Debbie L. Berman
Wade A. Thomson
Jenner & Block LLP
353 N. Clark Street
Chicago, IL 60654-3456
Ms. Berman is co-chair and Mr. Thomson is a member of the Firm’s Media Law and First Amendment practice group.
Special thanks to associates Alexander Cottingham and Jocelyn Sitton, who assisted in updating this chapter and to the following people for their contributions to previous versions of this chapter: partner David P. Sanders, former associates Sabrina Guenther, Vaishalee Yelandi, Nika Arzoumanian, and Theo Lesczynski, and former summer associates Daniel Quarfoot, Daniel Kelly, Abbas Khan, and Phoebe Scott.
Last updated January 12, 2023Compare
Open Courts CompendiumCompare
I. Introduction: Access rights in the jurisdictionCompare
A. The roots of access rights
Illinois law recognizes the constitutional presumption of access: “Judicial proceedings in the United States are open to the public – in criminal cases by constitutional command, and in civil cases by force of tradition.” A.P. v. M.E.E., 354 Ill. App. 3d 989, 993, 821 N.E.2d 1238, 1245, 290 Ill. Dec. 664, 671 (Ill. App. Ct. 1st Dist. 2004).
“In addition to the constitutional right of access, a parallel common-law right of access has developed.” People v. Pelo, 384 Ill. App. 3d 776, 780, 894 N.E.2d 415, 418-19, 323 Ill. Dec. 648, 651-52 (Ill. App. Ct. 4th Dist. 2008) (citation omitted). “The common law right of access to court records is essential to the proper functioning of a democracy; it ensures the public's ability to monitor the functioning of their courts and to form educated and knowledgeable opinions about their judicial system.” A.P. v. M.E.E., 354 Ill. App. 3d at 994, 821 N.E.2d at 1245, 290 Ill. Dec. at 671. See also In re Krynicki, 983 F.2d 74, 78 (7th Cir. 1992) (cited approvingly but for a different proposition by A.P. v. M.E.E., 354 Ill. App. 3d at 999, 821 N.E.2d at 1249, 290 Ill. Dec. at 675).
In addition to the constitutional and common law presumption of access to court proceedings, Illinois has provided for statutory access to public court records. Section 16 of the Clerk of Courts Act provides:
All records, dockets[,] and books required by law to be kept by [clerks of court] shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket[s,] and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereto.
705 Ill. Comp. Stat. 105/16(6) (West 2022). The statute “symbolizes the legislature’s determination that the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” Newell v. Field Enters., Inc., 91 Ill. App. 3d 735, 748, 415 N.E.2d 434, 446, 47 Ill. Dec. 429, 441 (Ill. App. Ct. 1st Dist. 1980). But the statute does not abrogate the court’s “inherent power to control its files and to impound any part of a file in a particular case.” Deere & Co. v. Finley, 103 Ill. App. 3d 774, 776, 431 N.E.2d 1201, 1203, 59 Ill. Dec. 444, 446 (Ill. App. Ct. 1st Dist. 1981). If the interests of the party seeking to prevent disclosure are sufficiently weighty, they will defeat the presumption of access. In Deere & Co. v. Finley, for example, the court refused to allow access to court records because access would have revealed trade secrets of one of the parties. Id; but see In re Marriage of Kelly, 2020 IL App (1st) 200130, ¶34, 174 N.E. 3d 950 (finding that the disputed materials contained no confidential information and that, at best, release would merely prevent embarrassment).
The right of access has been limited in certain circumstances by statute. Specifically, Illinois law allows the exclusion of certain spectators from sexual abuse trials where the victims are minors, though the law specifically exempts the media. 725 Ill. Comp. Stat. 5/115-11 (West 2022). Section 115-11 provides that “where the alleged victim of the offense is a minor under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media.” Id. (emphasis added). “[T]he media and its representatives must be permitted to attend, document, and report the proceeding.” People v. Revelo, 286 Ill. App. 3d 258, 265, 676 N.E.2d 263, 268, 221 Ill. Dec. 742, 747 (Ill. App. Ct. 2nd Dist. 1996); see also People v. Holveck, 141 Ill. 2d 84, 101, 565 N.E.2d 919, 926, 152 Ill. Dec. 237, 244 (1990) (“By allowing the media to attend, the judge preserved the defendant’s sixth amendment right to a public trial. The trial judge considered that the media presence is, in effect, the presence of the public.”).
In 2021, Illinois passed the “Privacy of Adult Victims of Criminal Sexual Offenses Act” which, effective January 1, 2022, prohibits public access to law enforcement and circuit court records related to “any investigation or proceeding pertaining to a criminal sexual offense.” 725 Ill. Comp. Stat. 191/10 (West 2022). Except for certain specified individuals, such as judges, prosecutors, defendants, and others, the Act prohibits release of the identity of adult victims of alleged criminal sexual offenses absent a court order authorizing release. In making disclosure determinations, the Act directs courts to consider (1) the best interest of the adult victim; and (2) whether nondisclosure would further a compelling State interest.Compare
B. Overcoming a presumption of openness
The common law presumption that the public should have access to court records may only be overcome if the party seeking closure establishes (1) a compelling interest for restricting access to the records; and (2) that the restriction will be tailored as narrowly as possible. Coy v. Wash. Cnty. Hosp. Dist., 372 Ill. App. 3d 1077, 1080, 866 N.E.2d 651, 655, 310 Ill. Dec. 490, 494 (Ill. App. Ct. 5th Dist. 2007); see also Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 231-2, 730 N.E.2d 4, 16, 246 Ill. Dec. 324, 336 (2000) (concluding the same).
The Illinois courts also have adopted the Press-Enterprise II “logic-and-experience” test to determine whether a constitutional presumption of access applies to a certain proceeding or record. The constitutional presumption of openness attaches to a record or proceeding (1) which has been traditionally held open to the public; and (2) which has a purpose or function that would be furthered by disclosure. People v. Kelly, 397 Ill. App. 3d 232, 256, 921 N.E. 2d 333, 355, 336 Ill. Dec. 719, 743 (Ill. App. Ct. 1st Dist. 2009); Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8 (1986). The First Amendment right of access presumption “can be rebutted by demonstrating that suppression is essential to preserve higher values and is narrowly tailored to serve that interest.” Skolnick, 191 Ill. 2d at 232. The court in such a scenario must state on the record its findings for why denying access is appropriate. Id. at 233.Compare
C. Procedural prerequisites to closure
Illinois state courts seeking to seal records or close proceedings must clearly state on the record the reasons for doing so. A.P. v. M.E.E., 354 Ill. App. 3d 989, 996, 821 N.E.2d 1238, 1247, 290 Ill. Dec. 664, 673 (Ill. App. Ct. 1st Dist. 2004) (“A closure order should both articulate the privacy interest involved and be accompanied by a statement of reasons specific enough that a reviewing court can determine whether the closure was properly entered.”) (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984) (internal quotation marks omitted)).Compare
II. Procedure for asserting right of access to proceedings and recordsCompare
A. Media standing to challenge closure
Illinois courts have held specifically that media have standing to challenge denials of access to court proceedings. See People v. Kelly, 397 Ill. App. 3d 232, 243, 921 N.E.2d 333, 345, 336 Ill. Dec. 719, 731 (Ill. App. Ct. 1st Dist. 2009) (holding that press clearly had right to intervene to challenge closure of pretrial criminal proceedings); see also Bryan v. Mercy Health Sys. Corp., 2011 IL App (2d) 101020-U ¶ 36 (finding citizens’ right to bring access to court claim sufficed for standing to intervene) (non-precedential). In In re M.B., the trial court entered a protective order that purported to prohibit a newspaper from publishing certain details about the trial. The appellate court held that the newspaper was not required to violate the order and be held in contempt before having standing to challenge the order. 137 Ill. App. 3d 992, 996, 484 N.E.2d 1154, 1157, 92 Ill. Dec. 299, 302 (Ill. App. Ct. 4th Dist. 1985). The newspaper had filed “a motion to vacate the protective order and that motion was denied by the trial court. Such order of denial was obviously directed squarely at the [newspaper] and the others who filed similar motions. In this sense, the [newspaper was] not an interloper but was specifically aggrieved by the trial court’s order.” Id. at 996–97, 484 N.E.2d at 1157, 92 Ill. Dec. at 302.Compare
B. Procedure for requesting access in criminal cases
A motion to intervene is an appropriate way to challenge a denial of access in Illinois. See People v. Kelly, 397 Ill. App. 3d 232, 243, 921 N.E.2d 333, 345, 336 Ill. Dec. 719, 731 (Ill. App. Ct. 1st Dist. 2009); People v. Phillips, 36 Media L. Rep. (BNA) 1510, 1510 (Ill. Cir. Ct. 2007) (“The intervention sought by Movants is a proper and accepted method for members of the news media to assert and preserve rights of access to court proceedings and records.”) (citation omitted); see also People v. LaGrone, 361 Ill. App. 3d 532, 533, 838 N.E.2d 142, 145, 297 Ill. Dec. 655, 656 (Ill. App. Ct. 4th Dist. 1992) (allowing media intervention to challenge order closing pre-trial proceedings in a criminal case).
Illinois allows a party to apply to “intervene” in a pending civil court case “when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.” 735 Ill. Comp. Stat. 5/2-408(a)(2) (West 2022); see also Fed. R. Civ. P. 24. Though intervention is a mechanism of civil procedure, it may be employed to obtain access in criminal cases. See People v. Kelly, 397 Ill. App. 3d 232, 243–44, 921 N.E.2d 333, 345, 336 Ill. Dec. 719, 731 (Ill. App. Ct. 1st Dist. 2009) (intervention is the proper method for press challenges to closure of criminal proceedings); People v. Pelo, 384 Ill. App. 3d 776, 779-80, 894 N.E.2d 415, 418, 323 Ill. Dec. 648, 651 (Ill. App. Ct. 4th Dist. 2008) (state suggested that newspaper should have filed a “separate civil action, such as a complaint for declaratory judgment” to obtain access to criminal proceedings, but the court noted that intervention was a proper method of obtaining access).Compare
C. Procedure for requesting access in civil matters
Because intervention is a civil mechanism, the media should be able to employ it to obtain access in civil cases. It stands to reason that because a newspaper was allowed to intervene in a criminal case to obtain access, media should be allowed to intervene for the same purpose in civil cases. See People v. Pelo, 384 Ill. App. 3d at 779-80, 894 N.E.2d at 418, 323 Ill. Dec. at 651. At least one trial court has granted a motion to intervene filed by two media parties to unseal portions of the sealed court record of divorce proceedings. See In re Marriage of Kelly, 2020 IL App (1st) 200130, ¶¶1, 4, 174 N.E. 3d 950.Compare
D. Obtaining review of initial court decisions
Illinois courts allow an “interlocutory” appeal, or one that is taken before the conclusion of the underlying matter, for decisions regarding public access. See People v. Zimmerman, 2018 IL 122261, ¶22, 120 N.E.3d 918, 923-24, 427 Ill. Dec. 851, 856-57 (confirming that Illinois Supreme Court Rule 307(a) “confers appellate jurisdiction to review such interlocutory orders circumscribing the public access of information in both juvenile and civil cases” and that “[n]o reason exists to treat interlocutory orders circumscribing public access to documents in criminal proceedings differently.”); People v. Kelly, 397 Ill. App. 3d 232, 245, 921 N.E.2d 333, 346, 336 Ill. Dec. 719, 732 (Ill. App. Ct. 1st Dist. 2009) (holding that interlocutory appeal is proper for press access issues under Supreme Court Rule 307(a), and the “first amendment questions at issue are too important to insulate them from review.”). “Illinois seems to be one of those jurisdictions that takes interlocutory appeals concerning right-of-access issues.” People v. Pelo, 384 Ill. App. 3d at 780, 894 N.E.2d at 418, 323 Ill. Dec. at 651 (citing LaGrone, 361 Ill. App. 3d at 533–34, 838 N.E.2d at 145, 297 Ill. Dec. at 656). In LaGrone, the appellate court allowed review of a trial court’s closure of pre-trial hearings relating to evidence admissibility, even though the closed hearings had already been held, because the issue involved a question of great public interest, and because the restrictions the trial court imposed were “capable of repetition[,] [and] evading review.” 361 Ill. App. 3d at 535, 838 N.E.2d at 145, 297 Ill. Dec. at 658 (citation omitted).
Before the Illinois Supreme Court’s ruling in Zimmerman, some Illinois appellate courts had not permitted interlocutory appeals of media access denials. For example, in People v. Reynolds, 274 Ill. App. 3d 696, 654 N.E.2d 535, 211 Ill. Dec. 73 (Ill. App. Ct. 1st Dist. 1995) the appellate court dismissed a newspaper’s appeal of a trial court decision limiting access to conferences among the judge and the attorneys, because the trial court’s order was not an appealable injunction. The court rejected “the idea that in a criminal trial, and under the circumstances in this case, a denial of contemporaneous access to sidebar conferences is final and appealable . . . while the trial is in progress.” Id. at 698, 654 N.E.2d at 537, 211 Ill. Dec. at 75. The court reasoned that “[o]rders of the circuit court which can be properly characterized as ‘ministerial,’ or ‘administrative’ – because they regulate only the procedural details of litigation before the court – cannot be the subject of an interlocutory appeal.” Id. (internal quotation marks and citation omitted). Because the newspaper was not specifically prohibited from obtaining information from other sources and from publishing that information, the protective order was not appealable. Id.
Post-Zimmerman, at least one appellate court has held that an order denying a motion by the press to modify a prior order was an injunctive order that fell within the scope of Rule 307 as an order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” In re Marriage of Kelly, 2020 IL App (1st) 200130, ¶23-25 (holding, however, that the appeal was untimely).
Also, while the Illinois Supreme Court’s decision in Zimmerman did not directly address Reynolds, Zimmerman’s holding that “[n]o reason exists to treat interlocutory orders circumscribing public access to documents in criminal proceedings differently” calls Reynolds into question. Zimmerman, 120 N.E.3d at 924.
In addition, appellate courts applying Kelly and Zimmerman have recognized interlocutory appeals under Rule 307 as the “proper vehicle for appealing a denial of access to the media in a criminal case.” People v. Van Dyke, 2020 IL App (1st) 191384, ¶46.
If a court does not allow an interlocutory appeal of an order denying access, the order may be able to be appealed after the conclusion of the underlying trial. Because the issues involved in right-of-access cases are fundamental and of great import, the typical prohibition against appealing “moot” cases, or those in which the underlying dispute has ended or been resolved, may not apply. See People v. Kelly, 397 Ill. App. 3d 232, 248–52, 921 N.E.2d 333, 349–52, 336 Ill. Dec. 719, 735–38 (Ill. App. Ct. 1st Dist. 2009) (holding that public interest exception made press access challenge worthy of appellate review). In In re A Minor, 127 Ill. 2d 247, 537 N.E.2d 292, 130 Ill. Dec. 225 (1989), the Chicago Tribune challenged an Illinois trial court’s orders prohibiting it from publishing the name of a minor who had been charged in a shooting and barring it from the courtroom unless it complied. The Illinois Supreme Court held that the challenge was not moot even though the underlying proceedings had ended because the newspaper would still be punished if it published the minor’s name, the issue was one of great public import, and the issue was “capable of repetition, yet evading review.” Id. at 257–58, 537 N.E.2d at 296–97, 130 Ill. Dec. at 229–30; see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602-03 (1982); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377-78 (1979). “Just as in [Globe Newspaper Co. and Gannett Co.] it was reasonably likely that the newspapers involved would again be subjected to the challenged restrictions in future criminal trials, so here it is reasonably likely that appellant will be subjected to similar orders in the future when it again attempts to report the names of minors charged with serious crimes.” In re A Minor, 127 Ill. 2d at 258-59, 537 N.E.2d at 297, 130 Ill. Dec. at 230. The In re A Minor court noted that the United States Supreme Court has “regularly found [restrictions placed on the media] to be ‘capable of repetition, yet evading review.’” Id. at 258, 537 N.E.2d at 296-97, 130 Ill. Dec. at 229–30 (citations omitted).
The Illinois Supreme Court subsequently appears to have limited the Minor standard to apply only to cases of public concern. In In re Marriage of Eckersall, 28 N.E.3d 742 (Ill. 2015), the Illinois Supreme Court held that Minor did not apply when the entry of final judgment of divorce rendered an appeal from interlocutory visitation moot because divorce proceedings were of private concern. Id. at 747 (holding “[i]ssues that arise in dissolution of marriage proceedings tend to be very fact specific and do not have broad-reaching implications beyond the particular dissolution of marriage proceedings”).Compare
III. Access to criminal proceedingsCompare
A. In general
Illinois courts also have recognized the constitutional presumptive right of access in criminal cases: “Judicial proceedings in the United States are open to the public – in criminal cases by constitutional command.” A.P. v. M.E.E., 354 Ill. App. 3d 989, 993, 821 N.E.2d 1238, 1245, 290 Ill. Dec. 664, 671 (Ill. App. Ct. 1st Dist. 2004). Unless a judge makes specific findings to the contrary, neither the press nor the public may be excluded from any part of a criminal proceeding. See also People v. March, 95 Ill. App. 3d 46, 419 N.E.2d 1212, 50 Ill. Dec. 763 (Ill. App. Ct. 4th Dist. 1981) (new trial was ordered for murder defendant whose trial was closed in part, over his objections, to the press but not to the public), abandoned on unrelated grounds in People v. Bolden, 132 Ill.App.3d 1047, 1058 (Ill. 4th Dist. 1985), overruled on other grounds by People v. Taylor, 181 Ill. 3d 538, 536 N.E.2d 1312 (1989). In March, one of the concurring judges went further: “Although this court has failed to reach a consensus on this issue I would hold under the authority of the Richmond Newspapers case that absent an overriding interest articulated in express findings, the trial of a criminal case must be open to the public. This trial was not open and no overriding interest is suggested nor articulated, thus the case must be retried.” Id. at 51, 419 N.E.2d at 1216, 50 Ill. Dec. at 767 (Craven, J., concurring specially); but see People v. Kelly, 397 Ill. App. 3d 232, 256–60, 921 N.E.2d 333, 355–59, 336 Ill. Dec. 719, 741–45 (Ill. App. Ct. 1st Dist. 2009)(affirming closure of limited pretrial matters).Compare
B. Pretrial proceedings
In Illinois, most pretrial proceedings are presumptively open. See People v. LaGrone, 361 Ill. App. 3d 532, 535, 838 N.E.2d 142, 145, 297 Ill. Dec. 655, 658 (Ill. App. Ct. 4th Dist. 1992). In LaGrone, the appellate court reversed a trial court’s refusal to allow access to pretrial hearings regarding the admissibility of certain evidence, holding that the Press-Enterprise II standard applied to the review of pretrial proceedings because “it has been viewed as the appropriate standard for ‘fair-trial’ closures of all parts of the criminal process to which the first amendment right of access applies.” LaGrone, 361 Ill. App. 3d at 536, 838 N.E.2d at 146, 297 Ill. Dec. at 659 (internal alterations and citation omitted).
Historically, the most obvious exception to the presumption of access to pretrial hearings in Illinois was People v. Kelly, 397 Ill. App. 3d 232, 243, 921 N.E.2d 333, 345, 336 Ill. Dec. 719, 731 (Ill. App. Ct. 1st Dist. 2009). In Kelly, the appellate court confirmed the denial of the media’s motion for access to closed pre-trial proceedings regarding evidence of other crimes (which included sex with a minor) by the defendant and to juror questionnaires because they were not historically open to the public prior to their introduction at trial. Kelly, 397 Ill. App. 3d at 259–60, 921 N.E.2d at 358–59.
Not long after Kelly was decided, a circuit court in Will County, Illinois denied a motion to close pretrial hearsay evidence hearings in the notorious Drew Peterson murder trial. See People v. Peterson, No. 09-CF-1048 (Will Co. Cir., Ill.). There, the defense counsel cited Kelly in support of its motion to close the hearings and seal records thereof, but the judge denied the motion, noting that the court had taken several steps to ensure that the trial would be fair (including sending another letter to potential jurors reminding them of their obligation), and apparently adopting the media’s arguments that the Kelly case was unique and not dispositive.
Recently, however, the Illinois Supreme Court held that a presumption of access does not apply to motions in limine containing discovery materials. People v. Zimmerman, 120 N.E.3d 918 (IL 2018). The appellate court in Zimmerman explicitly disagreed with the Kelly court’s “suggestion” that “motions in limine and their related hearings have traditionally not been accessible to the public” because “[d]espite the fact [that] motions in limine address potential evidence for trial, they are contained in the general criminal case file and in the general record on appeal,” and “hearings on such motions are generally not closed.” People v. Zimmerman, 79 N.E.3d 209, 214 (Ill. App. Ct. 4th Dist. 2017), rev’d, 120 N.E.3d 918 (IL 2018). The Illinois Supreme Court reversed the appellate court’s opinion. First, the Court found that both prongs of the Press-Enterprise II “experience and logic test” weighed against a presumption of First Amendment access. Zimmerman, 120 N.E.3d at 924-26. Second, although the common law presumption of access attached, the trial court did not abuse its discretion by allowing the motions in limine to remain sealed until after the jury was empaneled because the right of public access to documents filed with the court is not absolute, the evidence at issue in the two motions was not publicly available, and the trial court possesses supervisory authority over its own records and files. Id. at 927. In addition, the Court found that the trial court attempted to strike a careful balance between the common law right of access to court records and the defendant’s right to a free trial, which could be undermined by publicly revealing discovery material that would not be admitted at trial. Id.Compare
C. Criminal trials
Similarly, Illinois recognizes a presumption of access to criminal trials themselves. “Judicial proceedings in the United States are open to the public – in criminal cases by constitutional command.” A.P. v. M.E.E., 354 Ill. App. 3d at 993, 821 N.E.2d at 1245, 290 Ill. Dec. at 671. In order to curtail public or press access, a court must make the sort of specific findings and follow the same procedure that applies to civil matters, as discussed in that section.
The right of access may extend to the post-trial availability of evidence used during the trial. In People v. Phillips, 36 Media L. Rep. (BNA) 1510 (Ill. Cir. Ct. 2007), the court allowed media outlets to access videotapes of the crime scene and of the defendant’s statement because no suppression request had been made during the trial, and even if one had been made, it would have been denied. See also People v. Goodman, 29 Media L. Rep. (BNA) 1063 (Ill. Cir. Ct. 2000) (public has legitimate and important interest in seeing and hearing videotaped evidence).Compare
D. Post-trial proceedings
The same standards and presumptions that apply to pretrial proceedings and criminal trials apply to post-trial proceedings. In People v. Caffey, 33 Media L. Rep. (BNA) 1149 (Ill. Cir. Ct. 2004), the court held that post-conviction petitions, motions, and amendments are part of the public record and subject to a presumption of public access. The court noted the history of openness of these sorts of proceedings and held that a party moving for nondisclosure must make the same sort of showing to overcome the presumption of access that must be made for other parts of criminal proceedings.Compare
E. Appellate proceedings
There are no reported Illinois cases dealing with access to appellate proceedings. However, appellate oral arguments in Illinois appear to be generally open and accessible to the public. Indeed, the Supreme Court of Illinois and the appellate courts of Illinois often post audio or video recordings for oral arguments on their website for the public. (See https://www.illinoiscourts.gov/courts/supreme-court/oral-argument-audio-and-video/ and https://www.illinoiscourts.gov/courts/appellate-court/oral-argument-audio/).Compare
IV. Access to criminal court recordsCompare
A. In general
In 1998, Illinois enacted a law guaranteeing the public’s right to view dockets and papers (including judicial records) that are on file with the clerks’ office and deemed public documents. 705 Ill. Comp. Stat. 105/16(6) (West 2022). In 2000, however, the Illinois Supreme Court held that the right of access granted by the statute is not absolute. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 231, 730 N.E.2d 4, 16, 246 Ill. Dec. 324, 336 (2000). The Skolnick court explained that “whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” Id. (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). An Illinois circuit court explained that in the context of a criminal trial, the possibility of embarrassing or damaging the reputation of the defendant does not justify sealing the court file. People v. Caffey, 33 Media L. Rep. (BNA) 1149 (Ill. Cir. 2004). The court further explained that the state must show what interests would be harmed by allowing access and that such interests outweigh the right of access. Id. The fact that a newsgathering agency already has access to the court file undermines any argument for keeping the file sealed from the rest of the public. Id.Compare
B. Arrest records
There appears to be no Illinois case law on this issue.Compare
In Illinois, the public has the right to view all dockets required to be kept by clerks of the court and therefore deemed public records. 705 Ill. Comp. Stat. 105/16(6) (West 2022), though as noted above, this right is not absolute.Compare
D. Warrants, wiretaps and related materials
In 2010, an Illinois court held no right of access attached to a search warrant and a related search inventory that formed part of an ongoing investigation. In re Gee, 2010 IL App (4th) 100275, ¶ 37, 956 N.E.2d 460, 466, 353 Ill. Dec. 598, 604. The court distinguished the case from a Fourth Circuit decision where a right of access had attached to an affidavit supporting a search warrant after the underlying investigation had concluded. Id. at ¶ 32 (citing In re Application & Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir. 1991)).
In 2009, the United States District Court for the Northern District of Illinois, applying the “logic and experience” Press-Enterprise II test, concluded that there a media intervenor had no right of public access to a wiretap application or order. The court held that “as a general matter, history and logic weigh in favor of not recognizing a First Amendment right of access to . . . wiretap documents,” though the court went on to allow limited public access to some of the relevant documents in a redacted fashion. United States v. Blagojevich, 662 F. Supp. 2d 998, 1004 (N.D. Ill. 2009).Compare
E. Discovery materials
The Illinois Supreme Court has held that discovery materials and motions are not subject to the right of access unless they have been filed with the court because discovery is conducted in private and is not open to the public. People v. Zimmerman, 2018 IL 122261, ¶33, 120 N.E. 3d 918, 925, 427 Ill. Dec. 851, 858 (“[T]here is no tradition of access to discovery material not yet admitted at trial.”) The court noted that both in civil and criminal cases, the sole purpose of discovery is to assist in the preparation for trial. Id. The court held that discovery materials, therefore, do not have intrinsic value to the public if they have not been admitted at trial and therefore public access would not help further justice in a particular case. Id.Compare
F. Pretrial motions and records
In People v. Zimmerman, the Illinois Supreme Court held that a presumption of access does not apply to motions in limine containing discovery materials. 2018 IL 122261, ¶36, 120 N.E. 3d 918, 926, 427 Ill. Dec. 851, 859.
In People v. Van Dyke, the trial court issued a “decorum” order, requiring the parties to file all documents under seal in chambers instead of openly with the clerk’s office. See People v. Van Dyke, 2020 IL App (1st) 191384, ¶¶ 7-8, 2020 WL 7074523. A coalition of news organizations, along with the Reporters Committee, intervened in the case in 2018, moved to unseal the record, and challenged this sealing practice under the First Amendment, common law, and Clerks of Courts Act. When the trial court denied the coalition’s motion to vacate the decorum order, the coalition filed an emergency appeal with the Illinois Supreme Court. That court granted a supervisory order, directing the trial court to vacate the decorum order and requiring all documents and pleadings to be filed in the clerk’s office. Jenner & Block LLP represented Chicago Public Media, Inc., one of the intervener-news organizations in this matter.Compare
G. Trial records
One Illinois circuit court has held that the public has a legitimate and important interest in accessing evidence that includes a record of the defendant’s statement. People v. Goodman, 29 Media L. Rep. (BNA) 1063 (Ill. Cir. Ct. 2000). Another Illinois circuit court expanded on the Goodman decision and recognized a right to gain access to crime scene videos and defendant’s statements exhibited during trial. People v. Phillips, 36 Media L. Rep. (BNA) 1510 (Ill. Cir. Ct. 2007). The Phillips court listed several factors that support a finding of access including: whether the records were exhibited at trial, whether the state or defendant requested to seal the proceedings, whether the state or defendant would have met the high threshold for sealing, and whether the trial had concluded at the time of the request. Id. The decision further established that once records have been exhibited in open court proceedings and entered into the court file, the right of access attaches to them. Id. Another Illinois circuit court extended the right of access to a 911 tape played at trial, given none of the concerns listed by the Seventh Circuit existed. People v. Balfour, 40 Media L. Rep. (BNA) 2000, 2001 (Ill. Cir. Ct. 2012) (citing factors for consideration from United States v. Edwards, 672 F.2d 1289, 1293 (7th Cir. 1982)). The Balfour court cited three factors that would rebut the presumption of access applied to the 911 tape: (1) whether the court had already permitted considerable public access to the contents of the records in question (e.g., by way of printed transcript, as opposed to tape recording); (2) whether granting the request would prejudice the due process rights of a criminal defendant; and (3) whether administrative and mechanical difficulties attending inspection and copying would disrupt the progress of the proceeding. Id. at 2001-2.
In 1992, an Illinois appellate court held that the right of public access extended to transcripts of hearings. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.Ed. 2d 406, 410, 174 Ill. Dec. 209, 213 (Ill. App. Ct. 4th 1992).Compare
H. Post-trial records
In 1995, an Illinois appellate court echoed a Seventh Circuit decision that there is no public right of access to presentence reports and expanded on that rule holding that there is no public right of access to pre-trial service agency reports. Copley Press, Inc. v. Admin. Office of Courts, 271 Ill. App. 3d 548, 555, 648 N.E.2d 324, 329 207 Ill. Dec. 868, 873 (Ill. App. Ct. 2nd Dist. 1995) (citing United States v. Corbitt, 879 F.2d 224 (7th Cir. 1989)).An Illinois circuit court held that there is a right of public access to post-conviction petitions, motions, and amendments thereto that are pleadings in connection with and filed as part of the public record. Caffey, 33 Media L. Rep. (BNA) at 1149. Neither the Illinois appellate nor Supreme Court have addressed this issue.Compare
I. Appellate records
There appears to be no reported Illinois case law on this issue.Compare
J. Other criminal court records issues
There appears to be no reported Illinois case law on this issue.Compare
V. Access to civil proceedingsCompare
A. In general
An Illinois appellate court extended the U.S. Supreme Court’s analysis of the constitutional right of access in criminal cases to civil cases. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.E.2d 406, 410 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Johnson established the rule that in order to overcome a presumption of access, a party must demonstrate that a compelling governmental interest exists and that the restrictions on access are narrowly tailored to meet this governmental interest. Id.Compare
B. Pre-trial proceedings
There appears to be no reported Illinois case law on this issue.Compare
An Illinois appellate court extended the U.S. Supreme Court’s analysis of the constitutional right of access in criminal cases to civil cases. Johnson, 232 Ill. App. 3d at 1074, 598 N.E.2d at 410 (citing Nixon, 435 U.S. at 597). Johnson established the rule that in order to overcome a presumption of access, a party must demonstrate that a compelling governmental interest exists and that the restrictions on access are narrowly tailored to meet this governmental interest. Id.Compare
D. Post-trial proceedings
There appears to be no reported Illinois case law on this issue.Compare
E. Appellate proceedings
There appears to be no reported Illinois case law on this issue. However, appellate oral arguments in Illinois state court appear to be generally open and accessible to the public. Indeed, the Supreme Court of Illinois and the appellate courts of Illinois often post audio or video recordings for oral arguments on their website for the public. (See https://www.illinoiscourts.gov/courts/supreme-court/oral-argument-audio-and-video/ and https://www.illinoiscourts.gov/courts/appellate-court/oral-argument-audio/).
Arguments before the Seventh Circuit are open to the public, as well as available via livestream. See Gen. Order 22-005; https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA.Compare
VI. Access to civil recordsCompare
A. In general
In 1998, Illinois codified a law guaranteeing the public’s right to view dockets and papers (including judicial records) that are on file with the clerks’ office and deemed public documents. 705 Ill. Comp. Stat. 105/16(6) (West 2022). In 2000, however, the Illinois Supreme Court held that the right of access granted by the statute is not absolute. Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 231, 730 N.E.2d 4, 16, 246 Ill. Dec. 324, 336 (2000). The Skolnick court explained that “whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” Id. (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978)). Skolnick established that to overcome the common law presumption of access, the party opposing public assess must establish that there is a compelling interest favoring a closed file and that any protective order is drafted in the least restrictive manner possible. Id. at 231. The court also established the principle that “[t]he mere fact a person may suffer embarrassment or damage to his reputation as a result of allegations in a pleading does not justify sealing the court file.” Id. at 234, 730 N.E.2d at 18, 246 Ill. Dec. at 338. In determining whether a document is subject to the right of access, a court must consider whether the type of document at issue has historically been available to the public. A.P. v. M.E.E., 354 Ill. App. 3d 989, 1001, 821 N.E.2d 1238, 1251, 290 Ill. Dec. 664, 677 (Ill. App. Ct. 1st Dist. 2004). In In re Marriage of Kelly, an Illinois appellate court applied Skolnick to hold that a trial court abused its discretion in redacting certain divorce records where those records recited “standard requests commonly made in dissolution of marriage cases,” did not contain confidential information related to the parties’ children, and “unflattering information” about one of the parties was already in the “broad public domain.” 2020 IL App. 200130, ¶¶ 33-34.
Illinois courts have applied the experience and logic test only in the criminal context though the Illinois Supreme Court has hinted it may also apply in the civil context. See Zimmerman, 120 N.E.3d at 925 (noting that under the “experience” prong, there is no tradition of public access to discovery in a civil or criminal case because “the documents themselves contain no evidentiary value until admitted into evidence at trial or other proceedings”) (citing Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 848-49 (Ky. 2009)).Compare
Under Illinois law, the public has the right to view all dockets required to be kept by clerks of the court and therefore deemed public records. 705 Ill. Comp. Stat. 105/16(6) (West 2022). In 2000, however, the Illinois Supreme Court held that the right of access granted by the statute is not absolute. Skolnick v. Altheimer & Gray, 191 Ill.2d at 231, 730 N.E.2d at 16, 246 Ill. Dec. at 336.Compare
C. Discovery materials
The Illinois Supreme Court has held that discovery materials and motions are not subject to the right of access until filed with the court because discovery is conducted in private and is not open to the public. Skolnick v. Altheimer & Gray, 191 Ill.2d at 237, 730 N.E.2d at 19, 246 Ill. Dec. at 339; cf. Bond v. Kalven, No. 07-2651 (7th Cir. Nov. 10, 2009) (no right to discovery not filed with court); Dittrich v. Gibbs, No. 93 L 003, 2002 WL 32113762, at *3 (Ill. Cir. Ct. June 19, 2002) (pleadings and exhibits that were obtained in discovery and later filed in court should be disclosed unless there is a compelling interest to seal, and there is a compelling interest to redact the names and identifiers of victims whose names are not a matter of public disclosure from otherwise accessible materials). In 2004, an Illinois appellate court further explained the right of access to discovery materials and held that information gathered from sources outside of the discovery process during the course of a civil action and made available solely for the purposes of trying or settling a suit are not subject to the right of access. Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588, 592, 814 N.E.2d 135, 138, 286 Ill. Dec. 485, 488 (Ill. App. Ct. 3rd Dist. 2004) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 (1984)).Compare
D. Pre-trial motions and records
The Illinois Appellate Court, in ruling on a FOIA case, echoed a 7th Circuit decision holding that there is no public access right to presentence reports, and expanded on that rule holding that there is no public right of access to pre-trial service agency reports. Copley Press, Inc. v. Admin. Office of Courts, 271 Ill. App. 3d at 555, 648 N.E.2d at 329, 207 Ill. Dec. at 873 (citing U.S. v. Corbitt, 879 F.2d 224 (7th Cir. 1989)).Compare
E. Trial records
In 1992, an Illinois appellate court held that the right of public access extended to transcripts of hearings. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.Ed. 2d 406, 410, 174 Ill. Dec. 209, 213 (Ill. App. Ct. 4th 1992) (holding that the trial court abused its discretion in denying public access to court records and transcripts in personal injury action and marital dissolution proceeding).Compare
F. Settlement records
The Illinois Appellate Court held that the right of access extends to all documents filed with the court, including settlement agreements. In re Marriage of Johnson, 232 Ill.App.3d 1068, 1074, 598 N.E.2d 406, 410, 174 Ill. Dec. 209, 213 (Ill. App. Ct. 4th Dist. 1992). The court also held that the right of access applies to the transcripts of hearings during which the terms of settlement documents were recited to the court, even when the settlement documents themselves were ultimately not submitted to the court. Id. Similarly, in Fidelity Financial Services, Inc. v. Hicks the Illinois Appellate Court held that the right of access may attach to settlement agreements in class action suits and may even attach to settlement agreements in suits that involve nondisclosure clauses if the agreements are part of the public record. Fid. Fin. Servs., Inc. v. Hicks, 267 Ill. App. 3d 887, 893-94, 642 N.E.2d 759, 763-64, 204 Ill. Dec. 858, 862-63 (Ill. App. Ct. 1st Dist. 1994).Another Illinois appellate court added a restriction to the right of access to settlement agreements when it ruled that the right does not outweigh the compelling interest of the privacy rights of medical patients under HIPAA. Coy v. Wash. Cnty. Hosp. Dist., 372 Ill. App. 3d 1077, 1084, 866 N.E.2d 651, 658, 310 Ill. Dec. 490, 497 (Ill. App. Ct. 5th Dist. 2007). The court, however, permitted disclosure of the agreement itself with only the names of the nonparty patients redacted. Id. However, another Illinois appellate court held “doctor-patient privilege in Illinois does not protect the name and contact information of a patient, when it is that information alone that is sought.” Ruzzier v. Nw. Lake Forest Hospital, No. 1-16-1300-U, ¶ 20, 2017 WL 2124349 *3 (Ill. App. Ct. 1st Dist. 2017).Compare
G. Post-trial records
There appears to be no reported Illinois case law on this issue.Compare
H. Appellate records
There appears to be no reported Illinois case law on this issue. Illinois courts, however, have established rules regarding appellate records. Rule 8 for the Supreme Court of Illinois specifies that records and cases designated as “public” by the clerk will be available by any person upon request. With respect to the appellate courts, some districts have a rule addressing this issue while others do not. Rule 111(a) of Illinois Appellate Court, Second District and Fourth District provides that “[a]ny filed materials, not including impounded or sealed materials, will be made available for review upon request by any party or non-party.” The First, Third, and Fifth Districts do not have such a rule.Compare
I. Other civil court records issues
There appears to be no reported Illinois case law on this issue.Compare
VII. Jury and grand jury accessCompare
A. Access to voir dire
The Supreme Court of Illinois addressed the issue of public access to voir dire in People v. Radford, 2020 IL 123975, 181 N.E. 3d 78, 450 Ill. Dec. 78 (2020). Because of space constraints and a large number of spectators, the trial court limited the public spectators to two family members per side. The Illinois Supreme Court held that the partial closure of a courtroom during voir dire did not deprive the defendant of the right to a public trial under the Sixth Amendment. Id. at ¶36. In a dissenting opinion, Justice Neville stated that the First Amendment was the more appropriate vehicle to analyze right of access, and “[t]he public has a right to be present at [voir dire] whether or not any party has asserted the right.” Id. at ¶118 (quoting Presley v. Georgia, 558 U.S. 209, 214 (2010) (internal quotation marks omitted and modification in original).
Moreover, the United States District Court for the Northern District of Illinois has held that “the First Amendment guarantees the press and public the right to attend the voir dire proceeding.” United States v. Black, 483 F. Supp. 2d 618, 623-24 (N.D. Ill. 2007).Compare
B. Juror identities, questionnaires and other records
There appears to be no reported Illinois case law on this issue. The Northern District of Illinois, applying federal law, appears to have concluded—applying the “experience and logic” test from Press-Enterprise II—that the press does not have a First Amendment right to jurors’ names. See United States v. Calabrese, 515 F. Supp. 2d 880, 882 (N.D. Ill. 2007) (“I am not convinced that [media intervenor] has carried its burden of establishing a qualified right of access to [jurors’ identities].”); United States v. Black, 483 F. Supp. 2d 618, 630 (N.D. Ill. 2007) (“[T]he [media intervenor] has failed to establish that there is a logical connection – and there in fact is none – between public access to juror names during the pendency of the trial and the proper functioning of the jury.”).Compare
C. Grand jury proceedings and records
In Illinois, Section 112-6 of the Code of Criminal Procedure governs the secrecy of grand jury proceedings. No person other than the State’s attorney and his reporter may attend grand jury proceedings unless authorized by the court or by law. 725 Ill. Comp. Stat. 5/112-6(a) (West 2022). The purposes behind the secrecy requirement include preventing the escape of the accused before an indictment, ensuring open deliberations by the grand jury, guarding against the use of perjured testimony at trial, encouraging truthful disclosures, and protecting the innocent and unindicted from unnecessary disclosure. In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 32, 129 N.E.3d 1181, 1189; People v. Toolen, 116 Ill. App. 3d 632, 646-47, 451 N.E.2d 1364, 1375, 72 Ill. Dec. 41, 52 (Ill. App. Ct. 5th Dist. 1983). See also People v. Van Dyke, 178 N.E. 3d 263, 281-82 (Ill. App. Ct. 1st Dist. 2020), appeal denied, 167 N.E.3d 650 (Ill. 2021), (“A presumptive right of public access does not attach to grand jury proceedings.”); Walker v. Bruscato, 2019 IL App (2d) 170775, ¶ 62, 134 N.E.3d 971, 986 (affirming denial of FOIA request for a copy of individual deliberations and votes of grand jurors).
The presence of an unauthorized person in grand jury proceedings is grounds to dismiss an indictment, but the defendant must show that the presence prejudiced the grand jury. People v. Fassler, 153 Ill. 2d 49, 55, 605 N.E.2d 576, 579, 178 Ill. Dec. 782, 785 (1992). The defendant could show he was prejudiced by “a showing that the purposes of the secrecy requirement were not met, or that, in fact, the indictment was obtained as the result of undue influence or coercion.” Id. at 56, 605 N.E.2d at 579, 178 Ill. Dec. at 785 (finding no evidence that the unauthorized presence of the victim’s mother jeopardized the secrecy of the proceeding or influenced the victim’s testimony or the grand jury’s decision).
Section 112-6 of the Code of Criminal Procedure also governs the disclosure of grand jury records in Illinois. The statute provides:
(b) Matters other than the deliberations and vote of any grand juror shall not be disclosed by the State's Attorney, except as otherwise provided for in subsection (c). The court may direct that a Bill of Indictment be kept secret until the defendant is in custody or has given bail and in either event the clerk shall seal the Bill of Indictment and no person shall disclose the finding of the Bill of Indictment except when necessary for the issuance and execution of a warrant.
725 Ill. Comp. Stat. 5/112-6(b) (West 2022). Courts have confirmed that Section 112-6 prevents disclosure of sealed grand jury records via open records requests. In re Appointment of Special Prosecutor, 2019 IL 122949, ¶ 35, 129 N.E.3d 1181, 1190 (denying access to records generated in special prosecutor’s grand jury investigation). The Illinois Supreme Court observed that Section 112-6 is modeled after Federal Rule of Criminal Procedure 6(e), and, therefore, courts may look to federal cases for guidance. Id.
“However, the veil of secrecy surrounding grand jury proceedings is not absolute.” In re Extended March 1975 Grand Jury No. 655, 84 Ill. App. 3d 847, 851, 405 N.E.2d 1176, 1179, 40 Ill. Dec. 84, 87 (Ill. App. Ct. 1st Dist. 1980). Disclosure may be made to the State’s attorney or other government officials “for use in the performance of such State’s attorney’s duty.” 725 Ill. Comp. Stat. 5/112-6(c)(1)(a) (West 2022). The State’s attorney’s duties, for purposes of this section, do not include civil or administrative proceedings. Bd. of Educ. v. Verisario, 143 Ill. App. 3d 1000, 1006, 493 N.E.2d 355, 358, 97 Ill. Dec. 692, 695 (Ill. App. Ct. 2nd Dist. 1986). The court in Verisario adopted its reasoning from the Supreme Court’s interpretation of the identical federal provision. Id. (citing United States v. Sells Engineering, Inc., 463 U.S. 418, 431-35 (1983)). In Sells, the Court reasoned that “disclosure to non-prosecutors for civil use would: 1) increase the risk of inadvertent or illegal release of grand jury materials to others; 2) further tempt prosecutors to manipulate the grand jury to improperly elicit evidence for use in civil cases and make detection of such abuses more difficult; and 3) threaten to subvert discovery limitations applied outside the grand jury context.” Id. at 1005-06, 358 (quoting Sells, 463 U.S. at 431-35) (emphasis added). If disclosure is made to other officials under this section, the State’s attorney must provide the court with the names of those individuals. 725 Ill. Comp. Stat. 5/1126(c)(2) (West 2022).
Also, the court may direct disclosure “preliminary to or in connection with a judicial proceeding . . . in the interests of justice or when a law so directs.” Id. at6(c)(3). In Verisario, the court determined that an administrative hearing subject to judicial review is in connection with a judicial proceeding. 143 Ill. App. 3d at 1009, 493 N.E.2d at 360, 97 Ill. Dec. at 697. The court also set out a three-pronged test for determining whether disclosure is required in the interests of justice: Parties seeking disclosure must show (1) that the material is necessary to avoid injustice in another judicial proceeding, (2) that the need for disclosure outweighs the need for secrecy, and (3) that the request is tailored to cover only the material necessary. Id. (citing Douglas Oil Co. v. Petrol Stops N.w., 441 U.S. 211, 222 (1979). In order to satisfy the first prong, the party must show that the material is relevant and useful, that the case would be prejudiced without it, AND that the material could not be obtained via other channels. Id. at 1010, 493 N.E.2d at 361, 97 Ill. Dec. at 698. In proving that the need for disclosure is greater than the need for secrecy, the burden will be lowered as the justifications for secrecy become less pertinent. For example, the protection of the unindicted will not apply where the grand jury indicted the defendant. The court also noted that the first three justifications (preventing escape, open deliberation, and preventing witness tampering and perjury) no longer apply after the grand jury concludes its investigation. Cf. Grand Jury No. 655, 84 Ill. App. 3d at 853-54, 405 N.E.2d at 1181, 40 Ill. Dec. at 89 (suggesting that whether the grand jury indicted anyone was more relevant to the justifications for secrecy). Finally, the party seeking disclosure cannot go on “a fishing expedition by seeking wholesale disclosure of all grand jury materials.” Verisario, 143 Ill. App. 3d at 1011, 493 N.E.2d at 361-62, 97 Ill. Dec. at 698-99; accord Grand Jury No. 655, 84 Ill. App. 3d at 854, 405 N.E.2d at 1181, 40 Ill. Dec. at 89; see also Brettman v. Breaker Press Co., 2020 IL App (2d) 190817-U, ¶ 33 (nonprecedential opinion) (opining that disclosure of 1975 grand jury testimony would be in the interest of justice because it could reveal whether defendants’ statements about plaintiff were libelous); People v. Van Dyke, 2020 IL App (1st) 191384, ¶ 79 (nonprecedential opinion), appeal denied, 167 N.E.3d 650 (Ill. 2021) (rejecting argument that grand jury statements used at trial become public).Compare
D. Interviewing jurors
In Illinois, grand jurors may not disclose grand jury materials and may be held in contempt for doing so improperly. 725 Ill. Comp. Stat. 5/112-6(d) (West 2022). However, a witness can choose to disclose what she said in her testimony. See Grand Jury No. 655, 84 Ill. App. 3d at 852, 405 N.E.2d at 1180, 40 Ill. Dec. at 88.Compare
VIII. Proceedings involving minors
Juvenile proceedings in Illinois are not presumptively open to the public. In re Minor, 205 Ill. App. 3d 480, 488, 563 N.E.2d 1069, 1074, 150 Ill. Dec. 942, 947 (Ill. App. Ct. 4th Dist. 1990). Access to them can be restricted by statute. See id. In Illinois, access to juvenile court records is governed by the Juvenile Court Act (“the Act”), which was amended in 2021 to remove provisions permitting public access to records regarding minors convicted as an adult or adjudicated delinquent for certain offenses. Section 1-8(C) of the Act provides:
(C)(0.1) In cases where the records concern a pending juvenile court case, the requesting party seeking to inspect the juvenile court records shall provide actual notice to the attorney or guardian ad litem of the minor whose records are sought.
(0.2) In cases where the juvenile court records concern a juvenile court case that is no longer pending, the requesting party seeking to inspect the juvenile court records shall provide actual notice to the minor or the minor’s parent or legal guardian, and the matter shall be referred to the chief judge presiding over matters pursuant to this Act.
(0.3) In determining whether juvenile court records should be made available for inspection and whether inspection should be limited to certain parts of the file, the court shall consider the minor’s interest in confidentiality and rehabilitation over the requesting party’s interest in obtaining the information. The State’s Attorney, the minor, and the minor’s parents, guardian, and counsel shall at all times have the right to examine court files and records.
(0.4) Any records obtained in violation of this Section shall not be admissible in any criminal or civil proceeding, or operate to disqualify a minor from subsequently holding public office, or operate as a forfeiture of any public benefit, right, privilege, or right to receive any license granted by public authority.
705 Ill. Comp. Stat. 405/1-8(C) (West 2022). This statute is not limited to delinquency records; it applies to all juvenile court proceedings. In re K.D., 279 Ill. App. 3d 1020, 1023-24, 666 N.E.2d 29, 31-32, 216 Ill. Dec. 861, 863-64 (Ill. App. Ct. 2nd Dist. 1996).Compare
In Illinois, access rights to juvenile proceedings are governed by the Juvenile Court Act of 1987 (“the Act”). Section 1-5(6) of the Act provides:
(6) The general public except for the news media and the crime victim, as defined in Section 3 of the Rights of Crime Victims and Witnesses Act, shall be excluded from any hearing and, except for the persons specified in this Section only persons, including representatives of agencies and associations, who in the opinion of the court have a direct interest in the case or in the work of the court shall be admitted to the hearing. However, the court may, for the minor's safety and protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor's identity. Nothing in this subsection (6) prevents the court from allowing other juveniles to be present or to participate in a court session being held under the Juvenile Drug Court Treatment Act.
705 Ill. Comp. Stat. 405/1-5(6) (West 2022). This provision allows the trial court to suppress the minor’s identity but nothing beyond that. In re M.B., 137 Ill. App. 3d 992, 999, 484 N.E.2d 1154, 1159, 92 Ill. Dec. 299, 304 (Ill. App. Ct. 4th Dist. 1985) (construing identical language in the previous version of the Act). Any court order that prohibits more than disseminating the minors’ identities is subject to strict scrutiny. Id. When a judge issues a prior restraint in the context of pending judicial proceedings, the order will be invalid unless “it is: (1) necessary to obviate a ‘serious and imminent’ threat of impending harm, which (2) cannot adequately be addressed by other, less speech-restrictive means.” In re A Minor, 127 Ill.2d 247, 265, 537 N.E.2d 292, 300, 130 Ill. Dec. 225, 233 (1989)). In In re A Minor, the Supreme Court of Illinois determined this standard was not met where the newspaper learned the minor’s name with routine reporting techniques and the state asserted the minor’s safety as the reason for the order. Id. at 269, 537 N.E.2d at 301, 130 Ill. Dec. at 234. The court noted that the fears for the minor’s safety were speculative and protective custody was an available alternative. Id. at 270, 537 N.E.2d at 302, 130 Ill. Dec. at 235.
In M.B., the court found that protecting the minor defendants’ safety was a strong state interest, but it did not justify the trial court’s prohibition against publishing the identity, placement, or location of the minors. In re M.B., 137 Ill. App. at 1000, 484 N.E.2d at 1160, 92 Ill. Dec. at 305. Some of this information had already been disseminated, and the appellate court held that there were less restrictive means of protecting the minors. Id. at 1000, 484 N.E.2d at 1159-60, 92 Ill. Dec. at 304-05.Compare
There appears to be no reported Illinois case law on this issue.Compare
C. Other proceedings involving minors
In a motion for declaratory relief that a “Family Agreement” was in the best interests of the minor beneficiaries, the privacy interests of minors were insufficient to justify closure of the entire case file. A.P. v. M.E.E., 354 Ill. App. 3d 989, 996, 821 N.E.2d 1238, 1246, 290 Ill. Dec. 664, 672 (Ill. App. Ct. 1st Dist. 2004). Because not every document in the file was related to the minors’ privacy and other concerns, the appellate court held that the seal was invalid and returned the sealed file to the circuit court so that it could determine the particular offending documents. Id. at 1002, 821 N.E.2d at 1252, 290 Ill. Dec. at 678.
In a divorce proceeding between two entertainment celebrities, the appellate court closely scrutinized the trial court’s redactions of the complaint, reversing in part where the redactions contained no confidential or identifying information regarding the minors involved. In re Marriage of Kelly, 2020 IL App (1st) 200130, ¶ 35 (nonprecedential opinion).
Adoption. In Illinois, the Adoption Act specifies that the court and court records should identify the parties by initial or pseudonym. 750 Ill. Comp. Stat. 50/18(b) (West 2022). Also, the court records are to be impounded, and they may be viewed only by leave of court or by the guardian ad litem during the pendency of the proceeding. Id. at 18(c). Confidentiality in adoption proceedings “protects the interests of biological parents, adopting parents, and adopted minors.” In re J.D., 317 Ill. App. 3d 419, 427, 739 N.E.2d 1036, 1042, 251 Ill. Dec. 103, 109 (Ill. App. Ct. 4th Dist. 2000) (emphasis in original). The court in J.D. held that appellate courts should maintain this confidentiality on habeas petitions attacking the grant of adoption despite the legislature’s omission of such proceedings under the Adoption Act. Id. at 427, 739 N.E.2d at 1043, 251 Ill. Dec. at 110.Compare
D. Prohibitions on photographing or identifying juveniles
In cases of abuse in Illinois, the state has an interest in the nondisclosure of the abused minor’s identity. In re K.D., 279 Ill. App. 3d at 1023, 666 N.E.2d at 31, 216 Ill. Dec. at 863. Also, the abused minor victim has a compelling interest against invasions of his or her privacy. Id. The court may prohibit the press from identifying minors when the courtroom was the source for the identities, but it may not prohibit the press from publishing truthful information gathered through common reporting techniques. In re Minor, 205 Ill. App. 3d 480, 491-92, 563 N.E.2d 1069, 1077, 150 Ill. Dec. 942, 950 (Ill. App. Ct. 4th Dist. 1990).Compare
E. Minor testimony in non-juvenile courtsCompare
IX. Special proceedingsCompare
A. Tribal Courts in the jurisdiction
There appears to be no reported Illinois case law on this issue. Illinois does not have any federally recognized tribal lands. See https://www.wbez.org/stories/why-doesnt-illinois-have-any-indian-reservations/a0fe743f-9283-441e-810f-f13fe0dc5344.Compare
There appears to be no reported Illinois case law on this issue.Compare
C. Competency and commitment proceedings
Under Illinois law, court hearings under the Mental Health and Developmental Disabilities Code are open to the press and public unless one of the parties requests that the hearing is closed. 405 Ill. Comp. Stat. 5/3-800(c) (West 2022).Compare
D. Attorney and judicial discipline
In Illinois, attorney discipline is handled by the Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois (the “ARDC”). (See https://www.iardc.org)
The ARDC clerk's file related to disciplinary proceedings becomes a matter of public record upon the filing of the proof of service indicating that the complaint has been served upon Respondent. The complaint, reports of the Hearing or Review Boards, and other documents filed in the Clerk's file after the service of the complaint are a matter of public record, unless subject to an order sealing them. The Clerk’s file related to disability proceedings remains confidential unless and until the case is filed in the Supreme Court.
Public files maintained by the Clerk of the Commission may be viewed in the Clerk’s Office within the Commission's Chicago office at 130 East Randolph Drive, Suite 1100. You may make a request to view a file in person, by facsimile at (312) 565-1806, by telephone at (312) 565-2600, or by mail to the Commission’s Chicago office. Closed files located in the storage facility may require two days’ notice before being available for viewing. The Clerk’s office has a file room for examination of files. Files may not be taken apart or removed from the file room, which also has filing bins containing recent public filings, such as Supreme Court opinions, complaints, Hearing and Review Board reports, and briefs filed before the Review Board and the Supreme Court. A computer is available in the file review room for conducting research of disciplinary decisions. The ARDC maintains an online database of disciplinary cases dating back as far as 1923. Recent complaints, answers, pending motions for disbarment, and Supreme Court decisions are also posted on the ARDC website.Compare
E. Immigration proceedingsCompare
F. Other proceedingsCompare
X. Restrictions on participants in litigationCompare
A. Media standing to challenge third-party gag orders
It is an open issue as to whether the press has standing to challenge protective “gag” orders prohibiting trial participants from speaking to the media, but not directly gagging the press, although there are cases suggesting that media should have the right to challenge such protective orders because a gag on participants acts as an indirect restraint on the press. See, e.g., People v. Kelly, 397 Ill. App. 3d 232, 265-66, 921 N.E.2d 333, 363, 336 Ill. Dec.719, 749 (Ill. App. Ct. 1st Dist. 2009) (noting that argument against standing was waived and citing In re J.S., 267 Ill. App. 3d 145, 640 N.E.2d 1379, 204 Ill. Dec. 30 (Ill. App. Ct. 2nd Dist. 1994) for the proposition that a gag order on participants “constitutes an indirect restraint on the press.”)Compare
B. Gag orders on the press
In In re A Minor, 127 Ill. 2d 247, 537 N.E.2d 292, 130 Ill. Dec. 225 (1989), the Chicago Tribune successfully challenged an Illinois trial court’s orders prohibiting it from publishing the name of a minor who had been charged in a shooting and barring it from the courtroom unless it complied. The Illinois Supreme Court held the gag order was an unjustified prior restraint because the defendant’s name had already been placed into the public realm and the state had failed to show any specific threat towards the defendants that would result from publication.Compare
C. Gag orders on participants
In Illinois, gag orders on participants are generally disfavored, but they may be valid in some circumstances. A court-ordered ban on specified expression is considered a prior restraint. See Kemner v. Monsanto Co., 112 Ill. 2d 223, 242, 492 N.E.2d 1327, 1336, 97 Ill. Dec. 463 (1986). Prior restraints are not necessarily invalid, but they are presumed to be invalid because they are the most serious infringement on First Amendment rights. Id. at 243, 492 N.E.2d at 1326, 97 Ill. Dec. at 463. Thus, gag orders on participants in a trial are allowed, but only under limited circumstances. In Kemner, the Illinois Supreme Court held that a trial court can restrain parties and their attorneys from talking about a pending civil trial only if the court’s specific findings show that the participants’ conduct poses a “clear and present danger or a serious and imminent threat” to a fair trial. Id. at 244, 492 N.E.2d at 1337, 97 Ill Dec. at 464. The gag order cannot be vague or too broad. Id. See also People v. Peterson, 2022 IL App (3d) 220206, ¶55 (Il. App. Ct. 3rd Dist. 2022) (awaiting publication) (affirming a gag order on former attorney threatening to go to media and violate attorney-client privilege as a sufficiently imminent threat).
If the party supporting the gag order fails to identify an important or substantial government interest, then the gag order will not be upheld. See Cummings v. Beaton & Assocs., Inc., 192 Ill. App. 3d 792, 797, 549 N.E.2d 634, 638, 139 Ill. Dec. 908, 912 (Ill. App. Ct. 1st Dist. 1989). One Illinois appellate court has held that a party also may be prevented from revealing information gained from the opposing party in the course of preparing for trial, even if the information was received outside the discovery process, although the holding may be limited to the facts since it involves alleged victims of sexual abuse. See Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588, 592, 814 N.E.2d 135, 138, 286 Ill. Dec. 485, 488 (Ill. App. Ct. 3rd Dist. 2004). More recently, an Illinois appellate court has upheld a gag order on the former attorney in the Peterson murder trial, who had threatened to go to the press and break attorney-client privilege by sharing details of his representation of Peterson. The court found this was a sufficiently imminent threat and that there was not a less restrictive alternative. People v. Peterson, 2022 IL App (3d) 220206, ¶55 (Il. App. Ct. 3rd Dist. 2022) (awaiting publication).Compare
D. Interviewing judges
There appears to be no reported Illinois case law on this issue.Compare
XI. Other issuesCompare
A. Interests often cited in opposing a presumption of access
The Illinois Supreme Court has recognized that protection of sensitive financial information is sufficient to impound some court records. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 235, 730 N.E.2d 4, 18, 246 Ill. Dec. 324, 338 (2000). However, the sufficiency of the interest to rebut openness also depends on the record at issue. Id. The court in Skolnick reversed an order sealing a pleading when protection of financial information was the justification, but the court said its analysis would be different if the sealed documents were discovery documents. Id. at 236, 730 N.E.2d at 19, 246 Ill. Dec. at 339. The distinction turned on the breadth of the documents and the tradition of openness. Id.
When the protection of business or financial information is the justification for sealing, the order still must be narrowly tailored to the documents containing that information. A.P. v. M.E.E., 354 Ill. App. 3d 989, 996, 821 N.E.2d 1238, 1247, 290 Ill. Dec. 664, 673 (Ill. App. Ct. 1st Dist. 2004). The Illinois trial courts also have the power to impound records in order to protect the parties’ trade secrets. Deere & Co. v. Finley, 103 Ill. App. 3d 774, 776, 431 N.E.2d 1201, 1203, 59 Ill. Dec. 444, 446 (Ill. App. Ct. 1st Dist. 1981).
The Illinois Supreme Court has recognized national security as the type of compelling interest that could overcome the presumption of openness to court proceedings. Skolnick v. Altheimer & Gray, 191 Ill. 2d at 236-37, 730 N.E.2d at 19, 246 Ill. Dec. at 339; A.P. v. M.E.E., 354 Ill. App. 3d 989, 821 N.E.2d 1238, 290 Ill. Dec. 664 (citing Skolnick for the proposition that sealing papers filed with the court requires a compelling interest like national security).
Illinois courts have sealed and redacted the names of victims of sexual abuse to protect their privacy, which is recognized as a compelling interest against disclosure. In re Minor, 205 Ill. App. 3d 480, 491, 563 N.E.2d 1069, 1076, 150 Ill. Dec. 942, 949 (Ill. App. Ct. 4th Dist. 1990) (affirming a prohibition on identifying the minor victims of sexual abuse where the reasoning for the order hinged on the type of abuse and the size of the community); see Dittrich v. Gibbs, No. 93 L 003, 2002 WL 32113762, at *3 (Ill. Cir. Ct. June 19, 2002); Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588, 589, 814 N.E.2d 135, 136, 286 Ill. Dec. 485, 486 (Ill. App. Ct. 3rd Dist. 2004). In Minor, the court affirmed an order prohibiting further dissemination of the minor victims’ names when the type of abuse and the size of the community were the justifications for the order. Minor, 205 Ill. App. 3d at 491, 563 N.E.2d at 1076, 150 Ill. Dec. at 949. The court said the state has a compelling interest in protecting these minors. Id. Even when an interested party has been allowed to view juvenile records involving sexual abuse, the minor victim’s name was redacted. In re K.D., 279 Ill. App. 3d. 1020, 1022, 666 N.E.2d 29, 31, 216 Ill. Dec. 861, 863 (Ill. App. Ct. 2nd Dist. 1996).
The court in Dittrich also sealed a list of thirty priests because there was no evidence that some of the priests were involved in misconduct. 2002 WL 32113762, at *5. The court reasoned that the reputations and careers of the innocent priests could be ruined and disclosure would not add to the public debate. Id. at *6.
Illinois recently enacted a law restricting disclosure of the identity of adult victims of sexual assault and permitting a court to issue a gag order on any member of the public present in related court proceedings “from further disclosing the adult victim’s identity.” 2021 Illinois Senate Bill 2340, Illinois Public Act 102-0652 (effective Jan. 1, 2021).
Illinois courts have recognized various rights to privacy — including financial and medical — as rebutting the presumption of openness. Skolnick v. Altheimer & Gray, 191 Ill. 2d at 235, 730 N.E.2d at 18, 246 Ill. Dec. at 338. However, mere embarrassment or a preference for privacy do not rise to the level of a compelling interest. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1075, 598 N.E.2d 406, 411, 174 Ill. Dec. 209, 214 (Ill. App. Ct. 4th Dist. 1992); Skolnick, 191 Ill. 2d at 235, 730 N.E.2d at 18, 246 Ill. Dec. at 338.Compare
B. Cameras and other technology in the courtroom
In Illinois, courts have allowed cameras in the courtroom with greater frequency since 2012. In an order entered January 24, 2012, the Illinois Supreme Court authorized the circuit courts to allow extended media coverage in courtrooms on an experimental, circuit-by-circuit basis. On February 22, 2016, the Illinois Supreme Court adopted the program as permanent. See Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois, M.R. 2634 (2016). Under the program, the definition of ‘extended media coverage’ is “any media recording or broadcasting of proceedings by the use of television, radio, photographic, or recording equipment for the purpose of gathering and disseminating news to the public.” Id., Sec. 1.1. Cameras are allowed in state courtrooms only when authorized both by the Supreme Court and the trial court (known as the Circuit Court) in the circuit where the judge sits. See Ill. Sup. Ct. R. 44.
Media must request permission to broadcast, televise, record, or photograph trial proceedings. Administrative Order, M.R. 2634, Sec. 1.2. Media members must contact the circuit court’s media coordinator and submit all requests at least 14 days in advance of the time the proceeding is scheduled to begin. Id., Sec 1.3. If the proceeding is not scheduled at least 14 days in advance, the request should be submitted as soon as practicable after the proceeding is scheduled. Id. The judge may refuse, limit, amend, or terminate photographic or electronic media coverage any time. Id., Sec. 1.2. A decision by a judge to deny, limit or terminate extended media coverage is not appealable. Id.
Extended media coverage is not allowed in trial proceedings that involve: juveniles, divorce, adoption, child custody, evidence suppression, trade secrets, or other cases that Illinois law requires be held in private. Id. No more than two video cameras and two still photographers may cover a particular proceeding. Id., Sec. 1.4.
The Seventh Circuit prohibits the taking of photographs in, or radio or TV broadcasting from, the courtroom, any other place on the same floor as the courtroom, the judges’ chambers, and corridors adjacent to the judges’ chambers, except where allowed by the court. 7th Cir. R. 55.
The Northern District prohibits the taking of photographs, taping, and radio and television broadcasting on floors with courtrooms and certain other areas whether or not court is in session. N.D. Ill. R. 83.1(c). In addition, a joint order by the Seventh Circuit and Northern District establishes a media area in the lobby of the Dirksen Federal Building for use by media personnel during courthouse hours to permit members of the media to shoot footage and interview persons. See Joint Courthouse Security Order (August 23, 2018). The same rule prohibits any member of the media from soliciting or conducting any on or off-camera interview for broadcast or publication in the courthouse lobby other than within the designated media area, and from leaving the media area to film, photograph or interview persons passing through the courthouse lobby. Moreover, the same order prohibits media personnel from recording any video image of any uniformed courthouse security personnel on duty within the courthouse lobby or any image of any security equipment or device in the lobby. The dissemination of such a recording by someone in the media also violates the order.
The Central District does not allow electronic devices, including cameras and audio or video recorders, in the courthouse, except where the presiding judge in a case has granted a request to allow the equipment. C.D. Ill. R. 83.7. The Southern District prohibits the taking of photographs, audio recordings, and radio and TV broadcasting on the same floor as a courtroom, except when authorized by the court. S.D. Ill. R. 83.5; see also Fed. R. Crim. P. 53 (prohibiting the taking of photographs in or broadcasting from the courtroom during criminal proceedings).
Despite the varying local rules of the federal district courts in Illinois, the Seventh Circuit, by a resolution adopted by the Judicial Council of the Seventh Circuit on October 16, 1996, indicated that “the taking of photographs, making or audio or video recordings, or electronic broadcasting of judicial proceedings in or from a court room, must not be permitted by any district court . . . in this circuit.” On September 28, 2009, Chief Judge Frank Easterbrook admonished a district court judge who allowed video recording and live broadcasting (plus still photography) of a civil proceeding as they were contrary to the policy of the Judicial Council. Thus, although there are local rules on this issue, the Seventh Circuit’s policy clearly must be followed. In 2018, the Seventh Circuit adopted Operating Procedure 11, which allows for a “request for video-recording” to “be submitted to the Clerk of the Court not later than one week before oral argument.”
At the state level, cameras are permitted in appellate courts and the Illinois Supreme Court, and in trial courts when authorized by the Illinois Supreme Court. Ill. Sup. Ct. R. 44(b)(1); Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois, M.R. 2634 (2016).
Taking photographs is allowed during proceedings in state courtrooms where authorized by the Supreme Court and the Circuit Court in the circuit where the judge sits. See Ill. Sup. Ct. R. 44; Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois , M.R. 2634 (2016).
Webcasting is allowed under the same rules that allows broadcasting from the courtroom. In state courts, broadcasting is allowed where authorized by the Supreme Court and the Circuit Court in the circuit where the judge sits. Ill. Sup. Ct. R. 63(A)(8); Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois , M.R. 2634 (2016).Compare
C. Tips for covering courts in the jurisdiction
There is no dedicated press liaison for the Illinois state courts. The Office of Communications and Public Information is responsible for media relations for the Illinois Supreme Court, and the Director of Communications is Chris Bonjean, who can be reached at (312) 793-2323. The federal district court for the Northern District of Illinois in Chicago has a Public Information Officer, Julie Hodek, who can be reached at email@example.com or phone at (312) 435-5693.
The state system: Illinois has a supreme court, appellate courts, and circuit courts. The Illinois Supreme Court sits in Springfield, the state capital. The appellate courts sit in the state’s five judicial districts. The circuit courts fall under the state’s 24 judicial circuits, which are divided among the five appellate districts. Each circuit covers multiple counties, although a handful of the circuits are one-county circuits (Cook, DuPage, Kane, Lake, McHenry, and Will,). Each appellate district includes multiple circuits. The exception is the Circuit Court of Cook County, which is the only circuit that falls under the First Appellate District.
The circuit courts are made up of several divisions, including law, chancery, criminal, family, probate, and county divisions. The Circuit Court of Cook County has two departments: municipal and county. The Municipal Department generally hears civil actions for money no greater than $30,000. The County Department has eight divisions: law, chancery, criminal, domestic relations, county, probate, juvenile, elder law and miscellaneous remedies division. The Law Division hears civil actions for money greater than $30,000. The Chancery Division hears matters such as class actions and requests for injunctions and other equitable remedies.
The Illinois Supreme Court has seven justices. Three of them are elected from the First District, and the other four are elected from each of the four remaining judicial districts. Each justice serves a ten-year term. Appellate judges also are elected and serve ten-year terms. The First District has 24 judges, and the other four districts have between seven and nine judges each. The circuit courts have two types of judges: circuit judges and associate judges. Circuit judges are elected and serve six-year terms. Each circuit has a chief judge elected by its circuit judges. Associate judges are appointed by circuit judges for four-year terms. An associate judge cannot hear criminal felony cases unless authorized by the Illinois Supreme Court.
Obtaining transcripts: Contact the clerk’s office at the relevant court. Forms for requesting transcripts are available online.
Decorum issues: You need to check with each courthouse to determine its rules about cell phones and computers. Some courts prohibit cell phones if they have cameras. It is generally not acceptable to be eating or drinking in the courtroom especially while proceedings are ongoing.Compare