Tuesday, June 2, 2020

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

By Eugene Volokh - June 02, 2020 at 12:14PM

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Court of Illinois, and written by Justice Mathias Delort, joined by Justices Thomas Hoffman and Mary Rochford (nonprecedential):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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