City of Chi. v. Office of the Special Prosecutor (In re Appointment of Special Prosecutor)

2017 IL App (1st) 161376

91 N.E.3d 424

IN RE APPOINTMENT OF SPECIAL PROSECUTOR

(The City of Chicago, Plaintiff–Appellant, v. The Office of the Special Prosecutor and Dan K. Webb, Defendants–Appellees).

Better Government Association, Plaintiff–Appellant and Appellee,

v.The City of Chicago Law Department, The City of Chicago Mayor's Office, The Chicago Police Department, and The Office of the Special Prosecutor, Defendants–Appellants and Appellees.

Nos. 1–16–1376

1–16–1892

1–16–2071 cons.

Appellate Court of Illinois, First District, SIXTH DIVISION.

October 20, 2017

Loevy & Loevy, of Chicago (Matthew Topic and Joshua H. Burday, of counsel), for appellant Better Government Association.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myrian Zreczny Kasper, and Irina Y. Dmitrieva, Assistant Corporation Counsel, of counsel), for other appellants.

Winston & Strawn, LLP, of Chicago (Daniel D. Rubinstein, Sean G. Wieber, and Patrick R. O'Meara, of counsel), for appellee.

JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 The consolidated cases in this appeal present questions regarding the competing interests of public disclosure and confidentiality in records generated because of a grand jury investigation. Historically, the cases had their genesis in 2004, when Richard J. Vanecko assaulted David Koschman in the Rush Street neighborhood of Chicago. Although the chronology of the two cases overlaps, we will set out the facts of each case separately.

¶ 2 BACKGROUND

¶ 3 In re Appointment of a Special Prosecutor (No. 1–16–1376)

¶ 4 Although Koschman died from his injuries, the incident did not result in the filing of charges against Vanecko or anyone else. Dissatisfied with this outcome, members of the Koschman family filed a petition for appointment of a special prosecutor in the Criminal Division of the Circuit Court of Cook County (Case No. 2011 Misc. 46). The petition alleged that a special prosecutor should be appointed because Vanecko was related to Chicago Mayor Richard M. Daley of Chicago and that "officials in the Police Department and the State's Attorney's Office may have been led by favoritism or other improper motives to obstruct the investigation so that [Vanecko] did not face criminal charges." The petition was assigned to Judge Michael P. Toomin.¹

¶ 5 On April 6, 2012, Judge Toomin granted the petition and appointed Dan K. Webb as a special state's attorney, directing him to determine (1) whether criminal charges should be brought against anyone in connection with Koschman's death and (2) whether Chicago police or Cook County State's Attorney employees "acted intentionally to suppress and conceal evidence, furnish false evidence, and generally impede" the Koschman investigation. Webb empaneled a special grand jury that investigated the incident, obtained information from over 140 witnesses, and reviewed over 22,000 documents totalling more than 300,000 pages.

¶ 6 On June 14, 2012, while the grand jury was still empaneled, the Office of Special Prosecutor (OSP) filed a motion requesting that Judge Toomin issue a protective order. The OSP explains that it requested the protective order "to prevent entities like the City from complying with [Freedom of Information Act] requests for the secret grand jury materials that would inevitably end up in its hands." Noting that the interests of justice required secrecy in the grand jury proceeding, Judge Toomin granted OSP's motion and entered an order placing under seal "all Grand Jury materials, including but not limited to subpoenas, target letters, and other correspondence related to the service of a Grand Jury subpoena, sent by the [OSP] to any individual or entity in connection with this investigation." In addition, the order prohibited anyone who received "Grand Jury materials" from the OSP "from further disseminating that material or information contained therein." The order defined "Grand Jury materials" to include "subpoenas, target letters, and other correspondence related to the service of a Grand Jury subpoena." The protective order itself was sealed from public disclosure.

¶ 7 The special grand jury indicted Vanecko for involuntary manslaughter. After Webb informed the court that he would not prosecute any other individuals in connection with the Koschman death or the subsequent investigation, the special grand jury was discharged. On January 31, 2014, Vanecko entered into a guilty plea and was sentenced.

¶ 8 On February 3, 2014, Judge Toomin granted Webb permission to unseal and release a 162–page report detailing the special grand jury's investigation. This report was made available to the public and is included in the record before us.

¶ 9 At this stage, even though the special grand jury had been discharged, various parties began appearing before Judge Toomin to request that he unseal documents generated in the course of the special grand jury investigation. First, on March 21, 2014, the City of Chicago (City) filed a motion requesting that Judge Toomin unseal the June 12, 2012, protective order, because its scope was relevant to resolving a request that the Chicago Sun–Times had made to the City pursuant to the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq . (West 2012)). On March 27, 2014, Judge Toomin granted the motion and unsealed the protective order.

¶ 10 Thereafter, a dispute arose between the City and the Illinois Attorney General's Public Access Bureau regarding how the City should respond to the Sun–Times' FOIA request. In particular, the City and Attorney General were uncertain what records were covered by Judge Toomin's protective order. To resolve this uncertainty, the City appeared before Judge Toomin and filed a motion to clarify the June 12, 2012, protective order.

¶ 11 On June 25, 2014, Judge Toomin entered a second protective order prohibiting the City from complying with any FOIA request that identified or characterized documents as having been "disseminated to the [OSP] in furtherance of" the Koschman investigation. In addition, the second protective order stated that the June 12, 2012, protective order (1) remained in effect and (2) "limit[ed] only the identification of any documents or other records as being grand jury materials." The order further stated that if "some or all the documents related to the death of David Koschman and subsequent investigations were sought by FOIA request or subpoena in a matter not connected with the work of the Special Prosecutor, such documents could be produced by the City or the [police department], subject to any other applicable restrictions or prohibitions."

¶ 12 On February 25, 2016, the City again appeared before Judge Toomin and filed a motion to modify the June 12, 2012, and June 25, 2014, protective orders. The motion explained that in a separate case regarding a FOIA request by the Better Government Association (BGA), Judge Mikva had made a preliminary ruling that the City was required to release certain documents whose disclosure was prohibited by Judge Toomin's protective order. See infra ¶¶ 14–27.

¶ 13 On April 13, 2016, Judge Toomin denied the City's motion to modify. In a detailed memorandum opinion, Judge Toomin explained that the City documents sought by the BGA were grand jury materials under the scope of his protective order and there was a continuing interest in keeping them secret. In particular, Judge Toomin noted the importance of safeguarding the deliberations of grand jurors and witnesses who provided information to the investigation. He further explained that, even though the need for secrecy in a specific grand jury may diminish after proceeding has resulted in an indictment and conviction, there nonetheless existed a general interest in preserving the legitimacy and functionality of the grand jury as an institution that justified, and necessitated, keeping the protective order in effect.

¶ 14 On May 12, 2016, the City filed a timely notice of appeal from the April 13, 2016, order (appeal No. 1–16–1376).

¶ 15 Better Government Ass'n v. City of Chicago (Nos. 1–16–1892 and 1–16–2071)

¶ 16 On January 23, 2015, Bob Herguth of the BGA sent a FOIA request to the City seeking (1) "any and all subpoenas issued to the Chicago Police Department, the Law Department and the Mayor's Office in regards to the Vanecko/Koschman investigation/special prosecution" and (2) "all emails and other communications between special prosecutor Dan Webb's office and [the police department], the Law Department and the Mayor's Office in regards to the same investigation/special prosecution."

¶ 17 The City denied the requests based on Judge Toomin's June 14, 2012, and June 25, 2014, protective orders. The City cited section 7(1)(a) of FOIA, which exempts documents from disclosure if disclosure is prohibited by "State law." 5 ILCS 140/7(1)(a) (West 2014).

¶ 18 From the OSP, the BGA sought (1) documents sufficient to show the name of everyone interviewed by the OSP; (2) statements by and communications with Daley family members, their attorney, and Mara Georges, the City's Corporation Counsel; and (3) itemized invoices and billing records. The OSP denied the BGA's request pursuant to FOIA's "State law" exception, but instead of relying on Judge Toomin's order, it cited section 112–6 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/112–6 (West 2014) ).²

¶ 19 On March 12, 2015, the BGA filed a complaint for injunctive and declaratory relief against the City, various City departments, the OSP, and Webb (case No. 15 CH 4183). Count I related to the OSP's denial of the BGA's FOIA request. Counts II, III, and IV related to the City's denial of the BGA's FOIA request.

¶ 20 The BGA's case was assigned to Judge Mikva. Judge Mikva declined to transfer the case to Judge Toomin, so the two cases proceeded separately before their respective judges.

¶ 21 The City moved to dismiss BGA's complaint pursuant to section 2–619(a)(9) of the Code of Civil Procedure ( 735 ILCS 5/2–619(...