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Ill. attorney general takes on governor in FOI fight

By Douglas Lee
Special to the First Amendment Center Online

Maybe Lisa Madigan was worthy of the Sunshine Award after all.

A year ago, the Society of Professional Journalists presented Madigan, Illinois' attorney general, a Sunshine Award at its 2005 national convention. That presentation generated considerable controversy within SPJ, as many members argued that Madigan’s role in a case limiting the First Amendment rights of the college press demonstrated she was not a friend of free speech.

While Madigan did file the appeal that persuaded the full 7th U.S. Circuit Court of Appeals to overrule a panel decision in Hosty v. Carter, her recent challenges of Illinois Gov. Rod Blagojevich leave little doubt about her commitment to sunshine in government.

On Oct. 26, Madigan, through Assistant Attorney General Terry Mutchler, said the Illinois Freedom of Information Act required Blagojevich to release copies of federal grand jury subpoenas directed to his office. U.S. Attorney Patrick Fitzgerald for months has been investigating allegations of hiring fraud in state agencies under Blagojevich’s control. Blagojevich last November acknowledged receiving four grand jury subpoenas but since then has refused to confirm the issuance of additional demands for records.

“Our research has disclosed no federal or state statute, rule or regulation that specifically prohibits an officer or agency of the state of Illinois from releasing a federal grand jury subpoena pursuant to a FOIA request,” Mutchler wrote to Blagojevich's general counsel. “Without legal support, the office of the governor and the agencies under his control cannot withhold federal grand jury subpoenas in their possession and must release these documents pursuant to a FOIA request.”

Blagojevich, who appears to have a comfortable lead in his bid for re-election on Nov. 7, rejected Madigan’s opinion.

“We didn’t request an opinion on this topic, but we appreciate the attorney general office’s advisory input,” Blagojevich spokesman Abby Ottenhoff said. “We’ll continue to comply with that original expectation and the request of the U.S. attorney to keep all matters that are related to federal investigations confidential,” Ottenhoff added, referring to secrecy Madigan’s office sought for subpoenas it issued as part of an earlier investigation of Blagojevich’s administration.

Madigan’s directive to release the subpoenas came just days after Madigan said the state FOIA required Blagojevich to release names and qualifications of unsuccessful state job applicants.

These names and qualifications, which are contained in documents called “eligible lists,” are defined as public records in the Illinois Administrative Code. In refusing to release the lists, however, Blagojevich has relied on a 1984 federal appeals court decision interpreting the federal FOIA. Madigan, again through Mutchler, said the state’s office of Central Management Services was bound by the Illinois regulation, which it had followed in another instance.

“CMS is obligated by its own rules to provide public access to such lists,” Mutchler wrote. “CMS has recognized this requirement by providing an eligible list . . . in response to an earlier FOIA request.”

CMS, however, said it would not follow Madigan’s opinion, at least for existing lists, citing the 1984 federal court decision. “Since our state privacy laws are based on federal statutes, and statutes always trump administrative rules, we believe it would violate the law to release application lists,” CMS spokesman Justin DeJong said in an e-mail to the Associated Press.

However, when new application forms are printed, they will include a notice to applicants that information they provide will be open to the public, DeJong added. That notice will permit CMS to release future lists and still comply with the 1984 precedent, DeJong said.

Even though Blagojevich and Madigan are both Democrats, their battles have significant political undertones. Madigan’s father, Michael, a Chicagoan who is speaker of the state House of Representatives, has long fancied himself — rather than Blagojevich — the leader of the Illinois Democratic Party. Many believe Michael is angling to make his daughter the Democrats’ gubernatorial candidate in 2010, and Lisa has gone so far as to refuse to endorse Blagojevich for re-election. Nevertheless, Lisa Madigan’s recent confrontations with Blagojevich do not appear to be politically motivated.

Madigan, after all, created the public-access counselor position in December 2004 and appointed Mutchler, a former Associated Press reporter, to fill it. In her first year on the job, Mutchler handled more than 1,000 freedom-of-information and open-meetings cases and conducted 75 training sessions around the state for government officials, media representatives and interested citizens.

Madigan also defended the public interest in open government in early 2005, when she said two members of the Illinois Commerce Commission violated the state’s open- meetings act when they lunched with two executives from Peoples Energy, a gas company that at the time was trying to block the commission’s attempt to force the company to refund more than $149 million to Chicago area consumers.

“Members of the public,” Madigan’s office said then, “have a right to be assured that the business of the Commission is conducted objectively and without improper outside influence or the appearance thereof, as required by law.”

The standoff between Madigan and Blagojevich over the release of the subpoenas and the eligible lists is unlikely to end quietly. Blagojevich’s desire for secrecy will only increase after his friend and fundraiser Tony Rezko's Oct. 11 indictment for allegedly seeking millions of dollars in kickbacks from firms seeking state pension business and in the face of insiders’ predictions that Blagojevich himself will be indicted after the election. Madigan, on the other hand, has demonstrated she is not intimidated by the governor and that she is a worthy fighter for open government.

So stay tuned. The next few months in Illinois should be very interesting.


High court won't hear campus newspaper appeal

Without comment, justices decline to take Hosty v. Carter, in which 7th Circuit held that public college could regulate campus newspaper's contents. 02.21.06

Calif. expands freedoms for college press

By Melanie Bengtson New law will give student publications at public universities same free-press rights that professional media enjoy. 09.22.06

Ill. governor fights order to release federal subpoenas

Lawyers for Rod Blagojevich say they have new, secret evidence that warrants keeping documents sealed. 02.11.08

Ill. appeals court: Governor must disclose subpoenas
Ruling upholds lower court decision ordering Rod Blagojevich to comply with FOIA request for subpoenas sent to his administration by federal corruption investigators. 11.21.08

Overhaul of Ill. laws on open records, meetings goes to governor
Senate votes for bill 58-1; measure would narrow many loopholes in current laws, create 'public access counselor' in attorney general's office. 05.29.09

Ill. governor signs open-records bill
New law establishes first-ever fines for FOIA violations, provides public-records training for government employees and gives attorney general's office enforcement authority. 08.18.09

Hosty ruling on college press leaves heads scratching
By Douglas Lee Full 7th Circuit's confusing approach to campus-newspaper case leaves uncertain legacy. 06.29.05

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