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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

April 2009, vol. 10, no. 3

‘Sunshine on my shoulders makes me happy’—Sunshine on my subpoenas does not: a case summary of Better Government Association v. Blagojevich

The Illinois Appellate Court recently ruled that, pursuant to the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2006)), then-Governor Rod R. Blagojevich was required to turn over documents requested by the Better Government Association and Dan Sprehe (BGA) related to federal grand jury subpoenas previously served on the Governor. The ruling affirmed the trial court’s order which gave plaintiffs their requested relief by compelling the Governor to disclose the subpoenas. Better Government Association v. Blagojevich, 386 Ill App. 3d 808, 899 N.E.2d 382 (4th Dist. 2008) (released for publication December 19, 2008; mandate issued January 16, 2009). In a respectful nod to the Sangamon County circuit court judge who tried the matter, the opinion, in closing, “commends the trial court’s thoughtful analysis and careful explanation of its findings, which we found most helpful.” 386 Ill. App. 3d at ____, 899 N.E.2d at 393 (2008). This “thoughtful” analysis was likely motivated by the case’s procedural history in the lower court, where the final order in favor of the plaintiffs followed a hearing on the Governor’s summary judgment motion that was denied by the judge, and the BGA’s motion for judgment on the pleadings that the trial judge granted.

In reaching its conclusion, the appellate court considered and dismissed without equivocation the Governor’s claims that: (1) federal grand jury subpoenas are exempt from disclosure under various sections of FOIA; and (2) the FOIA is preempted by federal law. The court also made short shrift of the Governor’s equally unsuccessful attempt to convince the trial court to reverse its order based upon newly discovered evidence.

The matter arose initially after the BGA made an unsuccessful attempt to obtain the subpoenas and associated correspondence through a FOIA request. In his denial of that request, the Governor asserted that the subpoenas, if they existed, were exempt from disclosure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West 2006)), and that sections 7(1)(f) and (n) of the FOIA (5 ILCS 140/7(1)(f), (1)(n) (West 2006)) also shielded related correspondence from disclosure.

Prior to filing its court action as authorized under the FOIA, the BGA wrote to Gary Shapiro, the First Assistant U.S. Attorney for the Northern District of Illinois, asking whether the U.S. Attorney’s Office would intervene, if the BGA filed suit against the Governor seeking disclosure of the federal grand jury subpoenas. Shapiro responded that since the lawsuit was at that time “hypothetical,” a decision regarding intervention “cannot be made until a lawsuit is filed and we are in a position to analyze its specifics and the relevant law.” 386 Ill. App. 3d at ____, 899 N.E.2d at 384-5 (2008). This communication and other contacts with the U.S. Attorney’s Office ultimately became significant considerations for both the trial court and the appellate court.

Although it addresses the claimed FOIA exemptions, the appellate court’s opinion focuses significantly on the lack of merit to the Governor’s claim of federal preemption. Specifically, the Governor’s summary judgment motion argued that Federal Rule of Criminal Procedure 6(e)(2) (Fed. R. Crim. P. 6(e)(2)) prohibits the disclosure of matters before a federal grand jury, even though, as the Governor conceded, the language in that Rule does not apply to members of the public who are served with grand jury subpoenas. Nevertheless, the Governor argued that federal courts have extended the limited protection afforded by the Rule in order to preserve the “secrecy of the federal grand jury process” and the “integrity of the government’s investigation” of such records. 386 Ill. App. 3d at ____, 899 N.E.2d at 385 (2008). Without a ‘particularized need’ for the contents of a federal subpoena (386 Ill. App. 3d at ____, 899 N.E.2d at 385 (2008)), disclosure would be prohibited by the Rule, and thus by section 7(1)(a) of the FOIA. In his case, the Governor argued, the BGA failed to show a particularized need.

The court tackled this issue by noting certain observations made by the trial court during the January 2008 hearings on the parties’ respective motions. First, the Governor acknowledged that nothing prevents the subpoena recipient from voluntarily disclosing subpoenaed documents. Additionally, the need for continued secrecy can be trumped by evidence of a particularized need for disclosure, but in the instant case, no competent evidence was provided for continued secrecy, and so the trial court concluded that the need for the public to know outweighed the need for secrecy. The subpoena’s wording that “disclosure could impede an investigation” was deemed nothing more than ‘boilerplate’ by the trial court (386 Ill. App. 3d at ____, 899 N.E.2d at 385 (2008)), which also pointed out that the U.S. Attorney’s Office had taken no action whatsoever despite its knowledge of the proceedings since the fall of 2006 and an opportunity to intervene in the litigation.

The appellate court was also not persuaded by the federal district court decisions relied on by the Governor as evidence that Rule 6(e)(2) has been expanded beyond its stated prohibitions. Although the cases cited reflect the deference some federal district courts have expressed for the secrecy of grand jury proceedings, the BGA court underscored the fact that, in the more than 200 years that the federal government has been issuing subpoenas, “Congress has not seen fit to specifically restrict the behavior of subpoena recipients.” 386 Ill. App. 3d at ____, 899 N.E.2d at 388 (2008). Thus, those decisions expanding the Rule have “taken it upon themselves” to correct this perceived oversight by judicially amending the Rule, an action the BGA court declined to follow. 386 Ill. App. 3d at ____, 899 N.E.2d at 389 (2008).

In its consideration of the cited decisions, the Court also took into account the intent of section 1 of the FOIA, that “all persons are entitled to full and complete information regarding the affairs of government.” 5 ILCS 140/1 (West 2006). This public policy of expansive disclosure by necessity and the application of strict statutory construction do not support exemptions to disclosure that are not specifically stated in the statute. Since Rule 6(e)(2) does not specifically prohibit recipients from disclosing federal grand jury materials, the court declined to judicially amend the Rule.

The court also rejected the Governor’s assertion that the records requested by the BGA were exempt under several sections of the FOIA. Unlike Rule 6(e)(2) which gives a private citizen the discretion as to whether to reveal federal grand jury subpoena information, FOIA provides no such discretion to a public official who is indeed subject to the FOIA requirements. It is not surprising that government entities generally “prefer” not to make their activities know to the public. 386 Ill. App. 3d at ____, 899 N.E.2d at 391 (2008). If it were otherwise, the court commented, there would be no need for a law like the FOIA which has become necessary to facilitate “transparency” in government. Illinois courts must therefore enforce the legislative policy that “the sunshine of public scrutiny is the best antidote to public corruption[.]” 386 Ill. App. 3d at ____, 899 N.E.2d at 391 (2008). With this global view of public policy in mind, the court summarily dismissed the Governor’s claims of exemption under each of the several specified sections.

Last, the court affirmed the trial court’s denial of the Governor’s motion to reconsider its ruling based upon newly discovered evidence. Interestingly, such “evidence” came in the form of a letter dated February 5, 2008, from the U.S. Attorney’s Office that was sent three weeks after the trial court issued its order denying the Governor’s motion for summary judgment. Moreover, the letter was in response to an inquiry from the Governor, and was “conclusory and filled with bureaucratic vagueness.” 386 Ill. App. 3d at ____, 899 N.E.2d at 392 (2008). Under these circumstances, the court concluded that the Governor’s post-ruling motion was merely a “frantic attempt to show that the court had erred” (386 Ill. App. 3d at ____, 899 N.E.2d at 392 (2008)), rather than for the purpose of presenting newly discovered evidence that was not available at the time of the hearing. Accordingly, the court held that the February 5, 2008, letter was insufficient to call into question the trial court’s ruling, and that the trial court had properly exercised its discretion in denying the Governor’s motion to reconsider.

 


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