Internal Employee Investigative Reports May Be Subject to FOIA Release

According to recent Public Access Counselor (PAC) and court opinions, reports of internal investigations of alleged public employee misconduct are subject to public disclosure pursuant to the Freedom of Information Act. In a binding opinion, (Public Access Opinion 13-011) the PAC addressed whether or not internal investigative reports concerning employee misconduct by the assistant police chief were exempt from disclosure under section 7(1)(n) of the Freedom of Information Act. Section 7(1)(n) exempts from disclosure records “relating to a public body’s adjudication of employee grievances or disciplinary cases; however this exemption shall not extend to the final outcome of cases in which discipline is imposed.”  The City of Bloomington argued that its investigative records were exempt as records relating to a public body’s adjudication of an employee’s disciplinary case. In this particular case, the assistant chief was involved in a traffic accident. The city asserted that an informal “adjudication” occurred when the chief of police reviewed the investigative reports and imposed a five day suspension. No formal grievance or formal adjudication was ever held.

The PAC cited to a number of cases in support her opinion.
 
The Board of Education of Community Consolidated School District #54 v. Bangler, 328 Ill.App.3d 747 (1st Dist. 2002), which held that “investigative activities which proceed a final determination are not components of an adjudication and therefore not exempt material under 7(1)(n).”

Gekas v. Williamson, 793 Ill.App.3d 573 (4th Dist. 2009), which held that internal affairs files concerning allegations of police misconduct were subject to disclosure since the information bears on the public duties of a public employee.

Rangel v. City of Chicago, No. 10 C 2750, 2010 Westlaw 3699991 and Calvin Christian III v. City of Springfield, 2010-MR-461Sangamon County Circuit Court, June 3, 2011, in which citizen complaint register files and other investigative reports concerning police officers were held not exempt from disclosure under 7(1)(n).

The PAC emphasized the strong public interest in access to a public body’s internal investigation into a personnel matter. “Disclosure of a full and complete account of a public body's investigation of allegations of employee misconduct ensures that the investigation is consistent with the public body’s internal rules and procedures and that the discipline imposed, if any, is consistent with the public body’s findings.”

More recently, in Kalven v. City of Chicago, 09 CH 51396 2014 Ill.App.1st 121846 (issued March 10, 2014) the First District Court of Appeals required the disclosure of certain internal investigative records (complaint registers-CRs) related to complaints of police misconduct.

Reminiscent of the PAC Opinion in the City of Bloomington case, the Kalven court found that the investigative reports were not “adjudication records” exempt under 7(1)(n) of the Freedom of Information Act. While an investigative report might lead to disciplinary adjudication, the reports are separate from that process. Additionally, the court held that investigative reports were not exempt under the preliminary drafts and notes exemption of the Freedom of Information Act (section 7(1)(f)).  The court said that this exemption only protects recommendations and “deliberative discussions” formulating policy or decisions, not factual material or final decisions.

In light of PAC Opinions and case law, internal investigative reports are now subject to disclosure, perhaps, even while a disciplinary case is being adjudicated.  In an informal opinion issued July 21, 2014 involving the Illinois State Police and The Pantagraph newspaper, the PAC said that investigative reports concerning a police officer’s alleged misconduct must be disclosed even though adjudication had not been completed, and even though criminal proceedings were reasonably contemplated. (2014 PAC 29849)  According to the PAC the State Police failed to adequately describe how release of the internal reports would deprive the police officer of an impartial hearing.

Given these decisions employers may want to consider engaging an attorney on behalf of the public body for employee misconduct investigations.  By placing an attorney in charge of an investigation the attorney client exemption found in section 7(1)(m) of the Freedom of Information Act may apply. Section 7(1)(m) exempts from disclosure:  “Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body….”