In re APPOINTMENT OF SPECIAL PROSECUTOR (Better Government Association, Appellant; the Office of the Special Prosecutor et al., Appellees).
122949
Supreme Court of Illinois
January 25, 2019
2019 IL 122949
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.
Illinois Official Reports. Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Michael P. Toomin and the Hon. Mary L. Mikva, Judges, presiding.
Decision Under Review: Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Michael P. Toomin and the Hon. Mary L. Mikva, Judges, presiding.
Judgment: Appellate court judgment affirmed. Circuit court judgments affirmed in part and reversed in part.
Counsel on Appeal: Matthew Topic and Joshua Burday, of Loevy
Brendan J. Healey, of Mandell Menkes LLC, of Chicago, and Katie Townsend, Adam A. Marshall, and Michael W. Shapiro, of Washington, D.C., for amicus curiae Reporters Committee for Freedom of the Press.
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
¶ 2 This court allowed the BGA‘s petition for leave to appeal (
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
¶ 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.
¶ 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
¶ 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 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
¶ 14 The OSP asserted that
¶ 15 The City asserted that the criminal court‘s protective orders prohibited disclosure, which rendered the requested materials exempt from disclosure pursuant to
¶ 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
¶ 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
¶ 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.
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 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
¶ 24 FOIA expressly declares its underlying public policy and legislative intent.
¶ 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 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.
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
¶ 28 The purpose of a motion to dismiss under
¶ 29
¶ 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).
¶ 33
¶ 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
¶ 36 Federal courts interpreting the phrase “matters occurring before the grand jury” for purposes of
¶ 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
¶
¶ 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
¶ 41
¶ 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 wheresection 112-6 of the Code was held not to trigger asection 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 insection 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
¶ 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
¶ 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
¶ 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,
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
¶ 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
¶ 54 The BGA argues that we should not refer to federal FOIA decisions in construing
¶ 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
¶ 57 The United States Supreme Court has construed
¶ 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.
¶ 60 This argument is generally correct. As earlier discussed, a public body must comply with a proper request for disclosure unless the requested material
¶ 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 review and proceedings before the Public Access Counselor (PAC) (see
¶
“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
¶ 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
¶ 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.
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.