Before her intervention, Dr. Stevens had tried to get the information from the sealed documents through FOIA requests to the Director of the Illinois Department of Insurance and the Illinois Attorney General. These requests were rebuffed due to work product protections and statutory rules protecting the privacy of information provided to those offices. Dr. Stevens filed suit based on these requests,[11] but did not pursue that suit to the appellate level, focusing instead on her intervention action with the conservation court. No challenge was raised, therefore, to the Director’s or Attorney General’s rules or policies.
Ultimately, Dr. Stevens’s motion to vacate the confidentiality orders was denied, and she commenced her appeal.
An Issue of First Impression
On appeal, Dr. Stevens raised both facial and as-applied First Amendment challenges to the confidentiality provisions of the Illinois Code pertaining to conservation.[12] These provisions require that (a) all conservation hearings take place in chambers upon the insurer’s request or at the court’s discretion, and (b) all conservation court records are kept confidential until the insurer requests or the court orders otherwise. These challenges were the first of their kind brought against confidential conservation proceedings and had the potential to significantly affect the way such proceedings occurred in Illinois.
Dr. Stevens first argued that the confidentiality provisions violated the right of public access to court proceedings implicit in the First Amendment.[13] The appellate court, however, relied on the “experience and logic” test fashioned by the Supreme Court[14] to determine that conservation proceedings were not the type of proceedings to which such a public right attaches. Logic, the court found, did not dictate a public right of access because public access does not play a “significant positive role” in a conservator’s ability to maintain the status quo of an insurer’s position and investigate that insurer’s financial status. In fact, disclosure would threaten those efforts, risking customer flight.[15] Experience similarly dictated towards nondisclosure. The court rejected Dr. Stevens’s argument that conservation proceedings were analogous to bankruptcies, differentiating them as a form of administrative, regulatory oversight. Only the history of conservation itself was relevant, the court explained, and in that history there was no tradition of access.
Citing her position as a reporter, Dr. Stevens next argued that confidentiality provisions represented a prior restraint on her own speech, since she could be found in contempt of court if she were to publish the sealed records’ contents.[16] The court rejected this argument, too, determining that retaining records under seal is not equivalent to forbidding speech, and that the risk of contempt for violating a court order cannot transform a seal order into a prior restraint.
The court also quickly disposed of arguments that denying Dr. Stevens access to the documents violated the equal protection, special legislation, due process, and separation of powers provisions of the Illinois and United States constitutions.
Impact of the Court’s Ruling
The appellate court issued its ruling affirming the lower court on September 12, 2025. This decision was the first to address the constitutionality of confidential conservation proceedings for insurers, and is now the definitive ruling on the issue in Illinois. While this decision applies only to Illinois law, numerous other jurisdictions have similar or identical confidentiality provisions in code sections governing similar conservation proceedings.[17] Should similar challenges arise in any of these states, the NextLevel decision will provide helpful guidance for how constitutional challenges might be addressed.
Conclusion
Conservation of potentially insolvent insurers plays an important role in the insurance codes of numerous states, including Illinois, and confidentiality of such proceedings is vital to their functioning. The decision of the Illinois appellate court allowing conservations of insurance companies to continue as confidential proceedings will be significant for both regulators and insurers facing potential insolvency.