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Thursday, Jan. 2, 2014 12:01 am

Tail wagging the dog

Prosecutors duck FOIA


When is a prosecutor actually a judge?

When the legislature and the courts say so, at least in Illinois, where state’s attorneys are winning fights to gain exemption from the state Freedom of Information Act.

State’s attorneys have long complained about being subject to the law aimed at compelling government to operate in the open and release records upon request. The law says that “public bodies” must comply with the statute. But state’s attorneys have argued, successfully, that they are actually arms of the judiciary, not public bodies in the same sense as municipalities and other governmental entities that have to respond to FOIA requests. At least two courts have agreed, and the state Supreme Court is scheduled to consider the matter later this month.

Everyone agrees the stakes are high. Prosecutors say they handle a lot of sensitive information and need to concentrate on prosecuting cases rather than handling FOIA requests. Besides such mundane matters as how prosecutors spend public money, files kept by state’s attorneys can contain information about police misconduct or evidence that can free innocent people from prison, according to open-government advocates.

A state appellate court last spring upheld a trial judge who ruled that the Kendall County state’s attorney didn’t have to disclose emails written by assistant state’s attorneys because the same article of the state constitution that created courts also created state’s attorneys. Judges don’t have to respond to FOIA requests, the appellate court reasoned, and so prosecutors don’t have to respond, either.

More recently, the Fourth Circuit Appellate Court in Springfield on Dec. 12 overturned a trial court decision as well as an opinion from the state attorney general and ruled that the Livingston County state’s attorney did not have to release records relating to a 2001 murder case. In the ruling, appellate judge Robert Steigmann cited an obscure bill approved by the General Assembly in 2010 as evidence that prosecutors are part of the judiciary and that the legislature intended to exempt them from FOIA.

The legislation decreed that the State’s Attorneys Appellate Prosecutor’s Office, which had always been “an agency of state government,” was now “a judicial agency of state government.” Judge Steigmann called it “an important change” that could only have been made to exempt prosecutors from FOIA, and he opined that it must have been made with an eye toward FOIA litigation involving state’s attorneys who had argued they are part of the judiciary and so don’t have to respond to FOIA requests.

FOIA implications weren’t mentioned in a written synopsis of the bill prepared by legislative staff, and available records show that legislators didn’t mention FOIA when they unanimously passed the bill.

Why didn’t legislators talk about FOIA when they approved the bill, which also addressed less weighty matters such as procurement practices?

“I don’t know,” answers Sen. William Haine, D-Alton, a former state’s attorney who sponsored the bill and explained it to his colleagues on the Senate floor. “I think that (exempting prosecutors from FOIA) was part of the intention. It may have been obvious.”

It wasn’t obvious at all, according to Josh Sharp, a lobbyist for the Illinois Press Association. The IPA knew about the bill, Sharp says, but didn’t realize that it could bolster the case for exempting state’s attorneys from FOIA.

“The IPA obviously would have opposed any bill that we thought would exempt state’s attorneys from FOIA,” Sharp said.

Matt Jones, associate director of the State’s Attorneys Appellate Prosecutor’s office, recalls telling legislative staff about the bill’s impact on FOIA but he couldn’t recall precisely what he told legislators during committee hearings that are not recorded.

“I don’t remember saying, specifically, FOIA,” Jones said. “It’s been years ago now.”

In any case, Judge Steigmann recalled that Abraham Lincoln once asked someone how many legs a dog would have if the dog’s tail was considered a leg. Five, came the answer. Wrong, responded Lincoln, who observed that a tail isn’t a leg just because someone calls it that. The same is true, the judge wrote, when it comes to legislators declaring prosecutors part of the judiciary.

“The General Assembly must have had some reason for passing legislation that is the statutory equivalent of declaring a dog’s tail to be a leg, and the only reason we can see is to provide (the State’s Attorneys Appellate Prosecutor) with a FOIA exemption,” Steigmann wrote.

Haine applauded the ruling.

“I think the court’s decision is a great decision,” the senator said. “It’s consistent with my bill.”

There was, Steigmann said, a simpler way for legislators to handle the issue: Lawmakers could have amended FOIA to explicitly exempt prosecutors from the statute.

Haine says that would have been harder than calling a tail a leg.

“There are many mayors and county officials who chafe under the present FOIA regimen,” Haine said. “If a legislator introduces a bill…to exempt someone from the onerous requirements of FOIA – and I use the term onerous because they do – then you’re going to have many amendments. You just don’t want to open it up.”

Contact Bruce Rushton at brushton@illinoistimes.com.


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