Better Gov't Ass'n v. Office of Special Prosecutor (In re Appointment of Special Prosecutor)

• Decision Date: 25 January 2019
• Docket Number: Docket No. 122949
• Citation: 129 N.E.3d 1181,2019 IL 122949,432 Ill.Dec. 638
• Parties: IN RE APPOINTMENT OF SPECIAL PROSECUTOR (Better Government Association, Appellant; the Office of the Special Prosecutor et al., Appellees).
• Court: Illinois Supreme Court

2019 IL 122949

129 N.E.3d 1181

432 Ill.Dec. 638

IN RE APPOINTMENT OF SPECIAL PROSECUTOR (Better Government Association, Appellant; the Office of the Special Prosecutor et al., Appellees).

Docket No. 122949

Supreme Court of Illinois.

Opinion filed January 25, 2019.

Matthew Topic and Joshua Burday, of Loevy & Loevy, of Chicago, for appellant.

Daniel Rubinstein, Sean G. Wieber, Patrick R. O’Meara, and Michael A. Meneghini, of Winston & Strawn LLP, of Chicago, for appellee Office of the Special Prosecutor.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, Irina Dmitrieva, and Jane Elinor Notz, Assistant Corporation Counsel, of counsel), for other appellees.

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.

JUSTICE NEVILLE delivered the judgment of the court, with 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 Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2012) ), sealed grand jury documents.¹ In the course of the resulting litigation, the circuit court of Cook County entered competing orders regarding disclosure. The appellate court rejected disclosure of most of the BGA's FOIA requests, but remanded to the circuit court for an in camera inspection of a specific category of documents to determine which, if any, may be disclosed. 2017 IL App (1st) 161376, 418 Ill.Dec. 723, 91 N.E.3d 424.

¶ 2 This court allowed the BGA's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. Mar. 15, 2016) ). We now affirm the judgment of the appellate court.

¶ 3 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 so that [Vanecko] did not face criminal charges." In April 2012, the criminal court granted the petition and appointed Dan K. Webb as special prosecutor. See 55 ILCS 5/3-9008 (West 2010). The court ordered Webb to investigate (1) whether criminal charges should be filed against anyone in connection with Koschman's death and (2) whether "employees of the Chicago Police Department and the Cook County State's Attorney's Office acted intentionally to suppress and conceal evidence, furnish false evidence, and generally impede the investigation into Mr. Koschman's death." The court also ordered Webb to submit a final report "detailing the progress and ultimate results of the investigation and any criminal prosecutions commenced."

¶ 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 complying with any FOIA request that identified or characterized documents as having been disseminated to the OSP in furtherance of the Koschman investigation. Further, the 2014 order provided that the June 2012 protective order remained in effect and that it limited only the identification of any documents or other records as being grand jury materials.

¶ 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 section 2-619(a)(9) of the Code of Civil Procedure ( 735 ILCS 5/2-619(a)(9) (West 2014) ). Each defendant asserted that the requested materials were exempt from disclosure pursuant to section 7(1)(a) of FOIA ( 5 ILCS 140/7(1)(a) (West 2014) ) because disclosure was prohibited by state law concerning the secrecy of grand jury proceedings.

¶ 14 The OSP asserted that section 112-6 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/112-6 (West 2014) ) prohibited disclosure. The chancery court granted the OSP's motion to dismiss. The court found that section 112-6 prohibited disclosure of the requested materials, which rendered them exempt from disclosure pursuant to section 7(1)(a) of FOIA.

¶ 15 The City asserted that the criminal court's protective orders prohibited disclosure, which rendered the requested materials exempt from disclosure pursuant to section 7(1)(a) of FOIA. The City also asserted that it would be held in contempt of court if it disregarded the protective orders. However, the chancery court denied the City's motion to dismiss. The chancery court rejected the City's argument that a court order alone creates a FOIA exemption. Accordingly, the chancery court found that the criminal court's protective orders did not constitute state law that would render the requested materials exempt from disclosure pursuant to section 7(1)(a) of FOIA.

¶ 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...