United States: New Procedures For Handling Juvenile Police Records For Illinois Municipalities

Benjamin L Schuster is an Associate, Hart M Passman is a Partner both in our Chicago office.

HIGHLIGHTS:

  • Public Act 100-0285, recently signed into law, amends the Illinois Juvenile Court Act. The amendment prohibits law enforcement agencies from disclosing records involving minors who commit ordinance violations.
  • The amendment creates new criminal penalties and fines for municipalities that improperly disclose juvenile records, and also imposes new requirements to automatically expunge certain juvenile records.
  • The amendment prohibits public and private employers from asking about expunged records, and imposes liability on employers who do not put disclaimers in their application materials.

A new amendment to the Illinois Juvenile Court Act (JCA) (705 ILCS 405/1-1 et seq.) concerning disclosure and expungement of juvenile law enforcement records took effect on Jan. 1, 2018. The new law, Public Act 100-0285, further prevents the public from accessing juvenile law enforcement records and provides additional privacy protections to juveniles who were arrested or had interactions with law enforcement. Below are the primary amendments that affect municipal law enforcement, along with recommendations for Illinois local governments and municipalities to comply with the new requirements.

I. The JCA More Clearly Prohibits the Release of Records Documenting Ordinance Violations Committed by Minors

The JCA has long prohibited law enforcement agencies from releasing records that relate to a minor who has been investigated, arrested or taken into custody prior to his or her 18th birthday, unless the recipient falls within a specifically enumerated exception contained in Sections 1-7 or 5-905 of the JCA. The prior law did not clearly state whether records relating to a municipal ordinance violations fell within the disclosure prohibition. The General Assembly provided clarity. The new law amends Section 1-7(a) of the JCA to specify that the prohibition on the inspection and copying of records relating to the arrest or investigation of a minor applies to records involving ordinance violations.

To ensure compliance with this amendment, municipalities and law enforcement agencies should assess how they store records involving municipal ordinance violations involving minors, and review their policies on how they process requests for such records to make sure that such records are not released in violation of the JCA.

II. Criminal, Monetary and Civil Penalties for Improperly Disclosing Juvenile Records

The new law also amends Section 1-7 of the JCA to impose new criminal, monetary and civil penalties for improper disclosure of law enforcement records involving minors. Prior to the amendments, the JCA was silent as to what penalties may apply to a law enforcement agency that violated this section of the JCA.

As of Jan. 1, 2018, any willful release of law enforcement records that violates Section 1-7 will be a Class C misdemeanor subject to a $1,000 fine. In addition, any person that is convicted of such violation will be liable to the aggrieved minor for the greater of $1,000 or the actual damages suffered by the minor. Accordingly, law enforcement agencies should proceed carefully before releasing any law enforcement records involving minors to ensure that any release does not violate the JCA.

III. New Requirements to Automatically Expunge Juvenile Records

The new law also amends the JCA's provisions regarding the expungement of juvenile law enforcement records. Under the prior law, law enforcement agencies were obligated to expunge juvenile law enforcement records upon receipt of an expungement order issued by a court. While the JCA will still permit individuals to go through a court process to obtain an expungement order, the JCA now mandates that law enforcement agencies must automatically expunge certain records on or before Jan. 1 of each year even without an explicit court order.

With the start of 2018, all law enforcement agencies within the state must automatically expunge, on or before Jan. 1 of each year, all law enforcement records relating to events occurring before an individual's 18th birthday, if:

1. one year or more has elapsed since the date of the arrest or law enforcement interaction documented in the records;

2.  no petition for delinquency or criminal charges were filed with the clerk of the circuit court relating to the arrest or law enforcement interaction documented in the records; and

3.  six months have elapsed without an additional subsequent arrest or filing of a petition for delinquency or criminal charges whether related or not to the arrest or law enforcement interaction documented in the records.

Further, if a law enforcement agency is unable to verify whether the second two requirements have been satisfied, the agency must proceed with the automatic expungement if the records relate to an offense that either: 1) would be considered a Class 2 felony or higher if committed by an adult, or 2) qualifies as one of a handful of specific crimes.

The new law also requires that law enforcement agencies send notice to the juvenile that his or her record was expunged within 60 days after the expungement.

The new law does include an exception to the automatic expungement requirement for records that contain information needed for a pending investigation of a felony. The chief law enforcement officer of the agency must certify in writing that certain information in the record is needed, and then the portions of the record with the needed information can be placed in an intelligence file (the new law does not define what constitutes an intelligence file or how it differs from other files) until the sooner of the termination of the investigation or a period of one year. The record must then be automatically expunged at the conclusion of this period.

These amendments will require law enforcement agencies to: 1) create procedures to review juvenile records on or before Jan. 1 of each year to determine if records must be automatically expunged, and 2) to send notices of the expungements to the juveniles named in the expunged records.

The new law also provides that once a juvenile record is expunged, it will be a Class C misdemeanor and punishable by a fine of $1,000 to willfully disseminate any information that was contained in an expunged record. This means that all law enforcement personnel should be trained to avoid giving out any information about past juvenile crimes or ordinance violations to avoid running afoul of the new regulations.

IV. Employers Are Prohibited From Asking About Expunged Juvenile Records

The new law also amends the JCA to prohibit public and private employers from considering or asking about whether an applicant for employment had an expunged juvenile record. Further, the law provides that if an application does not contain specific language stating that the applicant is not obligated to disclose information about expunged juvenile records, and the employer obtains such information, it shall be treated as dissemination of an expunged record by the employer. Accordingly, public and private employers should consider revising their application materials to add a statement that notifies applicants that they are not obligated to disclose such information.

Holland & Knight attorneys recognize that compliance with the JCA amendments and their new requirements may create legal and procedural concerns. Clients needing assistance in complying with these new requirements may contact their Holland & Knight attorneys.   

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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