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State supreme court rules SA's subject to FOIA : News : Oswego Ledger-Sentinel : Hometown Newspaper for Oswego and Montgomery, Illinois
State supreme court rules SA's subject to FOIA
Request for assistant state's attorney's emails prompted lawsuit

by Matt Schury


Illinois State's Attorneys are subject to Freedom of Information Act (FOIA) requests.

That's what a recent judgment handed down by the Illinois Supreme Court said last week in a case involving Kendall County State's Attorney Eric Weis and Larry Nelson of WSPY radio in Plano. The case will soon be remanded to Illinois District Court, which will make a final judgment.

The Supreme Court ruled in favor of Nelson, saying that citizens can file a FOIA request with the State's Attorney's office.

Nelson filed such a request with Weis' office asking for emails that assistant state's attorneys had sent. Weis denied the FOIA request saying it couldn't be filed against his office. Nelson responded by filing a lawsuit in 2010.

"Mr. Nelson simply asked for public records, (Weis) raised the question of whether he is subject to FOIA," Nelson's attorney, Don Craven, said. "They've made the argument that because the office is created in the judicial article of the Constitution that they were not subject to FOIA ... and the Supreme Court very clearly said no."

The ruling mentioned by the court said state's attorneys are instead executive officers subject to FOIA like any other public office.

"Obviously I'm a little disappointed in the ruling but I understand the logic behind it and we'll just move forward," Weis said.

He added that he is not going to petition the Supreme Court for a rehearing.

"I have no reason to do that at this point," Weis said.

Craven explained that the theory that the office was exempt from the law had never been presented to the courts. Previously the trial court and appellate court had agreed with Weis.

"The Supreme Court said, 'not so fast,'" Craven said.

As far as the ruling, Craven said it's not so much what it changes as what it prevents.

"I don't think it will frankly change very much because many State's Attorneys have been responding to FOIA requests," Craven said. "Many state's attorneys, after the appellate court decision was issued, started taking the position-they followed Eric's lead-saying, 'We're not subject to FOIA, we're not subject to FOIA. Illinois citizens were not able to get records from many state's attorney's offices as a result of the lower court's decision."

Had the Supreme Court upheld the lower courts' ruling, Craven said, state's attorneys could start saying they are exempt from FOIA.

He pointed out that before the lawsuit began Weis already had a FOIA officer to respond to such requests. Craven said this perturbed him.

"If you're not subject to FOIA why in the hell would you name a FOIA officer?" Craven said.

In the court's opinion it states that Weis complied with Nelson's request producing over 2,000 documents that he asked for.

Craven said that his client continued to pursue this case because he only got part of what he had asked for.

"He was rather certain that he didn't get all of the emails that he was entitled," Craven said.

However, he noted that even though Weis is subject to FOIA he can still cite exemptions for not handing over certain public documents.

"Just because you're subject to FOIA doesn't mean that every single thing in your office gets turned over," Craven said. "There are many, many exemptions to the Freedom of Information Act so the sky is not falling."

For instance pending investigations, just as with police records, are not subject to FOIA and can be exempt under the law.

"We're back to being covered by the exemptions only, instead of the blanket prohibition like the Circuit Clerk's office or the judges or court services," Weis said.

Weis' point in the case was that his office is created under the judicial articles of the Constitution therefore it was exempt from FOIA.

"The interpretation under FOIA was that judicial bodies are exempt," Weis said.

One issue the lower court will now settle is whether the email server Weis' office uses is the property of the state's attorney's office or the county's administrative office.

Weis said if the court decides that the email server is property of Montgomery says 'no' to senior citizen panelcounty then his office would not be in charge of processing FOIA requests.

"If that's the case, then our attorney client privileges are in essence waived with other elected officials, the judiciary should be concerned because their documents are also on county servers," Weis said. "We have a bigger interest in this case than simply if we are subject to FOIA or not. The issue, number one, is that we have to protect our attorney/client records, we cannot disclose them, FOIA or not."

Weis wonders what else this sort of ruling would apply to.

"Does that mean the documents in the filing cabinets would be the county's, not ours?" Weis said.

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