                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




    State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881




Appellate Court            THE STATE JOURNAL-REGISTER and BRUCE RUSHTON,
Caption                    Plaintiffs-Appellants, v. THE UNIVERSITY OF ILLINOIS
                           SPRINGFIELD; and HARRY BERMAN, in His Official Capacity as
                           Interim Chancellor of the University of Illinois Springfield, Defendants-
                           Appellees.



District & No.             Fourth District
                           Docket No. 4-12-0881


Filed                      August 8, 2013


Held                       In a newspaper’s action under the Freedom of Information Act seeking
(Note: This syllabus       the disclosure of documents related to the resignation of three coaches at
constitutes no part of     defendant state university, the trial court erred in denying plaintiffs’
the opinion of the court   request for an e-mail string containing a student complaint, once redacted,
but has been prepared      an internal communications concerning a personnel matter, once
by the Reporter of         redacted, and the coaches’ witness statements, once redacted; however,
Decisions for the          the balance of the trial court’s order, including the finding that the name
convenience of the         of the student who was the victim of the conduct of one of the coaches
reader.)
                           was exempt from disclosure, was affirmed.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 11-MR-131; the
Review                     Hon. Eric S. Pistorius, Judge, presiding.



Judgment                   Affirmed in part and reversed in part.
Counsel on                 Donald M. Craven (argued) and Esther J. Seitz, both of Donald M.
Appeal                     Craven, P.C., of Springfield, for appellants.

                           J. William Roberts and Charles R. Schmadeke (argued), both of Hinshaw
                           & Culbertson, LLP, of Springfield, for appellees.


Panel                      JUSTICE HOLDER WHITE delivered the judgment of the court, with
                           opinion.
                           Justices Pope and Harris concurred in the judgment and opinion.




                                            OPINION

¶1          In March 2011, plaintiffs Bruce Rushton, a reporter, and the State Journal-Register, a
        newspaper (collectively, the Journal), filed a complaint in the Sangamon County circuit court
        against defendants, the University of Illinois-Springfield and its interim chancellor, Harry
        Berman (collectively, UIS), seeking enforcement of two Freedom of Information Act (FOIA)
        (5 ILCS 140/3 (West 2010)) requests for documents pertaining to the resignation of three
        UIS coaches. UIS produced some of the requested documents, but it denied the rest as
        exemptions under section 7 of FOIA. The parties filed cross-motions for summary judgment.
        The trial court granted UIS’s motion for summary judgment in part, ordering UIS to produce
        some, but not all, of the requested documents.
¶2          The Journal appeals, asserting the trial court erred in finding a majority of UIS
        documents exempt under FOIA. Specifically, the Journal argues UIS failed to prove
        disclosure was exempt as (1) part of the predecisional and deliberative process (5 ILCS
        140/7(1)(f) (West 2010)), (2) an unwarranted invasion of privacy (5 ILCS 140/7(1)(c) (West
        2010)), and (3) prohibited by federal law (5 ILCS 140/7(1)(a) (West 2010)), namely, by the
        Family Educational Rights and Privacy Act (Educational Privacy Act) (20 U.S.C. § 1232g
        (2006)). We affirm in part and reverse in part.

¶3                                        I. BACKGROUND
¶4         In January 2010, the Journal filed the following FOIA request with UIS:
           “[a]ll records, documents, and correspondence, written and electronic, including but not
           limited to emails, letters, notes and reports concerning the conduct of Joe Fisher and Roy
           Gilmore during a trip to Florida in March, 2009 with the women’s softball team.
           Furthermore, I request all records, documents, and correspondence, written and
           electronic, including but not limited to emails, letters, notes and reports concerning
           communications deemed inappropriate between any student(s) and Jay Davis.”

                                                 -2-
¶5         In January 2011, the Journal filed a second FOIA request for “the names of individuals
       and/or entities that have received $200,000 in [UIS] funds since September 1, 2009.”
¶6         Before disclosing any documents, UIS sought advice from the Attorney General’s Public
       Access Counsel (Access Counsel). UIS received preapproval to assert the deliberative
       process exemption for a series of e-mails and the witness statements and later received
       preapproval to deny disclosure under the Educational Privacy Act. However, the Access
       Counsel did not preauthorize UIS to assert the personal privacy exemption, explaining UIS
       had not met its burden of proof regarding that exemption. The Journal sought further review
       from the Access Counsel, after which UIS disclosed several documents, including (1) a
       release and settlement agreement for one student (name redacted) reflecting a settlement of
       $200,000 due to a UIS coach’s misconduct during a 2009 softball team trip, (2) a ledger
       reflecting payment of exactly $200,000 to a female and her attorney (both names redacted),
       and (3) an entirely redacted letter sent March 23, 2009, to Chancellor Richard Ringeisen and
       campus legal counsel Mark Henss entitled “Sexual Assault and Battery by UIS Softball
       Coach.” UIS later provided a copy of the letter with fewer redactions, showing the letter was
       sent by the victim’s attorney, who expressed concern UIS might try to “sweep this matter
       under the rug” and accused Roy Gilmore of assaulting members of the women’s softball
       team in what he described as “not isolated abberant behavior.”
¶7         During this time period, the Journal published numerous articles regarding the alleged
       misconduct of the UIS coaches, containing information such as (1) a UIS student entered into
       a $200,000 settlement agreement with UIS following allegations of sexual impropriety by
       a softball coach in 2009; (2) the student’s attorney informed UIS of the softball coach’s
       assault on the student; (3) the allegations prompted the resignations of two softball coaches,
       Roy Gilmore and Joe Fisher, at the request of UIS; (4) Roy Gilmore admitted he exercised
       “poor judgment” and made a “poor decision”; and (5) golf coach Jay Davis resigned for
       unknown reasons.
¶8         In March 2011, the Journal filed a complaint in the Sangamon County circuit court,
       seeking (1) disclosure of the documents requested pursuant to FOIA, (2) attorney fees, (3)
       court costs, and (4) civil penalties authorized by FOIA. UIS maintained the documents were
       exempt from disclosure under section 7 of FOIA.
¶9         In May 2011, the Journal filed a motion to compel UIS to provide the requested
       documents for an in camera review. The trial court imposed additional requirements that UIS
       provide an index of the documents with detailed descriptions and claimed exemptions for
       each document. The court then ordered the parties to file briefs regarding the application of
       any exemptions.
¶ 10       UIS’s index, sorted by bates-stamped numbers (with preceding zeroes omitted), detailed
       the documents and their claimed exemptions as follows:
               (1) Bates Nos. 1-6: e-mail string with staff opinions and communications regarding
           “the incident”; exempt as predecisional materials.
               (2) Bates Nos. 7-19: UIS personnel documents describing employees’ status,
           compensation, and accrued vacation and sick leave; exempt as unwarranted invasion of
           personal privacy.

                                                -3-
                (3) Bates Nos. 20-23: e-mail string with staff opinions and communications regarding
           “the incident”; exempt as predecisional materials.
                (4) Bates Nos. 24-26: typed staff notes describing interviews with coaches regarding
           “the incident”; exempt as predecisional material, unwarranted invasion of personal
           privacy, and violation of the Educational Privacy Act.
                (5) Bates Nos. 27-34: typed staff notes describing interviews with students; exempt
           as predecisional material, unwarranted invasion of personal privacy, and violation of the
           Educational Privacy Act.
                (6) Bates Nos. 35-37: handwritten staff notes describing interviews with student’s
           parent exempt as predecisional material, unwarranted invasion of personal privacy, and
           violation of the Educational Privacy Act.
                (7) Bates No. 40: e-mail string reflecting communications between student and
           coach; exempt as predecisional material, unwarranted invasion of personal privacy, and
           violation of the Educational Privacy Act.
                (8) Bates Nos. 41-50: handwritten notes describing UIS administrators’ meeting
           regarding “the incident”; exempt as predecisional material, unwarranted invasion of
           personal privacy, and violation of the Educational Privacy Act.
                (9) Bates Nos. 51-52: e-mail string of correspondence between a student and UIS
           administrator; exempt as unwarranted invasion of personal privacy and violation of the
           Educational Privacy Act.
                (10) Bates Nos. 53-54: correspondence from student’s parent to UIS president
           regarding the incident; exempt as unwarranted invasion of personal privacy and violation
           of the Educational Privacy Act.
                (11) Bates No. 55: e-mail regarding internal communication with respect to a
           “personnel matter”; exempt as predecisional material, unwarranted invasion of personal
           privacy, violation of the Educational Privacy Act.
                (12) Bates Nos. 56-57: correspondence between student’s attorney and UIS
           (previously disclosed in part with redactions); exempt as predecisional material,
           unwarranted invasion of personal privacy, and violation of the Educational Privacy Act.
                (13) Bates Nos. 58-59: release and settlement agreement (previously disclosed in its
           entirety except for victim’s name), exempt as an unwarranted invasion of personal
           privacy and violation of the Educational Privacy Act.
                (14) Bates Nos. 60-66: UIS communications regarding UIS’s response to “the
           incident,” exempt as an unwarranted invasion of personal privacy and violation of the
           Educational Privacy Act.
                (15) Bates No. 67: ledger sheet reflecting $200,000 payment (previously disclosed
           in its entirety except for victim’s name), exempt as an unwarranted invasion of personal
           privacy and violation of the Educational Privacy Act.
¶ 11       In July 2011, UIS and the Journal filed cross-motions for summary judgment pursuant
       to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). UIS
       attached an affidavit to its motion from the victim’s attorney, which will be discussed in its

                                                -4-
       entirety later in this opinion, asking the court not to subject the victim to any further
       embarrassment, noting the victim’s right to privacy significantly outweighed the public
       prurient interests.
¶ 12        In September 2011, the trial court held a hearing on the cross-motions for summary
       judgment. During the hearing, the court mentioned the numerous articles published by the
       Journal, stating:
            “I don’t know what more you can find that makes things any worse than they are. He
            did–they did a pretty good job beating up these two guys and [UIS]. I’m not sure what
            else out there there [sic] is other than the kind of nasty dirty stuff that allegedly took
            place, and I don’t see a great deal of public interest in that as relates to the personal
            private interest of the girls that were involved.”
       The court also inquired about UIS allowing the coaches to resign rather than initiating
       termination proceedings. UIS responded by explaining the resignation of the coaches allowed
       UIS to quickly resolve the employment status of the coaches without a prolonged termination
       proceeding that could have resulted in the coaches retaining their positions. The court agreed
       UIS acted very quickly in securing the resignations of the coaches.
¶ 13        After hearing arguments, the trial court tabled its ruling in anticipation of the Seventh
       Circuit’s interpretation of the Educational Privacy Act in a pending case. See Chicago
       Tribune Co. v. University of Illinois Board of Trustees, 781 F. Supp. 2d 672, 673 (N.D. Ill.
       2011), vacated sub nom. Chicago Tribune Co. v. Board of Trustees of the University of
       Illinois, 680 F.3d 1001 (7th Cir. 2012). When the Seventh Circuit declined to reach the
       substantive issue regarding the applicability of the Educational Privacy Act, the trial court
       filed its order.
¶ 14        In issuing its order, the trial court found UIS had an obligation to comply with the
       Educational Privacy Act due to its receipt of federal funding, noting, “The court specifically
       finds that the records sought, but not produced, other than those hereinafter referenced, were
       appropriately either redacted or withheld entirely pursuant to [FOIA] and/or [the Educational
       Privacy Act].” The court thereafter ordered the disclosure of several documents: Bates Nos.
       12, 14, 17, 20-21, and 60-66. UIS disclosed those documents as ordered.
¶ 15        This appeal followed.

¶ 16                                       II. ANALYSIS
¶ 17       On appeal, the Journal asserts the trial court erred in finding a majority of UIS documents
       exempt under FOIA. Specifically, the Journal argues UIS failed to prove disclosure was
       exempt as (1) part of the predecisional and deliberative process (5 ILCS 140/7(1)(f) (West
       2010)), (2) an unwarranted invasion of privacy (5 ILCS 140/7(1)(c) (West 2010)), and (3)
       prohibited by federal law (5 ILCS 140/7(1)(a) (West 2010)), namely, by the Educational
       Privacy Act (20 U.S.C. § 1232g (2006)). We address these arguments in turn.

¶ 18                                    A. Standard of Review
¶ 19      In this case, the parties filed cross-motions for summary judgment, conceding that only

                                                -5-
       issues of law remained. Summary judgment is appropriate when “the pleadings, depositions,
       and admissions on file, together with the affidavits, if any, show that there is no genuine
       issue as to any material fact and that the moving party is entitled to a judgment as a matter
       of law.” 735 ILCS 5/2-1005(c) (West 2010). The trial court’s ruling with regard to summary
       judgment is subject to de novo review. Reppert v. Southern Illinois University, 375 Ill. App.
       3d 502, 504, 874 N.E.2d 905, 907 (2007). A reviewing court “may affirm a grant of summary
       judgment on any basis appearing in the record, regardless of whether the trial court relied
       upon that ground.” Perez v. Sunbelt Rentals, Inc., 2012 IL App (2d) 110382, ¶ 7, 968 N.E.2d
       1082.

¶ 20                          B. The Purpose and Operation of FOIA
¶ 21        Before addressing the parties’ arguments, we first outline the purpose of FOIA. It is “the
       public policy of the State of Illinois that all persons are entitled to full and complete
       information regarding the affairs of government and the official acts and policies of those
       who represent them as public officials and public employees.” 5 ILCS 140/1 (West 2010).
       The purpose of FOIA is to “open governmental records to the light of public scrutiny.”
       Reppert, 375 Ill. App. 3d at 505, 874 N.E.2d at 907. In furtherance of this policy, FOIA is
       to be liberally construed while exemptions are to be read narrowly. Southern Illinoisan v.
       Illinois Department of Public Health, 218 Ill. 2d 390, 416, 844 N.E.2d 1, 15 (2006).
       However, FOIA “is not intended to cause an unwarranted invasion of personal privacy.” 5
       ILCS 140/1 (West 2010). When a novel FOIA issue arises regarding the Illinois FOIA
       statute, Illinois courts often look to cases citing the federal FOIA statute (5 U.S.C. § 552
       (2006)) for interpretation, due to the similarity of the statutes. Harwood v. McDonough, 344
       Ill. App. 3d 242, 248, 799 N.E.2d 859, 864 (2003).
¶ 22        Pursuant to FOIA, the public body seeking to deny access to documents has the burden
       of showing, by clear and convincing evidence, the requested documents fall within one of
       the FOIA exemptions. 5 ILCS 140/1.2 (West 2010); see also Harwood, 344 Ill. App. 3d at
       245-46, 799 N.E.2d at 862. Satisfying this burden requires the public body to provide a
       detailed explanation for asserting the exemptions in order for those reasons to be tested in
       an adversarial proceeding. Lieber v. Board of Trustees of Southern Illinois University, 176
       Ill. 2d 401, 408, 680 N.E.2d 374, 377 (1997). The trial court shall conduct an in camera
       inspection of the files to determine whether the public body can sustain its burden of proof.
       5 ILCS 140/11(f) (West 2010). Although the burden is on UIS, we recognize the Journal is
       put at a disadvantage as it argues in favor of disclosure since the Journal is unaware of the
       content of the documents it is requesting.
¶ 23        Having outlined the purpose and procedures of FOIA, we now turn to the documents at
       issue in this case.

¶ 24                     C. Whether the Deliberative Process Exemption
                              Applies to the Journal’s FOIA Request
¶ 25       The Journal argues the trial court erred in finding several requested documents fell under
       the deliberative process exemption of FOIA (5 ILCS 140/7(1)(f) (West 2010)). The relevant

                                                -6-
       portion of that subsection exempts the following documents:
            “Preliminary drafts, notes, recommendations, memoranda and other records in which
            opinions are expressed, or policies or actions are formulated, except that a specific record
            or relevant portion of a record shall not be exempt when the record is publicly cited and
            identified by the head of the public body.” 5 ILCS 140/7(1)(f) (West 2010).
¶ 26        The purpose of exempting predecisional and deliberative material is “to protect the
       communications process and encourage frank and open discussion among agency employees
       before a final decision is made.” Harwood, 344 Ill. App. 3d at 248, 799 N.E.2d at 864.
       Otherwise, those who expect their remarks to be made public “ ‘may well temper candor with
       a concern for appearances and for their own interests to the detriment of the decisionmaking
       process.’ ” Enviro Tech International, Inc. v. United States Environmental Protection
       Agency, 371 F.3d 370, 374 (7th Cir. 2004) (quoting United States v. Nixon, 418 U.S. 683,
       705 (1974)).
¶ 27        Purely factual material must be disclosed once a final decision has been made, unless the
       factual material is inextricably intertwined with predecisional and deliberative discussions.
       Watkins v. McCarthy, 2012 IL App (1st) 100632, ¶ 36, 980 N.E.2d 733 (quoting Enviro Tech
       International, Inc., 371 F.3d at 374-75). Factual information includes that which is collected
       within investigative reports, such as affidavits of witnesses and investigator’s interviews,
       though personal information should be redacted. Poss v. National Labor Relations Board,
       565 F.2d 654, 658 (10th Cir. 1977); see also Watkins, 2012 IL App (1st) 100632, ¶ 38, 980
       N.E.2d 733. Communications after an agency has issued a decision are not exempt from
       disclosure. National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 151-52
       (1975).
¶ 28        In this case, UIS classifies a majority of its documents as being part of the predecisional,
       deliberative process. The “e-mail strings” containing the staff opinions and general
       communications regarding the process of the investigation or the scheduling of meetings
       during the investigative process (Bates Nos. 1-6 and 22-23) are clearly protected within this
       exemption, as the administrators collected information in order to guide them in reaching a
       decision as to whether misconduct occurred and the type of remedy to provide for any proved
       misconduct. The content of the e-mail strings is precisely the type of communication
       Harwood refers to in permitting frank and open discussion with the administration. Nothing
       in those documents contains a factual accounting of events subject to disclosure under FOIA.
       The Journal asserts UIS did not provide adequate details to allow the Journal to test UIS’s
       assertions in an adversarial proceeding, but we find the court exercised the appropriate
       remedy by granting the Journal’s motion for an in camera inspection of the records.
¶ 29        Additionally, the redacted portions of the letter submitted to UIS from the victim’s
       attorney (Bates Nos. 56-57) is exempt from disclosure as a predecisional document. The
       letter does contain a brief synopsis of what the victim contends occurred. However, the
       remaining undisclosed portion outlines the opinion of the victim and her attorney regarding
       how they wish to proceed with resolving the victim’s potential legal claims against UIS. This
       information would have undoubtedly been relied upon by UIS in formulating a plan or policy
       for settling potential litigation with the victim. Moreover, for reasons discussed below with


                                                 -7-
       regard to the witness statements, we find the redacted factual information contained within
       the letter to be of a highly personal nature and, therefore, exempt under section 7(1)(c).
¶ 30        Conversely, the documents containing witness statements (Bates Nos. 24-50) are not
       exempt from disclosure as predecisional and deliberative documents, despite UIS’s reliance
       on the documents prior to making its decision and PAC’s preauthorization for use of the
       exemption. These documents, which contain factual accountings of the events by witnesses,
       are capable of standing alone, with no evidence they are “inextricably intertwined” with the
       predecisional process. See Watkins, 2012 IL App (1st) 100632, ¶ 36, 980 N.E.2d 733.
       However, for reasons discussed below, we conclude these documents are subject to the
       personal privacy exemption. See 5 ILCS 140/7(1)(c) (West 2010).
¶ 31       The “internal communication re: personnel matter” document (Bates No. 55) is also not
       subject to exemption under section 7(1)(f). The communication reflects a final decision, so
       it clearly is not part of the predecisional, deliberative process. As discussed below with
       regard to documents within a personnel file, we additionally find this document is not subject
       to the personal privacy exemption under section 7(1)(c) because this type of communication
       was for the benefit of the administrators and, thus, would not receive the same exemption as
       those documents which are properly contained within a personnel file. Finally, as discussed
       later in this order, we further conclude this document is not exempt from disclosure pursuant
       to the Educational Privacy Act.
¶ 32       After review of the sealed documents, we conclude (1) the e-mails circulated in order to
       schedule and coordinate proceedings (Bates Nos. 1-6, 22-23) and (2) the undisclosed portion
       of the letter from the victim’s attorney (Bates Nos. 56-57) are exempt under FOIA. However,
       the witness statements taken during the investigative process (Bates Nos. 24-50) are not
       subject to exemption under section 7(1)(f), but most portions are subject to the personal
       privacy exemption under section 7(1)(c), as explained below. Additionally, we conclude the
       internal communication regarding a “personnel matter” is not subject to exemption under
       section 7(1)(f), nor, as we discuss later in this opinion, subject to exemptions under section
       7(1)(c) or section 7(1)(a) of FOIA. Accordingly, the “internal communication re: personnel
       matter” must be disclosed by UIS.

¶ 33                       D. Whether the Personal Privacy Exemption
                              Applies to the Journal’s FOIA Request
¶ 34       The Journal next asserts the trial court erred in finding the requested documents subject
       to the personal privacy exemption of FOIA (5 ILCS 140/7(1)(c) (West 2010)). The section
       exempts:
           “Personal information contained within public records, the disclosure of which would
           constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is
           consented to in writing by the individual subjects of the information. ‘Unwarranted
           invasion of personal privacy’ means the disclosure of information that is highly personal
           or objectionable to a reasonable person and in which the subject’s right to privacy
           outweighs any legitimate public interest in obtaining the information. The disclosure of
           information that bears on the public duties of public employees and officials shall not be

                                                -8-
           considered an invasion of personal privacy.” 5 ILCS 140/7(1)(c) (West 2010).
¶ 35       A person has an “individual interest in avoiding disclosure of personal matters.” Whalen
       v. Roe, 429 U.S. 589, 599 (1977). In particular, the United States Constitution provides
       individuals have the right to privacy in personal decisions of a sexual nature, such as
       marriage, procreation, and contraception. People v. Beard, 366 Ill. App. 3d 197, 204, 851
       N.E.2d 141, 148 (2006). The Illinois Constitution extends this right with a broad,
       unrestrictive provision that recognizes a “zone of personal privacy.” (Internal quotation
       marks omitted.) Beard, 366 Ill. App. 3d at 204, 851 N.E.2d at 148; Ill. Const. 1970, art. I,
       § 6; see also Kunkel v. Walton, 179 Ill. 2d 519, 537, 689 N.E.2d 1047, 1055 (1997).

¶ 36              1. Documents Contained Within the Coaches’ Personnel Files
¶ 37       The Journal contends UIS must disclose information from the personnel files of those
       coaches who allegedly committed misconduct (Bates Nos. 7-11, 13, 15-16, and 18-19). UIS
       disagrees, arguing those documents contained within personnel files are exempt under
       section 7(1)(c).
¶ 38       Though information contained within a personnel file is generally exempt from
       disclosure for personal privacy reasons, “information that bears on the public duties of public
       employees and officials” is not exempt under the personal privacy exemption. See Gekas v.
       Williamson, 393 Ill. App. 3d 573, 583, 912 N.E.2d 347, 356 (2009) (disclosing records of
       internal affairs investigation into sheriff’s activities is not an invasion of privacy). To allow
       an exemption for every document a public body placed within a “personnel file” would allow
       a public body to subvert the purposes of FOIA. Id. Therefore, “the trial court must determine,
       through an in camera inspection of the file, whether the requested information is exempt as
       a clearly unwarranted invasion of personal privacy and whether the presence of exempt
       private information can be cured through redaction.” Stern v. Wheaton-Warrenville
       Community Unit School District 200, 384 Ill. App. 3d 615, 622, 894 N.E.2d 818, 825 (2008),
       aff’d in part & vacated in part, 233 Ill. 2d 396, 910 N.E.2d 85 (2009).
¶ 39       The Journal relies on Stern to support its argument that documents contained within the
       personnel files of public employees are not exempt from disclosure. In Stern, a newspaper
       made a request for a school superintendent’s contract while comparing superintendent
       salaries in other districts. Stern, 233 Ill. 2d at 400-01, 910 N.E.2d at 89. The supreme court
       held the contract was not exempt from disclosure under FOIA because the contract contained
       the duties of a public official. Stern, 233 Ill. 2d at 415, 910 N.E.2d at 97. However, the court
       noted any personal information, such as social security numbers and bank account numbers,
       should be redacted. Stern, 233 Ill. 2d at 414, 910 N.E.2d at 97.
¶ 40       Conversely, UIS cites to Copley Press, Inc. v. Board of Education for Peoria School
       District No. 150, 359 Ill. App. 3d 321, 325, 834 N.E.2d 558, 561-62 (2005), which held
       documents that were properly contained within a personnel file, such as performance
       evaluations and records of disciplinary actions, were per se exempt from disclosure.
¶ 41       In this case, the information sought by the Journal includes documents reflecting the
       coaches’ compensation for accrued vacation and sick time, employee status, and other related
       documents. The Journal interprets Stern too broadly, inferring any document within a

                                                 -9-
       personnel file can be subject to disclosure as bearing on the “public duties” of the employees.
       A closer reading of Stern shows the case was limited to the disclosure of employment
       contracts, as those contracts set forth the duties of public employees and the compensation
       paid from public funds. We find the present case more analogous to Copley. We fail to see
       how the coaches’ election for the disbursement of accrued vacation, sick leave, and related
       documents have any bearing on their alleged misdeeds or public duties. Instead, we conclude
       this information is of a highly personal nature, contained appropriately in a personnel file,
       and exempt from disclosure.

¶ 42           2. Witness Statements, Settlement Agreement, and Other Documents
¶ 43       The Journal next asserts it is entitled to witness statements (Bates Nos. 24-39 and 41-50),
       the unredacted settlement agreement and ledger (Bates Nos. 58-59 and 67), and other
       documents for which UIS claims the personal privacy exemption under section 7(1)(c) (Bates
       Nos. 51-52, 53-54, and 40).
¶ 44       Courts are required to balance the individual’s right to privacy with the public’s
       legitimate interest in disclosure. See Lieber v. Southern Illinois University, 279 Ill. App. 3d
       553, 561, 664 N.E.2d 1155, 1160 (1996), aff’d sub nom. Lieber v. Board of Trustees of
       Southern Illinois University, 176 Ill. 2d 401, 680 N.E.2d 374 (1997). In weighing those
       interests, the court should consider “(1) the plaintiff’s interest in disclosure; (2) the public
       interest in disclosure; (3) the degree of invasion of personal privacy; and (4) the availability
       of alternative means of obtaining the requested information.” Lieber, 279 Ill. App. 3d at 561,
       664 N.E.2d at 1160.

¶ 45                                    a. Witness Statements
¶ 46       The Journal asserts it is entitled to witness statements generated during the investigation
       of alleged misconduct by UIS coaching staff (Bates Nos. 24-39, 41-50). UIS, in turn, argues
       these statements are exempt from disclosure under section 7(1)(c) as an unwarranted
       invasion of personal privacy.
¶ 47       Under the first prong of Lieber, the Journal argues its interest in disclosure is to inform
       the public of a violent crime and UIS’s attempt to conceal the misconduct of its coaches. The
       Journal compares this instance to Jane Doe-3 v. White, 409 Ill. App. 3d 1087, 951 N.E.2d
       216 (2011), in which the Bloomington-Normal school district failed to disclose a former
       teacher’s resignation due to sexual abuse of students to the Champaign County school
       district, which later hired the same teacher. The court held that when the Bloomington-
       Normal school district took the affirmative step of writing falsified letters of
       recommendation on behalf of the teacher, it assumed a special duty of care that could lead
       to potential liability. Jane Doe-3, 409 Ill. App. 3d at 1100, 915 N.E.2d at 229. We find the
       Journal’s reliance on Jane Doe-3 unconvincing, as UIS did inform the public about sexual
       impropriety by one or more coaches and has not attempted to falsify the coaches’ records in
       an attempt to hide any allegations. Moreover, Jane Doe-3 was not a FOIA case; rather, it
       concerned the school district’s civil liability under tort law, which is unpersuasive when
       applied to the case at bar.

                                                -10-
¶ 48       UIS asserts the Journal’s interest is economic in nature, as publishing the salacious
       content would serve to increase its newspaper sales and sensationalize the underlying
       misconduct. UIS asserts the Journal’s interests have been satisfied because it has already
       published numerous articles regarding the coaches’ misconduct, such as (1) softball coach
       Roy Gilmore resigned after allegedly sexually assaulting a softball player on a team trip to
       Florida in 2009; (2) the head coach of the softball team, Joe Fisher, resigned due to the
       allegations against Gilmore; (3) the student who made allegations against Gilmore received
       $200,000 in a settlement with UIS; (4) golf coach Jay Davis unexpectedly resigned in 2009;
       and (5) all coaches were asked to resign by UIS. We agree to an extent. While the Journal
       has minimal interest in the explicit details of events that occurred on the softball trip, it does
       have an interest in the events leading up to the misconduct.
¶ 49       In satisfying the second prong of Lieber, the Journal explains the public interest in
       disclosure is to know about sexual misconduct of UIS coaches and UIS’s reaction to the
       misconduct in order to better protect the public and community, as shown in Jane Doe-3.
       UIS again asserts the public interest has been satisfied by the numerous articles previously
       published by the Journal regarding the incidents, which disclose acts of sexual impropriety
       by the coach.
¶ 50       In its argument in support of public disclosure, the Journal relies, in part, upon Florida
       Star v. B.J.F., 491 U.S. 524 (1989), to suggest the public interest in news regarding a violent
       crime, such as sexual assault, trumps the victim’s interest in personal privacy. In Florida
       Star, the police department allowed unrestricted media access to police reports, then the
       media published the information contained within the police reports, including the victim’s
       name, which was contrary to Florida law. Florida Star, 491 U.S. at 527. The Supreme Court
       concluded “that where a newspaper publishes truthful information which it has lawfully
       obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a
       state interest of the highest order, and that no such interest is satisfactorily served by
       imposing liability” under the set of facts presented to the Court. Florida Star, 491 U.S. at
       541. The Court reasoned the police department was in a better position to self-regulate the
       release of sensitive material rather than punishing a newspaper for printing material it
       obtained legally from the police. Florida Star, 491 U.S. at 538.
¶ 51       We find Florida Star unpersuasive and inapposite to the case at bar, as Florida Star
       represents an instance of a victim trying to undo the damage after the fact. In the present
       case, the damage to the victim’s personal privacy can be prevented. However, the public does
       have a legitimate concern in the decisions of UIS or its coaches that led to the behaviors
       preceding the sexual misconduct (Bates Nos. 24-25). This information would be of legitimate
       interest to not only the general public, but to parents of students.
¶ 52       The Journal also explains the public has an interest in UIS’s actions, particularly in
       allowing the coaches to resign rather than terminating them. No evidence supports a
       university-wide attempt to hide the general facts regarding the resignations of the coaches.
       As the UIS attorney explained, the coaches were allowed to resign in lieu of a prolonged
       administration process that could have resulted in the coaches retaining their positions. UIS’s
       decision allowed for a very swift response.


                                                 -11-
¶ 53       Under the third prong of Lieber, UIS asserts the disclosure of the witness statements
       would greatly invade the personal privacy of the student witnesses and cause the victim to
       relive the traumatizing experience. As the victim’s attorney stated in an affidavit to the court:
                “The UIS student who was my client did not wish and does not wish to be subjected
                to public embarrassment nor to have the facts and circumstances related to this
                invasion of her most private, intimate, and personal safety made public. *** The only
                current public interest, given the passage of time, is a prurient and licentious interest
                which interest is significantly outweighed by my client’s interest in her privacy. ***
                My client has a substantial and compelling interest in not having these matters which
                caused her emotional trauma to be brought back up and subjected to public scrutiny.
                My client was one of the victims and any disclosure would subject her to additional
                trauma.”
¶ 54       The Journal contends redacting the records would be sufficient to protect the privacy
       interests of the witnesses and victims. However, given the few members of the softball and
       golf teams, disclosing any detailed information about the offenses would make the student
       more easily identifiable. Having said that, some information contained within the coaches’
       statements (Bates Nos. 24-25) could be redacted and disclosed without an unwarranted
       invasion of the students’ personal privacy. Specifically, we refer to actions and observations
       made by the UIS softball coaches preceding the sexual misconduct.
¶ 55       At this stage, the undisclosed information consists of (1) the detailed accounting of the
       sexual misconduct and (2) the actions and behaviors of the coaches preceding the act of
       sexual misconduct. The Journal and the public know an act or acts of sexual misconduct by
       a softball coach led to the swift resignation of two UIS softball coaches, resulting in a
       $200,000 settlement paid to a student. As the trial court noted after reviewing the articles
       published by the Journal:
           “I don’t know what more you can find that makes things any worse than they are. He
           did–they did a pretty good job beating up these two guys and [UIS]. I’m not sure what
           else out there there is other than the kind of nasty dirty stuff that allegedly took place, and
           I don’t see a great deal of public interest in that as relates to the personal private interest
           of the girls that were involved.”
¶ 56       We agree with the trial court’s assessment. The details of that sexual misconduct are
       highly personal, which weighs heavily in favor of exemption. The same cannot be said for
       the actions and behaviors of the coaches preceding the sexual misconduct, which does not
       affect the personal privacy rights of the students, but instead reflects on the decisions of UIS
       and its coaches.
¶ 57       To satisfy the fourth prong of Lieber, the Journal contends it had no practical alternative
       means by which to obtain the requested information. UIS notes the Journal had already
       received significant information from UIS, which the Journal published in its newspaper.
       Additionally, the Journal could easily obtain the rosters from the 2009 softball and golf teams
       and request interviews with the players. We agree with UIS. The Journal could easily obtain
       the names of female golf and softball players and coaches in 2009 and ask those individuals
       for interviews or other information.


                                                  -12-
¶ 58       Based on this particular set of facts, specifically the fact that the Journal has been able
       to publish numerous articles informing the public of (1) UIS’s actions in asking the coaches
       to resign and (2) the general allegations against the coaches, we conclude the unwarranted
       invasion of privacy outweighs the public interest with regard to the majority of the witness
       statements. Therefore, we conclude the witness statements (Bates Nos. 26-39 and 41-50) are
       exempt from disclosure under section 7(1)(c) of FOIA. However, we also conclude the
       public interest outweighs personal privacy in redacted portions of the coaches’ statements
       in Bates Nos. 24-25, which describe the events preceding the act of sexual misconduct. As
       explained later in this opinion, the Educational Privacy Act does not apply to these redacted
       portions of the coaches’ statements, which means UIS must disclose the documents as
       redacted. Specifically, in Bates No. 24, UIS must disclose the first three paragraphs after
       redacting the names of the softball players mentioned in those paragraphs. The remaining
       paragraphs are not subject to disclosure. With regard to Bates No. 25, UIS must disclose the
       final paragraph after redacting the names of the softball players mentioned in that paragraph.
       The remaining paragraphs are not subject to disclosure.

¶ 59                           b. Settlement Agreement and Ledger
¶ 60       With respect to the settlement agreement and ledger reflecting the settlement payment,
       the only portion of those documents not previously disclosed by UIS is the name of the
       victim. The Journal contends it is in the public’s interest to know how public university
       funds are spent and the recipient of those funds. See 5 ILCS 140/2.5 (West 2010). While we
       agree the public has a legitimate interest in the spending of a public university such as UIS,
       the public already knows UIS paid a student $200,000 to settle allegations of sexual
       impropriety by a coach during a 2009 softball team trip to Florida. The payment amount and
       details of the reasoning behind the settlement are sufficient to satisfy the legitimate interests
       of the public without disclosing the student’s name. If the Journal questions whether UIS
       made the payment as required, it could contact the victim’s lawyer, who is named in the
       ledger, to ensure UIS remitted payment to the victim in a timely fashion. There is no
       legitimate public interest in the name of the victim; thus, the victim’s personal privacy
       interests far outweigh the interest of the public or of the Journal.
¶ 61       Moreover, at the trial court and again on appeal, the Journal insists it is not interested in
       the individual names of students, yet does not withdraw its request for the unredacted
       settlement agreement and ledger. As Rushton noted in his formal request for review under
       FOIA, when presented with the redacted settlement agreement: “I cannot fathom how a
       public body can withhold the identity of an individual or entity that received public funds.”
       However, because the Journal persists in arguing it is uninterested in student names, its
       subsequent request for what amounts to the name of the victim is appropriately denied as an
       abandoned argument. See Senior Housing, Inc. v. Nakawatase, Rutkowski, Wyns & Yi, Inc.,
       192 Ill. App. 3d 766, 770, 549 N.E.2d 604, 607 (1989) (“Generally, an appeal will be
       considered as abandoned where the appellant fails to prosecute the appeal or does some act
       inconsistent with its prosecution.”).
¶ 62       We conclude the trial court did not err in finding the victim’s name contained within the


                                                 -13-
       settlement agreement and ledger (Bates Nos. 58-59 and 67) exempt from disclosure.

¶ 63                                     c. Other Documents
¶ 64       UIS also claims the personal privacy exemption with respect to various correspondence
       arising from but not directly related to the coaches’ resignation. One of the pieces of
       correspondence is an e-mail string containing a student complaint and an administrator
       arranging a meeting with that student (Bates Nos. 51-52). The second is correspondence from
       the parent of an affected UIS student addressed to the UIS president (Bates Nos. 53-54). The
       third item is a private communication between an affected student and one of the coaches
       (Bates No. 40).
¶ 65       With respect to the two sets of e-mail correspondence, in balancing the Lieber factors,
       the Journal and public have an interest in the opinions of students and the parents of students
       with regard to the resignation of the coaches, especially if those individuals believe UIS is
       attempting to conceal information from the public. Conversely, the individuals who
       composed each correspondence have a privacy interest in being able to privately express their
       opinions and concerns to UIS. Parents and students should feel free to address the
       administration without fear their correspondence will be on the front page of the morning
       newspaper. If the student or parents wanted their concerns and opinions to be publicized,
       they could have easily contacted the media in order to express those opinions.
¶ 66       However, our inquiry cannot stop there. The question then becomes whether redaction
       of the correspondence, consistent with section 7(1) of FOIA, would remedy any personal
       privacy concerns. A closer inspection of the correspondence from the parent reveals
       redaction is not a potential remedy because the affected student could easily be identified
       through the context of the letter. After balancing the interests, under section 7(1)(c) of FOIA,
       we conclude the parent’s letter to UIS (Bates No. 53-54) is exempt from disclosure.
       However, with regard to the correspondence to UIS from a student, we conclude redaction
       would adequately protect the privacy interests because nothing in the content of the e-mail,
       other than the student’s name, identifies the student. Thus, the student’s complaint (Bates
       No. 51-52) must be disclosed after redaction of any identifying information because the
       document is not exempt under section 7(1)(c) of FOIA or under the Educational Privacy Act,
       as further discussed below.
¶ 67       The third communication is directly related to one coach’s resignation, which would
       undoubtedly be of public interest under the Lieber balancing test. We note the public is
       already aware the coach resigned due to inappropriate behavior but knows none of the details
       leading to that resignation. However, in this situation, given the highly personal nature of the
       communication and the method by which it came to UIS’s attention, we find the public
       interest is outweighed by the unwarranted invasion of privacy of the student when balancing
       the Lieber factors.

¶ 68                         E. Whether the Educational Privacy Act
                           Prevents Disclosure of Records Under FOIA


                                                -14-
¶ 69       Having concluded that all but three documents are exempt from disclosure under section
       7(1)(c) or 7(1)(f) of FOIA, we now turn to the three remaining documents, which consist of
       (1) the “internal communication re: personnel matter” (Bates No. 55), (2) the e-mailed
       student complaint (Bates No. 51-52), and (3) coaches’ witness statements (Bates Nos. 24-25)
       to determine whether the Educational Privacy Act requires exemption of those documents.
¶ 70       The purpose of the Educational Privacy Act is to “ensure access to educational records
       for students and parents and to protect the privacy of such records from the public at large.”
       Student Press Law Center v. Alexander, 778 F. Supp. 1227, 1228 (D.D.C. 1991). Section
       1232g(b)(1) of the Educational Privacy Act provides:
           “No 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
           ***.” 20 U.S.C. § 1232g(b)(1) (2006).
       The statute defines “education records” as records, files, documents, or other materials which
       (1) “contain information directly related to a student” and (2) “are maintained by an
       educational agency or institution or by a person acting for such agency or institution.” 20
       U.S.C. § 1232g(a)(4)(A) (2006).
¶ 71       A cursory examination of the “internal communication re: personnel matter” reveals it
       is not subject to the Educational Privacy Act because it is not a student education record, nor
       does its content reference, directly or indirectly, any information regarding a student. Further,
       this communication makes no reference to any underlying details of alleged misconduct. We
       would also note the majority of the content within this communication has already been
       disclosed to the Journal and the public. Therefore, we conclude the Educational Privacy Act
       does not apply to this “internal communication” (Bates No. 55).
¶ 72       Likewise, we conclude the student complaint (Bates No. 51-52), on its face, is not subject
       to the Educational Privacy Act. The complaint does not contain information directly related
       to a student; rather, it expresses the voluntarily expressed opinion of a student with no
       identifying characteristics once the student’s name has been redacted.
¶ 73       Finally, a cursory examination of the nonredacted portions of the coaches’ witness
       statements (Bates Nos. 24-25) reveals those statements are not subject to the Educational
       Privacy Act, as they reflect on the actions and behaviors of the coaches, not the students.
       None of the disclosed statements would directly relate to a student, as required for exemption
       under the Educational Privacy Act.
¶ 74       Accordingly, we conclude the Educational Privacy Act does not prevent the disclosure
       of (1) the “internal communication re: personnel matter” (Bates No. 55), (2) the student
       complaint (Bates Nos. 51-52), or (3) nonredacted portions of the coaches’ witness statements
       (Bates Nos. 24-25). Because an examination of the documents convinces us these documents
       do not, on their face, fall within the parameters of the Educational Privacy Act, we need not
       address whether the Educational Privacy Act specifically prohibits the disclosure of
       education records in Illinois, as necessary to satisfy section 1(a) of FOIA.

                                                 -15-
¶ 75                                     III. CONCLUSION
¶ 76       For the foregoing reasons, we conclude the trial court erred in denying the Journal’s
       FOIA request for (1) the e-mail string containing a student complaint (Bates Nos. 51-52)
       once redacted, (2) the “internal communication re: personnel matter” (Bates No. 55), and (3)
       the coaches’ witness statements (Bates Nos. 24-25), once redacted. The remainder of the
       court’s order is affirmed.

¶ 77      Affirmed in part and reversed in part.




                                               -16-
