SPRINGFIELD — With weeks to go before the state’s high court decides whether the city of Chicago can destroy decades-old police misconduct records, Illinois Attorney General Kwame Y. Raoul entered the fray urging the justices to order the archives remain preserved.
The state’s top lawyer filed an amicus brief on Wednesday supporting the overturning of an arbitrator’s decision that the city must destroy records five years after their creation.
Raoul’s brief stressed the records’ role in the function of the Illinois Torture and Relief Commission — a state agency that investigates claims of police torture — and the implementation of a federal consent decree between the state and the city to reform the Chicago Police Department.
“These efforts demonstrate the importance of the [s]tate’s strong public policy favoring the preservation of records relating to allegations of police misconduct, which exists not only to allow the public to understand the work of government, but also to expose official misconduct, so it can be remedied,” Raoul wrote in the brief.
The case, The City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, is one of 11 appeals on the high court’s oral argument docket for March.
In its petition, the FOP argues state labor laws trump public information laws in enforcing a provision of the policemen’s collective bargaining agreement reached in 1981.
Section 8.4 of the agreement holds that “all disciplinary investigation records” should be destroyed five years after their filing, while “files alleging criminal conduct or excessive force” should be destroyed seven years after their creation.
After initiating arbitration in 2012 contending the city violated the provision, the FOP sued the city in 2014 seeking to halt the sharing of misconduct records through a Freedom of Information Act request.
Cook County Circuit Judge Sanjay T. Tailor granted the city’s petition to vacate the arbitration award, ruling that enforcement of the award “violated a well-defined and dominant public policy to preserve government records.”
Tailor’s opinion referenced reports published by the U.S. Department of Justice and a local police accountability task force that examined the Chicago Police Department’s use-of-force policies.
The Justice Department’s January 2017 report concluded that, among other findings, Section 8.4 “not only may impair the investigation of older misconduct, but also deprives CPD of important discipline and personnel documentation that will assist in monitoring historical patterns of misconduct.”
Destroying the records “undermines principles of government transparency that are so vital to the preservation of the rule of law,” Tailor wrote.
The 1st District Appellate Court in March 2019 unanimously upheld the circuit court’s ruling.
Justice Bertina E. Lampkin, writing for the 1st District panel in City of Chicago v. Fraternal Order of Police, 2019 IL App (1st) 172907, found that the award “clearly violated well-defined Illinois public policy requiring the proper retention of important public records.”
Lampkin also held that the Local Records Act, the State Records Act and FOIA establish “a well-defined public policy favoring the proper retention of important public records for access by the public.”
The FOP on appeal argues the appeals court’s undoing of the arbitration award “relied upon the judicially crafted ‘public policy’ basis” and “stretched the public policy exception beyond its purpose.”
The Illinois AFL-CIO and the Illinois Fraternal Order of Police Labor Council filed a joint amicus brief in support of the FOP chapter’s argument that the court “failed to give due regard” to the Illinois Public Labor Relations Act and the Uniform Arbitration Act.
Joint amici briefs were also filed in support of the city by the Invisible Institute and the University of Chicago Law School’s Mandel Legal Aid Clinic as well as by the Reporters Committee for Freedom of the Press and 19 other news media organizations. Among the news organizations is the Illinois Press Association, of which Law Bulletin Media is a member.
The city is represented by corporation counsel Mark A. Flessner, Deputy Corporation Counsel Benna Ruth Soloman, Chief Assistant Corporation Counsel Myriam Zreczny Kasper and Senior Assistant Corporation Counsel Justin A. Houppert.
The FOP is represented by Pasquale A. Fioretto, Catherine M. Chapman, Brian C. Hlavin and Patrick N. Ryan of Baum Sigman Auerbach & Neuman Ltd.
Arguments in The City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, No. 124831, is slated for oral arguments on March 17 in Springfield.