Right of Access to Public Documents

I’d be willing to bet that most people never considered the wealth of information, from the mundane to the scintillating, contained in court files throughout this country.

Want to know if your neighbor has been charged with driving under the influence? Want to know if your employer has been sued for sexual harassment or discrimination? Want to know how much the former Mrs. Jones is getting in her divorce? More often than not, the answers to these questions are contained in court files throughout Illinois. Depending on your circumstances, such information might empower or embarrass you. For just a hint at what information is available, you might want to spend a few minutes at www.thesmokinggun.com to check out the legal travails of the rich and famous.

The general rule in Illinois is that all court records required to be kept by law are open for inspection by the public. This rule is in harmony with the U.S. Supreme Court’s admonition that the public interest is best served by increasing its knowledge about what happens in our judicial system. In other words, in keeping with our democratic principles and the First Amendment of the Constitution, the public has an interest in making sure that the judicial system is both effective and fair. Secrecy impedes that noble goal.

But this general rule is subject to an important exception: Courts may limit access to court files where disclosure might “become a vehicle for improper purposes.” What does this mean?

Consider the case where one party is accused of breaching a confidentiality agreement by sharing trade secret information with competitors. The accusing party has the burden of proof of showing that the information was actually disclosed. This would, obviously, be hard to do without describing the actual information at issue. Faced with the choice of further public disclosure of the treasured information or prosecuting a claim against the alleged blabbermouth, the aggrieved party would be smart to limit exposure by simply dropping the whole matter.    

To accommodate these, and other similar concerns, Illinois courts are permitted to restrict access to court files. This is called “sealing” the records, and it may be done only when it is “essential to preserve higher values and is narrowly tailored to serve that interest.” Unfortunately, Illinois law provides little guidance on the specifics of applying those principles.

Should the man who wants to sue the manufacturer or installer of his toupee for providing a bad “rug” be allowed to proceed under a false name so as not to damage his reputation? Illinois case law would suggest not. Perhaps a harder case is where an individual is charged with sexually molesting a minor in a civil suit for damages. Should the alleged molester’s identity be kept secret? Again, the answer appears to be no.

Some records involving minors are subject to specific exceptions to the general rule of full disclosure. In that context, adoption proceedings and actions where a minor has been sexually molested are obvious examples.  

In short, there is no hard and fast rule as to what court records may be sealed. Much discretion is left to the court to decide each case on its own merits. Often, absent an objection from a third party, court records will be sealed when all parties agree that it is appropriate. However, when third parties raise objections to the sealing of records, such as news organizations, courts will examine the matter further to decide whether there is a compelling reason to override the public’s right of access. The bottom line: With few exceptions, assume that anything introduced into the court’s file will be available to your nosy neighbor.

The public’s access to records also extends well beyond just court records to other state and federal documents. Perhaps you will recall that Hillary Clinton’s emails from her tenure at the State Department were the subject of a FOIA (Freedom of Information Act) request? Wonder why the public can request those documents? Or why there was an investigation into the City of Springfield’s so-called “Shredgate”?

In Illinois, several statutes dictate that the workings of our state government be open to public inspection. Exceptions include certain personnel matters, matters related to pending litigation, discussions regarding certain business and finance issues, law enforcement matters, student/education and welfare recipient matters and records that may infringe on personal privacy.

The federal government has enacted similar laws that allow the public access to the documents our government creates. The exemptions are similar to those in Illinois. Fortunately, the law requires that the government indicate what information is being withheld and on what basis so that challenges may be lodged. And, don’t forget that your natural curiosity won’t come cheaply - - there may be a charge to recover the direct costs of search, review and duplication, unless the costs are nominal. Before asking for the JFK assassination files, make sure you ask to see the applicable fee schedule.