Better Gov't Ass'n v. City Colleges of Chi.

1

2024 IL App (1st) 221414

BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellee, v. CITY COLLEGES OF CHICAGO, Defendant-Appellant.

No. 1-22-1414

Court of Appeals of Illinois, First District, Fourth Division

September 19, 2024

Appeal from the Circuit Court of Cook County. No. 18 CH 09964 Honorable Eve M. Reilly, Judge Presiding.

Attorneys for Appellant: LaKeisha C. Marsh, Joel D Bertocchi, and Jamel A.R. Greer, of Akerman LLP, of Chicago for appellant.

Attorneys for Appellee: Matthew Topic, Josh Loevy, Merrick Wayne, and Shelley Geiszler, of Loevy & Loevy, of Chicago, for appellee.

JUSTICE LYLE delivered the judgment of the court, with opinion. Justices Mitchell and Mikva concurred in the judgment and opinion.

OPINION

LYLE JUSTICE

¶ 1 Plaintiff Better Government Association (BGA) submitted a request pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.6 (West 2018)) to defendant City Colleges of Chicago (City Colleges) for, inter alia, education records related to City Colleges' graduation rate. City Colleges refused to turn over the records, asserting that the records sought were exempted from disclosure under section 7(1)(a) of FOIA (id. § 7(1)(a)) and pursuant to the Family Educational Rights and Privacy Act of 1974 (FERPA) (20 U.S.C. § 1232g (2012)). The circuit court disagreed and granted summary judgment in favor of BGA, finding that the records were not exempt from FOIA because FERPA did not "specifically prohibit" the release of such records, instead only conditioning the receipt of federal funding on compliance with the statute.

¶ 2 On appeal, City Colleges contends that FERPA operates as a prohibition on the disclosure of the student education records sought by BGA to which the exemption in section 7(1)(a) of FOIA applies. City Colleges maintains that the circuit court's "hyper-literal" reading of FOIA would create an absurd result that would force City Colleges to violate FERPA and therefore risk losing its federal funding, which is essential to the operation of its colleges. City Colleges maintains that to the extent we find any conflict between FOIA and FERPA, the mandates of FOIA must yield to the federal statute. For the reasons that follow, we reverse the judgment of the circuit court and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 This case concerns the interaction of two statutes. The first is Illinois's FOIA statute, which establishes that "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying." 5 ILCS 140/1.2 (West 2018). Section 7 of FOIA provides exemptions to that presumption, such as when information is "specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." Id. § 7(1)(a).

¶ 5 The second statute involved in this case is FERPA (20 U.S.C. § 1232g), which sets forth the conditions for the availability of federal funds to educational agencies or institutions. As relevant here, section (b)(1) of FERPA provides that

"[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization ***." Id. § 1232g(b)(1).

¶ 6 On July 9, 2018, BGA submitted a four-part FOIA request to City Colleges, seeking various records, statistics, documents, and data regarding City Colleges' graduation rate in 2018. City Colleges, as a public body, is subject to the disclosure requirements of FOIA. 5 ILCS 140/2(a) (West 2018); City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 33. Only part two of BGA's FOIA request is at issue in this appeal. That request sought: "Data regarding completed course work and curriculum for each of the graduates in the cohort counted toward the 2018 graduation rate. This request includes, but is not necessarily limited to, each course completed, the date of completion, credit hours earned, grade and degree." City Colleges initially sought extensions to respond to the request, but thereafter failed to respond, prompting BGA to file this suit.

¶ 7 BGA filed its complaint on August 6, 2018, to "overturn" City College's refusal to produce data about its graduation rate, pursuant to FOIA. In its complaint, BGA alleged that City Colleges willfully violated FOIA by refusing to produce the requested records. BGA sought an order declaring that City Colleges violated FOIA and requiring it to produce the requested records.

¶ 8 City Colleges filed an answer and affirmative defenses to BGA's complaint, contending that it had redacted and withheld certain information from the requested records pursuant to section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2018)) because the information was exempt from disclosure by federal or state law.

¶ 9 At BGA's request, City Colleges produced an index detailing each redacted or withheld record. City Colleges maintained that the records were redacted pursuant to FERPA and section 7(1)(a) of FOIA. City Colleges asserted that the redacted information included personally identifiable information, which could not be released without written consent from the students or their parents or guardians. City Colleges contended that even if it attempted to remove the identities of the students within the requested information, the records would still contain "indirect identifiers" that could be utilized to ascertain the identity of students in violation of FERPA.

¶ 10 BGA filed an amended complaint alleging that City Colleges "improperly" redacted and withheld the requested records and then filed a motion for partial summary judgment. In its motion, BGA sought the release of records that it claimed would allow it to assess the accuracy of City Colleges' published graduation rate data. BGA maintained that, under FOIA, City Colleges has the burden to prove that the withheld information was exempted by statute. BGA asserted that City Colleges failed to meet this burden because it cited generally to the FERPA statute as a whole and made only conclusory arguments that the data could be used to somehow indirectly identify students.

¶ 11 BGA further contended that City Colleges failed to establish that FERPA "specifically prohibits" the release of the requested information, as required by section 7(1)(a) of FOIA. BGA acknowledged that no Illinois courts have addressed this issue but asserted that courts in other jurisdictions have found that FERPA merely conditions the receipt of federal funds on compliance with the statute but does not specifically prohibit the release of any information.

¶ 12 In response, City Colleges contended that it sufficiently complied with BGA's FOIA request while maintaining compliance with FERPA by protecting student data. City Colleges challenged BGA's assertion that FERPA did not prohibit the release of students' education records, asserting that the plain language of the statute operates as a prohibition by tying compliance to federal funding. City Colleges pointed out that the United States District Court for the Northern District of Illinois addressed this very issue in Marcial v. Rush University Medical Center, No. 16-cv-6109, 2018 WL 4144634 (N.D. Ill. Aug. 30, 2018) and found that FERPA prohibits educational institutions from releasing identification information in a student's record without their consent.

¶ 13 City Colleges maintained that BGA's narrow reading of section 7(1)(a) of FOIA that a statute must specifically prohibit the release of information was rejected by the United States Court of Appeals for the Seventh Circuit in Chicago Tribune Co. v. Board of Trustees of the University of Illinois, 680 F.3d 1001 (7th Cir. 2012). City Colleges contended that, under this precedent and the plain language of FERPA, it could release the information BGA sought pursuant to the FOIA request only if it obtained written consent from the parents or guardians (or the students themselves if they were over the age of 18) of its 8000-student graduating class. City Colleges asserted that such a procedure was not practical, and it was therefore forced to either comply with the FOIA request and risk losing its federal funding pursuant to FERPA or to redact or withhold the exempted records.

¶ 14 In reply, BGA asserted that City Colleges was improperly interpreting FERPA in order to withhold public records. BGA contended that FERPA does not specifically prohibit disclosure and that City Colleges failed to adequately support its contention that the "de-identified" records would still contain" 'indirect identifiers.'" BGA cited to other courts' interpretations of FERPA that it was a funding statute that does not prohibit the release of education records. See Bauer v. Kincaid, 759 F.Supp. 575, 589 (W.D. Mo. 1991); WFTV, Inc. v. School Board of Seminole, 874 So.2d 48, 57 (Fla. Dist. Ct. App. 2004). BGA maintained that it was not seeking "personally identifiable information," as that phrase was used in FERPA, but only sought "de-identified" data. BGA contended that the authority cited by City Colleges was inapplicable because in those cases, the party seeking the data sought personally identifiable information. BGA asserted that City Colleges could withhold the information if it could demonstrate by affidavit that a student could still be identified even if the personally identifiable information was redacted. BGA pointed out that City Colleges failed to submit an affidavit to that effect and therefore failed to meet its...