Better Government Association v. Blagojevich

• Court: Appellate Court of Illinois
• Decided: November 19, 2008
• Docket: 4-08-0173 Rel
• Status: Published

Opinion

Filed 11/19/08 NO. 4-08-0173

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

BETTER GOVERNMENT ASSOCIATION and DAN ) Appeal from SPREHE, ) Circuit Court of Plaintiffs-Appellees, ) Sangamon County v. ) No. 07MR5 ROD R. BLAGOJEVICH, in His Official ) Capacity as Governor of the State of ) Honorable Illinois, ) Patrick W. Kelley, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

This case presents the question of whether the recipi-

ent 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 compel- ling 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, memo-

- 2 - randa, 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(1)(a) of the FOIA (5 ILCS

140/7(1)(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(1)(f) and 7(1)(n) of the FOIA

(5 ILCS 140/7(1)(f), (1)(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 Attor-

ney'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

- 3 - follows:

"We are reluctant to opine on a hypo-

thetical 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 deci-

sion cannot be made until a lawsuit is filed

and we are in a position to analyze its spe-

cifics and the relevant law."

In January 2007, the BGA (1) filed a complaint request-

ing, 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.)

summary judgment. In support of the motion, the Governor claimed

that in addition to section 7(1)(a), the subpoenas the BGA sought

were exempt from disclosure under various sections of the FOIA

pertaining to "[r]ecords compiled by any public body for adminis-

trative enforcement proceedings and any law enforcement or

- 4 - correctional agency for law enforcement purposes or for internal

matters of the public body." See 5 ILCS 140/7(1)(c), (1)(c)(i),

(1)(c)(vi), (1)(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' mo-

tions, 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. Crim. P. 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 excep-

tions 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. Essen-

tially, 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 BGA failed to show any such need, federal law prohibited

disclosure of the subpoenas, which, in turn, prohibited disclo-

sure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West

2006)).

During that same January 2008 hearing, the following

- 5 - colloquy occurred:

"THE COURT: *** I do have one question

for you, [counsel]. Say a person receives a

[f]ederal [g]rand [j]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:

"In order to disclose, a particularized

need must outweigh the need for continued

[g]rand [j]ury secrecy.

***

Here[,] there is no competent evidence

of a need for continued secrecy. The only

evidence of need is what appears to be a

boilerplate letter saying disclosure could

impede an investigation. It was attached to

the subpoena at the time of service.

*** [S]ince that subpoena was served,

the United States Attorney's [o]ffice [for]

the Northern District of Illinois has been

- 6 - given every opportunity not only to inter-

vene, but simply to have informed this

[c]ourt, either by an affidavit to [the BGA]

or a letter giving this [c]ourt any type of

information or indication that continued

[g]rand [j]ury secrecy was important in this

case. ***

Instead, we have information in the

motion that shows the U.S. Attorney's [o]ffi-

ce was notified of a potential lawsuit as

early as the Fall of 2006. ***

[The United States Attorney has] taken

no action whatsoever. Because they have

stood mute, the only conclusion [this court]

can draw is that in their eyes[,] there is no

further need for secrecy.

Here, because there is no demonstrated

need for secrecy, I believe the need for the

public to know outweighs that, and the bal-

ance clearly favors disclosure. ***

* * *

I think it is telling that the Governor

or anybody else can disclose a [f]ederal

- 7 - [g]rand [j]ury subpoena they have received to

whomever they want. Clearly, if there were a

law against it, they would be in some kind of

trouble, either contempt or federal charges,

but that is not the case.

So I'm going to deny the [Governor's]

[m]otion for [s]ummary [j]udgment. I believe

the [Governor] is required under the [FOIA]

to disclose the subpoenas, and I will allow

[the BGA's] motion for judgment on the plead-

ings."

In a letter dated February 5, 2008, the United States

Attorney’s office for the Northern District of Illinois wrote the

following to the Governor:

"In response to your inquiry, the U.S.

Attorney's [o]ffice has served various grand

jury subpoenas on the Office of the Governor

of the State of Illinois, seeking records

pursuant to an official criminal investiga-

tion of a suspected felony being conducted by

a federal grand jury. With two exceptions,

noted below, the U.S. Attorney's [o]ffice

continues to request that you not disclose

the fact that the subpoenas have been served.

- 8 - Any such disclosure could impede the investi-

gation and thereby interfere with the en-

forcement of law. If you do not believe that

you can comply with this request, I request

that you contact me before making any disclo-

sure.

Having reviewed all of the subpoenas to

determine whether to renew our initial non-

disclosure request, there are two subpoenas

that can be disclosed, if necessary, without

impeding the investigation: (1) the May 3,

2006[,] subpoena directed to the Custodian of

Records, Central Management Services, Bureau

of Personnel; and (2) the June 23, 2006[,]

subpoena directed to the Custodian of Re-

cords, Office of the Governor of the State of

Illinois (concerning backup tapes, archives,

etc. for offices under the jurisdiction of

the Governor)."

Later in February 2008, the Governor filed a motion to

reconsider based on newly discovered evidence--namely, the United

States Attorney's February 5, 2008, letter. In March 2008, the

trial court denied the Governor’s motion.

This appeal followed.

- 9 - II. ANALYSIS

A. The Governor’s Claim That the Federal Grand Jury Subpoenas Are Exempt From Disclosure

The Governor contends that because (1) disclosure of

federal grand jury subpoenas are preempted by federal law--

specifically, Federal Rule of Criminal Procedure 6(e)(2) (Fed. R.

Crim. P. 6(e)(2)), and (2) the subpoenas the BGA seeks are exempt

from disclosure under various sections of the FOIA, the trial

court erred by dismissing his motion for summary judgment and

granting the BGA's motion for judgment on the pleadings. We

disagree.

1. Standards of Review

a. Summary Judgment

"'Summary judgment is proper where the pleadings,

affidavits, depositions, admissions, and exhibits on file, when

viewed in the light most favorable to the nonmovant, reveal that

there is no issue as to any material fact and that the movant is

entitled to judgment as a matter of law.'" DesPain v. City of

Collinsville, 382 Ill. App. 3d 572, 576-77, 888 N.E.2d 163, 166

(2008). "In appeals from summary judgment rulings, review is de

novo." Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d

1, 9 (2008).

b. Judgment on the Pleadings

Judgment on the pleadings is appropriate when the

pleadings disclose only questions of law rather than issues of

- 10 - material fact. County of Cook v. Philip Morris, Inc., 353 Ill.

App. 3d 55, 59, 817 N.E.2d 1039, 1042 (2004). "In ruling on a

motion for judgment on the pleadings, the court will consider

only those facts apparent from the face of the pleadings, matters

subject to judicial notice, and judicial admissions in the

record." Gillen v. State Farm Mutual Automobile Insurance Co.,

215 Ill. 2d 381, 385, 830 N.E.2d 575, 577 (2005). We review de

novo a trial court’s order granting a motion for judgment on the

pleadings. Intersport, Inc. v. National Collegiate Athletic

Ass'n, 381 Ill. App. 3d 312, 318, 885 N.E.2d 532, 538 (2008).

2. The Governor's Claim That Federal Rule of Criminal Procedure 6(e)(2) Preempts the FOIA

a. Federal Case Law

The supremacy clause of the United States Constitution

provides that "[t]his Constitution, and the Laws of the United

States *** shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing in the Constitu-

tion or Laws of any State to the Contrary notwithstanding." U.S.

Const., art. VI, cl. 2. "'State law is preempted under the

supremacy clause in three circumstances: (1) when the express

language of a federal statute indicates an intent to preempt

state law; (2) when the scope of a federal regulation is so

pervasive that it implies an intent to occupy a field exclu-

sively; and (3) when state law actually conflicts with federal

law.'" Poindexter v. State of Illinois, 229 Ill. 2d 194, 210,

- 11 - 890 N.E.2d 410, 421 (2008), quoting Village of Mundelein v.

Wisconsin Central R.R., 227 Ill. 2d 281, 288, 882 N.E.2d 544, 549

(2008).

Federal Rule of Criminal Procedure 6(e)(2), which

pertains to the federal grand jury, provides as follows:

"(2) Secrecy.

(A) No obligation of secrecy

may be imposed on any person except

in accordance with Rule 6(e)(2)(B).

(B) Unless these rules provide

otherwise, the following persons

must not disclose a matter occur-

ring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of

a recording device;

(v) a person who

transcribes recorded

testimony;

(vi) an attorney for

the government; or

(vii) a person to

- 12 - whom disclosure is made

under Rule 6(e)(3)(A)(ii)

or (iii)." Fed. R. Crim.

P. 6(e)(2).

Despite the Governor's contention that Federal Rule of

Criminal Procedure 6(e)(2) prohibits disclosure of federal grand

jury subpoenas, he concedes that the explicit language of the

rule does not apply to the general public. Thus, if a private

citizen were served with a federal grand jury subpoena, federal

law would not bar him from revealing the contents of the subpoena

or his thoughts about it.

Although most federal grand jury subpoena recipients

usually prefer to remain silent about the matter, circumstances

may prompt that person to choose to disclose its existence and

content. Such circumstances may include the recipient's belief

that disclosure of the subpoena's content would (1) be in his

best interest to demonstrate his ongoing cooperation with the

federal prosecutor (particularly if the recipient held a politi-

cal position) or (2) represent the opening salvo in the recipi-

ent's contention that he is the target of a political witch hunt

and the subpoena is evidence of government corruption. Regard-

less of the recipient's motive, under federal law, a private

citizen has the discretion to reveal the subpoena, and if he

chooses to do so, he will not suffer the wrath of the federal

- 13 - court’s contempt powers or be subject to any federal charges.

The Governor cites several federal district court cases

that have expanded Rule 6(e)(2)’s disclosure prohibitions. See

Board of Education of Evanston Township High School District No.

202 v. Admiral Heating & Ventilation, Inc., 513 F. Supp. 600, 604

(N.D. Ill. 1981) ("Grand jury confidentiality would be emascu-

lated if a party seeking discovery of its proceedings could do so

by routinely obtaining that information from potential (or as in

this case actual) defendants"); In re Wirebound Boxes Antitrust

Litigation, 126 F.R.D. 554, 556 (D. Minn. 1989) ("Absent a

showing of particularized need, [federal] courts have generally

barred private actors from disclosing documents created by a

grand jury or at a grand jury's request, such as subpoenas,

transcripts, and lists of documents"); In re Caremark Interna-

tional, Inc. Securities Litigation, No. 94 C 4751 (N.D. Ill.

1995) (1995 WL 557496) (where the Northern District of Illinois

limited disclosure to documents not related to the investigation

because it would violate the secrecy of the federal grand jury).

However, we are not required to follow these federal court

decisions. Instead, we may choose to do so if we find them

persuasive. See Tortoriello v. Gerald Nissan of North Aurora,

Inc., 379 Ill. App. 3d 214, 224, 882 N.E.2d 157, 168 (2008),

quoting Lamar Whiteco Outdoor Corp. v. City of West Chicago, 355

Ill. App. 3d 352, 360, 823 N.E.2d 610, 617 (2005) ("'[a]lthough

- 14 - this court is not bound to follow federal district court deci-

sions [citation], such decisions can provide guidance and serve

as persuasive authority'"). For the reasons that follow, we do

not find them persuasive and, accordingly, will not follow them.

There is nothing new or novel about private citizens or

public officials receiving federal grand jury subpoenas. Federal

grand juries have been issuing subpoenas for over 200 years.

Yet, during all this time, Congress has not seen fit to specifi-

cally restrict the behavior of subpoena recipients. Accordingly,

we hold that (1) the failure of Congress to do so is not somehow

an oversight and, therefore, (2) Congress has chosen not to

restrict a recipient's behavior concerning what he may say or do

on the matter. The federal courts that have held otherwise--that

is, those courts that have decided that Congress' failure to act

was the result of an oversight--have taken it upon themselves to

correct this oversight by judicially amending Rule 6(e)(2). We

disagree with this course of action and decline to follow it.

We also reject the Governor's argument that, as a

matter of policy, revealing any aspect of the federal grand jury

process is not desirable. This court's role is not policy

formulation. Instead, our role is to apply--and abide by--the

legislation that the policy-making bodies, Congress and the

Illinois General Assembly, have enacted.

b. The Need for a Specific Prohibition for the FOIA's Disclosure Policy Not To Apply

- 15 - We also reject the Governor's argument because it is

inconsistent with the FOIA's language and intent. Section 1 of

the FOIA states, in part, that "all persons are entitled to full

and complete information regarding the affairs of government." 5

ILCS 140/1 (West 2006). This hortatory language emphasizes and

calls for an expansive interpretation. Further, our legislature

has authorized exemptions to the FOIA's expansive disclosure

policy when a given disclosure is not just prohibited "by federal

or State law or rules and regulations adopted under federal or

State law" but specifically so prohibited. 5 ILCS 140/7(1)(a)

(West 2006). When interpreting a statute, this court cannot

disregard explicit statutory language. See Hedrick v. Bathon,

319 Ill. App. 3d 599, 604-05, 747 N.E.2d 917, 922 (2001) ("Statu-

tory interpretation is the process by which the intent of the

legislature is ascertained and given effect, primarily by looking

to the statute’s actual words, which are to be given their

commonly accepted meanings unless otherwise defined by our

General Assembly"). Therefore, this court is duty-bound to apply

the actual words of the statute enacted by our legislature.

Thus, an exemption restricting the expansive nature of the FOIA’s

disclosure provisions must be explicitly stated--that is, such a

proposed disclosure must be specifically prohibited.

Because Rule 6(e)(2) does not explicitly prohibit

recipients from disclosing the existence or content of federal

- 16 - grand jury subpoenas, we decline to follow those federal cases

that have expanded that rule by judicially amending it.

3. The Governor's Claim That the Federal Grand Jury Subpoenas Are Exempt From Disclosure Under the FOIA

The Governor also contends that the federal grand jury

subpoenas are exempt from disclosure under various sections of

the FOIA. Specifically, the Governor asserts that sections

7(1)(a), (1)(b)(v), (1)(c)(i), (1)(c)(vi), and (1)(c)(viii) of

the FOIA (5 ILCS 140/7(1)(a), (1)(b)(v), (1)(c)(i), (1)(c)(vi),

(1)(c)(viii) (West 2006)) prohibit disclosure. We disagree.

a. Pertinent Sections of the FOIA

i. Legislative Intent

Section 1 of the FOIA states as follows:

"Pursuant to the fundamental philosophy

of the American constitutional form of gov-

ernment, it is declared to be the public

policy of the State of Illinois that all

persons are entitled to full and complete

information regarding the affairs of govern-

ment and the official acts and policies of

those who represent them as public officials

and public employees consistent with the

terms of this Act. Such access is necessary

to enable the people to fulfill their duties

of discussing public issues fully and freely,

- 17 - making informed political judgments and moni-

toring government to ensure that it is being

conducted in the public interest." 5 ILCS

140/1 (West 2006).

ii. Inspection or Copying of Public Records

Section 3 of the FOIA states, in part, as follows:

"Each public body shall make available

to any person for inspection or copying all

public records, except as otherwise provided

in [s]ection 7 of this Act." 5 ILCS 140/3(a)

(West 2006).

iii. FOIA Disclosure Exemptions

Sections 7(1)(a), (1)(b), and (1)(c) of the FOIA state,

in part, as follows:

"(1) The following shall be exempt from

inspection and copying:

(a) Information specifically

prohibited from disclosure by fed-

eral or State law or rules and

regulations adopted under federal

or State law.

(b) Information that, if dis-

closed, would constitute a clearly

unwarranted invasion of personal

- 18 - privacy, unless the disclosure is

consented to in writing by the

individual subjects of the informa-

tion. The disclosure of informa-

tion that bears on the public du-

ties of public employees and offi-

cials shall not be considered an

invasion of personal privacy.

Information exempted under this

subsection (b) shall include but is

not limited to:

(v) information

revealing the identity of

persons who file com-

plaints with or provide

information to adminis-

trative, investigative,

law enforcement or penal

agencies;

(c) Records compiled by any

public body for administrative

enforcement proceedings and any law

- 19 - enforcement or correctional agency

for law enforcement purposes or for

internal matters of a public body,

but only to the extent that disclo-

sure would:

(i) interfere with

pending or actually and

reasonably contemplated

law enforcement proceed-

ings conducted by any law

enforcement or correc-

tional agency;

(vi) constitute an

invasion of personal

privacy under subsection

(b) of this Section;

(viii) obstruct an

ongoing criminal investi-

gation." 5 ILCS

140/7(1)(a), (1)(b)(v),

(1)(c)(i), (1)(c)(vi),

(1)(c)(viii) (West 2006).

- 20 - b. Policy Underlying the FOIA

As we noted earlier, Federal Rule of Criminal Procedure

6(e)(2) gives a private citizen the discretion to choose to

disclose or not disclose the receipt of a federal grand jury

subpoena without running afoul of the rule or federal law.

However, the FOIA eliminates such discretion from the recipient

of a federal grand jury subpoena if that recipient is a public

official subject to FOIA's requirements.

Here, the Governor was served with subpoenas in his

official capacity as the Governor of Illinois. As such, the FOIA

applies, thus mandating "full and complete information regarding

the affairs of government and the official acts and policies of

those who represent them as public officials." 5 ILCS 140/1

(West 2006). Thus, unlike for a private citizen, the FOIA

eliminates any discretion the Governor, acting in his official

capacity as Governor for the State of Illinois, has in keeping

the subpoenas secret.

We are not surprised that governmental entities,

including the United States Attorney, generally prefer not to

reveal their activities to the public. If this were not a

truism, no FOIA would be needed. Our legislature enacted the

FOIA in recognition that (1) blanket government secrecy does not

serve the public interest and (2) transparency should be the

norm, except in rare, specified circumstances. The legislature

- 21 - has concluded that the sunshine of public scrutiny is the best

antidote to public corruption, and Illinois courts are duty-bound

to enforce that policy.

Because we previously have held that Federal Rule of

Criminal Procedure 6(e)(2) does not apply, we reject the

Governor’s argument that section 7(1)(a) prohibits disclosure.

Similarly, because the record is absolutely devoid of any evi-

dence that the federal grand jury subpoenas were "[r]ecords

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 a public

body," we reject the Governor’s argument that sections 7(1)(c)(i)

and 7(1)(c)(viii) prohibit disclosure (5 ILCS 140/7(1)(c)(i),

(1)(c)(viii) (West 2006)). In addition, because disclosure of

information that bears on the public duties of public officials

is not considered an invasion of personal privacy under the FOIA,

we reject the Governor’s argument that sections 7(1)(c)(vi) and

7(1)(b) prohibit disclosure (5 ILCS 140/7(1)(c)(vi), (1)(b) (West

Accordingly, we conclude that the trial court did not

err by dismissing the Governor’s summary-judgment motion and

granting the BGA’s motion for judgment on the pleadings.

B. The Governor’s Claim of Newly Discovered Evidence

The Governor also contends that the trial court's order

- 22 - should be reversed because of newly discovered evidence--namely,

the United States Attorney's February 5, 2008, letter. We

One intended purpose of a postruling motion is to bring

to the trial court’s attention newly discovered evidence that was

not available at the time of the hearing at which the court

ruled. Gardner v. Navistar International Transportation Corp.,

213 Ill. App. 3d 242, 248, 571 N.E.2d 1107, 1111 (1991). Essen-

tially, this type of motion seeks a "'"second bite at the ap-

ple,"'" which requires the trial court to determine whether it

should admit new matters into evidence and reconsider its deci-

sion. Daniels v. Corrigan, 382 Ill. App. 3d 66, 71, 866 N.E.2d

1193, 1200 (2008), quoting O'Shield v. Lakeside Bank, 335 Ill.

App. 3d 834, 838, 781 N.E.2d 1114, 1118 (2002). "A ruling on a

motion to reconsider is within the sound discretion of the trial

court and will not be disturbed absent an abuse of that discre-

tion." Robidoux v. Oliphant, 201 Ill. 2d 324, 347, 775 N.E.2d

987, 1000 (2002).

Over 17 years ago in Gardner, 213 Ill. App. 3d at 248,

571 N.E.2d at 1111, this court rejected the plaintiff’s newly

discovered evidence argument because the evidence the plaintiff

sought to have us consider "had been available prior to the

hearing on the motion for summary judgment." In so concluding,

this court wrote the following:

- 23 - "Trial courts should not permit litigants to

stand mute, lose a motion, and then franti-

cally gather evidentiary material to show

that the court erred in its ruling. Civil

proceedings already suffer from far too many

delays, and the interests of finality and

efficiency require that the trial courts not

consider such late-tendered evidentiary mate-

rial, no matter what the contents thereof may

be." (Emphasis in original.) Gardner, 213

Ill. App. 3d at 248-49, 571 N.E.2d at 1111.

See Robidoux, 201 Ill. 2d at 346, 775 N.E.2d at 1000 (quoting

Gardner approvingly).

In this case, the evidence showed that the February 5,

2008, letter from the United States Attorney was (1) sent in

response to the Governor’s inquiry (as shown by the letter’s

introductory clause) and (2) dated more than three weeks after

the trial court denied the Governor’s motion for summary

judgment. Because the Governor did not alert the court to the

United States Attorney's letter prior to the court’s January 9,

2008, hearing, we conclude that the Governor’s request for a

letter from the United States Attorney was made after the Febru-

ary 5, 2008, hearing in a frantic attempt to show that the court

had erred by denying his motion.

- 24 - The Governor fails to explain why the trial court or

this court should be impressed with the United States Attorney's

February 5, 2008, letter, given that it is conclusory and filled

with bureaucratic vagueness. If the United States Attorney

really believed that the Governor's disclosing of the federal

grand jury subpoenas would somehow have interfered with the

federal grand jury investigation, the United States Attorney

could have appeared in this litigation to make known and defend

the federal grand jury's interests just as it did in Brady-Lunny

v. Massey, 185 F. Supp. 2d 928, 930 (C.D. Ill. 2002).

In Brady-Lunny, 185 F. Supp. 2d at 929-30, a newspaper

reporter sought information pertaining to all inmates in the

custody of the DeWitt County sheriff pursuant to the FOIA. The

sheriff provided the information sought for state inmates but not

for federal inmates because the Code of Federal Regulations

prohibited disclosure of "lists" of federal inmates (28 C.F.R.

§513.34(b) (2006)). The newspaper company later sued the sheriff

to compel disclosure. The United States Attorney intervened to

protect the information about federal inmates and successfully

moved the suit to the United States District Court for the

Central District of Illinois under the federal-question doctrine

(28 U.S.C. §1331 (2000)).

In granting the United States Attorney's motion for

summary judgment, the district court concluded that in addition

- 25 - to section 513.34(b) of title 28 of the Code of Federal Regula-

tions, the listing sought was specifically barred by sections

(b)(7)(C) and (b)(7)(F) of the federal FOIA (5 U.S.C.

§552(b)(7)(C), (b)(7)(F) (2000)), which pertain to disclosures

that could reasonably be expected to (1) constitute an unwar-

ranted invasions of personal privacy and (2) endanger life or

physical safety, respectively. Brady-Lunny, 185 F. Supp. 2d at

932.

Assuming that the United States Attorney could make a

case that the Governor's disclosing the federal grand jury

subpoenas would somehow have interfered with the federal grand

jury investigation--a proposition about which we remain skepti-

cal, given that the United States Attorney remained silent for

over a year after being informed of this litigation--the trial

court and this court would have given respectful consideration to

any stated concerns. However, given the United States Attorney's

silence (except for the barely audible February 5, 2008, letter),

we decline to speculate about the harm that might somehow arise

to an ongoing federal investigation by the mere act of revealing

the substance of the subpoenas in question.

For the reasons stated, the United States Attorney’s

February 5, 2008, letter was insufficient to call into question

the trial court's FOIA ruling. Thus, we conclude that the court

did not abuse its discretion by denying the Governor’s motion to

- 26 - reconsider.

In closing, this court commends the trial court's

thoughtful analysis and careful explanation of its findings,

which we found most helpful.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

APPLETON, P.J., and McCULLOUGH, J., concur.

- 27 -