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Monday, February 4, 2019

Grand Jury Records Not Releasable Under FOIA

We have a lot of FOIA cases to report on this week, starting with this one decided by the Illinois Supreme Court:

The Illinois Supreme Court recently found that grand jury documents were exempt from disclosure under FOIA and once again stated that protective orders take precedence over disclosure under FOIA.

In In Re Appointment of Special Prosecutor, the Better Government Association (BGA) sent a FOIA request to the City of Chicago and the Office of Special Prosecutor, asking for grand jury documents regarding a 2004 death and allegations of whether employees of the City suppressed and concealed evidence. The FOIA request asked for: 1) documents to show the names of everyone interviewed by the special prosecutor, 2) statements and communications between Mayor Daley’s family members, their attorney, and the City’s corporate counsel at the time, and 3) invoices and billing records.  The City and the OSP denied the FOIA request under Section 7(1)(a) of FOIA, stating that disclosure was prohibited by state law. Specifically, they argued that disclosure was prohibited by Section 112-6 of the Code of Criminal Procedure which prohibits release of grand jury matters. The City further argued they could not release the grand jury records as they were placed under seal by a protective order.

The Illinois Supreme Court reviewed the denial and noted that the rule of secrecy around grand jury proceedings is a fundamental part of criminal procedural law.  The Court reviewed the policy reasons for maintaining grand jury secrecy, including preventing the flight of persons under investigation, protecting grand jurors from undue influence or intimidation, preventing subornation of perjury, encouraging witnesses to testify, and protecting the innocent from exposure. 

In short, the Illinois Supreme Court concluded that the requested information was prohibited from disclosure under the Code of Criminal Procedure and FOIA because release of the documents would disclose matters occurring before the grand jury. In ruling in favor of the City, the Court rejected the BGA’s argument that protective orders from the criminal court were not a basis to withhold documents under FOIA. The BGA had argued that withholding the documents was improper as it did not fall within the narrow list of exemptions in FOIA. But, the Court disagreed, ruling that a court order must be obeyed and that protective orders take precedence over the disclosure requirements of FOIA.

Post Authored by Erin Pell, Ancel Glink


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