Chicago Police Disciplinary Records Subject To Disclosure In Spite Of Contract Clauses

The Chicago Tribune and Sun Times filed a request under the Illinois Freedom of Information Act (FOIA) seeking the production of “complaint registers” (CR) maintained by the Chicago Police Department. The request included a list of the names of police officers who had received at least one complaint, as well as the officer’s date of appointment, the complaint category, the CR number, the incident date, the date the complaint was closed, the final finding of the investigation, and any disciplinary action taken.

The Chicago Police Sergeants Association, the Chicago Police Association, the Chicago Police Lieutenants Association and Lodge 7 of the Fraternal Order of Police represent various officers in various ranks in the Department. The City notified the unions that it intended to release the requested information from the CR files in response to the FOIA requests. The unions sued, seeking an injunction prohibiting the release of the files. A trial court granted the request for a preliminary injunction, ruling the unions should have the right to proceed to binding arbitration before the court proceedings were concluded.

The first arbitrator to hear one of the cases found that the City had violated the labor agreement by failing to follow the contract’s requirement that it purge CR files and disciplinary records from the online system. The Arbitrator ordered the City to purge its online system of records of police misconduct investigations and discipline more than five years old.

The Department of Justice (DOJ) then opened a civil pattern or practice investigation of the Police Department focusing on allegations of use of excessive force and discriminatory policing. The DOJ sent the City a document preservation request and document preservation notice requesting the City preserve all existing documents related to all complaints of misconduct against Chicago police officers, including documents related to the investigations into and discipline imposed because of such alleged misconduct.

When a second arbitrator also ruled against the City, it filed a lawsuit seeking to overturn the first arbitration decision. The two arbitrators then changed their minds, with the first ordering the parties to negotiate a substitute for the purging clause in the contract, and the second completely changing his mind and siding with the City.

All of the disputes wound up in the Illinois Court of Appeals, which ordered the release of the files. The unions’ key argument was that the privacy rights of Chicago police officers should be balanced against the public’s interest in disclosure under the FOIA. The Court disagreed, finding that “our General Assembly has already engaged in the necessary balancing of the privacy rights of individuals against the public’s right to access government information by providing certain exemptions to disclosure under the FOIA. The FOIA expressly states that ‘the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.’

“The General Assembly has declared that it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government. In light of these public policy considerations and the purpose of the FOIA to open governmental records to the light of public scrutiny, an award in the pending arbitration proceedings would be unenforceable if it circumvented the City’s required compliance with the FOIA requests at issue. Although arbitration is a favored method of dispute resolution in both Illinois and federal courts, an arbitration award may not stand if it results in the contravention of paramount considerations of public policy.

“It is undisputed that CR files and related information are subject to disclosure under the FOIA in the absence of an applicable exemption. A public body must comply with a valid request for information unless one of the narrow statutory exemptions set forth in the FOIA applies. In this case, the trial court identified no exemption that would permit denial of the FOIA requests at issue because of a purported breach of a collective bargaining agreement and no such exemption exists.”

Fraternal Order of Police, Lodge 7 v. City of Chicago, 2016 IL App (1st) 143884 (Ill. App. 2016).