APPEAL from the Circuit Court of Kankakee County; the Hon.
VICTOR N. CARDOSI, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The petitioner, Roger St. Louis, by his father, filed a petition in the Circuit Court of Kankakee County seeking to expunge certain records, namely, photographs, fingerprints and other records of identification made or taken from the minor petitioner by the City of Kankakee Police Department. The circuit court allowed the petition and ordered expungent of the records of the local police department and the Law Enforcement Department of the State of Illinois. From that order and the denial of the State's Attorney's motion to dismiss the State has appealed.
In September of 1974, Roger St. Louis was taken into custody and detained by the City of Kankakee Police Department. He was not charged with any crime and was subsequently released. While detained in police custody he was photographed and fingerprinted, and a record of his description was established. The State argues strenuously on appeal that the petition to expunge brought in the present case had its basis in section 5 of "An Act in relation to criminal identification and investigation" (Ill. Rev. Stat. 1973, ch. 38, par. 206-5). The State contends that said statute authorizing the court to expunge arrest records is not applicable to the record of the taking into custody of a minor. We agree that section 5 of the statute in question was designed and intended to afford a remedy for the practice of keeping files on persons who are arrested on charges of violating many penal statutes of this State upon their acquittal or being released without being convicted. These persons may have their record expunged by making a proper application to the chief judge of the circuit court wherein the charges were brought. Although the use of the term "persons" in the statute does not specifically exclude juveniles, section 3-1 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 703-1(3)) provides that the taking of a minor into custody under the Juvenile Court Act is not an arrest and does not constitute a police record. It would then follow that the statute apparently relied upon in this action seeking expungement applies only to adults. To further support this conclusion the Juvenile Court Act (Ill. Rev. Stat. 1973), ch. 37, pars. 702-8, 702-10, 703-2,) provides that juvenile records as a whole be strictly confidential and unavailable for public inspection. Records of juveniles must be maintained separately from adult records and may not be open to public inspection except by court order.
The necessity for applying section 5 (Ill. Rev. Stat. 1973, ch. 38, par. 206-5) to juveniles is less than obvious, even though the reason to expunge the records of juveniles who are taken into custody and either acquitted or released without any formal charges or proceedings under the Juvenile Court Act is equal to the need for adults in the analogous situation.
We have been cited by the State to the recent case of Ashenhurst v. Carey, 351 F. Supp. 708, 712 n. 2 (N.D. Ill. 1972), where the court said in a footnote to their opinion,
"2. Since the plaintiff is a minor, and the instant case concerns the expungement of a juvenile record, there is a threshold question of whether the challenged statute is applicable to juvenile records. Given the statutory prohibition against the dissemination and publication of juvenile records, even to other law enforcement agencies, and the legislative intent that they be strictly confidential, it is doubtful whether the harm which precipitated the need for the expungement as provided by § 206-5 of Chapter 38 is applicable to the highly protected records of a juvenile defendant. As Chapter 37 § 702-8 provides, in relevant part:
(2) No law enforcement officer or other person or agency may knowingly transmit to the Department of Law Enforcement or to the Federal Bureau of Investigation any fingerprint or photograph relating to a boy or girl who has been arrested or taken into custody before his 17th birthday or her 18th birthday, unless the court in proceedings under this Act authorizes the transmission or enters an order under Section 2-7 [Chapter 37, § 702-7] permitting the institution of criminal proceedings.
(3) The records of law enforcement officers concerning all boys under 17 and all girls under 18 must be maintained separate from the records of arrests and may not be open to public inspection or their contents disclosed to the public except by order of the court or when the institution of criminal proceedings has been permitted under Section 2-7 or such a person has been convicted of a crime and is the subject of a pre-sentence investigation or proceedings on an application for probation." (Emphasis added.)
The language of Ashenhurst would suggest that because of the confidentiality of juvenile records and the statutory prohibition against the dissemination and publication of such records there is no need for expungement. We disagree.
1 Section 5 (Ill. Rev. Stat. 1973, ch. 38, par. 206-5) provides in addition to expunging records that "[a]ll policing bodies of this State shall furnish to the Department [of Law Enforcement], daily, in the form and detail the Department requires, copies of fingerprints and descriptions, of all persons who are arrested on charges of violating any penal statute of this state." (Emphasis added.) Although the language used refers to "an arrest," which is an impossibility under the Juvenile Court Act, there is no practical difference between taking a juvenile into custody and detaining him (or arresting him) and the arrest of an adult for purposes of protecting an individual's right to privacy. Faced with the statutory mandate to daily transmit records of persons arrested the Kankakee Police Department must comply and forward all appropriate records, including, we submit, those of juveniles, to the Department of Law Enforcement. In so doing the police department is violating one of the fundamental and highly beneficial intentions of our entire juvenile justice system, that of confidentiality of all juvenile records.
Acting under authority of statute a Commission on Delinquency Prevention has been established with considerable amounts of money appropriated annually to store and disseminate statewide juvenile records contrary to common belief. (See Ill. Rev. Stat. 1975, ch. 23, pars. 2703, 2705.9 and 2709.) Through this agency, acting in conjunction with the Department of Law Enforcement, juvenile records of individuals such as Roger St. Louis are currently available statewide to designated officials in any community regardless of size or population. Section 5.9 of the Illinois Commission on Delinquency Prevention Act reads as follows:
"To develop a statewide central records system for juveniles and make information available to local registered participating police youth officers so that police youth officers will be able to obtain rapid access to the juvenile's background from other jurisdictions to the end that the police youth officers can make appropriate dispositions which will best serve the interest of the child and the community.
"To develop safeguards to guarantee the confidentiality of such records except when used ...