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Full Text of HB5742  100th General Assembly

HB5742 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5742

 

Introduced , by Rep. Scott Drury

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 140/2  from Ch. 116, par. 202
5 ILCS 140/7  from Ch. 116, par. 207
5 ILCS 140/9  from Ch. 116, par. 209
5 ILCS 140/9.5
5 ILCS 140/11  from Ch. 116, par. 211

    Amends the Freedom of Information Act. Changes the definition of "recurrent requester" to exclude requests made by members of the General Assembly and requests made to access and disseminate information pertaining to public policy and the administration of State government. Exempts from disclosure under the Act certain records in which opinions of a public body or its agents are expressed. Provides that the exemption does not apply if the records were produced in connection with the preparation of a report that is required to be publicly produced by an agency of the executive branch. Provides that the public body shall include with each denial of a request for public records an index that includes specified information. Provides that except in the case of a recurrent requester, a public body denying a request for public records shall place in an interest-bearing escrow account or other segregated account of the public body the sum of $7,500 for each request denied. Provides that the deposited funds shall remain in the account for a period of 60 days after the date of the public body's final denial of a request, or, if a requester has sought review of the denial or challenged the denial in court, until the review process has been completed or a final order has been entered. Provides that if a determination is made that the public body improperly denied a request to inspect or copy a public record, the deposited funds shall be awarded to the requester in addition to or as part of any other award. Makes other changes.


LRB100 18103 HEP 36383 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB5742LRB100 18103 HEP 36383 b

1    AN ACT concerning government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Freedom of Information Act is amended by
5changing Sections 2, 7, 9, 9.5, and 11 as follows:
 
6    (5 ILCS 140/2)  (from Ch. 116, par. 202)
7    Sec. 2. Definitions. As used in this Act:
8    (a) "Public body" means all legislative, executive,
9administrative, or advisory bodies of the State, state
10universities and colleges, counties, townships, cities,
11villages, incorporated towns, school districts and all other
12municipal corporations, boards, bureaus, committees, or
13commissions of this State, any subsidiary bodies of any of the
14foregoing including but not limited to committees and
15subcommittees thereof, and a School Finance Authority created
16under Article 1E of the School Code. "Public body" does not
17include a child death review team or the Illinois Child Death
18Review Teams Executive Council established under the Child
19Death Review Team Act, or a regional youth advisory board or
20the Statewide Youth Advisory Board established under the
21Department of Children and Family Services Statewide Youth
22Advisory Board Act.
23    (b) "Person" means any individual, corporation,

 

 

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1partnership, firm, organization or association, acting
2individually or as a group.
3    (c) "Public records" means all records, reports, forms,
4writings, letters, memoranda, books, papers, maps,
5photographs, microfilms, cards, tapes, recordings, electronic
6data processing records, electronic communications, recorded
7information and all other documentary materials pertaining to
8the transaction of public business, regardless of physical form
9or characteristics, having been prepared by or for, or having
10been or being used by, received by, in the possession of, or
11under the control of any public body.
12    (c-5) "Private information" means unique identifiers,
13including a person's social security number, driver's license
14number, employee identification number, biometric identifiers,
15personal financial information, passwords or other access
16codes, medical records, home or personal telephone numbers, and
17personal email addresses. Private information also includes
18home address and personal license plates, except as otherwise
19provided by law or when compiled without possibility of
20attribution to any person.
21    (c-10) "Commercial purpose" means the use of any part of a
22public record or records, or information derived from public
23records, in any form for sale, resale, or solicitation or
24advertisement for sales or services. For purposes of this
25definition, requests made by news media and non-profit,
26scientific, or academic organizations shall not be considered

 

 

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1to be made for a "commercial purpose" when the principal
2purpose of the request is (i) to access and disseminate
3information concerning news and current or passing events, (ii)
4for articles of opinion or features of interest to the public,
5or (iii) for the purpose of academic, scientific, or public
6research or education.
7    (d) "Copying" means the reproduction of any public record
8by means of any photographic, electronic, mechanical or other
9process, device or means now known or hereafter developed and
10available to the public body.
11    (e) "Head of the public body" means the president, mayor,
12chairman, presiding officer, director, superintendent,
13manager, supervisor or individual otherwise holding primary
14executive and administrative authority for the public body, or
15such person's duly authorized designee.
16    (f) "News media" means a newspaper or other periodical
17issued at regular intervals whether in print or electronic
18format, a news service whether in print or electronic format, a
19radio station, a television station, a television network, a
20community antenna television service, or a person or
21corporation engaged in making news reels or other motion
22picture news for public showing.
23    (g) "Recurrent requester", as used in Section 3.2 of this
24Act, means a person that, in the 12 months immediately
25preceding the request, has submitted to the same public body
26(i) a minimum of 50 requests for records, (ii) a minimum of 15

 

 

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1requests for records within a 30-day period, or (iii) a minimum
2of 7 requests for records within a 7-day period. For purposes
3of this definition, requests made by news media, and
4non-profit, scientific, or academic organizations, and members
5of the General Assembly shall not be considered in calculating
6the number of requests made in the time periods in this
7definition when the principal purpose of the requests is (i) to
8access and disseminate information concerning news and current
9or passing events, (ii) for articles of opinion or features of
10interest to the public, or (iii) for the purpose of academic,
11scientific, or public research or education, or (iv) to access
12and disseminate information pertaining to public policy and the
13administration of State government.
14    For the purposes of this subsection (g), "request" means a
15written document (or oral request, if the public body chooses
16to honor oral requests) that is submitted to a public body via
17personal delivery, mail, telefax, electronic mail, or other
18means available to the public body and that identifies the
19particular public record the requester seeks. One request may
20identify multiple records to be inspected or copied.
21    (h) "Voluminous request" means a request that: (i) includes
22more than 5 individual requests for more than 5 different
23categories of records or a combination of individual requests
24that total requests for more than 5 different categories of
25records in a period of 20 business days; or (ii) requires the
26compilation of more than 500 letter or legal-sized pages of

 

 

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1public records unless a single requested record exceeds 500
2pages. "Single requested record" may include, but is not
3limited to, one report, form, e-mail, letter, memorandum, book,
4map, microfilm, tape, or recording.
5    "Voluminous request" does not include a request made by
6news media and non-profit, scientific, or academic
7organizations if the principal purpose of the request is: (1)
8to access and disseminate information concerning news and
9current or passing events; (2) for articles of opinion or
10features of interest to the public; or (3) for the purpose of
11academic, scientific, or public research or education.
12    For the purposes of this subsection (h), "request" means a
13written document, or oral request, if the public body chooses
14to honor oral requests, that is submitted to a public body via
15personal delivery, mail, telefax, electronic mail, or other
16means available to the public body and that identifies the
17particular public record or records the requester seeks. One
18request may identify multiple individual records to be
19inspected or copied.
20    (i) "Severance agreement" means a mutual agreement between
21any public body and its employee for the employee's resignation
22in exchange for payment by the public body.
23(Source: P.A. 98-806, eff. 1-1-15; 98-1129, eff. 12-3-14;
2499-78, eff. 7-20-15; 99-478, eff. 6-1-16.)
 
25    (5 ILCS 140/7)  (from Ch. 116, par. 207)

 

 

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1    Sec. 7. Exemptions.
2    (1) When a request is made to inspect or copy a public
3record that contains information that is exempt from disclosure
4under this Section, but also contains information that is not
5exempt from disclosure, the public body may elect to redact the
6information that is exempt. The public body shall make the
7remaining information available for inspection and copying.
8Subject to this requirement, the following shall be exempt from
9inspection and copying:
10        (a) Information specifically prohibited from
11    disclosure by federal or State law or rules and regulations
12    implementing federal or State law.
13        (b) Private information, unless disclosure is required
14    by another provision of this Act, a State or federal law or
15    a court order.
16        (b-5) Files, documents, and other data or databases
17    maintained by one or more law enforcement agencies and
18    specifically designed to provide information to one or more
19    law enforcement agencies regarding the physical or mental
20    status of one or more individual subjects.
21        (c) Personal information contained within public
22    records, the disclosure of which would constitute a clearly
23    unwarranted invasion of personal privacy, unless the
24    disclosure is consented to in writing by the individual
25    subjects of the information. "Unwarranted invasion of
26    personal privacy" means the disclosure of information that

 

 

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1    is highly personal or objectionable to a reasonable person
2    and in which the subject's right to privacy outweighs any
3    legitimate public interest in obtaining the information.
4    The disclosure of information that bears on the public
5    duties of public employees and officials shall not be
6    considered an invasion of personal privacy.
7        (d) Records in the possession of any public body
8    created in the course of administrative enforcement
9    proceedings, and any law enforcement or correctional
10    agency for law enforcement purposes, but only to the extent
11    that disclosure would:
12            (i) interfere with pending or actually and
13        reasonably contemplated law enforcement proceedings
14        conducted by any law enforcement or correctional
15        agency that is the recipient of the request;
16            (ii) interfere with active administrative
17        enforcement proceedings conducted by the public body
18        that is the recipient of the request;
19            (iii) create a substantial likelihood that a
20        person will be deprived of a fair trial or an impartial
21        hearing;
22            (iv) unavoidably disclose the identity of a
23        confidential source, confidential information
24        furnished only by the confidential source, or persons
25        who file complaints with or provide information to
26        administrative, investigative, law enforcement, or

 

 

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1        penal agencies; except that the identities of
2        witnesses to traffic accidents, traffic accident
3        reports, and rescue reports shall be provided by
4        agencies of local government, except when disclosure
5        would interfere with an active criminal investigation
6        conducted by the agency that is the recipient of the
7        request;
8            (v) disclose unique or specialized investigative
9        techniques other than those generally used and known or
10        disclose internal documents of correctional agencies
11        related to detection, observation or investigation of
12        incidents of crime or misconduct, and disclosure would
13        result in demonstrable harm to the agency or public
14        body that is the recipient of the request;
15            (vi) endanger the life or physical safety of law
16        enforcement personnel or any other person; or
17            (vii) obstruct an ongoing criminal investigation
18        by the agency that is the recipient of the request.
19        (d-5) A law enforcement record created for law
20    enforcement purposes and contained in a shared electronic
21    record management system if the law enforcement agency that
22    is the recipient of the request did not create the record,
23    did not participate in or have a role in any of the events
24    which are the subject of the record, and only has access to
25    the record through the shared electronic record management
26    system.

 

 

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1        (e) Records that relate to or affect the security of
2    correctional institutions and detention facilities.
3        (e-5) Records requested by persons committed to the
4    Department of Corrections or a county jail if those
5    materials are available in the library of the correctional
6    facility or jail where the inmate is confined.
7        (e-6) Records requested by persons committed to the
8    Department of Corrections or a county jail if those
9    materials include records from staff members' personnel
10    files, staff rosters, or other staffing assignment
11    information.
12        (e-7) Records requested by persons committed to the
13    Department of Corrections if those materials are available
14    through an administrative request to the Department of
15    Corrections.
16        (e-8) Records requested by a person committed to the
17    Department of Corrections or a county jail, the disclosure
18    of which would result in the risk of harm to any person or
19    the risk of an escape from a jail or correctional
20    institution or facility.
21        (e-9) Records requested by a person in a county jail or
22    committed to the Department of Corrections containing
23    personal information pertaining to the person's victim or
24    the victim's family, including, but not limited to, a
25    victim's home address, home telephone number, work or
26    school address, work telephone number, social security

 

 

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1    number, or any other identifying information, except as may
2    be relevant to a requester's current or potential case or
3    claim.
4        (e-10) Law enforcement records of other persons
5    requested by a person committed to the Department of
6    Corrections or a county jail, including, but not limited
7    to, arrest and booking records, mug shots, and crime scene
8    photographs, except as these records may be relevant to the
9    requester's current or potential case or claim.
10        (f) Preliminary drafts, notes, recommendations,
11    memoranda and other records in which opinions of the public
12    body or its agents are expressed, or policies or actions
13    are formulated, except that a specific record or relevant
14    portion of a record shall not be exempt when the record is
15    publicly cited and identified by the head of the public
16    body. The exemption provided in this paragraph (f) extends
17    to all those records of officers and agencies of the
18    General Assembly that pertain to the preparation of
19    legislative documents. The exemption provided in this
20    paragraph (f) does not apply to preliminary drafts, notes,
21    recommendations, memoranda, and other records in which
22    opinions are expressed if the records were produced in
23    connection with the preparation of a report that is
24    required to be publicly produced by an agency of the
25    executive branch.
26        (g) Trade secrets and commercial or financial

 

 

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1    information obtained from a person or business where the
2    trade secrets or commercial or financial information are
3    furnished under a claim that they are proprietary,
4    privileged or confidential, and that disclosure of the
5    trade secrets or commercial or financial information would
6    cause competitive harm to the person or business, and only
7    insofar as the claim directly applies to the records
8    requested.
9        The information included under this exemption includes
10    all trade secrets and commercial or financial information
11    obtained by a public body, including a public pension fund,
12    from a private equity fund or a privately held company
13    within the investment portfolio of a private equity fund as
14    a result of either investing or evaluating a potential
15    investment of public funds in a private equity fund. The
16    exemption contained in this item does not apply to the
17    aggregate financial performance information of a private
18    equity fund, nor to the identity of the fund's managers or
19    general partners. The exemption contained in this item does
20    not apply to the identity of a privately held company
21    within the investment portfolio of a private equity fund,
22    unless the disclosure of the identity of a privately held
23    company may cause competitive harm.
24        Nothing contained in this paragraph (g) shall be
25    construed to prevent a person or business from consenting
26    to disclosure.

 

 

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1        (h) Proposals and bids for any contract, grant, or
2    agreement, including information which if it were
3    disclosed would frustrate procurement or give an advantage
4    to any person proposing to enter into a contractor
5    agreement with the body, until an award or final selection
6    is made. Information prepared by or for the body in
7    preparation of a bid solicitation shall be exempt until an
8    award or final selection is made.
9        (i) Valuable formulae, computer geographic systems,
10    designs, drawings and research data obtained or produced by
11    any public body when disclosure could reasonably be
12    expected to produce private gain or public loss. The
13    exemption for "computer geographic systems" provided in
14    this paragraph (i) does not extend to requests made by news
15    media as defined in Section 2 of this Act when the
16    requested information is not otherwise exempt and the only
17    purpose of the request is to access and disseminate
18    information regarding the health, safety, welfare, or
19    legal rights of the general public.
20        (j) The following information pertaining to
21    educational matters:
22            (i) test questions, scoring keys and other
23        examination data used to administer an academic
24        examination;
25            (ii) information received by a primary or
26        secondary school, college, or university under its

 

 

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1        procedures for the evaluation of faculty members by
2        their academic peers;
3            (iii) information concerning a school or
4        university's adjudication of student disciplinary
5        cases, but only to the extent that disclosure would
6        unavoidably reveal the identity of the student; and
7            (iv) course materials or research materials used
8        by faculty members.
9        (k) Architects' plans, engineers' technical
10    submissions, and other construction related technical
11    documents for projects not constructed or developed in
12    whole or in part with public funds and the same for
13    projects constructed or developed with public funds,
14    including but not limited to power generating and
15    distribution stations and other transmission and
16    distribution facilities, water treatment facilities,
17    airport facilities, sport stadiums, convention centers,
18    and all government owned, operated, or occupied buildings,
19    but only to the extent that disclosure would compromise
20    security.
21        (l) Minutes of meetings of public bodies closed to the
22    public as provided in the Open Meetings Act until the
23    public body makes the minutes available to the public under
24    Section 2.06 of the Open Meetings Act.
25        (m) Communications between a public body and an
26    attorney or auditor representing the public body that would

 

 

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1    not be subject to discovery in litigation, and materials
2    prepared or compiled by or for a public body in
3    anticipation of a criminal, civil or administrative
4    proceeding upon the request of an attorney advising the
5    public body, and materials prepared or compiled with
6    respect to internal audits of public bodies.
7        (n) Records relating to a public body's adjudication of
8    employee grievances or disciplinary cases; however, this
9    exemption shall not extend to the final outcome of cases in
10    which discipline is imposed.
11        (o) Administrative or technical information associated
12    with automated data processing operations, including but
13    not limited to software, operating protocols, computer
14    program abstracts, file layouts, source listings, object
15    modules, load modules, user guides, documentation
16    pertaining to all logical and physical design of
17    computerized systems, employee manuals, and any other
18    information that, if disclosed, would jeopardize the
19    security of the system or its data or the security of
20    materials exempt under this Section.
21        (p) Records relating to collective negotiating matters
22    between public bodies and their employees or
23    representatives, except that any final contract or
24    agreement shall be subject to inspection and copying.
25        (q) Test questions, scoring keys, and other
26    examination data used to determine the qualifications of an

 

 

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1    applicant for a license or employment.
2        (r) The records, documents, and information relating
3    to real estate purchase negotiations until those
4    negotiations have been completed or otherwise terminated.
5    With regard to a parcel involved in a pending or actually
6    and reasonably contemplated eminent domain proceeding
7    under the Eminent Domain Act, records, documents and
8    information relating to that parcel shall be exempt except
9    as may be allowed under discovery rules adopted by the
10    Illinois Supreme Court. The records, documents and
11    information relating to a real estate sale shall be exempt
12    until a sale is consummated.
13        (s) Any and all proprietary information and records
14    related to the operation of an intergovernmental risk
15    management association or self-insurance pool or jointly
16    self-administered health and accident cooperative or pool.
17    Insurance or self insurance (including any
18    intergovernmental risk management association or self
19    insurance pool) claims, loss or risk management
20    information, records, data, advice or communications.
21        (t) Information contained in or related to
22    examination, operating, or condition reports prepared by,
23    on behalf of, or for the use of a public body responsible
24    for the regulation or supervision of financial
25    institutions or insurance companies, unless disclosure is
26    otherwise required by State law.

 

 

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1        (u) Information that would disclose or might lead to
2    the disclosure of secret or confidential information,
3    codes, algorithms, programs, or private keys intended to be
4    used to create electronic or digital signatures under the
5    Electronic Commerce Security Act.
6        (v) Vulnerability assessments, security measures, and
7    response policies or plans that are designed to identify,
8    prevent, or respond to potential attacks upon a community's
9    population or systems, facilities, or installations, the
10    destruction or contamination of which would constitute a
11    clear and present danger to the health or safety of the
12    community, but only to the extent that disclosure could
13    reasonably be expected to jeopardize the effectiveness of
14    the measures or the safety of the personnel who implement
15    them or the public. Information exempt under this item may
16    include such things as details pertaining to the
17    mobilization or deployment of personnel or equipment, to
18    the operation of communication systems or protocols, or to
19    tactical operations.
20        (w) (Blank).
21        (x) Maps and other records regarding the location or
22    security of generation, transmission, distribution,
23    storage, gathering, treatment, or switching facilities
24    owned by a utility, by a power generator, or by the
25    Illinois Power Agency.
26        (y) Information contained in or related to proposals,

 

 

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1    bids, or negotiations related to electric power
2    procurement under Section 1-75 of the Illinois Power Agency
3    Act and Section 16-111.5 of the Public Utilities Act that
4    is determined to be confidential and proprietary by the
5    Illinois Power Agency or by the Illinois Commerce
6    Commission.
7        (z) Information about students exempted from
8    disclosure under Sections 10-20.38 or 34-18.29 of the
9    School Code, and information about undergraduate students
10    enrolled at an institution of higher education exempted
11    from disclosure under Section 25 of the Illinois Credit
12    Card Marketing Act of 2009.
13        (aa) Information the disclosure of which is exempted
14    under the Viatical Settlements Act of 2009.
15        (bb) Records and information provided to a mortality
16    review team and records maintained by a mortality review
17    team appointed under the Department of Juvenile Justice
18    Mortality Review Team Act.
19        (cc) Information regarding interments, entombments, or
20    inurnments of human remains that are submitted to the
21    Cemetery Oversight Database under the Cemetery Care Act or
22    the Cemetery Oversight Act, whichever is applicable.
23        (dd) Correspondence and records (i) that may not be
24    disclosed under Section 11-9 of the Illinois Public Aid
25    Code or (ii) that pertain to appeals under Section 11-8 of
26    the Illinois Public Aid Code.

 

 

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1        (ee) The names, addresses, or other personal
2    information of persons who are minors and are also
3    participants and registrants in programs of park
4    districts, forest preserve districts, conservation
5    districts, recreation agencies, and special recreation
6    associations.
7        (ff) The names, addresses, or other personal
8    information of participants and registrants in programs of
9    park districts, forest preserve districts, conservation
10    districts, recreation agencies, and special recreation
11    associations where such programs are targeted primarily to
12    minors.
13        (gg) Confidential information described in Section
14    1-100 of the Illinois Independent Tax Tribunal Act of 2012.
15        (hh) The report submitted to the State Board of
16    Education by the School Security and Standards Task Force
17    under item (8) of subsection (d) of Section 2-3.160 of the
18    School Code and any information contained in that report.
19        (ii) Records requested by persons committed to or
20    detained by the Department of Human Services under the
21    Sexually Violent Persons Commitment Act or committed to the
22    Department of Corrections under the Sexually Dangerous
23    Persons Act if those materials: (i) are available in the
24    library of the facility where the individual is confined;
25    (ii) include records from staff members' personnel files,
26    staff rosters, or other staffing assignment information;

 

 

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1    or (iii) are available through an administrative request to
2    the Department of Human Services or the Department of
3    Corrections.
4        (jj) Confidential information described in Section
5    5-535 of the Civil Administrative Code of Illinois.
6    (1.5) Any information exempt from disclosure under the
7Judicial Privacy Act shall be redacted from public records
8prior to disclosure under this Act.
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. 99-298, eff. 8-6-15; 99-346, eff. 1-1-16; 99-642,
21eff. 7-28-16; 100-26, eff. 8-4-17; 100-201, eff. 8-18-17.)
 
22    (5 ILCS 140/9)  (from Ch. 116, par. 209)
23    Sec. 9. (a) Each public body denying a request for public
24records shall notify the requester in writing of the decision
25to deny the request, the reasons for the denial, including a

 

 

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1detailed factual basis for the application of any exemption
2claimed, and the names and titles or positions of each person
3responsible for the denial. Each notice of denial by a public
4body shall also inform such person of the right to review by
5the Public Access Counselor and provide the address and phone
6number for the Public Access Counselor. Each notice of denial
7shall inform such person of his right to judicial review under
8Section 11 of this Act.
9    (b) When a request for public records is denied on the
10grounds that the records are exempt under Section 7 of this
11Act, the notice of denial shall specify the exemption claimed
12to authorize the denial and the specific reasons for the
13denial, including a detailed factual basis and a citation to
14supporting legal authority. Copies of all notices of denial
15shall be retained by each public body in a single central
16office file that is open to the public and indexed according to
17the type of exemption asserted and, to the extent feasible,
18according to the types of records requested.
19    (c) Any person making a request for public records shall be
20deemed to have exhausted his or her administrative remedies
21with respect to that request if the public body fails to act
22within the time periods provided in Section 3 of this Act.
23    (d) The public body shall include with each denial of a
24request for public records an index that includes:
25        (i) a description of the nature of the contents of each
26    document withheld, or each deletion from a released

 

 

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1    document;
2        (ii) the date on which each document withheld was
3    created;
4        (iii) each author and recipient of each document
5    withheld;
6        (iv) a statement of the exemption or exemptions claimed
7    for each withheld document or each deletion in a released
8    document.
9    (e) A public body denying a request for public records
10shall place in an interest-bearing escrow account or other
11segregated account of the public body the sum of $7,500 for
12each request denied. The deposited funds shall remain in the
13account for a period of 60 days after the date of the public
14body's final denial of a request, or, if a requester has sought
15review under Section 9.5 of this Act or filed an action under
16Section 11 of this Act, until the review process has been
17completed or a final order has been entered. If a determination
18is made that the public body improperly denied a request to
19inspect or copy a public record, the deposited funds shall be
20awarded to the requester in addition to or as part of any other
21award. This paragraph (e) does not apply to requests made by a
22recurrent requester.
23(Source: P.A. 96-542, eff. 1-1-10.)
 
24    (5 ILCS 140/9.5)
25    Sec. 9.5. Public Access Counselor; opinions.

 

 

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1    (a) A person whose request to inspect or copy a public
2record is denied by a public body, except the General Assembly
3and committees, commissions, and agencies thereof, may file a
4request for review with the Public Access Counselor established
5in the Office of the Attorney General not later than 60 days
6after the date of the final denial. The request for review must
7be in writing, signed by the requester, and include (i) a copy
8of the request for access to records and (ii) any responses
9from the public body.
10    (b) A person whose request to inspect or copy a public
11record is made for a commercial purpose as defined in
12subsection (c-10) of Section 2 of this Act may not file a
13request for review with the Public Access Counselor. A person
14whose request to inspect or copy a public record was treated by
15the public body as a request for a commercial purpose under
16Section 3.1 of this Act may file a request for review with the
17Public Access Counselor for the limited purpose of reviewing
18whether the public body properly determined that the request
19was made for a commercial purpose.
20    (b-5) A person whose request to inspect or copy a public
21record was treated by a public body, except the General
22Assembly and committees, commissions, and agencies thereof, as
23a voluminous request under Section 3.6 of this Act may file a
24request for review with the Public Access Counselor for the
25purpose of reviewing whether the public body properly
26determined that the request was a voluminous request.

 

 

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1    (c) Upon receipt of a request for review, the Public Access
2Counselor shall determine whether further action is warranted.
3If the Public Access Counselor determines that the alleged
4violation is unfounded, he or she shall so advise the requester
5and the public body and no further action shall be undertaken.
6In all other cases, the Public Access Counselor shall forward a
7copy of the request for review to the public body within 7
8business days after receipt and shall specify the records or
9other documents that the public body shall furnish to
10facilitate the review. Within 7 business days after receipt of
11the request for review, the public body shall provide copies of
12records requested and shall otherwise fully cooperate with the
13Public Access Counselor. If a public body fails to furnish
14specified records pursuant to this Section, or if otherwise
15necessary, the Attorney General may issue a subpoena to any
16person or public body having knowledge of or records pertaining
17to a request for review of a denial of access to records under
18the Act. To the extent that records or documents produced by a
19public body contain information that is claimed to be exempt
20from disclosure under Section 7 of this Act, the Public Access
21Counselor shall not further disclose that information.
22    (d) Within 7 business days after it receives a copy of a
23request for review and request for production of records from
24the Public Access Counselor, the public body may, but is not
25required to, answer the allegations of the request for review.
26The answer may take the form of a letter, brief, or memorandum.

 

 

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1The Public Access Counselor shall forward a copy of the answer
2to the person submitting the request for review, with any
3alleged confidential information to which the request pertains
4redacted from the copy. The requester may, but is not required
5to, respond in writing to the answer within 7 business days and
6shall provide a copy of the response to the public body.
7    (e) In addition to the request for review, and the answer
8and the response thereto, if any, a requester or a public body
9may furnish affidavits or records concerning any matter germane
10to the review.
11    (f) Unless the Public Access Counselor extends the time by
12no more than 30 business days by sending written notice to the
13requester and the public body that includes a statement of the
14reasons for the extension in the notice, or decides to address
15the matter without the issuance of a binding opinion, the
16Attorney General shall examine the issues and the records,
17shall make findings of fact and conclusions of law, and shall
18issue to the requester and the public body an opinion in
19response to the request for review within 60 days after its
20receipt. The opinion shall be binding upon both the requester
21and the public body, subject to administrative review under
22Section 11.5.
23    In responding to any request under this Section 9.5, the
24Attorney General may exercise his or her discretion and choose
25to resolve a request for review by mediation or by a means
26other than the issuance of a binding opinion. The decision not

 

 

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1to issue a binding opinion shall not be reviewable.
2    Upon receipt of a binding opinion concluding that a
3violation of this Act has occurred, the public body shall
4either take necessary action immediately to comply with the
5directive of the opinion or shall initiate administrative
6review under Section 11.5. If the opinion concludes that no
7violation of the Act has occurred, the requester may initiate
8administrative review under Section 11.5.
9    Except as provided in subsection (e) of Section (9) of this
10Act, a A public body that discloses records in accordance with
11an opinion of the Attorney General is immune from all
12liabilities by reason thereof and shall not be liable for
13penalties under this Act.
14    (g) If the requester files suit under Section 11 with
15respect to the same denial that is the subject of a pending
16request for review, the requester shall notify the Public
17Access Counselor, and the Public Access Counselor shall take no
18further action with respect to the request for review and shall
19so notify the public body.
20    (h) The Attorney General may also issue advisory opinions
21to public bodies regarding compliance with this Act. A review
22may be initiated upon receipt of a written request from the
23head of the public body or its attorney, which shall contain
24sufficient accurate facts from which a determination can be
25made. The Public Access Counselor may request additional
26information from the public body in order to assist in the

 

 

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1review. A public body that relies in good faith on an advisory
2opinion of the Attorney General in responding to a request is
3not liable for penalties under this Act, so long as the facts
4upon which the opinion is based have been fully and fairly
5disclosed to the Public Access Counselor.
6(Source: P.A. 97-579, eff. 8-26-11; 98-1129, eff. 12-3-14.)
 
7    (5 ILCS 140/11)  (from Ch. 116, par. 211)
8    Sec. 11. (a) Any person denied access to inspect or copy
9any public record by a public body may file suit for injunctive
10or declaratory relief.
11    (a-5) In accordance with Section 11.6 of this Act, a
12requester may file an action to enforce a binding opinion
13issued under Section 9.5 of this Act.
14    (b) Where the denial is from a public body of the State,
15suit may be filed in the circuit court for the county where the
16public body has its principal office or where the person denied
17access resides.
18    (c) Where the denial is from a municipality or other public
19body, except as provided in subsection (b) of this Section,
20suit may be filed in the circuit court for the county where the
21public body is located.
22    (d) The circuit court shall have the jurisdiction to enjoin
23the public body from withholding public records and to order
24the production of any public records improperly withheld from
25the person seeking access. If the public body can show that

 

 

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1exceptional circumstances exist, and that the body is
2exercising due diligence in responding to the request, the
3court may retain jurisdiction and allow the agency additional
4time to complete its review of the records.
5    (e) On motion of the plaintiff, prior to or after in camera
6inspection, the court shall order the public body to provide an
7index of the records to which access has been denied. The index
8shall include the following:
9        (i) A description of the nature or contents of each
10    document withheld, or each deletion from a released
11    document, provided, however, that the public body shall not
12    be required to disclose the information which it asserts is
13    exempt; and
14        (ii) A statement of the exemption or exemptions claimed
15    for each such deletion or withheld document.
16    (f) In any action considered by the court, the court shall
17consider the matter de novo, and shall conduct such in camera
18examination of the requested records as it finds appropriate to
19determine if such records or any part thereof may be withheld
20under any provision of this Act. The burden shall be on the
21public body to establish that its refusal to permit public
22inspection or copying is in accordance with the provisions of
23this Act. Any public body that asserts that a record is exempt
24from disclosure has the burden of proving that it is exempt by
25clear and convincing evidence.
26    (g) In the event of noncompliance with an order of the

 

 

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1court to disclose, the court may enforce its order against any
2public official or employee so ordered or primarily responsible
3for such noncompliance through the court's contempt powers.
4    (h) Except as to causes the court considers to be of
5greater importance, proceedings arising under this Section
6shall take precedence on the docket over all other causes and
7be assigned for hearing and trial at the earliest practicable
8date and expedited in every way.
9    (i) If a person seeking the right to inspect or receive a
10copy of a public record prevails in a proceeding under this
11Section, the court shall award such person reasonable
12attorney's fees and costs. In determining what amount of
13attorney's fees is reasonable, the court shall consider the
14degree to which the relief obtained relates to the relief
15sought. The changes contained in this subsection apply to an
16action filed on or after January 1, 2010 (the effective date of
17Public Act 96-542).
18    (j) In accordance with the presumption set forth in Section
191.2 of this Act and good faith compliance with the Act, if If
20the court determines that a public body willfully and
21intentionally failed to comply with this Act, or otherwise
22acted in bad faith, the court shall also impose upon the public
23body a civil penalty of not less than $2,500 nor more than
24$5,000 for each occurrence. In assessing the civil penalty, the
25court shall consider in aggravation or mitigation the budget of
26the public body and whether the public body has previously been

 

 

HB5742- 29 -LRB100 18103 HEP 36383 b

1assessed penalties for violations of this Act. The court may
2impose an additional penalty of up to $1,000 for each day the
3violation continues if:
4        (1) the public body fails to comply with the court's
5    order after 30 days;
6        (2) the court's order is not on appeal or stayed; and
7        (3) the court does not grant the public body additional
8    time to comply with the court's order to disclose public
9    records.
10    The changes contained in this subsection made by Public Act
1196-542 apply to an action filed on or after January 1, 2010
12(the effective date of Public Act 96-542).
13    (k) The changes to this Section made by this amendatory Act
14of the 99th General Assembly apply to actions filed on or after
15the effective date of this amendatory Act of the 99th General
16Assembly.
17(Source: P.A. 99-586, eff. 1-1-17; 99-642, eff. 7-28-16.)