It’s time to make Illinois courts subject to the public-records law

Illustration showing a courthouse with a lock and chain around it and papers floating above that read

Like most journalism organizations, Injustice Watch routinely uses the state’s public-records law to request public documents from our government: Records about lockdowns inside Illinois prisons. Emails between advisers to Mayor Lori Lightfoot about the Chicago Police Department’s U visa certification program. Data on traffic stops and arrests by CPD.

But as a newsroom focused on the court system, we face a significant obstacle: The judiciary is not subject to Illinois’ Freedom of Information Act, or FOIA.

When the legislators who drafted the FOIA defined the types of public bodies subject to the law (“all legislative, executive, administrative, or advisory bodies of the state…”) they left out the word “judicial.” Judges, including the Illinois Supreme Court, have used this omission to carve themselves out of the law.

In 1995, the Second District Illinois Appellate Court even ruled that the administrative functions of the courts are not subject to FOIA — never mind that the law clearly states “administrative” bodies are included. Subsequent court decisions have affirmed this reading and exempted other judicial branch offices, including county clerks of court, from disclosing public records under FOIA.

All this means that crucial information about the operations of our state’s court system is obscured from public view. Because of the judicial FOIA loophole, the public can’t access records about:

  • How the Illinois Supreme Court spends its more than $500 million annual budget.
  • How fines and fees collected by the various court clerks are distributed or even how much is collected.
  • The kinds of programs that people on probation must complete or how many successfully do so.
  • The employment history or disciplinary records of the nearly 4,000 non-judicial employees of the clerk of the Circuit Court of Cook County and the office of the chief judge, including probation officers, “youth development specialists” at the juvenile detention center, or the child advocates who represent abused and neglected kids in court.

All this could change soon. State Rep. Curtis Tarver II, D-Chicago, introduced a bill last week, House Bill 2455, to close the judicial FOIA loophole and expressly make the court system in Illinois subject to the public-records law. (Tarver introduced a version of the bill last year, but it went nowhere.)

HB2455 can’t come soon enough. Illinois is the only state in the country where these sorts of financial and administrative records of the courts are not available either through FOIA or by court rules or other state laws, according to research by the Chicago Appleseed Center for Fair Courts and the Civic Federation. In a court system such as Cook County’s — with a history of corruption — it’s a travesty the courts have evaded even the most basic level of transparency for so long.

I first became interested in the judicial FOIA loophole when I was looking into issues at the Cook County juvenile detention center as a reporter at the Chicago Reporter. In 2018, I requested a slew of records from Cook County Circuit Court Chief Judge Timothy Evans, whose office oversees the juvenile jail. I was shocked to learn that I could more easily access information about the conditions inside the adult jail, which is run by the Cook County Sheriff’s Office, than about a detention center holding kids as young as 12. I convened a meeting of journalists, advocates, and lawyers whom I thought might be interested in working to solve this problem. Five years later, several of those organizations have formed the Court Transparency Coalition, which is gathering support for Tarver’s bill. (Injustice Watch is not a member of the coalition but has participated in meetings to discuss issues with court access.)

To Evans’ credit, his office eventually provided detailed data showing every time a young person at the detention center was confined to their room. The data formed the basis of my 2018 investigation into the juvenile jail’s increased use of room confinement as a form of discipline, even as national experts told Evans and the detention center’s leadership that practices were harmful to youths. My story prompted hearings before the county board and led Evans to create a blue-ribbon committee to investigate the use of room confinement. (In a report last year, the committee agreed with outside experts that it was used too often.)

Since I arrived at Injustice Watch in 2019, I have repeatedly requested updated room confinement data from the chief judge’s office to see whether anything has changed. Evans’ office stonewalled me again and again. It was only when I reached out again for a comment from Evans on this piece that his office finally provided me with the data that I’ve been requesting for years. (A spokesperson said in an email collecting the data was “time-consuming,” and my deadline for this commentary “was only one of many factors that determined when it was delivered to you.”)

If HB2455 passes, requests for information from the courts would not just depend on the mercy of the chief judge or the clerk of the court in office at any given time. They would have five business days to respond to a records request — just like every other public agency in the state. The public would be able to appeal denials of FOIA requests to the Illinois attorney general or file lawsuits to force them to comply. The courts could still withhold personal information, juvenile court records, and other types of information already exempt from FOIA or protected by state law, including misconduct complaints against sitting judges, which are confidential under the Illinois Constitution.

This bill isn’t about making our jobs at Injustice Watch easier. It’s about ensuring equal access to justice in Illinois. Every day, thousands of people enter courthouses across Illinois seeking justice. They might be asking for protection from an abuser, fighting to keep their home, working to keep custody of their children, or navigating a criminal case as a victim or a defendant. We know the court system has historically favored people with wealth and racial privilege and disproportionately harmed those without. But the public can only fight for a more fair and just court system if we have complete information about the workings of the courts. Without transparency, it’s impossible to have true accountability.

Jonah Newman is managing editor of Injustice Watch. The views expressed in this commentary are his and do not necessarily reflect the views of Injustice Watch, its staff, or its board of directors.