Court Finds Grand Jury Subpoenas Not Categorically Exempt from FOIA Disclosure

Court Finds Grand Jury Subpoenas Not Categorically Exempt from FOIA Disclosure

  Tuesday, April 11, 2023    Julie Tappendorf

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In 2019, Chicago Public Media filed a FOIA request with the Illinois State Toll Highway Authority requesting “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.” The Tollway Authority turned over 86 of the 126 responsive documents, but withheld 43 on the basis that the issuing agencies objected to the disclosure. The Tollway Authority cited the FOIA exemption in section 7(1)(a) and argued that federal and state codes of criminal procedure prohibit disclosure of material that reveal secret aspects of grand jury investigations and proceedings. 

In Chicago Public Media v. Illinois State Toll Highway Authority, the Appellate Court rejected the argument that federal and state criminal codes expressly prohibit the Tollway Authority from disclosing the full contents of grand jury subpoenas. The Appellate Court held that if the requested subpoena does not reveal some secret aspect of the grand jury’s investigation (such as the identity of the witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like) then it is not exempt from disclosure under the criminal codes of procedure, stating as follows: 

In sum, the Appellate Court held that grand jury subpoenas are not categorically exempt from FOIA under state or federal criminal codes of procedure, stating as follows:

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 1-21-0629 11 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.

Note that the Court did send the case back to the trial court to conduct an "in camera" review of the records to determine if other FOIA exemptions might apply to protect certain information in the subpoenas and to allow the Tollway Authority to assert any applicable exemptions to protect portions of the records. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.