A Cook County judge this week set a rolling schedule for the Chicago Police Department to release documents related to fatal police-involved shootings going back to Jan. 1, 2011.
Monday’s decision from Circuit Judge Kathleen G. Kennedy builds off a Sept. 16 ruling which ordered CPD to release the records — including audio and video recordings — the Better Government Association sought in a Freedom of Information Act request.
Kennedy’s order requires the police department to produce the records on a rolling basis “for each investigative file as the review is completed.”
The department is required to release all of these documents by May 7, 2017. Matthew V. Topic, an associate at Loevy & Loevy, said he had received no indication from the department it would appeal Kennedy’s ruling. This was confirmed by a Law Department spokesman in a statement.
“Earlier this year, the City of Chicago adopted a new policy recommended by the Task Force on Police Accountability that outlines the timing for releasing evidence and videos in police-involved shootings and other serious incidents,” said spokesman Bill McCaffrey. “Several months ago, the City released the evidence and videos for all currently open cases, and is now complying with this court order which concerns older cases that have been closed.”
Topic said that the city’s policy only applies to prospective police shootings — past police-involved shootings would not be covered. McCaffrey alluded to this in his statement.
“I think the reasoning in the decision is extremely sound and beyond any reasonable dispute,” Topic said. “I wouldn’t expect them to file an appeal of it.”
Topic said he had no idea when the police department will begin releasing the documents and the recordings. A status hearing is scheduled for Jan. 9, and Topic said he hoped for progress or document releases by then.
Topic was the attorney who led the fight for the release of the dashcam video that depicted a Chicago police officer shooting Laquan McDonald 16 times in 2014; the one-year anniversary of the video’s release is later this month.
The video’s release led to the toppling of leadership in the police department and the Independent Police Review Authority, and a push for greater reforms to the police department by Mayor Rahm Emanuel.
As part of those reforms, Emanuel has pledged to release videos of police-involved shootings within 60 days of their occurrence.
But this timeline does not reconcile with FOIA, Topic said. Under state law, a public body has five business days to respond to a FOIA request; the public body can request an extension of five additional days within that window.
Topic added that the city’s policy only applies to prospective police shootings — past police-involved shootings would not be covered. And despite the mayor’s pledge for increased transparency, Topic said he still has to fight the department in court.
“It continues to be an issue, and I have clients who continue to have to file suit in order to get fatal police-shooting videos released,” Topic said.
That said, Topic emphasized the importance of getting these police-shooting videos released: “The release of the Laquan McDonald video shows that the police narrative of what happened in that shooting wasn’t correct.”
As for other shootings, “there might be further videos showing what actually happened did not match the police narrative,” he added.
The BGA submitted its FOIA request to the police department in December 2015, requesting all records relating to any fatal police-involved shootings that have occurred since Jan. 1, 2011.
Topic said the Jan. 1, 2011 date was an arbitrary selection; the police department has identified around 70 “files” that would be selected. Topic hesitated to say if that meant there were around 70 fatal police-involved shootings, saying it is possible there could be multiple files for one shooting.
According to the BGA’s lawsuit, which was filed in Cook County circuit court in March, the CPD claimed that the watchdog agency’s FOIA was “unduly burdensome.” However, BGA contended that the police department waived its right to call the request unduly burdensome when it didn’t respond within five days.
In its one-count lawsuit, BGA alleged that the department failed to respond to nearly half of the FOIA requests it received within the required timeframe. The lawsuit also alleges that CPD “is deliberately avoiding or stalling the production of these videos and reports.”
The CPD in response asserted two affirmative defenses. First, the department argued that FOIA exempts certain information, like home addresses, dates of birth and juvenile arrest records. Second, the department argued that complying with BGA’s request “involves a document production of such an enormous scale that it would shut down the operation of the CPD FOIA Unit.”
Both the BGA and the CPD filed motions for summary judgment.
On Sept. 16, Kennedy granted partial summary judgment to only the BGA. According to a court transcript published on the BGA’s website, Kennedy noted that CPD had acknowledged that it waived its right to argue that the BGA’s FOIA request was unduly burdensome.
“Defendants attempt to circumvent their waiver by asserting a defense of impossibility which is not a defense recognized by FOIA,” Kennedy said. “Given FOIA’s meaning and purpose, the defense of impossibility cannot be sustained.”
Kennedy ordered the documents to be released and redacted inline with FOIA’s various exemptions.
Amber Achilles Ritter, an attorney with the city Law Department, told Kennedy that producing the BGA’s requested records would take at least six months.
She pointed to a transparency website the city recently established that “took us about five months of 21 working full-time at $100,000 of outside counsel cost just to do the redactions.”
Because the BGA is requesting a bigger data set, “it will take longer than five months and more than $100,000,” Ritter added.
The BGA was also represented by Joshua Burday of Loevy & Loevy. The police department was also represented by Senior Counsel Martha-Victoria Diaz.
The case is Better Government Association v. Chicago Police Department, No. 16 CH 3918.