Page 21 - August 2016 Newsletter

HERBERT CONTINUED FROM PAGE 19
When put all together, these factors certainly explain why an officer may have emptied his or her entire clip of 16 shots at an offender during an intense and frightening situ- ation in which the officer’s body is flooded with adrenaline. All of these factors must be processed within a split second.
In late July, Chicago police officers assigned to bike pa- trol were involved in a shooting. The offender pulled out a handgun and began shooting at the officers at close range.
FIORETTO CONTINUED FROM PAGE 18
lic duties of a public employee is not an invasion of person- al privacy, and must be turned over.
It is important to note that in 2014 when the Chicago Tribune and Sun-Times made the FOIA requests, had the city been complying with Section 8.4 and destroying the documents, then the nearly 50 years worth of CR files be- ing requested would not exist (presumably, only the past five or seven years would have existed). The city would not have been able to produce documents that did not exist. Instead, because the city retained all the documents (in vi- olation of Section 8.4), then all the documents were subject to disclosure. FOIA does not impose an affirmative duty on the city or any employer either to create or maintain doc- uments. However, if such documents do exist and a FOIA request is made, absent any exemption, the information must be turned over.
So what’s next? The Lodge will be filing a petition with the Illinois Supreme Court, seeking leave or permission to have it review the Appellate Court’s decision (one final appeal). It is important to note that unlike an appeal to the Appellate Court, this petition is not automatic; the Su- preme Court does not grant all petitions. In the meantime, the Lodge also requested that the Appellate Court’s deci- sion to vacate the preliminary injunction be stayed or put on hold until after the Illinois Supreme Court considers the Lodge’s petition for leave to file its appeal.
The Lodge also will seek assistance from Flynn to make sure that the city turns over only information which it is required to turn over and nothing more. For example, only those CR files that relate to allegations regarding on-duty conduct are subject to disclosure under FOIA; CR files re- garding off-duty conduct may violate officers’ privacy in- terests. The Appellate Court recognized that information that bears on an officer’s public duties must be turned over. Arguably, allegations regarding off-duty conduct do not bear on an officer’s public duties and would, therefore, amount to an invasion of personal privacy and should not be released.
The city has an obligation to review CR files regarding off-duty conduct to evaluate whether the allegations “bear on” officers’ public duties before producing any docu- ments. FOIA does not allow the city to abdicate that duty. The city acknowledged to Flynn earlier in the litigation that it has not reviewed the lists or the CR files to evalu- ate whether allegations of off-duty conduct bear on the re- spective officers’ duties. As the Lodge explained to Flynn, individual officers face irreparable harm if the CR files (and related lists) are released with information that constitutes an invasion of personal privacy.
20 CHICAGO LODGE 7 ■ AUGUST 2016
One of the officers was struck by one of the offender’s bul- lets. The officers returned fire and killed the offender. After being struck by 9 shots, the offender was able to contin- ue moving for more than 20 feet. Despite being mortally wounded, the offender was not incapacitated immediately as the public would assume. d
Dan Herbert is a former Chicago police officer, Cook County Prosecutor and in-house attorney for the Fraternal Order of Po- lice, Chicago Lodge #7. He is the founding member of The Law Offices of Daniel Q. Herbert and Associates.
Finally, the Lodge will seek to have the city comply with Roumell’s final award, regardless of what information will be turned over to the current requesters. In a subsequent clarification ruling, Roumell ordered the city to destroy the documents after the Department of Justice formally con- cludes its investigation:
“The initial finding of Jan. 12, as to the destruction of re- cords pursuant to the language of Section 8.4 is there to be read and applied once the public policy exception brought on by the Department of Justice investigation and its pos- sible consequences no longer exists...if the Department of Justice is no longer involved with the city of Chicago in any capacity where the retention of records is not involved, then the public exception ceases to exist.”
The city has indicated its intent not to comply with Rou- mell’s award – ever. The next round, once again, will be fought in front of Flynn. d