City of Chi. v. Fraternal Order Police

2020 IL 124831

181 N.E.3d 18

450 Ill.Dec. 18

The CITY OF CHICAGO, Appellee,

v.FRATERNAL ORDER OF POLICE, Chicago Lodge No. 7, Appellant.

Docket No. 124831

Supreme Court of Illinois.

Opinion filed June 18, 2020

Pasquale A. Fioretto, Catherine M. Chapman, Brian C. Hlavin, and Patrick N. Ryan, of Baum Sigman Auerbach & Neuman, Ltd., of Chicago, for appellant.

Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Justin A. Houppert, Assistant Corporation Counsel, of counsel), for appellee.

Steve Yokich, of Dowd, Block, Bennett, Cervone, Auerbach & Yokich, and Joel D'Alba, of Asher, Gittler & D'Alba, Ltd., both of Chicago, and Tamara Cummings, of Western Springs, for amici curiae Illinois AFL-CIO et al.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Sarah A. Hunger, Christopher G. Wells, and Aaron P. Wenzloff, Assistant Attorneys General, of Chicago, of counsel), amicus curiae.

Natalie J. Spears, Gregory R. Naron, and Julius C. Carter, of Dentons U.S. LLP, of Chicago, for amici curiae Reporters Committee for Freedom of the Press et al.

Chaclyn R. Hunt, of Invisible Institute, and Craig B. Futterman, of Mandel Legal Aid Clinic at the University of Chicago Law School, both of Chicago, for amici curiae Organizations and Religious Leaders That Represent Victims of Chicago Police Misconduct et al.

OPINION

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

¶ 1 This appeal presents a single issue: whether a provision in a collective bargaining agreement (CBA) that, contrary to the provisions of the Local Records Act ( 50 ILCS 205/1 et seq. (West 2016)), requires the destruction of disciplinary files after a fixed period of time violates public policy. The issue arises in the context of an action brought by the Fraternal Order of Police, Chicago Lodge No. 7 (FOP), against the City of Chicago (City) for failing to destroy records of police misconduct as required under the CBA. The matter went to arbitration, where the arbitrator held that the CBA should prevail and directed the parties to come to an agreement regarding the destruction of the documents. The City sought to overturn the arbitration award in the Cook County circuit court and was successful on public policy grounds. The appellate court affirmed, and this court allowed the FOP's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018). For the reasons that follow, we affirm the judgment of the appellate court.

¶ 2 PRINCIPAL STATUTES INVOLVED

¶ 3 Section 4 of the Local Records Act states in relevant part:

"(a) Except as otherwise provided in subsection (b) of this Section, all public records made or received by, or under the authority of, or coming into the custody, control or possession of any officer or agency shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part, except as provided by law. Any person who knowingly, without lawful authority and with the intent to defraud any party, public officer, or entity, alters, destroys, defaces, removes, or conceals any public record commits a Class 4 felony." 50 ILCS 205/4(a) (West 2016).

¶ 4 Section 6 of the Local Records Act provides for the creation of a local records commission (Commission) to administer the requirements set forth in the Act. Id. § 6.

¶ 5 Section 7 of the Local Records Act states in relevant part:

"Disposition rules. Except as otherwise provided by law, no public record shall be disposed of by any officer or agency unless the written approval of the appropriate Local Records Commission is first obtained.

The Commission shall issue regulations which shall be binding on all such officers. Such regulations shall establish procedures for compiling and submitting to the Commission lists and schedules of public records proposed for disposal; procedures for the physical destruction or other disposition of such public records; procedures for the management and preservation of electronically generated and maintained records; and standards for the reproduction of such public records by photography, microphotographic processes, or digitized electronic format." Id. § 7.

¶ 6 Section 10 of the Local Records Act states:

"§ 10. The head of each agency shall submit to the appropriate Commission, in accordance with the regulations of the Commission, lists or schedules of public records in his custody that are not needed in the transaction of current business and that do not have sufficient administrative, legal or fiscal value to warrant their further preservation. The head of each agency shall also submit lists or schedules proposing the length of time each records series warrants retention for administrative, legal or fiscal purposes after it has been received by the agency. The Commission shall determine what public records have no administrative, legal, research or historical value and should be destroyed or otherwise disposed of and shall authorize destruction or other disposal thereof. No public record shall be destroyed or otherwise disposed of by any Local Records Commission on its own initiative, nor contrary to law. This Section shall not apply to court records as governed by Section 4 of this Act." Id. § 10.

¶ 7 BACKGROUND

¶ 8 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. Central to this case is section 8.4 of the 2007-12 CBA, which mandates the destruction of disciplinary and investigation records like complaint register files. These files are produced in the course of investigations by the Civilian Office of Police Accountability (COPA) and the Chicago Police Department's Bureau of Internal Affairs of alleged misconduct by Chicago Police Department (CPD) officers. COPA and the bureau had the authority to recommend to the CPD superintendent disciplinary action for violations of CPD rules and regulations. The relevant terms of section 8.4 have remained substantially unchanged over the decades since it was implemented in the initial CBA. Section 8.4 of the 2007-12 CBA reads in relevant part:

"All disciplinary investigation files, disciplinary history card entries, Independent Police Review Authority and Internal Affairs Division disciplinary records, and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer * * *."

¶ 9 Until 1991, the City destroyed records subject to section 8.4 in accordance with that provision. That changed in 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 included in the CBA.

¶ 10 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 and otherwise not excepted from destruction pursuant to section 8.4 of the CBA. The City denied both of the FOP's grievances, and the FOP initiated arbitration.

¶ 11 Subsequently, in October 2014, the City notified the FOP that the City intended to comply with requests under the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2014)) from the Chicago Tribune and Chicago Sun-Times for information related to complaint register files dating back to 1967. The FOP sought a preliminary injunction in the circuit court 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, the circuit 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. The City and Chicago Tribune filed separate interlocutory appeals challenging the preliminary injunction. In May 2015, the circuit court entered a second preliminary injunction enjoining the City from releasing any complaint register files more than four years old¹ as of the date of the FOIA request, and the City filed an interlocutory appeal.

¶ 12 In December 2015, the United States Department of Justice (DOJ) announced that, pursuant to the Violent Crime Control and Law Enforcement Act of 1994 ( 42 U.S.C. § 13701 et seq. (2006) ), it had opened a civil pattern or practice investigation of the CPD focusing on allegations of use of excessive force and discriminatory policing. In connection with the investigation, the DOJ sent the City a document preservation request and 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.

¶ 13 A month later, in January 2016, 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...