HIGHLIGHTS:
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The Illinois General Assembly's Public Act 100-1162, signed on Dec. 20, 2018, amends the Juvenile Court Act (JCA) to extend the deadlines for automatic expungement of juvenile law enforcement records.
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Compliance with the JCA's automatic expungement requirements are now more practical.
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Under the JCA, law enforcement agencies gain the authority to share juvenile law enforcement records with additional people, including the Attorney General's Public Access Counselor.
The Illinois Juvenile Court Act (JCA) (705 ILCS 405/1-1 et seq.) was amended significantly in late 2017. The amendments, in Public Act 100-0285, imposed tighter restrictions on public access to juvenile law enforcement records and added privacy protections to juveniles who had interactions with law enforcement (See Holland & Knight alert, "New Procedures for Handling Juvenile Police Records for Illinois Municipalities," Jan. 3, 2018).
The 2017 amendments required law enforcement agencies to expunge most of their records involving juvenile suspects and offenders by Jan. 1, 2019 – a daunting, if not impossible, undertaking. The amendments contained numerous other flaws, perplexing law enforcement agencies with seemingly impractical and inappropriate requirements.
The Illinois General Assembly corrected one of the major 2017 errors in August 2018 by allowing minors and their parents to have their own law enforcement records (See Holland & Knight alert, "Illinois General Assembly Corrects Juvenile Court Act Error, but Further Review Needed," Aug. 10, 2018). Many other JCA flaws, however, remained uncorrected.
Faced with mounting pressure from law enforcement agencies, the General Assembly in 2018 amended the JCA (Public Act 100-1162 signed on Dec. 20, 2018) to fix many of the remaining problems caused by the 2017 amendments. Here is a summary of the primary amendments that affect Illinois law enforcement agencies.
JCA No Longer Requires Law Enforcement Agencies to Automatically Expunge Certain Juvenile Records
The 2017 amendment required law enforcement agencies to automatically expunge, on or before Jan. 1 of each year, all law enforcement records relating to events occurring prior to an individual's 18th birthday before Jan. 1, 2019, if:
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one year or more has elapsed since the date of the arrest or law enforcement interaction documented in the records
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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
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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
That deadline would have forced many law enforcement agencies to review thousands of juvenile records, individually, to determine if they qualified for automatic expungement. Few, if any, agencies could complete this task by the Jan. 1, 2019, deadline for many reasons. For example, many agencies maintain old records on microfilm, which is not conducive to separating records that must be expunged from those on the film that need not be retained. Time and costs could be prohibitive.
The newly amended law exempts juvenile law enforcement records created before Jan. 1, 2000, from the JCA's automatic expungement provisions. Juveniles still may petition the court for an order requiring law enforcement agencies to expunge records created prior to Jan. 1, 2000 – a far easier task for a law enforcement agency.
JCA Provides Law Enforcement Agencies Additional Time to Expunge Juvenile Records Created After Jan. 1, 2000
Law enforcement agencies still must automatically expunge qualifying juvenile records created on or after Jan. 1, 2000, but the newly amended law provides law enforcement agencies additional time to complete the process.
As noted above, the 2017 amendments required law enforcement agencies to complete their first round of automatic expungement on or before Jan. 1, 2019. Under the newly amended law, law enforcement agencies now must complete their first round of automatic expungement by:
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Dec. 31, 2019 – for juvenile records created prior to January 2018, but on or after Jan. 1, 2013
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Dec. 31, 2023 – for juvenile records created prior to Jan. 1, 2013, but on or after Jan. 1, 2000
This amendment provides much needed administrative relief to law enforcement agencies.
Traffic and Ordinance Violations Are Exempt from Automatic Expungement
The JCA has long been ambiguous about whether traffic, municipal ordinance and other petty violations are covered. The new law now explicitly exempts from automatic expungement records involving violations of traffic, boating, fish and game laws, and county and municipal ordinances. Law enforcement agencies may now retain copies of records involving these type of minor offenses unless a court orders expungement.
Law Enforcement Agencies May Retain Juvenile Records Related to Civil Litigation
Another concern of law enforcement agencies with the 2017 amendments was that the agencies were not allowed to retain records that relate to pending civil claims. The 2017 amendments required law enforcement agencies to automatically expunge many records even though the records were necessary for the agency to effectively defend itself against a pending civil claim brought by a juvenile.
The newly amended law now includes an exception to the automatic expungement requirements for these records. Law enforcement agencies may keep records related to a plaintiff who has filed a claim against a government entity or its personnel for two years after the conclusion of the lawsuit and any appeals, regardless of whether the records qualify for automatic expungement.
Law Enforcement Agencies May Retain Juvenile Records Related to Ongoing Felony Investigations
The newly amended law also addresses the ability of law enforcement agencies to retain juvenile law enforcement records related to pending felony investigations or internal investigations. Under the 2017 amendment, law enforcement agencies were permitted to keep records past the expungement deadline for only one additional year in an intelligence file with a certification from the chief law enforcement officer or his or her designee. Notably, the 2017 amendments did not permit law enforcement agencies to retain records that qualified for expungement even if the applicable statute of limitations for the crime at issue had not run or the agency had an ongoing internal investigation related to the incident documented in the records.
The new law now permits law enforcement agencies to retain juvenile records relating to a felony investigation until the statute of limitations for the felony has run or any internal investigation concludes.
Notice Does Not Need to be Mailed to Juveniles for Automatic Expungement of Records Created Prior to 2016
The 2017 amendments required law enforcement agencies to send a mailed notice to the juveniles explaining that their records had been automatically expunged. The amendments did not exempt the agencies from this requirement even when agencies could not locate or verify the juveniles' current address.
The newly amended law requires agencies to send a mailed notice only to the juveniles listed in the records created on or after Jan. 1, 2016. For any records created prior to 2016, agencies are now permitted to provide a generic public notice that does not identify the juvenile by name.
The new law does not specify how the agency must provide public notice. It is believed that the agency should be able to post a notice on its website stating that the agency expunged all juvenile law enforcement records for a given period that qualify for automatic expungement.
The Amendment Provides Law Enforcement Agencies the Authority to Share Juvenile Records
The JCA has long prohibited law enforcement agencies from sharing juvenile law enforcement records with anybody not specifically authorized in the JCA to obtain such records. The 2017 amendments tightened these restrictions by making willful violations of the nondisclosure rules a Class C misdemeanor and imposing fines for violations.
The newly amended law maintains the penalties for willful violations, but it also expands the list of individuals permitted to obtain juvenile law enforcement records to include the following:
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the Attorney General's Public Access Counselor
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administrative adjudication hearing officers and members of a municipality's staff designated to assist in the administrative adjudication process
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employees of the federal government authorized to receive such records by law
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persons managing and designated to participate in a court diversion program
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collection agencies engaged by the governmental body to collect debts owed to the governmental body
Conclusion
The newly amended JCA addresses many significant problems, not the least of which was widespread confusion in addition to the impracticality of so many provisions.
