In re Appointment of a Special Prosecutor

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Appellate Court Date: 2018.02.08
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In re Appointment of Special Prosecutor, 2017 IL App (1st) 161376
Appellate Court In re APPOINTMENT OF SPECIAL PROSECUTOR (The City of
Caption Chicago, Movant-Appellant, v. The Office of the Special Prosecutor
and Dan K. Webb, Respondents-Appellees).–BETTER
GOVERNMENT ASSOCIATION, Plaintiff-Appellant and Appellee,
v. THE CITY OF CHICAGO LAW DEPARTMENT, THE CITY OF
CHICAGO MAYOR’S OFFICE, THE CHICAGO POLICE
DEPARTMENT, and THE OFFICE OF THE SPECIAL
PROSECUTOR, Defendants-Appellants and Appellees.
District & No. First District, Sixth Division
Docket Nos. 1-16-1376, 1-16-1892, 1-16-2071 cons.
Filed October 20, 2017
Decision Under Appeal from the Circuit Court of Cook County, Nos. 2011-Misc-46,
Review 15-CH-4183; the Hon. Michael P. Toomin and the Hon. Mary Lane
Mikva, Judges, presiding.
Judgment No. 1-16-1376, Affirmed.
No. 1-16-1892, Affirmed in part, reversed in part, and remanded.
No. 1-16-2071, Reversed; motion granted.
Counsel on Loevy & Loevy, of Chicago (Matthew Topic and Joshua H. Burday,
Appeal of counsel), for appellant Better Government Association.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Solomon, Myrian Zreczny Kasper, and Irina Y. Dmitrieva, Assistant
Corporation Counsel, of counsel), for other appellants.
Winston & Strawn , LLP, of Chicago (Daniel D. Rubinstein, Sean G.
Wieber, and Patrick R. O’Meara, of counsel), for appellee.
Panel JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 The consolidated cases in this appeal present questions regarding the competing interests
of public disclosure and confidentiality in records generated because of a grand jury
investigation. Historically, the cases had their genesis in 2004, when Richard J. Vanecko
assaulted David Koschman in the Rush Street neighborhood of Chicago. Although the
chronology of the two cases overlaps, we will set out the facts of each case separately.
¶2 BACKGROUND
¶3 In re Appointment of a Special Prosecutor (No. 1-16-1376)
¶4 Although Koschman died from his injuries, the incident did not result in the filing of
charges against Vanecko or anyone else. Dissatisfied with this outcome, members of the
Koschman family filed a petition for appointment of a special prosecutor in the criminal
division of the circuit court of Cook County (Case No. 2011 Misc. 46). The petition alleged
that a special prosecutor should be appointed because Vanecko was related to Chicago Mayor
Richard M. Daley of Chicago and that “officials in the 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 criminal charges.” The petition was assigned to
Judge Michael P. Toomin.1
¶5 On April 6, 2012, Judge Toomin granted the petition and appointed Dan K. Webb as a
special State’s Attorney, directing him to determine (1) whether criminal charges should be
brought against anyone in connection with Koschman’s death and (2) whether Chicago police
or Cook County State’s Attorney employees “acted intentionally to suppress and conceal
evidence, furnish false evidence, and generally impede” the Koschman investigation. Webb
empaneled a special grand jury that investigated the incident, obtained information from over
140 witnesses, and reviewed over 22,000 documents totalling more than 300,000 pages.
1
Because we must address three different appeals from two different judges who interacted with
each other during the pendency of their respective cases, the need for clarity requires that we depart
from convention and name the judges in this opinion.
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¶6 On June 14, 2012, while the grand jury was still empaneled, the Office of the Special
Prosecutor (OSP) filed a motion requesting that Judge Toomin issue a protective order. The
OSP explained that it requested the protective order “to prevent entities like the City from
complying with [Freedom of Information Act] requests for the secret grand jury materials that
would inevitably end up in its hands.” Noting that the interests of justice required secrecy in
the grand jury proceeding, Judge Toomin granted OSP’s motion and entered an order placing
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.” In addition, the order prohibited
anyone who received “Grand Jury materials” from the OSP “from further disseminating that
material or information contained therein.” The order defined “Grand Jury materials” to
include “subpoenas, target letters, and other correspondence related to the service of a Grand
Jury subpoena.” The protective order itself was sealed from public disclosure.
¶7 The special grand jury indicted Vanecko for involuntary manslaughter. After Webb
informed the court that he would not prosecute any other individuals in connection with the
Koschman death or the subsequent investigation, the special grand jury was discharged. On
January 31, 2014, Vanecko entered into a guilty plea and was sentenced.
¶8 On February 3, 2014, Judge Toomin granted Webb permission to unseal and release a
162-page report detailing the special grand jury’s investigation. This report was made
available to the public and is included in the record before us.
¶9 At this stage, even though the special grand jury had been discharged, various parties
began appearing before Judge Toomin to request that he unseal documents generated in the
course of the special grand jury investigation. First, on March 21, 2014, the City of Chicago
(City) filed a motion requesting that Judge Toomin unseal the June 12, 2012, protective order,
because its scope was relevant to resolving a request that the Chicago Sun-Times had made to
the City pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West
2012)). On March 27, 2014, Judge Toomin granted the motion and unsealed the protective
order.
¶ 10 Thereafter, a dispute arose between the City and the Illinois Attorney General’s Public
Access Bureau regarding how the City should respond to the Chicago Sun-Times’ FOIA
request. In particular, the City and Attorney General were uncertain what records were covered
by Judge Toomin’s protective order. To resolve this uncertainty, the City appeared before
Judge Toomin and filed a motion to clarify the June 12, 2012, protective order.
¶ 11 On June 25, 2014, Judge Toomin entered a second protective order prohibiting 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. In addition,
the second protective order stated that the June 12, 2012, protective order (1) remained in
effect and (2) “limit[ed] only the identification of any documents or other records as being
grand jury materials.” The order further stated that if “some or all the documents related to the
death of David Koschman and subsequent investigations were sought by FOIA request or
subpoena in a matter not connected with the work of the Special Prosecutor, such documents
could be produced by the City or the [police department], subject to any other applicable
restrictions or prohibitions.”
¶ 12 On February 25, 2016, the City again appeared before Judge Toomin and filed a motion to
modify the June 12, 2012, and June 25, 2014, protective orders. The motion explained that in a
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separate case regarding a FOIA request by the Better Government Association (BGA), Judge
Mikva had made a preliminary ruling that the City was required to release certain documents
whose disclosure was prohibited by Judge Toomin’s protective order. See infra ¶¶ 14-27.
¶ 13 On April 13, 2016, Judge Toomin denied the City’s motion to modify. In a detailed
memorandum opinion, Judge Toomin explained that the City documents sought by the BGA
were grand jury materials under the scope of his protective order and there was a continuing
interest in keeping them secret. In particular, Judge Toomin noted the importance of
safeguarding the deliberations of grand jurors and witnesses who provided information to the
investigation. He further explained that, even though the need for secrecy in a specific grand
jury may diminish after proceeding has resulted in an indictment and conviction, there
nonetheless existed a general interest in preserving the legitimacy and functionality of the
grand jury as an institution that justified, and necessitated, keeping the protective order in
effect.
¶ 14 On May 12, 2016, the City filed a timely notice of appeal from the April 13, 2016, order
(appeal No. 1-16-1376).
¶ 15 Better Government Ass’n v. City of Chicago (Nos. 1-16-1892 and 1-16-2071)
¶ 16 On January 23, 2015, Bob Herguth of the BGA sent a FOIA request to the City seeking (1)
“any and all subpoenas issued to the Chicago Police Department, the Law Department and the
Mayor’s Office in regards to the Vanecko/Koschman investigation/special prosecution” and
(2) “all emails and other communications between special prosecutor Dan Webb’s office and
[the police department], the Law Department and the Mayor’s Office in regards to the same
investigation/special prosecution.”
¶ 17 The City denied the requests based on Judge Toomin’s June 14, 2012, and June 25, 2014,
protective orders. The City cited section 7(1)(a) of FOIA, which exempts documents from
disclosure if disclosure is prohibited by “State law.” 5 ILCS 140/7(1)(a) (West 2014).
¶ 18 From the OSP, the BGA sought (1) documents sufficient to show the name of everyone
interviewed by the OSP; (2) statements by and communications with Daley family members,
their attorney, and Mara Georges, the City’s Corporation Counsel; and (3) itemized invoices
and billing records. The OSP denied the BGA’s request pursuant to FOIA’s “State law”
exception, but instead of relying on Judge Toomin’s order, it cited section 112-6 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/112-6 (West 2014)).2
¶ 19 On March 12, 2015, the BGA filed a complaint for injunctive and declaratory relief against
the City, various City departments, the OSP, and Webb (case No. 15 CH 4183). Count I related
to the OSP’s denial of the BGA’s FOIA request. Counts II, III, and IV related to the City’s
denial of the BGA’s FOIA request.
¶ 20 The BGA’s case was assigned to Judge Mikva. Judge Mikva declined to transfer the case to
Judge Toomin, so the two cases proceeded separately before their respective judges.
¶ 21 The City moved to dismiss 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)), arguing that section 7(1)(a) of
FOIA, which provides that a public agency is not required to disclose “[i]nformation
In their briefs, the parties incorrectly refer to this statute as part of the “Grand Jury Act” or the
2
“Grand Jury Secrecy Act.” No law by that title exists in Illinois.
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specifically prohibited from disclosure by federal or State law,” exempted the requested
materials from disclosure. See 5 ILCS 140.7(1)(a) (West 2014). As it did in its original denial,
the City argued that Judge Toomin’s protective order was a “State law” for the purpose of
section 7(1)(a) of FOIA. The OSP and Webb, for their part, also moved to dismiss the BGA’s
complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure, on the basis that the
records were exempt from disclosure under section 112-6 of the Code.
¶ 22 On December 17, 2015, Judge Mikva denied the City’s motion to dismiss, finding that for
purposes of section 7(1)(a) of FOIA, Judge Toomin’s protective order was not a “State law.”
Judge Mikva specifically disagreed with Judge Toomin’s construction of section 112-6 of the
Code, holding that it did “not extend to protecting persons who provide information to the
Grand Jury, unless such person is a State’s Attorney or government personnel as provided in”
section 112-6(c)(1) of the Code. Therefore, Judge Mikva reasoned, the City could not rely on
FOIA’s “State law” exemption to justify withholding the records. However, Judge Mikva did
grant the OSP’s and Webb’s motion to dismiss, finding that records sought from them were
exempt from disclosure under FOIA under section 112-6 of the Code. Citing Board of
Education, Community Unit School District No. 200 v. Verisario, 143 Ill. App. 3d 1000, 1008
(1986), Judge Mikva reasoned that FOIA was not the kind of “specific law that would ‘direct’
the disclosure of otherwise confidential grand jury materials” and that the secrecy provisions
of section 112-6 of the Code extended to records and information possessed by a prosecutor,
even if the information was never presented to the grand jury, because they could tend to
“ ‘reveal the direction and purpose of the grand jury investigation.’ ” (quoting Verisario, 143
Ill. App. 3d at 1008).
¶ 23 Judge Mikva recognized that this disposition put the City in the untenable position of
having to decide which of two conflicting court orders it should obey. She suggested that the
BGA request Judge Toomin to modify his protective order in light of her evaluation of the
City’s obligations under FOIA. Her order had the effect of terminating the OSP and Webb’s
party status in the case, but it was not immediately appealable because the BGA’s claims
against the City remained, and the court did not enter any finding pursuant to Illinois Supreme
Court Rule 304(a) (eff. Mar. 8, 2016), making the order appealable.
¶ 24 The BGA chose not to seek any relief from Judge Toomin, so the City filed its own motion
asking him to modify the protective orders in light of Judge Mikva’s ruling. After considering
the City’s request, Judge Toomin issued his April 13, 2016, opinion declining to modify the
protective orders (see supra ¶ 11).
¶ 25 The City filed a motion to reconsider the denial of its motion to dismiss. Judge Mikva
denied the motion, reiterating her position that the term “State law” in section 7(1)(a) of FOIA
did not include court orders.
¶ 26 Thereafter, the City filed an answer and affirmative defenses to the BGA’s complaint. The
City then moved for judgment on the pleadings pursuant to section 2-615(e) of the Code of
Civil Procedure (735 ILCS 5/2-615(e) (West 2014)), arguing that Judge Toomin’s order was a
“State law” preventing it from complying with the BGA’s FOIA request. In turn, the BGA
filed its own motion for judgment on the pleadings, which adopted the arguments it made in
opposition to the City’s motion to dismiss.
¶ 27 On July 12, 2016, Judge Mikva (1) granted the BGA’s motion for judgment on the
pleadings and (2) denied the City’s motion for judgment on the pleadings. Judge Mikva
ordered the City to release to the BGA “the subpoenas and emails requested in the Freedom of
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Information Act requests directed to the City Defendants that are attached the Complaint in
this action,” subject to other FOIA exemptions. Noting the conflict between her order and
Judge Toomin’s order, Judge Mikva stayed the City’s disclosure obligations pending appeal.
She also entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016)
that the July 12, 2016, orders on the motions for judgment on the pleadings and the December
17, 2015, order dismissing the OSP and Webb were final and appealable.
¶ 28 On July 13, 2016, the City filed a notice of appeal from the July 12 order (appeal No.
1-16-1892). On August 1, the BGA filed a notice of appeal from the December 17, 2015, order
which had dismissed its claims against the OSP and Webb (appeal No. 1-16-2071).
¶ 29 On August 12, 2016, this court consolidated appeal Nos. 1-16-1376, 1-16-1892, and
1-16-2071.
¶ 30 ANALYSIS
¶ 31 We begin with the City’s appeal from Judge Toomin’s order denying the City’s motion to
modify the protective order. A protective order “circumscribing the publication of information
is reviewable as an interlocutory injunctive order, pursuant to Rule 307(a)(1).” Skolnick v.
Altheimer & Gray, 191 Ill. 2d 214, 221 (2000) (citing In re A Minor, 127 Ill. 2d 247, 263
(1989)). We therefore have jurisdiction over the appeal from the order denying reconsideration
of the protective order.
¶ 32 Illinois Supreme Court Rule 201(c)(1) (eff. July 1, 2014) states:
“The court may at any time on its own initiative, or on motion of any party or witness,
make a protective order as justice requires, denying, limiting, conditioning, or
regulating discovery to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or oppression.”
Trial courts enjoy a great deal of latitude in determining whether a protective order is
necessary. Skolnick, 191 Ill. 2d at 223. We review an order refusing to modify a protective
order for abuse of discretion, which means “[w]e will alter the terms of a protective order only
if no reasonable person could adopt the view taken by the circuit court.” Id. at 224.
¶ 33 Judge Toomin explained why he denied the City’s motion to modify the protective order.
Citing United States v. Procter & Gamble Co., 356 U.S. 677 (1958), Judge Toomin
specifically found that even though the grand jury had been discharged, and Vanecko had been
indicted and sentenced, secrecy was still justified by (1) the institutional legitimacy of the
grand jury, (2) the need to “assure freedom of deliberation of future grand juries and the
participation of future witnesses,” and (3) the need to ensure witnesses that the confidentiality
of their testimony would not be “ ‘lifted tomorrow.’ ” Id. at 682.
¶ 34 The City argues that once Judge Toomin learned of Judge Mikva’s order, and Koschman
had been prosecuted and sentenced, he should have modified his protective orders so as to
accommodate her determination that the records were disclosable under FOIA. In the
alternative, the City argues that Judge Mikva erred in finding that the protective orders did not
constitute a “State law” preventing release of the documents under FOIA. At bottom, the City
asks this court to free it from the burden of having to choose which of two conflicting orders it
must obey.
¶ 35 The OSP submits that, by requesting the protective order in the first instance, it specifically
“sought to prevent entities like the City from complying with FOIA requests for the secret
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grand jury materials that would inevitably end up in its hands.” It contends that Judge Toomin
did not abuse his discretion in imposing a protective order regarding the grand jury’s sensitive
investigation and proceedings.
¶ 36 “[T]he veil of secrecy surrounding a grand jury proceeding is a fundamental element of a
grand jury investigation.” People v. Fassler, 153 Ill. 2d 49, 62 (1992). The grand jury is an
integral part of the court and not the tool of the prosecutor. People v. Sears, 49 Ill. 2d 14, 36
(1971). The court has inherent power to supervise the grand jury so as to prevent the perversion
of its process. Id. at 35 (citing In re National Window Glass Workers, 287 F. 219, 224 (N.D.
Ohio 1922)).
¶ 37 The justification for grand jury secrecy is well established:
“[T]he proper functioning of our grand jury system depends upon the secrecy of grand
jury proceedings. [Citation.] In particular, we have noted several distinct interests
served by safeguarding the confidentiality of grand jury proceedings. First, if
preindictment proceedings were made public, many prospective witnesses would be
hesitant to come forward voluntarily, knowing that those against whom they testify
would be aware of that testimony. Moreover, witnesses who appeared before the grand
jury would be less likely to testify fully and frankly, as they would be open to
retribution as well as to inducements. There also would be the risk that those about to
be indicted would flee, or would try to influence individual grand jurors to vote against
indictment. Finally, by preserving the secrecy of the proceedings, we assure that
persons who are accused but exonerated by the grand jury will not be held up to public
ridicule.” Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211,
218-19 (1979).
¶ 38 In recognition of these interests, section 112-6 of the Code expressly mandates secrecy
regarding “matters occurring before the Grand Jury.” 725 ILCS 5/112-6(c)(1) (West 2014); see
also Ill. S. Ct. R. 201(c)(1) (eff. July 1, 2014) (providing that courts may enter protective
orders).
¶ 39 In the City’s view, Judge Toomin’s concern that disclosure might undermine future
investigations was unjustified. We cannot agree. Candid, complete, and trustworthy testimony
is vital to the grand jury’s role. As a matter of common sense, a witness who knows that
testimony and material he provides to the grand jury is secret, and will be kept secret, will be
more frank and truthful than a witness who fears his identity might be disclosed at some later
time. As such, we cannot find that Judge Toomin abused his discretion when he found that the
need for particularized secrecy still existed with respect to certain aspects of the grand jury’s
investigation. Accordingly, we affirm Judge Toomin’s April 13, 2016, order refusing to
modify his earlier protective order.
¶ 40 We next turn to the appeals from Judge Mikva’s orders, beginning with the City’s appeal of
Judge Mikva’s order granting the BGA judgment on the pleadings. “Judgment on the
pleadings is proper only where no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law.” Hooker v. Illinois State Board of Elections, 2016 IL
121077, ¶ 21. When ruling on a motion for judgment on the pleadings, “a court may consider
only those facts appearing on the face of the pleadings, matters subject to judicial notice, and
any judicial admissions in the record.” Id. Moreover, the court must take as true all well-pled
facts and reasonable inferences which can be drawn from those facts. Id. We review an order
granting judgment on the pleadings de novo. Id.
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¶ 41 Section 1 of the FOIA states:
“Pursuant to the fundamental philosophy of the American constitutional form of
government, it is declared to be the public policy of the State of Illinois 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. Such 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.” 5 ILCS 140/1 (West 2014).
¶ 42 The breadth of its policy statement notwithstanding, FOIA provides that certain materials
are exempt from disclosure. The exception at issue here is contained in section 7(1)(a), which
provides: “[T]he following shall be exempt from inspection and copying: (a) Information
specifically prohibited from disclosure by federal or State law or rules and regulations
implementing federal or State law.” 5 ILCS 140/7(1)(a) (West 2014).
¶ 43 The BGA correctly notes that no Illinois case has held that a court order constitutes a “State
law” so as to insulate documents from release under FOIA. The City contends that a court
order constitutes a “State law.” But the City also relies on GTE Sylvania Inc. v. Consumers
Union of the United States, Inc., 445 U.S. 375 (1980), in which the United States Supreme
Court considered whether a federal agency could withhold records subject to disclosure under
federal FOIA (5 U.S.C § 552 et seq. (1976)) that were sealed pursuant to an injunction
imposed by a federal district court. The Court noted that the remedial provisions of the federal
FOIA are only activated when an agency “improperly” withholds documents. GTE Sylvania
Inc., 445 U.S. at 384-87. Since the agency was subject to an injunction, the broad purposes of
federal FOIA promoting public disclosure were “inapplicable,” with the result that it had no
authority to release the documents. The Court explained:
“The conclusion that the information in this case is not being ‘improperly’ withheld
is 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.
[Citations.] *** Under these circumstances, the [agency] was required to obey the
injunctions out of ‘respect for judicial process.’
There is nothing in the legislative history to suggest that in adopting the Freedom of
Information Act ***, Congress intended to require an agency to commit contempt of
court in order to release documents. Indeed, Congress viewed the federal courts as the
necessary protectors of the public’s right to know. 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 386-87.
¶ 44 Because the Illinois FOIA was modeled on the federal Freedom of Information Act,
Illinois courts look to case law regarding the federal FOIA when interpreting the Illinois FOIA.
See Hamer v. Lentz, 132 Ill. 2d 49, 58 (1989).
¶ 45 We recognize that the Illinois FOIA, in its current form, is more generous with respect to
public access than the federal Freedom of Information Act. Even so, GE Sylvania is no less
persuasive. Like the federal law at issue in GE Sylvania, the Illinois FOIA only allows a court
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to order a public agency to produce documents when the agency has “improperly” withheld
them. Compare 5 U.S.C. § 552(a)(4)(B) (2012) (federal 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)), with 5 ILCS 140/11 (West
2016) (“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.)).
¶ 46 The GTE Sylvania Court expressed a straightforward rule that “respect for the judicial
process” required that an injunction could theoretically allow a public agency to withhold
materials otherwise disclosable under FOIA. 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. In so holding, we need not address whether a court order is a “State law” under section
7(1)(a) of FOIA. 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.”
¶ 47 The BGA’s arguments to the contrary are not persuasive. The BGA cites two cases in
which Illinois appellate courts have ordered disclosure of documents pursuant to FOIA even
though disclosure was prohibited by a court order. Both are inapposite. In Carbondale
Convention Center, Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 477 (1993), a
governmental body sought to keep a settlement agreement confidential, arguing that the court
that dismissed the underlying action entered an order prohibiting disclosure of the agreement,
“and that such an order constitutes State law.” Id. The court explained that even “[a]ssuming
*** and without so holding that such an order is a ‘State law,’ ” that the agency’s position was
incompatible with the intent of FOIA. Id. The court pointed out that because the agency itself
requested the court to impose the gag order, the “State law” prohibiting disclosure existed, in
part, through the actions of the agency itself. Id. The Carbondale court concluded that such an
action contradicted “the purpose and intent of [FOIA] under which the exemptions are
intended as shields rather than swords,” the agency could not rely on the “State law”
exemption in section 7(1)(a) of FOIA. Id.
¶ 48 And in Watkins v. McCarthy, 2012 IL App (1st) 100632, the court held that a federal
court’s protective order regarding materials exchanged in discovery in a civil rights lawsuit
against the City did not prevent the City from releasing the materials under a proper FOIA
request. The Watkins court did so for two reasons. First, the protective order in the federal case
did not—unlike Judge Toomin’s order—specifically prohibit dissemination of discovery
materials to a non-party who made a FOIA request. Id. ¶ 43. Second, by the time the Watkins
case was resolved, the federal case had been settled and dismissed, so the protective order was
no longer in force. Id. As in Carbondale, the court assumed that the court order in question was
a “State law” within the meaning of FOIA’s section 7(1)(a) exception. Id.
¶ 49 Carbondale and Watkins thus stand for the general proposition that an agency
cannot—through its own participation, action, collusion, or acquiescence—help obtain a court
order and then claim that the order prevents it from releasing otherwise disclosable records.
The City did not obtain the protective order at issue here, so these cases do not inform our
analysis.
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¶ 50 Kibort v. Westrom, 371 Ill. App. 3d 247 (2007), is instructive. There, a board of election
commissioners received a FOIA request for ballot materials which were, as required by law,
kept under seal following an election. The court held that the board properly denied the FOIA
request. Even though the Election Code lacked specific language prohibiting public access to
the records, it did establish a comprehensive regulatory scheme through which ballot materials
were to be secured and sealed and further detailed the narrow circumstances under which a
candidate or member of the public could examine these sealed materials following an election.
Id. at 256-57. Addressing the apparent conflict between FOIA and the Election Code, the
Kibort court held that “records are exempt from disclosure under [FOIA] in instances where
the plain language contained in a state or federal statute reveals that public access to the
records was not intended.” Id. at 256. See also Better Government Ass’n v. Zaruba, 2014 IL
App (2d) 140071, ¶ 29.
¶ 51 Unlike the courts that issued the protective orders at issue in Carbondale and Watkins,
Judge Toomin issued the protective order at the request of the OSP without the involvement of
the public agency holding the records—the City. The City was not a party to the grand jury
proceedings, but the protective order nonetheless prohibited it from releasing certain records in
its possession. Once it was placed in the dilemma of having to obey conflicting orders, the City
itself did appear in the grand jury case and asked Judge Toomin to modify the protective order.
He declined to do so and provided cogent reasons for that decision. Judge Toomin was
obviously aware of Judge Mikva’s FOIA release order because his April 13, 2016, order
specifically stated that the City was still prohibited from releasing the documents in response
to the BGA’s FOIA request.
¶ 52 The BGA echoes the concern of the concurring justice in Carbondale, that “all information
regarding the affairs of government would be legally exempt from disclosure as long as the
government could find a judge to sign an order prohibiting disclosure.” Carbondale, 245 Ill.
App. 3d at 479 (Lewis, J., specially concurring). But the protective order here was issued upon
a court’s due consideration of the need for confidentiality in particularized circumstances. The
order was issued by a judge supervising a grand jury and was not issued at the behest of the
City. We do not share the BGA’s fear that public entities will abuse the rule of this case
because it somehow establishes a precedent under which courts can “legislate” new FOIA
exceptions.
¶ 53 In sum, we resolve the question presented by the City’s appeal by applying the rule
established in GTE Sylvania. We need not, and do not, address the issue of whether a court
order is “a State law” within the meaning of section 7(1)(a) of FOIA. We reverse the order
granting the BGA’s motion for judgment on the pleadings. Pursuant to our authority under
Illinois Supreme Court Rule 366(a) (eff. Feb. 1, 1994), we grant the City’s motion for
judgment on the pleadings. See Massachusetts Bay Insurance Co. v. Unique Presort Services,
Inc., 287 Ill. App. 3d 741, 748 (1997).
¶ 54 We next address the BGA’s appeal from Judge Mikva’s order, dismissing its FOIA claim
for disclosure of records which it requested from the OSP and Webb. As we noted, Judge
Mikva found that every item listed in the BGA’s request to the OSP and Webb constituted
“matters occurring before the Grand Jury” protected from disclosure by section 112-6 of the
Code. Accordingly, she dismissed the BGA’s FOIA claim against the OSP and Webb pursuant
to section 2-619(a)(9) of the Code of Civil Procedure.
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¶ 55 When ruling on a motion to dismiss under section 2-619, a court must accept all
well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts
in favor of the nonmoving party. Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 24. As a result,
a motion to dismiss pursuant to section 2-619 should not be granted unless it is clearly apparent
that no set of facts can be proved that would entitle the plaintiff to recovery. Snyder v.
Heidelberger, 2011 IL 111052, ¶ 8. We review de novo the circuit court’s decision on motions
to dismiss brought under section 2-619. Coghlan, 2013 IL App (1st) 120891, ¶ 24. Finally, we
review the judgment, not the reasoning, of the circuit court, and we may affirm on any ground
in the record, regardless of whether the court relied on those grounds or whether the court’s
reasoning was correct. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97 (1995).
¶ 56 The office of a State’s Attorney is an executive body of the State, and is a “[p]ublic body”
as defined in section 2(a) of FOIA. See 5 ILCS 140/2(a) (West 2016). “As public bodies,
State’s Attorney’s offices must make their public records available for inspection and copying
as required by [FOIA].” Nelson v. Kendall County, 2014 IL 116303, ¶ 27. The same analysis
applies to records of the OSP. See, e.g., 55 ILCS 5/3-9008(b) (West 2016) (a special State’s
Attorney “shall possess all the powers and discharge all the duties of a regularly elected State’s
attorney under the laws of the State”).
¶ 57 Our supreme court has relied on FOIA’s strong policy statement in support of rulings
requiring release of governmental records to public review. See, e.g., Stern v.
Wheaton-Warrenville Community Unit School District 200, 233 Ill. 2d 396, 404 (2009). The
same court has, however, also emphasized the need for secrecy in grand jury proceedings. See,
e.g., People ex rel. Sears v. Romiti, 50 Ill. 2d 51, 58 (1971).
¶ 58 The BGA suggests that, in light of its FOIA request, the secrecy provisions in the grand
jury law must be construed narrowly. It also contends that because Judge Mikva resolved the
BGA’s appeal of the OSP’s denial on a motion to dismiss, she never had the opportunity to
conduct an in camera review of the documents to determine whether, in fact, they were records
of “matters occurring before the Grand Jury.”
¶ 59 The BGA contends that the materials it sought were not “matters occurring before the
Grand Jury” under section 112-6 of the Code. It claims that its request was broad enough to
encompass some “records that were never presented to the grand jury and do not disclose what
was presented to the grand jury.” It also claims that section 112-6(3)(c) of the Code, which
allows disclosure of grand jury materials “when a law so directs,” allows disclosure of grand
jury materials, because FOIA is “a law” which “so directs.”
¶ 60 In pursuing this argument, BGA relies heavily on Better Government Ass’n v. Blagojevich,
386 Ill. App. 3d 808 (2008). There, the court determined that FOIA required the Governor to
release copies of grand jury subpoenas his office had received. The court rejected the
Governor’s reliance on a federal grand jury secrecy law that specifically applied to grand
jurors, interpreters, reporters, and similar persons who would normally attend the grand jury
room. Id. at 811-12. The federal grand jury law did not prohibit recipients of grand jury
subpoenas, such as the Governor, from disclosing their contents. And unlike here, no
protective order was at issue in Blagojevich.
¶ 61 More on point is Verisario. In that case, the court found that “section 112-6(b) was
designed to protect from disclosure only the essence of what takes place in the grand jury
room.” Verisario, 143 Ill. App. 3d at 1007. After examining the body of federal case law which
had developed on the issue, the Verisario court determined that “[t]he mere fact that a
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particular document is reviewed by a grand jury does not convert it into a matter occurring
before the grand jury within the meaning of section 112-6(b),” and that the section “was not
intended to foreclose from all future revelation to proper authorities the same information or
documents which were presented to the grand jury.” Id. Therefore, “if a document is sought for
its own sake *** rather than to learn what took place before the grand jury, and if the disclosure
will not seriously compromise the secrecy of the grand jury investigation, disclosure is not
prohibited.” Id. at 1006-08 (citing In re Special March 1981 Grand Jury, 753 F.2d 575, 578
(7th Cir. 1985)).
¶ 62 Taliani v. Herrmann, 2011 IL App (3d) 090138, is also instructive. There, the court
considered whether a prisoner could use FOIA to obtain copies of the transcript of the grand
jury proceedings which led to his indictment and prosecution. The court noted that section
7(1)(a) of FOIA protects records from disclosure if their release is prohibited by a state law. Id.
¶ 12. It then found that section 112-6 of the Code, which prohibited disclosure of grand jury
transcripts without a court order, was such a law. Id. ¶ 13. Since section 112-6(a) of the Code
provides that grand jury proceedings are secret and only open to the “State’s Attorney, his
reporter and any other person authorized by the court or by law,” the court found that the
prisoner was only entitled to a copy of the grand jury transcripts pursuant to section
112-6(c)(3) of the Code, which stated: “Disclosure otherwise prohibited by this Section of
matters occurring before the Grand Jury may also be made when the court, preliminary to or in
connection with a judicial proceeding, directs such in the interests of justice or when a law so
directs.” 725 ILCS 5/112-6(c)(3) (West 2008). The court found that the mechanisms listed in
section 112-6(c)(3) of the Code did not include FOIA requests. Therefore, the prisoner could
not obtain the transcripts pursuant to his FOIA request. Taliani, 2011 IL App (3d) 090138,
¶¶ 12-13. While the Taliani court’s analysis is brief, and the BGA argues it does not apply, we
are nonetheless persuaded that it, and Verisario, state sound and workable rules.
¶ 63 The BGA argues that the conflict between “when a law so directs” in section 112-6 of the
Code and “prohibited from disclosure by *** State law” in FOIA must be resolved in favor of
FOIA. When grand jury materials are actually released, it is often because release is necessary
to protect the rights of an accused or “avoid a possible injustice.” Douglas Oil Co., 441 U.S. at
222. 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.
¶ 64 With these principles in mind, we examine the three specific requests that BGA made to
the OSP and Webb. The BGA’s first request was for documents showing names of every
person interviewed by Webb in connection with his investigation. Judge Mikva correctly
determined that these materials were “matters occurring before the grand jury” and thus within
the scope of section 112-6. Disclosure of the list would clearly reveal the “identity of
witnesses,” secrecy of which is clearly critical to the integrity of the grand jury process. See
Verisario, 143 Ill. App. 3d at 1007.
¶ 65 Second, the BGA requested copies of all statements by and communications with “Daley
family members,” their attorneys, and Mara Georges, the City’s corporation counsel. We find
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that disclosure of these materials would reveal the identity of witnesses, as well as their
testimony and the “strategy or direction of the investigation.” See id. Accordingly, Judge
Mikva did not err in dismissing the portions of counts II, III, and IV relating to the first two of
the BGA’s FOIA requests from the OSP.
¶ 66 The third BGA request was for the OSP’s itemized invoices and billing records. Judge
Toomin appointed Webb pursuant to section 3-9008 of the Counties Code. 55 ILCS 5/3-9008
(West 2016). That section requires that a special State’s Attorney’s bills are to be paid by the
county, up to a certain limit. See 55 ILCS 5/3-9008(b) (West 2016). It also requires that before
the county pays the bills, “the county shall be provided with a detailed copy of the invoice
describing the fees, and the invoice shall include all activities performed in relation to the case
and the amount of time spent on each activity.” 55 ILCS 5/3-9008(c) (West 2016).
¶ 67 Attorney fee invoices paid from public funds are generally disclosable under FOIA, subject
to redaction for work-product and privilege. See 2012 Ill. Att’y Gen. Pub. Access Op. No.
12-005. Judge Mikva stated that disclosure of the invoice detail would “reveal the strategy and
direction of the investigation.” While some entries in the billing records might reveal “the
strategy or direction of the investigation,” surely all do not. We, therefore, reverse the
dismissal of the portion of count III of BGA’s complaint that sought disclosure of the OSP’s
attorney fee invoices, and remand for an in camera review of those records pursuant to section
11(f) of FOIA (5 ILCS 140/11(f) (West 2016)).
¶ 68 On remand, the circuit court shall determine what, if any, portions of the requested records
may be disclosed notwithstanding section 112-6 of the Code’s prohibition on disclosure of
information regarding “matters occurring before the grand jury.” Section 112-6 of the Code
was modeled on Rule 6 of the Federal Rule of Criminal Procedure. Romiti, 50 Ill. 2d at 58. In
its current form, the federal rule prohibits disclosure of “a matter occurring before the grand
jury” (Fed. R. Crim. P. 6(e)(2)(B)), but its earlier form followed the Illinois rule verbatim,
prohibiting disclosure of “matters occurring before the grand jury” (Fed. R. Crim. P. 6(e)(2)(B)
(prior to amendment by USA Patriot Act of 2001, Pub. L. No. 107-56, § 203, 115 Stat. 272,
278-79 (2001))).
¶ 69 The phrase “matters occurring before the grand jury” has been defined not only by
Verisario, but through a well-established body of federal case law, which should guide the
court on remand. The United States Court of Appeals for the District of Columbia Circuit has
held that the term “ ‘matters occurring before the grand jury’ ” in the federal rule encompasses
(1) “the identities of witnesses or jurors,” (2) “the substance of testimony,” (3) “the strategy or
direction of the investigation,” and (4) “the deliberations or questions of jurors, and the like.”
Securities & Exchange Comm’n v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C. Cir.
1980). See also Senate of the Commonwealth of Puerto Rico v. United States Department of
Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). Likewise, the Fifth Circuit has explained that the
rule prohibits disclosure of “anything which ‘may tend to reveal what transpired before the
grand jury.’ ” In re Grand Jury Investigation, 610 F.2d 202, 216 (5th Cir. 1980) (quoting
United States v. Armco Steel Corp., 458 F. Supp. 784, 790 (W.D. Mo. 1978)). The circuit court
should also be mindful that “the interests in grand jury secrecy, although reduced, are not
eliminated merely because the grand jury has ended its activities.” Douglas Oil Co., 441 U.S.
at 222.
¶ 70 Accordingly, in appeal No. 1-16-1892, we affirm in part as to Judge Mikva’s order
dismissing the BGA’s FOIA complaint regarding its first and second requests; reverse in part,
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as to its third request; and remand for further proceedings consistent with this opinion.
¶ 71 CONCLUSION
¶ 72 For these reasons, we (1) affirm Judge Toomin’s order in appeal No. 1-16-1376, (2) affirm
in part and reverse in part Judge Mikva’s order in appeal No. 1-16-1892 and remand that
appeal for further proceedings consistent with this opinion, and (3) reverse Judge Mikva’s
order in appeal No. 1-16-2071 and grant the City’s motion for judgment on the pleadings in
that appeal.
¶ 73 No. 1-16-1376, Affirmed.
¶ 74 No. 1-16-1892, Affirmed in part, reversed in part, and remanded.
¶ 75 No. 1-16-2071, Reversed; motion granted.
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