June 29, 2001

JUSTICE BYRNE delivered the opinion of the court:

Petitioner, Northwest Newspapers, Inc., appeals the judgmentof the trial court denying its petitions to access sealed courtrecords and to intervene. We affirm.

This matter began as an ex parte petition filed by the officeof the McHenry County State's Attorney as part of an ongoingcriminal investigation. On October 27, 1999, the trial courtauthorized the State to use an eavesdropping device to gaininformation regarding the alleged criminal activities of thesubject of the overhear. Pursuant to section 108A--7(c) of theCode of Criminal Procedure of 1963 (Code) (725 ILCS 5/108A--7(c)(West 1998)), the judge sealed the application for and ordergranting judicial supervision of the use of the eavesdroppingdevice.

Subsequently, on March 17, 2000, petitioner filed a petitionto access the application for the overhear order, the order itself,any documents indicating the subject was notified by the issuingjudge, and any related documents in the court file. In support ofits petition, petitioner alleged that the matters surrounding theapplication for the overhear order created a conflict in the officeof the McHenry County State's Attorney raising substantialquestions relating to the management of the office.

Respondent, one of the parties to the overhear, filed a motionto strike the petition to disclose and argued that petitioner doesnot have standing under section 108A--7(c) to bring such apetition. In addition, respondent also filed a motion to close theproceedings to the public. The State also filed a motion to strikethe petition to disclose, arguing that petitioner has no standingand, even if petitioner has standing, petitioner failed to showthat good cause exists for unsealing the documents.

The trial court granted the motion to close the proceedings tothe public until further court order. The court also denied thepetition to disclose, finding that the petition to disclose and theresponse to the motion to strike did not allege sufficient facts orcircumstances to show good cause and that petitioner lacks standingto file the petition. However, the court granted petitioner leaveto file a petition to intervene.

Petitioner filed a motion to reconsider and a petition tointervene. In the motion to reconsider, petitioner argued that itspetition to disclose raised sufficient grounds to state a cause ofaction for disclosure under section 108A--7(c) of the Code and thatpetitioner was entitled to a hearing on its petition. In thepetition to intervene, petitioner restated the allegations setforth in its petition to disclose. Petitioner claimed that noparty represented petitioner's interest, it would be bound by theorders in the action because the court had denied access to therecords, the claim for access is related to the underlying causebecause of the request for disclosure pursuant to section 108A--7(c) of the Code, and intervention is a proper means to allow anewspaper to seek access to court documents.

Following the parties' respective responses, the trial courtdenied the motion to reconsider and the petition to intervene,expressly finding no just reason for delaying enforcement or appealof the order pursuant to Supreme Court Rule 304(a) (155 Ill. 2d304(a)). Petitioner timely appeals.

We note that there are no appellees who have filed responsebriefs in the present appeal. We may not reverse summarily merelybecause there are no response briefs filed on appeal. See FirstCapitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d128, 133 (1976). However, the record is simple and the claimederrors are such that we can easily decide the appeal without theaid of an appellee's brief.

Petitioner raises several arguments on appeal. Petitionercontends that the trial court erred in closing the proceedings tothe public, in failing to give petitioner the opportunity to beheard, and in denying the petition to intervene. We believe thatthe resolution of these issues rests upon the determination ofwhether petitioner has standing under section 108A--7 of the Codeto bring a petition for disclosure. Because the outcome involvesstatutory construction, our review is de novo. People v. Adams,318 Ill. App. 3d 539, 543 (2001).

Sections 108A--7 and 108A--8 of the Code govern applications,orders, and records surrounding the use of eavesdropping devices. Section 108A--7(c) provides in relevant part:

"(c) Applications made and orders granted under thisArticle shall be sealed by the judge. *** Such applicationsand orders shall be disclosed only upon a showing of goodcause before a judge." 725 ILCS 5/108A--7(c) (West 1998).

Section 108A--8 provides in relevant part:

"(a) Within a reasonable time *** the issuing or denyingjudge shall cause to be served on the persons named in theorder or application and such other persons in the recordedconversation as the judge may determine that justice requiresbe notified, a notice of the transaction involving anyrequested or completed use of an eavesdropping device *** .

(b) Upon the filing of a motion, the judge may in hisdiscretion make available to such person or his attorney forinspection such portions of the recorded conversations or theapplications and orders as the judge determines it would be inthe interest of justice to make available.

(c) The contents of any recorded conversation or evidencederived therefrom shall not be received in evidence orotherwise disclosed in any trial, hearing, or other judicialor administrative proceeding unless each party *** before sucha proceeding has been furnished with a copy of the court orderand accompanying application under which the recording wasauthorized or approved *** ." 725 ILCS 5/108A--8 (West 1998).

Petitioner points out that, under section 108A--8,applications, orders, and recordings may be disclosed to a partysubject to an overhear and his or her attorney but section 108A--7contains no limitation on who can petition the court for access tothe applications and orders. Petitioner assumes that thisdifference demonstrates that it has standing under section 108A--7to bring a petition for disclosure "upon a showing of good cause"in a hearing "before a judge."

Petitioner's argument focuses solely on section 108A--7,ignoring the other provisions of the Code that apply to overhears. Petitioner disregards that, in construing statutes, courts must notbe guided by a single sentence or by an isolated provision butshould consider each provision in conjunction with every otherprovision of the statute in light of its purposes. People ex rel.Ryan v. Illinois Commerce Comm'n, 298 Ill. App. 3d 483, 486 (1998). Under the rule of expressio unis est exclusio alterius, when an actlists things to which it refers, the court may infer that anyomissions were intended as exclusions. Bank of Waukegan v.Kischer, 246 Ill. App. 3d 616, 620 (1993).

Applying these principles, we determine that section 108A--7does not apply to petitioner. A review of all the provisionsgoverning overhears reveals that prosecuting attorneys, lawenforcement officers, investigative officers, parties to theoverhears, and their attorneys specifically are entitled to applyfor, disclose, and use the information generated or derived fromthe use of overhears. See 725 ILCS 5/108A--2, 108A--3, 108A--8(West 1998). Section 108A--8 outlines how parties to an overhearmay receive access to documents and recordings. Section 108A--8allows "persons named in the order or application and such otherpersons in the recorded conversation" or "his attorney" to move foraccess to "portions of the recorded conversations or theapplications and orders." 725 ILCS 5/108A--8(a), (b) (West 1998). Reading sections 108A--7 and 108A--8 together, we conclude thatonly a party to the application or the recorded conversation or hisattorney may file a motion to inspect the applications, orders,recorded conversation, or evidence derived therefrom and the judgemay grant the application to disclose upon a showing of good cause. Nowhere in the provisions does the legislature contemplate accessby a nonparty to the overhear. If the legislature intended to givethe press or the public access to this information, it specificallywould have stated so.

Moreover, our review of the regulatory scheme reveals that ithas two purposes. On one hand, the statutory restraint onelectronic eavesdropping requires the "strict scrutiny of allpurported consents and requests, so that in Illinois citizens maybe safeguarded from promiscuous governmental surveillance, civiliansnooping or other unreasonable intrusions into their privacy." People v. Porcelli, 25 Ill. App. 3d 145, 149 (1974). On the otherhand, the comprehensive regulatory scheme governing the sealing ofdocuments and evidence surrounding the use of eavesdropping devicesaids the government in the investigation and prosecution ofcriminal offenses. To allow the public to access such sensitivematters not only would set a dangerous precedent but also wouldthwart our lawmakers' intent to limit access to one's privateaffairs and to protect and preserve issues cultivated during thecourse of criminal investigations.

The legislative intent to prohibit the disclosure of the typeof documents that petitioner seeks is supported by the exemptionslisted under the Freedom of Information Act (5 ILCS 140/1 et seq.(West 1998)). Specifically, sections 7(1)(b) and (1)(c) exemptfrom public disclosure information that would constitute a clearlyunwarranted invasion of personal privacy and records compiled by apublic body for administrative enforcement proceedings. 5 ILCS140/7(1)(b), (1)(c) (West 1998).

Furthermore, the policy considerations underlying theinvestigatory privilege also bolster the decision to deny access tothe documents here. Similar to the restrictions governingoverhears, the investigatory privilege, recently recognized in Inre Marriage of Daniels, 240 Ill. App. 3d 314, 331 (1992), andincorporated under Rule 26(b) of the Federal Rules of CivilProcedure (Fed. R. Civ. P. 26(b)), serves to prevent the harm tolaw enforcement efforts that may arise from the public disclosureof investigative files. Black v. Sheraton Corp., 564 F.2d 531, 541(D.C. Cir. 1977). The purpose of the privilege is " 'to preventdisclosure of law enforcement techniques and procedures, topreserve the confidentiality of sources, to protect witnesses andlaw enforcement personnel, to safeguard the privacy of individualsinvolved in an investigation, and otherwise to prevent interferencewith an investigation.' " Hernandez v. Longini, No. 96C6203, slipop. at 9 (U.S. November 13, 1997), quoting In re Department ofInvestigation, 856 F.2d 481, 485 (2d Cir. 1988). In determiningwhether the privilege applies, the court balances the publicbenefit of the confidentiality of the law enforcement investigationwith the need of a civil litigant to receive such information. Daniels, 240 Ill. App. 3d at 331-32. In balancing the benefit ofkeeping the investigation confidential against the need to discloseto a civil litigant, courts recommend against disclosure in anongoing criminal investigation. Cf. Castro v. Brown's Chicken &Pasta, Inc., 314 Ill. App. 3d 542, 555 (2000)(in an ongoinginvestigation, where the perpetrator of the crime may still be atlarge, it is imperative that the investigation remainconfidential); Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122(7th Cir. 1997)(investigatory files in an ongoing criminalinvestigation are privileged and not subject to discovery). Underthe circumstances in this case, there is no litigation in which alitigant seeks access to sealed files for discovery purposes. Therefore, the need to keep the documents confidential is far moresignificant.

Petitioner asserts that there is a common-law and first-amendment presumption of the right of the press and the public toaccess court records and proceedings. However, petitioner fails torecognize that the presumption is limited to proceedings anddocuments that historically have been open to the public and wherethe disclosure of which would serve a significant role in thefunctioning of the process in question. See, e.g., In reAssociated Press, 162 F.3d 503, 506 (7th Cir. 1998). Theproceeding in which the government seeks the court's permission toimplement an eavesdropping device is not the type of proceedingthat historically has been open to the public. In fact, the verynature of the proceedings in the present matter guards againstdisclosure of the type petitioner seeks. We find no constitutionalor common-law presumption of a right of access to the documentshere.

Petitioner asserts that no party represents its interest. Wedisagree. It is clear that the legislature intended the State'sAttorney or other governmental official to represent the public'sinterest in matters regarding overhears. See People v. Valentine,50 Ill. App. 3d 447 (1977). It is equally clear that thelegislature did not contemplate an adversary proceeding in whichpetitioner may seek access to such documents.

We conclude that the trial court correctly held thatpetitioner lacks standing to petition for the disclosure of theapplication for the overhear order, the order, and any relateddocuments. Because petitioner lacks standing, we need not considerpetitioner's remaining contentions.

We note that, in the petition to intervene, petitionerrestates the allegations set forth in its petition to disclose. Weview the petition to intervene as merely a second petition todisclose the sealed documents and agree with the trial court'sconclusion that the petition to intervene would accomplish nothingmore than the petition to disclose, which has already been denied. Accordingly, we conclude that the trial court properly denied themotion to reconsider and the petition to intervene.

The judgment of the circuit court of McHenry County isaffirmed.

Affirmed.

GEIGER and CALLUM, JJ., concur.