How access to public records is being threatened by police union contracts

For decades, a provision included in a contract between the Chicago Fraternal Order of Police and the city of Chicago has required the city to destroy officer misconduct records five years after their original filing.

The practice, criticized as a way for officers to escape accountability, has become the subject of a legal battle between the police union and the city. And it’s the latest in a series of disputes over the preservation of police misconduct records, often stemming from language in collective bargaining agreements that requires the destruction of such information.

In cities across the country — among them, Long Beach, California, San Antonio, Texas, and Hartford, Connecticut — police departments and unions are drawing scrutiny for these arrangements, which destroy paper trails and violate the values of open government. And in some cases, they’re being forced to defend them in court.

That’s what happened in Chicago after the city tried to strike the clause in its collective bargaining agreement with the police union. The case is now before the Illinois Supreme Court, where Reporters Committee attorneys recently filed a friend-of-the-court brief in support of the city.

“Access to the records sought to be preserved by the City in this case will enable members of the news media — and other members of the public, including social science researchers and historians — to analyze and report on issues critical to Chicago’s communities, while providing oversight, fostering accountability, and building institutional trust,” Reporters Committee attorneys wrote in their brief.

A nationwide problem

A 2017 Reuters investigation examined 82 police union contracts in cities across the United States and discovered widespread patterns of record destruction and other officer misconduct coverups.

Reuters found that a majority of contracts required the erasure of disciplinary records after a period of months or years. Many cities also allow officers to review their misconduct case files, or require their written consent before releasing disciplinary records or previous investigations.

According to Reuters, 17 cities even place limits on how long citizens can wait to file complaints about law enforcement officers. If they are accused of misconduct, 20 cities allow officers to use sick, holiday, or vacation time to serve the suspension.

In 2014, a city manager in San Antonio attempted to remove a clause in the police union contract that erased earlier misconduct from officers’ records, along with the officers’ option of using vacation time to serve suspensions. She pushed for the changes after an officer with multiple prior sexual misconduct complaints was accused of handcuffing and raping a woman in the back his police car.

In response, the Police Officers Association ran full page ads, placed billboards and broadcast advertisements attacking the city manager’s salary and competency. Reuters reported that two years later, after intense negotiations, none of her changes were adopted.

Similarly, a police contract currently under consideration by the Long Beach City Council and the police union would require the city to give officers a five-day notice to examine any records about themselves, and would give officers the name of the person requesting the documents.

An editorial in the Los Angeles Daily News criticized the contract for “a clear attempt to discourage members of the public, and good-government organizations and watchdog groups, from exercising their rights as citizens to access legitimate public information about how police officers and their departments behaved.”

In an even more egregious example, language in the new Connecticut state trooper contract requires a court order to obtain “personal data” about troopers. Internal affairs reports and personnel files are also exempt from public inspection if allegations against a trooper were determined to be “unfounded.”

As The Middletown Press reported in May, these clauses are directly opposed to the state’s Freedom of Information law.

Courts weigh in 

Disputes over these kinds of contracts have made their way to court in multiple states.

The Salt Lake Tribune, for example, has been engaged in a years-long legal battle with Brigham Young University over the private institution’s insistence that the records of its police force are exempt from public records laws, even though the force is deputized by the state to perform law enforcement duties.

In June 2019, the Reporters Committee signed on to a friend-of-the-court brief filed by the University of Florida’s Brechner Center for Freedom of Information arguing that the school’s private police records should be open to public inspection.

BYU is one of the largest remaining college police departments that has resisted disclosing its documents, making the case significant due to its implications for other private universities across the country, Brechner Center Director Frank D. LoMonte said.

“This case is significant not just for access to campus police records, but for access to records of other private organizations that are given the authority to step into the shoes of the government,” LoMonte said. “The justices have a chance to set a clear standard that puts government agencies on notice they cannot ‘contract away’ transparency by deputizing private organizations to perform essential governmental safety duties.”

In 2009, the Michigan Court of Appeals ruled that a Detroit police officers’ union could not use an employment contract to get around the state’s open records laws. The Detroit Free Press had requested a photo of a suspended officer, but the police officer’s union filed a lawsuit to prevent the photo’s release. They argued it would violate the terms of the collective bargaining agreement.

A three-judge panel ruled unanimously in support of the Press.

“In the present case, the officer was charged with criminal conduct related to his employment, appeared at a public court proceeding for an arraignment, and his continued prosecution is of public interest,” the court concluded. “The public interest in disclosure outweighs the public interest in nondisclosure when a governmental employee is accused of violating the public trust.”

It’s unclear how the Chicago case will unfold in the Illinois Supreme Court, although the outcome promises to be both divisive and impactful for the city.

As Reporters Committee attorneys wrote in their brief in the case, allowing the records-destruction provision in the collective bargaining agreement to stand “would hinder public understanding about police discipline and accountability, currently and historically, stifling informed public discourse about issues relating to law enforcement in Chicago.”

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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