through the use of a joint parenting ag reement and they

recognize that the joint residential parenting schedule and the joint custody itself as provided herein may require future adjustments and change s to reflect the child's best interests in the future a fter tak ing into a ccount: A. The ab ility

of the pa rents to c ooperat

e effe ctively

and cons istently

with each other; B. The residential circumstances of ea ch parent; and C. All other factors which my be relevant to the best interests of the child. The par ents also recog nize that th

is joint par

enting a greement is a dy

namic concept subject to reevaluation and chang e based upon a change in circ umstances of a par ent or ch ild includi

ng but no t limited to i llness, e mploy ment req uiremen tsNo. 1-06-1158

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and location, economic circumstances, the child's ne eds, requirements and development, change in residence locations and other social, psy chological and economic changes." Defendants also attached an affida vit from Medeval employe e, Channing, in which she stated that her daughter, Jacly n, had been friends with the Cordts's daughter Catherine for several years. Channing

also stated that Catherine had visited with Jaclyn many times in the Channing home, tha t Catheri ne atten ded a pa rty at the Cha

nning ho me on June 27 , 2004, wh ere she told Channing that she planned to attend DePaul University in the fall of 2004, and that Catherine visited the

Channing

home duri

ng the 2 004 Christmas holida ys a nd repor ted that she had, in f

act, be gu n a tt en di ng De Pa ul Un iv er si ty. In response to defenda

nts' motion to dismiss, Cordts first cited the same elements of an action for public disclosure of private facts as asse rted by def

endants. Cordts then denied that Kathleen had a "natural and prope r interest" in knowing that her husband was re ceiving treatment for depression, stating that the fact was " completely irre levant to whether he would be able to pay for medical, dental and life insurance, as we ll as his daughter's college tuition" as required by

the couple's marital settlement agree ment. Amidst this argument, Cordts further stated that defendants' disclosure of his confidential information wa s in violation of the Mental Health and Developmental Di sabilitie s Confiden tiality Act (her einafte r "Confi dentialit

y A ct") (7 40 IL

CS 110/1 et seq . (West 2004)), which "stringently and fiercely

protects the disclosure of such informat ion." Cor dts also qu

oted section 3 of th e Confide ntiality Act, whic

h states that a person's mental health information "shall not be disclosed except as provide d in this Act" (740No. 1-06-1158

6

IL CS 110/3 (We st 2004)) , and ave rred tha t none of t

he Act' s exceptions to disclo sure app lied in his case. Defendants replied to Cordts's response to their motion to dismiss, contending ag ain that Co rd ts 's ex -w if

e h ad a " na tu ra l a nd pr op er in te re st " i n t he di sc lo se d i nf or ma ti on . A dd it io na ll y, in a footn ote to the ir reply

, defend ants state d: "Plaintif f's re ferenc es to the [Confidentia lity Act] are entirely irrelev ant to this Court's determination as to whether there was a publication in a tort a ction for invasion of privacy. I

ndeed, plaintiff has not alleged a cause of action under the [Confidentiality Act.] Any references thereto ar

e nothing more than a red herring and should be ignored." The rec ord on ap

peal doe s not ref

lect that oral ar guments were he ld on defe

ndants' motions to di smiss, nor t

hat any evidenti ary

hearing was cond ucted. T he circ uit court i ssued its

memorandum opinion

and orde r on Marc h 15, 2006. In su

mmarizing

the part ies' ar guments in the "factual backgr

ound" section of its memorandum opinion, the court stated: "[T]he Plaintiff *** argues that his ex-wife does not have a natural a nd proper interest in his mental state as it does not directly affect her. He points out that h is tr eatme nt for depres sion is ir releva nt to his ab ilit y to pay for hi s daugh ter's expenses. Further, the Plaintiff contends that disclosure of his treatment for depression was in violation of the [Confidentiality Act.] *** [T]he Defendants argue that there is no more 'natural and proper' interest than a parent's aware ness of circumstances that may adversely

affect theNo. 1-06-1158

7

well being of her children. Thus, a mother ha s a natural and proper interest in her child's father's mental health, ability to work, ability to support the child and ability to participation [ sic ] father/daughter activities." In the "discussion and ruling " section of its memorandum opinion, the circuit court stated: "In the instant case, the Plaintiff's treatment for depression was disclosed to his ex-wife, who, all parties concede, has a special re lationship with the Plaintiff. The evidence in the record shows that the Plaintiff was oblig ated to pay for insurance coverag e, tuition and expenses for his daughter. Further, the Plaintiff and his ex-wife shared joint custody of the child, although it was agreed that the child would reside primarily with the mother, and made joint decisions regar ding the child's welfar e. His ex-w

ife, the child's mother, has a legitimate interest in anything

that would adversely

affect her child and the support of her child both financially and e motionally. The mental state of a pa rent affects the parent's ability

to work and thus provide for the child financially and it affects the parent' s ability

to intera ct with the

child and thus provi de for th e child emotionally. Theref

ore, the ex-wife, Kathleen Cordts, would have a natural a nd proper interest in her ex-husband's mental health as it impacts their child' s support and well b eing. F

urther, it also impa

cts the ex-wife as

she would

be responsible for the entire support of her child should the father bec ome incapacitated. Theref ore, the Court find s that as K

athleen Cords had

a natura l and prop er inter

estNo. 1-06-1158

8

in the men

tal healt h of her e x-husband, the claim

for disc losure of

private facts cannot stand and counts II and IV must be dismissed." On appeal, Cordts contends that the circuit court erred in dismissing his complaint on the basis of the "natural and proper interest" exception to the common law tort of public disclosure of priva te facts because his condit

ion and tr eatment had no bea

ring on h is duties to

either h is child or e x-wife. Cordts furt

her cont ends that the circ uit court' s dismissal

was in er ror bec ause defendants' disclosure was in violation of the Confidentiality Act. In support of the judgme nt below, defendants repeat their contention that their disclosure was not tortious on the grounds that Cordt s's ex-wife did, in fact, ha ve a "na tural and proper

interest " in the information becau se Cordts's condition could potentially aff ect his ability to support his child. Defendants fur ther

co nt en d t ha t C or dt s n ev er ac tu al ly a ll eg ed a c la im ba se d o n t he Co nf id en ti al it y Ac t. Fi na ll y, defendants alternatively

contend that the Confidentiality Act ha s abrogated the common law action for public disclosure of private facts, at least with re gard to the subjects covered by the Act, and , theref

ore, Cor dts's fa ilure to pl ead the Act has le ft him with n o cause o f action

at all. II. AN ALYS IS As noted, counts I

I and IV o f Cordts' s complain t were di smissed pu

rsuant to defenda nts' section 2-619 motion. "A section 2-619 motion to dismiss *** admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matters *** which appear on the face of the complaint or a re established by e

xternal submissions which act to defeat the plaintiff's claim, thus enabling the court to dismiss theNo. 1-06-1158

9

complaint after consid ering issues o f law or easil y proved issues of fact ." Lipinski v. Martin J. Kelly Oldsmobile, I nc. , 325 Ill. App. 3d 1139, 1144, 759 N.E.2d 66, 69 (2001). "When a court rules on a section 2-619 motion to dismess, it 'must interpret all pleadings a nd supporti ng documents in the light most favorab le to the no nmoving part y.' " Van Meter v. Darien Park District , 207 Ill . 2d 35 9, 367 -68, 7 99 N.E .2d 27 3, 278 (2003 ), quo ting In re Chi cago Flood Litigation , 176 Ill. 2d 179, 189, 680 N.E.2d 265 (1997). We review sec tion 2-619 dismissals de novo

. Van Meter , 207 Ill. 2d at 368, 799 N.E.2d at 278. We first a ddress th e circu

it court' s section

2-619 dism

issal of Cordts's c ommon law c laim for public disclosure of private facts. Both parties a gree that to state a common law claim for invasion of privacy thr

ough public disclosure of private facts, a plaintiff must plead tha t:"(1) publicity was give

n to the disclosure of private facts; (2) the facts we re private, and not public, facts; and (3 ) the matter m ade public was such as to be highly offensive to a r easonable pers on." Miller v. Motorola Inc. , 202 I ll. Ap p. 3d 9 76, 97 8, 560

N.E. 2d 900 , 902 ( 1990) , citi ng W. Keeton, Prosser & Keeton on Torts §117, at 856-57 (5th ed. 1984) ; see also Johnson v. K Mart Corp. , 311 I ll. App. 3d

573, 579, 7 23 N.E.2d

1192, 1197(2000); Doe , 302 Ill. App. 3d at 841, 707 N.E.2 d at 221 (a

dding a fourth e lement tha

t "the ma tter publi shed was

not of leg

itimate public concern"). Genera lly, to satisfy

the publicity element of the tort, a plaintiff must show that the information was disclosed to the public at large; however , the publicity requireme nt may be satisfied where a disclosure is made to a small number of pe ople who have a "special relationship" with the plaintiff. See Miller , 202 I ll. App. 3d at 980, 56 0 N.E.2d a

t 903 ("c ourtsNo. 1-06-1158

10

have realized that in circumstances where a special relationship exists between the plaintiff and 'the public' to whom the information has been disclosed, the disclosure may be just as deva stating to the person even

though the disclos

ure was made to a

limited num

ber of pe ople") ; Beaumont v. Brown , 401 Mich. 80, 104-05, 257 N.W.2d 522, 531 (1977) ("Communication of embarrassing facts about an individual to a public not concerned with that individual and with whom the individua l is not concerned

obviously

is not a ' serious in

terfer ence'with plain

tiff's r ight to privacy , althoug h it might b e 'unne cessar

y' or 'unr easonab le.' An

invasion o f a plain

tiff's r ight to privacy is importa

nt if it expos es priva

te facts to a public

whose knowledge

of those f

acts wou ld be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public fig ure, or a particu lar public such as f ellow emp loy ees, clu

b member s, churc

h member s, family, or neig

hbors, if the person were not a public figure "), overruled on other grounds by Bradley v. Saranac Community Schools Boa rd of Education , 455 Mich. 285, 565 N.W.2d 650 (1997). Since, as noted, a section 2-619 motion to dismiss "admits the legal sufficiency of the complaint and raises def

ects, defenses or other affirm ative matt ers" ( Lipinski , 325 Ill. App. 3d at 1144, 759 N .E.2d at 6 9), defe ndants, in bringin g their section 2 -619 motion, have ta citly conced ed that Cor

dts had a " special

relation ship" wit

h his ex-wif

e that wou

ld satisfy the public ity element of the tort despite the fact that the disclosure was not made to the g eneral public. Howeve r, defe ndants contend by

way of affir mative de fense that the disc losure wa s, nevertheless, excusable because Kathleen ha d a "natural and proper interest" in the information. Specific ally , defend

ants cont end that K

athleen had a rig ht to know the informa

tion beca useNo. 1-06-1158

11

Cordts was responsible for helping support their child pursuant to the couple' s marital settlement agree ment and h

is mental c ondition c ould poten tially hinder hi s ability

to meet his

obligat ions, financially and othe

rwise. Under prevailing law, the "spec ial relationship" exception to the requirement that the disclosure be made to the general public will not apply where the person in the "special relationship" with the plaintiff has a "natural and prope r interest" in the information disclosed. See Midwest Glass Co. v. Stanford Development Co. , 34 Ill. App. 3d 130, 135, 339 N.E.2d 274, 278 (1975) ; Doe , 302 I ll. App. 3d at 843, 70 7 N.E.2d a

t 222; Roehrborn v. Lambert , 277 I ll. App. 3d 181,185, 660 N.E.2d 180, 185 (1995). We note, however, that although a pe rson in a "special relationship" with a plaintiff is more likely than others to have a "natural and prope r interest" in the plaintiff's private information by virtue of that "special relationship," the existen ce of a "special rel ationshi p" does not ne cessarily create a "natural and proper in terest." See Midwest Glass Co. , 34 Ill. App. 3d at 135, 339 N.E.2d at 278 (1975) ; Doe , 302, Ill. App. 3d at 843, 70 7 N.E.2d a

t 222. What c onstitutes

a "natu ral and proper in

terest" is discusse d in Midwest Glass Co. and Doe . In Midwest Glass Co. , one of the first Illinois cases to discuss the "special relationship" exception and the "natur al and proper" limitation to that exception, a condominium developer failed to pay a glass company

for the installation of mirrors in several condominiums. Midwest Glass Co. , 34 I ll. App. 3d at 135, 33 9 N.E.2d a

t 278. The

glass company then sent letter

s to purchasers and prospective purchaser s of condominiums informing them that payment for the mirrors was overdue and that a mechanic' s lien would be filed. Midwest Glass Co. , 34 Ill. App. 3d at 132, 339 N.E.2d at 276. The appellate court found that theNo. 1-06-1158

12

glass company's disclosure of the developer' s debt was not tortious, noting that the letters were not intended "to vilify nor to subject [the deve loper] to continuous harassments," but were a reasonable way for the glas s company to "pursue i ts debtor an d persuade payment." Midwest Glass Co. , 34 Ill. App. 3d at 135, 339 N.E.2d at 278. The court fur ther noted that the disclosure was not made to "the genera l public but only to a limited number of persons who had a natural and proper in terest in t he ability and reput ation of [ the develop er] to pay its debt s." Midwest Glass Co. , 34 Ill. App. 3d at 134-35, 339 N.E.2d at 278. Similarly , in Doe , the appellate court held that a bank's disclosure of the plaintiff's c redit card debt to his spouse was not tortious because she had a "natur al and pr oper inte rest" in the infor mation ina smuch as she could potentially be liable for those de bts and because plaintiff's debts decre ased the value of her interest in the marital property

. Doe , 302 Ill. App. 3d at 843 , 707 N.E. 2d at 222; s ee also Roehrborn , 277 Ill. App. 3d at 185, 660 N.E.2d at 185 (police chief 's disclosure to an administrator at a police training institute that a probationary police officer had failed poly graph and psychological tests was not tortious because the institute had a "legitimate" and "natural and proper interest in knowing the performanc e of potential applicants *** on the psy chological and poly graph tests") ; Stern v. Great Western Bank , 959 F. Supp. 478, 483 (N.D. Ill. 1997) (plaintiff's ex-wife's attorney had a natural and proper interest in plaintiff' s financial records as disclosed by his mortga

ge lender because plaintiff ha d put his financial records at issue by asserting that he was unable to contribute to his son's educ ation in a state court action brought by his ex-wife). Thus, as can be ascertained from the f oregoing cases, a r

ecipient of private informationNo. 1-06-1158

13

may have a

"natural and proper interest" in infor mation that relates to potential future harm or liability to that person. For instance , the court in Doe found that the plaintiff's wife had a legitimate concern in knowing of the plaintiff' s debts because they could " potentially adverse ly [aff ect] her fu

ture fina ncia l sec urity ," a nd be caus e "sh

e [wa s] potentially liable" for them. (Emphasis added.) Doe , 302 I ll. App. 3d at 843, 70 7 N.E.2d a

t 222. Simila

rly , the cour

t in Midwest Glass Co. found tha t condomin

ium owners and pote

ntial purc hasers o f condomi

niums had a legitimate interest in the fact that the develope r had not paid for mirrors in the condominiums because the glass company could file a mechanic's lien, although it had not y et filed any lien and was not certain to do so. Midwest Glass Co. , 34 Ill. App. 3d at 135, 339 N.E.2d at 278. Accordingly , we would have to agree with def endants that an ex-wife would have a natu ral a nd pr oper inter est in lear ning abou t any debi litat ing c ondit

ion suffer ed by her exhusband that could impact his ability to maintain support of the their childre n. In this case, no one disputes that Cordts was liable to provide support to his daughter and that if he cea sed to be able to su pport her , that obligation wou ld fall sol ely

to Kathle en, the c

hild's mo ther. While

it would be o f intere st to have a more de

tailed de scription

of Cordts' s mental c ondition to fully ascertain the potentiality

of harm to Kathleen, as the recipient of the private information regarding Cordts's menta

l condition, the record that Cordts has supplied us shows only that he

was rec eiving t

reatmen t for depression a

nd that he sought sh

ort-ter m disability

benefit s. Cordts, by his claim, tacitly

concedes that his mental condition was such that a disability claim was appropriate. Therefore, in the abse nce of any

other information tending to minimize the potentialNo. 1-06-1158

14

effect of his condition, we conclude that the fac t that Cordts sought disability benefits was sufficie nt to indica

te that his condition

could hav e potenti ally

impacted his ability

to support

his daughter and, thereby

, could have harmed his ex-wife, Kathleen. Consequently , we cannot disagree with the circuit court' s determination that the common law action should be dismissed pursuant to section 2-619. Cordts, however, would contend that even if his common law claim fails by reason of the "natural and proper interest" e xception, his action is maintainable under the Confidentiality Act. The Confidentiality Act provides that " any rec ord kept by a ther apist or by an ag ency in the

co ur se of pr ov id in g m en ta l h ea lt h * ** se rv ic e t o a re ci pi en t" an d " an y co mm un ic at io n m ad e b y a recipie nt or othe r person to a ther apist or to or in the presenc e of othe r person s during

or in connection with providing mental health *** services to a rec ipient," including "information which indicates that a person is a recipient" of me ntal health services, "shall be confidential and shall not be disclosed except as provided in this Act." 740 IL CS 110/2, 3(a) (West 2004). Section 15 states: "Any pe rson aggrieved by

a violation of this Act may sue for damages, an inju nctio n, or o ther ap propr iate r elief." 740 ILCS 110/ 15 (W est 20 04). T he Con fiden tial ity Act's specific ally

enumera ted excep tions for w

here dis closure s can be made witho ut the men

tal healt h

care rec ipien t's con sent i nclud e, by way of ex ample , dis closu res for purpo ses of review ing a therapist's or agency

's licensure (740 I

LCS 110/7(a) (West 2004)), interag ency disclosure s (740 IL CS 110/7.1 (West 2004)), disclosures to a therapist's supervisors or peers for re view (740 IL CS 110/9 (West 2004)), disclosure with regard to sexually violent persons (740 IL CS 110/9.3 (West 2004 )), and d

isclosure s in civil, c

riminal, a nd other proceed

ings (74 0 ILCS 110/10 (We stNo. 1-06-1158

15

2004)). Our supreme court has emphasized that these few exceptions to the Confidentiality Act are strictly limited and ar e not to be expanded. See, e.g ., Norskog v. Pfiel , 197 Ill. 2d 60, 71-72, 755 N.E.2d 1, 9 (2001) ("[i]n each instance where disclosure is a llowed under the Act, the legislature has been care ful to restrict disclosure to that which is necessary to accomplish a particu lar purp ose. Exce

ptions to the

Act are narrowly c

rafted . [Citation.] Wh en viewe d as a whole, the Act constitutes a 'strong statement' by the Gene

ral Assembly about the importanc e of keeping mental health records conf idential. [Citation.] *** Consequently, any one seeking the nonconsensual release of mental health information fa ces a formidable challenge a nd must show that discl osure is a

uthorized by t he Act" ); Reda v. Advocate Health Care , 199 Ill. 2d 47, 60, 765 N.E.2d 1002, 1010 (2002) ("I n each case where disclosure is a llowed under the Act, the legislature has been care ful to restrict disclosure to that which is necessary to accomplish a particular purpose. Exceptions to the Act are narrowly crafted"); accord Mandziar a v. Canul li , 299 I ll. App. 3d

593, 599, 7 01 N.E.2d

127, 132- 33 (1998)("The Act is 'c areful ly d rawn to maintain the confidentiality of menta l health records except in the specific circumstances specifically e

numerated.' [Citation.] *** If we were to hold Canulli did not violate the Act merely bec ause he did not look at Mandziara's records, we w ould be rewriting the statute, effectively

eroding unmistakable legislative intent under the we ight of judicial fiat"). The fact that a person has a "natural and prope r interest" in another person's mental he alth records is not included in the Confidentiality Act' s enumerated exceptions. Therefore, we f ind that the "natural and prop er inter

est" de fense to

the common law tort

of public disclosur e of priv ate facts is not a defense to a claim based on the Confidentiality Act.No. 1-06-1158

16

Defendants, however, contend that Cordts never a ttempted to state a claim for violation of the Con fidentia

lity Act in cou

nts II and I V of his complaint. T

hus, acc ording t

o defend ants, Cordts has

waived h is right t o invoke the Confide

ntiality Act on ap

peal. I n that re gard, we note that defendants do not purport to contest the substantive applicability of the Confidentiality Act to the instant facts, but merely c ontend that no such cause of action was invoked. We disagr ee with defendants and find that Cordts did, in fact, plead enough to state a cause of action for violation of the Confidentiality Act. Althoug h Cordts' s complain

t does not r

ecite sp ecific p

rovisions of the Con fidentia

lity Act, it does states that defendants "additionally owed a duty of c are to the plaintiff under the [Confid entialit y Act]." Illinois Supreme Court Rul e 133(a) states: " If a

breach of statutory

duty is alleged [in a pleading], the statute shall be cited in connection with the alleg ation." 134 Ill. 2d R. 133(a) . "The f

act that t he statute need not b e quoted, only cited, imp lies that i

ts purpose

is to give no tice to the

court an d the oppo sing par

ties that t he plead er is bas ing his c ase, at l east in part, on a particular statute." 3 R. Michael, I llinois Practice §24.9, at 393 (1989); see also 735 IL CS 2-612 (b) (West 2004) ("No pleading is bad in substance which c ontains such information

as reas onably

informs the opposite

party of the na ture of the claim or

defense which he or she is called upon to meet"). I

n this case, Cordts specifically named and cited the Confidentiality Act and, as noted, sta

ted that d efenda nts owed h

im a duty under the Act. I n each c ount, Cord

ts also sets forth allegations of fact that, on their fac e, would suffice to state a cause of action under the Act's provisions. See 740 ILCS 110/2, 3, 5, 15 (West 2004). Moreover, defendants were on notice and the court was aware that Cordts had invoked the Confidentiality Act. As noted,No. 1-06-1158

17

defenda nts addre ssed the f

act in a f ootnote of

their re ply to Cordts' s respons e to their motion to dismiss and

the cour t acknowledged

the arg ument in the

"fact ual back ground " sectio

n of its memorandum opinion and order. Accordingly , defendants' contention that Cordts did not attempt to state a cause of action based on the Confidentiality Act is unavailing. We are c ognizant , howeve r, that Cor

dts's complaint is f

ormally defect ive insof ar as it intermingles the statutory Confidentiality Act claim with the common law invasion of priva cy claim. In that reg ard, section 2-613(a) of the Code of Civil Procedure states: " Parties may plead as many ca

uses of action, counterclaims, defenses, and matters in re ply as they

may have, a

nd each shall be separately designated and numbered ." (Emphasis added.) 735 ILCS 5/2-613(a) (West 2004 ). Moreover, we recog nize that Cordts has c ontinued t o intermin

gle the two claim s on appeal. However, despite these formal de fects, neither defendants nor the circuit cour t ever challenged the sufficiency of Cordts's allegations under the Confidentiality Act and, therefore, the claim is not now dismissible on that basis. See 735 ILCS 5/2-612(a) , (c) (West 2004) ("I f any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleading s do not sufficiently define the issues the court may orde r other pleadings." "All defects in pleadings, either in form or substance, not objected to in the trial court are waived"); 735 I

LCS 2-615 (West 2004) ("All objections to pleadings sha ll be raised by motion. The motion shall point out specifically the defec ts complained of, and shall ask for appropriate relief, such as *** that a pleading be made more definite and certain in a spec ified *** manner"). In that rega

rd, we also note that had defendants properly challenged the sufficiency ofNo. 1-06-1158

1 In a footnote to their a ppellate brief de fendant s contend that any attempt by

Cordts to amend his

complain t to add a Confidentia

lity Act clai m should be

barred because the appli cable statute of limitations has run. This contention is without merit since we have determined that the original complaint, although formally defective, sufficiently

invoked the Confidentiality Act through citation a nd throug h the plea ding of f acts tha t fall unde

r the Act's purview. More over, in any event, a n amendme

nt to Cordts 's Confi dentialit y A ct claim would not be time barr ed beca use it would relate back to the original, timely filed complaint. See McCorry v. Goone ratne , 332 I ll. App. 3d 935, 946, 775 N.E.2d 591, 601 (2002). 18 Cordts's claim under the Confidentiality Act through a section 2-615 motion, Cordts would have been en titled to a n opportun

ity t o amend hi s complain

t. 1 See Richard v. Illinois Bell Telephone Co. , 66 Ill. App. 3 d 825, 842, 3 83 N.E .2d 12 42, 12 56 (19 78), q uoti ng Dinn Oil Co. v. Hanover Insurance Co. , 87 Ill. App. 2d 206, 211-12 (1967) (" ' a cause of action should not be dismissed on the pleadings unless it appears that no set of facts ca n be proved which will entitle the pleader to relief, and then only

if it is apparent that even after amendment, if leave to amend is sought, no cause of action c an be sta

ted" (e mphasis omi

tted)); Lee

v. Chicago Transit

Authority

, 152 Ill. 2d 432, 467, 6 05 N.E.2d

493, 508 ( 1992) (" In I

llinois, co urts are encoura ged to f reely and liber ally allow the amendment of pleadings"). The same is not true of a section 2-619 motion, where the defenda nt admits th e lega

l suffici ency

of the complaint ( Lipinski , 325 Ill. App. 3d at 1144, 759 N.E.2d at 69), and where once the def endant satisfies the initial burden of going forwa rd based on affirmative matter, the burden then shifts to the plaintiff. See Nichol v. Stass , 192 Ill. 2d 233, 247, 735 N.E.2d 582, 591 (2000). Therefore, we find that the c ircuit court erred in dismissingNo. 1-06-1158

19

Cordts' s Confiden

tiality Act clai m pursuan

t to defe ndants'section 2 -619 motion to dismiss. Finally, bec ause we have found that Cordts did, in fact, attempt to state a claim based on the Confidentiality Act, and bec ause that claim's sufficiency was not challenged by

way of a section 2-615 motion, we need not address whether the Confidentiality Act has preempted the common law action of invasion of privacy through public disclosure of private facts in the context of mental he alth infor

mation. Ac cordingly, for all the foregoing re asons, we affirm i n part, reverse in part, and remand for proceedings consistent with this opinion. Affirmed in part and reversed in part; ca use remanded. FITZG ERALD-SMI TH, P.J., and O'MALL EY, J., concur.