City of Chi. v. Office of the Special Prosecutor (In Re Appointment of Special Prosecutor)
91 N.E.3d 424
| Ill. App. Ct. | 2017Background
- 2004 assault of David Koschman; Richard Vanecko was implicated but not initially charged; Koschman later died and Vanecko ultimately pled guilty to involuntary manslaughter after a special prosecutor’s grand jury investigation.
- In 2012 Judge Toomin appointed Dan K. Webb as special prosecutor, empaneled a special grand jury, and entered a sealed protective order forbidding dissemination of identified “Grand Jury materials.”
- After the grand jury issued an indictment and the matter concluded, Judge Toomin unsealed a special grand jury report but maintained protective orders restricting disclosure of grand-jury-related documents; he later denied the City’s motion to modify those orders.
- The Better Government Association (BGA) sought grand-jury-related records from the City and from the Office of the Special Prosecutor (OSP) via FOIA; the City and OSP refused, citing the protective order and grand jury secrecy statutes.
- Judge Mikva (in BGA’s FOIA suit) held that (a) Judge Toomin’s protective order was not a “State law” under FOIA §7(1)(a) and therefore the City could not rely on it to deny FOIA requests, and (b) OSP records were exempt under the grand-jury secrecy statute. Conflicting orders created a dilemma for the City.
- The appeals were consolidated: City appealed Judge Toomin’s refusal to modify protective orders and Judge Mikva’s FOIA rulings; BGA appealed dismissal of its claims against OSP/Webb. The appellate court affirmed Toomin, reversed Mikva in part, and remanded limited issues for in camera review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Toomin abused discretion by refusing to modify protective orders after grand jury proceedings concluded | City: Protective order should be modified since investigation ended and another judge ordered disclosure under FOIA | OSP/Toomin: Secrecy remains necessary to protect grand jury integrity, witness candor, and future investigations | Affirmed — no abuse of discretion; protective order upheld |
| Whether a court protective order prevents a public body from disclosing records under FOIA §7(1)(a) | City/BGA: FOIA’s exemption for information “specifically prohibited by State law” does not include court orders; FOIA should control | City: A lawful court order commands respect; obedience to an order is not an “improper” withholding under FOIA | Court adopts GTE Sylvania rule: a valid court order can justify non-disclosure under FOIA; reversed portion of Mikva’s FOIA judgment and granted City judgment on pleadings (Judge Toomin’s order takes precedence) |
| Whether OSP/Webb must disclose records requested by BGA (names of interviewees; communications; billing) under FOIA given grand jury secrecy statute (725 ILCS 5/112-6) | BGA: Many requested records were not “matters occurring before the grand jury” and FOIA may compel disclosure; “when a law so directs” in §112-6(c)(3) includes FOIA | OSP/Webb: §112-6 bars disclosure of matters occurring before the grand jury; secrecy must be preserved; FOIA cannot override §112-6 | Affirmed in part and reversed in part: identities, statements, strategy-related materials withheld as grand-jury matters; billing invoices reversed and remanded for in camera review to redact privileged/strategy entries and disclose non-protected portions |
| Scope of “matters occurring before the grand jury” and interplay with FOIA | BGA: Clause should be narrowly construed; FOIA controls where possible | OSP/State: Clause includes identities, testimony, strategy; FOIA cannot nullify grand jury secrecy | Court applies federal authorities and Illinois precedent: term covers witness identities, substance of testimony, strategy/direction; FOIA cannot broadly overcome §112-6; limited remand for in camera review of invoices |
Key Cases Cited
- United States v. Procter & Gamble Co., 356 U.S. 677 (1958) (foundation for continuing need for grand jury secrecy)
- Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979) (enumerates interests served by grand jury secrecy)
- GTE Sylvania Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (1980) (a valid court injunction can make disclosure under FOIA “not improper” and thus justify non-disclosure)
- Skolnick v. Altheimer & Gray, 191 Ill. 2d 214 (2000) (standard of review for protective orders)
- People v. Fassler, 153 Ill. 2d 49 (1992) (grand jury secrecy is fundamental)
- People ex rel. Sears v. Romiti, 50 Ill. 2d 51 (1971) (court’s supervisory power over grand jury and secrecy principles)
- Board of Education v. Verisario, 143 Ill. App. 3d 1000 (1986) (statutory interpretation: not all documents reviewed by a grand jury are “matters occurring before the grand jury”)
- Kibort v. Westrom, 371 Ill. App. 3d 247 (2007) (statutory scheme can demonstrate legislative intent to deny FOIA access despite absence of explicit FOIA exception)
- Securities & Exchange Comm’n v. Dresser Industries, Inc., 628 F.2d 1368 (D.C. Cir. 1980) (defining categories falling within “matters occurring before the grand jury")