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May 28, 2018

The Bill That Would Have Subjected UCPD to FOIA


The UCPD Headquarters.

Courtesy of DNAinfo

The University made video footage of the incident from the officer’s body cam publicly available within 19 hours of the shooting of fourth-year Charles Thomas. Student reporters scrambled to find more information.

But Gate senior writer Brett Barbin wanted more information—specifically, the UCPD’s General Orders (GOs), internal regulations governing officer response and conduct.

Earlier this month The Gate published a 44-page list of 8 of the 80 or so GOs listed in the GOs' table of contents, typed by Barbin in the hallway of the UCPD headquarters on 61st and Drexel in a series of sittings that totaled 20 hours.

Barbin isn’t alone in his endeavors.

Student reporters across the nation are well accustomed to fighting for access to campus police records, often with less success than Barbin. Earlier this month, The Maroon obtained the original copy of the UCPD’s 2013 GO Code of Conduct and Complaint Investigation Procedures from a lawsuit made by former UCPD Commander Milton Owens.

UCPD Code of Conduct 05/17/2018 by Chicago Maroon on Scribd

UCPD GO 900 (Complaint Investigation Procedures) 05/17/2018 by Chicago Maroon on Scribd

In 2016, the Student Press Law Center, an advocacy group for students’ First Amendment rights, submitted 30 records requests to private university police forces across the nation. Three universities complied, an unsurprisingly small number considering that most states don’t require campus police forces to release their records to the public. Connecticut, Georgia, North Carolina, Ohio, Texas, and Virginia are the exceptions.

In the Hyde Park area, calls for increased transparency from the University of Chicago Police Department (UCPD) kicked off in 2014, when campus activists and local representatives collaborated to draft House Bill (HB) 3932

This bill, introduced to the Illinois General Assembly (GA) in March 2015 by State Representative Barbara Flynn Currie (D-25) (A.B. ’68, A.M. ’73) and State Representative Christian Mitchell (D-26) (A.B. ’08), would have amended the Private College Campus Police Act such that campus police forces would be mandated to disclose similar (but not identical) information to that mandated of public offices under the Freedom of Information Act (FOIA).

The bill unanimously passed in the Illinois House in April 2015, and was introduced to the Senate floor the same month. However, it quickly reached an impasse on the Senate floor, dying in May.

The bill eventually died after activists who initially supported the bill opposed the bill’s amendments and couldn’t reach a consensus on how to move forward.

After the shooting of Thomas, members of UChicago United, a coalition of multicultural student organizations, revived talks about UCPD transparency. They demanded of UCPD to comply with FOIA in a list of demands they submitted to President Robert Zimmer and Provost Daniel Diermeier.

The story of HB3932’s birth and eventual death speaks to the difficulties of subjecting a private police force to public scrutiny, a problem that activists continue to face today as calls for increased UCPD transparency resurface.

A Private Institution With A Public Function

In May 2013, then–history department Ph.D. candidate Toussaint Losier (A.M. ’10, Ph.D. ’14) was arrested by the UCPD at the University of Chicago’s Medical Center, where students were calling for the creation of an emergency department and Level I trauma center.

UCPD officers reported that Losier was arrested when he refused to leave the grounds of the demonstration, but a video of the incident showed Losier walking away from the scene when an officer shoved him back towards the hospital, where he was pushed to the ground and handcuffed by two officers.

“We’ve missed a much broader conversation about what policies the UCPD has that led to the creation of this incident,” Ava Benezra (A.B. ’15) told The Maroon shortly after Losier’s arrest. “And in part that’s because it’s impossible to have a conversation about the policies of the UCPD, mostly because its policies aren’t public,” she said. Benezra was a second-year at the College at the time of the incident, and cofounded the now-inactive Campaign for Equitable Policing (CEP) in 2012.

In 2011, the city’s Committee on Public Safety passed a city ordinance expanding UCPD’s extended patrol area north to East 37th Street, south to East 64th Street, east to South Lake Shore Drive, and west to South Cottage Grove Avenue. 

(For reference, campus boundaries are north to 53rd Street, south to 61st Street, west to Cottage Grove Avenue, and east to Stony Island Avenue).

“My understanding is that the Superintendent of the CPD [Chicago Police Department] has in fact ‘deputized’ the UCPD to have the powers of full municipal police officers in that extended jurisdiction off campus,” Craig Futterman, Law School professor and founder of the Law School’s Civil Rights and Police Accountability Project, told The Maroon in a recent e-mail.

At a recent community meeting about policing, UCPD Chief Kenton Rainey explained that UCPD has access to all crime intelligence information that the CPD collects within UCPD jurisdiction.

“There is no separation between what CPD is doing and what UCPD is doing,” Rainey said.

In light of UCPD’s expanded jurisdiction, activist groups and community stakeholders approached Currie to ask for increased transparency.  

“There were questions about the UCPD stopping more African-American kids than white kids,” Currie told The Maroon. “The question became, how can we hold the UCPD accountable?”

The question of campus police force accountability was answered by calls for increasing campus police force transparency to match its burgeoning authority, which became the impetus behind the bill’s drafting process.

Jamie Kalven, founder of the Invisible Institute, an investigative journalism and civil law firm, was among the community members concerned about UCPD's burgeoning authority. 

“The principle at hand was whether or not a private institution performing a public function should be subject to the same laws as the public institution from which they derive their powers,” Kalven said. 

Community activists tended to agree the former.

After Currie’s office drafted HB3932 and introduced it to the General Assembly, the University’s Student Government passed a resolution in support of the bill. And once HB3932 arrived in the Senate, CEP set up a weeklong phone drive in Reynolds Club to encourage students to call their legislators to leverage support. 

“The bill was not even just about FOIA,” said Emma LaBounty (A.B. ’15), cofounder of CEP. “It was also an incentive to stop policemen from behaving inappropriately in the first place.”

Roadblocks in the Movement: To Legislate or Litigate?

After passing unanimously in the House, the bill ran into roadblocks on the Senate floor. Currie noted two main reasons explaining why the bill eventually died.

Firstly, some senators were concerned that the bill might set a precedent for potential legislation that would further subject private entities to public regulations. In part due to concerns that HB3932 was a stepping stone towards this legislation, the bill lost its steam and ended up dying in the Senate, said Representative Currie.

Secondly, activists differed on the most effective way of moving forward with increasing UCPD transparency, Currie said.

A huge component of the controversy stemmed from the differences between FOIA and the bill’s final amended version.

Had HB3932 passed after being amended on the GA’s floor, the public could appeal to a designated Public Access Counselor for access to denied records requests.

If the Counselor decided that the appellant had suitable grounds for the appeal, the case would move up to the Attorney General, who would either mandate or deny the records’ release.

Notably, unlike FOIA, there would be no opportunity for litigation in a courtroom in any part of this process. Instead, the Public Access Counselor and potentially the Attorney General would make a binding decision on contentious cases. 

Additionally, the amended bill explicitly outlined two lists. One detailed the items subject to disclosure, and the other detailed the items not subject to disclosure—including records, tapes, and other digital material from campus security cameras, among other items.

The amended bill did not make clear what would happen to items that didn’t fit into either list. And in its third amendment, the bill excluded from disclosure officer wages, which can help community members infer average officer experience.

“There was a worry that legislative negotiation conceded too much,” Kalven said. “The principle won’t apply to this type of records, won’t apply to that type of record, to the point where the emerging legislation would be worse than the status quo,” Kalven said. 

Some made the case that there were more ideal ways to mandate the UCPD to comply with records requests, outside of subjecting UCPD to FOIA. 

“If the GA wanted to pass a bill to make sure there’s proper scrutiny in campus police forces, they should just amend FOIA to expressly include campus police forces as public bodies subject to FOIA,” said FOIA attorney Matt Topic, who specializes in police transparency at Loevy & Loevy, a leading Chicago-based civil rights law firm. 

Kalven, among others, considers litigation a viable course of action, as there’s precedent for a case based off a pro-transparency ruling made in Ohio shortly after HB3239 reached the Illinois Senate. 

In The State ex rel. Schiffbauer v. Banaszak et al., the Supreme Court of Ohio ruled that Otterbein University had to accommodate a student reporter’s previously denied request for “records documenting the [University’s private police] department’s exercise of a government function.”

The basis of the court’s ruling was that as Otterbein University’s police officers were “sworn, state-certified police officers who exercise plenary police power,” they could be mandated to produce records as public information. 

Topic says that as there’s room to argue that FOIA already applies to campus police forces endowed with the same authority as public police departments by the government, there’s a possibility that legislation that mandates campus police forces to adhere to a lower standard of transparency than FOIA could be less effective than, or perhaps even detrimental to, a lawsuit akin to Schiffbauer v. Banaszak.

In short, activists identified several potential paths forward to increase UCPD transparency, be it trying again to enact new legislation, adapting the existing Freedom of Information Act, or bringing a transparency case to the courts.

For Mitchell, who cosponsored the bill with Currie, the question of which route should actually be taken relies on what activists want. 

“I think that I’m totally opening to revisiting the legislation, but there would need to be consensus among the advocates about what the best way forward is before we were to do so,” Mitchell said. 

Looking Back

Even though the bill ultimately failed to come to fruition, the campaign that surrounded it still enjoyed some success, said Currie.

“We had actually pretty good cooperation from the University, and the University was, at that time, beginning to become more accountable on its own,” said Currie. “They were kinda like, ‘Okay, before you do this to us, we will do it first.’”

After the bill reached the state Senate, the University began to disclose more information, including specific location of traffic stops, background information about how the UCPD and CPD cooperate, and made arrests records requests forms available on its website.

The UCPD told The Maroon in a recent e-mail that it had fulfilled both arrests records requests it had received since the changes were implemented in June 2015.

The UCPD also did not attribute increased transparency to the efforts surrounding bill, and told The Maroon it implemented the changes “to ensure transparency of law enforcement activities and “be responsive to requests from the community.” 

Still, both Currie and Curtis Tarver, the Democratic candidate for Currie’s soon-to-be-vacated seat, see room for increasing responsiveness and transparency, and echoed Mitchell’s support of revisiting HB3932.

“I still think there may be some kind of value to having some sort legislation on the books, rather than none,” Currie said. 

Tarver concurred with Currie. “I am in support of this bill and more generally pushing for as much transparency as possible with public and private police forces as long as the information does not adversely affect the integrity of investigations and discovery in criminal cases,” he told The Maroon in an e-mail.

LaBounty, however, would like to see the case taken to the courts rather than left to legislators. Since the bill died once, she thinks a path forward through legislation is unlikely, and that the most feasible way forward is litigation. 

“I see the wisdom of both camps, but I think someone needs to actually litigate [requests to release private campus police records],” LaBounty said. “It’s a question of which [legislation or litigation] can and will actually happen.”

An Unclear Path Forward

In total, Barbin speculates that he was given access to about 75–80 percent of the GOs that he requested, though he only requested one or two items that fit under the redaction category of the UCPD’s records request process. Redacted information includes details about how the UCPD reacts to crisis scenarios and how information moves from caller to dispatch officer.

Barbin said that he thinks the denied requests were legitimate denials, which “in a normal FOIA request would probably not be approved.” Still, he thinks there’s room for increased and more easily accessible transparency.

During the records request process, Barbin said he would ask for an individual GO from the table of contents, and Tsao would leave the room to consult for five to 20 minutes with the a higher-up about whether the GO could be released. Then she’d return with the document, a process repeated for each GO.

In contrast, all of the Chicago Police Department’s GOs are available on the department’s website. 

In addition, it’s unclear whether or not UCPD Officer Nicholas Twardak’s bodycam footage of the Thomas shooting would have been released had events played out differently.

“What the university did [releasing Officer Twardak’s body camera footage] was really speedy—much faster than any public body could act—but at this point they are not required to release body cam footage,” Barbin said. “And it’s an open question whether had something worse happened on that tape, like had Officer Twardak gotten out of the car and just shot [Thomas], would they have released that tape?”

Still, the UCPD has taken measures to stay accountable to the community. In a recent community meeting, Associate Vice President for Safety and Security Eric Heath told residents that while UCPD traffic stops have been increasing in the last year, the department has formed a Community Relations Unit to strengthen interactions with residents who live within UCPD’s jurisdiction.

But until activists reach a consensus on the best way to move forward with the movement, community members will have to rely on the University’s discretion to gain access to UCPD’s GOs. 

Elaine Chen contributed reporting.

Correction on May 29, 2018, 12:19 p.m. CDT:

The article was updated to reflect that The Gate published a list of 8 of the 80 or so GOs listed in the GOs’ table of contents, rather than a list of over 80 GOs.

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