In re Appointment of a Special Prosecutor
91 N.E.3d 424
Ill. App. Ct.2018Background
- 2004 assault of David Koschman; Richard Vanecko later indicted by a special grand jury empaneled after the Koschman family petitioned for a special prosecutor (Dan K. Webb). Vanecko pled guilty in 2014.
- While the special grand jury sat, Judge Toomin entered a sealed protective order (June 12, 2012) at OSP’s request restricting dissemination of "Grand Jury materials;" later clarified by a June 25, 2014 order and resisted modification in 2016.
- The City received FOIA requests (by the Chicago Sun‑Times and the Better Government Association (BGA)) for documents identified as related to the OSP grand jury investigation; the City denied release citing the protective orders and FOIA §7(1)(a).
- BGA sued the City, the OSP, and Webb for FOIA relief; proceedings split between Judge Mikva (BGA v. City/OSP) and Judge Toomin (grand jury protective orders), producing conflicting orders about disclosure.
- Judge Toomin refused to modify his protective orders; Judge Mikva held the City must disclose certain records (but dismissed BGA’s claims against OSP/Webb under grand jury secrecy). Appeals were consolidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Toomin abused discretion by refusing to modify the grand jury protective order | Protective order should be narrowed after indictment/closure and in light of Judge Mikva’s FOIA ruling | Protective order necessary to preserve grand jury secrecy, witness candor, and institutional integrity | Affirmed: no abuse of discretion; secrecy interests survive post‑indictment in particularized circumstances |
| Whether a court order barring disclosure can justify FOIA non‑production (i.e., is withholding "improper") | FOIA requires disclosure; a court order should not be treated as a blanket "State law" exemption | Respect for judicial process (GTE Sylvania): obedience to a lawful court order means the agency may not be deemed to have "improperly" withheld records | Reversed Mikva’s judgment for BGA; rule from GTE Sylvania applies — a lawful court order can justify FOIA withholding and relieve agency of ‘‘improper’’ withholding |
| Whether OSP/Webb’s records sought by BGA are exempt under grand jury secrecy (725 ILCS 5/112‑6) | Many requested items were never presented to the grand jury and thus are not "matters occurring before the grand jury"; FOIA can compel release | Section 112‑6 protects identities, testimony, and investigation strategy; FOIA does not override grand jury secrecy absent a specific law directing disclosure | Affirmed dismissal of BGA’s claims against OSP/Webb as to witness lists and communications (they are protected as matters occurring before the grand jury) |
| Whether OSP attorney invoices/billing records must be disclosed | Invoices for public payment are public under FOIA; any privileged portions can be redacted | Detailed billing may reveal investigation strategy/direction and be protected by grand jury secrecy | Reversed dismissal as to invoices; remanded for in camera review to segregate disclosable material from protected material |
Key Cases Cited
- United States v. Procter & Gamble Co., 356 U.S. 677 (protective orders and limits on disclosure of grand jury‑related materials)
- Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (grand jury secrecy interests: witness protection, candid testimony, risk of flight, reputational harm)
- GTE Sylvania Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (a valid court injunction/protective order can justify agency non‑disclosure under FOIA)
- Skolnick v. Altheimer & Gray, 191 Ill. 2d 214 (standard of review for protective orders)
- Verisario, Board of Education v. Verisario, 143 Ill. App. 3d 1000 (scope of "matters occurring before the grand jury" and limits on what becomes protected simply by jury review)
- Kibort v. Westrom, 371 Ill. App. 3d 247 (statutory schemes that plainly restrict access can trump FOIA disclosure)