State of Illinois
91st General Assembly
Legislation

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[ Introduced ][ House Amendment 001 ]

91_HB3469eng

 
HB3469 Engrossed                              LRB9111302JMmbA

 1        AN ACT to amend the Freedom of Information Act.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Freedom of Information Act is amended  by
 5    changing Sections 9 and 11 and adding Sections 10.5 and 15 as
 6    follows:

 7        (5 ILCS 140/9) (from Ch. 116, par. 209)
 8        Sec.  9.   (a)  Each public body or head of a public body
 9    denying a request for public records shall notify  by  letter
10    the  person  making the request of the decision to deny such,
11    the reasons for the denial,  and  the  names  and  titles  or
12    positions  of  each  person responsible for the denial.  Each
13    notice of denial by a public  body  shall  also  inform  such
14    person of his right to appeal to the head of the public body.
15    Each  notice  of  denial of an appeal by the head of a public
16    body shall inform such  person  of  his  right   to  judicial
17    review  under   Section 11 and right to request review by the
18    Attorney General under Section 10.5 of  this Act.
19        (b)  When a request for public records is denied  on  the
20    grounds  that  the records are exempt under Section 7 of this
21    Act, the notice of denial shall specify the exemption claimed
22    to authorize the denial. Copies  of  all  notices  of  denial
23    shall  be  retained  by  each public body in a single central
24    office file that is open to the public and indexed  according
25    to  the  type  of  exemption  asserted  and,  to  the  extent
26    feasible, according to the types of records requested.
27    (Source: P.A. 83-1013.)

28        (5 ILCS 140/10.5 new)
29        Sec. 10.5.  Request for review of denial.
30        (a)  A  person  denied access to inspect or copy a public
 
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 1    record by the head of a public body may, prior to  filing  an
 2    action  under  Section 11, request a review of that denial by
 3    the Attorney General.  The request for  review  shall  be  in
 4    writing,  shall be signed by the requestor, and shall include
 5    a copy of the request for access to records, the appeal,  and
 6    any responses from the public body.
 7        (b)  Within  3  business  days  after receipt of a proper
 8    request for review, the Attorney  General  shall  notify  the
 9    public  body  of  his or her receipt of the request and shall
10    offer the public body an  opportunity  to  consult  upon  and
11    informally  mediate  or otherwise resolve the question of the
12    propriety of its denial.  If the public body is or is part of
13    a unit of local government or school district,  the  Attorney
14    General  shall,  at  the  same  time, also notify the State's
15    Attorney of the county in which the public  body's  principal
16    office is located.
17        (c)  The Attorney General shall have the powers necessary
18    to investigate the circumstances and propriety of the denial,
19    including, but not limited to, the power to:
20             (1)  issue  administrative  subpoenas  to compel the
21        production of documents or the presence of witnesses;
22             (2)  inspect records on the premises of  the  public
23        body  or where they are stored and inspect so much of the
24        public body's record keeping system as may  be  necessary
25        to determine the application of any exemption that may be
26        asserted by the public body;
27             (3)  require   affidavits   or  sworn  responses  to
28        interrogatories;
29             (4)  examine under oath any  person,  including  the
30        person  seeking  access  to  the records, or any officer,
31        member, employee, or other agent  of  a  public  body  in
32        connection  with  any question that may have, or may lead
33        to the discovery of other information that  may  have,  a
34        bearing on the public body's duty to disclose; and
 
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 1             (5)  bring  an action in the circuit court to compel
 2        compliance with an investigation under this Section.
 3        (d)  The Attorney General, who may accept written or oral
 4    legal argument  on  the  issues  presented,  shall  determine
 5    whether the denial was lawful under this Act and shall notify
 6    the  requestor,  the public body, and the appropriate State's
 7    Attorney of his or her opinion.
 8        (e)  If the requestor files suit under  Section  11  with
 9    respect  to  the same denial that is the subject of a pending
10    request for review, the requestor shall notify  the  Attorney
11    General,  and  the  pending  review  shall  terminate without
12    issuance of an opinion.
13        (f)  The Attorney General shall have the power  to  adopt
14    rules necessary to implement this Section.
15        (g)  The  Attorney General shall post his or her opinions
16    on the official World Wide Web home page of the Office of the
17    Attorney General and shall make them available for inspection
18    in his or her office.

19        (5 ILCS 140/11) (from Ch. 116, par. 211)
20        Sec. 11.  (a)  Any person denied  access  to  inspect  or
21    copy  any public record by the head of a public body may file
22    suit for  injunctive  or  declaratory  relief  regardless  of
23    whether  the  person  has  filed  a  request for review under
24    Section 10.5.
25        (b)  Where the denial is from the head of a  public  body
26    of  the State, suit may be filed in the circuit court for the
27    county where the public body  has  its  principal  office  or
28    where the person denied access resides.
29        (c)  Where  the denial is from the head of a municipality
30    or other public body, except as provided in subsection (b) of
31    this Section, suit may be filed in the circuit court for  the
32    county where the public body is located.
33        (d)  The  circuit  court  shall  have the jurisdiction to
 
HB3469 Engrossed            -4-               LRB9111302JMmbA
 1    enjoin the public body from withholding public records and to
 2    order  the  production  of  any  public  records   improperly
 3    withheld  from the person seeking access.  If the public body
 4    can show that exceptional circumstances exist, and  that  the
 5    body  is  exercising  due  diligence  in  responding  to  the
 6    request,  the  court  may  retain  jurisdiction and allow the
 7    agency additional time to complete its review of the records.
 8        (e)  On motion of the plaintiff, prior  to  or  after  in
 9    camera  inspection,  the court shall order the public body to
10    provide an index of the records  to  which  access  has  been
11    denied.  The index shall include the following:
12        (i)  A  description  of  the  nature  or contents of each
13    document withheld, or each deletion from a released document,
14    provided, however, that the public body shall not be required
15    to disclose the information which it asserts is exempt; and
16        (ii)  A statement of the exemption or exemptions  claimed
17    for each such deletion or withheld document.
18        (f)  In  any  action  considered  by the court, the court
19    shall consider the matter de novo, and shall conduct such  in
20    camera  examination  of  the  requested  records  as it finds
21    appropriate to determine if such records or any part  thereof
22    may  be withheld under any provision of this Act.  The burden
23    shall be on the public body to establish that its refusal  to
24    permit public inspection or copying is in accordance with the
25    provisions of this Act.
26        (g)  In  the  event of noncompliance with an order of the
27    court to disclose, the court may enforce  its  order  against
28    any  public  official  or  employee  so  ordered or primarily
29    responsible  for  such  noncompliance  through  the   court's
30    contempt powers.
31        (h)  Except  as  to  causes  the court considers to be of
32    greater importance, proceedings arising  under  this  Section
33    shall take precedence on the docket over all other causes and
34    be assigned for hearing and trial at the earliest practicable
 
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 1    date and expedited in every way.
 2        (i)  If  a person seeking the right to inspect or receive
 3    a copy  of  a  public  record  substantially  prevails  in  a
 4    proceeding  under  this  Section,  the  court  may award such
 5    person reasonable attorneys' fees if the court finds that the
 6    record or records in question  were  of  clearly  significant
 7    interest  to  the  general  public  and  that the public body
 8    lacked any  reasonable  basis  in  law  for  withholding  the
 9    record.
10    (Source: P.A. 85-1357.)

11        (5 ILCS 140/15 new)
12        Sec. 15.  Litigation costs and punitive damages.
13        (a)  The  court  may  assess against any party reasonable
14    attorney's  fees  and  other  litigation   costs   reasonably
15    incurred by any other party who substantially prevails in any
16    action  brought  in accordance with Section 11, provided that
17    litigation costs may be assessed against any private party or
18    parties bringing the action only:
19             (1)  if  the  Attorney   General   had   opined   in
20        accordance  with  Section  10.5 that the records were not
21        subject to disclosure; or
22             (2)  upon the court's determination that the  action
23        is  malicious  or frivolous in nature.  An action brought
24        consistent with an Attorney General opinion under Section
25        10.5 shall not be considered to be malicious or frivolous
26        in nature.
27        (b)  If the requestor substantially prevails  in  a  suit
28    seeking records that the Attorney General opined were subject
29    to  disclosure  in  accordance  with  Section 10.5, the court
30    shall award to the requestor, in addition  to  any  award  of
31    costs under subsection (a), punitive damages of up to $50 per
32    day  for  each day of delay in producing the records from the
33    date that the Attorney General's opinion was received by  the
 
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 1    public body.

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