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Illinois Supreme Court rules older Chicago police misconduct records should remain available to public

Chicago police misconduct records that are more than five years old will remain available to the public, the Illinois Supreme Court ruled Thursday, turning away an attempt by the city’s police union to have them destroyed as a matter of course.

The Chicago Fraternal Order of Police had sued, contending that such records should be eliminated after five years under the city’s police collective bargaining agreement. A court arbitrator had called for the city and the FOP to come to an agreement on the issue, but the city had successfully challenged that decision at the appellate level.

The state’s high court found 6-1 that the arbitration outcome violated clear public policy in the state’s Local Records Act, siding with City Hall.

“In sum, we find there is a ‘well-defined and dominant’ public policy rooted in state law concerning the procedures for the proper retention and destruction of government records,” the majority wrote.

The state Supreme Court decision comes at a sensitive time nationally on policing issues and misconduct, and as Mayor Lori Lightfoot is under pressure to speed up reforms at CPD. The mayor called the court’s ruling the right decision.

“For way too long, we have not been as transparent as we need to be in this city,” said Lightfoot at a Thursday morning news conference on another topic. “We have to have accountability and legitimacy and that can’t come if we hide from the public documents that underscore what has happened with disciplinary investigations and records in our city.”

CPD’s critics have supported the release of such complaint records, arguing they can help identify patterns of misconduct by officers even if they were never disciplined by the department. The FOP has opposed their release, claiming that many complaints made against cops are bogus and that officers who amass the most complaints are likely the ones who work hard and make a lot of arrests.

FOP President John Catanzara on Thursday said he “couldn’t be more disappointed” with the court’s decision, and said he is instructing the union’s lawyers to see if there is a way to take the case to the U.S. Supreme Court.

“It goes against every ounce of logic there is,” Catanzara said. “The contractual rights that were in our collective bargaining agreement for the better part of four decades were set in stone.”

Citing the dissent of Justice Thomas Kilbride, Catanzara said other unions across Illinois should also be “screaming from the top of their lungs” to fight the decision alongside the FOP.

“I think it’s nonsense and we’re certainly not going to take it at face value,” Catanzara said.

The five-year rule is one of the host of provisions in police union contracts that reform advocates have complained hinder transparency and further hobble the notoriously slow and ineffective officer disciplinary system. They’ve called on the department to renegotiate its union contracts to eliminate that rule, along with disciplinary protections such as the ones that delay the statements of cops who shoot people and ban rewards for cops who blow the whistle on misconduct.

Lightfoot herself has been one voice making those calls. Before her election, she chaired Mayor Rahm Emanuel’s police reform task force, which in 2016 recommended that the city rework the union deals.

FOP leaders have vowed not to let the protections go during the ongoing bargaining process, and they have complained that the city wants to railroad cops.

In his dissent, Kilbride wrote it was his belief that the arbitrator ordered the parties to meet on the issue, not specifically for records to be destroyed. He also wrote that the decision could have an impact on other labor issues in the state.

“The majority decision strikes at the heart of the collective bargaining process protected by the Public Labor Relations Act and may, as a consequence, adversely affect public sector collective bargaining contracts that contain arbitration agreements,” he wrote.

The FOP contended that by allowing the records in question to be subject to open-records requests under the state’s Freedom of Information Act, the city violated the union’s collective bargaining agreement.

The majority noted that the agreement does call for the destruction of disciplinary records, including those kept by the predecessor to the Civilian Office of Police Accountability, after five years, and that the city did systematically eliminate them up until 1991. At that point, federal judges in civil actions began issuing orders preserving records.

The FOP filed grievances over the issue in 2011 and 2012.

In 2014, the state appellate court ruled that all complaints about Chicago police misconduct and the related investigative files, even for accusations considered unfounded, are public records and must be turned over by city officials. At the time, a three-judge panel rejected the city’s claim that such files are exempt from the Illinois Freedom of Information Act.

Before that, the public was only allowed to learn the outcomes of police disciplinary cases, including the types of punishment, if complaints against officers resulted in a finding of “sustained,” denoting the cops in question are guilty of the allegations against them.

That ruling came from a lawsuit filed by South Side activist and journalist Jamie Kalven, who was pursuing police misconduct records. As a result of that litigation and a second lawsuit, several lists were generated with the names of officers who amassed the most complaints from around 2001 into December 2008.

The records showed the city rarely handed out punishment to the officers who were listed. Among the most complained-against officers, the records revealed, were those from one of the most scandal-plagued police units in the city’s history, the Special Operations Section, which disbanded in the 2000s after several of its cops abused and robbed citizens for their own financial gain.

In a separate lawsuit, the Tribune and Chicago Sun-Times later filed FOIAs requesting police misconduct records going back to 1967, when complaint records were first kept. CPD was days away from releasing the information in 2014 when the FOP filed a lawsuit and emergency motion with the Cook County Circuit Court claiming that making it public would violate the union’s collective bargaining agreement with the city, which required any disciplinary records five years old to be destroyed.

The court noted “the FOP argues that there is no well-defined, dominant public policy that would allow Illinois courts to set aside a provision within a collective bargaining agreement mandating document destruction of governmental records like police disciplinary and investigation records.”

But the majority disagreed.

“In light of the plain language of the Local Records Act, we agree with the City that the statutory framework the General Assembly constructed makes clear that Illinois recognizes a public policy favoring the proper retention of government records and that the destruction of public records may occur only after consideration by and with the approval from the Commission in a process established by the (Local Records) Commission.”

jgorner@chicagotribune.com

jebyrne@chicagotribune.com

dhinkel@chicagotribune.com