Full Text of SB2370 99th General Assembly
SB2370sam003 99TH GENERAL ASSEMBLY | Sen. Patricia Van Pelt Filed: 5/4/2016
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| 1 | | AMENDMENT TO SENATE BILL 2370
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2370, AS AMENDED, | 3 | | by replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Counties Code is amended by changing | 6 | | Section 3-4006 as follows:
| 7 | | (55 ILCS 5/3-4006) (from Ch. 34, par. 3-4006)
| 8 | | Sec. 3-4006. Duties of public defender. The Public | 9 | | Defender, as
directed by the court, shall act as attorney, | 10 | | without fee, before any court
within any county for all persons | 11 | | who are held in custody or who are
charged with the commission | 12 | | of any criminal offense, and who the court
finds are unable to | 13 | | employ counsel.
| 14 | | The Public Defender shall be the attorney, without fee, | 15 | | when so appointed
by the court under Section 1-20 of the | 16 | | Juvenile Court Act or Section 1-5 of
the Juvenile Court Act of |
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| 1 | | 1987 or by any court under Section 5(b) of the
Parental Notice | 2 | | of Abortion Act of 1983 for any party who the court finds
is | 3 | | financially unable to employ counsel.
| 4 | | In cases subject to Section 5-170 of the Juvenile Court Act | 5 | | of 1987 involving a minor who was under 15 years of age at the | 6 | | time of the commission of the offense, that occurs in a county | 7 | | with a full-time public defender office, a public defender, | 8 | | without fee or appointment, may represent and have access to a | 9 | | minor during a custodial interrogation. In cases subject to | 10 | | Section 5-170 of the Juvenile Court Act of 1987 involving a | 11 | | minor who was under 15 years of age at the time of the | 12 | | commission of the offense, that occurs in a county without a | 13 | | full-time public defender, the law enforcement agency | 14 | | conducting the custodial interrogation shall ensure that the | 15 | | minor is able to consult with an attorney who is under contract | 16 | | with the county to provide public defender services. | 17 | | Representation by the public defender shall terminate at the | 18 | | first court appearance if the court determines that the minor | 19 | | is not indigent. | 20 | | Every court shall, with the consent of the defendant and | 21 | | where the court
finds that the rights of the defendant would be | 22 | | prejudiced by the
appointment of the public defender, appoint | 23 | | counsel other than the public
defender, except as otherwise | 24 | | provided in Section 113-3 of the
"Code of Criminal Procedure of | 25 | | 1963". That counsel shall be compensated
as is provided by law. | 26 | | He shall also, in the case of the conviction of
any such |
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| 1 | | person, prosecute any proceeding in review which in his
| 2 | | judgment the interests of justice require.
| 3 | | (Source: P.A. 86-962.)
| 4 | | Section 10. The Juvenile Court Act of 1987 is amended by | 5 | | changing Sections 5-170 and 5-401.5 as follows:
| 6 | | (705 ILCS 405/5-170)
| 7 | | Sec. 5-170. Representation by counsel.
| 8 | | (a) In a proceeding
under this Article, a minor who was | 9 | | under 15 13 years of age at the time of the
commission of an act | 10 | | that if committed by an adult would be a violation of
Section | 11 | | 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30, | 12 | | 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15, or | 13 | | 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 | 14 | | must be represented by counsel throughout
during the entire | 15 | | custodial interrogation of the minor. | 16 | | (b) In a judicial proceeding
under this Article, a minor | 17 | | may not waive the right to the assistance of counsel in his or | 18 | | her defense.
| 19 | | (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
| 20 | | (705 ILCS 405/5-401.5)
| 21 | | Sec. 5-401.5. When statements by minor may be used.
| 22 | | (a) In this Section, "custodial interrogation" means any | 23 | | interrogation
(i) during which a reasonable person in the |
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| 1 | | subject's position
would consider himself or herself to be in | 2 | | custody and (ii) during which
a
question is asked that is | 3 | | reasonably likely to elicit an incriminating
response.
| 4 | | In this Section, "electronic recording" includes motion | 5 | | picture,
audiotape, videotape, or digital recording.
| 6 | | In this Section, "place of detention" means a building
or a | 7 | | police station that is a place of operation for a municipal | 8 | | police
department or county sheriff department or other law | 9 | | enforcement agency
at which persons are or may be held in | 10 | | detention in
connection with criminal charges against those | 11 | | persons or allegations that
those
persons are delinquent | 12 | | minors.
| 13 | | (a-5) An oral, written, or sign language statement of a | 14 | | minor, who at the time of the commission of the offense was | 15 | | under 18 years of age, is presumed to be involuntarily made | 16 | | when the statement is obtained from the minor while the minor | 17 | | is subject to custodial interrogation by a law enforcement | 18 | | officer, State's Attorney, juvenile officer, or other public | 19 | | official or employee prior to the officer, State's Attorney, | 20 | | public official, or employee: | 21 | | (1) continuously reads to the minor, in its entirety | 22 | | and without stopping for purposes of a response from the | 23 | | minor or verifying comprehension, the following statement: | 24 | | "You have the right to remain silent. That means you do not | 25 | | have to say anything. Anything you do say can be used | 26 | | against you in court. You have the right to get help from a |
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| 1 | | lawyer. If you cannot pay for a lawyer, the court will get | 2 | | you one for free. You can ask for a lawyer at any time. You | 3 | | have the right to stop this interview at any time."; and | 4 | | (2) after reading the statement required by paragraph | 5 | | (1) of this subsection (a-5), the public official or | 6 | | employee shall ask the minor the following questions and | 7 | | wait for the minor's response to each question: | 8 | | (A) "Do you want to have a lawyer?" | 9 | | (B) "Do you want to talk to me?" | 10 | | (b) An oral, written, or sign language statement of a minor | 11 | | who, at the time
of the
commission of the offense was under the | 12 | | age of 18
years, made as a
result of a custodial interrogation | 13 | | conducted at a police station or other
place of detention on or | 14 | | after
the effective date of
this amendatory Act of the 99th | 15 | | 93rd General Assembly shall be presumed to be
inadmissible as | 16 | | evidence against the
minor in
any criminal proceeding or | 17 | | juvenile court proceeding,
for an act that if committed by an | 18 | | adult would be
a misdemeanor offense under Article 11 of the | 19 | | Criminal Code of 2012 or any felony offense brought under | 20 | | Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3,
of the | 21 | | Criminal Code of 1961 or the Criminal Code of 2012,
or under | 22 | | clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
| 23 | | unless:
| 24 | | (1) an electronic recording
is made of the custodial | 25 | | interrogation; and
| 26 | | (2) the recording is substantially accurate and not |
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| 1 | | intentionally altered.
| 2 | | (b-5) (Blank). Under the following circumstances, an oral, | 3 | | written, or sign language statement of a minor who, at the time
| 4 | | of the
commission of the offense was under the age of 17
years, | 5 | | made as a result of a custodial interrogation conducted at a | 6 | | police station or other place of detention shall be presumed to | 7 | | be inadmissible as evidence against the minor, unless an | 8 | | electronic recording is made of the custodial interrogation and | 9 | | the recording is substantially accurate and not intentionally | 10 | | altered: | 11 | | (1) in any criminal proceeding or juvenile court | 12 | | proceeding, for an act that if committed by an adult would | 13 | | be brought under Section 11-1.40 or 20-1.1 of the Criminal | 14 | | Code of 1961 or the Criminal Code of 2012, if the custodial | 15 | | interrogation was conducted on or after June 1, 2014; | 16 | | (2) in any criminal proceeding or juvenile court | 17 | | proceeding, for an act that if committed by an adult would | 18 | | be brought under Section 10-2, 18-4, or 19-6 of the | 19 | | Criminal Code of 1961 or the Criminal Code of 2012, if the | 20 | | custodial interrogation was conducted on or after June 1, | 21 | | 2015; and | 22 | | (3) in any criminal proceeding or juvenile court | 23 | | proceeding, for an act that if committed by an adult would | 24 | | be brought under Section 11-1.30 or 18-2 or subsection (e) | 25 | | of Section 12-3.05 of the Criminal Code of 1961 or the | 26 | | Criminal Code of 2012, if the custodial interrogation was |
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| 1 | | conducted on or after June 1, 2016. | 2 | | (b-10) If, during the course of an electronically recorded | 3 | | custodial interrogation conducted under this Section of a minor | 4 | | who, at the time
of the
commission of the offense was under the | 5 | | age of 18 17
years, the minor makes a statement that creates a | 6 | | reasonable suspicion to believe the minor has committed an act | 7 | | that if committed by an adult would be an offense other than an | 8 | | offense required to be recorded under subsection (b) or (b-5) , | 9 | | the interrogators may, without the minor's consent, continue to | 10 | | record the interrogation as it relates to the other offense | 11 | | notwithstanding any provision of law to the contrary. Any oral, | 12 | | written, or sign language statement of a minor made as a result | 13 | | of an interrogation under this subsection shall be presumed to | 14 | | be inadmissible as evidence against the minor in any criminal | 15 | | proceeding or juvenile court proceeding, unless the recording | 16 | | is substantially accurate and not intentionally altered. | 17 | | (c) Every electronic recording made under this Section
must | 18 | | be preserved
until such time as the
minor's adjudication
for | 19 | | any
offense relating to the statement is final and all direct | 20 | | and habeas corpus
appeals are
exhausted,
or the prosecution of | 21 | | such offenses is barred by law.
| 22 | | (d) If the court finds, by a preponderance of the evidence, | 23 | | that the
minor
was
subjected to a custodial interrogation in | 24 | | violation of this Section,
then any statements made
by the
| 25 | | minor during or following that non-recorded custodial | 26 | | interrogation, even
if
otherwise in compliance with this |
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| 1 | | Section, are presumed to be inadmissible in
any criminal
| 2 | | proceeding or juvenile court proceeding against the minor | 3 | | except for the
purposes of impeachment.
| 4 | | (e) Nothing in this Section precludes the admission (i) of | 5 | | a statement made
by the
minor in open court in any criminal | 6 | | proceeding or juvenile court proceeding,
before a grand jury, | 7 | | or
at a
preliminary hearing,
(ii) of a
statement made during a
| 8 | | custodial interrogation that was not recorded as required by
| 9 | | this
Section because electronic recording was not feasible, | 10 | | (iii) of a
voluntary
statement,
whether or not the result of a | 11 | | custodial interrogation, that has a bearing on
the
credibility | 12 | | of the accused as a witness, (iv)
of a spontaneous statement
| 13 | | that is not made in response to a question,
(v) of a statement | 14 | | made after questioning that is routinely
asked during the | 15 | | processing of the arrest of the suspect, (vi) of a statement
| 16 | | made during a custodial interrogation by a suspect who | 17 | | requests, prior to
making
the statement, to respond to the
| 18 | | interrogator's questions only if
an electronic recording is not | 19 | | made of the statement, provided that an
electronic
recording is | 20 | | made of the statement of agreeing to respond to
the | 21 | | interrogator's question, only if a recording is not made of the | 22 | | statement,
(vii)
of a statement made
during a custodial
| 23 | | interrogation that is conducted out-of-state,
(viii)
of a
| 24 | | statement given in violation of subsection (b) at a time when | 25 | | the interrogators are unaware that a death
has in fact | 26 | | occurred, (ix) (blank) of a statement given in violation of |
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| 1 | | subsection (b-5) at a time when the interrogators are unaware | 2 | | of facts and circumstances that would create probable cause to | 3 | | believe that the minor committed an act that if committed by an | 4 | | adult would be an offense required to be recorded under | 5 | | subsection (b-5) , or (x) of any
other statement that may be | 6 | | admissible under law. The State shall bear the
burden of | 7 | | proving, by a preponderance of the evidence, that one of the
| 8 | | exceptions described in this subsection (e) is applicable. | 9 | | Nothing in this
Section precludes the admission of a statement, | 10 | | otherwise inadmissible under
this Section, that is used only | 11 | | for impeachment and not as substantive
evidence.
| 12 | | (f) The presumption of inadmissibility of a statement made | 13 | | by a suspect at
a custodial interrogation at a police station | 14 | | or other place of detention may
be overcome by a preponderance | 15 | | of the evidence
that
the statement was voluntarily given and is | 16 | | reliable, based on the totality of
the
circumstances.
| 17 | | (g) Any electronic recording of any statement made by a | 18 | | minor during a
custodial interrogation that is compiled by any | 19 | | law enforcement agency as
required by this Section for the | 20 | | purposes of fulfilling the requirements of
this
Section shall | 21 | | be confidential and exempt from public inspection and copying, | 22 | | as
provided under Section 7 of the Freedom of Information Act, | 23 | | and the information
shall not be transmitted to anyone except | 24 | | as needed to comply with this
Section.
| 25 | | (h) A statement, admission, confession, or incriminating | 26 | | information made by or obtained from a minor related to the |
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| 1 | | instant offense, as part of any behavioral health screening, | 2 | | assessment, evaluation, or treatment, whether or not | 3 | | court-ordered, shall not be admissible as evidence against the | 4 | | minor on the issue of guilt only in the instant juvenile court | 5 | | proceeding. The provisions of this subsection (h) are in | 6 | | addition to and do not override any existing statutory and | 7 | | constitutional prohibition on the admission into evidence in | 8 | | delinquency proceedings of information obtained during | 9 | | screening, assessment, or treatment. | 10 | | (i) The changes made to this Section by Public Act 98-61 | 11 | | apply to statements of a minor made on or after January 1, 2014 | 12 | | (the effective date of Public Act 98-61). | 13 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14; | 14 | | 98-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
| 15 | | Section 15. The Code of Criminal Procedure of 1963 is | 16 | | amended by changing Section 103-2.1 as follows:
| 17 | | (725 ILCS 5/103-2.1)
| 18 | | Sec. 103-2.1. When statements by accused may be used.
| 19 | | (a) In this Section, "custodial interrogation" means any | 20 | | interrogation
during which (i) a reasonable person in the | 21 | | subject's position would consider
himself or herself to be in | 22 | | custody and (ii) during which
a question is asked that is | 23 | | reasonably likely to elicit an incriminating
response.
| 24 | | In this Section, "place of detention" means a building or a |
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| 1 | | police station
that is a place of operation for a municipal | 2 | | police department or county
sheriff department or other law | 3 | | enforcement agency, not a courthouse, that
is owned or operated | 4 | | by a
law enforcement agency at which persons are or may be held | 5 | | in detention in
connection with criminal charges against those | 6 | | persons.
| 7 | | In this Section, "electronic recording" includes motion | 8 | | picture,
audiotape, or videotape, or digital recording.
| 9 | | (a-5) An oral, written, or sign language statement of a | 10 | | minor, who at the time of the commission of the offense was | 11 | | under 18 years of age, is presumed to be involuntarily made | 12 | | when the statement is obtained from the minor while the minor | 13 | | is subject to custodial interrogation by a law enforcement | 14 | | officer, State's Attorney, juvenile officer, or other public | 15 | | official or employee prior to the officer, State's Attorney, | 16 | | public official, or employee: | 17 | | (1) continuously reads to the minor, in its entirety | 18 | | and without stopping for purposes of a response from the | 19 | | minor or verifying comprehension, the following statement: | 20 | | "You have the right to remain silent. That means you do not | 21 | | have to say anything. Anything you do say can be used | 22 | | against you in court. You have the right to get help from a | 23 | | lawyer. If you cannot pay for a lawyer, the court will get | 24 | | you one for free. You can ask for a lawyer at any time. You | 25 | | have the right to stop this interview at any time."; and | 26 | | (2) after reading the statement required by paragraph |
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| 1 | | (1) of this subsection (a-5), the public official or | 2 | | employee shall ask the minor the following questions and | 3 | | wait for the minor's response to each question: | 4 | | (A) "Do you want to have a lawyer?" | 5 | | (B) "Do you want to talk to me?" | 6 | | (a-10) An oral, written, or sign language statement of a | 7 | | minor, who at the time of the commission of the offense was | 8 | | under 18 years of age, made as a result of a custodial | 9 | | interrogation conducted at a police station or other place of | 10 | | detention on or after the effective date of this amendatory Act | 11 | | of the 99th General Assembly shall be presumed to be | 12 | | inadmissible as evidence in a criminal proceeding or a juvenile | 13 | | court proceeding for an act that if committed by an adult would | 14 | | be a misdemeanor offense under Article 11 of the Criminal Code | 15 | | of 2012 or a felony offense under the Criminal Code of 2012 | 16 | | unless: | 17 | | (1) an electronic recording is made of the custodial | 18 | | interrogation; and | 19 | | (2) the recording is substantially accurate and not | 20 | | intentionally altered. | 21 | | (b) An oral, written, or sign language statement of an | 22 | | accused made as a
result of a
custodial
interrogation conducted | 23 | | at a police station or other place of detention shall be | 24 | | presumed
to be inadmissible as
evidence against the
accused in | 25 | | any
criminal
proceeding brought under Section 9-1, 9-1.2, 9-2, | 26 | | 9-2.1, 9-3, 9-3.2, or 9-3.3
of the Criminal Code of 1961 or the |
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| 1 | | Criminal Code of 2012 or under clause (d)(1)(F) of Section | 2 | | 11-501 of the Illinois Vehicle Code
unless:
| 3 | | (1) an electronic recording
is made of the custodial | 4 | | interrogation; and
| 5 | | (2) the recording is substantially accurate and not | 6 | | intentionally altered.
| 7 | | (b-5) Under the following circumstances, an oral, written, | 8 | | or sign language statement of an accused made as a result of a | 9 | | custodial interrogation conducted at a police station or other | 10 | | place of detention shall be presumed to be inadmissible as | 11 | | evidence against the accused, unless an electronic recording is | 12 | | made of the custodial interrogation and the recording is | 13 | | substantially accurate and not intentionally altered: | 14 | | (1) in any criminal proceeding brought under Section | 15 | | 11-1.40 or 20-1.1 of the Criminal Code of 1961 or the | 16 | | Criminal Code of 2012, if the custodial interrogation was | 17 | | conducted on or after June 1, 2014; | 18 | | (2) in any criminal proceeding brought under Section | 19 | | 10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the | 20 | | Criminal Code of 2012, if the custodial interrogation was | 21 | | conducted on or after June 1, 2015; and | 22 | | (3) in any criminal proceeding brought under Section | 23 | | 11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the | 24 | | Criminal Code of 1961 or the Criminal Code of 2012, if the | 25 | | custodial interrogation was conducted on or after June 1, | 26 | | 2016. |
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| 1 | | (b-10) If, during the course of an electronically recorded | 2 | | custodial interrogation conducted under this Section, the | 3 | | accused makes a statement that creates a reasonable suspicion | 4 | | to believe the accused has committed an offense other than an | 5 | | offense required to be recorded under subsection (b) or (b-5), | 6 | | the interrogators may, without the accused's consent, continue | 7 | | to record the interrogation as it relates to the other offense | 8 | | notwithstanding any provision of law to the contrary. Any oral, | 9 | | written, or sign language statement of an accused made as a | 10 | | result of an interrogation under this subsection shall be | 11 | | presumed to be inadmissible as evidence against the accused in | 12 | | any criminal proceeding, unless the recording is substantially | 13 | | accurate and not intentionally altered. | 14 | | (c) Every electronic recording made under this Section
must | 15 | | be preserved
until such time as the
defendant's conviction
for | 16 | | any
offense relating to the statement is final and all direct | 17 | | and habeas corpus
appeals are
exhausted,
or the prosecution of | 18 | | such offenses is barred by law.
| 19 | | (d) If the court finds, by a preponderance of the evidence, | 20 | | that the
defendant
was
subjected to a custodial interrogation | 21 | | in violation of this Section, then any
statements made
by the
| 22 | | defendant during or following that non-recorded custodial | 23 | | interrogation, even
if
otherwise in compliance with this | 24 | | Section, are presumed to be inadmissible in
any criminal
| 25 | | proceeding against the defendant except for the purposes of | 26 | | impeachment.
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| 1 | | (e) Nothing in this Section precludes the admission (i) of | 2 | | a statement made
by the
accused in open court at his or her | 3 | | trial, before a grand jury, or at
a preliminary hearing, (ii)
| 4 | | of a
statement made during a
custodial interrogation that was | 5 | | not recorded as required by
this
Section, because electronic | 6 | | recording was not feasible, (iii) of a
voluntary
statement,
| 7 | | whether or not the result of a custodial interrogation, that | 8 | | has a bearing on
the
credibility of the accused as a witness,
| 9 | | (iv) of a spontaneous statement that is
not made in response to | 10 | | a question,
(v) of a statement made after questioning that is | 11 | | routinely
asked during the processing of the arrest of the | 12 | | suspect, (vi) of a statement
made
during a custodial | 13 | | interrogation by a suspect who requests, prior to making the
| 14 | | statement, to respond to the
interrogator's questions only if
| 15 | | an electronic recording is not made of the statement, provided | 16 | | that an
electronic
recording is made of the statement of | 17 | | agreeing to respond to
the interrogator's question, only if a | 18 | | recording is not made of the statement,
(vii) of a
statement | 19 | | made
during a custodial
interrogation that is conducted | 20 | | out-of-state, (viii)
of a statement
given in violation of | 21 | | subsection (b) at a time when the interrogators are unaware | 22 | | that a death has in fact
occurred, (ix) of a statement given in | 23 | | violation of subsection (b-5) at a time when the interrogators | 24 | | are unaware of facts and circumstances that would create | 25 | | probable cause to believe that the accused committed an offense | 26 | | required to be recorded under subsection (b-5), or (x) of any |
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| 1 | | other
statement that may be
admissible under law. The State | 2 | | shall bear the burden of proving, by a
preponderance of the | 3 | | evidence, that one of the exceptions described in this
| 4 | | subsection (e) is
applicable.
Nothing in
this Section precludes | 5 | | the admission of a statement, otherwise inadmissible
under
this | 6 | | Section, that is used only for impeachment and not as | 7 | | substantive
evidence.
| 8 | | (f) The presumption of inadmissibility of a statement made | 9 | | by a suspect at
a custodial interrogation at a police station | 10 | | or other place of detention may
be overcome by a preponderance | 11 | | of the evidence
that
the statement was voluntarily given and is | 12 | | reliable, based on the totality of
the
circumstances.
| 13 | | (g) Any electronic recording of any statement made by an | 14 | | accused during a
custodial interrogation that is compiled by | 15 | | any law enforcement agency as
required by this Section for the | 16 | | purposes of fulfilling the requirements of
this
Section shall | 17 | | be confidential and exempt from public inspection and copying, | 18 | | as
provided under Section 7 of the Freedom of Information Act, | 19 | | and the information
shall not be transmitted to anyone except | 20 | | as needed to comply with this
Section.
| 21 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)".
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