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ETHICS EXTRA
BY KIMBERLY GLEESON
DAILY PRACTICE AREA
UPDATES
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continued on page 57
CBA RECORD 51
Warning: Sealing An Entire Court File
is Never Appropriate
Kimberly Gleeson, a Francis
D. Morrissey Scholar at the
JohnMarshall LawSchool, will
received her J.D. in the spring
of 2017
In Khan v. Gramercy Advisors, LLC,
Justice Robert J. Steigmann, in his
concurring opinion, warned the bar
that sealing an entire court file is never
appropriate. 2016 IL App (4th) 150435.
Background
Plaintiffs Shahid and Ann Khan, and lim-
ited liability companies in which Shahid
had a majority interest, sued defendants
Jay Johnson and four limited liability com-
panies. Plaintiffs alleged that defendants
fraudulently induced them to buy and use
tax shelters that caused plaintiffs to incur
financial loss.
The court wrote an extensive opinion
on specific personal jurisdiction. However,
Justice Steigmann’s special concurrence is of
particular interest. He wrote separately to
voice his strong disapproval of the sealing of
the court file at the trial and appellate level.
The trial court had entered a stipulated
protective order, sealing all filed docu-
ments. On appeal, the parties filed a joint
motion moving the Fourth District Appel-
late Court to take the same action as the
trial court and seal all filed documents.
The court granted the motion, allowing
the parties to file their briefs under seal.
However, the court later issued a rule to
show cause against both parties to justify
why the order sealing the briefs should
continue to stand. The court vacated its
order when the parties failed to justify the
continued sealing of the briefs.
Justice Steigmann’s Concurrence
Justice Steigmann found that neither statu-
tory nor case law supported the sealing of
the court file in the trial or appellate courts.
Section 16(6) of the Clerks of Courts
Act states that all records required by law
to be kept by court clerks are public records
and that such records shall be accessible to
the public. Justice Steigmann noted that
section 16(6) “carries a strong presumption
that all court records shall be public and
open to inspection.”
Justice Steigmann analyzed over 23
years of case law supporting his conclusion
that an entire court file should never be
sealed. In In re Marriage of Johnson, the
Fourth District Appellate Court addressed
the issue of the public’s right to access court
records and transcripts. 232 Ill. App. 3d
1068 (4th Dist. 1992). In Johnson, the trial
court approved a settlement agreement
including a provision that all documents
in both a marital dissolution and personal
injury case were to be sealed. On appeal,
the News-Gazette challenged the trial
court’s impoundment orders, arguing that
common law, statutory provisions, and
the First Amendment support the public
right to access the court files in both cases.
The court agreed with the News Gazette’s
argument and reversed the trial court’s
impoundment orders.
Justice Steigmann’s special concurrence
in Khan emphasized that the Johnson case
was not close. He explained that regard-
less of a party’s reason for wanting to seal
a court file–including want of privacy,
fear of embarrassment, or facilitating
settlement–those reasons “can never dem-
onstrate the compelling interest required
to overcome the strong presumption in
favor of total access to all documents of
whatever nature in a court file.” However,
Justice Steigmann did recognize that some
documents in a court record may be sealed
if the documents are both privileged and
“seriously damaging or embarrassing.”
Such documents might include psychiatric
records revealing abnormal thoughts or
behaviors, or psychiatric treatment and
medical records revealing the contraction
of a sexually transmitted disease.
Nevertheless, Justice Steigmann empha-
sized that an entire court file can never
be sealed, even if some documents in the
file contain sensitive information. For
instance, in A.P. v. M.E.E., the First Dis-
trict Appellate Court refused to seal court
records concerning litigation involving
Prtizker family trusts. 354 Ill. App. 3d 989
(1st Dist. 2004). Moreover, the Illinois
Supreme Court, in Skolnick v. Altheimer &
Gray, refused to place a counterclaim under
seal because it contained a party’s financial
records. 191 Ill. 2d 214 (Ill. 2000).
Furthermore, the public’s right to access
court records has constitutional underpin-
nings. In addressing the sealing of court
files in Skolnick, the Illinois Supreme
Court cited Johnson. In refusing to place
the record under seal, the supreme court
found that “the availability of court files for
public scrutiny is essential to the public’s
right to ‘monitor the functioning of our
courts, thereby insuring quality, honesty,