Sen. Pamela J. Althoff

Filed: 10/27/2011

 

 


 

 


 
09700HB2558sam001LRB097 07783 KMW 59046 a

1
AMENDMENT TO HOUSE BILL 2558

2    AMENDMENT NO. ______. Amend House Bill 2558 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Freedom of Information Act is amended by
5changing Section 7 as follows:
 
6    (5 ILCS 140/7)  (from Ch. 116, par. 207)
7    Sec. 7. Exemptions.
8    (1) When a request is made to inspect or copy a public
9record that contains information that is exempt from disclosure
10under this Section, but also contains information that is not
11exempt from disclosure, the public body may elect to redact the
12information that is exempt. The public body shall make the
13remaining information available for inspection and copying.
14Subject to this requirement, the following shall be exempt from
15inspection and copying:
16        (a) Information specifically prohibited from

 

 

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1    disclosure by federal or State law or rules and regulations
2    implementing federal or State law.
3        (b) Private information, unless disclosure is required
4    by another provision of this Act, a State or federal law or
5    a court order.
6        (b-5) Files, documents, and other data or databases
7    maintained by one or more law enforcement agencies and
8    specifically designed to provide information to one or more
9    law enforcement agencies regarding the physical or mental
10    status of one or more individual subjects.
11        (c) Personal information contained within public
12    records, the disclosure of which would constitute a clearly
13    unwarranted invasion of personal privacy, unless the
14    disclosure is consented to in writing by the individual
15    subjects of the information. "Unwarranted invasion of
16    personal privacy" means the disclosure of information that
17    is highly personal or objectionable to a reasonable person
18    and in which the subject's right to privacy outweighs any
19    legitimate public interest in obtaining the information.
20    The disclosure of information that bears on the public
21    duties of public employees and officials shall not be
22    considered an invasion of personal privacy.
23        (d) Records in the possession of any public body
24    created in the course of administrative enforcement
25    proceedings, and any law enforcement or correctional
26    agency for law enforcement purposes, but only to the extent

 

 

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1    that disclosure would:
2            (i) interfere with pending or actually and
3        reasonably contemplated law enforcement proceedings
4        conducted by any law enforcement or correctional
5        agency that is the recipient of the request;
6            (ii) interfere with active administrative
7        enforcement proceedings conducted by the public body
8        that is the recipient of the request;
9            (iii) create a substantial likelihood that a
10        person will be deprived of a fair trial or an impartial
11        hearing;
12            (iv) unavoidably disclose the identity of a
13        confidential source, confidential information
14        furnished only by the confidential source, or persons
15        who file complaints with or provide information to
16        administrative, investigative, law enforcement, or
17        penal agencies; except that the identities of
18        witnesses to traffic accidents, traffic accident
19        reports, and rescue reports shall be provided by
20        agencies of local government, except when disclosure
21        would interfere with an active criminal investigation
22        conducted by the agency that is the recipient of the
23        request;
24            (v) disclose unique or specialized investigative
25        techniques other than those generally used and known or
26        disclose internal documents of correctional agencies

 

 

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1        related to detection, observation or investigation of
2        incidents of crime or misconduct, and disclosure would
3        result in demonstrable harm to the agency or public
4        body that is the recipient of the request;
5            (vi) endanger the life or physical safety of law
6        enforcement personnel or any other person; or
7            (vii) obstruct an ongoing criminal investigation
8        by the agency that is the recipient of the request.
9        (e) Records that relate to or affect the security of
10    correctional institutions and detention facilities.
11        (f) Preliminary drafts, notes, recommendations,
12    memoranda and other records in which opinions are
13    expressed, or policies or actions are formulated, except
14    that a specific record or relevant portion of a record
15    shall not be exempt when the record is publicly cited and
16    identified by the head of the public body. The exemption
17    provided in this paragraph (f) extends to all those records
18    of officers and agencies of the General Assembly that
19    pertain to the preparation of legislative documents.
20        (g) Trade secrets and commercial or financial
21    information obtained from a person or business where the
22    trade secrets or commercial or financial information are
23    furnished under a claim that they are proprietary,
24    privileged or confidential, and that disclosure of the
25    trade secrets or commercial or financial information would
26    cause competitive harm to the person or business, and only

 

 

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1    insofar as the claim directly applies to the records
2    requested.
3        The information included under this exemption includes
4    all trade secrets and commercial or financial information
5    obtained by a public body, including a public pension fund,
6    from a private equity fund or a privately held company
7    within the investment portfolio of a private equity fund as
8    a result of either investing or evaluating a potential
9    investment of public funds in a private equity fund. The
10    exemption contained in this item does not apply to the
11    aggregate financial performance information of a private
12    equity fund, nor to the identity of the fund's managers or
13    general partners. The exemption contained in this item does
14    not apply to the identity of a privately held company
15    within the investment portfolio of a private equity fund,
16    unless the disclosure of the identity of a privately held
17    company may cause competitive harm.
18        Nothing contained in this paragraph (g) shall be
19    construed to prevent a person or business from consenting
20    to disclosure.
21        (h) Proposals and bids for any contract, grant, or
22    agreement, including information which if it were
23    disclosed would frustrate procurement or give an advantage
24    to any person proposing to enter into a contractor
25    agreement with the body, until an award or final selection
26    is made. Information prepared by or for the body in

 

 

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1    preparation of a bid solicitation shall be exempt until an
2    award or final selection is made.
3        (i) Valuable formulae, computer geographic systems,
4    designs, drawings and research data obtained or produced by
5    any public body when disclosure could reasonably be
6    expected to produce private gain or public loss. The
7    exemption for "computer geographic systems" provided in
8    this paragraph (i) does not extend to requests made by news
9    media as defined in Section 2 of this Act when the
10    requested information is not otherwise exempt and the only
11    purpose of the request is to access and disseminate
12    information regarding the health, safety, welfare, or
13    legal rights of the general public.
14        (j) The following information pertaining to
15    educational matters:
16            (i) test questions, scoring keys and other
17        examination data used to administer an academic
18        examination;
19            (ii) information received by a primary or
20        secondary school, college, or university under its
21        procedures for the evaluation of faculty members by
22        their academic peers;
23            (iii) information concerning a school or
24        university's adjudication of student disciplinary
25        cases, but only to the extent that disclosure would
26        unavoidably reveal the identity of the student; and

 

 

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1            (iv) course materials or research materials used
2        by faculty members.
3        (k) Architects' plans, engineers' technical
4    submissions, and other construction related technical
5    documents for projects not constructed or developed in
6    whole or in part with public funds and the same for
7    projects constructed or developed with public funds,
8    including but not limited to power generating and
9    distribution stations and other transmission and
10    distribution facilities, water treatment facilities,
11    airport facilities, sport stadiums, convention centers,
12    and all government owned, operated, or occupied buildings,
13    but only to the extent that disclosure would compromise
14    security.
15        (l) Minutes of meetings of public bodies closed to the
16    public as provided in the Open Meetings Act until the
17    public body makes the minutes available to the public under
18    Section 2.06 of the Open Meetings Act.
19        (m) Communications between a public body and an
20    attorney or auditor representing the public body that would
21    not be subject to discovery in litigation, and materials
22    prepared or compiled by or for a public body in
23    anticipation of a criminal, civil or administrative
24    proceeding upon the request of an attorney advising the
25    public body, and materials prepared or compiled with
26    respect to internal audits of public bodies.

 

 

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1        (n) Records relating to a public body's adjudication of
2    employee grievances or disciplinary cases; however, this
3    exemption shall not extend to the final outcome of cases in
4    which discipline is imposed.
5        (o) Administrative or technical information associated
6    with automated data processing operations, including but
7    not limited to software, operating protocols, computer
8    program abstracts, file layouts, source listings, object
9    modules, load modules, user guides, documentation
10    pertaining to all logical and physical design of
11    computerized systems, employee manuals, and any other
12    information that, if disclosed, would jeopardize the
13    security of the system or its data or the security of
14    materials exempt under this Section.
15        (p) Records relating to collective negotiating matters
16    between public bodies and their employees or
17    representatives, except that any final contract or
18    agreement shall be subject to inspection and copying.
19        (q) Test questions, scoring keys, and other
20    examination data used to determine the qualifications of an
21    applicant for a license or employment.
22        (r) The records, documents, and information relating
23    to real estate purchase negotiations until those
24    negotiations have been completed or otherwise terminated.
25    With regard to a parcel involved in a pending or actually
26    and reasonably contemplated eminent domain proceeding

 

 

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1    under the Eminent Domain Act, records, documents and
2    information relating to that parcel shall be exempt except
3    as may be allowed under discovery rules adopted by the
4    Illinois Supreme Court. The records, documents and
5    information relating to a real estate sale shall be exempt
6    until a sale is consummated.
7        (s) Any and all proprietary information and records
8    related to the operation of an intergovernmental risk
9    management association or self-insurance pool or jointly
10    self-administered health and accident cooperative or pool.
11    Insurance or self insurance (including any
12    intergovernmental risk management association or self
13    insurance pool) claims, loss or risk management
14    information, records, data, advice or communications.
15        (t) Information contained in or related to
16    examination, operating, or condition reports prepared by,
17    on behalf of, or for the use of a public body responsible
18    for the regulation or supervision of financial
19    institutions or insurance companies, unless disclosure is
20    otherwise required by State law.
21        (u) Information that would disclose or might lead to
22    the disclosure of secret or confidential information,
23    codes, algorithms, programs, or private keys intended to be
24    used to create electronic or digital signatures under the
25    Electronic Commerce Security Act.
26        (v) Vulnerability assessments, security measures, and

 

 

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1    response policies or plans that are designed to identify,
2    prevent, or respond to potential attacks upon a community's
3    population or systems, facilities, or installations, the
4    destruction or contamination of which would constitute a
5    clear and present danger to the health or safety of the
6    community, but only to the extent that disclosure could
7    reasonably be expected to jeopardize the effectiveness of
8    the measures or the safety of the personnel who implement
9    them or the public. Information exempt under this item may
10    include such things as details pertaining to the
11    mobilization or deployment of personnel or equipment, to
12    the operation of communication systems or protocols, or to
13    tactical operations.
14        (w) (Blank).
15        (x) Maps and other records regarding the location or
16    security of generation, transmission, distribution,
17    storage, gathering, treatment, or switching facilities
18    owned by a utility, by a power generator, or by the
19    Illinois Power Agency.
20        (y) Information contained in or related to proposals,
21    bids, or negotiations related to electric power
22    procurement under Section 1-75 of the Illinois Power Agency
23    Act and Section 16-111.5 of the Public Utilities Act that
24    is determined to be confidential and proprietary by the
25    Illinois Power Agency or by the Illinois Commerce
26    Commission.

 

 

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1        (z) Information about students exempted from
2    disclosure under Sections 10-20.38 or 34-18.29 of the
3    School Code, and information about undergraduate students
4    enrolled at an institution of higher education exempted
5    from disclosure under Section 25 of the Illinois Credit
6    Card Marketing Act of 2009.
7        (aa) Information the disclosure of which is exempted
8    under the Viatical Settlements Act of 2009.
9        (bb) Records and information provided to a mortality
10    review team and records maintained by a mortality review
11    team appointed under the Department of Juvenile Justice
12    Mortality Review Team Act.
13        (cc) Information regarding interments, entombments, or
14    inurnments of human remains that are submitted to the
15    Cemetery Oversight Database under the Cemetery Care Act or
16    the Cemetery Oversight Act, whichever is applicable.
17        (dd) Correspondence and records (i) that may not be
18    disclosed under Section 11-9 of the Public Aid Code or (ii)
19    that pertain to appeals under Section 11-8 of the Public
20    Aid Code.
21        (ee) (dd) The names, addresses, or other personal
22    information of persons who are minors and are also
23    participants and registrants in programs of park
24    districts, forest preserve districts, conservation
25    districts, recreation agencies, and special recreation
26    associations.

 

 

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1        (ff) (ee) The names, addresses, or other personal
2    information of participants and registrants in programs of
3    park districts, forest preserve districts, conservation
4    districts, recreation agencies, and special recreation
5    associations where such programs are targeted primarily to
6    minors.
7        (gg) Matters under seal pursuant to subsection (f) of
8    Section 3-9008 of the Counties Code.
9    (2) A public record that is not in the possession of a
10public body but is in the possession of a party with whom the
11agency has contracted to perform a governmental function on
12behalf of the public body, and that directly relates to the
13governmental function and is not otherwise exempt under this
14Act, shall be considered a public record of the public body,
15for purposes of this Act.
16    (3) This Section does not authorize withholding of
17information or limit the availability of records to the public,
18except as stated in this Section or otherwise provided in this
19Act.
20(Source: P.A. 96-261, eff. 1-1-10; 96-328, eff. 8-11-09;
2196-542, eff. 1-1-10; 96-558, eff. 1-1-10; 96-736, eff. 7-1-10;
2296-863, eff. 3-1-10; 96-1378, eff. 7-29-10; 97-333, eff.
238-12-11; 97-385, eff. 8-15-11; 97-452, eff. 8-19-11; revised
249-2-11.)
 
25    Section 10. The Counties Code is amended by changing

 

 

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1Section 3-9008 as follows:
 
2    (55 ILCS 5/3-9008)  (from Ch. 34, par. 3-9008)
3    Sec. 3-9008. Appointment of attorney to perform duties of
4the State's attorney.
5    (a) Appointment of attorney to perform duties. Upon the
6filing of a verified petition alleging that a State's Attorney
7is unable to perform at least one of the duties of his or her
8office either by an officer of the court or by any resident of
9a county where the State's Attorney serves, the court shall
10determine whether there are sufficient facts that justify the
11appointment of a competent attorney or attorneys to serve as
12special prosecutors to perform those duties of the State's
13Attorney. Upon notice to the State's Attorney and an
14opportunity to be heard, the court may rule either based upon
15the pleadings or by conducting a hearing. If the court
16determines by clear and convincing evidence that the State's
17Attorney is unable to perform at least one of the duties of his
18or her office, the court shall appoint a special prosecutor or
19prosecutors and define the scope and duration of their
20appointment. A verified pleading filed by the State's Attorney
21agreeing to the appointment of a special prosecutor shall be
22sufficient evidence as to the necessity for the appointment of
23a special prosecutor or prosecutors.
24    (b) In appointing a special prosecutor or prosecutors based
25upon a petition alleging an inability of the State's Attorney

 

 

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1to perform his or her duties as to particular matters because
2he or she has a conflict of interest, either actual or by
3appearance, the court shall give preference to attorneys of any
4existing State or local prosecutorial agencies that are willing
5and able to serve as appointed special prosecutors, without
6additional compensation, except as to expenses and experts, and
7shall appoint such an attorney unless the court makes a
8specific finding that no such attorney is available or that the
9interests of justice clearly necessitate the appointment of a
10special prosecutor unconnected with an existing prosecutorial
11agency. Upon such a finding, the court may appoint other
12private counsel as it deems necessary, subject to the
13provisions of subsection (d) of this Section.
14    (c) In appointing a special prosecutor or prosecutors based
15upon a petition alleging a declared vacancy in office or an
16inability of the State's Attorney to perform his or her duties
17generally due to an absence from the county or because he or
18she is otherwise unavailable for an extended period of time, or
19because the State's Attorney is suffering from a physical,
20mental, or legal disability that impairs his or her ability to
21substantially perform his or her duties, the court may appoint
22a special prosecutor or prosecutors who shall be authorized to
23act as the State's Attorney until (i) the elected State's
24Attorney files a petition alleging that the circumstances
25justifying the order of appointment of a special prosecutor
26have abated or (ii) a vacancy is declared in the office of

 

 

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1State's Attorney and subsequently filled in accordance with the
2provisions of the Election Code. Upon a determination of the
3court that the allegations contained with the provisions of the
4State's Attorney's petition are proven by a preponderance of
5the evidence or that the vacancy has been filled in accordance
6with the Election Code, the court shall issue an order
7terminating the appointment of the special prosecutor or
8prosecutors and re-authorizing the State's Attorney to resume
9his or her duties.
10    (d) Representation budgets. When the court appoints
11counsel as provided in subsection (b) of this Section other
12than an appointment of an attorney from an existing State or
13local prosecutorial agency, it shall require the special
14prosecutor, after he or she has had adequate time to review the
15scope of his or her appointment and prior to initiating
16representation, to submit a proposed estimated budget for court
17approval, that will be subject to modification in light of
18facts that emerge as the case proceeds. The budget shall be
19submitted ex parte and filed and maintained under seal in order
20to protect the interests of the State. Petitions for
21compensation of the special prosecutors shall be as provided
22under subsection (e) of this Section. An order of the court
23regarding a proposed budget shall be a final and appealable
24order.
25    The budget shall be incorporated into a sealed initial
26pretrial order that reflects the understandings of the court

 

 

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1and special prosecutor regarding all matters affecting the
2special prosecutor's compensation and reimbursement and
3payments for investigative, expert, and other services,
4including but not limited to, the following matters:
5        (1) the hourly rate at which the special prosecutor
6    will be compensated;
7        (2) the hourly rate and anticipated time that private
8    investigators, experts, and other support staff, including
9    any potential subcontractors, will be contracted, other
10    than investigators and experts employed by law enforcement
11    or other agencies of government; along with an explanation
12    as to why the use of existing law enforcement agencies is
13    not adequate; and
14        (3) the best preliminary estimate that can be made of
15    the cost of all services, including but not limited to,
16    attorneys, experts, support staff, and investigative
17    services that are likely to be needed through the
18    completion of the representation; the court shall have
19    discretion to require that budgets be prepared for shorter
20    intervals of time.
21    Attorneys appointed under this Section may obtain, subject
22to later review, investigative, expert, or other services
23without prior authorization if necessary for adequate
24representation. If those services are obtained, the presiding
25judge or the presiding judge's designee shall consider in a
26closed ex parte proceeding that timely procurement of necessary

 

 

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1services could not await prior authorization. If an ex parte
2hearing is requested by the special prosecutor or deemed
3necessary by the judge prior to modifying a budget, an ex parte
4hearing shall be held. The judge may then approve payment as if
5previously budgeted. If the judge finds that the services could
6have been reasonably provided by existing law enforcement
7agencies or were not otherwise reasonable, payment shall be
8reduced or denied.
9    An approved budget shall guide the special prosecutor's use
10of time and resources by indicating the services for which
11compensation is authorized. The representation budget shall be
12re-evaluated when justified by changed or unexpected
13circumstances and shall be modified by the court when
14reasonable and necessary for an adequate representation. If a
15closed ex parte hearing is requested by the special prosecutor
16or deemed necessary by the appointing judge prior to modifying
17a budget, the ex parte hearing shall be held before the
18appointing judge.
19    Special prosecutors may periodically during the course of
20representation petition the Court for payment of reasonable and
21necessary expenses including, but not limited to, travel,
22support staff, copying, investigatory and other assistance,
23expert, forensic, and other witnesses. The Court shall not
24authorize payment of bills that are not properly itemized.
25Travel expenses must be paid at the rate as established by the
26county or by rules promulgated by the Central Management

 

 

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1Services for those expenses, whichever is less, for the date
2and location in which they were incurred, unless extraordinary
3reasons are shown for the difference. If the expenses are in
4excess of the promulgated rate or in excess of the budgeted
5amounts, the court must make a specific finding that the
6expenses were reasonable and necessary to the representation.
7    The court shall issue a written order approving the
8petition for payment or with written objections under seal. The
9petitioner has 7 days from his or her receipt of the objections
10by the court to file a sealed response. With or without a
11closed ex parte hearing, the court must promptly rule on the
12objections. An order of the court regarding a petition for
13certification of expenses shall be a final and appealable
14order.
15    (e) Compensation of special prosecutors. Special
16prosecutors appointed under the provisions of subsection (b) of
17this Section shall be compensated upon presentment and written
18certification by the court of a claim for payment for services,
19detailing the date, activity, and time duration for which
20compensation is sought. Compensation for special prosecutors
21shall be consistent with the approved representation budget and
22may be paid at a reasonable rate not to exceed $165 per hour.
23    Special prosecutors appointed under the provisions of
24subsection (c) of this Section shall be compensated upon
25presentment to and certification by the court of a claim for
26services detailing the date, activities, and time duration for

 

 

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1which compensation is sought. Upon appointment, the court shall
2determine the hourly rate of compensation applicable to the
3appointment. In determining the hourly rate, the court shall
4consider the annual salary for a sworn State's Attorney in the
5county and divide that sum by the number of hours regularly
6worked within the county during the usual pay period. However,
7in no event shall the compensation for a special prosecutor
8exceed one-twelfth of the annual salary of the State's Attorney
9in the county within any calendar month. Subject to other
10provisions of law, all compensation due and owing to the sworn
11State's Attorney shall be tolled pending the issuance of a
12subsequent court order re-authorizing the sworn State's
13Attorney to resume his or her duties. A request for payment
14shall be presented under the provisions of subsection (f).
15    (f) Hearings. All hearings on establishment and
16modification of a proposed budget, payment of expenses, or
17compensation shall be closed and except as provided herein,
18conducted ex parte, with a court reporter present.
19    The county may petition the court for appointment of a
20legal representative solely on the issue of protecting the
21county's financial interests. Unless the court determines that
22good cause exists to deny the appointment, a legal
23representative shall be appointed and have standing before the
24court as to the adoption and modification of a proposed budget,
25as well as payments either pursuant to the budget or otherwise.
26If the court conducts an ex parte hearing, the county's legal

 

 

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1representative shall be permitted to notice and an opportunity
2to be heard. In addition, the county shall be entitled to
3appeal any final order of the court as to these matters.
4Subject to court approval, the county's legal representative
5shall not disclose the contents of any sealed document or
6subject matter of any closed ex parte hearing.
7    All pleadings and attachments filed pursuant this
8subsection shall be under seal. In exercising his or her rights
9under this Section, the county's legal representative shall be
10permitted to inspect any petitions or attachments filed by the
11special prosecutor under seal and file objections under seal
12thereto. Subject to court approval, the county's legal
13representative may obtain a copy of petitions or attachments
14filed by the special prosecutor. Matters submitted under seal
15shall remain so, until the appointing court certifies that the
16subject of the appointment has concluded. Matters under seal
17are not subject to the Freedom of Information Act.
18Whenever the State's attorney is sick or absent, or unable to
19attend, or is interested in any cause or proceeding, civil or
20criminal, which it is or may be his duty to prosecute or
21defend, the court in which said cause or proceeding is pending
22may appoint some competent attorney to prosecute or defend such
23cause or proceeding, and the attorney so appointed shall have
24the same power and authority in relation to such cause or
25proceeding as the State's attorney would have had if present
26and attending to the same, and in case of a vacancy of more

 

 

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1than one year occurring in any county in the office of State's
2attorney, by death, resignation or otherwise, and it becomes
3necessary for the transaction of the public business, that some
4competent attorney act as State's attorney in and for such
5county during the period between the time of the occurrence of
6such vacancy and the election and qualification of a State's
7attorney, as provided by law, the vacancy shall be filled upon
8the written request of a majority of the circuit judges of the
9circuit in which is located the county where such vacancy
10exists, by appointment as provided in The Election Code of some
11competent attorney to perform and discharge all the duties of a
12State's attorney in the said county, such appointment and all
13authority thereunder to cease upon the election and
14qualification of a State's attorney, as provided by law. Any
15attorney appointed for any reason under this Section shall
16possess all the powers and discharge all the duties of a
17regularly elected State's attorney under the laws of the State
18to the extent necessary to fulfill the purpose of such
19appointment, and shall be paid by the county he serves not to
20exceed in any one period of 12 months, for the reasonable
21amount of time actually expended in carrying out the purpose of
22such appointment, the same compensation as provided by law for
23the State's attorney of the county, apportioned, in the case of
24lesser amounts of compensation, as to the time of service
25reasonably and actually expended.
26(Source: P.A. 86-962.)".