Illinois' historic criminal justice reform law, hailed as a national model, contains a little-noticed loophole that seals statewide records of police misconduct and hides them from courts and the public.
The new law requires the Illinois Law Enforcement and Training Standards Board to maintain a statewide database of police misconduct. But the same law that requires the statewide database then closes it.
A spokesperson for the Attorney General Kwame Raoul’s office defended the provision by saying the misconduct information remains an open record in the individual police stations. The reason the state database was closed, the spokesperson said, is “the records are available to anyone who wants them” from the individual departments.
The spokesperson acknowledged that anyone seeking statewide data on police misconduct would have to file FOIA requests with each of the almost 900 Illinois law enforcement agencies.
The 2021 law strengthens the board’s Professional Conduct Database. Before it passed, departments were required to notify the board when an officer was fired or resigned under investigation for “willful violation of department policy.” The new law requires additional reporting. It requires departments to also report extended suspensions and actions that would lead to an official investigation for violating a government policy.
In other words, this database contains alleged misconduct that did not lead to decertification, so it is much more comprehensive than a list of officers decertified.
Before the 2021 law passed there was no requirement for a department to check the database. Now there is.
“We have this misconduct database [under the old law], but there [was] no requirement that departments have to use it when they look to hire someone as part of that background check,” Sen. Elgie Sims (D-Chicago), a sponsor of the new law, said in an interview. “Now you have to look to that database to check if there’s misconduct, or an individual resigned while there was an investigation going on. So those types of things, those updates are necessary; they are long overdue.”
But at the same time that the 2021 law expanded the information in the misconduct database and required local departments to check it, a last minute amendment closed the database to the public and courts.
That loophole is on pg. 669 of the text. It reads: “The database, documents, materials or other information in the possession or control of the Board that are obtained by or disclosed to the Board pursuant to this subsection shall be confidential by law and privileged and shall not be subject to discovery or admissible in evidence in any private civil action.”
Sam Stecklow, a journalist with the Invisible Institute, said this provision in the bill creates a lack of transparency despite decades of court decisions in Illinois saying the public should have access to these records.
“When this bill came out the Attorney General’s office was like ‘well this is super transparent’ and what they were talking about was it encourages communication between law enforcement agencies, that was the transparency we are talking about. It’s not actual public transparency where the public has access to this information,” Stecklow said.
Stecklow wrote a piece for Injustice Watch about the reform bill and this loophole that can be viewed here.
Marie Dillon, policy director for the Better Government Association in Chicago, is leading the effort to amend the reform bill and make this database accessible.
Dillon said while there is no question police misconduct records in Illinois are public information, this new law makes the centralized database inaccessible to the public and forces requesters to go elsewhere to find the information.
“That’s what we’re arguing with them about right now, trying to get them to pass a trailer bill. We want language that specifically says that those documents are not redacted,” Dillon said. “We want to make sure the underlying records are FOIAable which we believe they are under the law.”
The Attorney General’s Office wrote this particular portion of the bill that deals with certification, Dillon said. She said they are working with her to fix the language.
“They, you know, said they did not intend to keep records from anybody. That was not their intent and they have been working with us on this language so you know I’m hopeful that we’re going to get it fixed. They have a pretty good record for being on the side of transparency and as I said they quickly said ‘hey we’ll work with you’ and we’ve had meetings with them so I hope they’re going to clean the language up,” Dillon said.
Dillon said she doesn’t understand why this language was placed in the law. But she believes it is partially due to fundamental misunderstanding between requesters like her and the AG’s office.
“They didn’t understand you know why it’s important to us to feel like we should be able to get it. I feel like a public document in the hands of any public body is public,” Dillon said. “If it’s in your possession and it’s a public document I should be able to get it under FOIA you know they were more like ‘well you can still get it from the police department, you can still get it from the police force’ so that’s kind of a fundamental difference of opinion here but again they are working with us so.”
Nothing has been filed to amend the bill in the current legislative session as of publication deadline.
“Because the criminal justice bill was so big and you know they passed it in lame duck session so it was really fast too there’s a lot to clean up in it,” Dillon said. “My understanding is that will be an omnibus bill which means you know we won’t see it till right at the end again and it will roll all the fixes into one thing.”
A representative from the Attorney General’s office said the reason why the Professional Conduct Database was made private/inaccessible via FOIA was because of “pushback” and “give and take.”
The office declined to blame one particular group for the pushback and instead said it was part of the overall negotiations involving all of their partners on the bill.
When asked whether or not the AG’s office planned to fix the loophole and make the database accessible to the public, all the representative would say is that there have been “conversations” about it but ultimately it is “up to the legislators.”