A Cook County circuit judge has barred the publishing of details from hundreds of pages of internal Chicago Public Schools records that CPS released regarding the 2017 drowning death of a 14-year-old autistic freshman in the pool at Kennedy High School on the Southwest Side.
A CPS lawyer had released the investigative files and other internal records related to Rosario Israel Gomez’s death in late January in response to a lawsuit filed by the Better Government Association.
In September 2017, the BGA and the Chicago Sun-Times had published an investigation into the boy’s death that found a series of problems at the pool the day the teenager drowned. Three CPS employees ended up being fired as a result of the drowning, including a lifeguard, and the school system instituted new rules on pool safety.
Within days after releasing the documents, CPS lawyer Ahmed Islam asked for their return, saying releasing them was a mistake.
On Monday, CPS went to court, asking Cook County Circuit Judge Peter Flynn to “claw back” the previously released records.
Flynn agreed, and Matt Topic, a lawyer representing the BGA, was back in court Wednesday, unsuccessfully arguing the judge should vacate his order, saying it was an illegal “prior restraint” on a free press.
The judge ordered the BGA not to publish what the records say until at least Feb. 20 so he could review them and determine which portions aren’t covered by privacy restrictions and can be made public.
“There is no emergency here in any meaningful way,” Flynn said at the hearing Wednesday. “I don’t think it’s a prior restraint . . . I am not going to declare World War III in the context of this report.”
Topic responded: “The fact is, your honor, to the press, any prior restraint is a declaration of World War III. 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.”
Flynn said the BGA was trying to play “gotcha,” having obtained the documents through an inadvertent disclosure.
“No, they obtained it by doing nothing other than seeking the document that was given to them,” Topic said.
An appeal of the judge’s ruling is planned.
Brendan Healey, a Chicago media lawyer who was at Wednesday’s hearing on behalf of the Washington, D.C.-based Reporters Committee for Freedom of the Press, said he can’t remember any previous instance in which a prior restraint order was issued by Illinois’ courts.
“It’s a big deal,” Healey said of Flynn’s ruling.
The U.S. Supreme Court has ruled in the past that the courts can’t order the news media not to publish a story except in cases of national security.
Healey said the Supreme Court has never upheld a prior restraint order against the news media.
“When the press is told they can’t speak about something they have lawfully obtained, that presents a serious constitutional issue, and the threshold for overcoming that is really very high,” Healey said.
Mara Warman, another CPS lawyer, was in court Wednesday and told Flynn that the school system was wrong to release student records without a judge’s order and that CPS wants only to follow the law and preserve student privacy.
David Kidwell is an investigator with the Better Government Association. Lauren FitzPatrick is a Sun-Times reporter.