BETTER GOVERNMENT ASS'N v. Blagojevich

899 N.E.2d 382, 386 Ill. App. 3d 808, 326 Ill. Dec. 165, 2008 Ill. App. LEXIS 1170
CourtAppellate Court of Illinois
DecidedNovember 19, 2008
Docket4-08-0173
StatusPublished
Cited by16 cases

This text of 899 N.E.2d 382 (BETTER GOVERNMENT ASS'N v. Blagojevich) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BETTER GOVERNMENT ASS'N v. Blagojevich, 899 N.E.2d 382, 386 Ill. App. 3d 808, 326 Ill. Dec. 165, 2008 Ill. App. LEXIS 1170 (Ill. Ct. App. 2008).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

This case presents the question of whether the recipient of a federal grand jury subpoena, acting as a public official for the State of Illinois, has the discretion to refuse a request to disclose that subpoena, pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 through 11 (West 2006)). We conclude that in this case, the public official does not have such discretion.

In August 2006, defendant, Rod R. Blagojevich, in his official capacity as Governor of the State of Illinois, denied the request of plaintiffs, the Better Government Association and Dan Sprehe (collectively, BGA), to disclose federal grand jury subpoenas and related correspondence, pursuant to the FOIA. In September 2006, the Governor reaffirmed his earlier denial.

In August 2007, the BGA filed an amended complaint, requesting, in part, that the trial court issue an order compelling the Governor to disclose the subpoenas.

In October 2007, the Governor filed a motion for summary judgment. In November 2007, the BGA filed a motion for judgment on the pleadings. Following a January 2008 hearing on the parties’ respective motions, the trial court (1) denied the Governor’s summary-judgment motion and (2) granted the BGA’s motion for judgment on the pleadings.

The Governor appeals, arguing that (1) disclosure of federal grand jury subpoenas, pursuant to the FOIA, is preempted by federal law; (2) the subpoenas the BGA seeks are exempt from disclosure under various sections of the FOIA; and (3) the trial court’s order should be reversed because of newly discovered evidence. We disagree and affirm.

I. BACKGROUND

In July 2006, the BGA requested that the Governor provide copies of documents, pursuant to the FOIA (5 ILCS 140/1 through 11 (West 2006)). Specifically, the BGA sought the following:

“1. Copies of any and all subpoenas for records or testimony, issued to the State of Illinois by the United States Attorney’s Office, between January 1, 2006[,] and July 24, 2006.
2. Copies of any and all e-mails, memoranda, and other correspondence between the Office of the Governor and any executive agency, with regard to said subpoenas and/or the production of records for compliance thereof.”

In August 2006, the Governor denied the BGA’s request, claiming that if such subpoenas existed at all, they were exempt from disclosure, pursuant to section 7(l)(a) of the FOIA (5 ILCS 140/7(l)(a) (West 2006)). The Governor also denied the BGA’s request for any correspondences related to the subpoenas as an exemption, pursuant to sections 7(l)(f) and 7(l)(n) of the FOIA (5 ILCS 140/7(l)(f), (l)(n) (West 2006)).

Later in August 2006, the BGA appealed the Governor’s denial, pursuant to section 10(a) of the FOIA, which provides, in part, that “[a]ny person denied access to inspect or copy any public record may appeal the denial by sending a written notice of appeal to the head of the public body” (5 ILCS 140/10(a) (West 2006)). In September 2006, the Governor denied the BGA’s appeal.

In November 2006, the BGA sent a letter to Gary Shapiro, first assistant United States Attorney for the Northern District of Illinois, inquiring whether the United States Attorney’s office would intervene if the BGA filed suit against the Governor seeking disclosure of the federal grand jury subpoenas. Later in November 2006, Shapiro responded, in pertinent part, as follows:

“We are reluctant to opine on a hypothetical lawsuit, and can only tell you that we will only take such action as we believe is authorized by law and necessary to protect the secrecy and integrity of the federal grand jury process. Obviously, such a decision cannot be made until a lawsuit is filed and we are in a position to analyze its specifics and the relevant law.”

In January 2007, the BGA (1) filed a complaint requesting, in part, that the trial court issue an order compelling the Governor to release the subpoenas and associated correspondence and (2) provided Shapiro a copy of the filed complaint. In August 2007, the BGA filed an amended complaint, requesting, in part, that the court issue an order compelling the Governor to release the subpoenas. (On appeal, the BGA does not present any argument concerning the related correspondences.)

In October 2007, the Governor filed a motion for summary judgment. In support of the motion, the Governor claimed that in addition to section 7(l)(a), the subpoenas the BGA sought were exempt from disclosure under various sections of the FOIA pertaining to “[rjecords compiled by any public body for administrative enforcement proceedings and any law enforcement or correctional agency for law enforcement purposes or for internal matters of the public body.” See 5 ILCS 140/7(l)(c), (l)(c)(i), (l)(c)(vi), (l)(c)(viii) (West 2006). In November 2007, the BGA filed a motion for judgment on the pleadings.

During the January 2008 hearing on the parties’ motions, the Governor argued that the BGA’s complaint called for the disclosure of matters before the federal grand jury, which was prohibited by Federal Rule of Criminal Procedure 6(e)(2) (Fed. R. Grim. E 6(e)(2)). Although the Governor conceded that the specific language of Rule 6(e)(2) prohibiting disclosure did not apply to recipients of federal grand jury subpoenas, he contended that the federal courts had extended the rule’s exceptions to include the information contained within a subpoena to preserve (1) the secrecy of the federal grand jury process and (2) the integrity of the government’s investigation. Essentially, the Governor claimed that (1) because federal courts had generally barred recipients of federal grand jury subpoenas from disclosing the contents of the subpoenas absent a showing of a “particularized need” by the party requesting disclosure and (2) the EGA failed to show any such need, federal law prohibited disclosure of the subpoenas, which, in turn, prohibited disclosure under section 7(l)(a) of the FOIA (5 ILCS 140/7(l)(a) (West 2006)).

During that same January 2008 hearing, the following colloquy occurred:

“THE COURT: *** I do have one question for you, [counsel]. Say a person receives a [flederal [g]rand Q]ury subpoena from the Northern District of Illinois. Could that person be subject to either the contempt powers of the [c]ourt or criminal prosecution if that person voluntarily discloses that subpoena to somebody else?
[GOVERNOR’S COUNSEL]: No, sir.”

In announcing its decision, the trial court stated the following:

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Bluebook (online)
899 N.E.2d 382, 386 Ill. App. 3d 808, 326 Ill. Dec. 165, 2008 Ill. App. LEXIS 1170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/better-government-assn-v-blagojevich-illappct-2008.