specially concurring:
I concur with the judgment of the majority in that the broker defendants waived their argument concerning the protective order because they failed to bring it before the trial court. Further, I agree with the majority’s decision that the trial court did not abuse its discretion in restricting the broker defendants from disseminating the information in the agreement. In writing, however, I point out that had the trial court granted the accountant defendants’ request to file the agreement under seal, the right of access would have attached to the agreement.
The United States Supreme Court has recognized a general common-law right of access to public records and documents, including judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 579, 98 S. Ct. 1306, 1312 (1978). This right creates a presumption that court files should be open to the public for inspection and copying. United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989).
A court, however, has the inherent power to control its records, and the right to inspect public records is not absolute. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1072 (1992). Nevertheless, although a court may restrict access to judicial records, a court does not have the inherent power to control its files and to impound any part of a file in a particular case. Deere & Co. v. Finley, 103 Ill. App. 3d 774, 776 (1981). Instead, when determining whether to restrict access to judicial records, a court must balance the parties’ reasons for restriction with those interests supporting access. Johnson, 232 Ill. App. 3d at 1072.
To overcome the presumption of access, a party seeking to restrict access of records bears the burden of establishing a compelling interest why access should be restricted and that the protective order is drafted " 'in the manner least restrictive of the public’s interest.’ ” Johnson, 232 Ill. App. 3d at 1072-73, quoting Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988).
In Johnson, the parties entered a settlement agreement regarding a personal injury case while they were getting divorced. A condition of the settlement was that its terms remain confidential. Accordingly, although the terms of the settlement were recited to the court, the actual settlement document did not become part of the record. Johnson, 232 Ill. App. 3d at 1069.
A few months later, the parties presented a settlement to the court regarding the distribution of the settlement proceeds from the personal injury case. The settlement included a term that all documents in the entire file be sealed. The parties then requested the court to impound the file, and the court entered the order. Johnson, 232 Ill. App. 3d at 1070.
After the trial court entered its order, a newspaper requested access to all the materials impounded by the court’s order. After arguments, the court declined to grant the newspaper access, explaining that the impoundment " 'was an essential part of the settlement.’ ” Johnson, 232 Ill. App. 3d at 1070. The newspaper appealed the trial court’s decision.
The Johnson court reversed the trial court’s impoundment orders. The court stated that the right of access attaches to any documents filed with the court. Accordingly, since the written settlement agreement concerning the dissolution became part of the court record, the right of access attached to that document.
Then, the Johnson court explained that the personal injury settlement never was attached to the record. Therefore, the right of access did not extend to the personal injury written settlement, although the transcript of the hearing at which its terms were recited was subject to the right, because the transcript had been made part of the record. Johnson, 232 Ill. App. 3d at 1074.
Similarly, in this case the settlement agreement has not been filed with the trial court. Accordingly, the right of access has not attached to the agreement. If, however, the settlement had been filed, then only a compelling reason, accompanied by specific factual findings, could justify keeping it from public view. See Johnson, 232 Ill. App. 3d at 1075.
Contrary to the parties’ belief, their "desire and agreement that the court records were to be sealed falls far short of outweighing the public’s right of access to the files.” Johnson, 232 Ill. App. 3d at 1075; see also Fidelity Financial Services, Inc. v. Hicks, 267 Ill. App. 3d 887, 893 (1994) (mere desire for secrecy cannot suffice as a compelling interest).
Moreover, the parties’ explanation that the material contained in the agreement is "confidential” is not a compelling interest that could overcome the presumption of access to judicial files. Instead, the only documents that possibly could overcome such a presumption are those that are privileged and potentially seriously damaging or embarrassing. Cf. Johnson, 232 Ill. App. 3d at 1076 (Steigmann, J., specially concurring).
It is this writer’s belief that complete access to the type of information sought to be protected in this case encourages confidence in the court system. Nondisclosure creates a perception of favored status before the court by the party—or parties—seeking the order. To allow parties to seal documents based solely on their agreement that the documents are "confidential” undermines our judicial system and is directly contrary to the common-law right of access to public records. Therefore, it is my view that trial courts should view a protective order as an extremely serious issue, and I write to encourage the trial court to grant protective orders only under the most compelling circumstances.