The newsletter of the ISBA’s Standing Committee on Government Lawyers
It’s okay to expunge things….really
Most states’ legislatures have created statutory schemes for the expungement of arrest records and convictions for minor offenses. Illinois’s expungement statute specifically provides for the expungement of an individual’s “record of arrest” for certain, enumerated offenses.1
Despite the varied nature of arrest records across law enforcement agencies, the General Assembly did not provide a technical definition for the term “record of arrest” within the expungement statute. This article will provide a working definition of “record of arrest” and set forth the procedures Illinois criminal justice agencies should take when they are served with a petition for and order of expungement.
Record of Arrest
Although the Illinois General Assembly has defined “criminal history record information” as data identifiable to an individual and consisting of, inter alia, “descriptions or notations of arrests,”2 it did not define the term “record of arrest.” Thus, in order to give effect to the true intent of the legislature, it is appropriate to rely on the plain and ordinary meaning of the phrase “record of arrest.”3
Given the common nature of the term, it is not surprising that the phrase “record of arrest” is not defined elsewhere in Illinois law. In the absence of a formal definition, however, the dictionary may be used to ascertain the meaning of statutory language. Merriam-Webster dictionary defines “record” as “the state or fact of being recorded” or “a body of known or recorded facts about something or someone especially with reference to a particular sphere of activity that often forms a discernible pattern.” It further defines “arrest” as “the taking or detaining in custody by authority of law.” Thus, the plain meaning of “record of arrest” is any written statement that an identifiable individual was taken into police custody on suspicion of having committed a crime.4
Similarly, the General Assembly did not define the term “expunge”; the dictionary may also be consulted to determine the ordinary meaning of that term. The Merriam-Webster dictionary defines “expunge” as, inter alia, striking out, obliterating, effacing or destroying completely. More meaning can be inferred from the expungement statute’s distinction between sealing records and expunging them.5 The General Assembly would not have distinguished between destroying records of arrests and sealing records if the intent of an expungement order was to retain some evidence of the underlying arrest.
Thus, any document or written statement containing personally identifying information and indicating that the individual was arrested would constitute a record of arrest and would be subject to destruction or obliteration pursuant to an order granting a petition brought under the Illinois expungement law.
Handling petitions for expungement
Individuals seeking to expunge their criminal records of arrest must file a petition in the appropriate circuit court. Under the expungement law, notice is required to be served on the Illinois State Police, the arresting police department, as well as the State’s Attorney and city attorney in the jurisdiction in which the arrest occurred.6 This notice is in the form of a copy of the petition which includes a court date. Objections to the petition, if any, must be raised prior to the court date by written pleading or in person at the court hearing.7 The court is required to rule on petitions to expunge within 90 days of notice, absent any objections.8
Upon receipt of the petition, agencies must determine if they are going to raise objections. In order to do this, each agency should review its records concerning the subject of the petition. Specifically, agencies should ensure that the crime for which the petitioner was arrested and/or convicted is eligible for expungement under the law. This review may include verifying the section of the Criminal Code that served as the basis for the arrest or conviction, as well as identifying any aggravating factors that might counsel against deleting the record of petitioner’s conduct.
The Illinois State Police (ISP) has a unique role in the realm of expungements. The ISP is the primary repository for criminal history record information; therefore, every properly-served petition finds its way to ISP’s Bureau of Identification (B of I). In some instances, ISP is also the arresting agency. As it is unlikely that a petitioner is familiar with the organizational structure of the ISP, the B of I should take steps to determine whether ISP was the arresting agency. This may be done by examining the petition to determine if another arresting agency has been named. If an arresting agency is not immediately apparent, B of I should forward a copy of the petition to the ISP Information Resources Bureau to determine if ISP was also the arresting agency.
Handling expungement orders
After a hearing on the merits of the individual’s petition to expunge, the court may enter an order requiring law enforcement agencies to expunge the record of arrest. The circuit clerk’s office is responsible for serving copies of the court’s expungement order on any party subject thereto.9 The court has broad discretion in ruling on petitions to expunge records of arrests and in what relief is contained in the court order. For example, the court may require an arresting agency to file with the circuit clerk an affidavit of compliance with the order; the court may require ISP B of I or the arresting agency to send notification to the petitioner that the expungement is complete; and the court might require additional criminal justice agencies who have not received notice of the petition to expunge their records of arrest.10 It is axiomatic that law enforcement agencies must comply with a court’s order or otherwise seek timely appeal of that order.11
The expungement statute’s lack of clarity has caused some confusion and has resulted in inconsistent handling of expungement orders by police agencies. A “record of arrest” can take many forms, including but not limited to, a fingerprint card including a statutory charge, a form documenting the custodial arrest of an individual, or a police incident report containing a narrative description of the alleged offense and the subsequent arrest of an individual. Law enforcement agencies are sometimes reluctant to destroy an entire incident report pursuant to an expungement order because they want to retain information that may be useful in future investigations. In these instances, agencies may comply with a court’s order by obliterating a petitioner’s personally identifying information from such a report. Furthermore, an agency may not maintain a database or other form of record-keeping system containing the records of arrest that have been expunged.
The expungement law is not based upon whether the record would ever be disclosed to the public. This is evidenced, in part, by the General Assembly’s providing for the sealing of records. Expungement is the destruction of the record, regardless of who may have proper access to it. The policy behind the expungement statute is that the offense was minor and there is no need to keep a record of its having occurred. Not only is it okay to expunge records, in some cases it is mandatory.