Did you know that all of the filings in your Chicago, Illinois, divorce are accessible to the public? How do you keep your divorce file private? An order forbidding the perusal of otherwise public divorce records is called sealing your divorce court file.
In Cook County, Illinois, (which includes Chicago) you can’t look at the documents on-line (yet) but anyone can walk to the 8th floor of the Daley Center and look up your case file on the public access computers or request your physical case file from the county clerk…and they don’t even notify the parties or keep a record of who is looking up these files.
The Illinois Clerk of Courts Act states: “All records, dockets and books required by law to be kept by such clerks 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 and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.” 750 ILCS 105/16(6)
“Under Illinois law any document which is part of the public court file…is subject to a common law, as well as a first amendment, right of access to court files.” Fidelity Financial Services v. Hicks, 267 Ill. App. 3d 887, 892 (Ill. App. Ct. 1994)
This law seems to say that everything in any court file is accessible but, obviously, some things should stay private like financial details, domestic and sexual abuse.
Illinois doesn’t have a statute or a Supreme Court Rule which states explicitly how to sealing a court file. Illinois courts have the authority to seal a court file as part of their inherent power to control the records under their purview. Skolnick v. Altheimer & Grey, 191 Ill.2d 214, 231 (2000)
So, you can file a motion to seal your divorce file under the authority of the court itself and the court can issue an order to the clerk to seal that file. The file can only be seen by an outside party after a subsequent order allows the court file to be unsealed.
In Re Marriage of Johnson, 232 Ill. App. 3d 1068, gives us direction on what we need to show the court in a motion to seal a file: 1) A compelling interest that favors restricted access AND 2) the protective order is drafted in the manner least restrictive to the public’s interest.
While the rule that “everything must be accessible” seems very broad, the exception to that rule is even broader.
A “compelling interest that favors restricted access” could be literally anything from “I don’t want to disclose the details of my private finances” to “I don’t want my dog’s name published.” It’s all up the judge and, in my experience, judges take a very liberal view of what can be sealed.
The judge then must determine how much of the case file should be sealed. In a divorce case, sealing some of the case file but not all of the case file can be seen as overly cumbersome to the Clerk of the Circuit Court. For simplicity’s sake, a case file can be sealed in its entirety.
Once sealed, a court record stays sealed even if the case is opened again. “Cases and documents within a case identified as impounded, sealed, secured or otherwise confidential in the circuit court shall remain as such when filed in the reviewing courts, and the parties of record shall have the same level of access, if any.” Ill. Sup. Ct. R. 371
Alternatives To Sealing An Illinois Divorce File.
There are alternatives to sealing a divorce case file that keep private information secret (or at least vague and/or anonymous).
1) Draft your pleadings in a vague manner. There is no reason to specify all the details of a relationship in the petition for dissolution of marriage unless you expect to default your spouse and need to prove up those details to the judge and verify that your spouse was on notice of those details. Example: “The parties own a car, a 2016 Chevrolet Cobalt…that shall be awarded to the Petitioner.” It is often enough to simply write, “The parties assets shall be divided equitably.”
2) When completing discovery, it is not always necessary to file a notice of service of discovery every time you request or tender discovery. “Secrecy is fine at the discovery stage, before the material enters the judicial record.” Baxter Intern., Inc. v. Abbott Laboratories, 297 F. 3d 544 – Court of Appeals, 7th Circuit 2002. Typically, evidence such as the date on an email is sufficient to prove the documents were requested or sent. Notices of filing create an index of of requested and tendered discovery for the public to consume (along with being costly which must be weighed against notices of original purpose of thoroughness).
3) Participate in arbitration in lieu of the public court process. “The settlement of a dispute by arbitration is encouraged.” Marriage of Haleas, 2017 IL App (2d) 160799. When a divorce matter is argued and resolved by arbitration the only documents that need to go into the public record are the final orders.
4) The final decrees can be incorporated by reference. The Judgment for Dissolution of Marriage can describe a Marital Settlement Agreement and an Allocation of Parental Responsibilities and Parenting Time without actually including them in the file. The words “are incorporated by reference” are usually sufficient. Just make sure you and your divorce attorney keep a copy!
Arguments Against Sealing An Illinois Divorce File
Parties are usually in agreement to seal a court file in an Illinois divorce. The person who does not want the file sealed is usually the judge. After all, this is America where courts are an open forum. There is a large amount of persuasive federal case law against sealing any cases of any kind.
“Documents that affect the disposition of federal litigation are presumptively open to public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622 F.3d 697, 701 (7th Cir.2010)
“The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret.” Doe v. Smith, 429 F.3d 706, 710 (7th Cir.2005)
“Secrecy is profoundly inimical to this demonstrative purpose of the trial process. Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice.” Richmond Newspapers, Inc. v. Virginia, 448 US 555 – Supreme Court 1980