To help shine light on Illinois’ judicial branch, BGA Policy is proud to lead the Court Transparency Coalition, which recommends that the judicial branch be added to the state’s Freedom of Information Act. The Coalition, composed of BGA Policy, The Civic Federation, the Chicago Appleseed Center for Fair Courts, Chicago Community Bond Fund, Chicago Council of Lawyers, Chicago Justice Project, Illinois Justice Project, the League of Women Voters of Illinois, Common Cause Illinois, Reform for Illinois and Cabrini Green Legal Aid has committed to advocating for change to FOIA by amending the FOIA law to include the judiciary.
The state’s Freedom of Information Act allows anyone to request information from the government and is one of the most important tools people have to hold public officials and the government accountable. The information can be in the form of documents, datasets, or even communication via email and text: They’re called “public records” for a reason. (You can learn more about FOIA here, and how to file a FOIA request here.)
By guaranteeing people access to documents, datasets, email communications and other public documents, FOIA acts as a spotlight into nearly every corner of Illinois government – except the judicial branch. Courts in Illinois – at the county and state level – currently are not required to comply with disclosure requirements that apply to every other branch of government.
Illinois’ exemption of the judicial branch from FOIA is not the norm nationwide. Statistical information from the courts is subject to open access laws in 27 states, and 15 more have court rules and policies that make the data available.
But a quirk in the wording of Illinois’ FOIA – it does not explicitly name the judicial branch – has allowed the courts to interpret the law to mean they are exempt from FOIA. In other words, the judiciary has decided it does not need to be held accountable to the public in the same way other parts of the government are. This is a disservice to the people of Illinois and seems contrary to the original intention of FOIA.
Duties and Organization of the Courts
The Illinois Court system has three levels of courts; the first is the circuit court – with 24 districts – where most cases start; the second level is the appellate court, with five districts, which hears almost all appeals from the circuit court; and finally there is the Supreme Court. There are some cases which go directly to the Supreme Court, and there are some appeals that go from the circuit level directly to the Supreme Court, but for the most part they handle appeals from the appellate court.
Also of vital importance in the judicial branch is the Administrative Office of the Illinois Courts and the Clerks of Court. The Administrative Office of the Illinois Courts is the administrative arm of the Illinois Supreme Court, led by an Administrative Director appointed by the Supreme Court. The Administrative Office has 10 divisions which help support courts throughout the state. There are Clerks of Court at all three court levels in Illinois. At the circuit level, there are 102 circuit court clerks, one in each county, which are elected positions, whereas the Supreme Court and appellate courts appoint their clerks. Regardless of which level of the judiciary they work for, the clerks of court help run day-to-day operations of the court.
Understanding the structure of the courts is important because all courts ultimately need to answer to the Supreme Court who has “[g]eneral administrative and supervisory authority over all courts”. The Chief Justice exercises this power with help from the Administrative Office of the Illinois Courts.
The structure of the court is important to understand what information we are and aren’t able to obtain from the courts.
What Can and Can’t We Get?
FOIA is the primary statute that provides for public access to information about government, and so it is the statute which provides for the greatest amount of access. While some court records are already accessible to the public, they are very limited, and the access exists not through FOIA but instead through other laws. For example, court records are already public record pursuant to the Clerks of Courts Act. This is an issue because relying on other laws leaves a patchwork at best, and glaring holes at worst.
Without FOIA, the public is not guaranteed access to basic court records such as policies, procedures, training manuals, operational and facilities information, budget documents, and data and statistical information.
There are plenty of items that would not be accessible after expanding FOIA to the judicial branch.The current FOIA law includes certain exemptions that prevent the release of certain protected information or allow for the release of redacted information, which would also apply to the judicial branch of government. This includes violations of personal privacy, as well as “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed,” an important exception that would allow for judges to draft opinions without worrying about their drafts getting the same scrutiny as finished copies.
Due to the wide range of duties ascribed to the courts there is much relating to the courtroom as well as plenty of activities outside of the courtroom, which the courts handle and is therefore inaccessible to the public.
To understand how this plays out in reality, Maya Dukmasova, a reporter for Injustice Watch, a news organization focused on the judiciary, posted on twitter about being unable to find out the number of cases a judge sees in a year. This also includes court performance measures, judges’ schedules, copies of judicial training materials and how funding is distributed by the Administrative Office of the Illinois Courts to local courts and services.
Other examples of information researchers and journalists report being unable to obtain from court agencies include data about the number of people who are supervised by Pretrial Services programs, information about juvenile probation programs including enrollment and program outcomes data and information about juvenile detention centers.
The judicial branch also oversees probation and pretrial services, including oversight of the 16 juvenile detention centers in Illinois. Since probation records fall under the purview of the courts they are FOIA-exempt. Illinois is one of only three states where probation and pretrial program data is not subject to FOIA or public records laws.
Concerning the juvenile detention centers alone, some of the records that are inaccessible are:
- The types of programs the juvenile probation department runs, the number of enrollees and subsequent outcomes
- Hiring processes for superintendents of the juvenile detention centers
- Data relating to solitary confinement in the juvenile detention centers
- Training materials and policies used at the juvenile detention centers
In some of these cases juvenile detention centers may yield some of the information, might decline answering or may never respond to requests. When other agencies subject to FOIA refuse to turn over public documents, requesters can turn to the Public Access Counselor who helps resolve disputes over requests for public documents. But since the judicial branch does not fall under FOIA, there is no one to turn to when an agency decides not to respond.
Information regarding disciplinary action taken against judges also is largely inaccessible to the public. This information is critical in helping the public hold government officials accountable, and there have been troubling examples of misconduct in the past.
In the 1980s, corruption and bribery in Cook County’s judicial system led to indictments of 17 judges and eight court officials. The Cook County corruption investigation took the combined efforts of local authorities, the police, and the FBI in what became known as Operation Greylord.
More recently we have seen the #MeToo movement shine light into sexual harrasment in Illinois’ other branches of government but the judicial branch remains in the dark. This does not mean that sexual harrasment doesn’t happen.
One Cook County Judge, Judge Mauricio Araujo, allegedly called a female prosecutor a “bitch” and was reassigned to administrative work. Judge William B. Raines’ made comments about a female attorney, and a fellow judge monitored him going through court-ordered sensitivity training and gender bias counseling. The resulting report was not subject to FOIA.
Data collection and analysis allows government agencies to make sure that they are performing their duties effectively and efficiently. Data analysis also is an important part of ensuring that the public can trust the judicial system. This comes from the non-profit organization National Center for State Courts, which “[promotes] the rule of law and improving the administration of justice in state courts” and has a detailed Data Governance Policy Guide from their Court Statistics Project. Public access to the data can even reduce the burden of the courts to produce their own reports, thereby enabling researchers, journalists and academics to analyze and report data that otherwise would not come to light.
The lack of public oversight in this area hasn’t been without consequence. A task force set up by the Supreme Court began reviewing data collection and analysis practices of local jurisdictions and found that “[m]ost counties have never systematically performed data analyses to examine their pretrial system or practices.”
The administrative role of courts in the state goes far beyond juvenile detention. Below is the organization chart for the Office of the Chief Judge of Cook County. It shows a wide number of offices fall under the purview of the courts, including the Municipal Department, which oversees the Forcible Entry and Detainer Section otherwise known as Eviction Court. This can mean eviction data is FOIA-exempt and inaccessible to the public. Each of the offices which fall under the Chief Judge are exempt from FOIA and subsequently shielded from public scrutiny.
The debate surrounding House Bill 234, which codified FOIA in Illinois, would suggest that the legislature intended for the judicial branch to be covered. When the law was debated in 1983, Illinois was the only state without some kind of public records law.
House Bill 234 was introduced by Rep. Barbara Flynn Currie, a Democrat from Chicago who was in the General Assembly from 1979 to 2019 and held a variety of leadership positions in that time. While introducing the bill on May 25, 1983, Currie said:
House Bill 234 applies to every agency in State of Illinois Government, and it applies to every other government in the State of Illinois. This House Bill 234, if we adopt it, would become the overriding state statute in this area, would provide for openness at every level of government.
Shortly after, Currie answered questions from her colleagues in the House. One came from Dwight Friedrich, a Republican who served in both the House and the Senate at different times. Rep. Friedrich and Rep. Currie had the following exchange on whether or not the proposed FOIA law would cover the one part of the judicial branch, the Supreme Court:
Friedrich: “[I]f they’re handling public funds or the fees paid in by an attorney for his registration, that that is a public fund that I could investigate?”
Currie: “All I can tell you, Representative Friedrich, is that any public agency, public body in the State of Illinois will be subject to the provisions of House Bill 234 if and when it becomes law.”
Friedrich: “And the Supreme Court is, in that role then, a public body?”
Currie: “I believe that the Supreme Court is already under the State Records Act which means that with respect to [public] funds they are already covered.”
Concluding his questioning of Rep. Currie, Rep. Friedrich went on to say:
“I just want to get it on the record, if this thing passes, that at least it was the intent of the Legislature that they [the courts] be subject to investigation and audit just the same as everybody else.”
The debate surrounding FOIA when it was introduced, and the expansive language used, suggest it was the original intent of the legislature to include the judicial branch under FOIA. However, despite this debate, the judicial branch was omitted from the definition of “public body” in the FOIA statute. This has essentially allowed the courts to use case law to sever itself from FOIA. As reported by the Civic Federation, in Copley Press, Inc. v. Administrative Office of the Illinois Courts, the court found that the judicial branch is not a “public body,” and since only “public bodies” are subject to FOIA the courts are exempt from FOIA.
Illinoisians need to know what their government is doing at the legislative and executive level, in town halls, county buildings and remote bureaus all across the state. The judicial branch is no exception. Courts have the power to deprive people of their liberty, separate them from their property and protect their safety. They adjudicate disputes and protect peoples’ rights. The public has a vital interest in gaining access to the records created by this vital branch of government.
BGA Policy is proud to lead the Court Transparency Coalition in its mission to add the judicial branch to the Freedom of Information Act in the state of Illinois. The Coalition will also provide the public and stakeholders with information on the ramifications of requiring the courts to comply with FOIA, upholding BGA Policy values of transparency and good governance.
In the 2023 legislative session in Springfield, the coalition will help introduce legislation to make this long awaited concern into state statute. Illinois must join 41 other states into making the judiciary branch of government truly co-equal.