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bf7fa4fe-8a85-4bb1-94f2-ea6420f5689e | . Standard of Review Whether or not we, as an appellate court, have subject matter jurisdiction over an appeal is a matter that we consider de novo. See In re Estate of Hughes, 2020 IL App (5th) 190390, ; Todd v. Chaviano, 2019 IL App (5th) 170081, . “[T]his issue, by its very nature, is one that the trial court did not consider and, thus, we review it de novo or on a blank slate.” People v | Doe_v_Readey_2023-10-27.txt |
d25c1028-c513-4ee3-aea1-2f91644b45a3 | . Hearring, 2022 IL App (1st) 192064, . C. Statute at Issue The appellant here asserts jurisdiction under Rule 307, which provides, in relevant part: “(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[ | Doe_v_Readey_2023-10-27.txt |
9d6dbfa5-ee3c-4ee3-b8d2-f7a276b5aeea | .] * * * Except as provided in paragraphs (b) and (d), the appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal ***. *** (b) Motion to Vacate. If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order | Doe_v_Readey_2023-10-27.txt |
7a28f00b-e0fe-4e2b-828c-cd76b02d65a5 | . An appeal may be taken if the motion is denied, or if the court does not act thereon within 7 days after its presentation. The 30 days allowed for taking an appeal and filing the Rule 328 supporting record begins to run - 7 - from the day the motion is denied or from the last day for action thereon.” Ill. S. Ct. R. 307(a)-(b) (eff. Nov. 1, 2017) | Doe_v_Readey_2023-10-27.txt |
e7fbceb5-b062-4010-a9c9-25f8e3b0e75c | . Defendant argued in the “statement of jurisdiction” (Ill. S. Ct. R. 341(h)(4) (eff. Oct | Doe_v_Readey_2023-10-27.txt |
da6e7e0a-bf63-4def-b231-95107c4be1a6 | . 1, 2020)) section of his initial brief:8 (1) that the April 25, 2023, order was an interlocutory order refusing to dissolve an injunction, pursuant to Rule 307(a)(1); (2) that, pursuant to subsection (a), the appeal from the April 25 order had to be perfected within 30 days; and (3) that defendant did just that by filing a notice of appeal on May 15, 2023 | Doe_v_Readey_2023-10-27.txt |
6a14c58e-10cb-4dfd-8aa0-ac73bd2defb8 | .9 In her appellate brief, plaintiff argued that subsection (b) of Rule 307 governs here. Subsection (b) states that it applies when “an interlocutory order is entered on ex parte application,” which is what happened in the case at bar. Ill. S. Ct. R. 307(b) (eff. Nov. 1, 2017) | Doe_v_Readey_2023-10-27.txt |
8dfdf0f4-b0cd-4d32-b445-4fae55c8e3a3 | . The first line of subsection (b) states, in full: “If an interlocutory order is entered on ex parte application, the party intending to take an appeal therefrom shall first present, on notice, a motion to the trial court to vacate the order.” Ill. S. Ct. R. 307(b) (eff. Nov. 1, 2017) | Doe_v_Readey_2023-10-27.txt |
93893cb5-afee-4444-81fa-9d56548f6e64 | . Plaintiff seems to interpret this line to mean that, when the challenging party is first “on notice” of the ex parte order, it must present a motion to the trial court to vacate the order, and she argues that defendant failed to act in a timely fashion | Doe_v_Readey_2023-10-27.txt |
ba109a56-0410-4d4a-864d-d1b5a2265b1b | . Plaintiff appears to be arguing that the phrase “on notice” refers to when the party must present the motion, as opposed to how the motion should be presented. We do not read the rule that way. The phrase “on notice” modifies the word it immediately follows, namely, “present,” and requires the presentation of the vacating motion to be “on notice | Doe_v_Readey_2023-10-27.txt |
21985d44-7bce-4336-8f44-cedc8f57a439 | .” The word “on” is used as a preposition to indicate that the notice is in contact with or supported by something else: in this case the “motion” not the “ex parte order.” Thus, in the case at bar, the vacating motion appears to be on notice, since the motion itself contained a certificate of service, and the resulting order stated that both parties were present through counsel | Doe_v_Readey_2023-10-27.txt |
d020bdfa-a8eb-4fa1-be65-1838878ae5e0 | . We acknowledge that it is odd to impose a strict 30-day time limit in subsection (a) and then, in subsection (b), seemingly permit another party to sit on its hands for weeks or months without limit after learning about an ex parte order | Doe_v_Readey_2023-10-27.txt |
05228ddd-be78-4134-a849-d8715a8075b0 | . We recognize that a good argument could have been made that interpreting the two subsections as a unified whole might possibly require finding that a party, who intends to take an appeal from an ex parte order, must first present a motion to vacate within 30 days of learning of that order | Doe_v_Readey_2023-10-27.txt |
090e9832-51ef-49f1-980f-ca09fe7ee29f | . However, plaintiff here did not make such an argument, and she does not offer any case law, cites to secondary sources, dictionaries or grammatical texts, arguments by analogy, or other citations, except for the mere assertion that defendant failed to move in a timely fashion after he was “on notice” of the ex parte order | Doe_v_Readey_2023-10-27.txt |
60aacf03-0b25-4749-85f0-716499c77d50 | . A reviewing court is entitled to have issues clearly defined with relevant authority cited. Lozman v. Putnam, 379 Ill. App. 3d 807, 824 (2008). It is not necessary to decide an issue where a party has waived the issue by failing to offer case citation or other support. Lozman, 379 Ill. App. 3d at 824 | Doe_v_Readey_2023-10-27.txt |
0ee07161-74f3-4439-b380-dccf82ebf667 | . “This court has repeatedly held that a party waives a point by failing 8Defendant argued jurisdiction under subsection (a) in his initial appellate brief and argued jurisdiction under subsection (b) in his reply brief. Generally, “[p]oints not argued” in an appellant’s initial brief “are forfeited and shall not be raised in the reply brief.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) | Doe_v_Readey_2023-10-27.txt |
099c0875-ac32-431c-8fb6-6d4953a9a72b | . 9The statement of jurisdiction in defendant’s brief stated that the notice was filed on May 17, 2022, but this appears to be a typo. - 8 - to argue it.” Lozman, 379 Ill. App. 3d at 824; Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (points not argued are waived) | Doe_v_Readey_2023-10-27.txt |
15004ab5-8cdd-4472-b6de-1b18f2af1d80 | . It is apparent from the record before us, that the following facts are beyond dispute: (1) that the December 29 order was injunctive as contemplated by Rule 307(a)(1); (2) that the December 29 order was an interlocutory order entered ex parte, as contemplated by Rule 307(b); (3) that defendant moved on April 13, 2023, to reconsider the December 29 order and in the alternative to vacate it; (4) | Doe_v_Readey_2023-10-27.txt |
65b57417-e90f-417b-9420-36badeb6510f | that the trial court entered an order on April 25 stating that defendant’s motion “to Reconsider” was denied; and (5) that defendant filed a notice of appeal on May 15, which was within 30 days of the April 25 order | Doe_v_Readey_2023-10-27.txt |
da08f24d-edfe-4036-b62d-b9a7f53f272f | . Based on these undisputed facts, we find that we have jurisdiction to hear the appeal of the April 25 order. II. Standard of Review and the Appellate Record Having found jurisdiction to hear this appeal, we turn to the substantive issues before us, starting first with the appropriate standard of review | Doe_v_Readey_2023-10-27.txt |
a760fcfb-f407-4dbf-9e34-80d68322662c | . It is well established that a refusal to modify an order protecting information from disclosure is subject to an abuse-of-discretion standard of review. Skolnick, 191 Ill. 2d at 224; Doe No. 1 v | Doe_v_Readey_2023-10-27.txt |
62c949b8-2994-4d1e-a5f1-43f2660262ef | . Northwestern Memorial Hospital, 2014 IL App (1st) 140212, (a trial court’s order permitting or denying a party the ability to proceed anonymously under section 2-401(e) will be reversed only for an abuse of discretion). An abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it. People v | Doe_v_Readey_2023-10-27.txt |
2e12a188-48d8-4031-b76e-033389f6bda0 | . Woodson, 2023 IL App (1st) 191353, . In determining whether the trial court abused its discretion, a reviewing court looks to the trial court’s “stated justification for refusing to modify” the order. Skolnick, 191 Ill. 2d at 226. In the case at bar, the one-sentence April 25 order did not provide any reasons at all | Doe_v_Readey_2023-10-27.txt |
d797753e-9dd4-438a-8d8f-d04f771144fd | . The losing party drafted the order without any stated reasons, although a lack of stated reasons may itself be a ground for reversal—i.e., for his winning a reversal on appeal. In light of this anomaly, we cannot find that a lack of stated reasons constitutes an abuse of discretion here | Doe_v_Readey_2023-10-27.txt |
468495d0-df17-4e73-8ab3-bb717fbb616d | . Where no transcript or bystander’s report of the proceedings was provided to us, and where no reasons were stated in the order itself, we presume that the trial court acted appropriately and that the reasons for its denial were provided on the record. Corral v. Mervis Industries, Inc., 217 Ill | Doe_v_Readey_2023-10-27.txt |
56514b25-8be1-47eb-ba34-765fdcfe741f | . 2d 144, 157 (2005) (“Without an adequate record preserving the claimed error, the reviewing court must presume the circuit court had a sufficient factual basis for its holding and that its order conforms with the law.”) | Doe_v_Readey_2023-10-27.txt |
63d4a67d-ada0-4758-9c56-4c2fbc98173d | . In her brief to us, plaintiff argues, “Defendant’s counsel now cannot fairly contend that the trial court did not consider all the facts, especially when [d]efendant’s counsel offers no court transcript to show otherwise.” On appeal, it is generally the appellant’s burden to provide the reviewing court with a sufficient record to establish the error that he complains of. Webster v | Doe_v_Readey_2023-10-27.txt |
32770b3f-f376-4d50-b19e-f6c8ad9f8891 | . Hartman, 195 Ill. 2d 426, 436 (2001). “[A] reviewing court cannot look beyond the record and speculate on what may have occurred in the trial court.” Webster, 195 Ill. 2d at 436. “A court of review is limited to the record before it.” Webster, 195 Ill. 2d at 436. We “will not reverse a trial court’s decision on the basis of speculation and conjecture.” Webster, 195 Ill. 2d at 435 | Doe_v_Readey_2023-10-27.txt |
216c98b9-39ff-4385-9e9b-f17881a5d4fd | . Defendant’s motion to reconsider or vacate made factual allegations that a trial court may have needed to resolve before deciding the motion | Doe_v_Readey_2023-10-27.txt |
ef29ae9c-de58-4f17-b3da-9398c818b802 | . For example, defendant’s motion alleged that “the facts establish that [p]laintiff not only made her identity known to the public before she petitioned the Court to appear under a fictitious name, she also made the material - 9 - allegations in her complaint known to the public through an affidavit executed and filed in her own name | Doe_v_Readey_2023-10-27.txt |
25d22e8d-b32a-4789-9935-677e78c82099 | .” Defendant then cited her attached affidavit, which states, among other things, that the abuse she received from defendant empowered her “to help start a podcast relating to not accepting abuse from men.” We do not know how the trial court resolved the factual issue regarding the degree to which plaintiff had publicized her name | Doe_v_Readey_2023-10-27.txt |
c220d796-40d2-446f-9962-7a09fc9a3640 | . We do not know what plaintiff argued before the trial court in response to defendant’s motion, since neither her written response (if she filed one)10 nor a transcript of the hearing is in the record before us. Without this information, it is impossible for us to find an abuse of discretion by the trial court for allegedly failing to vacate the original order | Doe_v_Readey_2023-10-27.txt |
72f02a1f-e4f3-43b9-839e-6a7bf56f6024 | . In addition, defendant’s motion to reconsider cited Doe v. Cook County, Illinois, 542 F. Supp. 3d 779, 785 (N.D. Ill. 2021), for the proposition that a party who has already made her name known to the public cannot establish good cause, and his appellate brief argues that at least six of the Doe factors favor him | Doe_v_Readey_2023-10-27.txt |
9efb5c7e-cce9-4ea7-9069-f64eb7a3e740 | . First, Doe provided a “non-exhaustive” list of 13 factors that federal courts had previously considered to determine whether a party could proceed anonymously in federal court. Doe, 542 F. Supp. 3d at 785 (identifying 13 factors that federal courts had considered, including “[w]hether the movant’s identity has been disclosed to the public or kept confidential”) | Doe_v_Readey_2023-10-27.txt |
d076c64d-9888-49aa-80e8-22269c024b2b | . If plaintiff’s identity was already known to the public, this factor would weigh in defendant’s favor | Doe_v_Readey_2023-10-27.txt |
43fa5b3b-efda-49a5-910f-24870daf6c58 | . However, a number of the other federal factors listed by Doe would appear to weigh in plaintiff’s favor, including (1) “[w]hether the case involves a highly sensitive and personal matter or requires the disclosure of the utmost intimacy,” (2) “whether denying the motion would increase the likelihood that similarly situated plaintiffs would be chilled from bringing similar claims,” and (3) | Doe_v_Readey_2023-10-27.txt |
28ee755e-ed91-4124-aa3b-43fba4fe1a5c | “[w]hether the movant is a minor, or was a minor at the time of the conduct at issue | Doe_v_Readey_2023-10-27.txt |
80603db8-a679-456b-972f-e7b411e9bf62 | .” Doe, 542 F. Supp. 3d at 785. Without knowing what factors the trial court considered or how it weighed and balanced the factors it did consider, we cannot find it abused its discretion. The place to resolve factual disputes is in the trial court, not a court of review | Doe_v_Readey_2023-10-27.txt |
8865389d-190c-492b-ad7d-9472919e5faf | . Since we lack a sufficient record to evaluate the trial court’s action in denying defendant’s motion, we cannot find an abuse of discretion and must affirm. CONCLUSION For the foregoing reasons, we affirm the trial court’s denial of defendant’s motion to vacate the injunctive order. Affirmed | Doe_v_Readey_2023-10-27.txt |
f50ed6d6-ca26-4ffd-b36a-3cdf498c5355 | . 10As we already noted above, the record does not indicate, one way or the other, whether plaintiff filed a written response, and the order was issued just 12 days after defendant’s motion was filed. Supra . If plaintiff did not file a response, that makes the need for a transcript even more clear. The trial court’s order stated that it was fully advised | Doe_v_Readey_2023-10-27.txt |
126ab188-2552-403e-a8fc-e2d01d6fb717 | . By process of elimination, the only place that would reflect what the court was fully advised of, if no response was filed, would be in a transcript or bystander’s report. - 10 - JUSTICE HYMAN, specially concurring: I agree with the majority’s decision | Doe_v_Readey_2023-10-27.txt |
095087c2-57e0-4801-8ef1-a2f3f079540c | . I write separately to address the rights of an alleged victim of sexual violence to proceed anonymously with a complaint under the Gender Violence Act. 740 ILCS 82/1 et seq. (West 2020). In a world where the Internet already has created privacy, confidentiality, and security issues, we now enter the age of artificial intelligence, exacerbating these issues and making secrecy vital | Doe_v_Readey_2023-10-27.txt |
d9686e86-aedc-4227-9aee-990e1a35ecb9 | . No longer, in famous observation of Justice Brandeis almost 100 years ago, is “right to be let alone” enough. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). In the twenty-first century, the right to be left unknown will join the right to be let alone as a vexing subject of intense legal debate | Doe_v_Readey_2023-10-27.txt |
f3d9c5a5-b7e9-4806-9afc-c059126bc521 | . Indeed, the question of anonymity has taken on increased significance as court records have become readily available to the general public through even casual Internet searches. As the appellant notes in his brief, a Google search of a litigant’s name can produce an untold number of articles describing the lawsuit. Those articles may be available online for a lifetime, unless kept confidential | Doe_v_Readey_2023-10-27.txt |
d9245724-82ac-4bc7-bcdd-bb17c4469513 | . Although Illinois case law offers slight guidance on petitions to proceed anonymously, an alleged victim deserves anonymity whether or not their identity has been divulged elsewhere, including in a case not brought by them. Good Cause Under Section 2-401 Because of the presumption of openness in judicial proceedings (Chicago Tribune Co. v | Doe_v_Readey_2023-10-27.txt |
fb15b533-80e9-4178-a7e8-a07edae63ab6 | . Cook County Assessor’s Office, 2018 IL App (1st) 170455, ), the law disfavors suing or defending under a pseudonym in that the identity of the parties relates to the public nature of civil judicial proceedings. A.P. v. M.E.E., 354 Ill. App. 3d 989, 1003 (2004) (citing Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997)) | Doe_v_Readey_2023-10-27.txt |
f2d46386-eabd-44d9-a604-79a5cebb3966 | . Thus, generally, parties for whom a pleading seeks relief are identified by name. 735 ILCS 5/2-401(c) (West 2020). Section 2-401(e) of the Code of Civil Procedure provides an exception. This section allows a party to appear under a fictitious name on application and for good cause. 735 ILCS 5/2- 401(e) (West 2020) | Doe_v_Readey_2023-10-27.txt |
babf15b6-f16d-4366-b1f2-8a27a50649d9 | . Without a statutory definition of “good cause,” courts “look to whether the party seeking to use a pseudonym has shown a privacy interest that outweighs the public’s interest in open judicial proceedings.” Doe v. Doe, 282 Ill. App. 3d 1078, 1088 (1996) Usually, anonymity will be granted in “exceptional” situations “involving matters of a highly personal nature.” Doe, 282 Ill. App. 3d at 1088 | Doe_v_Readey_2023-10-27.txt |
9d1a998a-1ef4-4732-b404-8d28677c0fbb | . Whether a plaintiff’s particular situation amounts to “exceptional” is determined on a case-by-case basis. Doe No. 1 v. Northwestern Memorial Hospital, 2014 IL App (1st) 140212, . The fundamental question involves whether the moving party has shown a privacy interest outweighing the public’s interest in open judicial proceedings. Doe, 282 Ill. App. 3d at 1088 | Doe_v_Readey_2023-10-27.txt |
eaf9819d-5904-4021-a8bf-ac853c17706b | . The standard of review for the trial court’s determination stands, absent an abuse of discretion. Northwestern Memorial Hospital, 2014 IL App (1st) 140212, | Doe_v_Readey_2023-10-27.txt |
168d49cf-c7dc-4b89-aefd-e57bfbfab020 | . Although no reported Illinois cases address whether a claim of sexual violence constitutes an “exceptional” situation warranting the use of a pseudonym, federal courts in Illinois have recognized that allegations of sexual assault are “highly sensitive, personal matters that involve the disclosure of information of the utmost intimacy.” Doe v. Cook County, 542 F. Supp. 3d - 11 - 779, 786 (N.D | Doe_v_Readey_2023-10-27.txt |
3ceb265b-d733-4915-ad99-b990c1c6f35e | . Ill. 2021); accord Doe No. 2 v. Kolko, 242 F.R.D. 193, 195 (E.D.N.Y. 2006) (while the Seventh Circuit disfavors fictitious names, it has “recognized that sexual assault victims are a paradigmatic example of those entitled to a grant of anonymity” (citing Doe, 112 F.3d at 872)). Even so, a sexual violence allegation alone has been considered not dispositive. See Cook County, 542 F. Supp | Doe_v_Readey_2023-10-27.txt |
b13c1eee-eaf1-4170-bc08-ffcf8e6f4930 | . 3d at 786 (“allegation of sexual assault alone does not end the inquiry”); Doe v. Skyline Automobiles, Inc., 375 F. Supp. 3d 401, 405-06 (S.D.N.Y. 2019) (“other factors must be taken into consideration and analyzed in comparison to the public’s interest and the interests of the opposing parties”). Illinois has taken steps to protect individuals’ private information | Doe_v_Readey_2023-10-27.txt |
5e433208-1e94-4ba5-ad16-66d26af04db0 | . Examples include the Personal Information Protection Act (815 ILCS 530/1 et seq. (West 2022)), the Biometric Information Privacy Act (740 ILCS 14/1 et seq. (West 2022)), and two laws regulating data obtained by artificial intelligence, the Artificial Intelligence Video Interview Act (820 ILCS 42/5 (West 2022)) and the Illinois Health Statistics Act (410 ILCS 520/1 et seq. (West 2022)) | Doe_v_Readey_2023-10-27.txt |
10026538-edf0-452f-832c-76934712e907 | . Nonetheless, the law cannot keep pace with the speed of innovations, compromising privacy. Corinne Moini, Protecting Privacy in the Era of Smart Toys: Does Hello Barbie Have a Duty to Report?, 25 Cath. U.J.L. & Tech. 281, 299 (2017) (asserting that privacy torts do not provide adequate protection for privacy implications of artificial intelligence and data collection) | Doe_v_Readey_2023-10-27.txt |
cb51a81c-7a08-4b67-9c4c-16848706fc54 | . When methods of intruding into private lives and stripping anonymity outpace lawmakers’ ability to address them, courts have a duty under existing rules of procedure to protect sexual assault and abuse victims. Plaintiff, a minor when the alleged sexual assault occurred, undeniably constitutes an “exceptional” situation | Doe_v_Readey_2023-10-27.txt |
62bbe4d1-566b-4cce-b6f7-342831d2c941 | . The lawsuit involves matters of a highly personal nature warranting anonymity. Indeed, Illinois Supreme Court rules acknowledge the need for anonymity in cases involving minors. For instance, the Illinois Supreme Court rules provide that minors shall be identified by first name and last initial or by initials in adoption cases (Ill. S. Ct. R. 663 (eff. Oct | Doe_v_Readey_2023-10-27.txt |
9c606a7e-b303-4608-a365-d57b04c66697 | . 1, 2001)) and appeals involving the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 2022)). Ill. S. Ct. R. 660(c) (eff. Oct. 1, 2001). Moreover, the Style Manual for the Supreme and Appellate Courts of Illinois (5th ed. rev. 2017) provides for using the minor’s initials in cases involving the Department of Children and Family Services | Doe_v_Readey_2023-10-27.txt |
3f884eac-fdc8-4adf-890f-27c25beff979 | . These rules reflect the need to protect the identity of a minor in matters of a personal nature that involve potentially stigmatizing issues such as termination of parental rights or juvenile criminal conduct. An alleged victim of sexual violence has similar reasons for protecting their identity when filing a lawsuit under the Gender Violence Act | Doe_v_Readey_2023-10-27.txt |
a31c9590-48fa-4792-9cea-c90c5ea549db | . The alleged conduct involves highly personal conduct likely to embarrass and stigmatize, regardless of its availability on the Internet. Thus, I would find that an alleged victim has a compelling reason to proceed anonymously when filing a complaint. Similarly, an accused perpetrator should be able to seek anonymity on petition | Doe_v_Readey_2023-10-27.txt |
b83e9db6-ec84-427d-a2b1-a6c20f67e6ad | . Waiver The appellant contends that Doe waived her right to proceed anonymously because she filed an affidavit supporting a motion to dismiss the defamation lawsuit the appellant filed against his other accusers. (The appellant added Doe as a defendant in the defamation litigation after she filed her complaint.) I must disagree that she waived her right | Doe_v_Readey_2023-10-27.txt |
7af005aa-3796-4fdd-9ce0-1ca96c8272b0 | . When Doe filed the affidavit in the defamation case, she had yet to file her complaint against defendant. The decision to help another litigant should not bar an individual from - 12 - proceeding anonymously in their own lawsuit, regardless of an affidavit in another proceeding. Filing suit creates a different level of exposure than filing an affidavit in support of others | Doe_v_Readey_2023-10-27.txt |
bae5b739-b9a8-44f4-bf1f-3c15ad6d0d56 | . Imposing waiver would chill alleged victims of sexual violence from coming forward, thereby undermining Illinois policy. For example, the Sexual Assault Incident Procedure Act (725 ILCS 203/15 (West 2020)) requires Illinois law enforcement agencies to develop and implement written policies for responding to sex crimes using evidence-based, trauma- informed, and victim-centered protocols | Doe_v_Readey_2023-10-27.txt |
b8cb5e15-7d8a-456d-b26e-85ef2ea721fa | . In addition, laws protect college students who survive sexual violence from public disclosure of communications they make in confidence to confidential advisors (735 ILCS 5/8-804(c) (West 2022)) and prohibit hospitals treating sexual assault victims from directly billing the victims for the services, communicating with victims about a bill, or referring overdue bills to collection agencies or | Doe_v_Readey_2023-10-27.txt |
27284f75-9663-4687-be28-51887ca69925 | credit reporting agencies | Doe_v_Readey_2023-10-27.txt |
f75fe449-9ff9-48ad-b988-f14d6912d6db | . 410 ILCS 70/7.5(a)(1)-(4) (West 2022). These recently enacted laws encourage victims to report sexual violence. Yet, should a victim waive anonymity by assisting another alleged victim, the intent of these laws would be thwarted. An alleged victim of sexual violence should not have to choose between assisting others in the legal process and their privacy in their case. | Doe_v_Readey_2023-10-27.txt |
8ea3c040-ee35-4ba7-9479-3832c63566bb | UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, et al., Defendants. Case No. 1:19-cv-02906 (TNM) MEMORANDUM OPINION The Roman god Janus famously has two faces. One looks backward, toward the past; the other looks forward, toward the future | Electronic_Privacy_Information_2020-06-01.txt |
0633669e-cfc6-4b18-bbcb-e8f5a12ddcbe | . Mythologists understand his two-faced depiction as complementary, not contradictory.1 It means that every beginning has an ending, every ending a beginning. Like a doorway, Janus looks both ways. So, too, with our Nation’s open government laws | Electronic_Privacy_Information_2020-06-01.txt |
b56d999c-505a-46e5-8357-a2a5cdfc384f | . In general, the Freedom of Information Act (“FOIA”) is backward looking, requiring agencies to disclose historical documents kept by the agency upon request from a private party | Electronic_Privacy_Information_2020-06-01.txt |
02ff56d3-8705-4193-93c9-c5f23e9e8af2 | . Under the Federal Advisory Committee Act (“FACA”), certain federal advisory bodies are subject to forward-looking publication requirements, such as giving notice of their meetings, opening them to the public, and proactively making their records publicly available. But can the same body be subject to both laws? 1 Donald L. Wasson, Janus, Ancient History Encyclopedia (Feb. 6, 2015), https://www | Electronic_Privacy_Information_2020-06-01.txt |
f9763b20-9489-4870-8c5a-6c06efaa2afa | .ancient.eu/Janus/. 2 The Court previously held that the National Security Commission on Artificial Intelligence is an agency subject to FOIA. EPIC v. Nat’l Sec. Comm’n on Artificial Intelligence (“NSCAI”), 419 F. Supp. 3d 82, 83 (D.D.C. 2019). Given that holding, the Commission now argues that it cannot possibly also be subject to FACA’s forward-looking disclosure obligations | Electronic_Privacy_Information_2020-06-01.txt |
b61e6b83-28b1-472b-a186-fc73d587338d | . Today, the Court holds that, like Janus, the Commission does indeed have two faces, and that Congress obligated it to comply with FACA as well as FOIA. The Electronic Privacy Information Center (“EPIC”) sued to enforce the Commission’s obligations under both FOIA and FACA. The Court denied the Government’s motion to dismiss the FOIA claims. Id | Electronic_Privacy_Information_2020-06-01.txt |
726cad5e-772e-4e99-83ba-2d3ed62df9e6 | . The Government now moves to dismiss EPIC’s FACA claims and its related claims under the Administrative Procedure Act (“APA”). EPIC moves for summary judgment on these counts. While the Court will dismiss the APA claims for lack of jurisdiction, it will grant summary judgment for EPIC on its FACA claims. I. The Court’s previous opinion provides background on the Commission and EPIC’s suit | Electronic_Privacy_Information_2020-06-01.txt |
90e67882-5949-4b63-82d1-425f23fbcb39 | . See NSCAI, 419 F. Supp. 3d at 83–85. A quick refresher is in order. Two years ago, Congress “established in the executive branch an independent Commission to review advances in artificial intelligence, related machine learning developments, and associated technologies.” John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“2019 NDAA”), Pub. L. No | Electronic_Privacy_Information_2020-06-01.txt |
b4cdb947-b6a4-4465-8640-aed12a012514 | . 115-232, § 1051(a)(1), 132 Stat. 1636, 1962 (2018). The Commission is “a temporary organization” under 5 U.S.C. § 3161. Id. § 1051(a)(2). Its 15 members are “appointed for the life of the Commission” and are “Federal employees.” Id. § 1051(a)(4)(A), (6)–(7). 3 Congress instructed the Commission to “consider the methods and means necessary to advance the development of artificial intelligence . | Electronic_Privacy_Information_2020-06-01.txt |
cb40aa51-3a39-4414-b8f9-8277116ec5db | . . to comprehensively address the national security and defense needs of the United States.” Id. § 1051(b)(1). The Commission must report its findings and recommendations to the President and Congress. Id. § 1051(c)(1). The Commission was originally set to end this October, but Congress recently extended its life by a year | Electronic_Privacy_Information_2020-06-01.txt |
0269d6c3-a565-47bd-aa93-3880830f9114 | . See National Defense Authorization Act for Fiscal Year 2020 (“2020 NDAA”), Pub. L. No. 116-92, § 1735(a), 133 Stat. 1198, 1819 (2019). Its next interim report is due by this December and a final report is due next March. Id. § 1735(c)(2)–(3). From its inception, the Commission “has operated almost entirely in secret.” Compl. , ECF No. 1 | Electronic_Privacy_Information_2020-06-01.txt |
e63b2ecc-41d6-4c87-b9b5-10828ced5307 | . It has held several meetings “behind closed doors” and “has failed to publish or disclose any notices, agendas, minutes, or materials for those meetings.” Id. ¶, 59. Last September, EPIC sent a request to the Commission, invoking FOIA and section 10 of FACA, 5 U.S.C. app. 2. Pl.’s Mot. Exs. at 31,2 ECF No. 31-4 | Electronic_Privacy_Information_2020-06-01.txt |
e09dd253-bd8d-4e37-b02c-850f16689599 | . Under FACA, it sought “[c]ontemporaneous access to, and advance Federal Register notice of, all meetings” of the Commission “and any subcomponent thereof.” Id. (citing 5 U.S.C. app. 2 § 10(a)) | Electronic_Privacy_Information_2020-06-01.txt |
a17e14ea-27d9-43d2-a025-67ddbdc5caa4 | . It also asked for “[c]opies of all ‘records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda[s], or other documents which were made available to or prepared for or by’” the Commission “and/or any subcomponent thereof.” Id. (quoting 5 U.S.C. app. 2 § 10(b)). The Commission acknowledged the request but did not otherwise respond. Id. at 34 | Electronic_Privacy_Information_2020-06-01.txt |
80103e69-8a96-48f9-a6c5-67dc83eabe26 | . Two weeks later, EPIC sued. It brought claims under FACA (Counts I and IV), the APA (Counts II, III, and V), and FOIA (Counts VI, VII, and VIII). Compl. ¶–63. It simultaneously moved for a preliminary injunction on its FOIA claims. Mot. for Prelim. Inj. at 2 All page citations refer to the page numbers that the CM/ECF system generates. 4 1, ECF No. 4 | Electronic_Privacy_Information_2020-06-01.txt |
538e4aa8-863e-4d3d-a18b-c432d030633d | . The Court denied the motion, finding that EPIC had failed to show irreparable harm. Tr. of Prelim. Inj. Hr’g at 46–47, ECF No. 22. The Government then moved to dismiss EPIC’s FOIA claims, mainly arguing that the Commission is not an “agency” subject to FOIA, see 5 U.S.C. § 552(f)(1). The Court rejected that argument. NSCAI, 419 F. Supp. 3d at 83 | Electronic_Privacy_Information_2020-06-01.txt |
1aab7c05-f386-4fe6-9f63-346798303ca8 | . The Commission has since begun producing records under FOIA. Joint Status Report at 2, ECF No. 34. The Government now moves to dismiss EPIC’s FACA and APA claims. Defs.’ Mot. at 1, ECF No. 28. These claims are linked, since the APA claims hinge on alleged violations of FACA | Electronic_Privacy_Information_2020-06-01.txt |
9b00ca36-7b4b-42be-937c-5e5310f273f8 | . Counts II and III assert that the Commission’s failure to give notice of its meetings and to open them to the public, see 5 U.S.C. app. 2 § 10(a), violates the APA. Compl. ¶, 129. Count V claims that the Commission’s failure to make its records publicly available, see 5 U.S.C. app. 2 § 10(b), likewise violates the APA. Compl. . All three counts seek injunctive relief under the APA. Id | Electronic_Privacy_Information_2020-06-01.txt |
b981fea8-a7db-44e5-803e-4feeab8315d2 | . ¶, 133, 145. In Counts I and IV, EPIC invokes FACA and the Mandamus Act, 28 U.S.C. § 1361. Like the APA claims, these counts focus on two sets of alleged FACA violations: (1) the Commission’s failure to give notice of its meetings and to open them to the public; and (2) the Commission’s failure to make its records publicly available. Id. ¶, 136 | Electronic_Privacy_Information_2020-06-01.txt |
e78a2c80-c630-4290-b165-b43221499251 | . EPIC seeks writs of mandamus compelling the Commission to comply with FACA. Id. ¶, 139. EPIC responds to the Government’s motion by moving for summary judgment on the FACA and APA claims. Pl.’s Mot. at 1, ECF No. 31. Both motions are ripe for disposition. II. The Government’s motion to dismiss invokes Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.’ Mot. at 1 | Electronic_Privacy_Information_2020-06-01.txt |
194c21ae-0f75-47da-9687-e7a86aabe0e0 | . To survive a Rule 12(b)(1) motion, a plaintiff must establish the 5 Court’s jurisdiction over its claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The Court must “assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat’l Ins | Electronic_Privacy_Information_2020-06-01.txt |
07c2496f-c0da-407e-ab5b-1a26e62c82a8 | . Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). To defeat a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must “treat the complaint’s factual allegations as true and must grant the plaintiff[] the benefit of all inferences that can be derived from the facts alleged.” L. Xia v | Electronic_Privacy_Information_2020-06-01.txt |
a7e9a5c8-8beb-47ed-8c4e-6acbc6b4c7cf | . Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). But the Court need not credit legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. Summary judgment for EPIC is appropriate if it shows that “there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) | Electronic_Privacy_Information_2020-06-01.txt |
2f9fdd2f-3e35-4c7b-b621-d20b546cac9c | . A fact is “material” if it “might affect the outcome of the suit under the governing law” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence “in the light most favorable to the non-moving party.” Brubaker v. Metro. Life Ins. Co | Electronic_Privacy_Information_2020-06-01.txt |
c62ba56f-311b-4dd6-85e1-af67221fcb53 | ., 482 F.3d 586, 588 (D.C. Cir. 2007). III. A. The heart of the dispute here is whether the Commission is an “advisory committee” subject to FACA. But before resolving that, the Court must address some threshold issues. 6 To start, the Court will dismiss EPIC’s APA claims for lack of jurisdiction. “Absent a waiver of sovereign immunity, the Federal Government is immune from suit.” Loeffler v | Electronic_Privacy_Information_2020-06-01.txt |
05d54d2c-2297-47f1-b875-bd4f8af696c2 | . Frank, 486 U.S. 549, 554 (1988). The APA waives sovereign immunity when a party seeks relief against an “agency,” as defined in 5 U.S.C. § 701(b)(1). See 5 U.S.C. § 702; Trudeau v. FTC, 456 F.3d 178, 187 & n.13 (D.C. Cir. 2006). If an entity is not an “agency” under § 701(b)(1), the waiver does not apply and the Court lacks jurisdiction over any APA claims against that entity. Trudeau, 456 F | Electronic_Privacy_Information_2020-06-01.txt |
b4e80da5-b64c-4524-9be8-75081b0e08b0 | .3d at 187 & n.13; see FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in nature.”). So the Court must first determine whether the Commission is an “agency” under § 701(b)(1). See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 98 (1998) (affirming “the necessity of determining jurisdiction before proceeding to the merits”) | Electronic_Privacy_Information_2020-06-01.txt |
812f81f4-e7e3-414b-adf8-ffda3e66dfa5 | . Both parties assume the Court’s previous opinion answered this question in the affirmative. See Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 14, 16 n.2, ECF No. 28-1; Pl.’s Mem. in Supp. of Mot. for Summ. J. (“Pl.’s Mem.”) at 28, ECF No. 31-1. But they are mistaken. The opinion did not hold that the Commission is an “agency” under § 701(b)(1) | Electronic_Privacy_Information_2020-06-01.txt |
f89f21e9-9116-4ce2-89d2-04a4283d63c4 | . It held only that the Commission is an “agency” for purposes of FOIA, 5 U.S.C. § 552(f)(1). The APA and FOIA define “agency” differently. The APA defines an agency as “each authority of the Government.” 5 U.S.C. §§ 551(1), 701(b)(1). FOIA incorporates this definition but also expands it: “‘agency’ as defined in [5 U.S.C | Electronic_Privacy_Information_2020-06-01.txt |
033bbe3a-bcb4-4ede-a274-2fefc0bdc04f | . § 551(1)] includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” Id. § 552(f)(1). 7 The chronology behind these definitions is key | Electronic_Privacy_Information_2020-06-01.txt |
e0797dd4-db23-4a74-9acf-82db5219fcd8 | . Before 1974, “each authority of the Government” was the sole definition of “agency” for both the APA and FOIA. See id. § 551(1) (stating that the APA’s definition of “agency” applies “[f]or the purpose of this subchapter,” which includes FOIA, 5 U.S.C. § 552); Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581, 583 (D.C. Cir. 1990). During this period, the D.C | Electronic_Privacy_Information_2020-06-01.txt |
89b2ecd9-1103-484c-9569-355ebe74aef8 | . Circuit interpreted the phrase “each authority of the Government” in § 551(1) to mean “any administrative unit with substantial independent authority in the exercise of specific functions.” Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971).3 So for a few years, Soucie supplied the sole test for “agency” status under FOIA. See Energy Research, 917 F.2d at 584 | Electronic_Privacy_Information_2020-06-01.txt |
145b894a-958c-48b4-b931-918644b3ff36 | . The landscape changed in 1974, when Congress amended FOIA and expanded its definition of “agency.” Pub. L. No. 93-502, § 3, 88 Stat. 1561, 1564 (1974); Energy Research, 917 F.2d at 583. The 1974 amendment is currently codified at 5 U.S.C. § 552(f)(1). The definition of “agency” in § 552(f)(1) applies only “[f]or purposes of this section,” so it is exclusive to FOIA. 5 U.S.C. § 552(f)(1) | Electronic_Privacy_Information_2020-06-01.txt |
0c2083c0-5d89-4938-a9dd-12eed4c3b662 | . Indeed, with the language in § 552(f)(1), “Congress sought to encompass entities that might have eluded the APA’s definition in § 551(1).” Energy Research, 917 F.2d at 583. The upshot is that if an entity fits one of the categories in § 552(f)(1)—such as “establishment in the executive branch”—it will not 3 Though Soucie cited only § 551(1), see 448 F.2d at 1073 n | Electronic_Privacy_Information_2020-06-01.txt |