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March 24, 1995


Appeal from the Circuit Court of Lake County. No. 93-CH-52. Honorable Peter M. Trobe, Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the court: McLAREN, P.j., and Hutchinson, J., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The plaintiff, Copley Press Inc., d/b/a The News Sun, filed this lawsuit against the defendants, the Administrative Office of the Courts, Nineteenth Judicial Circuit, and the Lake County Department of Court Services, seeking an order compelling disclosure of documents maintained in connection with an electronic monitoring system operated by pretrial services, which is an agency accountable to the chief judge of the circuit court and is defined by statute as an arm of the court in the Pretrial Services Act (725 ILCS 185/2, 3(West 1992)). The plaintiff sought disclosure of the documents under the Freedom of Information Act (Information Act) (5 ILCS 140/1 et seq. (West 1992)) and under the theories that it had a common-law and first amendment right to the records. The trial court found that the defendants were part of the judiciary and thus were not subject to the Information Act. The court further found, after inspecting the documents in camera, that a portion of the records sought were not confidential; therefore, the defendants were required to disclose the nonconfidential portions. The defendants appeal, and the plaintiff cross-appeals from the court's rulings.

The record shows that in 1986 the circuit court of Lake County established an electronic monitoring system program (EMS program). The EMS program is an alternative incarceration system which monitors the activities of defendants on pretrial release. The system is operated as part of the pretrial services division of the Lake County department of court services, also known as the probation department. Pursuant to section 1 of the Pretrial Services Act, the pretrial service agency is to provide the court with accurate background data regarding the pretrial release of persons charged with felonies and with effective supervision of compliance with the terms and conditions imposed on release. (725 ILCS 185/1 (West 1992).) Since the establishment of the EMS program, one option available to the court is the release of a pretrial detainee from jail to supervision by the EMS program.

The plaintiff filed a Freedom of Information Act request with defendant department of court services seeking the disclosure of records pertaining to the general operation, policies, and procedures of the electronic monitoring system used for home incarceration of felony offenders. The department denied the request. Thereafter, the plaintiff filed this lawsuit to compel the disclosure of the records. The plaintiff's original complaint sought the following:

"Records pertaining to the general operation policies and procedure of [EMS system], including but not limited to: the date that Lake County began the home incarceration electronic monitoring program; the offenses for which each participant in the program was charged, except information which would tend to identify individual offenders; the length of time each participant in the program was originally ordered to be a participant in the program and the actual length of time that each participant participated in the program; any and all records related to the monitoring or results of monitoring of each individual participating in the program; documents related to the program's technical operation, size, and/or cost; any documents discussing discretionary guidelines for use by the County's staff for implementing, maintaining, and operating the program. * * * Records regarding the program's size, including but not limited to: any and all records pertaining to the number of participants in the Program each year since its inception in Lake County.

The defendants filed a motion to dismiss in which they raised the nonapplicability of the Information Act. The court granted the defendants' motion to dismiss agreeing that the defendants' employees were judicial employees and that the judiciary was exempt from the Act. Thereafter, the plaintiff filed an amended complaint seeking the records based on common-law and first amendment grounds recognizing the right of access to judicial records.

Meanwhile, the court in the criminal proceeding of People v. Rivera entered an order requiring the Lake County department of court services to provide the prosecution and defense in the case copies of all documents concerning the electronic monitoring system. The electronic monitoring system was apparently an issue in the criminal case because the defendant allegedly committed the murder after evading the system while on pretrial release for another crime. The department of court services complied with the court's order, but it is unclear whether the records were entered into evidence in open court and whether they were placed in the court file for the case. The plaintiff states that they were not part of the court file, while the defendants state that they were part of the court file. In that regard, the defendants stated in their cross-motion for summary judgment that "all documents relating to the EMS program" were introduced into evidence in the criminal case and the information is accessible from that court file. The plaintiff filed an affidavit stating that during the pendency of the criminal proceeding the plaintiff requested access to the records from the prosecutor, defense counsel and the trial judge, but those requests were denied. The defendants presented the affidavit of circuit clerk Sally Coffelt which stated that neither she nor any member of her staff had denied the plaintiff or any of its reporters access to court files.

The parties in the instant proceeding filed cross-motions for summary judgment. The trial court granted the plaintiff's motion for summary judgment and denied the defendants' motion for summary judgment finding that the plaintiff had exhausted all reasonable means to obtain the requested documents and records from other sources. The court further found that plaintiff's request involved "generic operational data" which did not implicate the disclosure of confidential information. The court ordered the defendants to turn over the documents within 21 days but granted them leave to submit any of the requested documents for in camera inspection which they believed contained personal information involving the privacy rights of third persons. The defendants subsequently filed with the court 16 files of documents, together with an index and brief description of the contents of each file. After the trial court viewed the documents in camera, it ordered that the defendants only be required to produce the documents that did not include identifying information of individual offenders. The court specifically ordered the production of file Nos. 1, 9 and 15. Thereafter, the plaintiffs requested the court to order the defendants to redact any exempt matter from the remaining records and to disclose the nonexempt portions thereof. The court declined to order the defendants to redact exempt matter from the documents, finding that it would be unduly burdensome on the defendants. The plaintiff subsequently filed a motion to reconsider, a petition for rule to show cause, a motion to compel production of the documents and for leave to take discovery on the redaction issue.

The court thereafter modified its earlier order and required the defendants additionally to produce the documents from file Nos. 4 and 6 which did not contain identifying information. The court denied the plaintiff's motion for additional discovery, its petition for rule to show cause and its request for further redaction.

The defendants appeal the court orders requiring them to produce EMS records. The plaintiff cross-appeals the dismissal of its Information Act claim, the denial of its requests for complete production, redaction, and discovery and its motion for rule to show cause. The trial court's decision was stayed, and the documents in question remain sealed pending the outcome of this appeal.

On appeal, the defendants argue that: (1) the confidentiality provisions of section 31 of the Pretrial Services Act (725 ILCS 185/31 (West 1992)) and section 12 of the Probation and Probation Officers Act (730 ILCS 110/12 (West 1992)) completely exempt the records in question from disclosure; (2) the plaintiff had available alternate sources to gain the information and that this supports the statutory exemptions from disclosure; (3) common-law privileges against disclosure embodied in the Information Act prohibit disclosure; and (4) the canons of judicial ethics along with fair trial considerations prohibit disclosure. In response, the plaintiff challenges each of thedefendants' assertions. Additionally, the plaintiff argues in its cross-appeal that: (1) the trial court erred in finding that the Information Act did not apply to the defendants; (2) even if the Act did not apply, it was nevertheless entitled to the records under first amendment and common-law principles allowing access to judicial records; (3) participants in the EMS program do not have a privacy interest that would be compromised by the disclosure of the records; (4) the trial court erred in limiting its order to compel only the production of documents that did not contain identifying information; alternatively, the court should have ordered the defendants to redact any identifying information; and (5) the defendants waived any exemptions or privileges against disclosure.

Turning to the issue of whether the defendants were subject to the disclosure requirements of the Information Act, we note that this is an issue of first impression in Illinois. Section 3(a) of the Act mandates that "each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act." (5 ILCS 140/3(a) (West 1992); Smith v. Cook County Probation Department (1986), 151 Ill. App. 3d 136, 138, 104 Ill. Dec. 497, 502 N.E.2d 1157.) Section 2(a) defines "public body" as "any legislative, executive, administrative, or advisory bodies of the State * * * which are supported in whole or in part by tax revenue, or which expend tax revenue." (5 ILCS 140/2(a) (West 1992).) It is a maxim of statutory construction that when a statute enumerates certain items, that enumeration excludes all other items although there are not negative words of prohibition. ( Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 460, 65 Ill. Dec. 55, 440 N.E.2d 910.) Here, the ...

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