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91_HB3469ham001
LRB9111302JMmbam02
1 AMENDMENT TO HOUSE BILL 3469
2 AMENDMENT NO. . Amend House Bill 3469 by replacing
3 the title with the following:
4 "AN ACT to amend the Freedom of Information Act."; and
5 by replacing everything after the enacting clause with the
6 following:
7 "Section 5. The Freedom of Information Act is amended by
8 changing Sections 9 and 11 and adding Sections 10.5 and 15 as
9 follows:
10 (5 ILCS 140/9) (from Ch. 116, par. 209)
11 Sec. 9. (a) Each public body or head of a public body
12 denying a request for public records shall notify by letter
13 the person making the request of the decision to deny such,
14 the reasons for the denial, and the names and titles or
15 positions of each person responsible for the denial. Each
16 notice of denial by a public body shall also inform such
17 person of his right to appeal to the head of the public body.
18 Each notice of denial of an appeal by the head of a public
19 body shall inform such person of his right to judicial
20 review under Section 11 and right to request review by the
21 Attorney General under Section 10.5 of this Act.
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1 (b) When a request for public records is denied on the
2 grounds that the records are exempt under Section 7 of this
3 Act, the notice of denial shall specify the exemption claimed
4 to authorize the denial. Copies of all notices of denial
5 shall be retained by each public body in a single central
6 office file that is open to the public and indexed according
7 to the type of exemption asserted and, to the extent
8 feasible, according to the types of records requested.
9 (Source: P.A. 83-1013.)
10 (5 ILCS 140/10.5 new)
11 Sec. 10.5. Request for review of denial.
12 (a) A person denied access to inspect or copy a public
13 record by the head of a public body may, prior to filing an
14 action under Section 11, request a review of that denial by
15 the Attorney General. The request for review shall be in
16 writing, shall be signed by the requestor, and shall include
17 a copy of the request for access to records, the appeal, and
18 any responses from the public body.
19 (b) Within 3 business days after receipt of a proper
20 request for review, the Attorney General shall notify the
21 public body of his or her receipt of the request and shall
22 offer the public body an opportunity to consult upon and
23 informally mediate or otherwise resolve the question of the
24 propriety of its denial. If the public body is or is part of
25 a unit of local government or school district, the Attorney
26 General shall, at the same time, also notify the State's
27 Attorney of the county in which the public body's principal
28 office is located.
29 (c) The Attorney General shall have the powers necessary
30 to investigate the circumstances and propriety of the denial,
31 including, but not limited to, the power to:
32 (1) issue administrative subpoenas to compel the
33 production of documents or the presence of witnesses;
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1 (2) inspect records on the premises of the public
2 body or where they are stored and inspect so much of the
3 public body's record keeping system as may be necessary
4 to determine the application of any exemption that may be
5 asserted by the public body;
6 (3) require affidavits or sworn responses to
7 interrogatories;
8 (4) examine under oath any person, including the
9 person seeking access to the records, or any officer,
10 member, employee, or other agent of a public body in
11 connection with any question that may have, or may lead
12 to the discovery of other information that may have, a
13 bearing on the public body's duty to disclose; and
14 (5) bring an action in the circuit court to compel
15 compliance with an investigation under this Section.
16 (d) The Attorney General, who may accept written or oral
17 legal argument on the issues presented, shall determine
18 whether the denial was lawful under this Act and shall notify
19 the requestor, the public body, and the appropriate State's
20 Attorney of his or her opinion.
21 (e) If the requestor files suit under Section 11 with
22 respect to the same denial that is the subject of a pending
23 request for review, the requestor shall notify the Attorney
24 General, and the pending review shall terminate without
25 issuance of an opinion.
26 (f) The Attorney General shall have the power to adopt
27 rules necessary to implement this Section.
28 (g) The Attorney General shall post his or her opinions
29 on the official World Wide Web home page of the Office of the
30 Attorney General and shall make them available for inspection
31 in his or her office.
32 (5 ILCS 140/11) (from Ch. 116, par. 211)
33 Sec. 11. (a) Any person denied access to inspect or
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1 copy any public record by the head of a public body may file
2 suit for injunctive or declaratory relief regardless of
3 whether the person has filed a request for review under
4 Section 10.5.
5 (b) Where the denial is from the head of a public body
6 of the State, suit may be filed in the circuit court for the
7 county where the public body has its principal office or
8 where the person denied access resides.
9 (c) Where the denial is from the head of a municipality
10 or other public body, except as provided in subsection (b) of
11 this Section, suit may be filed in the circuit court for the
12 county where the public body is located.
13 (d) The circuit court shall have the jurisdiction to
14 enjoin the public body from withholding public records and to
15 order the production of any public records improperly
16 withheld from the person seeking access. If the public body
17 can show that exceptional circumstances exist, and that the
18 body is exercising due diligence in responding to the
19 request, the court may retain jurisdiction and allow the
20 agency additional time to complete its review of the records.
21 (e) On motion of the plaintiff, prior to or after in
22 camera inspection, the court shall order the public body to
23 provide an index of the records to which access has been
24 denied. The index shall include the following:
25 (i) A description of the nature or contents of each
26 document withheld, or each deletion from a released document,
27 provided, however, that the public body shall not be required
28 to disclose the information which it asserts is exempt; and
29 (ii) A statement of the exemption or exemptions claimed
30 for each such deletion or withheld document.
31 (f) In any action considered by the court, the court
32 shall consider the matter de novo, and shall conduct such in
33 camera examination of the requested records as it finds
34 appropriate to determine if such records or any part thereof
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1 may be withheld under any provision of this Act. The burden
2 shall be on the public body to establish that its refusal to
3 permit public inspection or copying is in accordance with the
4 provisions of this Act.
5 (g) In the event of noncompliance with an order of the
6 court to disclose, the court may enforce its order against
7 any public official or employee so ordered or primarily
8 responsible for such noncompliance through the court's
9 contempt powers.
10 (h) Except as to causes the court considers to be of
11 greater importance, proceedings arising under this Section
12 shall take precedence on the docket over all other causes and
13 be assigned for hearing and trial at the earliest practicable
14 date and expedited in every way.
15 (i) If a person seeking the right to inspect or receive
16 a copy of a public record substantially prevails in a
17 proceeding under this Section, the court may award such
18 person reasonable attorneys' fees if the court finds that the
19 record or records in question were of clearly significant
20 interest to the general public and that the public body
21 lacked any reasonable basis in law for withholding the
22 record.
23 (Source: P.A. 85-1357.)
24 (5 ILCS 140/15 new)
25 Sec. 15. Litigation costs and punitive damages.
26 (a) The court may assess against any party reasonable
27 attorney's fees and other litigation costs reasonably
28 incurred by any other party who substantially prevails in any
29 action brought in accordance with Section 11, provided that
30 litigation costs may be assessed against any private party or
31 parties bringing the action only:
32 (1) if the Attorney General had opined in
33 accordance with Section 10.5 that the records were not
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1 subject to disclosure; or
2 (2) upon the court's determination that the action
3 is malicious or frivolous in nature. An action brought
4 consistent with an Attorney General opinion under Section
5 10.5 shall not be considered to be malicious or frivolous
6 in nature.
7 (b) If the requestor substantially prevails in a suit
8 seeking records that the Attorney General opined were subject
9 to disclosure in accordance with Section 10.5, the court
10 shall award to the requestor, in addition to any award of
11 costs under subsection (a), punitive damages of up to $50 per
12 day for each day of delay in producing the records from the
13 date that the Attorney General's opinion was received by the
14 public body.".