when you're ready you may be g committed by the nephew of then mayor richard daley and a possible cover up by police and state's attorneys defendants city of chicago and the office of special prosecutor have refused to release those records they do so even though the office special prosecutor has already released a report naming every single witness who presented to the grand jury the substance of their testimony and whether they testified under immunity among many other details in fact every argument the defendants have made for secrecy over the records of each year requested would apply equally to the release of that report there are two independent issues before this court in this appeal first as to the city is the interaction between  judge's secrecy order and the statutory disclosure requirements under the freedom of information act in addressing that issue the city the appellate court and the federal g t e sylvania case in which they rely focus on the wrong question the question is not how a public body must respond to requests for records that are subject to secrecy order the question is whether secrecy orders can block the release of records that must be disclosed under fire in the first place something the g t e did not need to address second as to the o s p is the interaction between the grand jury secrecy provisions of the criminal code and the disclosure requirements under the freedom of information act if particularly the meaning of the phrase matters occurring before the grand jury contrary to the very case isn't what your relies piece expansive definition ignores the historic distinction between the prosecutor and the grand jury and treats all prosecutorial records as true records whenever a grand jury has been impaneled notably no states attorneys have filed any anecdotes brief in support of that position and like to start with the court order question and i'd like to address the question i would imagine is in the fronts of all of your minds as you consider this case why shouldn't we simply follow the g t e case on improper withhold there are several reasons you should not g t e never address the key argument in fundamental threshold question being made here can a judge order a public body to violate for you by ordering it to withhold records it for a requires to be produced g t e skipped over that question entirely and held that the mere existence of the makes withholding record substantive analysis was going to be the same in g t e sylvania it was purely a question of which suit would resolve that subject matter that is now we have here and we don't have that here because the city has never claimed any exemption applies to any of these documents purely rely on the mere fact that the secrecy or admin after g t e several federal cases they did not involve reverse fire and held that secrecy order should have carve outs for records required to be disclosed under open records laws the pansy case from the third circuit of the florida in davis cases from the fourth circuit all hold that in addition the dove versus white northern district of illinois case declined to enter a protective order over records they were subject to only play so for a look more closely at g t e and subsequent federal cases more squarely on point in a school with the improper withholding doctrine is not to be used to expand the scope of what can be withheld under open records laws the second reason not to apply is that there are many material differences between state and federal statutes and other law that are relevant here notwithstanding the improperly proper request for information it must comply with that request unless one of the narrow statutory exemptions applies and the statute has been amended to it could reference set forth in section seven later it added seven point five eighty five but the point has always been in this court has always held that unless a record is exact under a specific statutory exemption it has to be produced there is no further inquiry as to whether something was improperly withheld or not  the there is the difference between deepak provision in the state statute and the lack of any similar provision in the federal statute the reason it matters is because this improper withholding clause that was relied upon by the appellate court exists only in the jurisdiction statement for the circuit courts there is no comparable provision in the in the review provisions by the attorney general and the the public access counselor and so you're right you have this result of a dick out of me in which right there is a basis in a circuit court action to uphold a record but it's not a basis to withhold it in action in front of the pack in the pack only has the authority that has been vested by the general assembly so this would indicate the general someone did not intend improper withholding to have any sort of broad meaning simply means dispute that and i don't believe that he was cited i missed it would have dispute that there are certain authorities that the circuit courts have to enter protective orders as to the conduct of the parties that are before the court for one which is not what we have here we have a secrecy order that purports to prohibit a third party from disclosing documents to some other third party so there is one distinction there at some point soon the b j did go back in front of judge  the city went back to judge two men and asked for relief from the order we agreed and filed a brief that said we agree that there is no basis for these records to be to continue to be so so there was no appeal of course no challenge to the order into the criminal case and there's a very good reason for that the the it in what i would like the court to is this circuit court the d c circuit court opinion in the g t e sylvania case it's consumers union i forget the rest  it talks about the difficulties that are requester we face in having to go into a third parties case and its own expense possibly without the fear recovery that's allowed under fire to try to undo a protective order that it had no notice of it was it was not a party to before it had been entered so those are the those are the reasons why we made a decision how to approach this case or decision was that this is a foyer case and it should be brought as a for a case and it's the obligation of the public bodies part of what the statute calls its primary how to manage that process i would say there are four exemptions that apply to a number of things that might be relevant to a criminal prosecution or potentially to a grand jury proceeding and one of those is an exemption that applies to the identity to the records that would disclose the identity of a witness in so there is an exemption he could have been asserted but if this point one hundred sixty two page report has been released it discloses the name of everyone who testified front of the grand jury so the names of those witnesses are nothing would be disclosed to the public by releasing whatever records the o s b also has because they've already made the decision with the blessing of the criminal court to release that report that is extremely like the in gets very detailed and any any concerns arguments like that would equally apply as well to that to that report i think there also is a distinction on the grand jury side of the case that it permeates everything that's happening here it is the mere fact that it granger has been impaneled does not mean that they had all the records of people who were interviewed reveal something that occurred before the grand jury that there is a long standing tradition it's included in the very cases that they cite that say the prosecutor and the grand jury are independent of each other and the mere fact that there's been a grand jury impaneled doesn't mean that just because a witness was interviewed it was interviewed because the grand jury won that which is to be in so there's a number of cases cited the on the senate of the rico case in the very sorry a case both talk about how there needs to be evidence that would show that disclosing this particular record would disclose something that occurred before the grand jury and there's no evidence that the special prosecutor has never presented any at david's they've never been in cameron's faction of the documents they have always taken the position that because a grand jury has been impaneled everything they've done has been directed by the grand jury and that's inconsistent with case law on grand juries and it's inconsistent with law that talks about the need for proof that disclosing a record would would actually disclose something that happened for the grand jury i went very far afield of your original question but i i did want to i do want to make those points i want to go back to the court order question and get of a few other points out there one is another key distinction between state and federal contempt well at least something that was never addressed by law of this state says that it is not contempt of court where the order would require you to violate the law and if a record is not examined for you says the record has to be disclosed if it's a public record of a public body there's no dispute that that's what we have here so unless there is some other exemption that applies to it judge humans order was ordering the city to violate the freedom of information act by telling it couldn't release a document that it had an obligation to produce now we certainly are sympathetic to the position in the very short term that the city was placed in that they have an order that says one thing and i appreciate that it's a little bit of a risk for them to say but but that order says to violate the law and so therefore we're just not going to we're not going to address that is a very short term problem that this court in this case should resolve if you hold as you should that individual judges cannot effectively create new foyer exemptions through court orders then this is not a problem it's going to get we are going to have a future situation where a public body is caught between two different workers are caught between the statute in order there's just uncertainty right now as to how exactly those two things are going to interact said i think you should hold that individual judges do not have the authority to tell public body that it has to violate the freedom of information act this court has held for decades that it is exclusively the province of the general assembly to decide what records are quote this clearly enunciated public of open meetings will be poorly served to carve out exceptions other than those expressly stated in the act and that is exactly what the city is arguing here is there should be additional exceptions not set forth in the act for whenever a judge says that a record can't be released or that a judge can effectively create exemptions out by slicing through a protective order records camp your list there's a lot of very important practical ramifications to this i talked about the burden on the requester to intervene in with third parties case there's also the question of the standard of review on appeal and how and what showing is necessary to obtain a protective order under for you have to prove an exemption by clear and convincing evidence find that maybe that order makes sense you know very deferential standard of review than the records would have to be withheld that completely contradicts the regime we've long had under fire for a very good reason to allow the public to monitor the government and that such as flowery language or aspirational language the general assembly when it passed the freedom of information act effectually to see change in how people can interact with the government have access to records that they're entitled to in fact it describes the duty of the public to use for you to monitor the g and that's the last point i'll make on the the court orders question in g t civilian of course is that it is a federal case it is not binding on this court and because there are a number of differences that i've pointed out between the statutes because of the practical ramifications of following it  this court is not obligated to follow g t e sylvania and this would not be the first instance in which is court did not follow a federal case when there were differences between the tax and different statutes and the city's quibble about those differences and how significant they are in this case versus absentee case but the point still holds regardless of any that it is an independent court that does not have to follow how federal courts interpret federal foyer and we've cited a number of academic authorities that have rightly pointed out a lot of the problems with how exemptions to do talk about corporate person one of them being taxes the very next exemption in the statute section seven when he makes reference to state or federal law where a court order so clearly if the general assembly wants to reference a court order then they can reference a qu in fact they did that in the very next provision in the statute and then there's the we have competing dictionary definitions i think probably the easiest way to resolve that is use the city's own dictionary but use its definition of state law instead of just law in the abstract it says legislature passed inside into law and signed by the governor so we're talking about statutory law and then the concurrence in the carbondale case it really addressed this issue that was that was a secrecy order that was a condition of a dismissal and it's in the summit talks about the the all the logical problems and practical problems with having a rule that says that court orders are or state law involved or substantially involved in obtaining the order if it's going to rely on it in our briefs we talk about the chronology of events and the city went back to judge two men and asked him to expressly put into an order that they are prohibited from releasing records when they instead the public access counsel told them they couldn't produce the records based on the record as it had existed at that point so as we lay out in the brief the city itself was involved in the efforts to to have taylor and then just in terms of the order itself i think you murder because in in essence it is a gag order on the city that says the city cannot disclose information that it otherwise would be free to to disclose that has overcome a heavy presumption unless the court  serious an imminent threat of impending harm this is an investigation it was long over by that point in time so really are down to academic arguments about granger he secrecy that's not the kind of serious and imminent harm that would be  remaining time the the opening remarks i want to turn back then to the grand jury question he knows he has not proven that the requested records are quote matters occurring before the grand jury it's their burden of proof they have said that they were the presumes that there is this well established broad construction of the phrase and we went through and i'll reply brief each and every one the cases that they cite and none of them hold that in fact as i had referenced earlier they they have recanted rated the distinction between prosecutors granger investigation case a discussion of actions taken by government attorneys or officials and gives an example does not reveal any information about matters occurring before the grand jury there's a couple cases i would just highlight where the always p has cited language out of context granger e eighty nine dash two it does use the word probably but the first sentence says we have probably interpretive rule six see that's the federal role it's a corollary to encompass mr weaver you reduce the time we have you're going to remove already excellent may please the court i'm shawn weaver from winston and strawn on behalf of the office of special prosecutor gunner's i'm here today to encourage th longstanding notions of grand jury law that are buttressed by the pella court decisions in this state in my allotted time i'd like to address three points somewhat interconnected by i believe a little bit distinct the first is the notion that the office of the special prosecutor is advocating for some sort of some sort of broad or unnecessarily broad definition of what constitutes matters occurring before a grand jury  that's absolutely just it's just not true we are very happy living with the however anyone wants to appoint them is broader narrow we're very happy living with the definitions of what constitutes medicare before the grand jury as the law is today and has been at least since one thousand nine hundred two in this state which is through the far sorry ok so i believe is the only appellate court case that has actually tried to define what constitutes matters occurring before a grand jury but it does so  very neatly in sort of five categories i'll call it one is a dedication and these are not categories i think are really in dispute identification of witnesses or matters occurring before grand jury the substance of their testimony the strategy and the direction of the grand jury the questions of the grand jury and there's a schedule and the like but even if we keep it as the four ironclad categories the material sought today or that remain beings that are up on the appeal squarely fall into that our sorrow categories they're asking for what in essence is a witness list identification of grand jury witnesses that argument was remains heavily concerned about not only the grand jury that it oversaw for the seventeen months but future grand juries as judge tumen has noted noticed in all his opinions on this case it's not just about the matter in the moonlight as a prosecutor ok i'm a private practitioner but for those who actually do practice in this day in day out as a couple members of of this is seen court having their background as well when you are a prosecutor dealing with multiple grand juries there is a significant risk that if you don't protect it and if occasion in the substance of those testimonies how do you go in to the future lawyers that you're dealing with and try to say would listen here's what we'll do i know what happened in that other case but don't worry this time i am going to protect there's a serious concern about future integrity in protecting that and i do believe that that's clear through all the ten prosecutor and that of the grand jury's work especially as it relates to i don't know the answer by the way why there's no other state's attorneys here submitting briefs i think it's because we are sort of a unique entity this is certainly a hot button hot potato case the lineage of how it's got to our office is long and tortured and there's no dispute about that but the the distinction between the u s he and the grand jury is a distinction without a difference where single purpose entity ok he's not asking to be jay it's not asking for our private practitioner records or asking for records that i can tell you i definition when we were created in conjunction with our work as the office and the notion that there are somehow abundant records i pathetically that exist that aren't tethered to the grand jury i can say is just it's not true i mean we have private employment records ok that go to the winston the partnership and those folks that they're not seeking any of that they're seeking records that are directly tethered to the our work of interfacing as the lawyers for the grantor that's what we were for that seventeen month investigation the third point  constitute matters occurring before a grand jury but i think there are some documents they want the b j has tried to suggest that there are some other categories of documents that they might hypothetically be interested in under this notion that we say we have a very broad interpretation of what constitutes manage her before a grand jury and therefore anything that ever crosses the threshold if a prosecutor is per say grand jury material we don't need to go that far there is probably a distinction say well because that record exists in my office and i'm a prosecutor you're not entitled to leave this court in two thousand and fourteen or fifteen and nelsen case you know you prosecutors are subject to foil i'm just suggesting that the records that remain at issue in this case clearly fall under matters that are protected as a grand jury grand jury protected documents and then briefly in my allotted remaining time this notion that the office of special prosecutor somehow failed our burden or not carr argument and rejected it and it did so in i believe one of the only footnotes in that case footnote one where it said it's unclear to us it's unclear to us whether or not the trial court addressed this sort of factual underpinnings of whether or not the actual document that is sought was actually presented to the grand jurors and sort of the four corners of the room argument the court just identified that it had been raised and just didn't deal with it because it it much differently by saying aside from whatever evidentiary issues might or might have not have gone on at the trial court we can comfortably make a determination on the documents at issue in that case of whether or not they constitute matters occurring before the grand jury clearly had discretion as relates to this in camera inspection now granted the for us section does say in the eleven f that the court shall conduct and in camera inspection but it doesn't just stop there that sound bite is not enough it goes on to say that it shall conduct such in camera examination as it finds of her she clearly has discretion based on the requests which are in evidence the requests at issue which at the end of the day taking out all the  noise surrounding this case is they want a grand jury witness list and they want to subset of those witnesses grand jury statements and interviews judge mikva a smart jurist did not need to see what those documents would look like to make a determination of whether or not those constitutes very clearly categories of protected an executor of one of our sorrow and to suggest otherwise i think is for misinterpreting and and unfair to the trial court hard work on the case with that see my time is is up and i will yield to my colleagues from the city of chicago order that prevented the city from releasing certain records that were subsequently sought by the b ga under the illinois freedom of information act the city did not play a role in procuring the order i know that counsel for the court counsel for the b d a referred specifically to the city's motion for clarification following the paks decision in this case the city sought clarification not expansion of judge truman's order and that is quite clear from judge humans ruling on the city's motion for clarification and which judge tumen states that had the city released the requested records it would have been in violation of his prior twenty twelve protective order that judge truman was resolute on this issue became further apparent in two thousand and sixteen when the city filed the motion for modification after judge mikva as decision at that time judge two men again denied  that reiterated that the protective order should stay in place and i reiterated his view that the material should be held confidential so there really should be no confusion about the city's role in this case it had nothing to do with hearing the protect otherwise eyes would put public bodies such as the city in an unfair and untenable position they would be forced to choose between risking contempt for violating a protective order on the one hand and violating four year and improperly withhold public records and therefore did not violate for your sectional levante of the illinois for your state that circuit courts may enjoy a public enjoin a public body from withholding public records and order the production of any public records improperly withheld this provision is materially indistinguishable from a similar provision in the federal for you in the g t e sylvania case the united states supreme court interpreted that similar provision in the federal for you to hold that a government does not improperly withhold records when a court order for bids their release counsel for the v g a has argued that g sylvania is somehow distinguishable on the facts from the present case there's no distinction that i can see the holding was clear where there is an extensive protective order a public body does not violate phoria when it complies with the with the protective order and declines to release records covered by the order and this court has held that because the illinois where was modeled on the federal for cases interpret in the federal for should guide the interpretation of similar language in the illinois for for this reason the appellate court correctly followed the lead of the united states supreme court in g t e sylvania when the appellate court held that a public body does not improperly withhold records and therefore does not violate for when the public body declines to produce records covered by an extent protective order the p g a argues that the text of the eleanore for air compels a different result because the illinois boy contains an express list of exemptions that has held and held to be exclusive this is incorrect because the federal also contains an express list of exemptions and in the department of justice versus tax that the government must produce records unless they fall within one of the listed exemptions with one limited exception and that is the case presented here where an extant court order forbids the release of the requested records the supreme court in the tax analysts case held that the record should not be produced because the illinois for a was modeled on the federal phoria the supreme court's approach in tax analysts should be followed here and the  holding that the city did not improperly withhold records under the illinois should be affirmed this morning counsel for the b j also referenced the pac this provision section one nine point five of the illinois  determination by a public body that records should not be produced because they are covered by an extent protective order there is nothing in the illinois for if it says that when the illinois for limits the pacs authority it is express so for example the illinois where is express that the pac does not respond to a request for review of a decision to deny a request commercial requester further evidence that the pac has authority to review a public bodies decision to withhold records based on an extent protective orders what happened in this case the pack reviewed the decision clearly the pack thought she had authority to review determination here so for all these reasons this court should affirm the appellate court's holding that the city did not improperly withhold records when it relied on x and extent protective order to withhold those records in the alternative this court should hold that the city did not violate because the records at issue were exempt under section seven one day which exams from disclosure which exempt records from disclosure where when disclosure is prohibited by state law in entering the protective orders judge tumen interpreted and applied section one one two dash six of the illinois criminal code judge two men's orders thus became part and parcel of this illinois statute and therefore those orders qualify as state law for purposes of the section seven one eight sampson in its brief the p g a spent much time arguing that judge two men should not have entered the protective orders or that he should have modified them when he had the chance whether judge two men erred in either entering new orders or declining to modify them is not relevant to the question whether the city violated for oir judge   and had jurisdiction to enter the orders and they were not frivolous on their face in these circumstances the city was required to comply with them in until they were modified or overturned today counsel for the  made the argument that that is not the law in illinois i know of no case in illinois holding that if there is an ex stand protective order an entity can disregard it if the court that entered that order had jurisdiction to enter it and the order is not frivolous on its face thus the city did not violate for when it relied on the orders to decline the b g is for a request either because the city did not improperly withhold the records under section eleven d or because the records are exempt under section seven one may lastly this quote may determine that judge two men should not have entered the protective orders or that he should have modified them in light of change circumstances if this were to occur the court should nevertheless hold that the city did not violate phoria because at the time of the bee gees oir request the xtend protective orders precluded the city from releasing the records and because the city did not violate for the b g is not entitle to attorneys fees and costs from the city under the four years fee shifting provision even if this court were now to reverse the protective orders complaint against the city you let me go back first to the the arguments of the special prosecutor mr weaver said that we asked for a list of granger e witnesses that's absolutely not what we asked for and that's clear from the plain text of the request itself we asked for documents efficient to show the names of everyone you know viewed by dan webb special prosecutors in relation to the david contra richard back yes it's certainly the case that the always p released a list of everyone who testified in front of the grand jury when they got permission to release their work but that's not what we asked for we asked for who they interviewed and they have reiterated again today their belief that i believe his words were there is no distinct there's it's a distinction without a difference for their part and parcel of each other that flies in the face of decades of law that says the granger is independent of the prosecutor the prosecutor has no obligation to present all the evidence it has to the grand jury whether that's additional additional evidence that might be in favor of a conviction or whether that's exonerat evidence that there can be no dispute that the two are distinct from each other and the very so your case and just justice ginsburg opinion when she was on the d c circuit in the senate of puerto rico case both talk about that distinction  because there was a grand jury doesn't mean that everything that happened was that everything the prosecutor did is an action of the granger it would reveal anything about the grand jury the in rape and the rape sorry one second it's entering grand jury investigation which is a rather generic name again says a distinction in the discussion of actions taken by government attorneys or officials does not reveal any information about matters occurring before the grand jury we get prosecutorial records all the time from the cook county state's attorney's office where i know there was a grain jury impaneled so this idea that we're asking for some revolutionary out of set of transparency into what happens at one of the grand jury that's just not the case there is a distinction between the grand jury and the prosecutor and that has nothing to do with whether the winston and strong lawyers you know where the he had were says winston and strawn at making the same argument if it was  if it was the cook county state's attorney's office that only does the divisions that only do criminal prosecutions are two separate distinct things and i i think if you look very closely at the center of puerto rico case in particular it talks about how different and th needs to be evidence that he in there things are saying eat they're saying even if it was a document shown to the granger e it wouldn't necessarily reveal you know the actions of the grand jury or the strategy of the granger e and there has to be actual evidence for the court to be considering so judge me didn't look at any of that evidence and under illinois education association in other cases this quote in the post courts have held that first exemptions have to be proven by clear convincing evidence there's got to be either detailed to say well just looking at these requests i can tell that everything would reveal what happened before the grand jury that completely or races the historic distinction between prosecutors and the grand jury itself  as to the questions about witnesses in what could be said you know concern about witness confidentiality again they released all those names already if that was really a concern i don't know how you can rectify that with  the decision to release the report and normally both entities here are relying on exemptions that not only would give a thirty to a government entity to withhold a document there are exemptions that require there to be an actual prohibition on releasing documents so if it's the case that the city the city's prohibited from releasing the subpoenas or it's the case that the special prosecutor is prohibited from releasing what we asked for then there was a prohibition on release of the report  judge two and violated the statute in the us p by a later the statute that's obviously not the case in the reason it's not the case is because this doesn't disclose matters occurring before the grand jury turning to the city's arguments  you can see in the record and you can see in our priests very clearly what the city's role was there was a protective order it was vague about exactly what it prohibited or not they went to the public access counselor public access counselor said that this protective order prohibits the release of some of those documents so either release them or go back and get clarification when they went back they didn't just say to those we have no dog in the fight here we have no horse in the race whatever your rule is fine we just want to know what lawsuit with went to the court and asked for the very protective order that they then turned around to try to you under section seven one eight prohibited them from releasing documents and that's because you're not supposed to use exemptions as a sword you're only supposed to use them is a shield and that laid out very clearly in the car in the concurrence in the carbondale case in the majority of the carbondale case in terms of the dissension between the weather the past could review whether the weather this order prohibited disclosure broken seems to be that because an agency took an action that's proof that the agency had authority to take that action that can't be just the pack only has the authority that's rated to it under the statu it as a clue to say should between improperly withheld being something that's relevant under in a lawsuit but not in the text you can even forget about that if that gets you hung up because there are plenty of other provisions that don't make sense if you apply  provision for settlement agreements section two point one the general assembly after public bodies had said oh we can't release these documents because there's a part because there's a confidentiality clause in settling remit general somebody says no insoles an absolute terms settlement agreements must be sommelier recently added to the statute in under their logic you know better whether that was a good or a bad road or whether the order made sense or not the mere fact that the order was entered then would become an absolute bar to releasing records that's completely contrary to the purpose of the freedom two cases and several secondary authorities on that the marriage of nights can yeah i see abbott versus ed it both expressly say it is not contempt when the order would require you to violate the law for as a law it requires the disclosure of records a less there is a nice the specific exemption that applies the city doesn't cite anything cities and towns beyond the order and therefore the city is the city is not obligated to follow the order but again that is a short term problem you don't need to be concerned about that situation in the future because if you hold as you should the individual judges cannot tell a public body to violate floy and that only the general somebody has the authority to make records exempt then this is not an issue that's going to occur so for these reasons we ask that