                                    2019 IL App (1st) 172907
                                          No. 1-17-2907
                                  Opinion filed March 29, 2019
                                                                                      Fifth Division
______________________________________________________________________________

                                             IN THE
                              APPELLATE COURT OF ILLINOIS
                                        FIRST DISTRICT
______________________________________________________________________________
THE CITY OF CHICAGO,                     )                        Appeal from the
                                         )                        Circuit Court of
       Petitioner-Appellee,              )                        Cook County.
                                         )
   v.                                    )                        No. 16 CH 9793
                                         )
FRATERNAL ORDER OF POLICE, CHICAGO LODGE )                        Honorable
NO. 7,                                   )                        Sanjay T. Tailor,
                                         )                        Judge, presiding.
       Respondent-Appellant.



       JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
       Justices Hoffman and Hall concurred in the judgment and opinion.

                                            OPINION

¶1     The Fraternal Order of Police, Chicago Lodge No. 7 (FOP), appeals the circuit court’s

decision that granted the petition of the City of Chicago (City) to vacate an arbitration award that

ordered the City to destroy records of alleged police misconduct that were more than five years

old and denied the FOP’s counterpetition to enforce the award.

¶2     The FOP argues that the circuit court erred as a matter of law by (1) holding that a well-

established Illinois public policy required the preservation of governmental records; (2) holding

that the award could not be enforced consistent with the Local Records Act (Local Act) (50 ILCS
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205/1 et seq. (West 2016)), State Records Act (State Act) (5 ILCS 160/1 et seq. (West 2016)), or

any public policy embodied therein or based on any other State law or public policy; and (3) not

enforcing the award pursuant to the Illinois Public Labor Relations Act (Labor Act) (5 ILCS

315/1 et seq. (West 2016)) and the Uniform Arbitration Act (Arbitration Act) (710 ILCS 5/1 et

seq. (West 2016)).

¶3      For the reasons that follow, we affirm the judgment of the circuit court that granted the

City’s petition to vacate the award and denied the FOP’s counterpetition to enforce the same. 1

¶4                                        I. BACKGROUND

¶5      This appeal arises from grievances the FOP submitted in 2011 and 2012 to the Chicago

Police Department (CPD) over the retention of disciplinary records older than five years, which

retention the FOP claimed was in violation of section 8.4 of the 2007-12 collective bargaining

agreement (CBA) between the FOP and the City.

¶6      The records at issue are complaint register files (CR files). CR files are produced in the

course of investigations by the Civilian Office of Police Accountability (COPA) and the CPD’s

Bureau of Internal Affairs (Internal Affairs) of alleged misconduct by CPD officers. COPA and

Internal Affairs had the authority to recommend to the CPD superintendent disciplinary action

for violations of CPD rules and regulations.

¶7      The retention of disciplinary and investigation records like CR files was governed in the

first CBA between the City and FOP, effective January 1, 1981, by a provision in section 8.4,

which required the destruction of such records “five (5) years after the date of the incident or the



        1
         In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.

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date upon which the violation is discovered.” Future CBAs continued to include some version of

section 8.4, including the 2007-12 CBA at issue in this case, which provided, in relevant part:

        “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[.]”

¶8      The City’s destruction of records pursuant to section 8.4 ceased following a federal

court’s 1991 order in a civil rights case, which required the City to cease destroying CR files.

Thereafter, other federal district court judges began entering similar orders as a matter of routine,

and the City sought to eliminate section 8.4 from the CBA during negotiations with the FOP.

¶9      In 2012, the CPD denied both of the FOP’s 2011 and 2012 grievances, and the FOP

initiated arbitration.

¶ 10    Meanwhile, in October 2014, the City notified the FOP that the City intended to comply

with requests under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)),

from the Chicago Tribune and Chicago Sun-Times for CR files dating back to 1967. The FOP

sought a preliminary injunction in the circuit court on the basis that disclosure of the CR files

during arbitration would interfere with the FOP’s ability to obtain relief in arbitration. In

December 2014, the circuit court granted the FOP’s request for a preliminary injunction barring

the release of the CR files to maintain the status quo until the FOP’s claims under the CBA were

adjudicated. The City and Chicago Tribune filed separate interlocutory appeals challenging the



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preliminary injunction. In May 2015, the circuit court entered a second preliminary injunction

enjoining the City from releasing any CR files more than four years old as of the date of the

FOIA request, and the City filed an interlocutory appeal.

¶ 11   In December 2015, the United States Department of Justice (DOJ) opened an

investigation into the CPD’s use of force policies. The City informed the arbitrator of the

pendency of the DOJ investigation and requested guidance on how the City should respond to

the DOJ’s requests for the production of misconduct and disciplinary records.

¶ 12   In January 2016, the arbitrator issued an opinion and interim award, which found that the

City violated section 8.4 of the CBA and directed the parties to meet and attempt to establish a

procedure for compliance.

¶ 13   In February 2016, an assistant United States attorney sent letters to the City specifically

stating that, “for the duration of DOJ’s pattern and practice investigation,” the City and CPD

must “preserve all existing documents related to all complaints of misconduct,” including those

that were the subject of the arbitration.

¶ 14   In April 2016, the arbitrator issued a second opinion and award, holding that, because of

the DOJ’s demand that the City preserve all records related to alleged officer misconduct, an

order requiring destruction of such records would be against public policy. In June 2016, the

arbitrator issued an order clarifying that public policy would not prevent enforcement of the

initial January 2016 award once the DOJ had completed its investigation of the CPD.

¶ 15   On July 8, 2016, this court vacated the circuit court’s 2014 and 2015 orders granting the

FOP’s preliminary injunction requests. This court found that, although the parties’ CBA

mandated destruction of CR files that were more than four years old, an arbitration award


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seeking enforcement of this provision would violate FOIA and the public policy underlying the

General Assembly’s adoption of the FOIA. Accordingly, this court held that there was no legal

basis to enjoin the City and CPD from releasing the requested records in order to allow the FOP

to pursue a legally unenforceable remedy at arbitration. Fraternal Order of Police, Chicago

Lodge No. 7 v. City of Chicago, 2016 IL App (1st) 143884, ¶¶ 32-36.

¶ 16   On July 26, 2016, the City filed a petition in the circuit court to vacate the arbitration

award on the grounds that it violated Illinois public policy favoring the proper retention of

important public records. In August 2016, the FOP filed a counterpetition to confirm the

arbitration award.

¶ 17   In January 2017, the DOJ issued its report. Among its conclusions, the DOJ found that

section 8.4’s “document destruction provision not only may impair the investigation of older

misconduct, but also deprives CPD of important discipline and personnel documentation that

will assist in monitoring historical patterns of misconduct.” A local police accountability task

force (Task Force) was also formed to evaluate the CPD’s practices separately from the DOJ’s

investigation. The Task Force also concluded that section 8.4 was problematic and likely

violated Illinois law. The Task Force stated, “Expunging records contradicts best practices,

impedes the development of early intervention systems and deprives the public of information

that is rightfully theirs.” Further, the Task Force stated that “[i]t also deprives police oversight

bodies of evidence of potential patterns of bad behavior,” and “it may also deprive wrongfully

convicted persons of exonerating information.” The Task Force recommended that the

“provision requiring destruction of records should be eliminated. The rule is in tension if not

outright conflict with general principles of public record-keeping, and deprives the public of



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important information that is rightfully theirs and may include the destruction of information that

serves numerous operational and public policy objectives.”

¶ 18   In October 2017, the circuit court granted the City’s petition to vacate the arbitration

award and denied the FOP’s counterpetition to enforce the award. The court concluded that

“enforcement of the Arbitral Award violated a well-defined and dominant public policy to

preserve government records.” The court stated that,

       “[t]o hold otherwise would (i) violate the public policy of maintaining public records for

       the benefit of the municipality and the general public; (ii) infringe on the municipality

       and general public’s ownership interest in public records; (iii) usurp the municipality’s

       right to determine for itself what records are required for the transaction of business,

       including legal and administrative matters; and (iv) commandeer the authority of a local

       records commission as the exclusive arbiter of whether and what public records may be

       destroyed.”

The court further stated that

       “destruction of important public records, such as the police disciplinary files at issue

       here, undermines principles of government transparency that are so vital to the

       preservation of the rule of law. If the City is to be responsive to the citizenry, it must have

       access to historical police disciplinary and investigative records to make better-informed

       decisions on policing, a point echoed in the DOJ and Task Force reports.”

¶ 19   The FOP appealed.




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¶ 20                                      II. ANALYSIS

¶ 21   On appeal, the FOP contends that the circuit court’s order vacating the arbitration award

and denying the FOP’s counterpetition should be reversed because the court erred as a matter of

law in holding that there is a well-established Illinois public policy requiring the preservation of

governmental records. Alternatively the FOP contends the court erred as a matter of law by

holding that the award could not be enforced consistent with the Local Act (50 ILCS 205/1

et seq. (West 2016)), the State Act (5 ILCS 160/1 et seq. (West 2016)), or any public policy

embodied therein, or based on any other State law or public policy. The FOP also contends that

the court erred by not enforcing the award pursuant to the Labor Act (5 ILCS 315/1 et seq. (West

2016)), and the Arbitration Act (710 ILCS 5/1 et seq. (West 2016)).

¶ 22                             A. The Public Policy Exception

¶ 23   A court’s review of an arbitration award is extremely limited, and courts must construe

arbitration awards, if possible, as valid. American Federation of State, County & Municipal

Employees v. State, 124 Ill. 2d 246, 254 (1988). Where, as here, the arbitration involved a

collective bargaining agreement, a court, consistent with section 12(e) of the Arbitration Act

(710 ILCS 5/12(e) (West 2016)), will disturb the arbitration award only on the common-law

grounds that existed prior to the enactment of the Arbitration Act, i.e., “instances of fraud,

corruption, partiality, misconduct, mistake, or failure to submit the question to arbitration.”

American Federation of State, County & Municipal Employees v. Department of Central

Management Services, 173 Ill. 2d 299, 304 (1996) (AFSCME 1996).

       “The rationale for the limited review of an award interpreting a collective

       bargaining agreement is that the parties have contracted to have their disputes



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      settled by an arbitrator, rather than by a judge. [Citation.] A labor arbitration

      award must be enforced if the arbitrator acts within his scope of authority and the

      award draws its essence from the parties’ collective bargaining agreement.

      [Citation.]

                However, a court will vacate the award if it is repugnant to the established

      norms of public policy. [Citation.] The public policy exception is narrow and its

      successful invocation requires a clear showing that the award violates some

      explicit public policy. [Citation.] The contract as interpreted by the arbitrator must

      violate some explicit public policy that is well-defined and dominant and

      ascertainable by reference to the laws and legal precedents and not from

      generalized considerations of supposed public interest. [Citation.] Accordingly,

      the public policy of a state must be determined by its constitution, laws, and

      judicial decisions. [Citation.] ***

                To vacate an award under the public policy exception, this court is

      required to undertake a two-step analysis. The threshold question is whether a

      well-defined and dominant public policy can be identified. [Citation.] If so, the

      court must determine whether the arbitrator’s award, as reflected in his

      interpretation of the agreement, violated public policy. [Citation.] As our supreme

      court has cautioned, although a rote recitation of the exception’s two-prong test

      can be easily made, the exception’s ultimate applicability to a case is necessarily

      fact dependent. [Citation.]” (Internal quotation marks omitted.) Chicago Transit

      Authority v. Amalgamated Transit Union, Local 241, 399 Ill. App. 3d 689, 695-96

      (2010).

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The question of whether an award violated public policy is one of law, which we review de novo.

City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240, 2015 IL App (1st)

140957, ¶ 20.

¶ 24                    B. The Existence of a Well-Defined Public Policy

¶ 25    To determine whether a public policy exists, a court considers Illinois’s “constitution and

*** statutes, and when cases arise concerning matters upon which they are silent, then *** its

judicial decisions and the constant practice of the government officials.” (Internal quotation

marks omitted.) AFSCME 1996, 173 Ill. 2d at 307. In AFSCME 1996, the supreme court vacated

as against public policy an arbitral award reinstating an employee of the Department of Children

and Family Services (DCFS), who had falsely stated that she had seen three children in DCFS

custody and that they were “doing fine,” when in fact they had perished in a fire. Id. at 301, 306.

The court looked to various state statutes that collectively formed a “comprehensive legislative

scheme designed for the welfare and protection of children found to be abused or neglected.” Id.

at 315. From this legislative scheme, the court determined that “there is a well-defined public

policy in favor of truthful and accurate DCFS reporting and that the arbitral award in this case

violates that policy.” Id. at 308.

¶ 26    This court has followed AFSCME 1996 to find public policies in other statutory

frameworks that required vacating contrary arbitration awards. E.g., Chicago Fire Fighters

Union Local No. 2 v. City of Chicago, 323 Ill. App. 3d 168, 176-77 (2001) (recognizing public

policy “favoring safe and effective fire protection services”); Illinois Nurses Ass’n v. Board of

Trustees of the University of Illinois, 318 Ill. App. 3d 519, 530 (2000) (recognizing public policy

“in favor of safe nursing care”); State Police v. Fraternal Order of Police Troopers Lodge No.



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41, 323 Ill. App. 3d 322, 328-29 (2001) (recognizing public policy “promoting effective law

enforcement”); County of De Witt v. American Federation of State, County & Municipal

Employees, 298 Ill. App. 3d 634, 637-38 (1998) (recognizing public policy “to protect the elderly

from abuse or harm”); Board of Education of School District U-46 v. Illinois Educational Labor

Relations Board, 216 Ill. App. 3d 990, 1000-01 (1991) (recognizing public policy “favoring the

safe transportation of school children”).

¶ 27   The statutory framework the General Assembly constructed in the Local Act, the State

Act, and FOIA establishes a well-defined public policy favoring the proper retention of

important public records for access by the public. The Local Act, which applies to the City,

directs that local public records “shall not be mutilated, destroyed, transferred, removed or

otherwise damaged or disposed of, in whole or in part, except as provided by law.” 50 ILCS

205/4(a) (West 2016). The Local Act then 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.” Id. § 7. The law requires the Commission to issue binding regulations and

procedures to “establish procedures for compiling and submitting to the Commission lists and

schedules of public records proposed for disposal”; to regulate “the physical destruction or other

disposition of such public records”; and manage the “preservation of electronically generated and

maintained records”; and to create “standards for the reproduction of such public records by

photography, microphotographic processes, or digitized electronic format.” Id.

¶ 28   The Local Act further requires that the head of each local governmental agency submit to

the Commission “lists or schedules of public records in his custody that are not needed in the

transaction of current business and that do not have sufficient administrative, legal or fiscal value



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to warrant their further preservation” and “lists or schedules proposing the length of time each

records series warrants retention for administrative, legal or fiscal purposes after it has been

received by the agency.” Id. § 10. The General Assembly vested in the Commission the ultimate

authority to determine what records should be maintained or destroyed: “The Commission shall

determine what public records have no administrative, legal, research or historical value and

should be destroyed or otherwise disposed of and shall authorize destruction or other disposal

thereof.” Id.

¶ 29    The law also dictates that “[n]o public record shall be destroyed or otherwise disposed of

by any Local Records Commission on its own initiative, nor contrary to law” (id.), and even goes

so far as to make it a Class 4 felony to “knowingly, without lawful authority and with the intent

to defraud any party, public officer, or entity, alter[ ], destroy[ ], deface[ ], remove[ ], or

conceal[ ] any public record.” Id. § 4.

¶ 30    The State Act applies similar requirements to the maintenance and destruction of State

records. 5 ILCS 160/1 et seq. (West 2016). In enacting the State Act, the legislature made its

policy purposes explicit, stating,

        “[p]ursuant to the fundamental philosophy of the American constitutional form of

        government, it is declared to be the public policy of the State of Illinois (i) that

        government records are a form of property whose ownership lies with the citizens and

        with the State of Illinois; [and] (ii) that “those records are to be created, maintained, and

        administered in support of the rights of those citizens and the operation of the State.” Id.

        § 1.5.




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Further, “those records are, with very few exemptions, to be available for the use, benefit, and

information of the citizens; and *** may not be disposed of without compliance to the

regulations in this Act.” Id.

¶ 31   In enacting FOIA, a similar explicit intent to ensure public access to important

government documents was expressed:

       “Pursuant to the fundamental philosophy of the American constitutional form of

       government, it is declared to be the public policy of the State of Illinois that all persons

       are entitled to full and complete information regarding the affairs of government and the

       official acts and policies of those who represent them as public officials and public

       employees consistent with the terms of this Act.” 5 ILCS 140/1 (West 2016).

“Such access is necessary to enable the people to fulfill their duties of discussing public issues

fully and freely, making informed political judgments and monitoring government to ensure that

it is being conducted in the public interest.” Id. Moreover, the General Assembly declared “that it

is the public policy of the State of Illinois that access by all persons to public records promotes

the transparency and accountability of public bodies at all levels of government,” and “[i]t is a

fundamental obligation of government to operate openly and provide public records as

expediently and efficiently as possible in compliance with this Act.” Id.

¶ 32   These statutes clearly show that Illinois recognizes a public policy favoring the proper

retention of important government records for the benefit of the public. The Local Act and State

Act mandate that the destruction of public records occur only after consideration by and with the

approval of the head of the governmental agency and the Commission and in a well-regulated

process established by the Commission. Those acts also reflect that public records belong to the



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public and expressly forbid the destruction of public records outside of those statutorily

mandated processes. In addition, FOIA exists to ensure the public’s access to records that have

not been destroyed through those processes. The General Assembly declared the policies

underlying these acts part of the “fundamental philosophy of the American constitutional form of

government.” Id. § 1; 5 ILCS 160/1.5 (West 2016).

¶ 33   The conclusions of the investigations by the DOJ and the Task Force further support a

finding that public policy favors the maintenance of important public records like those related to

allegations of police misconduct. The DOJ concluded that the CBA’s document destruction

provision not only might impair the investigation of older misconduct but also deprive the CPD

of important discipline and personnel documentation that would assist in monitoring historical

patterns of misconduct. The Task Force concluded that the destruction provision contradicts

Illinois law and best practices, impedes the development of early intervention systems, and

deprives the public of information that is rightfully theirs. The Task Force also concluded that

the destruction provision deprives police oversight bodies of evidence of potential patterns of

bad behavior and may also deprive wrongfully convicted persons of exonerating information.

The Task Force recommended the elimination of the provision requiring the destruction of

records because it was in tension, if not outright conflict, with general principles of public

record-keeping and deprives the public of important information that is rightfully theirs and may

include the destruction of information that serves numerous operational and public policy

objectives.




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¶ 34    These statutes and other materials leave no doubt that Illinois has a well-defined public

policy favoring the proper retention of important government records for the benefit of the

public, like the CR files at issue here.

¶ 35                            C. Violation of a Well-Defined Public Policy

¶ 36    The arbitration award requiring destruction of the records pursuant to section 8.4 of the

CBA clearly violated well-defined Illinois public policy requiring the proper retention of

important public records. The award ignored the requirements of the Local Act and obviates the

local record commission’s authority to determine what records should be destroyed or

maintained. Further, the award required the City to destroy records related to alleged police

misconduct without regard to the statute’s explicit concerns for those records’ “administrative,

legal, research or historical value.” 50 ILCS 205/10 (West 2016).

¶ 37    The circuit court properly vacated this arbitration award because, as stated in the circuit

court’s October 2017 order, the arbitration award

        “(i) violate[d] the public policy of maintaining public records for the benefit of the

        municipality and the general public; (ii) infringe[d] on the municipality and general

        public’s ownership interest in public records; (iii) usurp[ed] the municipality’s right to

        determine for itself what records are required for the transaction of business, including

        legal and administrative matters; and (iv) commandeer[ed] the authority of a local records

        commission as the exclusive arbiter of whether and what public records may be

        destroyed.”

¶ 38    Based on our analysis above concerning the statutory framework constructed by the

General Assembly’s enactment of the Local Act, the State Act, and FOIA, which established a


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well-defined public policy favoring the proper retention of important public records for access by

the public, we need not address the FOP’s remaining assertions that the circuit court should have

deemed the arbitration award enforceable as consistent with the Labor Act and Arbitration Act.

¶ 39                                   III. CONCLUSION

¶ 40   For the foregoing reasons, we find that the arbitration award violated an explicit, well-

defined, and dominant public policy requiring retention of important public records. Therefore,

we affirm the judgment of the circuit court, which vacated the arbitration award and denied the

FOP’s counterpetition to enforce the award.

¶ 41   Affirmed.




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