Public Records Law Prevails Over Purging Clause In Contract

This article appears in the September 2020 issue of our monthly newsletter, Public Safety Labor News.

Since January 1981, the City of Chicago and the Fraternal Order of Police, Chicago Lodge No. 7, have been parties to a collective bargaining agreement. Section 8.4 of the CBA calls for the purging from employee disciplinary files of materials “five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer.”

The City destroyed records subject to Section 8.4 in accordance with that provision until 1991, when a federal district judge entered an order in a civil rights case requiring the City to cease destroying complaint register files. Other federal district judges also began entering similar orders as a matter of routine. Thereafter, the City was unsuccessful in its multiple attempts to eliminate Section 8.4 from the CBA during negotiations with the FOP. As such, the provision remains.

In 2011 and 2012, the FOP filed two grievances over the City’s failure to destroy complaint register files in excess of five years old. The City denied both of the FOP’s grievances, and the FOP initiated arbitration.

In October 2014, the City notified the FOP that the City intended to comply with requests under the Illinois Freedom of Information Act from the Chicago Tribune and Chicago Sun-Times for information related to complaint register files dating back to 1967. The FOP sought an injunction on the basis that disclosure of the complaint register files during arbitration would interfere with the FOP’s ability to obtain relief in arbitration. In December 2014, a trial court granted the FOP’s request for a preliminary injunction barring the release of the complaint register files until the FOP’s claims under the CBA were adjudicated.

In December 2015, the United States Department of Justice (DOJ) announced that it had opened a civil pattern or practice investigation of the Chicago Police Department focusing on allegations of use of excessive force and discriminatory policing. In connection with the investigation, the DOJ sent the City a document preservation notice requesting the City and the CPD to 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.

In a follow-up communication, the DOJ clarified that its document preservation request was intended to cover all officer misconduct complaint and disciplinary files maintained by the CPD, including those that were the subject of the two pending arbitration cases. In light of the letter, the City informed the Arbitrator of the pendency of the DOJ investigation and requested guidance on how the City should respond to the DOJ’s requests for the production of misconduct and disciplinary records.

A month later, the Arbitrator issued his initial opinion and interim award, which found that the City violated Section 8.4 of the CBA and directed the parties to meet and attempt to establish a procedure for compliance. The Arbitrator remanded the matter to the parties to negotiate a timeline and method on how to destroy all records covered by Section 8.4 except for files related to pending litigation or arbitration.

In February 2016, an assistant United States attorney sent letters to the City specifically stating that, “For the duration of DOJ’s pattern and practice investigation, the City and CPD must preserve all existing documents related to all complaints of misconduct, including those that were the subject of the arbitration. On April 28, 2016, the Arbitrator issued a second award, altering his previous interim award and denying the grievances for the reasons of the public policy involved in the request of the U.S. Department of Justice, and only for this reason.”

Eventually, a variety of legal disputes ended up before the Illinois Supreme Court, including a challenge to the Arbitrator’s awards requiring the destruction of documents. The Court was faced with a fairly straightforward question – which prevails, the provisions of the FOIA, which mandate the retention of records, or the provisions of the CBA, which require their destruction?

The Court held that the FOIA prevailed: “In this case where the challenge to the Arbitrator’s award is substantiated on establishing a direct conflict between a provision of the CBA and statutory requirements, we need not look further than the plain language of the statute to determine the state’s public policy. 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 State Records Commission in a process established by the Commission. As such, the procedures laid out in the Local Records Act are an express, legislative restriction on a local government to act in any other way than authorized by the statute.

“While parties are generally free to make their own contracts, this Court has long held that when a conflict exists between a contract provision and state law, as it clearly does in this case, state law prevails. This doctrine is based on the common-law notion that courts will not lend judicial power to the enforcement of private agreements that are immoral or illegal. That is the precise situation presented here where a provision in a CBA contravenes explicit state law.”

City of Chicago v. Fraternal Order of Police, 2020 IL 124831 (7th Cir. 2020).

Also in the September 2020 issue:

  • Contracts And Memoranda Of Understanding
  • Gradual Work-Related Hearing Loss Not Covered By Workers’ Comp. In Louisiana
  • Disciplinary Arbitration Decision May Be Subject To Public Disclosure
  • Patronage Allowed In Missouri Sheriff Department
  • Employer Not Allowed To Unilaterally Extend Probationary Period
  • The ‘Not A Sharp Operator’ Defense
  • ADA Does Not Require Light Duty For Oft-Injured Officer
  • Court Rejects Lawsuit From Deputy Shot By Reserve
  • Court Upholds Arbitrator’s Opinion On Fire Union Meetings
  • Labor Board Refuses To Sever Detectives From Sworn Unit
  • Budget Discussions Do Not Equal Negotiations
  • Q & A
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