Submitted By
Paul L. Stephanides, Village Attorney; and Shatonya Johnson, Police Chief
Reviewed By
A.M. Zayyad, Deputy Village Manager
Agenda Item Title
Title
An Ordinance Amending Chapter 19 (“Police Department”) of the Oak Park Village Code to Add a New Article 6 (“Law Enforcement Surveillance Oversight”) to Promote Transparency and to Protect Civil Rights and Civil Liberties with Respect to Law Enforcement Surveillance Technology as Discussed by the Village Board at the September 11, 2023 Special Board Meeting
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Overview
Overview
The proposed Ordinance is based upon the American Civil Liberties Union (“ACLU”) Community Control Over Police Surveillance (“CCOPS”) model ordinance as recommended by the Civic Information Systems Commission (“CISC”) and as presented and discussed by the Village Board at the Board’s September 11, 2023 special meeting. The Ordinance presented to the Board reflects recommended changes by the Village Board at that meeting as well as recommended changes by the Citizens Police Oversight Committee (“CPOC”).
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Recommendation
Recommendation
Adopt the Ordinance.
Background
The proposed Ordinance was originally discussed by the Village Board on September 11, 2023 pursuant to a motion by Trustee Wesley and seconded by Trustee Robinson to review the CISC’s recommendation related to the ACLU’s model ordinance regarding law enforcement surveillance oversight. The ACLU’s model ordinance is intended to provide oversight of law enforcement technology to promote transparency and to protect civil rights and civil liberties. The CISC made its recommendation at its February 9, 2023 meeting, and a memorandum from the CISC to the Village Board dated February 13, 2023 is included with this item. The CISC recommended that the Village adopt its own surveillance technology ordinance that is in the spirit of the ACLU’s model Ordinance, which is also included with this item.
As stated in the CISC’s memorandum, approximately twenty (20) municipalities across the United States in major metropolitan areas as well as in smaller municipalities have adopted law enforcement surveillance technology Ordinances based upon the ACLU’s model Ordinance. Such major metropolitan areas include Boston, Massachusetts, New York City, New York, San Diego, California, San Francisco, California, and Seattle, Washington. The ACLU’s model Ordinance is more readily designed for major municipalities. Dayton, Ohio (pop. 137,571) is an example of a smaller municipality that has adopted a surveillance technology Ordinance, which is attached with this item.
Dayton used the ACLU’s model Ordinance as a guide and Dayton’s Ordinance was used to draft the Ordinance included for Board consideration. Dayton’s Ordinance includes a public hearing process prior to the approval, procurement and implementation of surveillance technologies by its police department.
The draft Ordinance attached with this item includes a public hearing process and also an oversight process following Board approval. This process follows in part the process that was used to approve the Police Department’s use of automated license plate recognition technology in 2022. The draft Ordinance contains limited exceptions under the definition of surveillance technology and an exigent circumstances exception for temporary emergency use of surveillance technology. If this exception is utilized, the Police Chief must provide a report to the Village Board to explain the exigent circumstances and why the circumstances warranted the technology usage. This report must also be posted on the Village’s website.
At the September 11, 2023 special meeting, the Board requested changes to the Ordinance which are reflected in the attached strike-out and underlined version of the Ordinance. A clean version of the Ordinance for possible adoption by the Board is also attached. Those changes are as follows: (1) additional language under the definition of “exigent circumstances” in Section 19-6-1 to further provide that surveillance technology can be used in emergency situations “that poses a risk of harm to the safety of the occupants of the property and the public;” (2) the deletion of exemption number 16 under the definition of “surveillance technology in Section 19-6-1; (3) the deletion of the word “owned” and the addition of the work “parking” in exemption number 17 under the definition of surveillance technology in Section 19-6-1; (4) additional language to Section 19-6-3(D) which provides that the Police Department must cease using surveillance technology under exigent circumstances “as soon as practicable;” and (5) additional language to Section 19-6-3(D) to provide when a report must be made to the Village Manager and the Village Board when surveillance technology is used under exigent circumstances by the Police Department. The language now provides that the report must be made “[w]ithin 30 days from when the exigent circumstances began or as soon as practicable, whichever comes first.”
At the September 11, 2023 special meeting, the Board also decided to seek the input of the CPOC regarding the provisions of the Ordinance. The CPOC reviewed the Ordinance at its meetings of January 31, 2024 and April 15, 2024, discussing the draft Ordinance broadly and also the specific feedback and three (3) members of the CPOC. Following the discussion, the CPOC members recommended that the Board consider certain revisions to the Ordinance and had questions regarding the Ordinance. Those revisions and questions are reflected in Assistant Village Manager/Human Resources Director Kira Tchang’s memorandum dated May 7, 2024 and the attachments thereto, all of which are attached to this agenda item. Several changes were made to the Ordinance based upon this feedback which are also reflected in the strike-out and underlined draft Ordinance that is attached.
The CPOC has asked whether it will continue to have oversight of the Police Department’s use of automated license plate readers currently installed in certain locations in the Village and additional recital clauses have been added to the Ordinance that reflects that this will continue to the be the case unless the Village Board determines to end that oversight. Any additional automated license plate readers beyond the eight (8) readers currently installed in the Village would be subject to the process contained in the Ordinance per this agenda item.
The CPOC has also asked whether it will have a role to play in the oversight of proposed future surveillance technology proposals by the Police Department under the Ordinance and the public hearing process that is set forth in the Ordinance. When considering such a proposal, the Village Board shall have the option to refer such requests after the required public hearing is held by the Village Board. This may include further public hearings before the CPOC or other boards or commissions of the Village. The review of surveillance technology can also be part of the CPOC’s or other boards’ or commissions’ annual work plan. Thus, the safeguards, accountability and oversight of surveillance technology rests with the Village Board and with other boards or commissions as assigned by the Village Board. The Village Board may also direct that specific matters be addressed in the annual surveillance technology report required by the Ordinance. There are nine (9) requirements for the information that is to be included in the report under the definition of “annual surveillance report” contained in Section 19-6-1, which includes an impact analysis.
To date, it appears that no Illinois municipality has adopted a surveillance technology Ordinance. The State of Illinois has now adopted three laws regarding surveillance technology. The first law, the Freedom from Drone Surveillance Act, which went into effect on January 1, 2014 and is codified at 725 ILCS 167/1 et seq., prohibits the use of drones for law enforcement purposes. The law was amended in 2023 to allow the use of drones at outdoor, government-hosted events, such as parades, walks, races, concerts or food festivals. The law explicitly bars drones from being used to monitor “any political protest, march, demonstration, or other assembly protected by the First Amendment.” The law also allows police to use drones when responding to 911 calls to find victims, to assist with health or safety needs or to coordinate emergency personnel. Facial recognition technology as part of drone usage is prohibited. Under the CISC recommendation, if the Village’s Police Department wished to use drones for any of the permitted purposes under the law, the Police Department would first have to seek approval from the Village Board pursuant to the public process contained in the draft Ordinance, except under exception for exigent circumstances.
The next law that was adopted by the State of Illinois is the Freedom from Location Surveillance Act, which into effect on August 26, 2014, and is codified at 725 ILCS 168/1 et seq. This law prohibits any law enforcement agency in the State of Illinois, which includes the Village’s Police Department, from obtaining location information of any person without a court order.
The final law is the Protecting Household Privacy Act, which went into effect on January 1, 2022, and is codified at 5 ILCS 855/1 et seq. This law prohibits law enforcement agencies in Illinois from obtaining household electronic data or directing private third parties to acquire household electronic data without a warrant except where consented to or in specific emergency situations. The reference to this law has been added to the Ordinance subsequent to the draft Ordinance that was presented to the Board on September 11, 2023. Each of these laws are included with this item. The laws are incorporated as part of the draft Ordinance and where these laws conflict with a provision of the draft Ordinance, the more stringent provision will govern.
Fiscal Impact
N/A
DEI Impact
The proposed Ordinance is intended to protect civil rights and civil liberties of all persons by providing a process for the oversight of surveillance technology for law enforcement purposes prior to such technology being implemented by the Village.
Alternatives
Not adopt the Ordinance and comply with current state law.
Previous Board Action
The Board discussed the draft Ordinance at its September 11, 2023 special meeting.
Citizen Advisory Commission Action
The Citizen Information Systems Commission recommends adoption of the Ordinance and the Citizens Police Oversight Committee has provided input regarding the Ordinance.
Anticipated Future Actions/Commitments
N/A
Intergovernmental Cooperation Opportunities
N/A