309-788-5079 [email protected]

State’s Attorneys Are Subject to the Freedom of Information Act

Like the federal Freedom of Information Act, the Illinois Freedom of Information Act (“FOIA”) was put in place so that the average citizen has more access to the inner workings of their government. The Act was finalized in 2010, and it allows citizens to request information from certain governmental entities. Those entities are then required to disclose the requested information unless it is somehow protected by privilege or falls into one of the narrow exceptions to the law. The basic premise behind the act is that “the public has a right to know what the government is doing.”

According to the FOIA, “all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.” Further, this type of access “is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.”

Only public bodies are subject to FOIA, and it does not include the judiciary. However, most court proceedings are open to the general public, so there is a limited amount of information that is excluded under the judiciary exception. Recently, the Illinois Supreme Court clarified who is included by further defining “public body.” In that case, a reporter in Kendall County requested a series of e-mails on certain topics from several Assistant State’s Attorneys. In an effort to avoid producing the e-mails, the State Attorney’s office claimed, among other things, that they were part of the judiciary and therefore not subject to FOIA.

The Illinois Supreme Court explained that the law itself defines a “public body.” The definition includes legislative, executive, administrative, and advisory bodies of the state. It also includes state universities and colleges, counties, townships, cities, villages, and municipal corporations. The definition is meant to be extremely broad, to enforce the “principle that the people of [Illinois] have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of the government and the lives of any or all of the people.” However, the broad definition purposefully leaves out the judicial branch.

The State’s Attorney’s office argued that they are part of the judicial branch, likely because of their close connection to the judicial branch. However, the Court pointed out that case law for at least the past two decades has assumed that the State’s Attorney’s office is part of the executive branch. As part of the executive branch the State’s Attorney’s office easily falls into the definition of a “public body.” The Court also noted that the Illinois Constitution vests judicial power in “a Supreme Court, an Appellate Court and Circuit Courts.” It does not mention the State’s Attorney’s office in this definition. Further, there is nothing in the statute that would change case law conclusions, and the Court assumed that the legislature knew that the State’s Attorney’s office was considered part of the executive branch when they enacted the law. After making this conclusion, the Court determined that the State’s Attorney’s office should provide the documentation requested as required by the FOIA.

The FOIA is a useful tool that allows interested citizens to maintain a close watch over their government. McCarthy, Callas & Feeney is knowledgeable in open records laws and if you have any questions about this case or open records law in general, please give us a call at (309) 788-2800. We are happy to help you with your legal needs.


Phone Number:


My legal question is related to: