Cooper v. Department of Lottery

JUSTICE COUSINS,

dissenting:

In this case, after in camera inspection and review of the "Communications Plan Recommendations” (referred to as the Bozell plan) (CPR) media-related document, the court ruled that the CPR was exempt from production under section 7(l)(r)’s marketing provisions, as well as section 7(l)(g)’s exemption for certain trade secrets and commercial or financial information. Also, regarding the agents, the trial court found that release of the vendors’ specific sales data would be a clear and unwarranted invasion of privacy. In my opinion, the trial court decision should be affirmed. See Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.

At the outset, the majority opinion posits that the defendant’s contention on review has changed. This argument is incorrect. Rather, the plaintiff, Cooper, indicated at times during argument that his requests have been undergoing modifications. A substantial portion of the oral argument involved questions asked to clarify Cooper’s request regarding the location of lottery vendors.

The majority opinion states "[t]he nub of the controversy on the question of lottery agents’ privacy interests centers on Cooper’s request that the sales data be supplied for the geographical location of each lottery sales outlet within Chicago (which may consist of a specific street address or a more general address such as that of a shopping center) whereas DDL is willing to supply the information by zip code instead.” (266 Ill. App. 3d 1020.) However, contrary to the majority argument, Cooper’s complaint seeks specific locations and street addresses. Based on the complaint and communications between the parties, the court order exempts vendors’ specific sales data for specific locations. Cooper seeks and the court specifically exempts disclosure by DDL of specific addresses with sales data.

Relative to Cooper’s request, his attorney was asked numerous times whether he was seeking specific addresses. Equivocal responses were given by the attorney until the very end of rebuttal argument. Then, he was again asked: "By address, do you mean specific address?” Answer: "Yes.” However, even if Cooper has now modified his request to "geographic locations” (whatever that means), "geographic locations,” as such, was not pled before the trial court. Based on the pleadings, documents, and arguments, the trial court decided that Cooper was requesting vendors’ specific locations and gross monthly sales. On appeal, we cannot predicate a decision on requests which were not pled and ruled upon in the trial court.

Relative to the background information provided in the majority opinion, I note that the first recorded reference which is included in the record regarding the aim of Mr. Cooper in seeking information from the Illinois Department of Lottery (IDL) appears in a letter dated February 19, 1991, where IDL wrote:

"If as Mr. Cooper relates, his aim is to determine whether or not our advertising is targeting minority groups, the by-Zip Code information we have offered will give the most accurate representation of sales within the ethnic and minority areas of Chicago as possible. The individual sales of agents will not enhance such an analysis but, will rather distort possible representative sales within the entire neighborhood. Nonetheless, the request for specific agent sales data is once again denied.” (Emphasis added.)

Regarding the CPR, the trial court did not err and its decision should be affirmed for reasons hereinafter stated.

First, contrary to the contentions by the majority, the CPR document is clearly exempt under section 7(l)(r) of the Illinois FOIA, which exempts "recommendations *** pertaining to the financing and marketing transactions of the public body.” (5 ILCS 140/7(l)(r) (West 1992).) In both his brief and during orals, Cooper posits that the marketing exemption of section 7(l)(r) applies only to "the marketing of government bond issues by public bodies.” In my opinion, the majority errs in agreeing with Cooper’s interpretation of the statute. The majority writes:

"Thus 'marketing’ can only be reasonably construed as referring to marketing of government bond issues by public bodies, and not as excluding from FOIA disclosure any information relating to marketing activities of a public body.” 266 Ill. App. 3d at 1017.

Section 7(l)(r) exempts the following:

"(r) Drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligation is made.” 5 ILCS 140/7(l)(r) (West 1992).

In its brief, IDL makes an exhaustive analysis of this section which disproves the contention that it only applies to "bond issues.” Further, it is clear from a reading of this exemption that both of the two section (r) sentences can stand alone. The first sentence pertains to "financing and marketing transactions.” The second sentence relates to "records of ownership *** of municipal debt obligations.” It is clear that the conduct of the lottery by IDL involves "marketing transactions.” It is clear that these marketing transactions are exempt.

In my opinion, the majority also errs in granting summary judgment in favor of Cooper and ordering the trial judge to furnish Cooper "the Bozell plan” documents which the trial court examined in camera. I have read the common law record. Even so, I don’t know what the trial judge viewed in camera. I am not clairvoyant. However, I do know that appellate justices have a duty to review trial court decisions based upon the facts and findings which are found in the common law record. We cannot review a determination without knowing upon what it is based. General Electric Co. v. United States Nuclear Regulatory Comm’n (1984), 750 F.2d 1394.

In General Electric, the court wrote:

"[W]e cannot review an agency’s determination without knowing what it is based on; *** we are unable to discover 'the basis for the agency determination that the FOIA exemptions are inapplicable.’ ***
*** [W]we are forced to reverse the district court’s judgment and direct that court to remand the matter to the Commission ***.” (Emphasis added.) General Electric, 750 F.2d at 1404, quoting Chrysler Corp. v. Schlesinger (3d Cir. 1977), 565 F.2d 1172, 1192.

The majority posits that General Electric is inapposite. The majority is incorrect. Also, it was Cooper’s obligation to move the court to order IDL to provide an index of the records to which access had been denied. See Baudin v. City of Crystal Lake (1989), 192 Ill. App. 3d 530, 543, 548 N.E.2d 1110; Ill. Rev. Stat. 1989, ch. 116, par. 211(e) (now 5 ILCS 140/ll(e)(West 1992)).

As to the request for vendors’ specific sales data, I note that Cooper contends, in particular, that area sales by zip codes will not enable him to make an accurate study in the census tract which includes both Cabrini-Green and the Gold Coast in Chicago. This argument is unconvincing. An instructive case is Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 538 N.E.2d 557. In Bowie, the Illinois Supreme Court remanded the case for determination as to whether students could be identified in classrooms even though the names and sexes of students were deleted and scrambled.

The issue on review is not regarding "geographic locations.” The issue on review involves "vendors’ specific sales data.” I note that the attorney for IDL emphasized in the trial court and on review that "what the Department refuses to give is sales data specifically identified with addresses.” I also note that, in making his decision, the trial court judge specifically considered the stipulation by the parties that "vendors do receive a commission for each lottery ticket that they sell.” Doubtlessly, vendors’ specific sales data has tax ramifications. These data also have other ramifications which must be considered. And, my dissent is further crystalized because the majority in this case gives virtually no consideration to the ramification of increased risks which disclosure poses for lottery agents in high crime areas. As recognized by IDL, not only would agents who are likely to have greater lottery funds on hand be known, but since lottery sales generally reflect the "trafile” attendant to the agents’ own commercial enterprises (z.e., gas stations, drug stores, convenience stores), these business also could be targeted. It is my view too that providing "vendors’ specific sales data” to a writer for part of a study and public disclosure can unwarrantably and unnecessarily cause some vendors and/or agents to be targeted. See Margolis, 180 Ill. App. 3d 1084, 536 N.E.2d 827.

I also note that during oral arguments, a member of this court made the following remark, which has been verified by a review of the tape recording of the oral argument:

"Is it required that a balancing test to be applied, and the court articulate the reasons why on the facts of this particular case the exemption applies, or is it sufficient just to say well it comes within the broad exemption language and that’s sufficient, and I would suggest to you that might fly in the Fourth District but I don’t know that it goes around here.” (Emphasis added.)

For the reasons which I have expressed, it is my view that the decision of the trial court in the case sub judice accords with the law enunciated in every relevant published opinion by a court of review in Illinois. See Blumenfeld, Ltd. v. Illinois Department of Professional Regulation (1993), 263 Ill. App. 3d 981; Margolis, 180 Ill. App. 3d 1084, 536 N.E.2d 827; see also Ripskis v. Department of Housing & Urban Development (D.C. Cir. 1984), 746 F.2d 1.