Illinois Supreme Court Rules on Records Case
In a decision that may have far-ranging effects beyond policing, in The City of Chicago v. Chicago Fraternal Order of Police, Lodge No. 7, the Illinois Supreme Court ruled that the local records retention laws trump a collective bargaining agreement provision which requires destruction of disciplinary letters.
The Court examined the following language in the relevant Collective Bargaining Agreement:
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 ***
Section 8.4 of the 2007-2012 Collective Bargaining Agreement. Noting that the Local Records Act, 50 ILCS 205/4(a), makes it a Class 4 felony to destroy records without permission of the Local Records Commission, the Court explained that, at least since 1991 the City of Chicago had been attempting to remove Section 8.4, the City had never successfully negotiated its removal, and ultimately chose to defend an arbitration over its failure to remove a letter and investigation file during the course of the 2007-2012 Collective Bargaining Agreement. The Court overruled an Arbitrator who found in favor of the union, holding the law is superior to Section 8.4 of the Collective Bargaining Agreement:
Section 7 [of the Local Records Act] requires that "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."
Perhaps most importantly, the Court found a broad public policy interest in retention of records, supported by the mandate in the Local Records Act:
In sum, we find there is a "well-defined and dominant" public policy rooted in state law concerning the procedures for the proper retention and destruction of government records, which is at issue in this case.
The case is of great import for schools as successively more restrictive laws prohibit schools from hiding or failing to disclose known issues subjecting children or staff to risk. It also calls into question collective bargaining provisions mandating similar destruction of records.
Schools should be alert to the distinction between retention requirements and disclosure requirements. The Illinois Personnel Records Review Act reads:
An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old. This Section does not apply to a school district or an authorized employee or agent of a school district who is sharing information related to an incident or an attempted incident of sexual abuse or severe physical abuse.
820 ILCS 40/8 (emphasis added). While the law prohibits certain disclosure of records to third parties absent a court order, nothing in the Act permits a school district to destroy the documents, particularly those documents which support the investigatory conclusion. Schools are well-advised to check carefully the rules, laws, and their right to destroy records before doing so.