Plan to avoid repeat of Ella French suspension fiasco stalls in committee; Council warned of danger in altering public records laws

A top mayoral aide’s plan to avoid a repeat of the furor that erupted after the Civilian Office of Police Accountability recommended a suspension for a slain Chicago police officer stalled in a City Council Committee Thursday.

The Commitee on Public Safety took no action on the proposed legislative fix amid warnings that the proposed exemption to the Freedom of Information Act is illegal.

COPA’S decision to order a three-day suspension for 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 and the watchdog group’s Council allies: The FOIA exemption is illegal.

The draft ordinance would empower COPA’s chief administrator to alter 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 argues the state’s FOIA statute clearly states that disciplinary records and records of investigation “public records, and cannot be redacted or revised after the fact, nor can local ordinance overrule state provisions to do so.”

The BGA statement continues: “Discretionary power of an appointed administrator to retroactively alter public records in any way is a clear danger to transparency, accountability, and open government. 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 Council members to “oppose any ordinance granting city officials discretionary authority to alter public records” on grounds that it “invites inevitable legal challenge.”

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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Black Caucus Chairman Jason Ervin (28th) said he shares the BGA’s concerns and was “a little disturbed” by the ordinance.

“We are being charged with increasing transparency with our Police Department under the consent decree. And in the same breath we want to redact certain information,” Ervin said.

“I understand the emotion of the issue. However, we have a greater responsibility than to just [yield to] the emotion of an issue. ... If this was happening under the time where [First] Deputy Superintendent [Jim Riordan] was killed in a bar at Marina City, would the truth have actually come out?”

Ald. Maria Hadden (49th) agreed. “Re-writing history is dangerous.” Hadden said, though she also understands the desire not to “admonish someone after their sacrifice to the city.” Still, she added: “We have to be consistent. We have to be transparent. We have to be accountable.”

Sensing defeat, Public Safety Committee Chairman Chris Taliaferro (29th) agreed to hold the ordinance in committee — but not before Kersten again argued the proposed 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 as Chicago Police officers executed a search warrant in 2019. They had the wrong address.

“I’ve tried to be responsive to City Council’s particularly strenuous concerns that this doesn’t happen again. ... The reason this ordinance was introduced the way it is is to really make sure that the language is targeted at the specific situation that we found ourselves in with respect to the Anjanette Young report,” Kersten said Thursday.

The new language “is a tool that I did not have available to me in November that would need to be available to prevent the outcome that has caused so much heartache, frustration and just flat-out anger.”

The suspension was recommended even though French was praised by Young and 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 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.