Illinois's FOIA—should state's attorneys be exempt?



Kwame Raoul
  • AP Photo/Seth Perlman
  • Kwame Raoul
When someone writes a law forbidding the already forbidden, we have to suppose that whatever it is, they really don't like it at all. It's like wearing a belt and suspenders. Damned if you're going to let your pants fall down.

Last month Illinois state senator Kwame Raoul, a Hyde Park Democrat, introduced a bill to modify the state's Freedom of Information Act. On the surface, it looks like a very modest modification. The present law requires any "public body" in Illinois to turn over public records on request—subject to reasonable restrictions involving personal privacy and the like. The law defines "public body" as "any legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages . . ." And so forth.

We all learn in junior high what the three branches of government are. The legislative, the executive, and the one that's missing from the above.

The judicial.

You can't FOIA a judge.

Raoul's Senate Bill 2222 doesn't change that. It underlines it. To a line in the FOIA stating that "'public body' does not include a child death review team," he is adding language that says it also does not include "any entity created pursuant to Article VI of the Illinois Constitution."

Article VI is titled "The Judiciary."

But as the judiciary is already off-limits, what's the point of the redundancy?

Raoul, who was honored by the Illinois Press Association four years ago for sponsoring a more expansive version of Illinois's Freedom of Information Act, hasn't gotten back to me yet, so I can't say what he's thinking. But it's important to know that although his name's on the new bill, he didn't write it. It originated with the State's Attorneys Appellate Prosecutor. And Matt Jones, associate director of that office, points out that Article VI covers a lot more than courts and judges.

For instance, the article defines the makeup and duties of the state's Judicial Inquiry Board, which investigates complaints against judges. I originally heard about Raoul's bill from Jim Baltzer, a gadfly who has a long-standing complaint filed with the Judicial Inquiry Board against state supreme court chief justice Bob Thomas. Baltzer's beef stems from Thomas's 2004 defamation suit against the Kane County Chronicle, which originally garnered Thomas $7 million in damages (that award wound up considerably reduced). Baltzer told the JIB that Thomas had gamed a system "he dominated, from top to bottom, to extract the largest defamation award in Illinois history" and hadn't reimbursed the state for its outlay of "funds and resources."

Baltzer didn't get satisfaction. So last August he followed up with a FOIA request to the Judicial Inquiry Board asking for information that would show him how the board had acted on his complaint. (He surmises the board ignored it.) The JIB wrote back and told him that it wouldn't cooperate because it isn't governed by the FOIA.

There's room to debate whether the JIB—whose function is more investigative than judicial—belongs outside the jurisdiction of the FOIA. Baltzer finds it hard to believe that the person who filed a complaint with the board isn't even entitled to find out what happened to it. He's not taking no for an answer, and he takes Raoul's bill personally. It looks to him like an attempt to put the Judicial Inquiry Board explicitly and forever beyond his reach.

But Jones tells me the bill was written because state's attorneys around Illinois believe their offices should fall under the Article VI exemption. They are "inundated" by FOIAs, says Jones, many from defendants trying to game the discovery process by prying information from the state before prosecutors are required to turn it over. Some FOIAs simply cannot be honored, he said, such as press requests for autopsy photos. Jones directs me to its Article VI's Section 19, which, sure enough, dictates that a state's attorney "shall be elected in each county . . . every fourth year . . . for a four year term."

That's enough to exempt state's attorneys, they believe. Jones concedes that Attorney General Lisa Madigan doesn't read the law the same way.

Neither does the Illinois Press Association.

"They're created under Article VI," allows Josh Sharp, the IPA's director of government relations. "I would take the next step, and say that if the state's attorney is part of the judiciary, then how could anyone get a fair trial? The IPA is adamantly opposed to this legislation as written. The way it was introduced, we're 100 percent opposed. Plenty of public reporting on state's attorneys' cases that were not properly prosecuted has led to some pretty serious reforms. Having those records sealed forever doesn't do anyone any good.

"This is absolutely one of those bills we would fight very hard on. This would involve direct lobbying by our members. We'd work this bill very hard to make sure it doesn't pass in its current form."

What form would be acceptable? I wondered. Sharp wasn't sure, but he supposed state's attorney might have documents that everyone could agree should stay private.

Like autopsy photos?

"Those are already off-limits," he said.

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