By Jay Stewart
Editor’s Note: While we’ve had the testimony before the Illinois House Special Investigative Committee of Cindi Canary of the Illinois Campaign for Political Reform posted on the site for several days, I just noticed that I missed the earlier testimony of Jay Stewart of the Better Government Association. The subpoeanas in question in the testimony have finally been released to the BGA, which issued this statement on Monday. And now, on to Jay’s testimony.
December 18, 2008 – I would like to thank the Committee for the opportunity to testify today.
The events of last week are deeply troubling and as a result the functioning of state government has been seriously impaired and will remain so as long as Rod Blagojevich remains Governor.
Our state is in crisis and the Better Government Association (“BGA”) supports the action taken by the General Assembly by initiating these impeachment hearings. The removal of an elected official is an extraordinary event, but we are not living in ordinary times. These hearings must proceed in a manner that promotes public confidence in our government. It is imperative that the people have confidence in our rule of law, as embodied in our Constitution, and in our elected officials. Therefore, all interested parties to these hearings must be provided with an opportunity to be heard and due process must be preserved. To the extent that my testimony can assist the General Assembly in these important proceedings, I am pleased to be a part of the process and look forward to answering any questions that you may have.
It is my understanding that the Committee is interested in the BGA’s successful litigation with Governor Blagojevich over his refusal to produce federal grand jury subpoenas we have requested under the Illinois Freedom of Information Act (“FOIA”). I will try to summarize events surrounding the litigation. In addition, I am submitting exhibits connected to the litigation, including a transcript of the trial court’s ruling and the written opinion of the 4th District Court of Appeals to supplement my testimony.
The BGA is a nonprofit civic watchdog group based in Chicago. Since 1923 the BGA has been dedicated to combating waste, corruption and inefficiency in state and local government.
In order to achieve our goal of improving the operation of state and local government, the BGA has traditionally relied on the tools of investigative journalism to expose wrongdoing in government and working with mass media to educate the public on our findings. Accordingly, the BGA uses FOIA on a regular basis.
During the summer of 2006 the BGA, along with many others, read news reports that Governor Blagojevich’s office had recently been subpoenaed by federal investigators. At least one such news report in the July 21, 2006 edition of the Chicago Sun-Times stated that the Governor’s Office refused to discuss the subpoenas.
Shortly after reading the Sun-Times article, on July 24, 2006 the BGA sent in a FOIA request to the Office of the Governor asking for copies of federal grand jury subpoenas issued to that office. The request was copied to the Public Access Counselor in Illinois Attorney General Lisa Madigan’s office.
On August 7, 2006, counsel from the Governor’s Office responded with a denial. The letter stated “[a]s you know, this Office cannot confirm or deny the existence of the documents requested.” Never in my experience with a FOIA request have I ever received such a bizarre response. The letter went on to state that “even if this Office were to have documents responsive to your request, such documents would be exempt from release under Section 7(1)(a) of the Freedom of Information Act.” Section 7(1)(a) of the Act prohibits the disclosure of information if such disclosure is prohibited by federal or state law, rule or regulation.
On August 31, 2006, the BGA appealed the denial to Governor Blagojevich. The appeal contested the denial as improper, in part because hypotheticals are not grounds for denial and in asserting the exemption in Section 7(1)(a) the Governor’s Office failed to specify which federal or state law, rule or regulation prohibited disclosure. The appeal was copied to General Madigan and the Public Access Counselor among others.
On September 15, 2006, counsel from the Governor’s Office responded with a denial to our appeal.
On October 26, 2006 the Public Access Counselor copied the BGA on a letter written to the Governor’s General Counsel. The Public Access Counselor, aware of the BGA’s dispute with the Governor’s Office, informed the General Counsel that under the Illinois Freedom of Information Act, requests for copies of federal grand jury subpoenas must be complied with. Despite the letter, the Governor’s Office did not produce the subpoenas.
Before deciding to file suit under the Illinois Freedom of Information Act to compel production of the subpoenas, on November 7, 2006 the BGA wrote the U.S. Attorney’s Office for the Northern District of Illinois and asked if such litigation would be opposed by that office. We recognized that if the U.S. Attorney objected to the disclosure, the state court might find that release of the subpoenas would interfere with the ongoing investigation into “fraudulent hiring practices” being conducted by the U.S. Attorney.
On November 13, 2006 the U.S. Attorney’s office responded and did not encourage or discourage such litigation, but certainly did not assert that our action would interfere with the ongoing investigation.
On January 4, 2007 the BGA filed suit in Sangamon County against the Office of the Governor under the Illinois Freedom of Information Act seeking production of the subpoenas. (Attached as Exhibit J). Among the documents attached as exhibits was the letter from the Public Access Counselor to the Governor’s General Counsel. That same day the BGA informed the U.S. Attorney’s Office of our suit.
On August 7, 2007 the BGA filed an amended complaint. The amended complaint added Governor Blagojevich as a defendant and sought the same records as the original complaint.
To date, the U.S. Attorney’s Office has never asked the BGA to cease the litigation, and has not filed any pleadings with the state court to indicate that disclosure would interfere with the ongoing investigation.
The BGA filed suit for two primary reasons. First, the BGA believes the public has the right to know what is going on with its government. Public officials often seek to limit and control information when things go wrong. As the public pays for government operations regardless of whether they are run well or poorly, we feel the public should have a clear idea of what is happening with their government.
Second, the BGA believes that the law applies to everyone, even the Governor of Illinois. He has public records relating to a very important issue, namely that his office has been served federal grand jury subpoenas. Rather than ignore this unpleasant issue, it should be aired to the fullest extent possible. Simply being Governor does not mean public records laws don’t apply to you or your office. During a hearing in the trial court, Judge Kelley asked the Governor’s lawyer:
I do have one question for you Mr. Londrigan. Say a person receives a Federal Grand Jury subpoena from the Northern District of Illinois. Could that person be subject to either the contempt powers of the Court or criminal prosecution if that person voluntarily discloses that subpoena to somebody else?
MR. LONDRIGAN: No, sir.
The Governor acknowledged that the law and rule on which he relied on does not prohibit disclosure of the subpoenas, yet he has continued to deny access to the documents, continued to spend public dollars on private lawyers to fight our suit, and continued to defy the requirements of the Freedom of Information Act as enacted by the General Assembly.
On January 9, 2008 Judge Kelley ruled on the Governor’s Motion for Summary Judgment and the BGA’s Motion for Judgment on the Pleadings. Judge Kelley ruled in favor of the BGA, finding, in part, that Federal Rule of Criminal Procedure 6(e)(2) does not prohibit the disclosure of federal grand jury subpoenas due to a request under the Illinois Freedom of Information Act. In ruling in favor of the BGA Judge Kelley relied in part on the language of the Freedom of Information Act, “[p]eople have a right to know the decisions, policies, procedures, rules, standards and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.”
On March 3, 2008 Judge Kelley denied the Governor’s motion to reconsider.
Subsequently, the Governor appealed Judge Kelley’s decision to the 4th District Court of Appeals. After briefs and oral argument the 4th District Court of Appeals issued its opinion on November 19, 2008. The appellate court upheld Judge Kelley’s opinion. In ruling against the Governor’s argument that Rule 6(e)(2) prohibits disclosure of federal grand jury subpoenas under the Illinois Freedom of Information Act the court wrote:
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 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.” (Emphasis added).
The BGA has asked the 4th District to order the Governor to turn over the subpoenas we requested. The Governor has asked the 4th District to refrain from ordering production while he decides whether to appeal to the Illinois Supreme Court.
According to published reports, the Governor has spent more than $150,000 in legal fees in this matter and a similar suit in Cook County despite the clear provisions of state law.
That concludes my summary and I would be happy to answer any questions the Committee may have.
Posted on December 30, 2008