The Civilian Office of Police Accountability’s decision to order a three-day suspension for slain Chicago Police Officer Ella French nearly torpedoed Mayor Lori Lightfoot’s appointment of Andrea Kersten to head the police oversight agency.
To avoid a repeat, Kersten worked with the city’s Law Department to craft a legislative fix. There’s only one problem, says the Better Government Association: The exemption to the Freedom of Information Act is illegal.
That’s the argument the BGA is making in urging the City Council in the strongest of terms to reject the proposed exemption.
The draft ordinance would empower COPA’s chief administrator to alder information in reports requested under the Freedom of Information Act if the chief determines “redacting the identity of one or more sworn Police Department personnel is appropriate because the relevant person(s) died with honor in the line of duty and after consideration of both the dignity and respect for those persons and the public interest in information.”
In a statement posted on its website and circulated on Twitter, the BGA is arguing that the state’s FOIA statute clearly states that disciplinary records and records of investigation are public records and cannot be redacted or revised after the fact, nor can local ordinance overrule state provisions to do so.”
“Discretionary power of an appointed administrator to retroactively alter public records in any way is a clear danger to transparency, accountability, and open government,” the BGA says.
“Regardless of the circumstances of an individual’s death, the record of their work as a public employee is of public and historic interest. After-the-fact revisions of public records undermine their reliability and their accuracy as a record of the time at which they were generated.”
The BGA urged members of the Committee on Public Safety and the full City Council to “oppose any ordinance granting city officials discretionary authority to alter public records” on grounds that it “invites inevitable legal challenge, including “precedents set by the city’s own legal actions.”
It also “puts individual officers attempting to comply with the law at risk of criminal prosecution, attacks the Freedom of Information Act that is the bedrock of government transparency in our state, and creates a dangerous precedent of allowing unelected administrators, however well-intentioned in theory, to alter official records,” the BGA states.
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At a committee meeting last week, during which her nomination was confirmed 9 to 6, Kersten argued the proposed FOI exemption was crafted in response to an outcry from Council members after the suspension recommendation for French was revealed.
The suspension stemmed from French’s failure to activate her body-worn camera and fill out the proper paperwork after she showed up at the home of social worker Anjanette Young on the night in 2019 when Chicago Police officers executive a search warrant on the wrong home.
“You don’t just want explanations or excuses. You want solutions. You want a path forward so something like this never happens again. … You were asking me very directly, `What are you gonna do to fix this?’ This is my best effort to really address the very specific issue that brought us to this moment,” Kersten told a Council committee last week.
“It would give the chief administrator a legal option that I did not have available to me in November when this report was released.”
The suspension was recommended even though French was praised by Young and by COPA for being one of only a handful of officers who “took affirmative steps to protect Ms. Young’s dignity” by allowing her to get dressed.
Kersten has stressed repeatedly that the suspension recommendation was “not posthumous.” It was made on April 27, 2021 — more than three months before French, 29, was fatally shot and her partner, Carlos Yanez Jr., was critically wounded after pulling over an SUV with expired plates.
