two thousand and one young woman by the name of their tone which was traveling through livingston county stopped at a rest stop just outside of pontiac and while there she was attacked through eat and kicked  stomped left to die in the bathroom for that rest fortunately her killer was quickly have her handed and convicted at his sentencing hearing the judge viewed photographs of the crime scene and noted the brutality off lead she's entitled to view those photos to view those materials to see you know read about the brutal heinous attack that she suffered for which died and he believes he can do office has requested this on behalf of the livingston county state's attorney's office we are in opposition we don't feel that the freedom of information act extends filmore state's attorneys and we believe that the plain reading of the constitution of the illinois and the statute the judicial article article six in my constitution and that's where we've been since our first inclusion into the constitution first inclusion i would have been an eight hundred forty eight constitutional though that was never ratified but then in the eight not in office at that time i have read the briefs it's my understanding that the court in the lower level determined it was a case in controversy and made a ruling that ruling adverse to us and so we believe that the  let's say or the court might say to the a g forget about you know i mean it's nice that you have that did we do your lot with attorney general opinions sometimes we think they're correct find myself here answering for an appeal that was filed before i took office and i'm sure i am answering to the best of my ability i believe that based on what the court ruled that the lower level i think it may have been more than just musing or dicked i think the  within the first thirty days of taking office was not aware of this case other than having heard about it in general so once i got it on my desk and knew about this argument you quite honestly or i began honing in on the issue of whether or not states attorneys subject for it i didn't hone in on whether or not the procedural posture properly brings it before the court i was somewhat under the assumption that with that in mind may  quite simple when looking at it states attorneys are created in the judicial branch that branch is specifically excluded from the freedom of information act and that supported by case law and it's a tenant of statutory  constitution that they specifically exempted that in for good reason and they specifically exempted the judicial branch and that's supported in cases such as drury supported by reinterpret the clear structure of our constitution so that it can be in keeping with the statute it's the reverse it should be true to a statute should be read in keeping with the constitution and the statute should be one to be reinterpret pelleas would argue that the court should do just that should we interpret the structure of the constitution because the foyer act had hoped to include the state's attorneys even though it was never mentioned and even the state's attorneys found the judicial branch and it was simply included it was their hope and intent that state's attorney should be included in that this material should be subject and so therefore the court should reinterpret the state's attorneys as they stand the constitution case and coming to that conclusion because they say that the coakley case created a functional test a functional approach to determining whether or not somebody falls within a particular branch of government and thus whether or not they would be subject to act but in looking at hopefully it becomes clear that the only reason that that functional tester approach was applied was because the agency or department in that case was not founded in the constitution was a pretrial services agency where the fall or the executive or the legislative or the judicial well it's not clear from looking at the constitution it's not clear from looking at statute so we need to formulate some sort of test that's fine for pretrial services agency or for somebody who's not in the constitution when it comes to a state officers civically name in the constitution and found it under a particular article then it's not such tess's need it's already there in the clear structure language and that's why pope we shouldn't have wait in terms of determining whether or not the judges including clerks and apparently based on totally including pretrial services agencies and in the case of each opinion which i know it's not binding precedent in the case of mcmorrow in that case to be an executive but the cases that they cite and i would encourage the court or its clerks to check some of the citations of these cases which are cited by the have a week wherein they state that the state's attorneys are members of the executive branch if you're to go back and check those sites ultimately you work their way back to a handful of cases and those handful of cases will fall into one of two groups the first group will be a handful of cases that merely make a loser statement with no constitutional now sisters or why the state's attorneys will be considered executive or a prosecutor is automatically in the executive branch the second group of cases you'll find are a group of cases were related to attorney generals u s attorney general and the illinois attorney general and they say the attorney general as a prosecutor is the attorney general is founded in the executive branch and so therefore their executive that's true but are in general if it's founded right there in the constitution under the executive article and is specifically named as an executive officer but that is not true for state's attorneys however over time that those findings have been used to simply mak statements that states attorneys are members of the executive branch and i would search for something that case i'm not saying there are cases out there that may have a constitutional mouses which would indicate that we fall under the executive branch but they're not named any of these are also in addition to the constitutional issues that we are also public policy issues that separate states attorneys from other prosecutors and the f b i we in their briefs and in their arguments try to say well other prosecutors are doing it so you have to also and to that i would say i believe that argument went out the door at high school everybody else and it's you must also the other prosecutors that they mention is a prosecutor's an attorney generals are both not founded in the judicial branch of the founded there and as a public policy issue we're also in a unique position in terms of being a record and i'm speaking of the act in general and i think the act in general the freedom of information act was designed and i believe the intent was to shine a light on the government to shine light on potential corruption misuse of funds those are the types of things that i believe the freedom of information act was initially intended to be used not so that we can go in and dig up dirt on other individuals who are innocent victims and families was really the intention when they created this act that an individual down the street could find out that maybe you had been involved or been the victim of a rape had been the victim of a sexual assault should they be able to go to their local prosecutor and say i want to get those reports you can read back their name if they want i know who it is i want to read the details and with today's technology being what it is that information is just a few clicks from being distributed to the world so now somebody who's been sexually assaulted who's been degraded and attacked now there are words which they told to police officers of sexual prosecutors the descriptions of the acts that happened to them the words of the defendants the cold defendants who sometimes will in great detail lay out what it was that they did to these victims that is what needs to be given to the public to improve our government those are the things that are going to help make us have a better governmental system and make sure that there isn't corruption and shine a light on misuse of funds not just digging for dirt they're looking for information if they're curious about information that they can do whatever they want with once they have they can spread it to whomever they want they can post it on the internet for all the see any fetish site or any hate site or about hate crimes that you tail these things should those reports and the testimony of those victims then you plastered up on internet sites espousing more hate against the same people is that what the intent was behind this attack i would argue that it was court should affirm the trial court's decision dismissing the state's attorney brown's complaint as it pertains to the attorney general for two independent reasons the first is that there is no actual controversy between states attorney brown and the attorney general and the second is for the reason that the trial court ultimately reached and that is that state's attorneys are not a part of the conditional branch of government and therefore they are subject to i will start first with the actual controversy requirement and actual controversy which is a requisite for declaratory judgment action requires an expression of intent to take legal or some  other adverse action against another party in the absence of such an expression of intent the court is being asked to simply issue and advisory opinion on a state of facts that hasn't arisen and might never arise and that is exactly what occurred here in so far as the trial court relied on the attorney general's non binding advisory opinion that states attorneys are subject to floyd that opinion is not enforceable against act that is correct and that would be solely between the state's attorney and new preposterous we're asking that the attorney general be dismissed from the lawsuit so i will then move on to the specifically on two points one is sort of a policy based argument that your state's attorneys are subject to for invasions of privacy will result back however is addressed not by the judicial exemption i addressed by section seven a four year which specifically allows information to be withheld if it's personal information contained within public records the disclosure of which would constitute a clearly warranted be met but it may well be a man and so but to the extent that the state's attorney has concerns about invasions of privacy he should have invoked the section seven exemption and we could be here talking about whether that applies we could have seen the pictures in the materials he but i don't know the answer to that question because while the public access counselor reached out to the state's attorney's office to ask to see in confidence the documents they were and the materials they were never provided so read we don't know what what they were what the on the fact that state attorneys are identified in the judicial article of the constitution but the illinois supreme court's decision in them and send makes clear is the location of states attorneys in the judicial article this sort of a historic anomaly arising from the fact that at the time they were put there the drafters did that to make clear that they were state rather than county officials in government and is very clear on this point and discussion of the drafting history of the one nine hundred seventy constitution and it was not the egyptians were not put in the judicial article interment says to distinguish them as judicial rather than executive officers and in fact their least six decisions of the illinois supreme court since the one nine hundred seventy constitution applying the functional approach and saying that states attorneys exercise executive functions and therefore they are part of the executive branch of government and there branch of government so the state's attorney's argument this morning that they're a part of the jewish judicial branch is certainly not the view of the wife was there who broke through for that case involves the question the circumstances court cases and it would also raise very serious separation of powers concerns because the reason the illinois supreme court has held the feet of the united states attorneys are part of the executive branch of government is to unconstitutional infringement i've states attorneys authority i did you do sherry in each of these cases state attorneys were arguing that they're part of the executive branch of government and the illinois supreme court agreed  reasons why circuit clerks are different the first is a purely pragmatic reason and that is fit circuit clerks house judicial records so circuit courts were subject to for the judicial exemption would be essentially a that is not true of state attorneys and the third reason is a textural reason and that is in the constitution the constitution describes circuit clerks as officers of the court it does not describe state's attorneys the same play so for three very important reason circuit books are distinguishable from states attorneys so just to conclude for two reasons therefore we would request that this court affirm the trial court's judgment dismissing the complaint asked to the attorney general first because the attorney general's non binding advisory opinion did not create an actual controversy between the state attorney and the attorney general and second because the trucker correctly concluded that state s attorneys are not entitled to the judicial exemption oir because they are not part of the judicial branch  request that was of cording to the state's attorney he is not subject to the for yes what he didn't claim is an exemption and for you provides for several dozen exemptions in section seven of the of information act those exemptions include the personal privacy exemption and person photographs of murder pictures have been held to be exempt under the personal privacy and of course you have to look at the question the entire file including the photographs if there's photographs in the file which we don't know because we were never provided and i may say she didn't have that file then those would certainly be covered by the group but there might be state's thirty's office would it be subject to request by anyone who is now sitting in prison as a result of the  open with respect to every other public by the state agency and even for the courts obviously the courts are not covered by the oh yes but they too are under an obligation to disclose records and that is a very good thing because that is how corruption  covered in that is also how the public knows with the with the elected official is doing that is a good thing so we find out without limitation  was requested and the counter believe me a question ultimately is that it but i guess that it is a ruling on this on the substance of this case which is whether we want  difficult in a criminal case for a defendant to get a fair trial because he's being prosecuted by the same entity that's supposed to be giving him a fair trial that's what we need in a supposed to be a fair and impartial decision maker an actual controversy you know that on the counter claim there certainly isn't an actual controversy it's not a declaratory judgment action it's a regular claim under the freedom of information act and the freedom of information act says that  the burden is on us to prove it with clear and convincing evidence that the stuff should have turned over and also on that same note whose privacy issue is in question i believe the freedom of information act this the privacy of the person whose name is the privacy of the person whose body and the plaintiff's complaint based entirely on the proposition that his office is not a public body is dismissed with prejudice so i think that there is what provides us the opportunity to come before this court and state that even if procedur same rela if you live in the same house even if you're on separate sides of the house then there's automatically separation powers problem that's that's not the case there have to be actually action on the part of the to sherry or on the part of the executive invading into each other province before you would have maliciously so but i believe very diplomatically put try to put in referring also to the state's attorney's association meekest brief that is a case where i think there's more on and i know she didn't