author: JUSTICE WHITE

text:
    GLENN BASS, Plaintiff-Appellant, v. CINCINNATI, INCORPORATED, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0018
    Opinion filed March 15, 1989.

      Joseph R. Curcio, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Schaffenberger, Watson & Peterson, Ltd., of Chicago (Donald G. Peterson and John J. Piegore, of counsel), for appellee.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo and Christine L. Olson, of counsel), for amicus curiae.

   JUSTICE WHITE

delivered the opinion of the court:

This interlocutory appeal, pursuant to Illinois Supreme Court Rule 308 (107 Ill. 2d R. 308), involves four certified questions regarding the scope of discovery and the type of evidence admissible in a products liability action claiming a design defect. In particular, we are asked to determine:

(1) whether evidence of similar post-accident occurrences or injuries involving the same or substantially similar products may be admissible to show that a product is defective;

(2) whether evidence and records of similar post-accident occurrences or injuries involving the same or substantially similar products are discoverable to show that a product is defective;

(3) whether evidence of similar post-accident occurrences or injuries involving the same or substantially similar products may be admissible to show that a manufacturer acted in conscious disregard of the safety of others and should be liable for punitive damages; and

(4) whether evidence and records of similar post-accident occurrences or injuries involving the same or substantially similar products are discoverable to show that a manufacturer’s conduct was willful and wanton.

We answer questions 1 and 2 in the affirmative, and questions 3 and 4 in the negative.

Initially, we consider the contention of defendant, Cincinnati, Incorporated, that the application for leave to appeal, pursuant to Supreme Court Rule 308, was improvidently granted. Citing Voss v. Lincoln Mall Management Co. (1988), 166 Ill. App. 3d 442, 519 N.E.2d 1056, defendant argues that questions involving discovery and evidence disputes are not reviewable under Rule 308. We are aware that discovery orders are not appealable under.Rule 308. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171, 429 N.E.2d 483; Voss, 166 Ill. App. 3d at 452.) However, a distinction exists between questions of law regarding the scope of discovery and evidence, and questions regarding particular discovery and evidentiary rulings of a trial court. We believe that questions of law are reviewable under Rule 308, whereas discovery orders and evidentiary rulings of a trial court are not. (See Meister v. Henson (1987), 151 Ill. App. 3d 1059, 504 N.E.2d 227 (question certified was whether the trial court erred in considering parol or extrinsic evidence as to the intention of the parties in the execution of a release); Hukill v. DiGregorio (1985), 136 Ill. App. 3d 1066, 484 N.E.2d 795 (interlocutory appeal from order denying motion to admit evidence that plaintiff’s failure to wear a safety helmet was a breach of plaintiff’s duty to exercise care for his own safety); Matviuw v. Johnson (1982), 111 Ill. App. 3d 629, 444 N.E.2d 606 (the appellate court considered two questions on review: (1) may the parties introduce into evidence statements made at a meeting, or does the medical studies act, as amended, preclude the introduction of said statements; and (2) are the statements made at the meeting discoverable or does the medical studies act, as amended, preclude discovery of those of those statements); County of Peoria v. Schielein (1980), 87 Ill. App. 3d 14, 409 N.E.2d 89; People v. Finley (1974), 21 Ill. App. 3d 335, 315 N.E.2d 229.) The questions which have been certified for our review are questions of law regarding the scope of discovery and evidence in a products liability action. We believe that these questions are reviewable under Rule 308 and that the application for leave to appeal pursuant to Rule 308 was properly granted. We turn then to the questions certified for review.

Question 1

In question 1, we must determine whether evidence of similar post-accident occurrences or injuries involving the same or substantially similar products may be admissible to show that a product is defective. We believe that such evidence may be admissible.

It is well established in Illinois that evidence of prior accidents is competent to show that the common cause of the accidents is a dangerous or unsafe thing or condition. (Moore v. Bloomington, Decatur & Champaign R.R. Co. (1920), 295 Ill. 63, 67, 128 N.E. 721; Mobile & Ohio R.R. Co. v. Vallowe (1905), 214 Ill. 124, 129, 73 N.E. 416; City of Bloomington v. Legg (1894), 151 Ill. 9, 37 N.E. 696.) In City of Bloomington v. Legg, the Illinois Supreme Court explained the rationale for this rule:

“This court has held such evidence competent, not for the purpose of showing independent acts of negligence, but as tending to show the common cause of these accidents is a dangerous, unsafe thing. Where an issue is made as to the safety of any machinery or work of man’s construction which is for practical use, the manner in which it has served that purpose, when put to that use, would be a matter material to the issue, and ordinary experience of that practical use, and the effect of such use, bear directly upon such issue.” (151 111. at 13.)

To render evidence of similar accidents, resulting from the same cause, competent, it must appear or the evidence must reasonably tend to show that the instrument or agency which caused the injury was in substantially the same condition at the time such other accidents occurred, as at the time the accident complained of was caused. City of Bloomington v. Legg, 151 Ill. at 14.

This rule of evidence has been applied in products liability cases. Thus, in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 441, 396 N.E.2d 534, the Illinois Supreme Court held that the circuit court did not err in admitting evidence of 42 prior accidents involving punctures of LPG tank cars for the purpose of showing the danger of the design. The court observed that “[i]t need not be shown that the accidents occurred in an identical manner. Substantial similarity is all that is required.” (Rucker v. Norfolk & Western Ry. Co., 77 Ill. 2d at 441.) In Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 129, 253 N.E.2d 636, off’d (1970), 46 Ill. 2d 288, the plaintiff was injured when a can of Drano which had not been opened exploded. The Illinois Appellate Court held that evidence of three prior accidents in which a Drano can which had not been opened exploded was competent as tending to show that the common cause of the accidents was a dangerous and unsafe thing. See also Ballweg v. City of Springfield (1986) , 114 Ill. 2d 107, 114, 499 N.E.2d 1373 (holding that evidence of prior occurrences may be admissible to establish the dangerousness of a product); Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 825, 521 N.E.2d 1282 (holding that evidence of prior accidents is admissible to demonstrate that a vehicle is dangerous if the proponent establishes that the accidents occurred in a substantially similar manner); Schaffner v. Chicago & North Western Transportation Co. (1987) , 161 Ill. App. 3d 742, 761, 515 N.E.2d 298; Bastian v. TPI Corp. (N.D. Ill. 1987), 663 F. Supp. 474, 477 (evidence of prior, similar occurrences is admissible to establish the unreasonably dangerous qualities of a defective design of a product for purposes of strict liability).

Evidence of prior accidents is admissible because it tends to show that a product is dangerous or defective. The same rationale applies to evidence of accidents which occur after the accident involving a particular plaintiff. A subsequent accident at the same or a similar place, under the same or similar conditions, is just as relevant as a prior accident to show that the condition was in fact dangerous or defective, or that the injury was caused by the condition. It is common sense that the higher the number of accidents involving a product, the more likely it is that the product is the cause of the accidents and is dangerous or defective. It matters little whether the accidents occurred prior to or subsequent to the accident at issue. In light of the fact that Illinois courts have allowed evidence of prior accidents to be used to show the dangerousness or defectiveness of products, we must hold that evidence of similar post-accident occurrences or injuries involving the same or substantially similar products may be admissible to establish the dangerousness or defectiveness of a product.

We find further support for our holding in the decisions of our sister courts. In Ginnis v. Mapes Hotel Corp. (1970), 86 Nev. 408, 470 P.2d 135, plaintiff brought an action seeking damages for injuries sustained when an automatic door closed upon her while she was leaving a hotel. During the trial, plaintiff sought to call two other persons to testify who had been caught in the same door subsequent to her experience. The lower court refused the request. On appeal, the supreme court of Nevada held that “evidence of subsequent, similar accidents involving the same door are [sic] relevant to causation and a defective and dangerous condition under [the theory of strict tort liability].” (86 Nev. at 408, 470 P.2d at 135.) In Dura Corp. v. Harned (Alaska 1985), 703 P.2d 396, plaintiff was injured when a small portable air tank exploded and severed his left arm. The trial court allowed into evidence two air tanks that had also exploded. The supreme court of Alaska observed that “ ‘[e]vidence of prior or subsequent accidents is relevant to, and may be admissible in, personal injury actions to demonstrate that a defective or dangerous condition existed, provided the incident took place under similar circumstances and their probative value is not outweighed by considerations set forth in Alaska R. Evidence 403.’ ” (703 P.2d at 410, quoting Harned v. Dura (Alaska 1983), 665 P.2d 5, 8 n.8.) The court then held that the trial court did not err by admitting into evidence the two air tanks that had also exploded. See also Simmons v. Southern Pacific Transport Co. (1976), 62 Cal. App. 3d 341, 133 Cal. Rptr. 42 (a subsequent accident at a railroad crossing was admitted to show that the condition of the crossing was in fact dangerous and defective).

In summary, we hold that evidence of similar post-accident occurrences or injuries involving the same or substantially similar products may be admissible to establish that the product is defective. The determination of similarity between occurrences or injuries must be made by the trial court, within the exercise of its sound discretion. The trial court must of course follow the rules of evidence and examine any claims of privilege in determining what evidence is admissible.

Question 2

In question 2, we are asked to determine whether evidence and records of similar post-accident occurrences or injuries involving the same or substantially similar products is discoverable to show the existence of a defect in a product. Preliminarily, we note that the purpose of discovery is to enable counsel to prepare better and evaluate their cases and to eliminate surprise at trial. (United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 104, 441 N.E.2d 1163.) As to the scope of discovery in general, the right of discovery is limited to disclosure regarding matters relevant to the subject matter involved in the pending action. (United Nuclear Corp., 110 Ill. App. 3d at 104.) However, great latitude is allowed in the scope of discovery, and discovery thus includes not only what is admissible at trial, but also that which leads to what is admissible. Snyder v. Lowrey (1986), 141 Ill. App. 3d 30, 32, 489 N.E.2d 899; Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 232, 443 N.E.2d 1125; United Nuclear Corp., 110 Ill. App. 3d at 104.

We have held in response to question 1 that evidence of similar post-accident occurrences or injuries on the same or substantially similar products may be admissible as evidence of the existence of a defect. It is axiomatic that a plaintiff should have access, through discovery, to items which may be admissible or which may lead to evidence admissible at trial. Accordingly, we hold that records and evidence of similar post-accident occurrences or injuries involving the same or substantially similar products are discoverable to show the existence of the defect.

Question 3

The third question that we are asked to consider is whether evidence of similar post-accident occurrences or injuries involving the same or substantially similar products may be admissible to establish that a manufacturer acted in conscious disregard of the safety of others. We believe that such evidence is inadmissible.

In Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 427 N.E.2d 608, plaintiff sustained injuries when a shotgun manufactured by defendant exploded while she was using it. Plaintiff filed an action against defendant in which she alleged that the shotgun was defectively designed and was defectively manufactured out of defective metal. Plaintiff sought punitive damages from defendant based upon its knowledge of prior similar explosions and thus its prior knowledge of the defective nature of the shotgun. During discovery, plaintiff asked defendant whether any shotgun, of the type or model involved in her accident, was involved in any similar occurrence at any time prior or subsequent to plaintiff’s accident. Defendant answered yes. At trial, an employee of defendant testified that he did not believe that there were any occurrences or explosions similar to that of plaintiff’s shotgun before or after plaintiff’s accident. The question then arose whether defendant’s answer to discovery could be used as substantive evidence that defendant had knowledge of a defect in its guns prior to the explosion involving plaintiff, or whether the answer could only be used to impeach defendant’s employee. The Illinois Appellate Court held that the answer to discovery was a prior inconsistent statement and was properly used to impeach defendant’s employee. However, the court reversed the jury’s award of punitive damages. The court observed that plaintiff’s claim for punitive damages was based largely on the answer to discovery. The discovery request placed no time limit on similar occurrences, and thus, defendant’s answer could have included only incidents that occurred after the explosion involving plaintiff’s shotgun. The court concluded that “only prior occurrences are relevant to establishing plaintiff’s claim for punitive damages.” 100 Ill. App. 3d at 1111.

We agree with the court in Moore v. Remington Arms Co., that subsequent occurrences are not relevant to establishing a claim for punitive damages. Punitive or_Aexemplary damages are awarded when a defendant acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others. (J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 453, 516 N.E.2d 260; Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 710, 450 N.E.2d 1199.) In a products liability case, a manufacturer’s awareness that its product poses a danger coupled with a failure to act to reduce the risk amounts to willful and wanton conduct. (Bastian, 663 F. Supp. at 476.) Evidence of prior occurrences is admissible to show that a defendant was on notice of a dangerous condition in its product which would probably result in further injury if nothing was done. (Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 505 N.E.2d 1213; Moore v. Remington Arms Co., 100 Ill. App. 3d at 1111; Moore v. Jewel Tea Co., 116 Ill. App. 2d 109.) However, evidence of subsequent occurrences cannot establish that a manufacturer was aware of the dangerous condition of its product at the time of the plaintiff’s injury and failed to act to lessen or eliminate the danger to the plaintiff. Any knowledge gained by a manufacturer from a subsequent occurrence would not be timely. Such knowledge cannot indicate a disregard of the rights of others and cannot be the basis for an award of punitive damages. See also Bastían, 663 F. Supp. at 478 (only occurrences prior to the one which caused plaintiffs’ injury are relevant to showing a manufacturer’s knowledge of a defect).

In summary, we hold that evidence of similar post-accident occurrences or injuries involving the same or substantially similar prod-nets may not be used to show that a manufacturer acted in conscious disregard of the safety of others and cannot support a claim for punitive damages.

Question 4

In question 4, we are asked to determine whether a plaintiff may obtain, through discovery, evidence and records of similar post-accident occurrences or injuries involving the same or substantially similar products to establish a manufacturer’s willful and wanton conduct. As stated above, the scope of discovery includes matters that are admissible at trial and matters that lead to evidence admissible at trial. We have held in response to question 3 that evidence of similar post-accident occurrences or injuries on the same or substantially similar products may not be admitted in evidence to establish willful and wanton conduct. Thus, allowing a plaintiff access to evidence and records of similar post-accident occurrences or injuries is not likely to lead to evidence admissible at trial. Accordingly, we hold that such evidence and records are not discoverable.

This cause is remanded for further proceedings consistent with this opinion.

Remanded.

FREEMAN, P.J., and RIZZI, J., concur.

      Once more we note that the trial court must determine which accidents are substantially similar. Also, any request for discovery must comply with discovery rules.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    IRVING MARGOLIS, Plaintiff-Appellee, v. THE DIRECTOR OF THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1413
    Opinion filed March 15, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Bernard M. Ellis, of Chicago, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Irving Margolis, filed a complaint for a writ of mandamus, declaratory and injunctive relief requiring the Director of the Illinois Department of Revenue (hereinafter collectively defendant), to disclose to plaintiff the business names and addresses of applicants for certificates of registration to engage in retail sales in Cook County, as required under section 2a of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 441a). Defendant had denied the request for that information on the ground that it was exempt from disclosure under section 7(b)(iv) of the Freedom of Information Act (Illinois FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 206). The trial court denied defendant’s motion to dismiss the complaint and granted plaintiff’s motion for summary judgment. Defendant appeals only the grant of plaintiff’s motion.

In his request for the subject information, plaintiff expressed an interest in conducting a pilot study of “the economic impact of various factors” upon the rate of new business formation in Cook County, divided by zip codes. Plaintiff proposed to measure the rate by applications for certificates of registration. Plaintiff requested that the information be updated on a weekly basis. Finally, plaintiff opined that the information learned from the study would be of benefit to the general public if he and those involved with him were able “to find valid correlations between the variable factors.”

At the hearing on defendant’s motion to dismiss and plaintiff’s motion for summary judgment, the trial court determined that the same question controlled both motions. That issue was whether the names and addresses of applicants for certificates of registration fell within the exemptions to the obligation to disclose information under the Illinois FOIA provided in sections 7(b)(iii) and (b)(iv). The court determined that the requested information did not fall within either of those exemptions and accordingly denied defendant’s motion and granted plaintiff’s.

The issue before us is thus whether the names and addresses of applicants for certificates of registration from defendant are either “personal information” or “information” as those terms are used in section 7 of the Illinois FOIA, the relevant portions of which provide:

“The following shall be exempt from inspection and copying:
(b) [information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. ***
Information exempted under this subsection (b) shall include but is not limited to:
* * *
(iii) files and personal information maintained with respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline;
(iv) information required of any taxpayer in connection with the assessment or collection of any tax unless disclosure is otherwise required by State statute ***.” Ill. Rev. Stat. 1987, ch. 116, par. 207.

Our research revealed no Illinois cases construing the terms “personal information” or “information” as used in section 7. Substantially the same philosophy of full disclosure with limited exceptions undergirds both the Federal Freedom of Information Act (Federal FOIA) (5 U.S.C. §552 (1982)) and the Illinois FOIA. (Compare Department of Air Force v. Rose (1976), 425 U.S. 352, 360-61, 48 L. Ed. 2d 11, 21, 96 S. Ct. 1592, 1599, with Ill. Rev. Stat. 1987, ch. 116, pars. 201, 207.) Moreover, section 552(b)(6) of the Federal FOIA is comparable in purpose and language to section 7 of the Illinois FOIA. As such, decisions construing the Federal FOIA, while not controlling, are relevant and helpful precedents in construing the Illinois FOIA. See Old Ben Coal Co. v. Human Rights Comm’n (1986), 150 Ill. App. 3d 304, 501 N.E.2d 920.

Section 552(b)(6) exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. §552(bX6) (1982).) This exemption, commonly referred to as exemption 6, was intended by Congress to protect individuals from the injury and embarrassment that could result “from the unnecessary disclosure of personal information.” (United States Department of State v. Washington Post Co. (1982), 456 U.S. 595, 599, 72 L. Ed. 2d 358, 363, 102 S. Ct. 1957, 1960.) The Supreme Court in Washington Post Co. did not explicitly define the “personal information” which exemption 6 was intended to protect. However, we believe it implicitly did so in also noting that exemption 6 was intended to cover government records on an individual which could be identified as applying to that individual. Washington Post Co., 456 U.S. at 602, 72 L. Ed. 2d at 364, 102 S. Ct. at 1961.

The Federal FOIA thus exempts from disclosure personal information, i.e., information which could identify a particular individual, where disclosure would result in a clearly unwarranted invasion of personal privacy. Applying the Washington Post Co. definition of personal information to that term in section 7(b)(iii) and to “information required of a taxpayer” in section 7(b)(iv), we conclude that those provisions are concerned with information from which a particular individual can be identified.

Obviously, the names and addresses of applicants for certificates of registration from defendant identify particular individuals. That information thus meets the threshold requirement for exemption under sections 7(b)(iii) and (b)(iv). That is, as to persons who apply for, but do not receive, certificates of registration from defendant, it is personal information maintained with respect to them. As to persons who do receive certificates, it is also information required of a taxpayer in connection with the assessment or collection of a tax. In this regard, the fact that plaintiff did not request that defendant distinguish those applicants who do and who do not receive certificates of registration is irrelevant. Where certificates are issued, personal information maintained with respect to applicants becomes information required of a taxpayer. As such, it is exempt from disclosure under section 7(b)(iv) regardless of whether defendant would indicate that the person whom the information identifies is a taxpayer rather than a mere applicant for a certificate of registration.

Buttressing our conclusions is the treatment which Federal courts have given requests for names and addresses of particular individuals under the Federal FOIA since Washington Post Co. In Van Bourg, Allen, Weinberg & Roger v. National Labor Relations Board (9th Cir. 1984), 728 F.2d 1270, the plaintiff sought a list of the names and addresses of all employees who had been eligible to vote in a union representation election conducted by the defendant board. The court held that the list met the threshold requirement of exemption 6 of the Federal FOIA, i.e., it was a government record which contained information that applied to particular individuals. Van Bourg, 728 F.2d at 1273. Accord Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F. 2d 784, 786, cert. denied (1985), 471 U.S. 1053, 85 L. Ed. 2d 477, 105 S. Ct. 2112 (names and addresses of all persons applying to travel federally protected river in 1983); DiPersia v. United States R.R. Retirement Board (D. Conn. 1986), 638 F. Supp. 485, 489 (names and addresses of all Connecticut residents contributing to Federal Railroad Retirement Fund); Multnomah County Medical Society v. Scott (9th Cir. 1987), 825 F.2d 1410, 1413 (names and addresses of all medicare beneficiaries in Portland, Oregon, metropolitan area); Southern Utah Wilderness Alliance, Inc. v. Hodel (D.D.C. 1988), 680 F. Supp. 37, 38 (names and addresses of persons visiting seven national parks since January 1986).

Defendant asserts that the information which plaintiff requested is per se exempt from disclosure under section 7(b). (Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 493 N.E.2d 127.) Copley Press held that once a determination is made that information falls within one of the specifically enumerated categories of section 7(b) there is no need to show that its disclosure would constitute a clearly unwarranted invasion of personal privacy. (Copley Press, 143 Ill. App. 3d at 372-73.) In view of City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, and the construction placed by the Federal courts upon the similarly worded exemption 6 of the Federal FOIA, we believe that the Copley Press court misconstrued section 7 of the Illinois FOIA.

Galesburg Printing construed section 7(bXv) of the Illinois FOIA, dealing with information revealing the identity of persons filing complaints with government agencies. The court construed that section as exempting such information from disclosure only if the general requirement of section 7(b) of a clearly unwarranted invasion of privacy was met in the particular case at issue. It further held that this construction was consistent with the public policy behind the Illinois FOIA, as stated in section 1. (Ill. Rev. Stat. 1987, ch. 116, par. 201.) Finally, it noted that the opposite construction would render the statute unconstitutional as an overbroad attempt to serve a compelling State interest. Galesburg Printing, 144 Ill. App. 3d at 226-28.

Under the Federal FOIA, “[w]hen disclosure of information which applies to a particular individual is sought from Government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.” (United States Department of State v. Washington Post Co. (1982), 456 U.S. 595, 602, 72 L. Ed. 2d 358, 364-65, 102 S. Ct. 1957, 1961-62.) To make that determination the Federal courts balance the public interests served by disclosure against the harm caused to privacy interests. (Department of Air Force v. Rose (1976), 425 U.S. 352, 372-73, 48 L. Ed. 2d 11, 27-28, 96 S. Ct. 1592, 1604-05; Getman v. National Labor Relations Board (D.C. Cir. 1971), 450 F.2d 670, 674.) Specifically, they balance four factors in the determination: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Minnis v. United States Department of Agriculture (9th Cir. 1984), 737 F.2d 784, 786, cert. denied (1985), 471 U.S. 1053, 85 L. Ed. 2d 477, 105 S. Ct. 2112; Multnomah County Medical Society v. Scott (9th Cir. 1987), 825 F.2d 1410, 1413.

Section 7 of the Illinois FOIA employs substantially the same language and the same standard as section 552(b)(6) of the Federal FOIA. As such, we adopt what the Federal courts have held with respect thereto as applicable to the Illinois FOIA. In this case, the trial court ruled that the information plaintiff sought did not fall within either section 7(b)(iii) or section 7(b)(iv). Therefore, it did not determine whether disclosure would result in a clearly unwarranted invasion of personal privacy by balancing the appropriate factors. Neither the record nor the briefs of the parties are adequate for this court to make that determination. We will therefore remand this cause to allow the parties and the trial court to address that issue.

Lastly, we address defendant’s motion to strike plaintiff’s brief for failure to comply with the format requirements of Supreme Court Rule 344(b) (107 Ill. 2d R. 344) and for its inclusion of matter dehors the record. (See Silny v. Lorens (1979), 73 Ill. App. 3d 638, 392 N.E.2d 267.) As it is addressed to our discretion and as the record in this case is short and the facts uncomplicated, we deny defendant’s motion. Silny, 73 Ill. App. 3d at 643.

For all of the reasons stated herein, the order granting plaintiff’s motion for summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and WHITE, JJ., concur.


author: PRESIDING JUSTICE JIGANTI JUSTICE McMORROW,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY SHAW, Defendant-Appellee.
    First District (4th Division)
    No. 1—87—2678
    Opinion filed March 16, 1989.
    McMORROW, J., dissenting.
    Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry and Lynda A. Peters, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, Jerry Shaw, was charged with attempted murder and three counts of aggravated battery arising from an incident in which he allegedly put paint thinner in his infant son’s milk bottles. Following his arrest, the defendant made both oral and written statements which formed the substance of a pretrial motion to suppress evidence. The trial court suppressed the statements based on its finding that they were induced by a police officer’s promise that the defendant could get help in the form of psychiatric counseling if he were found guilty. The State has appealed, contending that the trial court’s suppression of the statements was manifestly erroneous because it failed to consider the totality of the circumstances surrounding the making of the statements.

Chicago police officer Robert Loughran was the sole witness to testify at the hearing on the motion to suppress. Loughran stated that he and his partner interviewed the defendant at 10:30 p.m. on July 3, 1986. The defendant was advised of his Miranda rights and indicated that he understood them. In response to Loughran’s inquiry, the defendant stated that he was willing to answer questions at that time.

The defendant was then taken to a different interview room where Loughran had two or three conversations with him between 10:30 p.m. and 11:30 p.m. Each of these conversations lasted between 5 and 10 minutes. The defendant never indicated that he was unwilling to talk to the police, and Loughran testified that he neither threatened the defendant nor made any promises to him during those conversations.

During an interview which occurred at 11:40 p.m., the defendant asked Loughran what would happen to him if he were found guilty. Loughran testified that he responded to the defendant’s question by explaining the sentencing alternatives “from the misdemeanor level all the way up to a felony level.” He emphasized, however, that the sentencing decision was not in the hands of the police but was instead “basically up to the Judge.” Loughran also told the defendant that “there was a possibility of felony probation involved.” In response to the defendant’s request for further explanation, Loughran stated that “it was an order of Court of counseling. There is an order of Court on felony probation he would not be locked up. He would be on probation and through the courts.” Loughran testified that when the defendant asked further questions about counseling, Loughran repeatedly explained that a judge , would make the final decision. At the conclusion of this interview, the defendant agreed to give a statement. A police report prepared by Loughran contained the following statement: “After approximately one hour of periodically interviewing [the defendant], he asked that if he did do what he is accused of doing, he could get help. When told that he could get — probably get help through the courts, he related the following ***.”

The defendant then gave a written statement to an assistant State’s Attorney. According to Loughran, there was no conversation concerning “help or help through the courts” at that time. Before signing the statement, however, the defendant requested that the following sentence be added: “Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help.” The assistant State’s Attorney did not question the defendant about the nature of the help referred to in the added sentence.

Loughran then testified that the defendant was offered coffee and allowed to use the bathroom, that he did not request to use the telephone or to contact an attorney and that he did not appear to be under the influence of drugs or alcohol.

At the conclusion of the hearing the trial court granted the defendant’s motion to suppress, stating its reasons as follows:

“The test of the admissibility of the confession, the confession is made freely and voluntarily without compulsion or inducement of any sort. The Court finds that in this case the defendant stood mute until the youth officer made a promise to the defendant to get help, the promise which is articulated clearly in the statement.
The police told him he can get help, that coupled with the youth officer’s explanation of misdemeanor sentencing, probation by the Court, the defendant spoke only after the promise was made. The police officer’s report which clearly indicates a question by the defendant as to whether or not he could get help, the statement by the officer concerning the help that he would probably get followed by the defendant beginning to talk, the Court finds the defendant made a statement which was induced by promise of help.
The statement of providing treatment rather than punishment, I read the promise of treatment rather than punishment, accordingly, the motion to suppress the statement is sustained.”

The State has appealed, contending that the trial court erred in relying upon the promise of help as the single dispositive factor which required suppression of the defendant’s statement. The State maintains that the totality of the circumstances surrounding the making of the statement establishes that it was made voluntarily.

The admission into evidence of a confession which was not voluntarily made constitutes a violation of the defendant’s right to due process of law. (Haynes v. Washington (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336; People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.) In determining whether a statement was voluntarily made, the court must ascertain whether the defendant’s will was overborne at the time he made the statement, or whether the statement was made freely and voluntarily without compulsion of any sort. (People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.) The totality of the circumstances surrounding the making of the statement must be considered in arriving at this determination. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) These circumstances include such factors as whether the Miranda warnings were given, the presence of threats or physical coercion, whether the defendant was promised leniency, the length and intensity of the interrogation and the age, experience and physical condition of the defendant. (People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.) A confession must be proved voluntary by a preponderance of the evidence, and the trial court’s finding on the issue of voluntariness will not be reversed unless it is against the manifest weight of the evidence. (People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.) A promise of leniency will not necessarily mandate a finding that the defendant’s statement was involuntary; rather, the ultimate question is whether under the totality of the circumstances the defendant’s will was overborne. People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014.

In the case at bar, Officer Loughran’s testimony established that before giving a statement the defendant asked what would happen to him if he were found guilty. Loughran responded by explaining the sentencing alternatives available, from the misdemeanor level to the felony level. When the defendant expressed interest in the possibility of felony probation, Loughran explained that under that sentencing alternative the defendant would not be locked up and could receive help in the form of counseling through an order of the court. Loughran testified that he repeatedly told the defendant that the final decision as to whether counseling would be available was in the hands of a judge. However, in his police report, Loughran indicated that the defendant made his statement after being told that he could “probably” get help through the court. After making a written statement, the defendant requested the assistant State’s Attorney to add the following sentence: “Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help.” Loughran’s testimony further established that the defendant was advised of and indicated he understood his constitutional rights, that he was not threatened or coerced and was in good physical condition, that he was offered coffee and allowed to use the bathroom and that the interrogation was neither lengthy nor intense.

Based upon Loughran’s testimony, the trial court found that the promise of help overbore the defendant’s will and induced him to make a statement. The court accordingly suppressed the statement as having been involuntarily made. The State contends that the court’s finding of involuntariness was against the manifest weight of the evidence because it was based upon a single factor — the promise of help — rather than upon a consideration of the totality of the circumstances. In support of this contention, the State cites People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014, People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483, and People v. Baine (1980), 82 Ill. App. 3d 604, 403 N.E.2d 57.

The cases cited by the State stand for the proposition that the trial court must consider the totality of the circumstances in determining whether a statement was voluntarily made. We do not interpret them, however, as saying that there can never be a case in which one factor so overwhelmingly overshadows the others as to support, in and of itself, a finding of involuntariness. In the case at bar Officer Loughran testified as to the giving of the Miranda warnings, the length and intensity of the interrogation, the physical condition of the defendant and the manner in which he was treated by the police. According to Loughran’s testimony, these factors favored the State’s position and there is no reason to believe that the trial court would have found otherwise had it expressly mentioned them in its finding. The court nevertheless found that the circumstances surrounding the police promise of help, including Loughran’s explanation of sentencing alternatives, his statement that the defendant would “probably” receive help and the defendant’s express reliance on the promise as evidenced by his addition to the written statement, showed that his will was overborne at the time the statement was made. In our view, the trial court could well have found that the specific statement that the defendant could probably get help through the court served to lessen the effectiveness of Loughran’s warnings that the final decision was in the hands of a judge. Based on the record before us, we cannot say that the trial court’s finding was against the manifest weight of the evidence.

Moreover, the cases relied upon by the State are factually distinguishable from the instant cause. In each case, the reviewing court stated that although a promise of leniency or help was made to the defendant, the promise did not influence the defendant’s decision to confess. In People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014, the trial court made a specific finding that it was not the promise of leniency that induced the defendant’s confession, but rather the fact that his commission of the offense had been discovered combined with a guilty conscience. The court based this finding in part on the fact that the defendant indicated in his written statement that he had not been promised leniency of any kind in return for his statement. A lack of reliance on the promise of help was also noted in People v. Noe (1980), 86 Ill. App. 3d 762, 766, 408 N.E.2d 483, 486, where the court stated that “it is significant that in the instant case when defendant was asked why he talked to police, he did not mention the suggestions of psychiatric help. He testified he talked to them because he was afraid of losing his wife.” Finally, in People v. Baine (1980), 82 Ill. App. 3d 604, 610, 403 N.E.2d 57, 61, the appellate court stated that “[o]ur review of the record indicates no evidence that the promise of leniency induced in the slightest way the defendant’s decision to confess.” Unlike the facts of Veal, Noe and Baine, the instant defendant’s reliance on the police promise of help is clearly reflected in his express mention of the promise in his written statement.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.

JUSTICE McMORROW,

dissenting:

The trial court sustained a motion to suppress defendant’s confession on the basis that the confession was involuntary because it was induced by a promise of help. Defendant made oral and written confessions that he mixed paint remover with the milk in his 14-month-old baby’s bottle, knowing that it would be fed to the child and in fact was ingested by the child. The trial court found that the defendant’s confession was based on a promise of help in the form of treatment rather than punishment. I respectfully dissent because I conclude that the interrogating officer’s remarks to the defendant preceding his confession cannot reasonably be construed as a promise of help or leniency to the defendant in exchange for his confession. In the instant case, the record discloses no evidence of any promise of any kind which prompted a confession. In addition, the evidence surrounding defendant’s confession in this case clearly demonstrates that defendant’s will was not overborne in any way, and that his confession was voluntary and not induced by any promise of leniency.

Officer Loughran was the only witness who testified in the hearing on the motion to suppress. His undisputed testimony showed that shortly after his assignment to investigate the complaint of aggravated battery against the child, the first time he saw the defendant, who was married and 25 years of age, was at 10:30 p.m. in a police station interview room. The officer told defendant that he and his partner were investigating an aggravated battery. Officer Loughran read defendant his Miranda rights and defendant said he understood those rights and was willing to answer questions. Defendant was then taken to a different interview room in the police station. During the following hour, Officer Loughran spoke with the victim’s mother and with a brother-in-law. During this time the officer also spoke to defendant briefly on two or three occasions to inquire if defendant needed food, drink, or other essentials, but the officer did not question defendant regarding the crime, make him any promises, or talk to defendant in a threatening manner. The defendant did not indicate that he was unwilling to talk to the officers; defendant was alert and responsive and did not appear to be under the influence of drugs or alcohol.

Officer Loughran returned to question defendant at approximately 11:30 p.m. The officer first “explained to [defendant] that [the officer] had talked to a couple of people who were involved with the case and [that the officer] had additional information.” This information was that the police “could put [defendant] in the kitchen where the bottles were located in the refrigerator, and [that the police] had statements that were made stating that it [sic] was clinking of bottles and what have you in the kitchen and that he [defendant] was the only one present.” Defendant then asked Officer Loughran “what would happen if he was found guilty of this.” The officer explained the range of sentences which could be imposed if defendant were convicted. The officer further responded that the punishment was “out of our hands completely. It was basically up to the Judge.” After this conversation about the court system and the sentencing alternatives, which lasted approximately 10 minutes, defendant orally confessed to Officer Loughran his commission of the crime. This oral confession took approximately 20 minutes. The police officer then prepared a written report which stated the following: “After approximately one hour of periodically interviewing him, he asked that if he did do what he is accused of doing, he could get help. When told that he could get— probably get help through the courts, he related the following,” and that the defendant thereafter gave an oral confession.

An assistant State’s Attorney was then called to the police station. Outside the presence of the defendant, the assistant State’s Attorney spoke to witnesses to the crime and then to Officer Loughran. Officer Loughran told the assistant State’s Attorney the substance of the defendant’s oral confession, that the defendant had asked about various sentences and help he might receive if he were found guilty, and that the officer had explained these to the defendant. Defendant was then given his Miranda warnings by the assistant State’s Attorney at approximately 1:45 a.m., and made an oral confession to the assistant State’s Attorney in the presence of Officer Loughran. Thereafter defendant also gave a written confession to the assistant State’s Attorney. Defendant asked no questions about sentence alternatives, felony probation, or psychiatric counseling during these periods of questioning by the assistant State’s Attorney. After the defendant signed the written confession, he included at the end of the confession “Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help.”

Based upon the foregoing, the trial court found, and the majority agrees, that the defendant’s confession was involuntary and predicated upon a promise of help. I disagree.

The record here does not show that the defendant’s confession was involuntary because his will was overborne by an interrogating officer’s promise that he would receive help or would be given a particular sentence in exchange for that confession. Officer Loughran never promised defendant anything; he did not promise leniency, probation, or psychiatric counseling. The record is replete with Officer Loughran’s denial of any sort of promise. Rather, at best, the record shows that in response to defendant’s questions regarding forms of punishment if he were found guilty, that Officer Loughran informed defendant of possible sentences, including that he might receive felony probation and psychiatric treatment if he were found guilty. The defendant expressed in his confession his unilateral desire that he be given psychiatric counseling, and the police did no more than inform him that counseling was a possibility, available only if ordered by the court. Viewing the evidence most favorably to defendant, there are no words or conduct which might reasonably be construed as a promise of help. There are no words expressed, implied, or from which an inference could be drawn as indicative of any assurance that defendant would receive help or a particular sentence if found guilty. Officer Loughran unequivocally, repeatedly, and explicitly indicated to the defendant at all times during which they conversed that defendant’s sentence or expectation of help or counseling was totally within the control or discretion of the court. The trial court did not question the credibility of Officer Loughran.

As justification for its conclusion that defendant’s confession was involuntary, the majority emphasizes that defendant requested that a sentence be added to the written statement he gave to the assistant State’s Attorney which said “Jerry Shaw stated he is sorry this happened and that he wants help for himself and the police told him he can get help.” The phrase, “the police told him he can get help,” was interpreted by the trial court and majority as a promise of help, without which he would not have confessed. In my view, the police telling him that he “can” get help is indicative of a possibility of help, rather than a promise of help. Black’s Law Dictionary states that the word “can” is “[ojften used interchangeably with ‘may.’ ” (Black’s Law Dictionary 186 (5th ed. 1979).) Defendant did not say that the police told him he would get help, but rather merely said the officer told him he “can” get help.

The cases cited by the majority support the conclusion that there was no promise of leniency to render the confession involuntary. Neither the interrogating officer nor the assistant State’s Attorney in the case at bar assured the defendant that “nothing will come of this, probably you won’t stay overnight and we can get you some help,” as in People v. Veal (1986), 149 Ill. App. 3d 619, 500 N.E.2d 1014. Nor did the officer or the assistant State’s Attorney tell defendant that he would intercede on defendant’s behalf and recommend “the lowest” sentence, as in People v. Baine (1980), 82 Ill. App. 3d 604, 403 N.E.2d 57. Furthermore, similar to Veal and Baine, the record here does not show that defendant relied on a promise of leniency that overcame his free will and rendered his confession involuntary.

I am persuaded that People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483, upon which the majority also relies, further supports this conclusion. In Noe, although the police officer told defendant that professional help was a possibility, the appellate court emphasized that “no definite promises were made [to the defendant], but only vague suggestions of the possibility of psychiatric help. The possibility of leniency, to be distinguished from psychiatric help, was not even suggested.” (86 Ill. App. 3d at 766.) In concluding that the defendant’s confession in Noe was voluntary, the appellate court concluded that “the vague suggestions of the possibility of psychiatric help in the instant case were not likely to induce an innocent man to confess to the repugnant crimes involved herein.” 86 Ill. App. 3d at 767.

The reasoning of the court in Noe is equally applicable to the case at bar. The statements of Officer Loughran here were at most vague suggestions that psychiatric help for defendant was a possibility. When considered in the overall context of the circumstances surrounding the defendant’s confession, the officer’s representations in response to defendant’s questions were not likely to induce an innocent man to confess to mixing paint remover with milk in the victim’s baby bottle, knowing that it would be fed to the baby and in fact was ingested by the child. See also People v. Sellars (1981), 93 Ill. App. 3d 744, 750 (interrogating officers’ promise to seek low bond, conditioned on advice that ultimate decision on bond would be that of the judge, held to be an equivocal promise, and “not so coercive as to induce defendant to admit to a crime he did not commit,” citing People v. Carroll (1977), 50 Ill. App. 3d 946, 365 N.E.2d 1352).

People v. Harris (1979), 69 Ill. App. 3d 91, 386 N.E.2d 933, relied upon by the State in this appeal but not considered by the majority, is closely analogous to the case at bar and also demonstrates that the defendant’s confession here was not involuntary. In Harris, the interrogating officers represented to the defendant, a heroin addict, that a number of programs were available to help with his drug problem. They also incorrectly informed the defendant with respect to a mandatory sentence to be imposed upon conviction of armed robbery. The court rejected defendant’s argument that “the interrogating officers’ representations regarding the availability of drug treatment programs and their misstatement of the minimum sentence for armed robbery amounted to broken promises of leniency which prevented him from making a knowing and intelligent waiver of his rights.” (69 Ill. App. 3d at 93.) The court reasoned that even though defendant was not eligible for sentencing and treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91%, par. 120.1 et seq.) defendant failed to show that he would be denied access to other drug abuse programs. The court observed that the record was devoid of any indication that the officers’ statement about the prison term was a material factor in the defendant’s decision to make a confession. 69 Ill. App. 3d at 93.

Similar to the circumstances in Harris, there is nothing in the record before us to show that Officer Loughran’s statements were intended as subterfuge or purposeful misrepresentation, rather than response to defendant’s inquiry. There is also nothing in this record to demonstrate that defendant would be denied access to psychiatric counseling if he were convicted. The record shows Officer Loughran repeatedly testified that he made no promises to defendant and repeatedly informed him that the nature of the sentence to be imposed was a decision which had to be made by a court. Although the officer referred to probation as a possible sentence, he never informed defendant that he would receive probation if found guilty. Since defendant’s confession makes no reference to the possibility of probation, the record does not indicate that Officer Loughran’s reference to probation was a material factor in the defendant’s decision to confess. It is undisputed that defendant was not physically abused, threatened, or coerced during questioning, and was given and waived his Miranda rights before he asked Officer Loughran about sentencing alternatives if he were found guilty. Defendant was questioned for only a short period of time while being held and was permitted access to food and drink. There is nothing to indicate that defendant was intimidated in any fashion, nor is there any evidence that defendant, who was 25 years old, was suffering from any physical or mental disability at the time he gave his confession. Accordingly, there was no evidence in this case from which the trial court could properly conclude that the defendant’s confession was involuntary.

Although I am unable to find anything in Officer Loughran’s conversation with defendant that would support a promise of leniency or help, assuming that a promise of leniency were made, such promise is only one of many factors to be considered in the totality of the circumstances attending a defendant’s confession. The proper inquiry is whether, on the totality of the circumstances in each particular case, a promise of leniency can be said to have overborne the defendant’s will, rendering his confession involuntary. (See, e.g., People v. Stachelek (1986), 145 Ill. App. 3d 391, 402, 495 N.E.2d 984; People v. Eckles (1984), 128 Ill. App. 3d 276, 470 N.E.2d 623; People v. Wright (1984), 127 Ill. App. 3d 747, 469 N.E.2d 351; see generally People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The totality of the circumstances, detailed above in Officer Loughran’s undisputed testimony, does not justify a finding of involuntariness.

Although the majority recites the rule that a confession must be considered in the context of all the circumstances surrounding the making of a confession, the majority failed to apply this rule to the facts of the instant case. The majority justifies its failure to consider all of the circumstances attending the defendant’s confession in the case at bar by observing that, in this case, “one factor [i.e., the alleged promise of leniency] so overwhelmingly overshadows the others as to support, in and of itself, a finding of involuntariness.” (180 111. App. 3d at 1095.) In my opinion, the record utterly fails to disclose a promise of leniency, such as to make unnecessary the consideration of other appropriate factors in the determination of the voluntariness of a confession.

Proper application of binding precedent to the facts of this case demonstrates that the interrogating officer, given the circumstances presented here, made no promise of psychiatric help or leniency to the defendant to support a finding of involuntariness. Because the confession was not shown to be involuntary under the totality of the circumstances, I am of the opinion that the trial court’s decision was manifestly erroneous, is not supported by the evidence, and should be reversed.


author: JUSTICE QUINLAN

text:
    GENELCO, INC., Plaintiff-Appellant, v. DAN M. BOWERS, Indiv. and d/b/a Bowers Engineering Company, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0408
    Opinion filed March 13, 1989.
    — Rehearing denied April 18, 1989.

      Peterson, Ross, Schloerb & Seidel, of Chicago (Peter M. Sfikas, Clay H. Phillips, and Mary F. Andreoni, of counsel), for appellant.

      Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Thomas J. Regan, of counsel), for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Central States Joint Board (Central States), a labor union, contracted with the plaintiff, Genelco, Inc. (Genelco), for the development and installation of a computer system for Central States. Problems arose after the system was installed and Central States hired Bowers Engineering Company to review and evaluate the problems with the system, as well as the system itself. In its review, unfavorable remarks were made about Genelco’s performance, and Genelco filed suit against the defendant Dan M. Bowers, individually and d/b/a Bowers Engineering Company (Bowers), alleging that Bowers had maliciously schemed to take over Genelco’s business with Central States. Genelco’s third amended complaint sought damages from Bowers for tortious interference with contractual relations; tortious interference with prospective economic advantage; commercial disparagement; and wilful and wanton conduct. Bowers moved to dismiss the third amended complaint under section 2 — 619(aX9) of the Code of Civil Procedure, asserting that its reports were protected by a qualified privilege. (See Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(aX9).) The trial court granted Bowers’ motion and dismissed Genelco’s third amended complaint with prejudice. We affirm the trial court’s dismissal with prejudice.

The specific facts of the case are as follows. On February 2, 1982, Genelco entered into a contract with Central States which provided that Genelco would develop and install a computer system for Central States called the “Claims Adjusting and Reporting System” (CARS). Genelco later contracted with Central States for another system, called the “Employee Reporting Verification System.” Thereafter, Central States experienced problems with its data processing system, and in January 1984, hired Bowers to evaluate and review the problems with the system. Specifically, Bowers was to review the status of the CARS program, which was apparently the basis for the problems, and then make recommendations regarding completion of the program. At that time, Bowers was, of course, aware of the contracts between Genelco and Central States, because its evaluation was to include a review of the parties’ responsibilities under the contracts.

On February 2, 1984, Bowers prepared a “Report on EDP Audit” for Central States. Generally, the report consisted of Bowers’ conclusions and recommendations concerning Central States’ data processing system and the Genelco program, including: (1) general observations on the Genelco-Central States contracts, Genelco’s duties under the contracts, operations, system performance, future operations, and improvements; and (2) recommendations as to action that was required immediately, in the near future, and in the long term concerning the Genelco contracts, data processing operations and system performance.

Specifically, Bowers’ report concluded that Genelco’s responsibilities, as set forth in the, Genelco-Central States contract, were vaguely defined and suggested that Central States consult legal counsel concerning possible litigation with Genelco. The report also concluded that system performance could be improved substantially, but noted that Genelco’s representations to the contrary were cause for concern. The report suggested that possible reasons for Genelco’s contrary representations could be due to Genelco’s insufficient knowledge or expertise in certain areas, financial pressures, or contract interpretation. The report further stated that while Bowers did not believe that Genelco was incompetent, Bowers, nevertheless, concluded that it did not believe Genelco’s performance was acceptable. Moreover, the report noted that after conversations with Genelco, Bowers believed Genelco was either unable or unwilling to bring the system to a satisfactory level. Finally, the report suggested that Central States negotiate a contractual relationship for continued support with either Genelco, Bowers, or some other organization.

In addition to the report, Genelco based its claim against Bowers on two letters from Bowers to Genelco’s vice-president, Russell Korte. The first letter, dated March 23, 1984, informed Genelco that the Central States system was not successfully completed under the contract and that Genelco’s performance was not in accordance with generally accepted standards of professionalism in the computer applications industry. That letter also stated that Bowers intended to work with Genelco to resolve the problems as quickly as possible, and there was a “punch list” of software problems for Genelco to correct attached to the letter. In its second letter to Genelco, dated September 6, 1984, Bowers stated that although Genelco had adequately responded to certain of the punch list items, there were still other items which Genelco had not adequately remedied. Because Genelco failed to resolve certain of the problems, Bowers stated, it had been forced to step in and remedy the problems for Central States. Bowers further informed Genelco that Central States would not make a claim against Genelco for the costs of Bowers’ review, but that Central States would deduct the cost of repairs which Bowers was forced to make from its payment to Genelco.

On June 20, 1985, Genelco filed an eight-count complaint against Bowers for inducing breach of contract, interference with prospective business advantage, libel, commercial disparagement, and violations of the Consumer Fraud and Deceptive Business Practices Act. (See Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.) The trial court, on Bowers’ motion, dismissed portions of that complaint, and Genelco filed an amended complaint. That complaint was also dismissed on Bowers’ motion and Genelco filed a second amended complaint. Bowers again moved to dismiss the complaint, this time supporting its motion with the affidavit of Dan Bowers, which verified that he had prepared the February 2, 1984, report and the letters of March 23, 1984, and September 6, 1984. The affidavit expressly stated that distribution of the letters was limited to the individuals named on the documents and that those named were all either employees of Central States, Genelco, Bowers or subcontractors hired by Bowers to assist in the evaluation. Distribution of the report, the affidavit explained, was limited to employees of Central States, Genelco, Bowers and Bowers’ subcontractors on this job. The court again dismissed the complaint, without prejudice to Genelco’s right to file a third amended complaint. Before filing its third amended complaint, however, Genelco deposed Dan Bowers. Genelco then filed its third amended complaint.

Genelco’s third amended complaint, the basis for this appeal, set forth five counts against Bowers: (1) tortious interference with contractual relations; (2) tortious interference with prospective economic advantage; (3) commercial disparagement pursuant to Bowers’ letter of March 23, 1984; (4) commercial disparagement pursuant to Bowers’ report of February 2, 1984; and (5) wilful and wanton “disregard of Genelco’s rights under the contract.” Attached to and made part of Genelco’s third amended complaint were the Genelco-Central States agreement, Bowers’ report of February 2, 1984, Bowers’ letter of March 23, 1984, and Bowers’ letter of September 6, 1984. The third amended complaint asserted that Bowers’ unfavorable written comments about Genelco were made with actual malice because Bowers was trying to steal Central States’ business away from Genelco.

Again Bowers moved to dismiss the complaint. Bowers asserted, as it had previously, that under section 2 — 619(aX9) of the Code of Civil Procedure, Genelco’s claim against it was barred by a qualified privilege. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(aX9).) In addition, Bowers’ motion expressly incorporated its previous motions to dismiss, one of which had included the affidavit of Dan Bowers.

After hearing argument by the parties, the transcript reveals that the trial court reviewed in detail the third amended complaint, its prior rulings on Genelco’s previous complaints, as well as the applicable case law, and then concluded that consultants such as Bowers possessed a qualified privilege in presenting reports of their findings. The court reasoned that if such consultants were not protected by a qualified privilege, there would be an improper chilling effect upon those hired to render professional judgments. The court concluded that the allegations in the complaint were not sufficient to overcome the privilege and, accordingly, dismissed the third amended complaint with prejudice.

Genelco now asks us to determine whether the trial court properly dismissed its third amended complaint with prejudice under section 2 — 619(aX9) of the Code of Civil Procedure. See Ill. Rev. Stat. 1987, ch. 110, par. 2-619(aX9).

Genelco argues, in its appeal, that the trial court erred when it dismissed Genelco’s third amended complaint with prejudice for two basic reasons: (1) Bowers’ motion raised an issue of fact which precluded dismissal under section 2 — 619; and (2) Bowers had not established the defense of qualified privilege by the evidence presented, and, even if it had, it had abused the privilege by its actual malice. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) We need not, however, address all of Genelco’s arguments, for Genelco, in oral argument before this court, conceded that Bowers’ statements and actions, in fact, were qualifiedly privileged. Thus, we only address whether there was an issue of fact which precluded dismissal, or whether Genelco’s allegations of actual malice were sufficient to defeat the privilege.

Under section 2 — 619(aX9), an action may be dismissed if the claim asserted is “barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) Under section 2 — 619, the court is required to accept the truth of all well-pleaded facts and the reasonable inferences therefrom. Specifically, under section 2 — 619(a)(9), the reference to “affirmative matter” was intended to provide for the assertion of affirmative defenses which wholly negate the claim or refute crucial conclusions of law. See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9); Stone v. McCarthy (1987), 158 Ill. App. 3d 569, 576-77, 511 N.E.2d 780, 784.

The “affirmative matter” which Bowers asserted in its motion to dismiss is that it was protected from all of the alleged charges by a qualified privilege. Assertion of a qualified privilege may properly be raised in a motion to dismiss where the alleged defamatory document and the complaint show that the former is protected by a qualified privilege. Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 489, 484 N.E.2d 1100, 1104.

Furthermore, once a party establishes that a qualified privilege exists, that privilege may only be overcome by the plaintiffs showing óf actual malice, i.e., a showing that the defendant abused the privilege. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 632, 435 N.E.2d 1297, 1302.) To overcome the privilege then, the burden is on the plaintiff to allege facts from which actual malice may be inferred, and the burden is not met if the plaintiff merely sets forth bare allegations, unsupported by facts, that the defendant acted maliciously, with knowledge of the falsity or with wanton disregard for the rights of others. (Edwards, 137 Ill. App. 3d at 490, 484 N.E.2d at 1105; American Pet Motels, 106 Ill. App. 3d at 632, 435 N.E.2d at 1302.) These bare allegations of actual malice are not sufficient to negate the good faith of the defendant who is protected by a qualified privilege. (Allen v. Ali (1982), 105 Ill. App. 3d 887, 891-92, 435 N.E.2d 167, 170.) “Actual malice” is more than just ill-will; it is a positive desire or intent to injure another, and in the context of a charge of tortious interference with a contractual relationship, the plaintiff must show that the desire to harm was unrelated to the interest he was seeking to protect by bringing about the breach. Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 401, 515 N.E.2d 1047, 1054.

The assertion of a qualified privilege is proper as a response to a motion to dismiss and, if established, would act as a bar to each of the counts asserted in Genelco’s third amended complaint. Case law has specifically found that the privilege applies to claims of tor-tious interference with contractual relations (Certified Mechanical Contractors, 162 Ill. App. 3d 391, 515 N.E.2d 1047), and tortious interference with prospective economic advantage (Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 458 N.E.2d 115).

The privilege also applies to a claim of commercial disparagement, because such a claim is very similar in nature to a defamation claim, to which the privilege has expressly been found to apply. (See Edwards, 137 Ill. App. 3d 485, 484 N.E.2d 1100.) A defamation claim addresses remarks which criticize one’s personal or business integrity, while a commercial disparagement claim addresses remarks which criticize the quality of one’s goods or services. (See Crinkley v. Dow Jones & Co. (1979), 67 Ill. App. 3d 869, 877, 385 N.E.2d 714, 720.) In a defamation claim, the qualified privilege applies where it is in the public interest that the publisher feel free to speak candidly, as long as the publisher speaks honestly and for the public good. (American Pet Motels, 106 Ill. App. 3d at 634, 435 N.E.2d at 1303.) Similarly, in a commercial disparagement claim, the qualified privilege also applies where the remarks are in furtherance of a public or legal interest such that the publisher is encouraged to speak honestly and candidly. Here, Bowers had a legal interest, under its contract with Central States, that required it to speak openly, and, as the trial court noted, a public interest factor is also present here because consultants, hired to render professional judgments, should be allowed to report their findings honestly and candidly. See A.F.M. Corp. v. Corporate Aircraft Management (D. Mass. 1985), 626 F. Supp. 1533 (where an aviation safety evaluator hired by a jet owner and sued by the company who had a contract to fly the jet was allowed to assert a qualified privilege to defamation and tortious interference with contract claims).

We also note that neither party has specifically addressed the wilful and wanton count in this appeal, and, consequently, its legal sufficiency is not properly before this court on appeal. In any event, on the basis of our review of the record, we find that Genelco asserted no specific facts that could rise to the level of wilful and wanton conduct.

Finally, Genelco contends that its allegations of actual malice were sufficient to overcome any privilege that existed here. It asserts that Bowers lost the qualified privilege by making remarks that it knew were false, and publishing them maliciously, for the purpose of inducing Central States to breach its contract and cut off business relations with Genelco in order that Bowers could take over its business. Bowers, on the other hand, contends that Genelco’s allegations of actual malice were insufficient to overcome the admitted privilege because its contentions are not supported by facts in the complaint. Thus, Bowers argues that under these circumstances the qualified privilege bars Genelco’s action.

Even though Genelco asserted actual malice on the part of Bowers, those allegations, as Bowers argues, were not supported by any specific facts. Indeed, the facts and the context in which the statements were set forth in the complaint actually support Bowers’ position that it was acting within the context of its agreement with Central States and that it did not make any knowingly false statements.

We are further unpersuaded by Genelco’s contention that the allegations of actual malice in Mittelman v. Witous (1988), 171 Ill. App. 3d 691, 525 N.E.2d 922, found to be sufficient to overcome a qualified privilege there, are factually similar to Genelco’s allegations of actual malice here. (See Mittelman, 171 Ill. App. 3d 691, 525 N.E.2d 922.) The allegations of actual malice in Mittelman were supported by specific and definite factual allegations, which included details of specific actions taken by the plaintiff, and reported to the defendants, to establish that the defendants’ allegedly slanderous remarks were false and that the defendants knew them to be false. The factual allegations by Genelco here, in contrast, were vague and indefinite and made no reference to any specific action or inaction or any combination thereof to support the allegations of actual malice.

Genelco, moreover, deposed Dan Bowers prior to its filing of the third amended complaint, but nevertheless, Genelco did not set forth any specific facts in the complaint to establish that Bowers acted with actual malice, viz., that Bowers’ statements were made with knowledge of their falsity or with reckless disregard for their truth or falsity. For example, Genelco here set forth no allegations that Bowers did not properly investigate specific factors or that it did not properly review specific parts of the system. Genelco had the opportunity to depose Bowers and to, therefore, ascertain specific facts, if they existed, to support its bare allegations of actual malice. Nevertheless, in its fourth attempt, Genelco did not support its allegations of actual malice with specific facts. Genelco’s bald assertions were not sufficient to overcome Bowers’ qualified privilege.

For all of the foregoing reasons, the order of the trial court dismissing Genelco’s' third amended complaint with prejudice was proper, and we, accordingly, affirm the order of the circuit court.

Order affirmed.

MANNING, P.J., and CAMPBELL, J., concur.