Illinois FOIA Request Made By Newspapers And The Press Is Denied

Illinois FOIA | 5 ILCS 140/1

FOIA expressly declares that civilians are entitled to full and complete information from the government. The underlying public policy and legislative intent is captured with the following:

Section 1 provides that,

5 ILCS 140/1 .

Additionally, the act explains that…

5 ILCS 140/1 .

Indeed, the language in the Illinois FOIA statute seems to be pretty broad. The law looks like it makes pretty much covers everything. Consider this language,

5 ILCS 140/1 .

FOIA is to be liberally construed to achieve the goal of providing the public with easy access to government information. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 416 (1997).

Exemptions To FOIA

Consequently, FOIA’s exceptions to disclosure are to be construed narrowly so as not to defeat the intended statutory purpose.

Thus, when a public body receives a proper request for information, it must comply with that request unless one of FOIA’s narrow statutory exemptions applies. 5 ILCS 140/3(a).

Section 7(1) of FOIA provides that certain categories of records “shall be exempt from inspection and copying.” 5 ILCS 140/7(1). This includes:

See 5 ILCS 140/7(1) for a complete list of all the exemptions of the Illinois FOIA.

Illinois FOIA Exemption Example From The Case Law

In re Appointment of Special Prosecutor, 2019 IL 122949 (January). Episode 596 (Duration 8:25)

In this case, some newspapers where trying to use the Illinois FOIA law to get some grand jury records.

Gist

Mayor Richard M. Daley’s nephew got in a fight the victim. Victim dies and nothing happens.

7 years later a special prosecutor is appointed and a special grand jury indicts the nephew on involuntary manslaughter. There were no obstruction-type charges on any police or prosecutorial officials.

Eventually the nephew plead guilty.

The Report

The special prosecutor released a report to the court outlining the investigation and the reasons for the charges and non charges in the case.

The court unsealed the report and released it to the public.

Press Wanted More

The Sun Times and the Better Government Association (BGA) then sought FOIA’s for the grand jury information. These were denied and the denial was upheld by the appellate court.

In its FOIA request, the BGA sought disclosure of the following material from the OSP:

“Documents sufficient to show the names of everyone interviewed by Dan Webb’s special prosecutors in relation to the David Koschman/Richard Vanecko case,” “[c]opies of any and all statements by and communications with Daley family members and their attorneys” and “the same information for Mara Georges [(the City’s Corporation Counsel)],” and “[c]opies of any and all itemized invoices and billing records for the special prosecutor’s team.”

Tradition of Grand Jury Secrecy

The function of a grand jury is not to determine the sufficiency of evidence to convict but rather to determine whether there is probable cause to believe a crime has been committed and, in the process, exonerate innocent individuals accused of crimes.

The reasons for maintaining grand jury secrecy are

• Preventing flight of persons under indictment or investigation
• Protecting grand jurors from possible undue influence or intimidation
• Preventing subornation of perjury
• Encouraging prospective witnesses to testify freely and truthfully and
• Protecting the innocent from unwarranted exposure.

Statutory Reasons For Grand Jury Secrecy

Section 112-6 of the Code addresses the secrecy of grand jury proceedings in the Illinois state criminal justice system. Subsection (b) of section 112-6 provides that “[m]atters other than the deliberations and vote of any grand juror shall not be disclosed by the State’s Attorney, except as otherwise provided for in subsection (c).” 725 ILCS 5/112-6(b).

Subsection (c)(1), subject to certain exceptions not relevant here, prohibits the disclosure of “matters occurring before the Grand Jury.” Id. § 112-6(c)(1).

Illinois Supreme Court Says FOIA Doesn’t Allow This

 The Illinois Supreme Court determined that all of the requested material, except for the itemized invoices and billing records, constituted “matters occurring before the grand jury” protected from public disclosure by section 112-6 of the Code because their disclosure would reveal the identity of the witnesses and the strategy or direction of the grand jury investigation. 2017 IL App (1st) 161376, ¶¶ 64-67.

The BGA’s first FOIA request would reveal the identities of the witnesses, which are matters occurring before the grand jury.

Neither the government nor the press is allowed to “publish lists of prospective or former grand jury witnesses.

Holding

Guided by GTE Sylvania and its progeny, and established Illinois law, we conclude that the City was required to obey the protective orders out of respect for the judicial process. Consequently, based on the facts of this case, the protective orders took precedence over the disclosure requirements of FOIA.

Therefore, we hold that the City did not “improperly withhold” the requested documents within the meaning of section 11(d) of FOIA. 

See Also

Episode 553 – People v. Zimmerman, 2018 IL 122261 (October) (You can hide lascivious pretrial motions from the press.)

Episode 320 – Interview With Evan Parke (Evan made extensive use of Illinois FOIA requests in the defense of Curtis Lovelace.)

Normal Disclosures Through Criminal Discovery