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A lock on public access?

State’s attorneys no longer must share records

Last year, in his final days as Lee County’s state’s attorney, Henry Dixon released emails that showed his office had engaged in political activity.

Dixon, who had just lost a bid for re-election, gave up the emails upon the request of Sauk Valley Media in November. 

He did so because of the state Freedom of Information Act, which requires that most government records be made available to the public.

These days, though, the new state’s attorney, Anna Sacco-Miller, might keep such emails under wraps.

Sacco-Miller and other state’s attorneys now say they aren’t subject to the Freedom of Information Act. They cite a Second District Appellate Court ruling in May that says the state’s attorney is part of the judicial branch and, thus, is not required to follow the public records law.

The court was responding to a lawsuit filed by a Kendall County radio station owner, Larry Nelson, who was seeking emails from the office of the state’s attorney in his county. The state’s attorney general filed a brief in support of Nelson.

Sacco-Miller, Whiteside County State’s Attorney Trish Joyce and Ogle County State’s Attorney Mike Rock are among those who no longer release records to requesters. For instance, Joyce won’t divulge her proposed budget for next year, citing the court decision.

Sacco-Miller said state’s attorneys are sworn to uphold the law as created by the legislative branch and interpreted by the courts.

“Likewise, this office has clearly established it will not tolerate political campaigning by, on or through the Lee County State’s Attorney’s Office,” she wrote in an email.

Because of her new policy, though, the public would have no easy way to find out whether Sacco-Miller is following the state ban on political activity in government offices.

‘These guys aren’t idiots’

Upon request last month, the Sterling Police Department released records in a case that resulted in the conviction of two men for attacking another man. The documents included victim Benjamin Brainerd’s witness statement. He said the two men, James and Nicholas Velasquez, had invaded a private home, asked him whether he was gay, and attacked him when he said he was.

The police said they didn’t have the statements from other witnesses, pointing Sauk Valley Media to the Whiteside County state’s attorney’s office, which had interviewed the other witnesses.

Joyce, however, denied the request for the other statements, citing the court decision. While the court ruled that state’s attorneys do not have to provide records under the law, they may release the information if they want.

In an email to Sauk Valley Media, Assistant State’s Attorney Brian Brim said his office had decided to lower the charges for the two attackers, in part, because of several witnesses who “claim that the altercation was not as represented by Mr. Brainerd.”

But because of the new policy, the public is not allowed see those witness statements for itself.

Don Craven, an attorney for the Illinois Press Association, said the state’s attorneys’ policies are no surprise.

“These guys aren’t idiots,” he said. “If they want to keep something under wraps, they’re going to figure out lawful ways to do so.”

As for Whiteside County’s decision to keep the witness statements secret, Craven said: “Why should we trust them? If they’re going to make statements, why not give the underlying documents?”

State’s attorneys ‘off the hook’

In its arguments, the Kendall County state’s attorney’s office noted that the Freedom of Information Act applied to executive and legislative branch agencies, but does not include the judicial branch. The state constitution lists state’s attorney’s offices under the judicial article.

The Kendall County radio station contended that state’s attorney’s offices, in reality, act as part of the executive branch, pointing to court decisions that stated just that.

The appeals court, however, ruled for Kendall County, saying its decision relied on the wording of the constitution.

The station’s owner, Larry Nelson, whose company also has radio stations in DeKalb, said he had received, through other sources, copies of emails generated by the Kendall County state’s attorney’s office that included political and pornographic content.

He said he wanted to see whether the state’s attorney had other such emails.

“The appellate ruling has an effect statewide,” he said. “This takes every state’s attorney in the state of Illinois off the hook.”

He has an appeal before the Illinois Supreme Court.

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