HB5557 103RD GENERAL ASSEMBLY

LRB103 38850 AWJ 68987 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5557

Introduced 2/9/2024, by Rep. Tracy Katz Muhl

SYNOPSIS AS INTRODUCED:

5 ILCS 120/3.5
5 ILCS 140/9.5

Amends the Open Meetings Act and the Freedom of Information Act. Provides that the Public Access Counselor may investigate, gather data, and report on a public body for frequent violations of the Acts or for frequent violations of court orders for failure to comply with the Acts. Additionally allows the Public Access Counselor to, under the Freedom of Information Act, investigate, gather data, and report on a public body for failure to comply with that Act, for unreasonably denying a request under that Act, and for failure to adequately inform a requester why a request is denied under that Act. Provides that the Public Access Counselor may start an investigation after receiving a complaint from a person or sua sponte. Allows the Public Access Counselor to impose civil penalties if the Public Access Counselor's investigation finds that a public body has violated the provisions after a hearing with notice to the public body with an opportunity for the public body's representative to be heard. Provides that the Attorney General may enforce a penalty imposed by filing an action in circuit court. Requires the Attorney General to adopt rules to implement the provisions, including the procedures of the investigation and hearings and defining "frequent violation".

A BILL FOR

AN ACT concerning government.

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

Section 5. The Open Meetings Act is amended by changing Section 3.5 as follows:

(5 ILCS 120/3.5)

Sec. 3.5. Public Access Counselor; opinions.

(a) A person who believes that a violation of this Act by a public body has occurred may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the alleged violation. If facts concerning the violation are not discovered within the 60-day period, but are discovered at a later date, not exceeding 2 years after the alleged violation, by a person utilizing reasonable diligence, the request for review may be made within 60 days of the discovery of the alleged violation. The request for review must be in writing, must be signed by the requester, and must include a summary of the facts supporting the allegation. The changes made by this amendatory Act of the 99th General Assembly apply to violations alleged to have occurred at meetings held on or after the effective date of this amendatory Act of the 99th General Assembly.

(b) Upon receipt of a request for review, the Public Access Counselor shall determine whether further action is warranted. If the Public Access Counselor determines from the request for review that the alleged violation is unfounded, he or she shall so advise the requester and the public body and no further action shall be undertaken. In all other cases, the Public Access Counselor shall forward a copy of the request for review to the public body within 7 working days. The Public Access Counselor shall specify the records or other documents that the public body shall furnish to facilitate the review. Within 7 working days after receipt of the request for review, the public body shall provide copies of the records requested and shall otherwise fully cooperate with the Public Access Counselor. If a public body fails to furnish specified records pursuant to this Section, or if otherwise necessary, the Attorney General may issue a subpoena to any person or public body having knowledge of or records pertaining to an alleged violation of this Act. For purposes of conducting a thorough review, the Public Access Counselor has the same right to examine a verbatim recording of a meeting closed to the public or the minutes of a closed meeting as does a court in a civil action brought to enforce this Act.

(c) Within 7 working days after it receives a copy of a request for review and request for production of records from the Public Access Counselor, the public body may, but is not required to, answer the allegations of the request for review. The answer may take the form of a letter, brief, or memorandum. Upon request, the public body may also furnish the Public Access Counselor with a redacted copy of the answer excluding specific references to any matters at issue. The Public Access Counselor shall forward a copy of the answer or redacted answer, if furnished, to the person submitting the request for review. The requester may, but is not required to, respond in writing to the answer within 7 working days and shall provide a copy of the response to the public body.

(d) In addition to the request for review, and the answer and the response thereto, if any, a requester or a public body may furnish affidavits and records concerning any matter germane to the review.

(e) Unless the Public Access Counselor extends the time by no more than 21 business days by sending written notice to the requester and public body that includes a statement of the reasons for the extension in the notice, or decides to address the matter without the issuance of a binding opinion, the Attorney General shall examine the issues and the records, shall make findings of fact and conclusions of law, and shall issue to the requester and the public body an opinion within 60 days after initiating review. The opinion shall be binding upon both the requester and the public body, subject to administrative review under Section 7.5 of this Act.

In responding to any written request under this Section 3.5, the Attorney General may exercise his or her discretion and choose to resolve a request for review by mediation or by a means other than the issuance of a binding opinion. The decision not to issue a binding opinion shall not be reviewable.

Upon receipt of a binding opinion concluding that a violation of this Act has occurred, the public body shall either take necessary action as soon as practical to comply with the directive of the opinion or shall initiate administrative review under Section 7.5. If the opinion concludes that no violation of the Act has occurred, the requester may initiate administrative review under Section 7.5.

(f) If the requester files suit under Section 3 with respect to the same alleged violation that is the subject of a pending request for review, the requester shall notify the Public Access Counselor, and the Public Access Counselor shall take no further action with respect to the request for review and shall so notify the public body.

(g) Records that are obtained by the Public Access Counselor from a public body for purposes of addressing a request for review under this Section 3.5 may not be disclosed to the public, including the requester, by the Public Access Counselor. Those records, while in the possession of the Public Access Counselor, shall be exempt from disclosure by the Public Access Counselor under the Freedom of Information Act.

(h) The Attorney General may also issue advisory opinions to public bodies regarding compliance with this Act. A review may be initiated upon receipt of a written request from the head of the public body or its attorney. The request must contain sufficient accurate facts from which a determination can be made. The Public Access Counselor may request additional information from the public body in order to facilitate the review. A public body that relies in good faith on an advisory opinion of the Attorney General in complying with the requirements of this Act is not liable for penalties under this Act, so long as the facts upon which the opinion is based have been fully and fairly disclosed to the Public Access Counselor.

(i) The Public Access Counselor may investigate, gather data, and report on a public body for frequent violations of this Act or for frequent violations of court orders for failure to comply with this Act. The Public Access Counselor may start an investigation after receiving a complaint from a person or sua sponte.

If the Public Access Counselor finds that a public body has frequently violated this Act or has frequently violated court orders for failure to comply with this Act, the Public Access Counselor may impose a civil penalty of $1,000 for the first finding of a violation of this Act after investigation under this Section and $2,000 for the second and each subsequent finding of a violation. A civil penalty may only be imposed after a hearing with notice to the public body and an opportunity for the public body's representative to be heard. The Attorney General may enforce a penalty imposed by filing an action in circuit court.

The Attorney General shall adopt rules to implement this subsection, including the procedures of the investigation and hearings and defining "frequent violation".

(Source: P.A. 99-402, eff. 8-19-15.)

Section 10. The Freedom of Information Act is amended by changing Section 9.5 as follows:

(5 ILCS 140/9.5)

Sec. 9.5. Public Access Counselor; opinions.

(a) A person whose request to inspect or copy a public record is denied by a public body, except the General Assembly and committees, commissions, and agencies thereof, may file a request for review with the Public Access Counselor established in the Office of the Attorney General not later than 60 days after the date of the final denial. The request for review must be in writing, signed by the requester, and include (i) a copy of the request for access to records and (ii) any responses from the public body.

(b) A person whose request to inspect or copy a public record is made for a commercial purpose as defined in subsection (c-10) of Section 2 of this Act may not file a request for review with the Public Access Counselor. A person whose request to inspect or copy a public record was treated by the public body as a request for a commercial purpose under Section 3.1 of this Act may file a request for review with the Public Access Counselor for the limited purpose of reviewing whether the public body properly determined that the request was made for a commercial purpose.

(b-5) A person whose request to inspect or copy a public record was treated by a public body, except the General Assembly and committees, commissions, and agencies thereof, as a voluminous request under Section 3.6 of this Act may file a request for review with the Public Access Counselor for the purpose of reviewing whether the public body properly determined that the request was a voluminous request.

(c) Upon receipt of a request for review, the Public Access Counselor shall determine whether further action is warranted. If the Public Access Counselor determines that the alleged violation is unfounded, he or she shall so advise the requester and the public body and no further action shall be undertaken. In all other cases, the Public Access Counselor shall forward a copy of the request for review to the public body within 7 business days after receipt and shall specify the records or other documents that the public body shall furnish to facilitate the review. Within 7 business days after receipt of the request for review, the public body shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor. If a public body fails to furnish specified records pursuant to this Section, or if otherwise necessary, the Attorney General may issue a subpoena to any person or public body having knowledge of or records pertaining to a request for review of a denial of access to records under the Act. Records or documents obtained by the Public Access Counselor from a public body for the purpose of addressing a request for review under this Section may not be disclosed to the public, including the requester, by the Public Access Counselor. These records, while in the possession of the Public Access Counselor, are exempt under this Act from disclosure by the Public Access Counselor.

(d) Within 7 business days after it receives a copy of a request for review and request for production of records from the Public Access Counselor, the public body may, but is not required to, answer the allegations of the request for review. The answer may take the form of a letter, brief, or memorandum. The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential information to which the request pertains redacted from the copy. The requester may, but is not required to, respond in writing to the answer within 7 business days and shall provide a copy of the response to the public body.

(e) In addition to the request for review, and the answer and the response thereto, if any, a requester or a public body may furnish affidavits or records concerning any matter germane to the review.

(f) Unless the Public Access Counselor extends the time by no more than 30 business days by sending written notice to the requester and the public body that includes a statement of the reasons for the extension in the notice, or decides to address the matter without the issuance of a binding opinion, the Attorney General shall examine the issues and the records, shall make findings of fact and conclusions of law, and shall issue to the requester and the public body an opinion in response to the request for review within 60 days after its receipt. The opinion shall be binding upon both the requester and the public body, subject to administrative review under Section 11.5.

In responding to any request under this Section 9.5, the Attorney General may exercise his or her discretion and choose to resolve a request for review by mediation or by a means other than the issuance of a binding opinion. The decision not to issue a binding opinion shall not be reviewable.

Upon receipt of a binding opinion concluding that a violation of this Act has occurred, the public body shall either take necessary action immediately to comply with the directive of the opinion or shall initiate administrative review under Section 11.5. If the opinion concludes that no violation of the Act has occurred, the requester may initiate administrative review under Section 11.5.

A public body that discloses records in accordance with an opinion of the Attorney General is immune from all liabilities by reason thereof and shall not be liable for penalties under this Act.

(g) If the requester files suit under Section 11 with respect to the same denial that is the subject of a pending request for review, the requester shall notify the Public Access Counselor, and the Public Access Counselor shall take no further action with respect to the request for review and shall so notify the public body.

(h) The Attorney General may also issue advisory opinions to public bodies regarding compliance with this Act. A review may be initiated upon receipt of a written request from the head of the public body or its attorney, which shall contain sufficient accurate facts from which a determination can be made. The Public Access Counselor may request additional information from the public body in order to assist in the review. A public body that relies in good faith on an advisory opinion of the Attorney General in responding to a request is not liable for penalties under this Act, so long as the facts upon which the opinion is based have been fully and fairly disclosed to the Public Access Counselor.

(i) The Public Access Counselor may investigate, gather data, and report on a public body for frequent violations of this Act, for frequent violations of court orders, for failure to comply with this Act, for unreasonably denying a request under this Act, and for failure to adequately inform a requester why a request is denied. The Public Access Counselor may start an investigation after receiving a complaint from a person or sua sponte.

If the Public Access Counselor finds that a public body has violated any of the topics allowed to be investigated under this Section, the Public Access Counselor may impose a civil penalty of $1,000 for the first finding of a violation of this Act after investigation under this Section and $2,000 for the second and each subsequent finding of a violation. A civil penalty may only be imposed after a hearing with notice to the public body and an opportunity for the public body's representative to be heard. The Attorney General may enforce a penalty imposed by filing an action in circuit court.

The Attorney General shall adopt rules to implement this subs ection, including the procedures of the investigation and hearings and defining "frequent violation".

(Source: P.A. 103-69, eff. 1-1-24.)