BGA_prior restraint_021119

Illinois County judge orders watchdog publication not to publish school records released by lawyer

February 12, 2019

A Cook County judge ordered the the Better Government Association, an Illinois investigative government watchdog, not to publish records released by Chicago Public School lawyers during a lawsuit brought by the BGA. BGA detailed the context of this order in an article published on Feb. 7.

The article reported that a CPS lawyer supplied BGA with requested investigative files and internal records on Jan. 24. Four days later, the school’s lawyers asked for their return and the destruction of any copies that had been made, claiming that their release had been a mistake.

The lawsuit and files pertained to a 2017 BGA and Chicago Sun-Times investigation which revealed that a 14-year-old boy with autism was permitted to enter a school pool with neither direct supervision nor a life vest. They reported that the boy drowned within minutes.

When BGA refused to return the released files, CPS attorney Mara Warman asked Circuit Court Judge Peter Flynn during a hearing on Feb. 4 to “claw back” the records. Flynn ruled in their favor, ordering that BGA delay publishing the records until at least Feb. 20. Following an emergency order from BGA to vacate that order, Flynn reaffirmed his ruling on Feb 6.

“Just hold your horses,” Flynn said during the second hearing, BGA reported. “There is no emergency here in any meaningful way… I don’t think it’s a prior restraint. I think it’s efficient management of a case.”

BGA attorney Matt Topic disagreed. “You have the press, which has a highly relevant, important document that they obtained through nothing illegal and you are restraining them from publishing that document where they have an ethical and professional obligation,” Topic said.

Bob Secter, senior editor for BGA, told the U.S. Press Freedom Tracker that Topic reached out to the deceased child’s parents to have them sign a paper authorizing the release of the materials. Based on that release, Flynn vacated his order to delay publication. Some of the documents did have the names of child witnesses to the incident redacted, as well as their social security numbers and other private information.

BGA published an article on Feb. 8 about the judge vacating the original order and what was in the documents.

“This started as a simple FOIA case,” Secter told the Tracker about BGA’s use of the Freedom of Information Act. “We wrote a story with the Chicago Sun-Times reconstructing that incident and how it came about and who might have been responsible and who made mistakes. As part of the reporting on that, we issued a FOIA… As the Chicago Public School does, they basically blanket deny everything, so we filed a lawsuit, and they fought us for well over a year.”

The child’s parents had also sued CPS for wrongful death, reaching a $4 million settlement which was approved by the Illinois Board of Education the day before the documents requested in the FOIA were released to BGA.

“[The prior restraint] was entirely out of the ordinary. Outside of national security cases this doesn’t happen, and, not to minimize what we did, but it was an everyday case about a tragic accident and the subsequent legal case,” Secter said.

U.S. Supreme Court precedent has held that prior restraint—in which government officials seek to block information from becoming public—is unconstitutional in all but the most extreme circumstances.

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].

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