Illinois prison officials say they can't disclose information about the death of an inmate that led to the suspension of several staff members because the department didn't maintain a copy of the records before sending them to federal investigators.
Former federal prosecutors and detectives were surprised by the Illinois Department of Corrections' response to an open records request by The Associated Press. Officials have provided no information about the May 17 incident at the Western Illinois Correctional Center in Mount Sterling, 250 miles southwest of Chicago, except that an injured inmate was airlifted to a regional hospital and later died.
IDOC said "several" staff members are on leave and confirmed the FBI investigation, but has declined further comment. So did Brad Ware, spokesman for the FBI in Springfield.
"Turning over everything without keeping a copy? That sounds a little strange," said Thomas Raftery III of Linwood, New Jersey, a global business-security consultant who spent 22 years as an FBI agent. "I never heard of that. They may not want to give to it you, but why not just come out and say that?"
Disposing of all records means the public has no information about how prisons are run under Gov. Bruce Rauner, how the incident occurred or IDOC's response to it. Experts say it also could leave the state more susceptible to losing a civil lawsuit over the matter because juries are instructed to look unfavorably on a defendant who disposed of relevant information.
"What a jury is told is the defendant had them, the defendant got rid of them, and from that, to make an adverse inference," said Phillip Turner, a Chicago defense attorney and former federal prosecutor. "Hearing that, you're dead in the water."
When the AP first requested documents about the incident the department denied disclosure under exceptions to the Illinois Freedom of Information Act dealing with protecting ongoing criminal investigations and inmate privacy. When the AP appealed in late July, IDOC told the Illinois Attorney General's public access counselor that it gave everything to the FBI.
"I find it highly implausible," Turner said. "Maybe they don't have them on paper, but who uses paper these days?"
Last week came a new response. Instead of commenting when the AP asked why it turned over all its original records to the FBI, it responded with a letter to the public access counselor saying that it had found 100 additional documents, some previously supplied to the FBI, and all exempt from disclosure.
Whether documents are surrendered voluntarily or under subpoena, Raftery said the FBI generally allows an agency to make copies. An exception might be if it suspects a cover-up by higher-level officials, he said. And copies might be prohibited initially if records are confiscated by search warrant — for example, if the FBI takes a computer server. But such scenarios are rare.
"The FBI is cognizant of the fact that these guys gotta run a jail," Raftery said. "They can't be without records."
IDOC's claim that it cannot disclose what it doesn't have also runs counter to Illinois case law. In 2017, the 2nd District Appellate Court ruled in favor of the Chicago Tribune when the College of DuPage argued it couldn't hand over a subpoena because it no longer had it. The court ruled that disclosure is "not limited to those public records that the public body has present possession or control of ... that obligation continues even if such records are transferred."