101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1216

 

Introduced 2/6/2019, by Sen. Thomas Cullerton

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 140/1.2
5 ILCS 140/11  from Ch. 116, par. 211

    Amends the Freedom of Information Act. Provides that a public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that release of the record would harm an interest protected by the asserted exemption. Removes the requirement that, before imposing specified civil penalties, the court find that a public body willfully and intentionally failed to comply with the Act or otherwise acted in bad faith. Provides that in assessing the civil penalty, the court shall consider in aggravation or mitigation, among other factors, whether the public body acted in bad faith and the extent to which the public body delayed the resolution of the request or lawsuit. Provides that, under specified circumstances, the court shall (rather than may) impose an additional penalty of up to $1,000 for each day the violation continues.


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A BILL FOR

 

SB1216LRB101 06259 HEP 51285 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 1.2 and 11 as follows:
 
6    (5 ILCS 140/1.2)
7    Sec. 1.2. Presumption. All records in the custody or
8possession of a public body are presumed to be open to
9inspection or copying. Any public body that asserts that a
10record is exempt from disclosure has the burden of proving by
11clear and convincing evidence that it is exempt and that
12release of the record would harm an interest protected by the
13asserted exemption.
14(Source: P.A. 96-542, eff. 1-1-10.)
 
15    (5 ILCS 140/11)  (from Ch. 116, par. 211)
16    Sec. 11. (a) Any person denied access to inspect or copy
17any public record by a public body may file suit for injunctive
18or declaratory relief.
19    (a-5) In accordance with Section 11.6 of this Act, a
20requester may file an action to enforce a binding opinion
21issued under Section 9.5 of this Act.
22    (b) Where the denial is from a public body of the State,

 

 

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1suit may be filed in the circuit court for the county where the
2public body has its principal office or where the person denied
3access resides.
4    (c) Where the denial is from a municipality or other public
5body, except as provided in subsection (b) of this Section,
6suit may be filed in the circuit court for the county where the
7public body is located.
8    (d) The circuit court shall have the jurisdiction to enjoin
9the public body from withholding public records and to order
10the production of any public records improperly withheld from
11the person seeking access. If the public body can show that
12exceptional circumstances exist, and that the body is
13exercising due diligence in responding to the request, the
14court may retain jurisdiction and allow the agency additional
15time to complete its review of the records.
16    (e) On motion of the plaintiff, prior to or after in camera
17inspection, the court shall order the public body to provide an
18index of the records to which access has been denied. The index
19shall include the following:
20        (i) A description of the nature or contents of each
21    document withheld, or each deletion from a released
22    document, provided, however, that the public body shall not
23    be required to disclose the information which it asserts is
24    exempt; and
25        (ii) A statement of the exemption or exemptions claimed
26    for each such deletion or withheld document.

 

 

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1    (f) In any action considered by the court, the court shall
2consider the matter de novo, and shall conduct such in camera
3examination of the requested records as it finds appropriate to
4determine if such records or any part thereof may be withheld
5under any provision of this Act. The burden shall be on the
6public body to establish that its refusal to permit public
7inspection or copying is in accordance with the provisions of
8this Act. Any public body that asserts that a record is exempt
9from disclosure has the burden of proving that it is exempt by
10clear and convincing evidence.
11    (g) In the event of noncompliance with an order of the
12court to disclose, the court may enforce its order against any
13public official or employee so ordered or primarily responsible
14for such noncompliance through the court's contempt powers.
15    (h) Except as to causes the court considers to be of
16greater importance, proceedings arising under this Section
17shall take precedence on the docket over all other causes and
18be assigned for hearing and trial at the earliest practicable
19date and expedited in every way.
20    (i) If a person seeking the right to inspect or receive a
21copy of a public record prevails in a proceeding under this
22Section, the court shall award such person reasonable
23attorney's fees and costs. In determining what amount of
24attorney's fees is reasonable, the court shall consider the
25degree to which the relief obtained relates to the relief
26sought. The changes contained in this subsection apply to an

 

 

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1action filed on or after January 1, 2010 (the effective date of
2Public Act 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
10been assessed penalties for violations of this Act, whether the
11public body acted in bad faith, and the extent to which the
12public body delayed the resolution of the request or lawsuit.
13The court shall may impose an additional penalty of up to
14$1,000 for each day the violation continues if:
15        (1) the public body fails to comply with the court's
16    order after 30 days;
17        (2) the court's order is not on appeal or stayed; and
18        (3) the court does not grant the public body additional
19    time to comply with the court's order to disclose public
20    records.
21    The changes contained in this subsection made by Public Act
2296-542 apply to an action filed on or after January 1, 2010
23(the effective date of Public Act 96-542).
24    (k) The changes to this Section made by this amendatory Act
25of the 99th General Assembly apply to actions filed on or after
26the effective date of this amendatory Act of the 99th General

 

 

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1Assembly.
2(Source: P.A. 99-586, eff. 1-1-17; 99-642, eff. 7-28-16.)