Chicago Public Media v. Illinois State Toll Highway Authority

2023 IL App (1st) 210629-U

• Court: Appellate Court of Illinois
• Decided: March 31, 2023
• Docket: 1-21-0629
• Status: Unpublished

Opinion

2023 IL App (1st) 210629-U

SECOND DIVISION March 31, 2023

No. 1-21-0629

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

CHICAGO PUBLIC MEDA, ) Appeal from the Circuit ) Court of Cook County. Plaintiff-Appellant, ) ) v. ) No. 19 CH 008238 ) ILLINOIS STATE TOLL HIGHWAY ) AUTHORITY, ) Honorable ) Celia G. Gamrath, Defendant-Appellee. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County is affirmed and the case is remanded for further proceedings; the trial court properly found that subpoenas issues to a public body are not categorically exempt from disclosure under FOIA but may contain information that is; therefore, the trial court should have conducted an in camera inspection to determine whether the documents were subject to redaction.

¶2 Plaintiff, Chicago Public Media, filed a Freedom of Information Act (FOIA) request with

defendant, the Illinois State Toll Highway Authority. Defendant objected to part of the request

and refused to comply. Plaintiff filed this case against defendant for violating FOIA. On cross- 1-21-0629

motions, the circuit court of Cook County granted relief, in part, to both parties. The court held

that defendant was required to comply with the FOIA request, but that defendant was entitled to

make certain redactions to the documents before turning them over to plaintiff. Plaintiff appeals,

arguing that it should receive the documents in full, without redactions.

¶3 For the following reasons, we affirm the trial court’s order and remand the case with

instructions that the court conduct an in camera review of the redactions to determine whether

any exemption from disclosure under FOIA applies and for further proceedings not inconsistent

with this order.

¶4 BACKGROUND

¶5 Plaintiff is a company that owns several local media platforms including a radio station,

WBEZ-Chicago. On March 18, 2019, a WBEZ reporter submitted a FOIA request to defendant

asking defendant to turn over “any and all subpoenas from federal, state, or local law

enforcement authorities seeking documents or testimony that have been filed with the Illinois

State Tollway since January 1, 2018.”

¶6 The parties negotiated defendant’s compliance with the FOIA request. There were

originally over 400 potentially responsive subpoenas. Through negotiations, the parties narrowed

the scope of the FOIA request to 126 responsive subpoenas. Defendant agreed to turn over some

of the subpoenas responsive to the request but indicated that it would not produce the subpoenas

where the issuing agency objected to the subpoena being disclosed. Defendant turned over 83 of

the 126 responsive subpoenas, but it withheld the other 43 on the basis that the issuing agencies

objected to their disclosure.

¶7 Plaintiff filed this case claiming that defendant violated FOIA because defendant is a

public body and the records sought are non-exempt public records under FOIA. Defendant

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moved to dismiss the complaint arguing that it properly withheld from production certain

subpoenas under the section of FOIA that exempts from disclosure information that is prohibited

from disclosure under state or federal law. See 5 ILCS 140/7(1)(a) (West 2020). Defendant

maintained that section 112-6(b) of the Illinois Code of Criminal Procedure and Federal Rule of

Criminal Procedure 6(e) prohibit disclosure of material that reveals secret aspects of grand jury

investigations and proceedings. See 725 ILCS 5/112-6(b) (West 2020); Fed. R. Crim. Pro. 6(e)

(West 2020). Defendant further argued that it properly withheld certain documents under the

section of FOIA that exempts from disclosure information that would interfere with actual or

expected law enforcement proceedings. See 5 ILCS 140/7(1)(d)(i) (West 2020).

¶8 Plaintiff filed a motion for summary judgment arguing that the recipient of a grand jury

subpoena is not prohibited by law from disclosing it. Plaintiff maintained that the same question

had already been answered in Better Government Association v. Blagojevich, 386 Ill. App. 3d

808 (2008), where the court held that a public entity in receipt of a subpoena cannot withhold the

contents of the subpoena in the face of a FOIA request by invoking grand jury secrecy. Id. at

817-18.

¶9 The trial court ruled partially in favor of each party on the respective motions. The court

found that grand jury subpoenas “are not prohibited per se from disclosure under section 7(1)(a)

of FOIA” and partially granted plaintiff’s motion ordering defendant to disclose the subpoenas

that are the subject of this appeal. Relying on our supreme court’s decision in In re Special

Prosecutor, 2019 IL 122848, and section 140/7(1) of FOIA, the court found:

“[I]f the subpoena does not reveal some secret aspect of the grand jury’s

investigation, such as the ‘identities of witnesses or jurors, the substance of

testimony, the strategy or direction of the investigation, the deliberations or

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questions of jurors, and the like,’ then it is not exempt from disclosure. [Citation.]

To the extent a subpoena contains such information, the exempt secret portions

may be redacted. [Citation.]”

¶ 10 The trial court relied specifically on section 7(a) of FOIA, finding that defendant

may redact any information prohibited from disclosure by section 7(a) through section

112-6 of the Code and/or Federal Rule of Procedure 6. The court explained that, if any

dispute arose between the parties about the redactions, it would conduct an in camera

inspection to determine the propriety of the redactions. The court found separately that

the subpoenas that are the subject of this appeal are not exempt under section 7(1)(d)(1)

of FOIA. In its conclusion, the court ruled:

“[Defendant] improperly withheld the remaining grand jury subpoenas that are

not subject to the four protective orders, and shall produce these subpoenas (if

any) within 60 days, with any necessary redactions allowed by law.” (Emphasis

added.)

¶ 11 Defendant produced the subpoenas at issue with significant redactions. Plaintiff filed a

motion to reconsider the trial court’s ruling on permitting defendant to redact the responsive

documents. The trial court denied the motion to reconsider, and plaintiff now appeals that part of

the order permitting defendant to redact the documents responsive to plaintiff’s FOIA request.

Defendant also filed a motion for the trial court to reconsider that part of the trial court’s order

directing it to provide the subpoenas. The trial court denied defendant’s motion. Defendant did

not file a cross-appeal.

ANALYSIS

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¶ 12 Plaintiff argues that the trial court erred when it entered an order permitting defendant to

redact information from the documents responsive to the FOIA request. The parties agree that

the appeal presents a question of law and that we are to review the trial court’s ruling de novo.

See In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 22. Because the appeal arises

from the trial court’s final order granting summary judgment and presents an issue of statutory

construction, our review is de novo. Id.

¶ 13 The primary objective in construing a statute is to ascertain and give effect to the intent of

the legislature. Id. at ¶ 23. The language used by the legislature is the best indicator of what the

legislature intended. Id. Courts are not entitled to rewrite a statute to add provisions or

limitations the legislature did not include. Illinois State Treasurer v. Illinois Workers’

Compensation Commission, 2015 IL 117418, ¶ 28.

¶ 14 FOIA “entitle[s] [all persons] to full and complete information regarding the affairs of

government and the official acts and policies of those who represent them as public officials and

public employees.” 5 ILCS 140/1 (2020). The primary purpose of FOIA is to “enable the people

to fulfill their duties of discussing public issues fully and freely, making informed political

judgments and monitoring government to ensure that it is being conducted in the public interest.”

Id. FOIA sets forth a well-accepted and important responsibility of the government in our

democratic system: “It is a fundamental obligation of government to operate openly and provide

public records [] expediently and efficiently” to those who request them. Id.

¶ 15 Every public record is presumed to be open and accessible to the public. Chicago Tribune

Co. v. Cook County Assessor's Office, 2018 IL App (1st) 170455, ¶ 21. Thus, when a public body

receives a proper request for information, it must comply with that request unless one of the

narrow statutory exemptions enumerated in FOIA expressly applies. Id.; Illinois Education

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Association v. Illinois State Board of Education, 204 Ill. 2d 456, 463 (2003). Under FOIA, if a

government body wishes to withhold a document from production, the government has the

burden of proving that the records in question fall within the exemption that it has claimed. Stern

v. Wheaton–Warrenville Community Unit School District 200, 233 Ill. 2d 396, 406 (2009). A

public body may redact certain information from documents that must otherwise be disclosed

under FOIA. This court has found that a trial court “appropriately determined that *** the

‘private information’ (as used in section 7(1)(b) of the Act) in the documents sought was exempt

under the Act [citations]; and that *** as provided in section 7(1), [the] public body may elect to

redact exempt information from documents, [but] the public body ‘shall make the remaining

information available for inspection and copying’ (emphasis added). 5 ILCS 140/7(1) (West

2010).” Heinrich v. White, 2012 IL App (2d) 110564, ¶¶ 18-19.

¶ 16 When the government claims an exemption, it must prove the exemption applies by clear

and convincing evidence. 5 ILCS 140/11(f) (West 2020). Based on the legislature’s clearly stated

intent, FOIA is to be construed with a liberal construction favoring disclosure while its

exemptions are to be construed narrowly. Calloway v. Chicago Police Department, 2022 IL App

(1st) 210090, ¶ 16.

¶ 17 In this case, plaintiff argues that the trial court erred when it entered an order allowing

defendant to redact information from the subpoenas it was ordered to produce. Defendant argues

that the trial court’s decision to allow the redactions was proper under FOIA. Section 7 of FOIA,

titled “Exemptions,” lists more than forty categories and types of exempt information with more

specific descriptions of specific documents in subsections to some categories. See 5 ILCS

140/7(1)(a) through 7(1)(mm) (West 2020). The trial court’s order specifically cites section

7(1)(a) of FOIA, which exempts from disclosure information that is “prohibited from disclosure

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by federal or State law and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a)

(West 2020). Both federal and state law protect the secrecy of grand jury proceedings. See 725

ILCS 5/112-6(b) (West 2020); Fed. R. Crim. P. 6(e) (West 2020). The purpose of the rules

protecting grand jury secrecy are to protect the integrity of the proceedings by, among other

things, “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.” In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 32.

¶ 18 Defendant concedes that section 112-6 and Rule 6 “do not expressly impose restrictions

regarding disclosure on the recipient of a grand jury subpoena, such as [defendant] here.”

Nonetheless, defendant contends the trial court was correct that “even if [defendant] was not

prohibited by statute from disclosing the subpoenas, it should still redact information that would

reveal secret aspects of the grand jury proceedings” as a “necessary and fundamental part of

criminal procedural law.” Defendant notes the trial court “offered to conduct an in camera

review, thereby ensuring [defendant’s] compliance with its order limiting the redaction to

information that truly should remain secret.” No such in camera review has occurred in this

case.

¶ 19 Under section 7(1)(a), the legislature has declared that “[i]nformation specifically

prohibited from disclosure by federal or State law” is exempt from the requirements of FOIA. 5

ILCS 140/7(1)(a) (West 2020) (emphasis added). Thus, to invoke section 7(1)(a) defendant must

demonstrate that it is “specifically prohibited” from disclosing the information it seeks to

withhold from the public. This court has previously addressed the question of whether the

recipient of a grand jury subpoena is “specifically prohibited” from disclosing the subpoena.

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¶ 20 In Better Government Association v. Blagojevich, 386 Ill. App. 3d 808, 814-16 (2008),

this court held that a public body, just like a private citizen, is not specifically prohibited from

disclosing the existence or the content of a grand jury subpoena. Except in limited circumstances

not relevant here, the recipient of a grand jury subpoena has the right to choose whether or not to

disclose the subpoena. Subpoena recipients are not required to keep the information in the

subpoena confidential lest they run afoul of grand jury secrecy rules. See id. at 814 (“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 court’s contempt powers or be subject to any federal charges.”). A public

body does not have the same right to the privacy of its information that an individual citizen

maintains. A government entity does not have the right to choose to keep the receipt and the

entirety of the contents of a grand jury subpoena private because the subpoena is a public record

under FOIA. See id. at 816-18.

¶ 21 The trial court ruled that although the subpoenas were not in themselves exempt under

section 7 of FOIA some information therein might be exempt. The court specifically ruled that

defendant may “redact any information prohibited from disclosure by Section 112-6 and Rule 6,

which tends to reveal some secret aspect of the grand jury’s investigation, identities of witnesses

or jurors, substance of testimony, strategy or direction of the investigation, and the like.” Thus,

the trial court found, for certain information in the subpoenas, plaintiff is not entitled to the

information because it failed to state a particularized need that would justify compromising the

secrecy of grand jury proceedings.

¶ 22 Certain federal courts have limited disclosures by grand jury subpoena recipients and

restricted disclosure of portions of a subpoena based on possibly violating the secrecy of the

grand jury. See, e.g., In re Caremark International, Inc. Securities Litigation, No. 94 C 4751,

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1995 WL 557496, at *3 (N.D. Ill. Sept. 14, 1995). However, defendant’s reliance on our

supreme court’s decision in In re Appointment of Special Prosecutor, 2019 IL 122949 is

misplaced. In that case, our supreme court discussed the general need to keep grand jury material

secret. The court referred to the well-accepted rule that disclosure of grand jury materials is

appropriate only in cases where the need for disclosure outweighs the public interest in secrecy

Id. at ¶ 46 (citing Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 223

(1979)). Our supreme court found that the party seeking grand jury material in that case was not

entitled to it because the requesting party failed to demonstrate a particularized need for

disclosure that outweighed the policies supporting the secrecy of grand jury proceedings. Id. at

¶¶ 46-49.

¶ 23 Appointment of Special Prosecutor can be distinguished from the issue presented here. In

Appointment of Special Prosecutor, the plaintiff submitted FOIA requests to the Office of the

Special Prosecutor and to the City of Chicago seeking various documents concerning the conduct

of the grand jury investigation. Id. ¶ 11. The plaintiff sought disclosure of grand jury materials

from the special prosecutor, who was standing in the shoes of the State’s Attorney’s Office and

from the City of Chicago. In regard to the FOIA request made to the special prosecutor’s office,

the grand jury secrecy statute makes a specific prohibition against the State’s Attorney from

disclosing matters before a grand jury. See 725 ILCS 5/112-6(b), 112-6(c) (West 2020)

(“Matters other than the deliberations and vote of any grand juror shall not be disclosed by the

State’s Attorney” except in limited circumstances.) The Office of the Special Prosecutor in that

case was standing in the shoes of the State’s Attorney such that it was prohibited by law from

disclosing the grand jury materials the plaintiff requested under FOIA. Id. And, as to the FOIA

request made to the City, the grand jury materials sought by the plaintiff were under a specific

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protective order issued by the court overseeing the grand jury. Appointment of Special

Prosecutor, 2019 IL 122949, ¶ 68. The supreme court held that the City was entitled to withhold

the documents pursuant to the protective order, not pursuant to the grand jury secrecy rules

defendant invokes here. Id. Appointment of Special Prosecutor provides no basis for defendant to

withhold the subpoenas sought here in the face of a proper FOIA request.

¶ 24 We recognize that in this case the trial court tried to strike a balance between the secrecy

of the grand jury and the need for transparency in government. However, this court rejected that

approach in Better Government. Better Government, 386 Ill. App. 3d at 814-15. The court held

there, as we do here, that we cannot judicially expand section 7(1)(a) of FOIA based on our idea

of what might be sound policy in protecting grand jury secrecy. Courts “are not at liberty to

depart from the plain language and meaning of a statute by reading into it exceptions, limitations

or conditions that the legislature did not express.” Illinois State Treasurer, 2015 IL 117418, ¶ 21.

“No rule of construction authorizes [a] court to declare that the legislature did not mean what the

plain language of the statute imports; nor may we rewrite a statute to add provisions or

limitations the legislature did not include.” (Internal quotation marks omitted.) People v. Clark,

2019 IL 122891, ¶ 47 (quoting People v. Smith, 2016 IL 119659, ¶ 28).

¶ 25 Because there is no specific prohibition on a grand jury subpoena recipient disclosing the

subpoena, and because we cannot expand FOIA’s exemptions by judicial proclamation, we reject

the notion that defendant is entitled to redact the documents prior to production pursuant to

section 7(1)(a). We cannot expand section 112-6, nor Federal Rule of Procedure 6, to encompass

recipients of grand jury subpoenas. There is no federal or state law that “specifically prohibits”

defendant from disclosing the full content of its subpoenas. See 725 ILCS 5/112-6(b) (West

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2020); Fed. R. Crim. P. 6(e) (West 2020). Therefore, we find that defendant cannot rely on

section 7(1)(a) of FOIA to withhold or to redact the relevant documents.

¶ 26 Defendant did not offer any other reason to the trial court to suggest that certain portions

of the subpoenas were in need of special protection or that certain specific information included

in the subpoenas is exempt from disclosure. Defendant has the burden to demonstrate by clear

and convincing evidence that the information it seeks to redact is exempt. 5 ILCS

140/11(f) (West 2020 (“The burden shall be on the public body to establish that its refusal to

permit public inspection or copying is in accordance with the provisions of this Act. Any public

body that asserts that a record is exempt from disclosure has the burden of proving that it is

exempt by clear and convincing evidence.”).

¶ 27 As previously stated, for purposes of section 7(1)(a), defendant fails to demonstrate that

any law specifically prohibits a grand jury subpoena recipient from disclosing any portion of the

subpoena. On appeal, defendant also argues that common law principles prohibit it from

disclosing the subpoenas to protect the secrecy of grand jury information (citing, e.g., People v.

Van Dyke, 2020 IL App (1st) 191384, ¶ 83 (“documents pertaining to matters before the grand

jury are not the type of material that is given to the media because those proceedings are

protected by statute and common law”). Defendant further argues that we must consider the dire

consequences of allowing a party to access grand jury material by simply submitting a FOIA

request.

“A public body must comply with a valid request for information unless

one of the narrow statutory exemptions set forth in section 7 of the FOIA applies.

[Citation.] Where, as here, the requesting party challenges the public body’s

denial of a FOIA request, the public body must demonstrate that the records

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requested fall within the claimed exception. [Citation.] To meet this burden and to

assist the court in making its determination, the agency must provide a detailed

justification for its claimed exemption, addressing the requested documents

specifically and in a manner allowing for adequate adversary testing. [Citations.]”

(Emphasis in original and internal quotation marks omitted.) Watkins v.

McCarthy, 2012 IL App (1st) 100632, ¶ 13.

¶ 28 Defendant did not raise any common law rule or other exemptions in its motion to

dismiss or in response to plaintiff’s motion for summary judgment. Regardless, this court may

affirm the trial court’s judgment on any basis supported by the record. Shrock v. Ungaretti &

Harris Ltd., 2019 IL App (1st) 181698, ¶ 44 (“We may affirm the dismissal of a complaint on

any basis supported by the record, regardless of whether it was the basis for the trial court’s

dismissal.”); 933 Van Buren Condominium Ass’n v. West Van Buren, LLC, 2016 IL App (1st)

143490, ¶ 26 (“We may affirm a trial court's grant of summary judgment on any basis apparent

in the record, regardless of whether the trial court relied on that basis or whether the court’s

reasoning was correct.”).

¶ 29 Section 11 of FOIA provides: “In any action considered by the court, the court shall

consider the matter de novo, and shall conduct such in camera examination of the requested

records as it finds appropriate to determine if such records or any part thereof may be withheld

under any provision of this Act.” 5 ILCS 140/11 (West 2020). The trial court’s order

contemplated exactly that in camera examination. Furthermore, although not necessary to our

disposition, we note that, despite the trial court’s specific reliance on section 7(1)(a) to find that

the subpoenas are not categorically exempt from disclosure, the trial court’s written judgment is

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broad enough to embrace other exemptions. The trial court ordered defendant to produce the

subpoenas “with any necessary redactions allowed by law.”

¶ 30 Except under limited circumstances not present here, this court requires an in camera

examination pursuant to section 11 when a public body seeks to exempt information from

disclosure under FOIA. See Fisher v. Office of Illinois Attorney General by Raoul, 2021 IL App

(1st) 200225, ¶ 23 (“Pursuant to section 11(f) of the Act, the circuit court ‘shall conduct such in

camera examination of the requested records as it finds appropriate to determine if such records

or any part thereof may be withheld under any provision of this Act.’ [Citations.]” (Emphasis

added.)). We note, without expressing any judgment on their applicability, that section 7(1)(b) of

FOIA exempts “Private information, unless disclosure is required by another provision of this

Act, a State or federal law, or a court order;” and section 7(1)(c) exempts “Personal information

contained within public records, the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy, unless the disclosure is consented to in writing by the individual

subjects of the information;” either of which may be found in a grand jury subpoena. See 5 ILCS

140/7(1)(b), 7(1)(c) (West 2020).

¶ 31 No in camera inspection has occurred and as a result defendant has not been given an

opportunity to satisfy its burden to demonstrate that the redacted portions of the records

requested fall within an exemption as contemplated by section 11 and the trial court’s order. The

trial court and defendant believed information in the subpoenas may be exempt from disclosure.

In the interest of justice to all involved, we must afford defendant the opportunity to make that

showing. Accordingly, the trial court’s judgment is affirmed; the case is remanded for further

proceedings: an in camera inspection of the documents for the trial court to determine whether

any exemption under FOIA applies to the redacted information.

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¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed

and the cause is remanded to the trial court for further proceedings not inconsistent with this

order.

¶ 34 Affirmed and remanded, with instructions.