Eight-year-old right to know case resolved

BY LINDA RUSH
THE SOUTHERN

The public's right to know came out a winner in a unanimous ruling by
the Illinois Supreme Court Thursday.

After more than eight years of litigation and appeals, The Southern
Illinoisan has won its lengthy court battle to obtain Illinois
Department of Public Health data about incidences of neuroblastoma, a
rare childhood cancer, from the department's cancer registry.

The Illinois Supreme Court ruled unanimously Thursday that the
department must comply with the newspaper's Freedom of Information Act
(FOIA) request for three categories of information that could help
identify "clusters" of cancer cases.

The Southern had sought the data in an attempt to determine whether
there are high incidences of childhood cancers near sites known to
contain coal tar or other known carcinogens. Some of those are in
Southern Illinois.

Dennis DeRossett, publisher of The Southern, said Thursday's decision
is a victory for the public as well as the newspaper.

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"While The Southern Illinoisan was the plaintiff, we're actually the
plaintiff for the public's right to know," DeRossett said.

Don Craven, the newspaper's attorney, said, "This is a very good day
for The Southern and it's a very good day for the public. There are
some true believers among us who would say this is what newspapers are
supposed to do."

The newspaper has sought the information since October 1997, when it
made a request under the Freedom of Information Act.

The Southern did not seek names of cancer patients, but merely the
type of cancer, date of diagnosis and ZIP code of each person on the
registry from 1985 to the present. The newspaper said it was not its
intent, nor would it attempt to identify individual patients based on
data from the cancer registry.

IDPH denied that request, claiming the data could be manipulated to
identify individual patients. The newspaper then filed suit in January
1998 in Jackson County Circuit Court.

Judge Kimberly Dahlen ruled in favor of the newspaper, but the IDPH
continued to fight the ruling. The appellate court in Mount Vernon
overturned the initial decision and remanded the case to Jackson County.

In June 2002 Judge William Schwartz ordered the agency to release the
records. In November, Schwartz also ordered IDPH to pay the
newspaper's legal fees, calling the agency's stance "obstreperous."
IDPH then took its fight to the state's Supreme Court.

The newspaper's original request was filed in the wake of a civil
lawsuit filed by several families in Taylorville. Those families
suspected that their children's cancer resulted from coal tar at a
nearby utility plant. "The plaintiffs showed a link" between the
cancers and the contaminants "and won a settlement," Craven said. The
Southern wanted to find out if children in other areas of the state
were similarly at risk.

Craven said it was a natural progression to seek data to determine if
there are other "cancer clusters" in the state, around sites with
contamination, either from coal tar or other carcinogens. "The best
news of all," he said, "would be if we get to the end of the road and
there are no similar problems." But if there are problems connected
with the sites, he added, the public has a right to know.

"We are obviously very pleased with the decision," Craven said. "It's
been eight and a half years" since the newspaper first filed its
request. The Illinois Press Association, The Associated Press, Copley
Press, Inc., Gannett Company Inc. and the Tribune Company also filed
briefs as amici curiae, or friends of the court, though they were not
directly involved in the litigation, he said.

"I think it's a victory on several levels. It's a victory for The
Southern and for all news media, but it's also a victory for the
people of these communities, who may be able to tell what is causing
illnesses" by having access to the registry.

In its arguments, the public health department used Dr. Latanya
Sweeney, a professor of computer science and public policy Carnegie
Mellon University who testified that, by using only the three
information fields (ZIP code, type of cancer and date of diagnosis)
requested by The Southern, she was able to determine names of most of
the patients. But she had used other software, valued at thousands of
dollars, and techniques that others lacking her expertise - including
a Ph.D. in computer science from MIT - would not be able to duplicate,
the court found.

Melaney Arnold, who is in charge of media relations for IDPH, said,
"We are very disappointed and we are exploring all options," to avoid
releasing the data. Those options, she said, could include legislation.

linda.rush@...

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