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Autopsy reports frequent target of new open government law
By Bob Susnjara | Daily Herald Staff

Former president of the Chicago Board Of Education Michael Scott


Associated Press

Christopher Kelly, former chief fundraiser for ousted Gov. Rod Blagojevich


Associated Press

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Published: 7/19/2010 12:05 AM

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Rejected requests for autopsy reports have been among the most frequently disputed cases landing before Illinois' top law enforcement agency under a new law aimed at making it easier to get information from government officials.

And while many of the requests for information have come from average citizens, it's the media's push for the autopsy files of ousted Gov. Rod Blagojevich's fundraiser Christopher Kelly and Chicago Board of Education President Michael Scott that might go the farthest in setting legal precedent.

It's been six months since the revised Freedom of Information Act took effect on Jan. 1. Under the new law, the Illinois attorney general can force a governmental unit to disclose documents through a binding opinion. Those seeking information from a local government can appeal a denial with the attorney general.

Cara Smith, the attorney general's public-access counselor whose unit oversees FOIA disputes, said the most time-consuming cases involve documents with sensitive information, such as the autopsy files and police reports on sexual assault. Rulings on whether all or portions of the material should be released are setting precedent, she said.

"There are some tremendously complicated (matters) we're being called on to decide on personal privacy," Smith said. "When it comes to personal and private information, we take those cases very seriously."

The office issued a letter June 4 stating the Cook County medical examiner must release parts of autopsy reports in the high-profile suicides of Kelly and Scott. The decision came in response to the medical examiner seeking attorney general permission to deny local media FOIA requests for the complete autopsy reports on the men, who died in separate incidents in 2009.

Smith wrote in the opinion that the autopsy documents could not be characterized as medical records for Kelly and Scott. Photographs of physical evidence that are part of the files related to Kelly's and Scott's deaths also were judged suitable for release, but not those taken of their bodies.

"The graphic photographs of their bodies postmortem are highly personal and their disclosure would be objectionable to a reasonable person," Smith wrote in the ruling.

Smith said the medical examiner may appeal the opinion in Cook County Circuit Court, as allowed under the new FOIA. Richard Velazquez, a special counsel to Cook County Board President Todd Stroger who handled the medical examiner's FOIA cases, could not be reached for comment.

In his argument to reject the autopsy report requests in their entirety, Velazquez cited how the Kelly and Scott families wanted privacy. Attorney general documents show Scott family lawyer Enrico Mirabelli, who could not be reached, submitted a letter to the county asking that "any and all records" pertaining to the school board president's death be withheld from the public.

Autopsy files have become among the most requested - and rejected - documents under the new FOIA regulations. But they're just some of the nearly 2,500 cases that have landed on the desks of the nine lawyers in the FOIA unit.

The heavy volume is a good thing, say government watchdog groups. FOIA requests that died quickly in the past - in part because those seeking documents needed to pay for legal fees in a civil court fight - have had a fair chance to become public because of the attorney general's work.

"The fact there has been an enormous amount of (matters) filed with the public-access office justifies its existence," said Terry Pastika, who heads the Elmhurst-based Citizen Advocacy Center, a group that monitors government abuse of power.

While proponents say the stronger FOIA should create more open government and make it easier to get information, opponents remain concerned about extra costs and burdens on public employees -- and taxpayers.

Brian Day, an Illinois Municipal League staff attorney, said the law's new requirement that a FOIA response must be made within five business days instead of seven can drive up expenses by taking workers away from other duties on the taxpayers' dime.

"Almost none of (our concerns) are about keeping information secret," said Day, whose organization represents the interests of local governments statewide. "It's about procedure and process."

An estimate on what the attorney general's work specific to the FOIA cases has cost this year is not available. The office has received appeals of FOIA denials and governments seeking advance approval to reject document requests, along with a smattering of open meetings disputes. In all, 2,474 cases have been opened and 891 await a decision.

Governments that improperly withhold documents can be fined up to $5,000 as part of the beefed-up law. Smith said she hasn't found governments to be a problem since the new FOIA became effective in January.

"When I get a sense a public body is acting in good faith, that's what it's all about," Smith said.

Day said the Illinois Municipal League issued 13 points of concern after the FOIA changes. One point, he said, is that public bodies need the right to ask reasonable questions about FOIA requests, which the law doesn't allow.

Smith said governments may ask requesters what they specifically want from documents sought in a FOIA - just not why they are seeking the information.

She said it's been a learning process for both sides.

Joseph Calomino, director of the Americans for Prosperity watchdog group's Illinois chapter, said he expects more amendments to FOIA. An amendment early this year exempted evaluations of public school teachers, principals and administrators.

"It was a necessary law," Calomino said. "It's not a perfect law, but it needed to be done."