The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

Sealing the Entire Record: Dismissed Felony Charges and the Illinois Information and Identification Acts
By Charles G. Wentworth

A client walks into your office hoping to have his 20-year-old arrest record sealed. He explains that when he was a young man, his cousin let him borrow his "new" car. Unknown to your client, the car was in fact stolen. After running the car’s license plates, the police stopped your client and arrested him, charging him with two crimes: misdemeanor trespass to vehicle and felony burglary. To avoid trial, your client pled guilty to the misdemeanor in exchange for dismissal of the felony. Your client then asks whether he can have the felony arrest record sealed.

The answer, as with most things, is a resounding "maybe." As we will see, Illinois courts certainly have discretion to seal your client’s records, including the dismissed felony. In State v. Jones, a Cook County Circuit Court judge recently did just that over the objection of the Illinois State Police.1 The ISP asked the First District to review the case, but later withdrew the appeal. This article revisits the issues raised by that case, giving an overview of the Illinois Criminal Identification Act2 and the Illinois Uniform Conviction Information Act,3 as well as the parties’ arguments from their briefing.

Like your hypothetical client, the Jones defendant had been arrested and charged with both a misdemeanor and various felonies. He was convicted of the misdemeanor only, and after successfully completing probation, the remaining felony charges were dismissed. He later petitioned the Circuit Court to have his arrest record sealed. The ISP objected only to the sealing of the felony charges in that case, not the misdemeanor. The defendant responded that the all of the charges were included in one arrest record, and that all charges in that single record should therefore be sealed together. The Circuit Court explained that it had to decide "whether felony charges filed in association with misdemeanor charges, that ultimately result in only a sealable misdemeanor conviction[,] may be sealed."

Ruling that "it is the intent of the sealing statute to allow the sealing of the [misdemeanor] conviction and all accompanying records," the Circuit Court determined that the Identification Act gave it the authority to seal the dismissed felony charges in connection with the sealing of the defendant’s misdemeanor conviction. It explained, "Once a defendant is allowed to seal a misdemeanor conviction, that defendant should then be allowed to seal an accompanying felony charge and arrest for which there was no actual conviction."

The Identification and Information Acts

Jones turned on the Circuit Court’s interpretation of two Illinois statutes — the Identification Act and the Information Act.4 The Identification Act states that the ISP is "empowered to cope with the task of criminal identification and investigation."5 It directs various law enforcement bodies and courts "to submit certain criminal arrest, charge, and disposition information to the [ISP] for filing" so that the ISP can "maintain[ ] complete and accurate criminal records."6

One purpose for maintaining such records is for "evaluating the qualifications and character of employees, prospective employees, volunteers, or prospective volunteers of units of local government, school districts, and private organizations."7 As a result, the Identification Act lists various organizations that may, for a fee, petition the ISP for these records.8

The Identification Act also limits the use of "file[s] or record[s]" held by the ISP and other entities.9 In doing so, it states that the information shall not be made public except under certain circumstances. The Act also provides certain protections for individuals, such as the right "to review and correct any criminal history record information the [ISP] may hold concerning that individual."10 Additionally, the Identification Act allows the Attorney General or a State’s Attorney to "bring suit in the circuit courts to prevent and restrain violations of the" Information Act.11 Throughout, the Identification Act repeatedly uses the terms "conviction information" and "criminal history record information," but does not define them.12 Rather, these terms are defined in the Information Act.13

A large portion of the Identification Act is dedicated to explaining the requirements for sealing criminal records. Specifically, the statute states that "records may be sealed" by a court upon the filing of a petition by a defendant, and defines certain offenses as "sealable."14 Those include "[a]ll municipal ordinance violations and misdemeanors" and some "[m]isdemeanor and Class 4 felony violations."15 Under the statute, "records" may be sealed where an individual was: (1) acquitted or "released without being convicted"; (2) convicted, but the conviction was reversed; (3) placed on misdemeanor supervision and three years have elapsed since completion of supervision without further incident; or (4) convicted and four years have elapsed since the conviction or term of sentence or probation without further incident.16 Also, the statute prohibits courts from sealing the arrest and conviction records of specifically enumerated offenses.17

The Identification Act prohibits an "expunged or sealed record" from being "considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration."18 To that end, "[a]pplications for employment must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest," and "[e]mployers may not ask if an applicant has had records expunged or sealed."19 The Identification Act also requires that the State Appellate Defender "establish, maintain, and carry out a sealing and expungement program to provide information to persons eligible to have their arrest or criminal history records expunged or sealed."20

The Information Act requires that "[a]ll conviction information mandated by statute to be collected and maintained by the [ISP] shall be open to public inspection."21 The Information Act contains provisions for individuals to protect themselves from possible errors in their criminal records.22 Specifically, the Information Act references Section 7 of the Identification Act, stating that "the individual to whom the conviction information pertains may initiate proceedings" to correct such information, and that these "correction proceedings shall be given priority over the other individual record review and challenges filed with the [ISP]."23 Further, the Information Act is to be "construed to afford the maximum feasible protection to the individual’s right to privacy and enjoyment of his good name and reputation and shall be construed to apply to both manual and automated criminal history record information systems wherever possible."24

The Information Act, which frequently references the Identification Act,25 defines the terms "conviction information" and "criminal history record information":

"Conviction information" means data reflecting a judgment of guilt or nolo contendere. The term includes all prior and subsequent criminal history events directly relating to such judgments, such as, but not limited to: (1) the notation of arrest; (2) the notation of charges filed; (3) the sentence imposed; (4) the fine imposed; and (5) all related probation, parole, and release information . . . .
. . .
"Criminal history record information" means data identifiable to an individual and consisting of descriptions or notations of arrests, detentions, indictments, informations, pretrial proceedings, trials, or other formal events in the criminal justice system or descriptions or notations of criminal charges (including criminal violations of local municipal ordinances) and the nature of any disposition arising therefrom, including sentencing, court or correctional supervision, rehabilitation and release . . . .26
The ISP maintains the designated repository of criminal history records for the State of Illinois, including arrests and convictions.27 Generally, all criminal history information collected and maintained by the ISP is to be made available to the public. As such, the ISP is to be notified of all requests to seal arrest and conviction information, and is allowed to object to any such request.28

The Jones Case
In its briefing before the Jones Circuit Court, the ISP admitted that it had routinely ignored orders to seal certain arrest records, such as when the records contained a dismissed felony charge. In its defense, the ISP claimed that it "is bound by the statute only to seal those charges which are eligible under the statute." In other words, it believed that — as a matter of law — no records referencing dismissed felonies may be sealed. Specifically, it claimed that such dismissed charges are "not sealable." According to the ISP’s argument, by enumerating some "offenses [that] may be sealed,"29 the Legislature intended that all other offenses may not be sealed. Thus, notwithstanding court orders to the contrary, the ISP had, on at least 40 occasions, simply ignored those orders and chosen to not seal certain felony arrests where they accompanied a sealable offense. This in turn prompted legal aid attorneys to file Petitions for Rule to Show Cause seeking to hold the ISP in civil and criminal contempt for failure to comply with the orders. Jones appeared to be the case to squarely address the ISP’s interpretation of the statute by an Illinois appellate court.

On appeal, the defendant argued that the plain language of the Identification Act supported the Circuit Court’s orders sealing his misdemeanor arrest and conviction records, including the dismissed felony charges. The Identification Act states that a defendant may "file a petition requesting the sealing of records."30 Specifically, the Identification Act permits the sealing of "all municipal ordinance violations and misdemeanors" with certain enumerated exceptions, none of which is applicable here.31 Additionally, "[r]ecords identified as sealable" may be sealed where the petitioner was: (1) acquitted or "released without being convicted"; (2) convicted, but the conviction was reversed; (3) placed on misdemeanor supervision and three years have elapsed since completion of supervision without further incident; or (4) convicted, and four years have elapsed since the conviction without further incident.32

Although the Identification Act does not define the terms "records" or "seal," the commonly understood meanings of these terms confirm the Legislature’s intent to allow a court to seal arrest and conviction records where the statutory requirements are met. Black’s Law Dictionary defines "record" as "information that is inscribed on tangible medium or that, having been stored in an electronic or other medium, is retrievable in perceivable form."33 Similarly, "sealing" a something, it means to "prevent access to . . . a document, record, etc."34

The ISP argued that records related to certain offenses not enumerated in Section 5(h)(2) of the Identification Act may never be sealed, even when included in misdemeanor conviction records meeting the requirements for sealing under Sections 5(h)(2) and 5(h)(3). The problem with this position is that it suggests a process akin to redaction where only the references to such enumerated, sealable offenses would be removed from arrest and conviction records. Redaction entails "[t]he careful editing (of a document), esp. to remove confidential references or offensive material."35 But the Legislature’s use of "seal" rather than "redact" indicates an intent to "prevent access to" sealable records, and not to simply permit "careful editing" of them.36

The ISP took the phrase "offenses [that] may be sealed" out of context. Indeed, the Legislature clarified itself in the very next subsection, stating that it is not the individual "offenses" that are to be sealed, but rather the "[r]ecords identified as sealable."37 Reading the statute as a whole rather than isolating the term "offenses," it becomes clear that complete records associated with the enumerated offenses must be sealed, and not simply that individual references to sealable offenses be removed.

The ISP’s claim that all offenses not expressly identified as "sealable" in Section 5(h)(2) are per se non-sealable also fails because the Legislature expressly enumerated various charges for which the court "shall not order the sealing or expungement of the arrest records and records of the circuit court clerk."38 Among these offenses are DUI violations, animal cruelty violations, and anything that would require an individual to register under the Sex Offender Registration Act.39

The ISP also argued that Section 5(h)(4) provides support for its contention that dismissed felony charges which do not meet the requirements of Section 5(h)(2) may not be sealed as part of a sealable misdemeanor record. But this is belied by the language of Section 5(h)(4) itself. To the extent, if at all, that Section 5(h)(4) requires a court to examine each offense referenced in an otherwise sealable record, it states only that, "clauses (h)(3)(A) through (D) each apply."40 By only specifying that Sections 5(h)(3)(A) through 5(h)(3)(D) apply, the Legislature excluded any requirement that Section 5(h)(2) applies to those other charges. Thus, ISP’s argument that the requirements of Section 5(h)(2) must be met for each separate offense is contradicted by the Identification Act’s plain language.

Further, because the Information Act is so similar to, and meant to be read in connection with, the Identification Act, the two acts are instructive in helping understand what each means. First, the Acts have the same purpose — namely, the balancing of the State’s interest in the collection and distribution of criminal history records, and individuals’ interests in protecting their rights regarding those records. The Identification Act requires State agencies and courts to "submit certain criminal arrest, charge, and disposition information to the [ISP] for filing" so that the ISP may "maintain complete and accurate criminal records."41 It also limits how the "file[s] or record[s]" held by the ISP and other entities may be used.42 In doing so, it states that the information shall not be made public except under certain limited circumstances.

For example, the Act provides certain protections for individuals, such as the right "to review and correct any criminal history record information the [ISP] may hold concerning that individual."43 The statute requires that the State Appellate Defender "establish, maintain, and carry out a sealing and expungement program to provide information to persons eligible to have their arrest or criminal history records expunged or sealed."44 It also prohibits employers from asking about or considering sealed or expunged records "in employment matters, certification, licensing, revocation of certification or licensure, or registration," and requires applications to contain "specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest."45 Finally, the Identification Act allows the Attorney General or a State’s Attorney to "bring suit in the circuit courts to prevent and restrain violations of the" Information Act.46

Similarly, the Information Act requires that "[a]ll conviction information mandated by statute to be collected and maintained by the [ISP] shall be open to public inspection."47 It also states that "the individual to whom the conviction information pertains may initiate proceedings" to correct such information, and that these "correction proceedings shall be given priority over the other individual record review and challenges filed with the [ISP]."48 Further, the Information Act is to be "construed to afford the maximum feasible protection to the individual’s right to privacy and enjoyment of his good name and reputation and shall be construed to apply to both manual and automated criminal history record information systems wherever possible."49

Second, the Identification Act repeatedly uses the terms "conviction information" and "criminal history record information," although it never defines those terms.50 Rather, the definitions of those terms are found in the Information Act. "Conviction information" includes, among other things, "all prior and subsequent criminal history events directly relating to such judgments, such as . . . the notation of arrest [and] the notation of charges filed."51 Similarly, "criminal history record information" includes such things as "descriptions or notations of arrests, detentions, indictments, informations, . . . descriptions or notations of criminal charges (including criminal violations of local municipal ordinances) and the nature of any disposition arising therefrom, including sentencing, court or correctional supervision, rehabilitation and release."52

Finally, in addition to using terms similar to the Identification Act, the Identification and Information Acts cross-reference each other repeatedly.53 Indeed, the Identification Act specifically grants the Attorney General and State’s Attorneys the authority to enforce the provisions of the Information Act,54 while the Information Act requires that the ISP conduct regular audits "to ensure compliance with the provisions of this Act" and the Identification Act.55

Reading the Acts in tandem demonstrates the Legislature’s intent that the Identification Act’s "records identified as sealable" be broader than simply the references to the individual "sealable offenses." Rather, sealing encompasses the entire sealable record, including dismissed felony charges and arrest records that are related to a conviction which is eligible for sealing." The term "conviction information" is used to describe the scope of information required to be released to the public upon request, and it is therefore only common sense that the same term should be used to define the scope of the information that should be sealed from the public based on court order.

Further, the policies underlying the Identification and Information Acts confirm this interpretation. As explained above, both Acts establish a policy of protecting individuals’ privacy rights, taking steps to protect against inaccurate information contained in their criminal history records.56 Additionally, Illinois courts recognize the detrimental impact public access to criminal history records can have on individuals:

Courts have acknowledged a variety of such potential injuries, such as damage to the person’s dignity or reputation, and lessened opportunities for schooling, employment, credit, and professional licensing. Also, courts have observed that police departments that retain a person’s arrest records may be more likely to focus on him or even to arrest him in connection with a later investigation and may use his photograph in a lineup shown to crime victims or witnesses.57

Taking the redaction approach advocated by the ISP ignores the substantial harm to the thousands of potential petitioners in the same position as the Jones defendant. If courts are able to seal only a portion of sealable records, petitioners will be placed in the unenviable position of properly refusing to disclose the sealed conviction record on a job application,58 only to have the employer discover arrest records relating to dismissed charges that were part of the same case. Moreover, if the full record of arrest which ultimately results only in a sealable misdemeanor is not wholly sealable, a defendant may be forced to explain why certain portions of the records have been redacted and what the redacted information contained. This is contrary the Legislature’s intent and policy that "[e]mployers may not ask if an applicant has had records expunged or sealed."59

And as the Jones Circuit Court recognized, the Legislature has demonstrated a policy favoring plea by granting prosecutors the authority to dismiss more serious charges in exchange for a plea to a lesser crime. But if defendants knew that the ISP could later refuse to seal dismissed felony charges, they would be much less likely to accept pleas, thus undermining the policy in favor of them.

Lastly, the ISP argued that the defendant’s reading of the statute must be incorrect because, if not, "a person arrested on a particular day for murder, rape and misdemeanor theft could have the records of each offense sealed if the misdemeanor theft charge results in a conviction that meets the requirements for sealing." The ISP ignored, however, that a defendant might not have any of those records sealed because, notwithstanding the presence of the sealable misdemeanor theft charge, every decision to seal is discretionary.60 Thus, the court in the ISP’s parade of horribles could elect to not seal the records of the misdemeanor theft conviction based on the accompanying rape and murder charges or any other discretionary factor. And it is just as easy to envision a situation where an individual was arrested for rape, murder, and misdemeanor theft, and where it was later proven with a certainly that the arrest was a case of mistaken identity. Under the ISP’s interpretation, that defendant would never be able to have his rape and murder charges sealed. Such is certainly not the intended result of the statute. And in either case, it should be up to the ISP to argue why a court should exercise its discretion to not seal such records, rather than for all courts to be prohibited from granting such petitions as a matter of law.

By granting to courts the discretion to seal arrest and conviction records under the Identification Act, the Legislature inherently granted them the authority to seal dismissed offenses referenced in sealable records. Thus, the Identification Act allows courts to seal entire sealable records, including dismissed felony charges, so long as those offenses are not among the Act’s enumerated, non-sealable offenses.

1 The First District appellate case is State v. Jones, Case No. 01-08-2156. The relevant Circuit Court orders and other briefing can be found in the appendix to the appellee’s brief, and are not otherwise cited here.

2 20 ILCS 2630 (2006).

3 20 ILCS 2635 (2006).

4 Although the defendant acknowledged that the Circuit Court’s interpretation of these Acts was subject to de novo review, in the end "the decision to expunge is within the trial court’s discretion." People v. Carroccia, 352 Ill. App. 3d 1114, 1118 (2d Dist. 2004).

5 20 ILCS 2630/1.

6 Id. § 2630/2.1.

7 Id. § 2630/3(A).

8 Id. §§ 2630/3 to 3.1.

9 Id. § 2630/7.

10 Id.

11 Id. § 2630/10.

12 Id. §§ 2630/3(A)-(C), 3.1(c), 7; see also Id. § 11 (referring to "criminal history records").

13 Id. § 2635/3(F), (G).

14 Id. § 2630/5(h)(2) and (7).

15 Id. § 2630/5(h)(2).

16 Id. § 2630/5(h)(3).

17 Id. §§ 2630/5(g), (h)(2)(A)(i)-(vi).

18 Id. § 2630/12(a); see also 775 ILCS 5/2-103.

19 Id.

20 Id. § 2630/11.

21 Id. § 2635/5.

22 Id. § 2635/7.

23 Id. § 2635/7(A)(4).

24 Id. § 2635/23.

25 See, e.g., id. §§ 2635/3(E), 4(C)(4), 7(A)(4), 10, 14, 20(B), 21.

26 Id. §§ 2635/3(F), (G).

27 See generally 20 ILCS 2635, 2630.

28 Id. § 2630/5(h)(7)(D).

29 20 ILCS 2630/5(h)(2).

30 20 ILCS 2630/5(h)(7).

31 Id. § 2630/5(h)(2).

32 Id. § 2630/5(h)(3).

33 Black’s Law Dictionary 1023 (7th ed. 2000).

34 Id. at 1083.

35 Id. at 1025.

36 Id. at 1083,477, 1025; 20 ILCS 2630/5(h)(7).

37 20 ILCS 2630/5(h)(3).

38 20 ILCS 2630/5(g); see also id. § 2630/5(h)(2)(A)(i)-(v).

39 Id.

40 20 ILCS 2630/5(h)(4).

41 20 ILCS 2630/2.1.

42 Id. § 2630/7.

43 Id.

44 Id. § 2630/11.

45 Id. § 2630/12(a); see also 775 ILCS 5/2-103.

46 Id. § 2630/10.

47 Id. § 2635/5.

48 Id. § 2635/7(A)(4).

49 Id. § 2635/23.

50 Id. §§ 2630/3(A)-(C), 3.l(c), 7; see also id. § 2630/11 (referring to "criminal history records").

51 Id. § 2635/3(F).

52 Id. § 2635/3(G).

53 Id. §§ 2635/3(E), 4(C)(4), 7 (A)(4), 10, 14, 20(B), 21; id. §§ 2630/7, 10.

54 Id. § 2630/10,

55 Id. § 2635/21.

56 20 ILCS 2630/7, 10, 11, 12; id. §§ 2635/7(A)(4), 23.

57 Carroccia, 352 Ill. App. 3d at 1120-21 (citations omitted).

58 20 ILCS 2630/12(a); 775 ILCS 5/2-103.

59 20 ILCS 2630/12(a).

60 Carroccia, 352 Ill. App. 3d at 1118-19.

Charles Wentworth is a sole practitioner at Wentworth Law Offices P.C. in Glen Ellyn. His practice includes civil and appellate litigation, as well as business advice and planning. Prior to opening his own office, Charles was a litigation associate at Kirkland & Ellis LLP, where he represented the defendant-appellee before the First District in the case described here. Charles would like to thank Judge Richard Russo for his help in reviewing this article, and Andrew McGaan, Amy Haywood, and Beth Johnson for their help and comments on the appellate briefing.

 
 
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