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Thursday, May 29, 2014 12:01 am

Open your files

Prosecutors aren’t judges, court rules

The Illinois Supreme Court has ruled that state’s attorneys are subject to the state Freedom of Information Act.

The May 22 ruling came after at least three courts ruled that prosecutors need not respond to FOIA requests because they are branches of the judiciary by virtue of being created by the same article of the state constitution that created judges, who are exempt from FOIA.

In addition to the constitutional argument, the Fourth Appellate Court in Springfield last December decreed that prosecutors are exempt from FOIA and cited an obscure bill approved unanimously in 2010 by lawmakers who tacked “judicial” in front of “agency” in the definition of the State’s Attorneys Appellate Prosecutor’s Office in a piece of legislation that had nothing to do with public records. The bill’s sponsor, Sen. William Haine, D-Alton, a former state’s attorney, has said that the language was intended to make it clear that prosecutors are arms of the judiciary and so need not respond to records requests.

Malarkey, the Supreme Court ruled in a unanimous decision.

“Although the circuit and appellate courts were persuaded by this theory, we do not believe that it can be squared with the law,” Justice Lloyd Karmeier wrote for the court. “There is no sense…in which state’s attorneys can be regarded as part of the judiciary or the judicial branch.”

The justices noted that Haine’s bill was passed a quarter-century after legislators enacted the Freedom of Information Act, and the court questioned the ability of the General Assembly to unilaterally make the judiciary larger without running afoul of separation of powers, a basic constitutional principle that divides governmental authority so that no one branch of government has too much authority.

The case centered on a request for emails held by the Kendall County state’s attorney that didn’t pertain to criminal or civil cases. Larry Nelson, an employee of a Plano radio station, had asked for copies of emails exchanged by assistant state’s attorneys as well as correspondence involving state’s attorney Eric Weis.

After a trial and appellate court in the Kendall County case ruled that state’s attorneys are exempt from FOIA because prosecutors are part of the judiciary, the Fourth Appellate Court last year reversed a trial court ruling and said that the Livingston County state’s attorney’s office did not have to respond to a request for documents in a murder case.

Don Craven, a Springfield attorney who frequently litigates FOIA matters and represented the plaintiff in the Livingston County case, expressed no surprise that the Supreme Court rejected the notion that prosecutors are judges.

“I look at it as an affirmation as opposed to a revelation,” Craven said. “There are some of us who thought all along that state’s attorneys are subject to FOIA, so this ain’t new.’

Both Craven and the Supreme Court in its ruling pointed out that the Kendall County state’s attorney had responded to FOIA requests until Nelson asked for emails.

“That state’s attorneys’ offices qualify as public bodies subject to the FOIA is no revelation to the Kendall County state’s attorney,” ruled the court, noting that the state’s attorney had handled some requests as if it were bound by the law.

In Sangamon County, state’s attorney John Milhiser said that his office, which had previously responded to FOIA requests, stopped after courts in the Kendall County case ruled that state’s attorneys were exempt from the law. He said that his office will again respond to requests.

Most FOIA requests to his office come from inmates, Milhiser said. But the Supreme Court’s ruling doesn’t open floodgates. The state Freedom of Information Act contains exemptions that allow public bodies to withhold records that could jeopardize someone’s right to a fair trial, compromise investigations, endanger a person or reveal the identity of confidential informants. Records in which public officials express opinions or documents that haven’t been finalized can also be withheld.

“We don’t want to jeopardize any of our criminal cases or somehow infringe on the rights of victims in criminal cases,” Milhiser said.

Erica Nichols Cook, an attorney with Illinois Innocence Project based at University Illinois Springfield, hailed the ruling.

“It’s a really important decision,” Cook said. “I think we should all care because they (state’s attorneys) are elected officials and now they’re being held to the same standard as other elected officials.”

The ruling could help make such records as videos and photos more accessible when someone claims they’ve been wrongfully convicted, Cook said.

“Anytime you have a potential for missing evidence or missing records, FOIA is one of those great ways where we’re able to get a view of what there is and what wasn’t turned over to the defense,” Cook said.

Contact Bruce Rushton at brushton@illinoistimes.com.

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