Better Gov't Ass'n v. Office of Special Prosecutor (In Re Appointment of Special Prosecutor) , 432 Ill. Dec. 638 ( 2019 )

2019 IL 122949
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122949)
In re APPOINTMENT OF SPECIAL PROSECUTOR (Better Government Association,
Appellant; the Office of the Special Prosecutor et al., Appellees).
Opinion filed January 25, 2019.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Kilbride, Garman, Burke, and Theis
concurred in the judgment and opinion.
Justice Thomas took no part in the decision.
OPINION
¶1 Defendants, the City of Chicago (City) and the office of the special prosecutor
(OSP), denied the requests of plaintiff, the Better Government Association (BGA),
to disclose, pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1
et seq. (West 2012)), sealed grand jury documents. 1 In the course of the resulting
litigation, the circuit court of Cook County entered competing orders regarding
disclosure. The appellate court rejected disclosure of most of the BGA’s FOIA
requests, but remanded to the circuit court for an in camera inspection of a specific
category of documents to determine which, if any, may be disclosed. 2017 IL App
(1st) 161376.
¶2 This court allowed the BGA’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff.
Mar. 15, 2016)). We now affirm the judgment of the appellate court.
¶3 I. BACKGROUND
¶4 During the early morning of April 24, 2004, an altercation arose between
Richard Vanecko and David Koschman on Division Street in Chicago. What began
as an exchange of words escalated to Vanecko punching Koschman in the face,
causing Koschman to fall backwards and strike his head on the sidewalk. On May
6, 2004, Koschman died from his injuries resulting from Vanecko’s physical
assault. Between 2004 and 2011, law enforcement authorities investigated the
incident. However, no charges were filed against Vanecko or anyone else.
¶5 In December 2011, several members of the Koschman family filed a petition
for the appointment of a special prosecutor in the criminal division of the circuit
court of Cook County (hereinafter the criminal court). 2 The petition alleged that
Vanecko was a nephew of then-Chicago Mayor Richard M. Daley and a grandson
of former Chicago Mayor Richard J. Daley and that “officials in the Chicago Police
Department and the State’s Attorney’s Office may have been led by favoritism or
other improper motives to obstruct the investigation so that [Vanecko] did not face
1
This appeal arises from two separate actions in the circuit court, later consolidated before the
appellate court. The parties described here as plaintiff and defendants had those roles in Better
Government Ass’n v. Office of the Special Prosecutor, No. 15-CH-4183 (Cir. Ct. Cook County),
and different roles in In re Appointment of Special Prosecutor, No. 11-Misc.-46 (Cir. Ct. Cook
County).
2
The circuit court of Cook County is a unified court of general jurisdiction that is divided into
divisions as a matter of administrative convenience. See Droen v. Wechsler, 271 Ill. App. 3d 332,
336-37 (1995); Colaric v. Norstrom, 146 Ill. App. 3d 352, 355 (1986); In re Marriage of Peshek, 89
Ill. App. 3d 959, 966-67 (1980). However, for our convenience, we will refer to the circuit court
divisions relevant to the instant case as the “criminal court” and the “chancery court.”
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criminal charges.” In April 2012, the criminal court granted the petition and
appointed Dan K. Webb as special prosecutor. See 55 ILCS 5/3-9008 (West 2010).
The court ordered Webb to investigate (1) whether criminal charges should be filed
against anyone in connection with Koschman’s death and (2) whether “employees
of the Chicago Police Department and the Cook County State’s Attorney’s Office
acted intentionally to suppress and conceal evidence, furnish false evidence, and
generally impede the investigation into Mr. Koschman’s death.” The court also
ordered Webb to submit a final report “detailing the progress and ultimate results of
the investigation and any criminal prosecutions commenced.”
¶6 The court further ordered that “the Special Prosecutor shall be empowered to
hire and direct a staff of deputy attorneys, investigators, and such other
administrative personnel as necessary to discharge the duties of the Office of the
Special Prosecutor.” The order memorialized the understanding “that in
performance of his duties the Special Prosecutor shall utilize office space provided
by his law firm *** with reimbursement for incidental costs for telephone or
internet connections, or other office equipment and miscellaneous expenses
incurred.”
¶7 In May 2012, on petition of the special prosecutor, the criminal court impaneled
a special grand jury, and on June 14, 2012, the court granted the special
prosecutor’s motion for a protective order. The order placed under seal “all Grand
Jury materials, including but not limited to subpoenas, target letters, and other
correspondence related to the service of a Grand Jury subpoena, sent by the [OSP]
to any individual or entity in connection with this investigation.” Also, the
protective order prohibited “individuals or entities who receive Grand Jury
materials from the [OSP] in connection with this investigation *** from further
disseminating that material or information contained therein.” Further, the criminal
court placed under seal both the OSP’s motion and the protective order itself.
¶8 During the course of the OSP investigation, the special grand jury obtained
information from 146 witnesses through testimony and witness interviews. The
special grand jury issued 160 subpoenas for documentary evidence and testimony,
and collected more than 22,000 documents totaling more than 300,000 pages. On
December 3, 2012, the special grand jury indicted Vanecko for involuntary
manslaughter in connection with Koschman’s death.
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¶9 On September 18, 2013, after the OSP informed the criminal court that no
further indictments would be sought against employees of the Chicago Police
Department or the Cook County State’s Attorney’s Office for their actions related
to Koschman’s death, the court discharged the special grand jury. That same day,
the OSP filed its report, which the court placed under seal to preserve Vanecko’s
right to a fair trial. On January 31, 2014, Vanecko pled guilty as charged. On
February 4, 2014, the court unsealed the report and released it to the public.
¶ 10 A few days later, the Chicago Sun-Times submitted a FOIA request to the City
seeking copies of all subpoenas received from the OSP and all documents and
records provided to the OSP. The City denied the request based on the June 2012
protective order and requested the criminal court to unseal the June 14, 2012,
protective order, which the court did on March 27, 2014. On the City’s motion, the
court entered a June 2014 order clarifying its June 2012 protective order. The 2014
protective order prohibited the City from complying with any FOIA request that
identified or characterized documents as having been disseminated to the OSP in
furtherance of the Koschman investigation. Further, the 2014 order provided that
the June 2012 protective order remained in effect and that it limited only the
identification of any documents or other records as being grand jury materials.
¶ 11 In January 2015, the BGA submitted the instant FOIA requests to defendants.
The BGA sought from the OSP (1) documents sufficient to show the names of
everyone whom the OSP interviewed; (2) copies of statements by and
communications with Daley family members, their attorney, and the City’s
corporation counsel at the time; and (3) copies of itemized invoices and billing
records. The BGA sought from the City essentially the same documents that the
Chicago Sun-Times had previously requested, copies of all subpoenas received
from the OSP and all records and documents provided to the OSP. Each defendant
sent a response letter denying the BGA’s FOIA request, explaining that all of the
materials requested were exempt from FOIA because disclosure was prohibited by
state law.
¶ 12 In March 2015, the BGA filed a complaint for declaratory and injunctive relief
against the OSP, the mayor’s office and the law department of the City of Chicago,
and the Chicago Police Department. The BGA’s lawsuit was assigned to chancery
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court, which declined to transfer the action to criminal court in conjunction with the
protective orders.
¶ 13 The OSP and the City each filed a motion to dismiss the BGA’s complaint
pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS
5/2-619(a)(9) (West 2014)). Each defendant asserted that the requested materials
were exempt from disclosure pursuant to section 7(1)(a) of FOIA (5 ILCS
140/7(1)(a) (West 2014)) because disclosure was prohibited by state law
concerning the secrecy of grand jury proceedings.
¶ 14 The OSP asserted that section 112-6 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/112-6 (West 2014)) prohibited disclosure. The chancery court
granted the OSP’s motion to dismiss. The court found that section 112-6 prohibited
disclosure of the requested materials, which rendered them exempt from disclosure
pursuant to section 7(1)(a) of FOIA.
¶ 15 The City asserted that the criminal court’s protective orders prohibited
disclosure, which rendered the requested materials exempt from disclosure
pursuant to section 7(1)(a) of FOIA. The City also asserted that it would be held in
contempt of court if it disregarded the protective orders. However, the chancery
court denied the City’s motion to dismiss. The chancery court rejected the City’s
argument that a court order alone creates a FOIA exemption. Accordingly, the
chancery court found that the criminal court’s protective orders did not constitute
state law that would render the requested materials exempt from disclosure
pursuant to section 7(1)(a) of FOIA.
¶ 16 At the suggestion of the chancery court, the City returned to criminal court and
requested modification of the protective orders in light of the chancery court’s
ruling. The criminal court declined to modify the protective orders.
¶ 17 The City filed an answer and affirmative defenses to the BGA’s complaint. The
City and the BGA then filed cross-motions for judgment on the pleadings, adopting
their respective arguments made in the context of the City’s motion to dismiss. The
chancery court granted judgment on the pleadings in favor of the BGA and denied
the City’s motion therefor. Noting the conflict with the criminal court’s orders, the
chancery court stayed the City’s disclosure obligations pending appeal.
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¶ 18 The litigation generated multiple appeals, which the appellate court
consolidated. 2017 IL App (1st) 161376, ¶ 29. 3 The BGA appealed from the
chancery court’s dismissal of its FOIA request to the OSP. The appellate court
affirmed the dismissal in large part (id. ¶¶ 54-65) but concluded that the OSP’s
invoices and billing records that the BGA requested were not categorically
protected from disclosure. The appellate court reversed and remanded so that the
chancery court could conduct an in camera inspection to determine what, if any,
billing records may be disclosed. 4 Id. ¶¶ 66-70.
¶ 19 Also, the City appealed from the chancery court’s grant of judgment on the
pleadings in favor of the BGA. The appellate court reversed the judgment in favor
of the BGA and entered judgment on the pleadings in favor of the City. Id.
¶¶ 40-53; see Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994). The appellate court
expressly refused to address the issue of whether the criminal court’s protective
orders constituted state law that would render the requested materials exempt from
disclosure pursuant to section 7(1)(a) of FOIA. Rather, the appellate court held that
the protective orders took precedence over the disclosure requirements of FOIA.
2017 IL App (1st) 161376, ¶ 46.
¶ 20 The BGA appeals to this court. We granted the Reporters Committee for
Freedom of the Press leave to submit an amicus curiae brief in support of the BGA.
Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 21 II. ANALYSIS
¶ 22 Before this court, the BGA assigns error to the appellate court’s (1) partial
dismissal of the FOIA complaint against the OSP and (2) grant of judgment on the
pleadings in favor of the City. In both procedural settings, our review is de novo.
See, e.g., Better Government Ass’n v. Illinois High School Ass’n, 2017 IL 121124,
¶ 21 (section 2-619 dismissal); Gillen v. State Farm Mutual Automobile Insurance
3
Beyond the claims presented here, the City additionally appealed from the circuit court’s
denial, in In re Appointment of Special Prosecutor, No. 11-Misc.-46 (Cir. Ct. Cook County), of the
City’s motion to modify the protective order. The appellate court affirmed that order, and the City
did not file a petition for leave to appeal to this court.
4
Before this court, neither the City nor the OSP challenges the appellate court’s judgment on
in camera inspection of the OSP’s billing records.
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Co., 215 Ill. 2d 381, 385 (2005) (judgment on the pleadings). Whether FOIA
mandates disclosure from each defendant requires us to construe various statutory
provisions. Statutory construction presents a question of law reviewed de novo.
In re M.M., 2016 IL 119932, ¶ 15.
¶ 23 In construing FOIA, we are guided by familiar principles. The primary
objective in construing a statute is to ascertain and give effect to the intent of the
legislature. The most reliable indicator of legislative intent is the language of the
statute, given its plain and ordinary meaning. Better Government Ass’n, 2017 IL
121124, ¶ 22; Southern Illinoisan v. Department of Public Health, 218 Ill. 2d 390,
415 (2006). A statute is viewed as a whole. Therefore, words and phrases must be
construed in light of other relevant statutory provisions and not in isolation.
Southern Illinoisan, 218 Ill. 2d at 415; Williams v. Staples, 208 Ill. 2d 480, 487
(2004). Each word, clause, and sentence of a statute must be given a reasonable
meaning, if possible, and should not be rendered superfluous. Also, the court may
consider the reason for the law, the problems sought to be remedied, the purposes to
be achieved, and the consequences of construing the statute one way or another.
Better Government Ass’n, 2017 IL 121124, ¶ 22; Williams, 208 Ill. 2d at 487.
Further, a court presumes that the legislature did not intend absurdity,
inconvenience, or injustice in enacting legislation. Southern Illinoisan, 218 Ill. 2d
at 415.
¶ 24 FOIA expressly declares its underlying public policy and legislative intent.
Section 1 provides that “all persons are entitled to full and complete information
regarding the affairs of government and the official acts and policies of those who
represent them as public officials and public employees consistent with the terms of
this Act.” 5 ILCS 140/1 (West 2014). Section 1 explains that “[s]uch access is
necessary to enable the people to fulfill their duties of discussing public issues fully
and freely, making informed political judgments and monitoring government to
ensure that it is being conducted in the public interest.” Id. Consequently, section 1
provides that “[i]t is a fundamental obligation of government to operate openly and
provide public records as expediently and efficiently as possible in compliance
with this Act.” Id.
¶ 25 Based on this clear expression of legislative intent, this court has held that
public records are presumed to be open and accessible. Lieber v. Board of Trustees
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of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). FOIA is to be liberally
construed to achieve the goal of providing the public with easy access to
government information. Southern Illinoisan, 218 Ill. 2d at 416 (and cases cited
therein). Consequently, FOIA’s exceptions to disclosure are to be construed
narrowly so as not to defeat the intended statutory purpose. Id. at 416-17. 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) (West 2014); see Southern Illinoisan, 218 Ill. 2d at 417; Lieber, 176 Ill. 2d
at 407-08. 5 Having discussed the statutory backdrop, we address the BGA’s
arguments as to each defendant.
¶ 26 A. The OSP
¶ 27 We first address the BGA’s contention that the appellate court erred in
affirming the chancery court’s order dismissing count I of its complaint. In count I,
the BGA alleged the OSP violated section 3(a) of FOIA by failing to disclose
certain materials generated in the course of the grand jury investigation. The
chancery court dismissed count I pursuant to section 2-619(a)(9) of the Code of
Civil Procedure.
¶ 28 The purpose of a motion to dismiss under section 2-619 is to dispose of issues
of law and easily proved issues of fact early in the litigation. Van Meter v. Darien
Park District, 207 Ill. 2d 359, 367 (2003). Section 2-619(a)(9) permits involuntary
dismissal where the alleged claim is barred by an affirmative matter that avoids the
legal effect of or defeats the claim. 735 ILCS 5/2-619(a)(9) (West 2014). The
moving party admits the legal sufficiency of the complaint but asserts that some
affirmative matter defeats the claim. When ruling on a section 2-619 motion, a
court must interpret all pleadings and supporting documents in favor of the
nonmoving party. Bjork v. O’Meara, 2013 IL 114044, ¶ 21. An affirmative matter
is “something in the nature of a defense which negates the cause of action
completely or refutes crucial conclusions of law or conclusions of material fact
contained in or inferred from the complaint.” Illinois Graphics Co. v. Nickum, 159
Ill. 2d 469, 486 (1994).
5
The City and the OSP are “public bodies” in terms of FOIA. See 5 ILCS 140/2(a) (West 2014)
(City); 2017 IL App (1st) 161376, ¶ 56 (OSP).
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¶ 29 Section 7(1) of FOIA provides that certain categories of records “shall be
exempt from inspection and copying.” 5 ILCS 140/7(1) (West 2014). Pertinent to
this appeal, section 7(1)(a) provides for the following disclosure exemption:
“Information specifically prohibited from disclosure by federal or State law or rules
and regulations implementing federal or State law.” Id. § 7(1)(a). The chancery
court found that disclosure of the requested materials was prohibited under section
112-6(c)(1) of the Code (725 ILCS 5/112-6(c)(1) (West 2014)), which bars
disclosure of “matters occurring before the Grand Jury,” rendering the requested
materials exempt from disclosure pursuant to section 7(1)(a) of FOIA.
¶ 30 “The grand jury is an English institution, brought to this country by the early
colonists and incorporated in the Constitution by the Founders.” People v. Jones,
19 Ill. 2d 37, 42 (1960). The function of a grand jury is not to determine the
sufficiency of evidence to convict (United States v. Calandra, 414 U.S. 338,
343-44 (1974)) 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 (In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 392
(1992)).
¶ 31 The rule of secrecy surrounding grand jury proceedings is a common-law
concept recognized as a fundamental component of both federal and state criminal
procedural law. See, e.g., Douglas Oil Co. of California v. Petrol Stops Northwest,
441 U.S. 211, 218 n.9 (1979) (“Since the 17th century, grand jury proceedings have
been closed to the public, and records of such proceedings have been kept from the
public eye.”); People v. Boston, 2016 IL 118661, ¶ 49 (Burke, J., dissenting)
(“Grand jury proceedings are secret [citation], and this secrecy is fundamental to
our criminal procedure.” (Internal quotation marks omitted.)).
¶ 32 The policy reasons given for maintaining grand jury secrecy are preventing the
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. See, e.g., Douglas Oil Co., 441 U.S. at
219 n.10; People v. Johnson, 31 Ill. 2d 602, 605-06 (1964); Board of Education,
Community Unit School District No. 200 v. Verisario, 143 Ill. App. 3d 1000,
1010-11 (1986).
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¶ 33 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) (West 2014). 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).
¶ 34 The BGA contends the appellate court erred in finding that the materials it
sought constituted “matters occurring before the grand jury.” It argues the court
applied an “unduly broad interpretation” of the phrase. According to the BGA, the
phrase should be construed narrowly when it serves as a basis for an exemption
under FOIA. The BGA further contends its application should be limited to
exempting material actually presented to the grand jury and to documents showing
what transpired in the grand jury room. We disagree.
¶ 35 Section 112-6 of the Code is modeled after Rule 6(e) of the Federal Rules of
Criminal Procedure. People ex rel. Sears v. Romiti, 50 Ill. 2d 51, 58-59 (1971).
Rule 6(e) prohibits grand jurors, government attorneys, and other persons attached
to federal grand jury proceedings from disclosing a “matter occurring before the
grand jury.” Fed. R. Crim. P. 6(e)(2)(B)(i)-(vii). Because the federal and state
statutes incorporate substantially similar language, we may look to federal cases
interpreting the federal statute in construing the similarly worded Illinois statute.
See People ex rel. Lignoul v. City of Chicago, 67 Ill. 2d 480, 484 (1977); Mashal v.
City of Chicago, 2012 IL 112341, ¶ 24 (looking to federal case law for guidance in
construing phrase “decision on the merits” as used in state class certification statute
where statute was modeled on federal rule of civil procedure); Verisario, 143 Ill.
App. 3d at 1005.
¶ 36 Federal courts interpreting the phrase “matters occurring before the grand jury”
for purposes of Rule 6(e) have found that the phrase encompasses any material that
tends to “reveal some secret aspect of the grand jury’s investigation, [including] the
identities of witnesses or jurors, the substance of testimony, the strategy or
direction of the investigation, the deliberations or questions of jurors, and the like.”
(Internal quotation marks omitted.) Lopez v. Department of Justice, 393 F.3d 1345,
1349 (D.C. Cir. 2005); see United States v. Phillips, 843 F.2d 438, 441 (11th Cir.
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1988) (“The term ‘matters occurring before the grand jury’ has been defined to
include anything that will reveal what transpired during the grand jury
proceedings.”).
¶ 37 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.”
¶ 38 The appellate 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.
¶ 39 We agree with the appellate court’s analysis given the facts in the instant
proceedings. In this particular case, the material the appellate court found was
protected from disclosure by section 112-6 clearly contained information related to
the grand jury proceeding that, if made public, would disclose matters occurring
before the grand jury. The BGA’s first FOIA request would reveal the identities of
the witnesses, which are matters occurring before the grand jury. See, e.g., In re
Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998) (matters
occurring before the grand jury include the identities of witnesses, and the
government is not free to “publish lists of prospective or former grand jury
witnesses” (internal quotation marks omitted)). And in regard to the BGA’s second
FOIA request, it cannot seriously be contended that the disclosure of such
statements and communications would not be reflective of statements made before
the grand jury revealing the strategy or direction of the grand jury investigation.
¶ 40 The BGA alternatively argues that, even if the requested materials constitute
“matters occurring before the grand jury,” they should still be disclosed pursuant to
subsection (c)(3) of section 112-6 of the Code. This subsection allows disclosure of
grand jury materials “when a law so directs.” 725 ILCS 5/112-6(c)(3) (West 2014).
The BGA contends that section 3(a) of FOIA is such a law.
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¶ 41 Section 3(a) of FOIA provides in relevant part that “[e]ach public body shall
make available to any person for inspection or copying all public records.” 5 ILCS
140/3(a) (West 2014). The BGA argues that, under subsection (c)(3) of section
112-6 of the Code, section 3(a) of FOIA is a law that directs the disclosure of the
grand jury materials at issue.
¶ 42 The BGA made the same argument in the appellate court, and it was rejected.
The appellate court reasoned:
“We believe that the clause ‘when a law so directs’ in section 112-6(c)(3)
addresses situations of particularized necessity, such as disclosure to a court
clerk or to confront a witness in a criminal trial with his prior contrary
testimony. Despite exhaustive briefing, no party has cited a case where section
112-6 of the Code was held not to trigger a section 7(1)(a) exemption. We agree
with the OSP that adopting the BGA’s expansive interpretation of ‘when a law
so directs’ would render the secrecy provisions in section 112-6 of the Code ‘a
dead letter,’ because FOIA would effectively nullify them.” (Emphasis in
original.) 2017 IL App (1st) 161376, ¶ 63.
¶ 43 We agree with the appellate court’s reasoning. If we adopted the BGA’s
position, documents could be disclosed through a FOIA request, even if they
pertained to matters occurring before the grand jury. As a result, there would be few
if any grand jury matters that could not be obtained through a FOIA request. Such a
rule would effectively nullify the grand jury secrecy protections provided by
section 112-6.
¶ 44 The BGA contends that, even if we adopt the appellate court’s “not improper”
analysis, which we examine in the next section of this opinion, we should still find
that it was “improper” for the OSP to withhold the requested material given the
public interest in their disclosure and in light of the fact that some of the material
had already been disclosed. Again, we must disagree.
¶ 45 The material the BGA claims the OSP previously disclosed consisted of
material the criminal court requested to enable it to assess the progress of the
criminal investigation. The OSP was simply executing its court-mandated duty as a
special prosecutor when it submitted the material to the criminal court.
Accordingly, based on our subsequent discussion, the OSP did not “improperly”
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withhold the requested material in terms of section 11(d) of FOIA. See 2017 IL
App (1st) 161376, ¶ 46 (compliance with lawful court order does not constitute
“improper” withholding).
¶ 46 Also, we disagree with the BGA’s assertion that disclosure of the requested
grand jury material was in the public interest. In discussing the need for
maintaining secrecy of grand jury proceedings in the federal court system under
Federal Rule of Criminal Procedure 6(e), the United States Supreme Court has held
that disclosure of grand jury materials is appropriate only in cases where the need
for disclosure outweighs the public interest in secrecy. Douglas Oil Co., 441 U.S. at
223.
¶ 47 A party seeking disclosure of grand jury material must demonstrate a
“particularized need” for disclosure that outweighs the policies supporting the
secrecy of grand jury proceedings. Wisconsin v. Schaffer, 565 F.2d 961, 965 (7th
Cir. 1977). Parties must show that the material they seek is needed to avoid a
possible injustice and that their request is structured to cover only material so
needed. In re Matter of Grand Jury Proceedings, Special September, 1986, 942
F.2d 1195, 1198 (7th Cir. 1991) (citing Douglas Oil Co., 441 U.S. at 222).
¶ 48 The BGA has not shown particularized need for disclosure of the requested
material. Instead, the BGA argues that disclosure of the requested material would
serve the public interest in detecting and deterring political and prosecutorial
corruption. Such generalized statements do not constitute “particularized need.”
See, e.g., United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1978)
(unsupported speculation about what disclosure would reveal insufficient to
constitute a “particularized need”).
¶ 49 In sum, section 112-6 of the Code prohibited disclosure of the requested
material, triggering the exemption provided by section 7(1)(a) of FOIA. Therefore,
we affirm that portion of the appellate court’s judgment that affirmed the chancery
court’s order dismissing count I of the BGA’s complaint. We likewise leave
undisturbed that portion of the appellate court’s judgment reversing the chancery
court’s order in part and remanding for in camera review of the OSP’s invoices and
billing records.
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¶ 50 B. The City
¶ 51 The BGA contends that the appellate court erred in reversing the chancery
court’s grant of judgment on the pleadings in favor of the BGA and granting
judgment on the pleadings in favor of the City. The BGA argues that the criminal
court’s protective orders cannot provide the City with a basis for not complying
with the BGA’s FOIA requests.
¶ 52 A motion for judgment on the pleadings, as provided by section 2-615(e) of the
Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2014)), is essentially a
motion for summary judgment that is limited to the pleadings. Lebron v. Gottlieb
Memorial Hospital, 237 Ill. 2d 217, 227 (2010). In ruling on the motion, a court
will consider only those facts apparent from the face of the pleadings, matters
subject to judicial notice, and judicial admissions in the record. All well-pleaded
facts and reasonable inferences therefrom are taken as true. Gillen, 215 Ill. 2d at
385; H&M Commercial Driver Leasing, Inc. v. Fox Valley Containers, Inc., 209 Ill.
2d 52, 56-57 (2004). Judgment on the pleadings is proper when the pleadings
disclose no genuine issue of material fact and the movant is entitled to judgment as
a matter of law. Lebron, 237 Ill. 2d at 227; Gillen, 215 Ill. 2d at 385.
¶ 53 Throughout these proceedings, the City cited GTE Sylvania, Inc. v. Consumers
Union of the United States, Inc., 445 U.S. 375 (1980), to alternatively argue that it
would be held in contempt of court if it disregarded the criminal court’s protective
orders and that the legislature did not intend for public bodies to commit contempt
of court in complying with FOIA requests. As earlier noted, the chancery court
rejected this argument, but the appellate court accepted it. The appellate court noted
that section 11(d) of FOIA authorizes a circuit court to order FOIA disclosure only
where the public body has “improperly withheld” the requested documents. 2017
IL App (1st) 161376, ¶ 45; see 5 ILCS 140/11(d) (West 2014). Relying on GTE
Sylvania, which construed the federal counterpart to section 11(d), the appellate
court held that “a lawful court order must take precedence over the disclosure
requirements of FOIA and that a public body refusing to disclose documents
because a court order commands it to do so does not always withhold those
documents ‘improperly.’ ” 2017 IL App (1st) 161376, ¶ 46.
¶ 54 The BGA argues that we should not refer to federal FOIA decisions in
construing section 11(d) of FOIA because “our statute differs materially from the
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federal FOIA statute.” We disagree. The General Assembly patterned FOIA after
the federal FOIA. Compare 5 ILCS 140/1 et seq. (West 2014), with 5 U.S.C. § 552
(2012). Both statutes mandate that a public body must comply with a proper request
for disclosure unless the requested material falls within a specific and narrowly
construed statutory exemption. Compare Southern Illinoisan, 218 Ill. 2d at 416-17,
and Lieber, 176 Ill. 2d at 407-08 (both cases discussing FOIA), with Milner v.
Department of the Navy, 562 U.S. 562, 565 (2011) (discussing federal FOIA).
¶ 55 Due to the similarity of the statutes, Illinois courts often look to federal case law
construing the federal FOIA for guidance in construing FOIA. See Hamer v. Lentz,
132 Ill. 2d 49, 58 (1989); Korner v. Madigan, 2016 IL App (1st) 153366, ¶ 10;
Hites v. Waubonsee Community College, 2016 IL App (2d) 150836, ¶ 60; State
Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881,
¶ 21. Further, case law from other states construing similar freedom of information
statutes may be persuasive. See Better Government Ass’n v. Village of Rosemont,
2017 IL App (1st) 161957, ¶ 24.
¶ 56 Section 11 of FOIA provides that any person who is denied access to inspect or
copy any public record by a public body may file a complaint in the appropriate
circuit court for declaratory or injunctive relief. 5 ILCS 140/11(a)-(c) (West 2014).
Specifically, section 11(d) of FOIA provides: “The circuit court shall have the
jurisdiction to enjoin the public body from withholding public records and to order
the production of any public records improperly withheld from the person seeking
access.” (Emphasis added.) Id. § 11(d). Similarly, section 552(a)(4)(B) of the
federal FOIA provides that, on complaint, the appropriate federal district court “has
jurisdiction to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant.”
(Emphasis added.) 5 U.S.C. § 552(a)(4)(B) (2012).
¶ 57 The United States Supreme Court has construed section 552(a)(4)(B) of the
federal FOIA to require a showing of three statutory components before a federal
court may force disclosure pursuant to the statute. The agency must have
(1) improperly (2) withheld (3) agency records. United States Department of
Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); Kissinger v. Reporters
Committee for Freedom of the Press, 445 U.S. 136, 150 (1980). GTE Sylvania
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focused on whether the first requirement, whether the requested information had
been improperly withheld, had been satisfied. GTE Sylvania, 445 U.S. at 384.
¶ 58 In GTE Sylvania, a federal district court enjoined the Consumer Product Safety
Commission (CPSC) from releasing to the public certain documents. After the
injunction was issued, Consumers Union filed a complaint in another federal
district court seeking disclosure pursuant to the federal FOIA. Id. at 377-79. The
Supreme Court reasoned that the CPSC did not “improperly” withhold the
requested information because a federal court had prohibited its disclosure. Far
from acting “improperly,” the agency simply lacked any discretion to exercise. Id.
at 386. The Court explained that its conclusion was “further supported by the
established doctrine that persons subject to an injunctive order issued by a court
with jurisdiction are expected to obey that decree until it is modified or reversed,
even if they have proper grounds to object to the order.” Id. (collecting cases).
Therefore, the agency was required to obey the injunctions out of respect for the
judicial process. Id. at 386-87. The Court concluded as follows:
“There is nothing in the legislative history to suggest that in adopting the
Freedom of Information Act to curb agency discretion to conceal information,
Congress intended to require an agency to commit contempt of court in order to
release documents. *** To construe the lawful obedience of an injunction
issued by a federal district court with jurisdiction to enter such a decree as
‘improperly’ withholding documents under the Freedom of Information Act
would do violence to the common understanding of the term ‘improperly’ and
would extend the Act well beyond the intent of Congress.” Id. at 387. 6
¶ 59 Before this court, the BGA argues that “improper withholding” is not a
substantive legal doctrine in Illinois but merely expresses the conclusion that
withheld information is not exempt from disclosure. In other words, records are
“improperly withheld” when they are withheld for any reason outside of the
statutory list of exemptions.
6
The Court indicated two exceptions that do not pertain to the instant case. An injunction does
not take precedence over a FOIA request where (1) the court issuing the injunction lacked personal
or subject-matter jurisdiction (GTE Sylvania, 445 U.S. at 386) or (2) the injunction had “ ‘only a
frivolous pretense to validity’ ” (id. (quoting Walker v. City of Birmingham, 388 U.S. 307, 315
(1967))).
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¶ 60 This argument is generally correct. As earlier discussed, a public body must
comply with a proper request for disclosure unless the requested material falls
within a specific and narrowly construed statutory exemption. Southern Illinoisan,
218 Ill. 2d at 416-17; Milner, 562 U.S. at 565. Accordingly, based on the exclusive
nature of the exemption scheme, “agency records which do not fall within one of
the exemptions are ‘improperly’ withheld.” Tax Analysts, 492 U.S. at 151.
¶ 61 However, the BGA further argues that the United States Supreme Court’s
approach in GTE Sylvania, which the appellate court adopted, “requires a second
analysis of ‘propriety’ in every FOIA case,” based on standards that are nowhere
provided. As did the Supreme Court, we reject the “suggestion that GTE Sylvania
invites courts in every case to engage in balancing *** to determine whether there
has been an unjustified denial of information. The FOIA invests courts neither with
the authority nor the tools to make such determinations.” Id. at 155.
¶ 62 Rather, GTE Sylvania explained that the concerns underlying the federal FOIA
were inapplicable because that agency had made no effort to avoid disclosure and,
indeed, it was not the agency’s decision to withhold the requested documents. GTE
Sylvania, 445 U.S. at 386. While “GTE Sylvania represents a departure from the
FOIA’s self-contained exemption scheme, this departure was a slight one at best,
and was necessary in order to serve a critical goal independent of the FOIA—the
enforcement of a court order.” Tax Analysts, 492 U.S. at 155. “Part and parcel of
the GTE Sylvania decision is the principle that an injunction issued by one court
against the disclosure of information may not be collaterally attacked in another
court in a FOIA lawsuit seeking disclosure of that information.” Alley v. United
States Department of Health & Human Services, 590 F.3d 1195, 1203 (11th Cir.
2009); see Wagar v. United States Department of Justice, 846 F.2d 1040, 1046 (6th
Cir. 1988) (explaining that “the facts of the GTE Sylvania case did not concern the
evils that the FOIA was intended to prevent because the CPSC was simply
following a lawful court order”); Bangor Publishing Co. v. Town of Bucksport, 682
A.2d 227, 229 (Me. 1996) (concluding that “the [FOIA] actions are impermissible
collateral attacks on a valid protective order. *** The protective order, as it stands,
is just and proper cause for the nondisclosure of the documents.”).
¶ 63 For these reasons, we likewise reject the BGA’s argument that applying GTE
Sylvania to FOIA “would create a dichotomy” between proceedings on judicial
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review and proceedings before the Public Access Counselor (PAC) (see 5 ILCS
140/9.5 (West 2014)). Section 9.5 of FOIA provides that when a public body denies
a request to disclose a public document, the requester may ask the PAC to review
the denial. Id. This section provides requesters with an alternative avenue of redress
when a public body denies a FOIA request “other than going straight into a lengthy
and expensive court battle.” Sarah Klaper, The Sun Peeking Around the Corner:
Illinois’ New Freedom of Information Act as a National Model, 10 Conn. Pub. Int.
L.J. 63, 73 (2010). The BGA argues that “a protective order or other ‘not improper’
basis for withholding a record could be used in court but not in an adjudication
before the PAC.” GTE Sylvania arose in a different context than a typical FOIA
case and does not concern FOIA’s self-contained statutory exemption scheme but
rather serves the independent goal of enforcing court orders. Tax Analysts, 492 U.S.
at 155.
¶ 64 Indeed, the reasoning in GTE Sylvania and its progeny accords with established
Illinois law. As this court explained long ago:
“The power of the courts to enforce their orders and judgments is a necessary
incident to the administration of justice, and if they were without power to
compel obedience or to prevent unwarranted interference with the
administration of justice they could not perform their functions or secure the
rights of litigants, however important.” Court Rose No. 12, Foresters of
America v. Corna, 279 Ill. 605, 607-08 (1917).
Accordingly, where a circuit court with personal and subject-matter jurisdiction
issues an injunction, the injunction must be obeyed, however erroneous it may be,
until it is modified or set aside by the court itself or reversed by a higher court.
Disobedience of such an injunction constitutes, and is punishable as, contempt of
the lawful authority of the court. Board of Education of the Kankakee School
District No. III v. Kankakee Federation of Teachers Local No. 886, 46 Ill. 2d 439,
445 (1970); see Court Rose No. 12, 279 Ill. at 607 (collecting cases); People ex rel.
Illinois State Dental Society v. Norris, 79 Ill. App. 3d 890, 895 (1979) (same). 7
7
The BGA argues that the criminal court’s protective orders are erroneous because a court may
not “impose a gag order on the recipient of a grand jury subpoena in Illinois.” This argument is
irrelevant to the City’s obligation to comply with the orders.
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¶ 65 The BGA argues that this court “should not allow public bodies to benefit from
protective orders they were involved in procuring.” This argument has no basis in
the record. The criminal court issued its original, June 2012, protective order at the
request of the OSP—not the City. Although the criminal court issued its June 2014
protective order on the City’s motion, that order merely clarified its original order,
which the City did not procure.
¶ 66 In the case at bar, after discussing GTE Sylvania, the appellate court concluded:
“We see no reason, nor any textual distinction in the Illinois FOIA, why the rule
articulated in GTE Sylvania should not apply with equal force here. *** We
merely hold, as did the United States Supreme Court in GTE Sylvania, that
‘respect for judicial process’ requires that a lawful court order must take
precedence over the disclosure requirements of FOIA and that a public body
refusing to disclose documents because a court order commands it to do so does
not always withhold those documents ‘improperly.’ ” 2017 IL App (1st)
161376, ¶ 46.
Therefore, following GTE Sylvania, we hold that a lawful court order takes
precedence over the disclosure requirements of FOIA.
¶ 67 The rule that a FOIA lawsuit may not be used to collaterally attack an
injunction prohibiting disclosure of records does not mean that there is no remedy
for the FOIA requester. Rather, the requester must first have the court that issued
the injunction modify or vacate its order barring disclosure. If the issuing court
refuses, the FOIA requester may challenge the refusal in a direct appeal rather than
an impermissible collateral attack. See Alley, 590 F.3d at 1204 (collecting cases);
see generally People v. Nance, 189 Ill. 2d 142, 145 (2000); Bowman Dairy Co. v.
Lyons, 2 Ill. 2d 625, 629-30 (1954); Illinois State Dental Society, 79 Ill. App. 3d at
895-96; People ex rel. Watson v. Spinka, 58 Ill. App. 3d 729, 733 (1978).
¶ 68 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. In light of this holding, we need not address
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the City’s alternative argument that the protective orders constitute state law that
renders the requested documents exempt from disclosure pursuant to section
7(1)(a) of FOIA. See, e.g., In re M.M., 2016 IL 119932, ¶ 31. We uphold the
appellate court’s grant of judgment on the pleadings in favor of the City.
¶ 69 We note that if this court had ordered the City to comply with the BGA’s FOIA
request, the City asks us to modify the protective orders to allow compliance.
However, in light of our disposition, we need not and do not address this issue. See,
e.g., Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 35.
¶ 70 III. CONCLUSION
¶ 71 For the foregoing reasons, the judgment of the appellate court, which affirmed
in part and reversed in part the orders of the circuit court, is affirmed.
¶ 72 Appellate court judgment affirmed.
¶ 73 Circuit court judgments affirmed in part and reversed in part.
¶ 74 JUSTICE THOMAS took no part in the consideration or decision of this case.
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