Gleeson: Only judges can seal court documents
By George Pawlaczyk
During a hearing May 20 in a lawsuit brought by the Belleville News-Democrat, a judge ruled that only a court may keep records such as search warrants closed, and then only after being provided with a detailed report as to why their release would be detrimental.
The newspaper objected to the practice of the St. Clair County Circuit Clerk’s Office of withholding search warrants from public scrutiny.
St. Clair County Associate Judge Andrew Gleeson made an initial ruling that warrants in 27 criminal cases cited in the lawsuit would be reviewed privately by him in chambers before he would make a decision as to what could be made public. Case documents show that News-Democrat reporter Beth Hundsdorfer has been seeking access to search warrants since 2002, when she unsuccessfully requested that former chief judge Stephen Kernan and then his successor, former chief judge Jan Fiss, open these files.
Search warrants often contain details not available from police, who, according to Illinois Supreme Court rules, are prohibited from publicly commenting about evidence in an ongoing case. The newspaper has asked to examine these records only after the searches are completed. The Madison County Circuit Court allows public access to search warrants after they have been executed.
On Wednesday, Gleeson agreed with Springfield attorney Don Craven, who represented the newspaper, that State’s Attorney Robert Haida does not have the legal authority to withhold court records, including search warrants. Only a judge can make that decision, Gleeson said. However, Gleeson also agreed with Assistant State’s Attorney Len Cleary, who opposed the News-Democrat’s request, that issues of a person’s right to a fair trial and of a prosecutor’s duty to protect his prosecution by not having critical details of the case made public before trial, are also important concerns.
“This is a case of competing interests,” said Cleary, who stated that his boss Haida was not trying to permanently keep the search warrants closed from public scrutiny.
“They should not be permanently withheld but temporarily withheld,” Cleary said, adding that temporary sealing of records would prevent, “unfortunate and unnecessary pretrial publicity.”
A key factor in Craven’s legal argument was that judicial records are not covered under the Illinois Freedom of Information Act. He cited a 2007 ruling by the office of Illinois Attorney General Lisa Madigan that stated that the act does not apply to court records. If it did apply, then police records including search warrants could be withheld under the law’s provision that allows exemptions if a criminal investigation is ongoing.
Craven said that while the Freedom of Information Act does not apply, the freedom of speech guarantees of the Constitution and common law provisions that courts are open to the public, do apply.
Gleeson additionally ruled that before a prosecutor can submit an application to withhold court records, such as search warrants, a detailed explanation of why they should remain sealed must be provided to a judge.
“Not a mere affidavit or paragraph,” is sufficient, said Gleeson, who added, “It must be detailed.” He said it must cite exactly how the release of the document would hinder an ongoing investigation or prosecution.
During the hearing, Gleeson spoke of his introduction as a child to the First Amendment’s protections. He said his parents told him about Elijah Lovejoy, the famous abolitionist and newspaper editor whose anti-slavery articles incited a mob in Alton to throw his presses into the Mississippi River. During the fourth such attack in 1837, Lovejoy was shot and killed.
“I asked my parents about Lovejoy,” Gleeson said, and after he had heard the story he said he was deeply impressed.
“He made those people of the time really look in the mirror,” over the issue of slavery, the judge said.
But Gleeson also mentioned 19th century newspaper baron William Randolph Hearst, whose newspapers sometimes fought corruption but also championed “yellow journalism,” a phrase coined to describe front page warmongering said to have helped incite the Spanish-American War.
“And they have a right to a fair trial,” he said of persons accused of a crime.
At the end of the 30-minute hearing, Gleeson, referring to the search warrants, told Craven, “As much as I’d like to give these to you now…there needs to be further review.”
©Copyright 2009 by the Belleville News-Democrat. Used with permission. George Pawlaczyk can be reached at