The Illinois FOP Labor Council

The Labor Council provides full union representation: negotiating and enforcing contracts, improving salaries, working conditions, and benefits for law enforcement professionals throughout Illinois. Our members are protected 24 hours a day by a staff of full-time, in-house attorneys and field representatives who have a proven track record of winning.

24 Hour Critical Incident Hotline: 877-IFOP-911

By Dan Mahoney, Attorney - Thursday, January 2, 2014

 

On February 20, 2013, the Illinois Appellate Court (Second District) issued an opinion that upheld a decision by the circuit court of Kane County which barred the disclosure of an officer’s entire personnel file.  People v. Collins, 2013 IL App (2d) 100915.  While favorable to the officer in the present case, this opinion should cause members to examine their contract to determine how they can review their personnel file.  Several collective bargaining agreements allow bargaining unit members to not only review their personnel files, but also request the removal of outdated or inaccurate information.

            In Collins, an undercover narcotics officer called the defendant in order to purchase heroin.  The “buy” was set to take place at a gas station across from a local park.  The narcotics officer and his team arranged the “buy” to take place in the mid-afternoon using money that had been photocopied.  The narcotics officer arrived first and was approached by the defendant who handed the officer a clear plastic baggie containing several tinfoil squares.  The narcotics officer handed over the money as his team moved in to make the arrest.  The defendant was placed under arrest and brought to the station.  At the station, the contents of the tinfoil squares tested positive for heroin.  The contents of the tinfoil squares were taken to the Illinois State Police Crime Lab where it was weighed and confirmed as 1.2 grams of heroin.  At trial, the defendant was convicted of the delivery of a controlled substance within 1,000 feet of a park.

            Prior to the trial, the defendant filed a subpoena seeking the personnel file of the narcotics officer.  The State’s Attorney argued that the defendant was not entitled to the narcotic officer’s employment records because the defendant did not show the relevancy of the records.  The defendant argued that the file contained information regarding the credibility of the narcotics officer which was crucial to his defense.  After hearing the arguments, the trial court noted there was a difference between disclosure of information and use in court. The trial court reviewed the personnel file in camera[1].

After the in camera inspection, the trial court found that five pages of the file were discoverable information that was relevant to the credibility of the narcotics officer and turned those pages over to the defense.  The State’s Attorney then filed a motion to bar any impeachment of the narcotics officer with the specific incident of misconduct found in the subpoenaed personnel file.  The State argued the records did not show bias, interest, or motive to testify falsely in the present case.  The trial court agreed, and granted the motion.

The defendant appealed his conviction and argued that the trial court erred in refusing to allow the defense to view the narcotic officer’s entire personnel file and to impeach the officer with the information contained in the file.  After conducting a hearing in which they reviewed the entire personnel file of the narcotics officer, the Appellate Court affirmed the judgment of circuit court of Kane County refusing to allow the defense to view the entire personnel file of the narcotics officer and barring the impeachment of the officer with the information disclosed from the personnel file.  In rendering its decision, the Appellate Court noted that generally, employment records are subject to subpoena if there is a showing that the records are relevant. People v. Williams, 267 Ill. App. 3rd 82 (1994).

The cited case is a noteworthy ruling for everyone who works in the public safety community (i.e. law enforcement, corrections, probation, communications and support staff).  It is important that members review their own personnel file to determine its contents.  A file may be subjected to not only to a review by a court, but if the court so rules, the file may be given to a defense attorney.  Members should ensure the contents of their personnel file are accurate.

As stated earlier, several collective bargaining agreements allow bargaining unit members to not only review their personnel files, but also to request the removal of outdated or inaccurate information.  How this information is requested and reviewed varies from agreement to agreement.  Most require the request to review a personnel file to be in writing.  There may also be a time requirement before the file can be reviewed.

There are also restrictions on which information may be removed from the file.  Usually, information may not be removed at the time of review, but there may be a process to request that information be redacted from a personnel file. Typically, a member may not make a copy of the file, but may request a copy be provided after review.

If your collective bargaining agreement does not have a specific section regarding the review of your personnel file, then you should reference the Illinois Personnel Review Act (820 ILCS 40/).

The Personnel Record Review Act (“Act”) sets out that every employer shall permit the employee to inspect any personnel documents which are, have been or intended to be used in determining the employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action.

The Act also establishes how employees may request a review of their file, when the employer must respond to the request, and where the inspection will take place.  It also allows the employer to charge a fee for providing a copy of the file, but the fee must be limited to the actual cost of duplicating the information.

In conclusion, all members who read this article should examine their contract to determine if there is an article or section which explains how they can review their personnel file.  If their contract does not contain a section regarding personnel files, they should review the Act and follow the sections to ensure their personnel files are accurate and up to date.

[1] In camera is a Latin term meaning "in chambers". This refers to a review or examination of evidence (like personnel files) by a judge in the privacy of his chambers to determine whether the information sought should be provided.

About the Author:  Daniel G. Mahoney is a staff attorney with the Illinois Fraternal Order of Police Labor Council joining the union in 2013.  He obtained his B.A. from DePaul University and his J.D. from the John Marshall Law School.  Prior to joining the Labor Council, Dan served 30 years with the Chicago Police Department as a Police Officer, Legal Officer, Sergeant of Police and  Department Advocate.  As the Department Advocate from 1999 to 2012 Dan re-wrote the Chicago Police Department Discipline Manual for Supervisors, published newsletters on disciplinary processes, conducted grievance hearings and instructed probationary police officers, pre-service sergeants, lieutenants and captains as well as civic and citizen groups in the complaint and disciplinary procedures of the Chicago Police Department.