Wednesday, July 3, 2013 06:06 am
Shredgate: The plot thickens
Has secrecy been decriminalized?
But the legislature may have decriminalized the destruction of public records in 2010.
The change to the law that forbids tampering with public records took a typically byzantine course through the General Assembly. It started out as a House bill that would have allowed authorities to declare a building a public nuisance if dog fighting, underage drinking, animal cruelty or child pornography were found on the premises. It then morphed into a technical change to laws regarding illegal explosives. Then, thanks to a floor amendment in the Senate, it switched into what could be a crucial change to the law that made destroying, concealing or altering a public record a felony.
Under the change sponsored by Sen. William Haine, D-Alton, a person who alters, conceals or destroys a public record has to do so with intent to defraud before they can be prosecuted. Previously, prosecutors only had to show that a public record had been knowingly altered or destroyed – the reason why didn’t matter. And so it appears that shredding stuff simply to avoid embarrassment might be OK in Illinois.
Haine says that he pushed the change based on conversations with judges in the Chicago area who were concerned that a lawyer who had altered court documents for innocuous reasons could face felony charges.
“I’m telling you, I received advice on this as a legislator from judges,” Haine said. “You don’t want to punish innocent mistakes.”
While Haine said he pushed the change to cover innocent mistakes made in courthouses, he allowed that the change could also apply to municipal records kept in city halls.
“On the surface of the language, it might,” Haine said. “That would be in the exclusive purview of the state’s attorney (to decide).”
Charles Zalar, a prosecutor in the appellate prosecutor’s office, said that the change could “muddy the water” in the investigation into document shredding by Springfield police. He said that his office discovered the law had changed after Sangamon County state’s attorney John Milhiser in May called in state prosecutors the shredding of internal affairs files, including at least one that was apparently the subject of a records request when it was destroyed.
“The statute is new enough in origin that we need to go back and find out what motivated the change,” Zalar said. “The intent of the legislature is not clear.”
Haine said he is open to amending the law again, either by redefining “defraud” in the statute that forbids tampering with public records or by inserting criminal penalties into the Local Records Act, which says that public bodies must get permission from the Local Records Commission before destroying documents. The Local Records Act now contains no penalties, and so prosecutors must charge under the tampering statute or make a case for official misconduct when public employees destroy records without proper authority.
If Zalar’s office prosecutes anyone for destroying internal-affairs records, it could be historic.
Zalar said he believes that no one has been prosecuted in Illinois for destroying or altering public records since 1941. Appellate prosecutors had a chance as recently as 2010, when Zalar led an investigation into former Sangamon County coroner Susan Boone, who was suspected of destroying or altering transcripts and tapes of inquest proceedings.
The Boone case was closed with no charges filed. Zalar said that prosecutors chose not to charge Boone in part because she was ultimately forced to resign by other county officials, including Milhiser, Sheriff Neil Williamson and county board chairman Andy Van Meter, who expressed doubts about her effectiveness. Boone also suffered humiliation in the media, Zalar said. If she were found guilty of a felony, Boone would have lost her pension, and Zalar said that prosecutors considered that possibility when they closed the case.
“All in all, her career was effectively destroyed,” Zalar said. “She’d been punished pretty significantly, I think, in terms of her reputation.”
Contact Bruce Rushton at firstname.lastname@example.org.