Wednesday, November 15, 2017

Court Vacates Arbitration Award That Mandated Destruction Of Records Subject To A FOIA Request

A recent Illinois court opinion confirms that privacy provisions within a collective bargaining agreement cannot usurp state law, particularly the Illinois Freedom of Information Act. In City of Chicago v. FOP, Chicago Lodge No. 7, No. 16 CH 9793 (October 18, 2017), the Circuit Court granted the City’s petition to vacate an arbitration award that required the City to destroy disciplinary files that were over five years old that were the subject of a FOIA request. The opinion reinforces the well-defined and dominant public policy to preserve government records that is reflected in FOIA.

By way of background, in 2015, the FOP filed two grievances claiming that the City had violated the collective bargaining agreement by releasing disciplinary records that should have been destroyed after five years pursuant to Section 8.4 of the collective bargaining agreement. Section 8.4 is the direct opposite of transparency because it provides for the destruction of documents related to the investigation and discipline of police officers, including the investigation of complaints involving their use of excessive and/or deadly force against citizens of the City. Complaints against a police officer are virtually obscured from the public which is contrary to the transparency goals embedded in FOIA. These grievances were submitted to Arbitrator George Roumell, who presided over the arbitration, and issued four awards on these grievances, beginning in January 2016, with his interim award sustaining the grievances and directing the parties to negotiate a timeline for destruction of the documents older than five years old. Pursuant to the terms of the interim award, the City and the FOP met but were unable to identify records to be destroyed or agree upon a timeline.

In the meantime, the City informed the Arbitrator that on December 7, 2015, the United States Department of Justice (“DOJ”) had, pursuant to a number of federal statutes, opened an investigation into the CPD and Independent Police Review Authority (“IPRA”). The purpose of the investigation was to determine whether the CPD was engaging in a pattern or practice of unlawful conduct and, if so, what systemic deficiencies or practices within CPD, IPRA, and the City might be facilitating or causing this pattern or practice. The City also informed the Arbitrator that the DOJ had requested that all relevant documents, including disciplinary and investigative records, be preserved. On April 28, 2016, the Arbitrator issued his final award on the FOP’s grievances, determining that state law did not make section 8.4 of the CBA unenforceable, but that the DOJ document preservation request constituted a sufficient public policy exception to preserve the subject records until the investigation and all resulting intervention and litigation was concluded. On June 21, 2016, the Arbitrator clarified the award by stating that “destruction of records pursuant to the language of Section 8.4 is to be read and applied once the public policy exception brought by the Department of Justice investigation and its possible consequences no longer exists.” The City then moved to vacate the Arbitrator’s Award on the basis that the document destruction provision is unenforceable as it violates public policy.

The Circuit Court granted the City of Chicago's Motion to Vacate an arbitration award that required the City to destroy disciplinary files that were over five years old that were the subject of a FOIA request. The City’s primary position in its petition to vacate was that the arbitration award violated public policy. In its decision, the Circuit Court agreed and granted the motion on the grounds that, as a matter of the public policy reflected in the FOIA, the City was prohibited from destroying responsive records until that FOIA request, and any others that the City may receive in the interim, is responded to. In addition to FOIA, the Circuit Court also relied on both the State Records Act and the Local Records Act in finding that the arbitration award violated a well-defined and dominant public policy of preserving government records. The Circuit Court also found that enforcement of the Award threatens the City's litigation hold obligations and prejudices the City's defenses to Monell litigation.

The opinion is important and instructive for several reasons.

1. Privacy provisions within collective bargaining agreements will not supersede FOIA. Any collective bargaining agreement that exempts information from the ambit of disclosure under FOIA would not be binding because it would violate the public policy as expressed in FOIA. Thus, attempts to negotiate around or interpret a collective bargaining provision that circumvents the public policy effectuated by FOIA would be unenforceable.

2. Destruction of important public records undermines principles of government transparency.

3. Municipalities should not destroy records unless otherwise permitted to do so after following its obligation under the State Records Act and the Local Records Act. As the Circuit Court stated in its opinion, if municipalities “are to be responsive to the citizenry, it must have access to… records to make better-informed decisions.”

4. Municipalities should make clear to employees that they generally have no expectation of privacy.  In view of the Circuit Court’s opinion, employers must meet FOIA obligations, and as a consequence, may be forced to reveal information, including among other things, disciplinary history, employee communications, even employee schedules, in order to comply with FOIA requests.

Please let us know if you have any questions about this decision or the interplay between FOIA and collective bargaining agreements.