dissenting:
I dissent from the denial of plaintiffs’ petition for rehearing. First — I do not agree that the plaintiffs have “acquiesce [d] in the basic conclusions reached in the [original] opinion.” (76 Ill. 2d at 130.) Second, although the court’s supplemental opinion on denial of rehearing takes a step in the right direction, it fails to come to grips with the problem posed by cases in which the Department, for whatever reason, has not issued a notice of violation and held a compliance hearing. The records compiled in such cases could be vital to the revelation of institutional corruption and incompetence, and the logic of the majority’s position compels the release of such records, with appropriate safeguards.
In its original opinion in this cause, the court made the following statement: “To release investigative reports without notice to the owner and an opportunity to be heard would impinge upon the owner’s due process rights. To release initial and unevaluated investigation reports threatens privacy interests. Public disclosure of such reports would also tend to impair the efficiency of day-to-day activities of and investigations by the Department of Buildings. In the absence of factors supporting disclosure other than a general policy of openness in government and the plaintiffs’ interest in the condition of the buildings, and in the face of strong countervailing factors, investigative reports are not open to public access. If the investigative reports become part of a court record, rules governing public access to such records should govern.” (76 Ill. 2d at 121-22.) In its supplemental opinion, however, the court states that “[p] laintiffs’ petition accurately sets forth our holding that once a notice of violation has been sent to a building owner and he has been given an opportunity to respond at a compliance hearing, building inspection reports on which the notice and hearing were based may be open to public access.” (76 Ill. 2d at 130.) The court then goes on to hold that “Central Lakeview Neighbors is entitled to the inspection report it seeks because the defendants admitted it had been at issue in court proceedings,” and that if “the owner of the building to whose inspection reports Lloyd Parker sought access *** had received the requisite notice and opportunity to be heard, then, consistent with our opinion, Parker is entitled to examine those inspections reports.” 76 Ill. 2d at 130.
Since the supplemental opinion does not purport to modify the original opinion, the two opinions must be intended to be reconcilable. Such reconciliation leads to the following conclusions: (1) The “strong countervailing factors” which weigh against public disclosure of “investigative reports” all disappear once the owner of the building has “received the requisite notice and opportunity to be heard,” and a compliance hearing before the Department of Buildings satisfies the hearing requirement. (2) “The rules governing public access to [court] records” always mandate release of inspection reports of the Department of Buildings which have been “at issue” in court proceedings, and the circuit court does not have discretion to seal such records.
The question remains however, what about situations in which the city does not issue a notice of violation and hold a compliance hearing, such as, for example, where a building inspector has accepted a bribe in return for not reporting a violation, or where another official of the Department has accepted a bribe in return for squelching an investigation of a reported violation? The majority’s answer apparently is that the records in such cases may go undisclosed, because a hearing before the Department of Buildings is an absolute prerequisite to disclosure, in order to protect the property and privacy interests of building owners. The owners’ rights of privacy and property can be adequately safeguarded, however, without covering up evidence of incompetence and corruption on the part of public officials. All that is necessary is that the owner of the property in question be given notice of the disclosure sought by a given individual or group, and an opportunity to supplement the record before its disclosure. Under the law of defamation, an individual or group which obtained disclosure of such a supplemented record would, at its peril, ignore the owner’s side of the story. See Troman v. Wood (1975), 62 Ill. 2d 184.
Accordingly, I would allow the petition for rehearing, and grant judgment for plaintiffs in accordance with the views expressed in my dissent from the court’s original opinion in this cause.
GOLDENHERSH, C.J., and MORAN, J., join in this dissent.