In re Appointment of Special Prosecutor
129 N.E.3d 1181
Ill.2019Background
- In 2012 a special prosecutor (OSP) was appointed to investigate the 2004 death of David Koschman; a special grand jury was impaneled and returned an indictment against Richard Vanecko. The court initially sealed grand-jury materials and entered protective orders.
- The OSP submitted reports and some materials to the criminal court; the grand-jury was later discharged, the OSP’s final report was briefly sealed and then released after Vanecko’s plea.
- The Better Government Association (BGA) submitted FOIA requests in 2015 seeking (a) names of everyone interviewed by the OSP, (b) statements/communications with Daley family members and the City’s corporation counsel, and (c) itemized invoices/billing records for the special prosecutor team.
- The OSP and City denied the requests, invoking grand-jury secrecy (725 ILCS 5/112-6) and protective orders; BGA sued in chancery court for declaratory and injunctive relief.
- The chancery court dismissed BGA’s claim against the OSP (finding grand-jury secrecy barred disclosure) but initially ordered the City to disclose; the appellate court reversed as to the City (holding protective orders take precedence) and remanded limited invoice records for in camera review.
- The Illinois Supreme Court affirmed the appellate court: grand-jury secrecy exempts most requested materials from FOIA; invoices/billing records require in camera review; a lawful court protective order can make nondisclosure not “improper” under FOIA enforcement provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether materials the BGA sought from the OSP are exempt as "matters occurring before the grand jury" under section 112-6 and thus exempt under FOIA §7(1)(a) | BGA: phrase should be narrowly read to cover only material actually presented in grand-jury room; FOIA §3(a) mandates disclosure | OSP: section 112-6 broadly protects any material that would reveal witness identities, substance of testimony, or investigation strategy; thus FOIA exemption applies | Court: affirmed that most requested materials (witness lists, statements, communications) are "matters occurring before the grand jury" and exempt; invoices remanded for in camera review |
| Whether FOIA §3(a) "when a law so directs" exception (112-6(c)(3)) requires disclosure despite grand-jury secrecy | BGA: FOIA is a law directing disclosure and thus overrides secrecy | OSP/City: allowing FOIA to override 112-6 would nullify grand-jury secrecy protections | Held: FOIA does not nullify section 112-6; allowing that would defeat grand-jury secrecy; no compelled disclosure under §112-6(c)(3) here |
| Whether the City may withhold records because of the criminal-court protective orders without having "improperly withheld" them under FOIA §11(d) | BGA: protective orders cannot shield the City from FOIA; withholding is improper if not statutorily exempt | City: GTE Sylvania principle—obeying a lawful court order is not an improper withholding and public bodies should not have to choose contempt over FOIA compliance | Held: Following GTE Sylvania, a lawful court order takes precedence; complying with a protective order is not necessarily an "improper" withholding under FOIA §11(d); appellate court judgment for City affirmed |
| Whether BGA demonstrated a particularized need to overcome grand-jury secrecy and justify disclosure | BGA: public interest in exposing political/prosecutorial corruption justifies disclosure; some material was already provided to the court | BGA needed only generalized public-interest showing | Held: BGA failed to show the required "particularized need"; generalized/public-interest assertions insufficient to overcome grand-jury secrecy |
Key Cases Cited
- Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979) (discusses policy reasons for grand jury secrecy and narrow disclosure)
- United States v. Calandra, 414 U.S. 338 (1974) (distinguishes grand jury role and limits of inquiry into grand jury evidence)
- GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (1980) (agency obeying a court injunction does not "improperly" withhold records under FOIA)
- United States Department of Justice v. Tax Analysts, 492 U.S. 136 (1989) (FOIA enforcement requires agency records be "improperly withheld")
- Lopez v. Department of Justice, 393 F.3d 1345 (D.C. Cir. 2005) (interprets scope of "matters occurring before the grand jury")
- In re May 1991 Will County Grand Jury, 152 Ill. 2d 381 (1992) (grand jury serves to determine probable cause and exonerate the innocent)
- In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998) (identities of grand-jury witnesses are protected)
- United States v. Phillips, 843 F.2d 438 (11th Cir. 1988) (broad construction of materials covered by Rule 6(e))