May 14, 2021
Because the judiciary in Illinois is not subject to the Freedom of Information Act (FOIA), data disclosure and responses to requests for information are discretionary, despite the fact that individual case files are a matter of public record and are open to any member of the public for inspection. Illinois differs from the majority of other states in this respect: 44 other states in the U.S. either require or permit disclosure of data regarding administrative court functions, either via a freedom of information law or a judiciary-specific statute or rule. Without access to aggregate information, it is difficult for researchers, the media and justice system stakeholders to evaluate court systems and hold public officials accountable.
This summary examines current practice in Illinois and how Illinois compares to other states on required public disclosure of court data.
Treatment of the Judiciary in the Illinois Freedom of Information Act
Unlike in many other states, the judicial branch in Illinois is considered entirely exempt from FOIA requirements. The Illinois Freedom of Information Act does not discuss the judiciary at all. However, through case law described below, the courts have interpreted the omission of the judiciary from the definition of “public body” in the FOIA statute to mean that the judicial branch is exempt.
- Copley Press, Inc. v. Administrative Office of the Illinois Courts (Illinois Appellate Court, 1995) – Established that based on the rules of statutory construction, the statute’s inclusion of the legislative and executive branch in the definition of “public body” but silence as to the judicial branch reflected the legislature’s intent to exclude the judicial branch from FOIA requirements. The Court found that a pretrial services agency (which reports to the Chief Judge) is part of the judicial branch and not required to comply with FOIA disclosure requirements.
- Newman, Raiz & Shelmadine, LLC v. Brown (Illinois Appellate Court, 2009) – Established that a clerk of the circuit court is a nonjudicial member of the judicial branch.
- Bobcock v. McGuire (Illinois Appellate Court, 2017) – Established that the Clerk of the Circuit Court of the 12th Judicial Circuit was not subject to FOIA.
- Nelson v. Kendall County (Illinois Supreme Court, 2014) – Found that while FOIA does not include the judicial branch or court-affiliated entities, the State’s Attorney is part of the executive branch and therefore subject to FOIA.
There is no statutory or constitutional language that would prevent a change in state law to make the judicial branch or certain functions of the judicial branch subject to FOIA.
Court Data Publicly Available in Illinois
While the courts in Illinois are not required by law to disclose information, the Illinois Supreme Court releases some statistical and financial information about the Illinois Supreme Court, Appellate Court and Circuit Courts through annual reports. The Supreme Court requires circuit court clerks to submit annual financial audits and caseload information, which is then compiled into a statewide statistical summary. These statistical summaries include the following circuit court data for all Illinois counties:
- Caseload statistics and case clearance rates (the number of cases disposed of compared to the number of cases filed) by case type within each area of law – criminal and quasi criminal, civil, domestic relations, and juvenile;
- Financial information by county including revenues and operating expenditures and disbursements of funds;
- Arbitration caseloads;
- Adult and juvenile probation caseloads by county; and
- Felony dispositions and sentences.
These annual statistical summaries provide helpful information about the overall number of cases within each county and high-level metrics and outcomes, as well as information about how much money flows through each Clerk of the Circuit Court and how it gets disbursed. In order do more detailed evaluation beyond these summaries, however, one would need to submit a special request to the circuit court clerk of the county. Some circuit court clerks might provide the information if it is available, but in other instances a circuit clerk could simply state they are not subject to FOIA and therefore not obligated to provide the information requested.
A handful of circuit court clerks in Illinois provide statistical information on their websites similar to that reported in the Illinois Supreme Court’s annual reports. A scan of the 25 most populous counties in Illinois (with population above 55,000 and the smallest of these being Whiteside County) found that the following circuit clerks provide case statistics on their websites:
- The McHenry County Circuit Clerk posts annual case filing statistics listed by individual case category and foreclosure statistics.
- The Madison County Circuit Clerk posts a report showing total case filings by individual case category for years 2005-2020.
- The Sangamon County Circuit Clerk posts general case filings statistics.
- The Kendall County Circuit Clerk posts annual case filings by case type.
- In the 17th Judicial Circuit, consisting of Winnebago and Boone Counties, the Circuit Clerks do not post statistical information to their websites but the 17th Judicial Circuit website publishes quarterly case statistics for both counties which include the number of cases filed, closed and pending.
These high-level case filing statistics are only useful for understanding total case volumes, and do not provide enough information to do more detailed analysis.
Illinois’ largest county, Cook County, has a process for members of the public to submit requests for Cook County Circuit Court data in writing to the Chief Judge. If the request is approved, the Chief Judge directs the Clerk of the Circuit Court to process the data request. Responses to requests for information are discretionary. If a request is for a large amount of data, a response can take months and the Clerk may charge a fee. The Cook County Chief Judge also reinstituted a bulk data dissemination policy in January 2020 that allows individuals to request bulk electronic records (meaning all or significant subsets of entire data files maintained as a computerized court record) following a legal challenge by the Chicago Tribune related to access to criminal case data. The new policy allows access to electronic bulk data, but these requests reportedly can take up to six months.
The Cook County Chief Judge also began publishing pretrial data dashboards about the jail composition and outcomes of bond court hearings in late 2017. However, the dashboards have not been updated since 2019 due to a transition in the Clerk of the Circuit Court’s case management system that requires reprogramming of bulk data in the new system. Cook County is the only county in Illinois that has published this kind of analysis of pretrial data.
How Illinois FOIA Law Compares to Other States
Across the U.S., the majority of other states’ open records laws make at least some judicial branch information available to the public. Research conducted by the Chicago Appleseed Center for Fair Courts reviewed the freedom of information laws or similar open records laws of all 50 states to determine whether those laws covered three key categories of information:
- Statistical Data from Court Clerks' Offices
- Operation of Probation and Pretrial Services Agencies
- Budget Information about How Court Agencies Spend Public Funds
This review found that Illinois is generally an outlier when it comes to required data disclosure from the judicial branch. Nearly all other states’ probation and pretrial programs and financial information are subject to open records laws. In many states, probation programs are operated under an executive branch agency such as the Department of Corrections, rather than a judicial branch agency as is the case in Illinois.
Disclosure of statistical information about court records has more variance. The judiciary is subject to freedom of information or similar open records laws in 31 states. In these states, aggregated information about case records, as well as other types of information and records, are subject to disclosure. In 14 states, the courts are not subject to freedom of information or open records laws, so statistical information about court records is not subject to disclosure per those laws. However, 8 of those 14 states have other statutes or Supreme Court Rules that govern public access to information and require disclosure.
Open records laws in five states differentiate between administrative records and court records, and require disclosure of only certain types of information. In Connecticut, Missouri, New York and Rhode Island, administrative court functions are subject to open records laws, meaning the public can access information relating to budgets, personnel, facilities and operations. However, in these states, court records (and therefore aggregated statistics summarizing court records) are not subject to the open records laws. In Massachusetts, court records are treated the opposite. Court records are subject to the state’s open records law, whereas administrative records related to the management, supervision, or administration of the courts are not covered by the state's public records law. However, requests for access to these records are still accepted and considered on a case by case basis.
These findings are detailed in the table below.
How Other States Provide Access to Court Data
Regardless of their freedom of information laws, all 50 state courts publish annual reports with case statistics on their websites. Most of these statistics are high-level case statistics such as the number of case filings and case dispositions. Some include performance measures such as clearance rates, time to disposition and age of pending cases. Some states such as Massachusetts publish extensive statistics and interactive dashboards.
Several state courts have processes in place for members of the public to submit requests for information or rules that govern release of information, either in addition or in place of open records laws. The following examples provide further details about processes in place in a variety of states.
- The Idaho Supreme Court accepts data requests through an online form. While court records are already subject to the Idaho Public Records Act, a Supreme Court administrative rule governs what court records are subject to disclosure. Exemptions include certain juvenile records, information about jurors, orders of protection, unreturned warrants, judges’ notes and communications, personnel records, adoption and child custody records and other types of commonly protected information.
- In addition to providing caseload statistics on its website, the Kentucky Court of Justice accepts requests for customized statistical reports from state government agencies, law enforcement entities, the media, and the public through a form on its website.
- While the Vermont Public Records Act technically includes the judicial branch in the definition of public body, access to court information is actually governed by a set of Rules for Public Access to Court Records established by the Vermont Judiciary. The Vermont Judiciary accepts requests for administrative records and statewide court data through an online form. In addition, detailed statistical and budget reports are published on its website.
- California’s Public Records Act does not apply to the judicial branch. However, most court records are disclosable as the courts have historically recognized the public's access to public records by the courts under the common law and the First Amendment of the U.S. Constitution. California Rule 10.500 established public disclosure requirements applicable to judicial administrative records and a request form process. Judicial administrative records include budget and expenditure records, contracts, and written policies and procedures. This excludes any documents related to specific cases and court statistics. The Judicial Council on California also publishes an annual court statistics report.
- In New York, administrative records are subject to disclosure under the Freedom of Information Law and the New York Courts website provides instructions on how to submit a FOIL request. Court records are not subject to disclosure under FOIL but are subject to disclosure under Section 255 of the Judiciary Law.
- In North Dakota, court record disclosure is governed by administrative rule. The North Dakota Courts have procedures for requesting compiled court records and data through an online form as well as for requesting bulk data.
- The Rhode Island Access to Public Records Act applies to administrative functions of the judicial branch. Administrative functions, defined as matters pertaining to the administration of the Judiciary, are differentiated from judicial functions, which are defined as matters pertaining to litigants and their proceedings before the court, including electronic reports derived from case files. However, the Rhode Island Judiciary accepts requests for information both covered and not covered by the Access to Public Records Act.
- Texas Judicial Branch agencies are not subject to the Texas Public Information Act, but the Judicial Branch maintains an open records policy through Rule 12 for access to judicial records. Judicial records in this case are defined as records maintained by a court or judicial agency in its regular course of business but not pertaining to its adjudicative function. Denials of access to judicial records can be appealed to the Administrative Director of the Office of Court Administration. A 2015 decision ruled that statistical information derived from court records is subject to disclosure under Rule 12.
- Virginia’s Freedom of Information Act exempts court records maintained by clerks of courts, but covers “other records” maintained by clerks of courts. However, court records, individual case files and requests for aggregated, nonconfidential case data are subject to disclosure through 17.1-208 of the Code of Virginia. Aggregated data must be provided within 30 days of the request. Administrative records of the Virginia Judiciary are covered by Part Eleven of the Rules of Supreme Court of Virginia. Public disclosure does not apply to records of judicial officers per these rules, such as judges’ notes, memoranda, legal research or communications.
Making the Case for a Change to FOIA
There is a strong case to be made for subjecting the Illinois Judiciary, or at least certain functions of the judicial branch, to the Illinois Freedom of Information Act. There are many administrative or executive type functions and programs within the judicial branch in Illinois that arguably should not be exempt from FOIA including the record-keeping functions of circuit court clerks and administrative programs that fall under the Circuit Courts including probation and pretrial programs. Within the Office of the Chief Judge of Cook County, for example, there are 15 different non-judicial offices.
While there are other methods of facilitating disclosure, such as Supreme Court Rules or voluntary release policies, the Freedom of Information Act is the most effective and enforceable way to ensure a fair and standard process for any member of the public to obtain information. Enabling information disclosure through FOIA would create a standardized and clear process for submitting requests, as well as require a response to be provided within a specific period of time (typically within 5 to 10 days). The FOIA statute includes enforcement mechanisms by providing the right to appeal the denial of a FOIA request to the Public Access Counselor of the Attorney General’s Office or to the Circuit Court. Ideally each court entity would clearly outline procedures and contact information for submitting requests to a FOIA officer on their website.
Public disclosure of court data and administrative records through FOIA could specify exemptions in order to protect sensitive information. Commonly exempted records in other states include: judges’ memos, notes, legal research and internal communications; juvenile records; adoption records; records that have been sealed or expunged; personal information contained within records including social security numbers and drivers’ license numbers; and other types of sensitive or private information.
Based on information available in other states and information that would be considered administrative, rather than case records, the following are several examples of court information that should be obtainable through a FOIA requests:
- Aggregated information compiled from a case management system that provides detailed statistical data for analysis purposes;
- Transcripts or recordings of public court hearings;
- Copies of official communications;
- Documents such as reports, policies, procedures, audits and contracts;
- Operational information about the number of courtrooms, judges, and other staff;
- Budget information including staffing/personnel, use of resources and distribution of funds;
- Information about jury administration and court interpreter services; and
- Probation and pretrial services operations.
Clerk of the Circuit Court of Cook County FOIA Bill Introduced, then Substantially Weakened
A recent FOIA bill related to the Clerk of the Circuit Court of Cook County was initially promising, but has since been reversed. The new Clerk of the Circuit Court of Cook County, Iris Martinez, who took office in December 2020, campaigned on a commitment to transparency and making the Clerk’s Office subject to the Freedom of Information Act. While campaigning in early 2020, then-State Senator Martinez introduced Senate Bill 3850 in the 101st General Assembly that would have amended the Illinois FOIA statute to define the Clerk of the Circuit Court of Cook County as a public body subject to FOIA. Specifically, it would have added the Clerk of the Circuit Court of Cook County to the definition of “public body” and Section 2.5 of the FOIA statute related to records of public funds.
After taking office, Clerk Martinez worked with State Senator Michael Hastings to reintroduce the same bill in the 102nd General Assembly as Senate Bill 583. However, the bill was substantially weakened through an amendment, Senate Committee Amendment 1, which removes all references to FOIA and instead adds the Clerk of the Circuit Court of Cook County to Section 3a of the Local Records Act. The change came in response to opposition from the Illinois Clerks of Courts Association to making a circuit clerk subject to FOIA. This amendment would make reports and records of the obligation, receipt and use of public funds of the Clerk of the Circuit Court of Cook County open to public inspection. However, this would not provide access to any other operational information or records held by the Clerk of the Circuit Court, or to statistical data compiled from court records.
Using the Local Records Act to achieve similar transparency goals as FOIA for the Cook County Circuit Court Clerk’s Office is an inadequate workaround. The Local Records Act was established in the early 1960s to regulate the preservation or disposal of the public records of all units of Local Government in Illinois. In contrast, the purpose of the Freedom of Information Act, first enacted in 1984 and amended in 2010, is to provide public access to government records. The Local Records Act does not provide the same protections as FOIA such as the right to appeal the denial of a FOIA request and the right of an individual to judicially contest a failure to produce records. It has no effective mechanism of enforcement and it only requires making records available on premises, not providing records to the requestor. Furthermore, Section3a of the Local Records Act that is amended in SB583 SA1 was only intended to cover records prepared prior to July 1, 1984. All records thereafter were to be covered under provisions of the Freedom of Information Act.
Clerk Martinez’s reversal on a commitment to FOIA-level transparency is highly disappointing. The Civic Federation, along with the Chicago Appleseed Center for Fair Courts, Chicago Council of Lawyers, Better Government Association and the Chicago Community Bond Fund, oppose the bill as amended. In a letter sent to legislators on May 3, 2021, our organizations explained our concerns about the amended bill and urged reconsideration of the original bill as introduced.
 Source: Research conducted by Arlene Haas on behalf of the Chicago Appleseed Center for Fair Courts, January 3, 2019.