Right of Access

Interesting Public Access Decision as to the R. Kelly / Drea Kelly Divorce Case

"The mere fact a person may suffer embarrassment or damage to his reputation as a result of allegations in a pleading does not justify sealing the court file."

|The Volokh Conspiracy |

From In re Marriage of Kelly & Kelly, decided Friday by the Appellate Court of Illinois, and written by Justice Mathias Delort, joined by Justices Thomas Hoffman and Mary Rochford (nonprecedential):

[A Chicago public radio station operator and the Chicago Tribune Co.] filed a joint motion to intervene in divorce proceedings between petitioner-appellee Robert Kelly and respondent-appellee Andrea Kelly. They sought access to documents contained in a sealed court file….

In June 2013, the circuit court entered an agreed order directing that the entire court file be sealed, finding that both parties were entertainment celebrities and there was a "serious likelihood of the media culling through the record for the purpose of revealing painful, potentially scandalous, details."

In 2019, WBEZ and the Tribune filed a joint motion to intervene and for access to the sealed court files in Robert's divorce case…. [As to some documents, the trial court reasoned that,] … "… There is specific sensitive information in there that involves the children in this case; the relationship that the children have [with] one or both of their parents. It involves a doctor-child relationship with information about one or more of the children. That would not be made public.

"And I find that in regards to all of these different paragraphs that I mentioned for both of these two documents, that revealing the information would be very detrimental to the best interest of the child and, therefore, raises a higher value and overcomes the presumption."

[But as to other documents, the court largely] allowed public access "to the entire court file, including the redacted documents and noting the sealed documents" beginning on August 13, 2019. Exhibit A to the court's order, which was an extensive spreadsheet, directed the circuit clerk to redact the following parts of the March 2014 motion: "the entirety of Count II [entitled 'Modify Visitation'], including paragraphs 26-37 and A-D." The court stated that, as to the sealed material, the best interests of the parties' children outweighed the public's right of access.

The clerk of the circuit court of Cook County did not precisely follow the court's sealing and redaction order. The clerk placed material in the public file that the court had ordered to be sealed. WBEZ discovered this error when it reviewed the public file….

[When the judge was informed that WBEZ had gotten the documents and was going to write about them,] the judge … stated that her "redaction/seal order is very specific" and that she did not expect "anyone, including the Clerk's office or WBEZ," to violate it[, and later added] …:

"Let me reiterate—I do not expect ANYONE or ANY ENTITY to violate my court order, which was distributed to all parties including intervenors, both electronically and handed in printed format to their attorney. WBEZ has been well aware of my restrictions on documents, as they were part of the Intervenors who received my court order." …

[At a later hearing, t]he court stated that there was "no doubt" that public access and the First Amendment were a "priority," but that, "in regards to domestic relations cases, there's also no doubt that there are certain situations that can overcome or that are even more important, one of which is the best interest of the children that would lead to some sort of redaction or sealing." The court further noted that it had opened "virtually the entire file" to the public, but that it ordered a substantial portion of the March 2014 motion to be redacted "based on my decision and my opinion that it was in the best interest of the minor child that that portion of that document be redacted and remain redacted." …

The Appellate Court concluded that the documents should not have been sealed, given the right of public access recognized by Illinois statute and First Amendment precedents:

"The availability of court files for public scrutiny is also essential to the public's right to 'monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.' 'When courts are open, their work is observed and understood, and understanding leads to respect.' The common-law right of access symbolizes the recognition 'that the public interest is best served by increasing the public's knowledge about what is transpiring inside the judicial process.'" …

[The] right to access to judicial records is not absolute…. The presumption of access can be rebutted by demonstrating that suppression is "essential to preserve higher values and is narrowly tailored to serve that interest." One scenario in which a court may deny public access is where the court finds that a public hearing may be detrimental "to the child's best interests." In a dissolution of marriage case, the court may order the sealing of records of "any interview, report, investigation, or testimony." …

WBEZ is only challenging the redactions of paragraphs 26 through 29 and the entire prayer for relief section in count II of the March 2014 motion. Based upon our review of these sealed materials, we find that the circuit court erred in redacting those paragraphs and the prayer for relief. The four numbered paragraphs neither contain confidential information relating to the parties' children's medical care, nor otherwise support the court's concern for the best interests of Robert's and Andrea's children. With the exception of paragraph 29, they do not refer to a child of either party, and they do not provide sufficient information to identify any specific other child. The prayer for relief recites standard requests commonly made in dissolution of marriage cases, and we can see no reason why they should not be released.

In particular, we note that maintaining the redaction of the numbered paragraphs would, at best, merely protect Robert from embarrassment, which is an impermissible basis to withhold material from the public…. "The mere fact a person may suffer embarrassment or damage to his reputation as a result of allegations in a pleading does not justify sealing the court file." … As WBEZ notes, unflattering information regarding Robert's conduct is already in the broad public domain, so we cannot discern a compelling reason why the disclosure of the four numbered paragraphs and the prayer for relief can be justifiably restrained at this time. {In 2019, the United States Department of Justice charged Robert with various criminal offenses. Those cases are still pending. See, e.g., U.S. v. Kelly, No. 19-CR-286 (AMD) (E.D.N.Y.) (charging defendant with violation of the Mann Act for transportation of a minor to engage in illegal sexual activity); U.S. v. Kelly, No. 19-CR-567 (N.D. Ill.) (charging defendant with child pornography and witness tampering).} …

And this made it unnecessary for the court to "resolve WBEZ's alternative argument that once the clerk of the circuit court accidentally placed a sealed court record into the public domain, an order commanding it not to publish that material was an unconstitutional prior restraint."

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  1. This in particular …

    both parties were entertainment celebrities and there was a “serious likelihood of the media culling through the record for the purpose of revealing painful, potentially scandalous, details.”

    got my attention.
    I realize this is the court’s wording, but I doubt they did it over the protestations of the parties. Celebrities live by publicity, almost by definition (“A celebrity is someone who is famous for being famous”). It is really annoying when celebrities think they get to abuse the legal system to control their publicity. Live by the sword of public opinion, die by the same. If they don’t like the publicity, they should find some other career.

    Public courts ultimately depend on the public honoring their actions, and it is arrogant beyond belief to expect the public to honor secret judgments just because they are famous for being famous.

    1. ” If they don’t like the publicity, they should find some other career.”

      I don’t think you’ll find many takers on your proposition, and you don’t seem to be factoring in individuals who maybe infamous rather than famous.

      Consider the fellow whose wife severed his genitalia before announding a desire for a divorce. Does everybody need to know his name and the full details of why his case is now pending in the family court while his soon-to-be ex-wife is busy over in the criminal court?

      In my prior ZIP code there was a case of a missing child, and the father wanted a divorce from the stepmother. Stepmother’s lawyer successfully delayed the divorce proceedings by arguing that th 5th amendment prevented her from taking part in the proceeding, because she was a suspect in the dhild’s disappearance.

  2. It also annoys me when people want secrecy because their children might be embarrassed. Should criminal cases be secret because their children might be embarrassed for the world to know their parents are criminals? Should criminals not be punished because their family might lose income, however ill-gotten? How far can we extend this before people are no longer embarrassed?

    Everything that we do has the potential to embarrass others. It would be one silent world if no one else were allowed to ever be embarrassed.

    1. While I agree that children being embarrassed by their parents is not a good justification, being embarrassed in their own right might be.

      Consider, for example, a divorce decree that, in analyzing the relative payments, has to openly discuss a child’s medical condition. The child’s diagnosis is an objective fact and it’s disclosure would do nothing except embarrass the child. Yet the public has little need to know the child’s medical diagnosis to validate the court’s handling of the divorce. It seems to me that information should still be protected.

      1. Or even if it isn’t that specific to the child’s medical conditions…. what if mom is accusing dad of sexually abusing his daughter? It is not at all uncommon for these sorts of accusations to fly back and forth in family court. Why should all of little 12 year old Sally’s schoolmates be reading about how her mom says her dad has been having sex with her? Whether true or false, certainly no good can come of that.

        And what of mom and dad? Dad levels some spurious allegations at mom in the heat of an ugly divorce where mom was unfaithful… Does Sally really need to deal with what the other moms are saying about her mom?

        I’m not sure what the “public good” of making some of that dreck public is.

  3. I tend to agree that the presumption for open court documents can be overcome, on public policy grounds.

    If people think that bringing their problems to court for resolution will be against their interests, they’re going to use other mechanisms. since only the state courts can issue divorces, you’ll wind up with people looking to be widowed rather than divorced.

    1. Or just not married. I doubt very many people will be so desperate to end a marriage, and so afraid of the embarrassment of a divorce, that they will prefer the embarrassment of a homicide trial.

      1. Yeah, it’s not like anyone’s ever killed a spouse before.

    2. Can you offer a single example of a mariticide (attempted or completed) that you think was plausibly motivated by a desire to avoid creating divorce records they are open to public inspection?

      I’m dubious about the public policy utility of this sort of murderer’s veto generally, but it seems especially inapt when the prospect of actual murder is so remote.

      1. No, I can’t tell you how often someone has been murdered to avoid an embarrassing divorce. Because (duh) people who want to avoid embarrassing divorces badly enough to engage in murder don’t leave records that say so. To meet your request, I’d have to know such people well enough to know their secrets, which I do not.
        Closest I can come is Henry VIII, who had one of his wives executed because she was publicly telling people about his inability to produce heirs. (I forget exactly which one it was).

  4. Professor Volokh,
    You post so many of these cases about sealing records. Cases that seem so obvious.

    Aren’t law students instructed on what is proper to seal?

    1. I bet his are 🙂 Others not so much.

      1. When I was in law school, the subject of sealing cases wasn’t addressed. It’s hard to point out exactly which class should have covered the subject. Maybe the “state practice” course which had coverage of state-specific court rules.
        This is one of the subjects that is probably better served as CE or taught in apprenticeship post-admission to practice.

    2. No, law students are not generally instructed on what is proper to seal.

      1. I agree with Noscitur; I know of no law school class that generally discusses such matters — my civ pro class certainly didn’t when I was a student, and I don’t have time to cover them in my own First Amendment Law class. Doubtless someone discusses them somewhere, but I suspect pretty rarely.

        What’s more, litigants can often get away with a good deal more sealing than the law authorizes, especially if one or more parties wants sealing but none of the others opposes it. In theory, the judge should consider the public’s interest, and reject even unopposed sealing motions if they aren’t legally sound. But while many judges do that, my sense is that some don’t scrutinize such unopposed motions that closely. And while media outlets that learn about the matter can get the documents unsealed (which is what happened here), that costs them time, money, and effort. Even legally weak sealing attempts thus end up often succeeding, at least temporarily.

  5. Voyeurs seeking access to people’s bedrooms is probably the quintessential example of why the public’s right to know is not unlimited.

    The Constitution’s framers explicitly limited the right to public trials to criminal trials only. I am not impressed by the argument that other constitutional provisions cover civil trials. If trials already have to be public, why was it necessary to mention it in the 6th Amendment? We do not normally construe the constitution in a way that renders entire provisions surplusage.

    And so far as a common law right to public trials is concerned, well, the common law also creates exceptions to that right. Messy divorce cases is one of those traditional exceptions.

    1. Can you provide some authority to support that last proposition? It’s not consistent with my understanding of the tradition involved, but I’m far from an expert in this area.

    2. “Messy divorce cases is one of those traditional exceptions.”

      Which is why many states moved to adopt no-fault divorce into their statutory frameworks.
      Once the would-be-single-again spouse no longer needs to prove legal grounds for a divorce, the need to bring out a bunch of messy details about the other spouse is curtailed. However, some peoples’ marriages are innately of interest to a voyeuristic public, and in the absence of actual messy details a tabloid press is more than happy to try to provide them, and will invent them if necessary.

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