101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB2615

 

Introduced , by Rep. Amy Grant

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 120/3  from Ch. 102, par. 43
5 ILCS 140/11  from Ch. 116, par. 211

    Amends the Open Meetings Act and the Freedom of Information Act. Provides that "substantially prevails" and "prevails" mean: (1) the party obtains some of his or her requested relief through a judicial order in his or her favor or through any settlement agreement approved by the court; or (2) the pursuit of a nonfrivolous claim was a catalyst for a unilateral change in position by the opposing party relative to the relief sought.


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A BILL FOR

 

HB2615LRB101 09710 HEP 54809 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 Open Meetings Act is amended by changing
5Section 3 as follows:
 
6    (5 ILCS 120/3)  (from Ch. 102, par. 43)
7    Sec. 3. (a) Where the provisions of this Act are not
8complied with, or where there is probable cause to believe that
9the provisions of this Act will not be complied with, any
10person, including the State's Attorney of the county in which
11such noncompliance may occur, may bring a civil action in the
12circuit court for the judicial circuit in which the alleged
13noncompliance has occurred or is about to occur, or in which
14the affected public body has its principal office, prior to or
15within 60 days of the meeting alleged to be in violation of
16this Act or, if facts concerning the meeting are not discovered
17within the 60-day period, within 60 days of the discovery of a
18violation by the State's Attorney or, if the person timely
19files a request for review under Section 3.5, within 60 days of
20the decision by the Attorney General to resolve a request for
21review by a means other than the issuance of a binding opinion
22under subsection (e) of Section 3.5.
23    Records that are obtained by a State's Attorney from a

 

 

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1public body for purposes of reviewing whether the public body
2has complied with this Act may not be disclosed to the public.
3Those records, while in the possession of the State's Attorney,
4are exempt from disclosure under the Freedom of Information
5Act.
6    (b) In deciding such a case the court may examine in camera
7any portion of the minutes of a meeting at which a violation of
8the Act is alleged to have occurred, and may take such
9additional evidence as it deems necessary.
10    (c) The court, having due regard for orderly administration
11and the public interest, as well as for the interests of the
12parties, may grant such relief as it deems appropriate,
13including granting a relief by mandamus requiring that a
14meeting be open to the public, granting an injunction against
15future violations of this Act, ordering the public body to make
16available to the public such portion of the minutes of a
17meeting as is not authorized to be kept confidential under this
18Act, or declaring null and void any final action taken at a
19closed meeting in violation of this Act.
20    (d) The court may assess against any party, except a
21State's Attorney, reasonable attorney's fees and other
22litigation costs reasonably incurred by any other party who
23substantially prevails in any action brought in accordance with
24this Section, provided that costs may be assessed against any
25private party or parties bringing an action pursuant to this
26Section only upon the court's determination that the action is

 

 

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1malicious or frivolous in nature. As used in this Section,
2"substantially prevails" means: (1) the party obtains some of
3his or her requested relief through a judicial order in his or
4her favor or through any settlement agreement approved by the
5court; or (2) the pursuit of a nonfrivolous claim was a
6catalyst for a unilateral change in position by the opposing
7party relative to the relief sought.
8(Source: P.A. 99-714, eff. 8-5-16.)
 
9    Section 10. The Freedom of Information Act is amended by
10changing Section 11 as follows:
 
11    (5 ILCS 140/11)  (from Ch. 116, par. 211)
12    Sec. 11. (a) Any person denied access to inspect or copy
13any public record by a public body may file suit for injunctive
14or declaratory relief.
15    (a-5) In accordance with Section 11.6 of this Act, a
16requester may file an action to enforce a binding opinion
17issued under Section 9.5 of this Act.
18    (b) Where the denial is from a public body of the State,
19suit may be filed in the circuit court for the county where the
20public body has its principal office or where the person denied
21access resides.
22    (c) Where the denial is from a municipality or other public
23body, except as provided in subsection (b) of this Section,
24suit may be filed in the circuit court for the county where the

 

 

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

 

 

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1inspection or copying is in accordance with the provisions of
2this Act. Any public body that asserts that a record is exempt
3from disclosure has the burden of proving that it is exempt by
4clear and convincing evidence.
5    (g) In the event of noncompliance with an order of the
6court to disclose, the court may enforce its order against any
7public official or employee so ordered or primarily responsible
8for such noncompliance through the court's contempt powers.
9    (h) Except as to causes the court considers to be of
10greater importance, proceedings arising under this Section
11shall take precedence on the docket over all other causes and
12be assigned for hearing and trial at the earliest practicable
13date and expedited in every way.
14    (i) If a person seeking the right to inspect or receive a
15copy of a public record prevails in a proceeding under this
16Section, the court shall award such person reasonable
17attorney's fees and costs. In determining what amount of
18attorney's fees is reasonable, the court shall consider the
19degree to which the relief obtained relates to the relief
20sought. As used in this Section, "prevails" means: (1) the
21party obtains some of his or her requested relief through a
22judicial order in his or her favor or through any settlement
23agreement approved by the court; or (2) the pursuit of a
24nonfrivolous claim was a catalyst for a unilateral change in
25position by the opposing party relative to the relief sought.
26The changes contained in this subsection apply to an action

 

 

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1filed on or after January 1, 2010 (the effective date of Public
2Act 96-542).
3    (j) If the court determines that a public body willfully
4and intentionally failed to comply with this Act, or otherwise
5acted in bad faith, the court shall also impose upon the public
6body a civil penalty of not less than $2,500 nor more than
7$5,000 for each occurrence. In assessing the civil penalty, the
8court shall consider in aggravation or mitigation the budget of
9the public body and whether the public body has previously been
10assessed penalties for violations of this Act. The court may
11impose an additional penalty of up to $1,000 for each day the
12violation continues if:
13        (1) the public body fails to comply with the court's
14    order after 30 days;
15        (2) the court's order is not on appeal or stayed; and
16        (3) the court does not grant the public body additional
17    time to comply with the court's order to disclose public
18    records.
19    The changes contained in this subsection made by Public Act
2096-542 apply to an action filed on or after January 1, 2010
21(the effective date of Public Act 96-542).
22    (k) The changes to this Section made by this amendatory Act
23of the 99th General Assembly apply to actions filed on or after
24the effective date of this amendatory Act of the 99th General
25Assembly.
26(Source: P.A. 99-586, eff. 1-1-17; 99-642, eff. 7-28-16.)