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.
OPINION
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.
