Better Government Association v. Blagojevich ( 2008 )

Filed 11/19/08 NO. 4-08-0173
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
BETTER GOVERNMENT ASSOCIATION and DAN ) Appeal from
SPREHE, ) Circuit Court of
Plaintiffs-Appellees, ) Sangamon County
v. ) No. 07MR5
ROD R. BLAGOJEVICH, in His Official )
Capacity as Governor of the State of ) Honorable
Illinois, ) Patrick W. Kelley,
Defendant-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
This case presents the question of whether the recipi-
ent of a federal grand jury subpoena, acting as a public official
for the State of Illinois, has the discretion to refuse a request
to disclose that subpoena, pursuant to the Illinois Freedom of
Information Act (FOIA) (5 ILCS 140/1 through 11 (West 2006)). We
conclude that in this case, the public official does not have
such discretion.
In August 2006, defendant, Rod R. Blagojevich, in his
official capacity as Governor of the State of Illinois, denied
the request of plaintiffs, the Better Government Association and
Dan Sprehe (collectively, BGA), to disclose federal grand jury
subpoenas and related correspondence, pursuant to the FOIA. In
September 2006, the Governor reaffirmed his earlier denial.
In August 2007, the BGA filed an amended complaint,
requesting, in part, that the trial court issue an order compel-
ling the Governor to disclose the subpoenas.
In October 2007, the Governor filed a motion for
summary judgment. In November 2007, the BGA filed a motion for
judgment on the pleadings. Following a January 2008 hearing on
the parties' respective motions, the trial court (1) denied the
Governor's summary-judgment motion and (2) granted the BGA's
motion for judgment on the pleadings.
The Governor appeals, arguing that (1) disclosure of
federal grand jury subpoenas, pursuant to the FOIA, is preempted
by federal law; (2) the subpoenas the BGA seeks are exempt from
disclosure under various sections of the FOIA; and (3) the trial
court's order should be reversed because of newly discovered
evidence. We disagree and affirm.
I. BACKGROUND
In July 2006, the BGA requested that the Governor
provide copies of documents, pursuant to the FOIA (5 ILCS 140/1
through 11 (West 2006)). Specifically, the BGA sought the
following:
"1. Copies of any and all subpoenas for
records or testimony, issued to the State of
Illinois by the United States Attorney's
Office, between January 1, 2006[,] and July
24, 2006.
2. Copies of any and all e-mails, memo-
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randa, and other correspondence between the
Office of the Governor and any executive
agency, with regard to said subpoenas and/or
the production of records for compliance
thereof."
In August 2006, the Governor denied the BGA's request,
claiming that if such subpoenas existed at all, they were exempt
from disclosure, pursuant to section 7(1)(a) of the FOIA (5 ILCS
140/7(1)(a) (West 2006)). The Governor also denied the BGA's
request for any correspondences related to the subpoenas as an
exemption, pursuant to sections 7(1)(f) and 7(1)(n) of the FOIA
(5 ILCS 140/7(1)(f), (1)(n) (West 2006)).
Later in August 2006, the BGA appealed the Governor's
denial, pursuant to section 10(a) of the FOIA, which provides, in
part, that "[a]ny person denied access to inspect or copy any
public record may appeal the denial by sending a written notice
of appeal to the head of the public body" (5 ILCS 140/10(a) (West
2006)). In September 2006, the Governor denied the BGA's appeal.
In November 2006, the BGA sent a letter to Gary
Shapiro, first assistant United States Attorney for the Northern
District of Illinois, inquiring whether the United States Attor-
ney's office would intervene if the BGA filed suit against the
Governor seeking disclosure of the federal grand jury subpoenas.
Later in November 2006, Shapiro responded, in pertinent part, as
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follows:
"We are reluctant to opine on a hypo-
thetical lawsuit, and can only tell you that
we will only take such action as we believe
is authorized by law and necessary to protect
the secrecy and integrity of the federal
grand jury process. Obviously, such a deci-
sion cannot be made until a lawsuit is filed
and we are in a position to analyze its spe-
cifics and the relevant law."
In January 2007, the BGA (1) filed a complaint request-
ing, in part, that the trial court issue an order compelling the
Governor to release the subpoenas and associated correspondence
and (2) provided Shapiro a copy of the filed complaint. In
August 2007, the BGA filed an amended complaint, requesting, in
part, that the court issue an order compelling the Governor to
release the subpoenas. (On appeal, the BGA does not present any
argument concerning the related correspondences.)
In October 2007, the Governor filed a motion for
summary judgment. In support of the motion, the Governor claimed
that in addition to section 7(1)(a), the subpoenas the BGA sought
were exempt from disclosure under various sections of the FOIA
pertaining to "[r]ecords compiled by any public body for adminis-
trative enforcement proceedings and any law enforcement or
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correctional agency for law enforcement purposes or for internal
matters of the public body." See 5 ILCS 140/7(1)(c), (1)(c)(i),
(1)(c)(vi), (1)(c)(viii) (West 2006). In November 2007, the BGA
filed a motion for judgment on the pleadings.
During the January 2008 hearing on the parties' mo-
tions, the Governor argued that the BGA's complaint called for
the disclosure of matters before the federal grand jury, which
was prohibited by Federal Rule of Criminal Procedure 6(e)(2)
(Fed. R. Crim. P. 6(e)(2)). Although the Governor conceded that
the specific language of Rule 6(e)(2) prohibiting disclosure did
not apply to recipients of federal grand jury subpoenas, he
contended that the federal courts had extended the rule’s excep-
tions to include the information contained within a subpoena to
preserve (1) the secrecy of the federal grand jury process and
(2) the integrity of the government's investigation. Essen-
tially, the Governor claimed that (1) because federal courts had
generally barred recipients of federal grand jury subpoenas from
disclosing the contents of the subpoenas absent a showing of a
"particularized need" by the party requesting disclosure and (2)
the BGA failed to show any such need, federal law prohibited
disclosure of the subpoenas, which, in turn, prohibited disclo-
sure under section 7(1)(a) of the FOIA (5 ILCS 140/7(1)(a) (West
2006)).
During that same January 2008 hearing, the following
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colloquy occurred:
"THE COURT: *** I do have one question
for you, [counsel]. Say a person receives a
[f]ederal [g]rand [j]ury subpoena from the
Northern District of Illinois. Could that
person be subject to either the contempt
powers of the [c]ourt or criminal prosecution
if that person voluntarily discloses that
subpoena to somebody else?
[GOVERNOR'S COUNSEL]: No, sir."
In announcing its decision, the trial court stated the following:
"In order to disclose, a particularized
need must outweigh the need for continued
[g]rand [j]ury secrecy.
***
Here[,] there is no competent evidence
of a need for continued secrecy. The only
evidence of need is what appears to be a
boilerplate letter saying disclosure could
impede an investigation. It was attached to
the subpoena at the time of service.
*** [S]ince that subpoena was served,
the United States Attorney's [o]ffice [for]
the Northern District of Illinois has been
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given every opportunity not only to inter-
vene, but simply to have informed this
[c]ourt, either by an affidavit to [the BGA]
or a letter giving this [c]ourt any type of
information or indication that continued
[g]rand [j]ury secrecy was important in this
case. ***
Instead, we have information in the
motion that shows the U.S. Attorney's [o]ffi-
ce was notified of a potential lawsuit as
early as the Fall of 2006. ***
[The United States Attorney has] taken
no action whatsoever. Because they have
stood mute, the only conclusion [this court]
can draw is that in their eyes[,] there is no
further need for secrecy.
***
Here, because there is no demonstrated
need for secrecy, I believe the need for the
public to know outweighs that, and the bal-
ance clearly favors disclosure. ***
* * *
I think it is telling that the Governor
or anybody else can disclose a [f]ederal
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[g]rand [j]ury subpoena they have received to
whomever they want. Clearly, if there were a
law against it, they would be in some kind of
trouble, either contempt or federal charges,
but that is not the case.
So I'm going to deny the [Governor's]
[m]otion for [s]ummary [j]udgment. I believe
the [Governor] is required under the [FOIA]
to disclose the subpoenas, and I will allow
[the BGA's] motion for judgment on the plead-
ings."
In a letter dated February 5, 2008, the United States
Attorney’s office for the Northern District of Illinois wrote the
following to the Governor:
"In response to your inquiry, the U.S.
Attorney's [o]ffice has served various grand
jury subpoenas on the Office of the Governor
of the State of Illinois, seeking records
pursuant to an official criminal investiga-
tion of a suspected felony being conducted by
a federal grand jury. With two exceptions,
noted below, the U.S. Attorney's [o]ffice
continues to request that you not disclose
the fact that the subpoenas have been served.
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Any such disclosure could impede the investi-
gation and thereby interfere with the en-
forcement of law. If you do not believe that
you can comply with this request, I request
that you contact me before making any disclo-
sure.
Having reviewed all of the subpoenas to
determine whether to renew our initial non-
disclosure request, there are two subpoenas
that can be disclosed, if necessary, without
impeding the investigation: (1) the May 3,
2006[,] subpoena directed to the Custodian of
Records, Central Management Services, Bureau
of Personnel; and (2) the June 23, 2006[,]
subpoena directed to the Custodian of Re-
cords, Office of the Governor of the State of
Illinois (concerning backup tapes, archives,
etc. for offices under the jurisdiction of
the Governor)."
Later in February 2008, the Governor filed a motion to
reconsider based on newly discovered evidence--namely, the United
States Attorney's February 5, 2008, letter. In March 2008, the
trial court denied the Governor’s motion.
This appeal followed.
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II. ANALYSIS
A. The Governor’s Claim That the Federal Grand Jury
Subpoenas Are Exempt From Disclosure
The Governor contends that because (1) disclosure of
federal grand jury subpoenas are preempted by federal law--
specifically, Federal Rule of Criminal Procedure 6(e)(2) (Fed. R.
Crim. P. 6(e)(2)), and (2) the subpoenas the BGA seeks are exempt
from disclosure under various sections of the FOIA, the trial
court erred by dismissing his motion for summary judgment and
granting the BGA's motion for judgment on the pleadings. We
disagree.
1. Standards of Review
a. Summary Judgment
"'Summary judgment is proper where the pleadings,
affidavits, depositions, admissions, and exhibits on file, when
viewed in the light most favorable to the nonmovant, reveal that
there is no issue as to any material fact and that the movant is
entitled to judgment as a matter of law.'" DesPain v. City of
Collinsville, 382 Ill. App. 3d 572, 576-77, 888 N.E.2d 163, 166
(2008). "In appeals from summary judgment rulings, review is de
novo." Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d
1, 9 (2008).
b. Judgment on the Pleadings
Judgment on the pleadings is appropriate when the
pleadings disclose only questions of law rather than issues of
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material fact. County of Cook v. Philip Morris, Inc., 353 Ill.
App. 3d 55, 59, 817 N.E.2d 1039, 1042 (2004). "In ruling on a
motion for judgment on the pleadings, the court will consider
only those facts apparent from the face of the pleadings, matters
subject to judicial notice, and judicial admissions in the
record." Gillen v. State Farm Mutual Automobile Insurance Co.,
215 Ill. 2d 381, 385, 830 N.E.2d 575, 577 (2005). We review de
novo a trial court’s order granting a motion for judgment on the
pleadings. Intersport, Inc. v. National Collegiate Athletic
Ass'n, 381 Ill. App. 3d 312, 318, 885 N.E.2d 532, 538 (2008).
2. The Governor's Claim That Federal Rule of Criminal
Procedure 6(e)(2) Preempts the FOIA
a. Federal Case Law
The supremacy clause of the United States Constitution
provides that "[t]his Constitution, and the Laws of the United
States *** shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the Constitu-
tion or Laws of any State to the Contrary notwithstanding." U.S.
Const., art. VI, cl. 2. "'State law is preempted under the
supremacy clause in three circumstances: (1) when the express
language of a federal statute indicates an intent to preempt
state law; (2) when the scope of a federal regulation is so
pervasive that it implies an intent to occupy a field exclu-
sively; and (3) when state law actually conflicts with federal
law.'" Poindexter v. State of Illinois, 229 Ill. 2d 194, 210,
- 11 -
890 N.E.2d 410, 421 (2008), quoting Village of Mundelein v.
Wisconsin Central R.R., 227 Ill. 2d 281, 288, 882 N.E.2d 544, 549
(2008).
Federal Rule of Criminal Procedure 6(e)(2), which
pertains to the federal grand jury, provides as follows:
"(2) Secrecy.
(A) No obligation of secrecy
may be imposed on any person except
in accordance with Rule 6(e)(2)(B).
(B) Unless these rules provide
otherwise, the following persons
must not disclose a matter occur-
ring before the grand jury:
(i) a grand juror;
(ii) an interpreter;
(iii) a court reporter;
(iv) an operator of
a recording device;
(v) a person who
transcribes recorded
testimony;
(vi) an attorney for
the government; or
(vii) a person to
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whom disclosure is made
under Rule 6(e)(3)(A)(ii)
or (iii)." Fed. R. Crim.
P. 6(e)(2).
Despite the Governor's contention that Federal Rule of
Criminal Procedure 6(e)(2) prohibits disclosure of federal grand
jury subpoenas, he concedes that the explicit language of the
rule does not apply to the general public. Thus, if a private
citizen were served with a federal grand jury subpoena, federal
law would not bar him from revealing the contents of the subpoena
or his thoughts about it.
Although most federal grand jury subpoena recipients
usually prefer to remain silent about the matter, circumstances
may prompt that person to choose to disclose its existence and
content. Such circumstances may include the recipient's belief
that disclosure of the subpoena's content would (1) be in his
best interest to demonstrate his ongoing cooperation with the
federal prosecutor (particularly if the recipient held a politi-
cal position) or (2) represent the opening salvo in the recipi-
ent's contention that he is the target of a political witch hunt
and the subpoena is evidence of government corruption. Regard-
less of the recipient's motive, under federal law, a private
citizen has the discretion to reveal the subpoena, and if he
chooses to do so, he will not suffer the wrath of the federal
- 13 -
court’s contempt powers or be subject to any federal charges.
The Governor cites several federal district court cases
that have expanded Rule 6(e)(2)’s disclosure prohibitions. See
Board of Education of Evanston Township High School District No.
202 v. Admiral Heating & Ventilation, Inc., 513 F. Supp. 600, 604
(N.D. Ill. 1981) ("Grand jury confidentiality would be emascu-
lated if a party seeking discovery of its proceedings could do so
by routinely obtaining that information from potential (or as in
this case actual) defendants"); In re Wirebound Boxes Antitrust
Litigation, 126 F.R.D. 554, 556 (D. Minn. 1989) ("Absent a
showing of particularized need, [federal] courts have generally
barred private actors from disclosing documents created by a
grand jury or at a grand jury's request, such as subpoenas,
transcripts, and lists of documents"); In re Caremark Interna-
tional, Inc. Securities Litigation, No. 94 C 4751 (N.D. Ill.
1995) (1995 WL 557496) (where the Northern District of Illinois
limited disclosure to documents not related to the investigation
because it would violate the secrecy of the federal grand jury).
However, we are not required to follow these federal court
decisions. Instead, we may choose to do so if we find them
persuasive. See Tortoriello v. Gerald Nissan of North Aurora,
Inc., 379 Ill. App. 3d 214, 224, 882 N.E.2d 157, 168 (2008),
quoting Lamar Whiteco Outdoor Corp. v. City of West Chicago, 355
Ill. App. 3d 352, 360, 823 N.E.2d 610, 617 (2005) ("'[a]lthough
- 14 -
this court is not bound to follow federal district court deci-
sions [citation], such decisions can provide guidance and serve
as persuasive authority'"). For the reasons that follow, we do
not find them persuasive and, accordingly, will not follow them.
There is nothing new or novel about private citizens or
public officials receiving federal grand jury subpoenas. Federal
grand juries have been issuing subpoenas for over 200 years.
Yet, during all this time, Congress has not seen fit to specifi-
cally restrict the behavior of subpoena recipients. Accordingly,
we hold that (1) the failure of Congress to do so is not somehow
an oversight and, therefore, (2) Congress has chosen not to
restrict a recipient's behavior concerning what he may say or do
on the matter. The federal courts that have held otherwise--that
is, those courts that have decided that Congress' failure to act
was the result of an oversight--have taken it upon themselves to
correct this oversight by judicially amending Rule 6(e)(2). We
disagree with this course of action and decline to follow it.
We also reject the Governor's argument that, as a
matter of policy, revealing any aspect of the federal grand jury
process is not desirable. This court's role is not policy
formulation. Instead, our role is to apply--and abide by--the
legislation that the policy-making bodies, Congress and the
Illinois General Assembly, have enacted.
b. The Need for a Specific Prohibition for the
FOIA's Disclosure Policy Not To Apply
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We also reject the Governor's argument because it is
inconsistent with the FOIA's language and intent. Section 1 of
the FOIA states, in part, that "all persons are entitled to full
and complete information regarding the affairs of government." 5
ILCS 140/1 (West 2006). This hortatory language emphasizes and
calls for an expansive interpretation. Further, our legislature
has authorized exemptions to the FOIA's expansive disclosure
policy when a given disclosure is not just prohibited "by federal
or State law or rules and regulations adopted under federal or
State law" but specifically so prohibited. 5 ILCS 140/7(1)(a)
(West 2006). When interpreting a statute, this court cannot
disregard explicit statutory language. See Hedrick v. Bathon,
319 Ill. App. 3d 599, 604-05, 747 N.E.2d 917, 922 (2001) ("Statu-
tory interpretation is the process by which the intent of the
legislature is ascertained and given effect, primarily by looking
to the statute’s actual words, which are to be given their
commonly accepted meanings unless otherwise defined by our
General Assembly"). Therefore, this court is duty-bound to apply
the actual words of the statute enacted by our legislature.
Thus, an exemption restricting the expansive nature of the FOIA’s
disclosure provisions must be explicitly stated--that is, such a
proposed disclosure must be specifically prohibited.
Because Rule 6(e)(2) does not explicitly prohibit
recipients from disclosing the existence or content of federal
- 16 -
grand jury subpoenas, we decline to follow those federal cases
that have expanded that rule by judicially amending it.
3. The Governor's Claim That the Federal Grand Jury Subpoenas
Are Exempt From Disclosure Under the FOIA
The Governor also contends that the federal grand jury
subpoenas are exempt from disclosure under various sections of
the FOIA. Specifically, the Governor asserts that sections
7(1)(a), (1)(b)(v), (1)(c)(i), (1)(c)(vi), and (1)(c)(viii) of
the FOIA (5 ILCS 140/7(1)(a), (1)(b)(v), (1)(c)(i), (1)(c)(vi),
(1)(c)(viii) (West 2006)) prohibit disclosure. We disagree.
a. Pertinent Sections of the FOIA
i. Legislative Intent
Section 1 of the FOIA states as follows:
"Pursuant to the fundamental philosophy
of the American constitutional form of gov-
ernment, it is declared to be the public
policy of the State of Illinois that all
persons are entitled to full and complete
information regarding the affairs of govern-
ment and the official acts and policies of
those who represent them as public officials
and public employees consistent with the
terms of this Act. Such access is necessary
to enable the people to fulfill their duties
of discussing public issues fully and freely,
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making informed political judgments and moni-
toring government to ensure that it is being
conducted in the public interest." 5 ILCS
140/1 (West 2006).
ii. Inspection or Copying of Public Records
Section 3 of the FOIA states, in part, as follows:
"Each public body shall make available
to any person for inspection or copying all
public records, except as otherwise provided
in [s]ection 7 of this Act." 5 ILCS 140/3(a)
(West 2006).
iii. FOIA Disclosure Exemptions
Sections 7(1)(a), (1)(b), and (1)(c) of the FOIA state,
in part, as follows:
"(1) The following shall be exempt from
inspection and copying:
(a) Information specifically
prohibited from disclosure by fed-
eral or State law or rules and
regulations adopted under federal
or State law.
(b) Information that, if dis-
closed, would constitute a clearly
unwarranted invasion of personal
- 18 -
privacy, unless the disclosure is
consented to in writing by the
individual subjects of the informa-
tion. The disclosure of informa-
tion that bears on the public du-
ties of public employees and offi-
cials shall not be considered an
invasion of personal privacy.
Information exempted under this
subsection (b) shall include but is
not limited to:
* * *
(v) information
revealing the identity of
persons who file com-
plaints with or provide
information to adminis-
trative, investigative,
law enforcement or penal
agencies;
***
(c) Records compiled by any
public body for administrative
enforcement proceedings and any law
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enforcement or correctional agency
for law enforcement purposes or for
internal matters of a public body,
but only to the extent that disclo-
sure would:
(i) interfere with
pending or actually and
reasonably contemplated
law enforcement proceed-
ings conducted by any law
enforcement or correc-
tional agency;
* * *
(vi) constitute an
invasion of personal
privacy under subsection
(b) of this Section;
***
(viii) obstruct an
ongoing criminal investi-
gation." 5 ILCS
140/7(1)(a), (1)(b)(v),
(1)(c)(i), (1)(c)(vi),
(1)(c)(viii) (West 2006).
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b. Policy Underlying the FOIA
As we noted earlier, Federal Rule of Criminal Procedure
6(e)(2) gives a private citizen the discretion to choose to
disclose or not disclose the receipt of a federal grand jury
subpoena without running afoul of the rule or federal law.
However, the FOIA eliminates such discretion from the recipient
of a federal grand jury subpoena if that recipient is a public
official subject to FOIA's requirements.
Here, the Governor was served with subpoenas in his
official capacity as the Governor of Illinois. As such, the FOIA
applies, thus mandating "full and complete information regarding
the affairs of government and the official acts and policies of
those who represent them as public officials." 5 ILCS 140/1
(West 2006). Thus, unlike for a private citizen, the FOIA
eliminates any discretion the Governor, acting in his official
capacity as Governor for the State of Illinois, has in keeping
the subpoenas secret.
We are not surprised that governmental entities,
including the United States Attorney, generally prefer not to
reveal their activities to the public. If this were not a
truism, no FOIA would be needed. Our legislature enacted the
FOIA in recognition that (1) blanket government secrecy does not
serve the public interest and (2) transparency should be the
norm, except in rare, specified circumstances. The legislature
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has concluded that the sunshine of public scrutiny is the best
antidote to public corruption, and Illinois courts are duty-bound
to enforce that policy.
Because we previously have held that Federal Rule of
Criminal Procedure 6(e)(2) does not apply, we reject the
Governor’s argument that section 7(1)(a) prohibits disclosure.
Similarly, because the record is absolutely devoid of any evi-
dence that the federal grand jury subpoenas were "[r]ecords
compiled by any public body for administrative enforcement
proceedings and any law enforcement or correctional agency for
law enforcement purposes or for internal matters of a public
body," we reject the Governor’s argument that sections 7(1)(c)(i)
and 7(1)(c)(viii) prohibit disclosure (5 ILCS 140/7(1)(c)(i),
(1)(c)(viii) (West 2006)). In addition, because disclosure of
information that bears on the public duties of public officials
is not considered an invasion of personal privacy under the FOIA,
we reject the Governor’s argument that sections 7(1)(c)(vi) and
7(1)(b) prohibit disclosure (5 ILCS 140/7(1)(c)(vi), (1)(b) (West
2006)).
Accordingly, we conclude that the trial court did not
err by dismissing the Governor’s summary-judgment motion and
granting the BGA’s motion for judgment on the pleadings.
B. The Governor’s Claim of Newly Discovered Evidence
The Governor also contends that the trial court's order
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should be reversed because of newly discovered evidence--namely,
the United States Attorney's February 5, 2008, letter. We
disagree.
One intended purpose of a postruling motion is to bring
to the trial court’s attention newly discovered evidence that was
not available at the time of the hearing at which the court
ruled. Gardner v. Navistar International Transportation Corp.,
213 Ill. App. 3d 242, 248, 571 N.E.2d 1107, 1111 (1991). Essen-
tially, this type of motion seeks a "'"second bite at the ap-
ple,"'" which requires the trial court to determine whether it
should admit new matters into evidence and reconsider its deci-
sion. Daniels v. Corrigan, 382 Ill. App. 3d 66, 71, 866 N.E.2d
1193, 1200 (2008), quoting O'Shield v. Lakeside Bank, 335 Ill.
App. 3d 834, 838, 781 N.E.2d 1114, 1118 (2002). "A ruling on a
motion to reconsider is within the sound discretion of the trial
court and will not be disturbed absent an abuse of that discre-
tion." Robidoux v. Oliphant, 201 Ill. 2d 324, 347, 775 N.E.2d
987, 1000 (2002).
Over 17 years ago in Gardner, 213 Ill. App. 3d at 248,
571 N.E.2d at 1111, this court rejected the plaintiff’s newly
discovered evidence argument because the evidence the plaintiff
sought to have us consider "had been available prior to the
hearing on the motion for summary judgment." In so concluding,
this court wrote the following:
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"Trial courts should not permit litigants to
stand mute, lose a motion, and then franti-
cally gather evidentiary material to show
that the court erred in its ruling. Civil
proceedings already suffer from far too many
delays, and the interests of finality and
efficiency require that the trial courts not
consider such late-tendered evidentiary mate-
rial, no matter what the contents thereof may
be." (Emphasis in original.) Gardner, 213
Ill. App. 3d at 248-49, 571 N.E.2d at 1111.
See Robidoux, 201 Ill. 2d at 346, 775 N.E.2d at 1000 (quoting
Gardner approvingly).
In this case, the evidence showed that the February 5,
2008, letter from the United States Attorney was (1) sent in
response to the Governor’s inquiry (as shown by the letter’s
introductory clause) and (2) dated more than three weeks after
the trial court denied the Governor’s motion for summary
judgment. Because the Governor did not alert the court to the
United States Attorney's letter prior to the court’s January 9,
2008, hearing, we conclude that the Governor’s request for a
letter from the United States Attorney was made after the Febru-
ary 5, 2008, hearing in a frantic attempt to show that the court
had erred by denying his motion.
- 24 -
The Governor fails to explain why the trial court or
this court should be impressed with the United States Attorney's
February 5, 2008, letter, given that it is conclusory and filled
with bureaucratic vagueness. If the United States Attorney
really believed that the Governor's disclosing of the federal
grand jury subpoenas would somehow have interfered with the
federal grand jury investigation, the United States Attorney
could have appeared in this litigation to make known and defend
the federal grand jury's interests just as it did in Brady-Lunny
v. Massey, 185 F. Supp. 2d 928, 930 (C.D. Ill. 2002).
In Brady-Lunny, 185 F. Supp. 2d at 929-30, a newspaper
reporter sought information pertaining to all inmates in the
custody of the DeWitt County sheriff pursuant to the FOIA. The
sheriff provided the information sought for state inmates but not
for federal inmates because the Code of Federal Regulations
prohibited disclosure of "lists" of federal inmates (28 C.F.R.
§513.34(b) (2006)). The newspaper company later sued the sheriff
to compel disclosure. The United States Attorney intervened to
protect the information about federal inmates and successfully
moved the suit to the United States District Court for the
Central District of Illinois under the federal-question doctrine
(28 U.S.C. §1331 (2000)).
In granting the United States Attorney's motion for
summary judgment, the district court concluded that in addition
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to section 513.34(b) of title 28 of the Code of Federal Regula-
tions, the listing sought was specifically barred by sections
(b)(7)(C) and (b)(7)(F) of the federal FOIA (5 U.S.C.
§552(b)(7)(C), (b)(7)(F) (2000)), which pertain to disclosures
that could reasonably be expected to (1) constitute an unwar-
ranted invasions of personal privacy and (2) endanger life or
physical safety, respectively. Brady-Lunny, 185 F. Supp. 2d at
932.
Assuming that the United States Attorney could make a
case that the Governor's disclosing the federal grand jury
subpoenas would somehow have interfered with the federal grand
jury investigation--a proposition about which we remain skepti-
cal, given that the United States Attorney remained silent for
over a year after being informed of this litigation--the trial
court and this court would have given respectful consideration to
any stated concerns. However, given the United States Attorney's
silence (except for the barely audible February 5, 2008, letter),
we decline to speculate about the harm that might somehow arise
to an ongoing federal investigation by the mere act of revealing
the substance of the subpoenas in question.
For the reasons stated, the United States Attorney’s
February 5, 2008, letter was insufficient to call into question
the trial court's FOIA ruling. Thus, we conclude that the court
did not abuse its discretion by denying the Governor’s motion to
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reconsider.
In closing, this court commends the trial court's
thoughtful analysis and careful explanation of its findings,
which we found most helpful.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
APPLETON, P.J., and McCULLOUGH, J., concur.
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