ILLINOIS POLLUTION CONTROL BOARD
July 13, 1989
CITIZENS UTILITIES COMPANY
OF ILLINOIS,
Petitioner,
v.
)
PCB 88—151
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ORDER OF THE BOARD (by B. Forcade):
This matter is before the Board on Citizens Utilities
Company of Illinois’ (“Citizens”) July 6, 1989 Motion for
Reconsideration of the June 22, 1989 Order of the Board. It is
also before the Board on the June 29, 1989 Second Supplement to
Citizens’ Application for Non—disclosure and for Protective
Order, filed in response to the June 22, 1989 Order, and
Citizens’ Application for Non—disclosure and for Protective
Order, attached to supplemental responses to the Illinois
Environmental Protection Agency’s (“Agency”) Interrocatories Nos.
1 and 2.
The Agency filed a supplement to its objection to the motion
for non—disclosure on July 10, 1989. On July 11, 1989, Citizens
filed a motion to file its response to the supplement to the
Agency’s objection (filed July 10, 1989) instanter, together with
a copy of Citizens’ response. The Board hereby grants that
motion to file.
The June 22, 1989 Order of the Board focused on various
discovery disputes between the Agency and Citizens. It primarily
dealt with an Agency motion for sanctions and Citizens’ claims
for privilege against public disclosure of various answers to
Agency interrogatories. At issue were answers to Agency
interrogatories numbered 1, 2, 3, 12, 16, 19 and 20. The Board
ordered sanctions as to certain of Citizens answers to the
Agency’s interrogatories. With regard to the answers to
interrogatories 2 and 19, the Board gave Citizens a final
opportunity to respond
not
later than June 29, 1989, or the Board
would dismiss Citizens’ petition. The Board denied sanctions as
to interrogatories 1 and 16, but granted the Agency leave to
refile for sanctions at some future date if further discovery
discloses that citizens was less than forthright in its
answers. The Board imposed a sanction for Citizens’ failure to
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respond more fully to Agency Interrogatory 12: the Board barred
Citizens from presenting certain, specified evidence at
hearing. The Board ordered that certain answers to
interrogatories 1, 3, 12, and 20 were temporarily subject to non-
disclosure and gave Citizens until June 29, 1989 to provide a
detailed explanation of its theory for non—disclosure.
With regard to Citizens motion for reconsideration, the
Board notes that Citizens cites nothing that was not before the
Board when it entered its June 22, 1989 Order. Further, Citizens
cites no author~ywhich indicates that the Board abused its
discretion in imposing sanctions by that Order. Therefore, the
Board hereby denies reconsideration of its June 22, 1989 Order.
The situation is similar with regard to Citizens’
applications for non-disclosure of the answers to Agency
interrogatories 1, 3, 12, and 20. The June 22 Board Order
stated, in significant part, as follows:
The Board will first address the application
for non—disclosure. Citizens claims that the
supplemental answers filed June 1, 1989,
should not be disclosed to the public because
the answers contain “information privileged
against introduction in judicial proceedings”,
as provided in Section 101.107 of the Board’s
procedural rules. (These answers were previ-
ously not subject to disclosure by Interim
Hearing Officer Order which expired May 11,
1989.) The court proceeding involved is
Village of Glenview v. Northfield Woods Water
& Utility Co., Inc., case No. 87 CH 02577,
Circuit Court of Cook County, Illinois.
Citizens states that although on April 24,
1989, the court granted Glenview’s motion for
summary judgment, “Northfield woods purported-
ly has filed a petition for rehearing and
reconsideration which now is pending before
the court.” Citizens further states:
tjhe attached supplemental re-
sponses relate to subject matter
involved in these court proceedings
and to the subject matter of dis-
covery which the court has denied.
If these materials are not treated
as confidential, Citizens believes
that tHe court proceedings may he
adversely affected, and the court’s
rulings circumvented.
Citizens’ further elaborates:
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As Citizens’ application states, it
seeks protection, from disclosure by
IEPA or from public disclosure, of
confidential materials contained in
Citizens’ supplemental responses to
IEPA’s interrogatories.
These
materials relate to the subject
matter of the court proceedings
involving the Village of Glenview
and Northfield Woods Water & Utility
Co., Inc. (“Northfield Woods”).
They also relate to the subject
matter of discovery which the court
has denied. If these materials are
not treated as confidential,
Citizens will be disadvantaged and
the court’s rulings will be cir-
cumvented. For example, the court
has denied Northfield Woods’ dis-
covery attempts to obtain material
of the type which Citizens has
produced to IEPA herein.
***
The Board agrees that there is no apparent
doctor—patient, attorney—client or other
privilege which would relate to the material
involved. The Board also agrees that Citizens
has not shown any judicial ruling that certain
material is confidential or privileged. At
most, Citizens has asserted that discovery was
denied. Such a broad assertion will not
support the requested protective order. The
Board will, however, temporarily provide
confidential treatment to these materials, and
will allow Citizens until June 29, 1989 to
provide the Board and Agency with a detailed
explanation of its theory of non—disclosure.
The Agency will have until July 7, 1989, to
provide any needed supplement to its present
position. The Board will determine the
disclosure status at its July 13, 1989 Board
meeting.
June 22, 1989 Order of the Board at 2—3.
That Order gave Citizens “until June 29, 1989 to provide the
Board and Agency with a detailed explanation of its theory of
non—disclosure.” Id. at 3. Citizens’ June 29 and July 11, 1989
filings purport to do just that, but the Board finds that those
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filings do not enunciate any cognizable theory for non-
disclosure. Further, Citizens’ Application for Non—disclosure
attached to its Supplemental Responses to interrogatories 1 and 2
broadens Citizens’ claims of confidentiality to include its
supplemental answer to interrogatory 1 on the same basis.
The basic thrust of Citizens’ claims for protection against
disclosure are that the Cook County Circuit Court denied
discovery of the information disclosed in the answers to
interrogatories. Citizens alleges that certain evidence
indicates that the Agency is in close communication with one of
the parties to that litigation and has obtained from that party
documents produced during the course of discovery in that
proceeding. Citizens voices its concern that the Agency will
feed the instant answers back to that other party to that other
proceeding, and that such an exchange might adversely affect the
conduct of those court proceedings and circumvent the rulings of
that court. Citizens asserts that the Board may grant the
requested protective order on any of three distinct bases: (1)
under Supreme Court rule 201(c)(l), “to prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or oppression”;
(2) under Board procedural rule lOl.16l(a)(2) (formerly rule
lOl.l07(b)(2)), which would prevent the disclosure of
“information privileged against introduction in judicial
proceedings”; or under Board procedural rule lOl.16l(a)(3)
(formerly rule lOl.l07(b)(3)), which would prevent the disclosure
of “confidential data.” See Citizens’ Second Supplement to
Application at 6-7. However, Citizens’ assertions do not further
elaborate to provide a basis for non—disclosure.
First, although Supreme Court Rule 201(c) enunciates a valid
basis for ordering non—disclosure when disclosure would lead to
“unreasonable annoyance, expense, embarrassment, disadvantage, or
oppression,” Citizens does not elaborate any basis for the Board
to conclude that any of these would occur in this proceeding.
Rather, Citizens’ claims are restricted to what would occur
before the Cook County Circuit Court. The Board believes that
that tribunal is in a better position to protect its jurisdiction
and orders than is the Board. Further, Citizens does not set
forth with any particularity the type(s) of “annoyance, expense,
embarrassment, disadvantage, or oppression” that might occur.
The Board believes that such particularity is a prerequisite to
relief where the type and magnitude of harm are not facially
apparent. Therefore, even if the Board were to apply Supreme
Court Rule 201 to its proceedings, Citizens has failed to state a
basis for non-disclosure under this rule.
Second, Citizens has not proven that this information is of
a type “privileged against introduction in judicial proceed-
ings.” In fact, all that Citizens has averred is that the
Circuit Court denied discovery of this information. Although the
basis on which the Circuit Court premised its order denying
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discovery is potentially important to the Board’s determination,
Citizens fails to state the basis on which that court denied
discovery, or whether the denial was total or partial. There are
many bases upon which a tribunal may deny discovery, whether
totally or in part, and just because a court has done so does not
render a parallel denial appropriate before the Board. The basis
for the court’s denial (e.g., relevance, timing, etc.) is
possibly irrelevant before the Board. For example, the Agency
alleges that Judge Curry denied discovery because he rendered his
final decision on the merits of Glenview’s petition in that
case. Agency July 10, 1989 Supplement to Objection at 1 & 3.
Further, even if the Board were to adopt Citizens’ apparent
interpretation of Board procedural rule lOl.lGl(a)(2), i.e.,
“information that has beenj privileged against introduction in
judicial proceedings” (as opposed to “information that is
capable of being privileged against introduction in judicial
proceedings”), Citizens’ failure to show that the Cook County
Circuit Court disallowed discovery on the basis of some
particular privilege is fatal to its assertion before the Board.
Finally, with regard to Citizens’ assertion that the
information which it now seeks to protect is “confidential data”
within the meaning of Board procedural rule lOl.161(a)(3),
Citizens has similarly failed to show exactly how that
information is confidential within the meaning of the rule, and
how its disclosure would adversely affect Citizens’ business
interests. The full text of Section lOl.l6l(a)(3), which derives
from Section 7(a)(4) of the Environmental Protection Act, Ill.
Rev. Stat. ch. 111—1/2, par. 1007(a)(4) (1989), states as
follows:
Information concerning secret manufacturing
processes or confidential data submitted by
any person under the Act.
13 Ill. Reg.
——
(July 21, 1989) (effective
July 10, 1989, 35 Ill. Adm. Code
l0l.l6l(a)(3)); see Ill. Rev. Stat. ch. 111-
1/2, par. l007(a)(4) (1989).
In context, it is clear that the type of “confidential data”
contemplated is not at issue here. Further, assuming, arguendo,
that it was, Citizens fails to claim with any particularity that
would justify non—disclosure, exactly how it has held this
information as confidential and how its disclosure would
adversely affect its business interests.
In its July 11, 1989 response, Citizens asserts that the
Agency “has no standing to object to non—disclosure,” asserting
that because the Agency has gained copies of the answers, it “has
no valid reason for objection to non-disclosure.” Citizens’ July
11, 1989 Response to Agency Objection at 2—3. Citizens then
proceeds to assert as follows:
101—45
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Nowhere does IEPA claim prejudice to it or
party to this case, if Citizens’ request for
non—disclosure is granted. Nowhere does IEPA
cite case law which would support its asser-
tion that non—disclosure could impair the
validity of any PCB Order, and there is none.
Id. at 7 (emphasis in original).
The Board believes that this argument misses a vital point:
All files, records, and data of the Agency,
the Board, and the Department shall be open to
reasonable public inspection and may be copied
upon payment of reasonable fees to be
established where appropriate by the Agency,
the Board, or the Department, except for the
following:
1. Information which constitutes a trade
secret;
2. Information privileged against introduc-
tion in judicial proceedings;
3. Internal communications of the several
agencies;
4. Information concerning secret manufac-
turing processes or confidential data
submitted by any person under this Act.
Ill. Rev. Stat. ch. 111 1/2, par. 1007(a)
(1989); see also 40 CFR 2.304 (1988).
This provision expands the interest in the disclosure or non-
disclosure of Citizens’ answers beyond that of the parties
involved, to include the interest of public at large. Further,
this provision gives the Agency itself a vital interest in
whether or not it must disclose those answers now resident in its
files if it should receive a request by a member of that public.
For the foregoing reasons, the Board hereby denies Citizens’
Applications for Non—disclosure of the answers to Agency
Interrogatories 1, 2,3, 12, and 20. The Board has given
Citizens this third opportunity to state a cognizable basis for
non—disclosure of this information. Citizens’ three filings of
June 1, 20, and 29, 1989 do not convince the Board that non-
disclosure is warranted. The Board believes that the Circuit
Court of Cook County is the proper forum to seek protection of
that tribunal’s jurisdiction and orders.
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The Board will continue to protect the subject information
against disclosure for ten days so that Citizens may have an
opportunity to seek a restraining order from the Circuit Court.
Absent an order of the court to the contrary, the Board will no
longer hold the subject documents as confidential at the end of
this ten—day period, and it will place those documents in those
portions of its files that are open to public inspection and
copying.
IT IS SO ORDERED
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify ~h~at the above Order was adopted on
the
~
day of
_______________________
,
1989, by a vote
of ~-c
.
/ 71
/7
/~
/
Dorothy
;~~-~-71
M. ,~uinn,
71,
Clerk
7/71~-~i
Illinois P~4ution Control Board
101—47