dissenting:
I believe that by initially misframing the issue before the court, the majority reaches the wrong result in this case. I therefore respectfully dissent.
Plaintiffs sought the standardized achievement test scores of students in certain grades of certain schools in the defendant school district. Plaintiffs requested that, for each test score listed, the race of the student be designated. The school district maintains records that include this information. There is a single report for each grade and school in the school district containing an alphabetical list of the students’ names, the test scores of each student in 11 different categories and a race/sex code for each student. The race/sex codes describe with a single digit both the race and sex of the students. White males are represented by a “1”; white females by a “2”; black males by a “3”; and so forth through the spectrum of race and, in some cases, national origin.
The manner in which the school district records the information sought by the plaintiffs makes the identification of an individual student’s score possible in three ways. First, the inclusion of every student’s name obviously enables whoever reads the report to identify individual student’s test scores. Second, because the scores appear in alphabetical order by the students’ names, it would be possible to correlate the test scores with a class list even if the report did not include .the students’ names. Third, in certain cases, the number of students of a particular race and sex may be so small in a given grade and school that identification of individual student’s scores would be possible through the race/sex codes.
Both parties agree that, because individual student’s test scores are identifiable, the district’s records, in their present form, are exempt from disclosure under section 7(b) of the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1985, ch. 116, par. 207(b)). This section provides that information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy is exempt from inspection and copying unless the subjects of the information consent to its disclosure. The parties further agree that, to protect the students’ privacy and at the same time provide the plaintiffs with the information requested, the student names would have to be deleted (masked), the order of the scores randomly rearranged (scrambled) and the current race/sex codes replaced with race-only codes (recodified). The substitution of the race/ sex codes with codes designating only the race of the students would increase the number of students within any one classification and make the identification of individual students less likely.
At the time this action commenced, section 8 of the FOIA (Ill. Rev. Stat. 1985, ch. 116, par. 208) imposed a duty on public bodies to separate exempt material from nonexempt material. Section 8 then provided: “If any public record that is exempt from disclosure under Section 7 of this Act contains any material which is not exempt, the public body shall separate the exempt material and make the nonexempt material available for inspection.” Plaintiffs contend, and defendants concede, that in this case the school district has an obligation to mask the students’ names and scramble their scores.
The parties disagree, however, on whether any duty exists on the defendants’ part to substitute the race/sex codes used in the reports with a new race-only code and by that action render the records subject to the disclosure requirements of the FOIA. Thus, unlike the majority, I do not believe that the issue in this case is “whether masked and scrambled test score records, which do not identify individual students, are subject to disclosure under the FOIA.” I believe rather that the issue here is whether the FOIA requires a public body to recodify exempt records in order to make them nonexempt.
Plaintiffs suggest three reasons why the school district is, or should be, required to replace the current codes with more general, race-only codes. Initially, plaintiffs contend, and the majority seems to agree, that our decision in Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, compels this substitution. To the extent that our opinion in Family Life League, which interpreted the State Records Act (Ill. Rev. Stat. 1979, ch. 116, par. 43.4 et seq.), offers guidance in the interpretation of the FOIA, it should be noted that in Family Life League we concluded only that the public body was required to delete, not to substitute, information in order to render the records exempt.
Moreover, following the appellate court’s opinion in this case, the legislature amended section 8 of the FOIA. As presently written, section 8 no longer requires public bodies “to separate” exempt and nonexempt material but instead requires that public bodies “delete the information which is exempt [under section 7] and make the remaining information available for inspection and copying.” (Emphasis added.) (Pub. Act 85 — 1357, eff. Jan. 1, 1989 (amending Ill. Rev. Stat. 1987, ch. 116, par. 208).) As plaintiffs concede, more than deletion is involved in this case. Their reliance on Family Life League is therefore misplaced, and I find no support in either the present or former language of the FOIA to favor their contention that the school district was obligated to replace the codes it had chosen and utilized.
Plaintiffs next contend that the purpose of the FOIA is to open the books of government to public scrutiny and that this purpose will be undermined if defendants are not required to alter their records to permit disclosure. Yet, as the FOIA itself recognizes, the public’s right to information is not without limits. For example, section 1 states that the act is not intended to create an obligation on the part of any public body to maintain or prepare new records. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) Similarly, section 7 creates 28 separate exemptions from the act’s provisions. (Ill. Rev. Stat. 1987, ch. 116, pars. 207(a) through (cc).) Thus the act represents the legislature’s balancing of the public’s interest in disclosure against other competing private and governmental interests. Section 8 reflects the legislature’s determination concerning the extent to which a public body must modify exempt records to render them nonexempt. Because I do not read that provision to impose a duty on public bodies to recodify existing records, the balancing features of the act are best served by recognizing that the school has no obligation to recodify its records to provide the information in the form requested by plaintiffs.
Finally, plaintiffs contend that the failure to recognize a duty to recodify existing records ignores the capabilities of modem data processing. I do not find this argument persuasive. I see nothing in the FOIA which indicates that the legislature intended to impose a duty on public bodies to use their computer capabilities to provide information in a form that would make the material nonexempt. (See Yeager v. Drug Enforcement Administration (D.C. Cir. 1982), 678 F.2d 315 (interpreting Federal FOIA).) The act simply does not differentiate between records stored in computers and those maintained manually.
Nor am I convinced that such a distinction would be advisablé. The recognition of a greater duty to modify exempt information that is stored in computers than that which is stored manually would essentially mean that public records maintained by computers would be subject to broader disclosure requirements than manually kept records. Thus a distinction between computer and manually maintained records may create an incentive in public bodies to record certain types of information in computer form and other types in manual form depending on how desirable its disclosure to the public may be perceived. I do not believe that such incentives are in the public interest.
Having concluded that the defendants are not and should not be required to replace existing codes with new ones in order to make exempt records nonexempt, I believe the majority unnecessarily considered the remaining arguments raised by the defendants. I would reverse the appellate court’s judgment.
JUSTICE RYAN joins in this dissent.