Don't allow police misconduct files to be destroyed
The Fraternal Order of Police has brought a legal challenge that threatens to limit the reach of Kalven v. Chicago, the 2014 Illinois Appellate Court decision holding that documents bearing on allegations of police abuse are public information. If the police union prevails, hundreds of thousands of police misconduct files currently available to the public will be destroyed.
The great bonfire of documents FOP wants to ignite would erase knowledge necessary to establish a credible regime of police accountability. Having finally broken through official secrecy and gained access to information needed to diagnose patterns of police abuse and impunity, the public would see the bulk of those documents go up in smoke.
The FOP challenge takes the form of a lawsuit seeking an injunction to stop the city from releasing information about police misconduct sought by the Chicago Tribune and the Chicago Sun-Times under the Illinois Freedom of Information Act.
Soon after the settlement of Kalven v. Chicago, the two newspapers submitted FOIA requests seeking the disciplinary history of every Chicago police officer since 1967. The documents sought are not the underlying investigative files, but rather a list of every complaint and its disposition over the last 48 years. According to the city, the requested information comes to more than 7,000 pages.
In a striking demonstration of the reach of its new transparency policy, the city did not contest these requests but agreed to provide the information to the newspapers.
At that point, the FOP intervened. The union claims that releasing the list would do harm to its members, because the list includes information the city should not have had in its possession. Under the terms of its contract, the FOP argues, misconduct files should be destroyed after five or seven years, depending on the category of file.
The FOP’s lawsuit strikes at the heart of the principle of freedom of information. It asserts, in effect, that the extent of public access to information we need as citizens to hold the police and the city accountable should be determined by the police and the city.
Unthinkable? On the contrary. On Dec. 15, Judge Peter Flynn enjoined the city from releasing the information sought by the newspapers pending a labor arbitrator’s decision in the dispute between the union and the city over the contract provision regarding destruction of police misconduct files.
There is thus a very real danger that fundamental issues of human rights and freedom of information will be decided in the context of a labor arbitration from which advocates for the public interest are wholly excluded. Under the circumstances, the one sure way to avoid this outcome is for the state Legislature to pass a law requiring police departments to preserve police misconduct records.
Police officers are not ordinary citizens. They are public officials vested with extraordinary powers. A strong line of appellate court decisions, culminating with Kalven, has established the principle that police officers do not have a personal privacy interest in information regarding allegations they have abused their powers. Such documents are quintessential public information.
The passage of time does not dilute the public interest in such information. Destruction of these records would inflict blindness on the institutions charged with supervising, monitoring, and when necessary, disciplining the police. And it would equally diminish our ability as citizens to assess the quality of investigations performed by those institutions.
Moreover, misconduct files may be of great importance long after the events that occasioned them. To take the most dramatic but far from the only example, documented instances of police torture by Commander Jon Burge and officers under his command extend back more than 30 years. There remain individuals in prison who claim their confessions were coerced by Burge and his team. The FOP position, if upheld, would destroy evidence they might use to challenge their convictions.
The city has appealed Judge Flynn’s ruling. It has strong arguments, in view of Flynn’s disregard for the precedents of the appellate court. Even if it prevails, though, the underlying problem remains. The lists of disciplinary records at issue in the case could be released, and there could be a bonfire of the police misconduct files from which those lists were derived. Hence, the urgent need for legislative action.
At a time when citizens across the nation are calling on their elected officials to address patterns of police abuse and impunity, Illinois legislators have the opportunity — and responsibility — to protect the Freedom of Information Act and thereby ensure a solid foundation for enduring police reform.
Journalist Jamie Kalven has reported extensively on police abuse in Chicago. He was the plaintiff in Kalven v. Chicago, which established that police misconduct files are public information.