96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5789

 

Introduced 2/10/2010, by Rep. Michael K. Smith

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 140/1   from Ch. 116, par. 201
5 ILCS 140/3   from Ch. 116, par. 203
5 ILCS 140/7   from Ch. 116, par. 207
5 ILCS 140/9.5
5 ILCS 140/11.5

    Amends the Freedom of Information Act. In the Act's intent provisions, removes references to the lower priority of a public body's financial obligations when considering requests. Provides that the 5-business day deadline by which a public body must act upon a records request is calculated in accordance with the Statute on Statutes and, with respect to School Code entities, certain provisions of the School Code relating to non-pupil attendance days. Permits a public body to seek review of a binding opinion of the Public Access Counselor in the county where the body's principal office is located (now, Cook County or Sangamon County). With respect to the disclosure exemption for personal information, removes the balancing test with respect to an unwarranted invasion of privacy. Exempts from disclosure evaluations and performance assessments of certified and non-certified school district employees, employment applications, and applications for appointments to fill vacancies in public offices. Requires (now, permits) a review when a public body seeks an advisory opinion from the Public Access Counselor. Provides for the effects of a public body seeking a binding written opinion of the Public Access Counselor. Effective immediately.


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A BILL FOR

 

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1     AN ACT concerning government.
 
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 1, 3, 7, 9.5, and 11.5 as follows:
 
6     (5 ILCS 140/1)  (from Ch. 116, par. 201)
7     Sec. 1. Pursuant to the fundamental philosophy of the
8 American constitutional form of government, it is declared to
9 be the public policy of the State of Illinois that all persons
10 are entitled to full and complete information regarding the
11 affairs of government and the official acts and policies of
12 those who represent them as public officials and public
13 employees consistent with the terms of this Act. Such access is
14 necessary to enable the people to fulfill their duties of
15 discussing public issues fully and freely, making informed
16 political judgments and monitoring government to ensure that it
17 is being conducted in the public interest.
18     The General Assembly hereby declares that it is the public
19 policy of the State of Illinois that access by all persons to
20 public records promotes the transparency and accountability of
21 public bodies at all levels of government. It is a fundamental
22 obligation of government to operate openly and provide public
23 records as expediently and efficiently as possible in

 

 

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1 compliance with this Act.
2      This Act is not intended to cause an unwarranted invasion
3 of personal privacy, nor to allow a request the requests of a
4 commercial enterprise to unduly burden public resources, or to
5 disrupt the duly-undertaken work of any public body independent
6 of the fulfillment of any of the fore-mentioned rights of the
7 people to access to information.
8     This Act is not intended to create an obligation on the
9 part of any public body to maintain or prepare any public
10 record which was not maintained or prepared by such public body
11 at the time when this Act becomes effective, except as
12 otherwise required by applicable local, State or federal law.
13     Restraints on access to information, to the extent
14 permitted by this Act, are limited exceptions to the principle
15 that the people of this State have a right to full disclosure
16 of information relating to the decisions, policies,
17 procedures, rules, standards, and other aspects of government
18 activity that affect the conduct of government and the lives of
19 any or all of the people. The provisions of this Act shall be
20 construed in accordance with this principle. This Act shall be
21 construed to require disclosure of requested information as
22 expediently and efficiently as possible and adherence to the
23 deadlines established in this Act.
24     The General Assembly recognizes that this Act imposes
25 fiscal obligations on public bodies to provide adequate staff
26 and equipment to comply with its requirements. The General

 

 

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1 Assembly declares that providing records in compliance with the
2 requirements of this Act is a primary duty of public bodies to
3 the people of this State, and this Act should be construed to
4 this end, fiscal obligations notwithstanding.
5     The General Assembly further recognizes that technology
6 may advance at a rate that outpaces its ability to address
7 those advances legislatively. To the extent that this Act may
8 not expressly apply to those technological advances, this Act
9 should nonetheless be interpreted to further the declared
10 policy of this Act that public records shall be made available
11 upon request except when denial of access furthers the public
12 policy underlying a specific exemption.
13     This Act shall be the exclusive State statute on freedom of
14 information, except to the extent that other State statutes
15 might create additional restrictions on disclosure of
16 information or other laws in Illinois might create additional
17 obligations for disclosure of information to the public.
18 (Source: P.A. 96-542, eff. 1-1-10.)
 
19     (5 ILCS 140/3)  (from Ch. 116, par. 203)
20     Sec. 3. (a) Each public body shall make available to any
21 person for inspection or copying all public records, except as
22 otherwise provided in Section 7 of this Act. Notwithstanding
23 any other law, a public body may not grant to any person or
24 entity, whether by contract, license, or otherwise, the
25 exclusive right to access and disseminate any public record as

 

 

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1 defined in this Act.
2     (b) Subject to the fee provisions of Section 6 of this Act,
3 each public body shall promptly provide, to any person who
4 submits a request, a copy of any public record required to be
5 disclosed by subsection (a) of this Section and shall certify
6 such copy if so requested.
7     (c) Requests for inspection or copies shall be made in
8 writing and directed to the public body. Written requests may
9 be submitted to a public body via personal delivery, mail,
10 telefax, or other means available to the public body. A public
11 body may honor oral requests for inspection or copying. A
12 public body may not require that a request be submitted on a
13 standard form or require the requester to specify the purpose
14 for a request, except to determine whether the records are
15 requested for a commercial purpose or whether to grant a
16 request for a fee waiver. All requests for inspection and
17 copying received by a public body shall immediately be
18 forwarded to its Freedom of Information officer or designee.
19     (d) Each public body shall, promptly, either comply with or
20 deny a request for public records within 5 business days
21 (calculated in accordance with Section 1.11 of the Statute on
22 Statutes and, when the public body is organized or established
23 pursuant to the School Code, excluding all non-pupil attendance
24 days between the opening and closing days of the school term
25 specified in the calendar established in accordance with
26 Section 10-19 of the School Code) after its receipt of the

 

 

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1 request, unless the time for response is properly extended
2 under subsection (e) of this Section. Denial shall be in
3 writing as provided in Section 9 of this Act. Failure to comply
4 with a written request, extend the time for response, or deny a
5 request within 5 business days after its receipt shall be
6 considered a denial of the request. A public body that fails to
7 respond to a request within the requisite periods in this
8 Section but thereafter provides the requester with copies of
9 the requested public records may not impose a fee for such
10 copies. A public body that fails to respond to a request
11 received may not treat the request as unduly burdensome under
12 subsection (g).
13     (e) The time for response under this Section may be
14 extended by the public body for not more than 5 business days
15 from the original due date for any of the following reasons:
16         (i) the requested records are stored in whole or in
17     part at other locations than the office having charge of
18     the requested records;
19         (ii) the request requires the collection of a
20     substantial number of specified records;
21         (iii) the request is couched in categorical terms and
22     requires an extensive search for the records responsive to
23     it;
24         (iv) the requested records have not been located in the
25     course of routine search and additional efforts are being
26     made to locate them;

 

 

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1         (v) the requested records require examination and
2     evaluation by personnel having the necessary competence
3     and discretion to determine if they are exempt from
4     disclosure under Section 7 of this Act or should be
5     revealed only with appropriate deletions;
6         (vi) the request for records cannot be complied with by
7     the public body within the time limits prescribed by
8     paragraph (c) of this Section without unduly burdening or
9     interfering with the operations of the public body;
10         (vii) there is a need for consultation, which shall be
11     conducted with all practicable speed, with another public
12     body or among two or more components of a public body
13     having a substantial interest in the determination or in
14     the subject matter of the request.
15     The person making a request and the public body may agree
16 in writing to extend the time for compliance for a period to be
17 determined by the parties. If the requester and the public body
18 agree to extend the period for compliance, a failure by the
19 public body to comply with any previous deadlines shall not be
20 treated as a denial of the request for the records.
21     (f) When additional time is required for any of the above
22 reasons, the public body shall, within 5 business days after
23 receipt of the request, notify the person making the request of
24 the reasons for the extension and the date by which the
25 response will be forthcoming. Failure to respond within the
26 time permitted for extension shall be considered a denial of

 

 

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1 the request. A public body that fails to respond to a request
2 within the time permitted for extension but thereafter provides
3 the requester with copies of the requested public records may
4 not impose a fee for those copies. A public body that requests
5 an extension and subsequently fails to respond to the request
6 may not treat the request as unduly burdensome under subsection
7 (g).
8     (g) Requests calling for all records falling within a
9 category shall be complied with unless compliance with the
10 request would be unduly burdensome for the complying public
11 body and there is no way to narrow the request and the burden
12 on the public body outweighs the public interest in the
13 information. Before invoking this exemption, the public body
14 shall extend to the person making the request an opportunity to
15 confer with it in an attempt to reduce the request to
16 manageable proportions. If any body responds to a categorical
17 request by stating that compliance would unduly burden its
18 operation and the conditions described above are met, it shall
19 do so in writing, specifying the reasons why it would be unduly
20 burdensome and the extent to which compliance will so burden
21 the operations of the public body. Such a response shall be
22 treated as a denial of the request for information.
23     Repeated requests from the same person for the same records
24 that are unchanged or identical to records previously provided
25 or properly denied under this Act shall be deemed unduly
26 burdensome under this provision.

 

 

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1     (h) Each public body may promulgate rules and regulations
2 in conformity with the provisions of this Section pertaining to
3 the availability of records and procedures to be followed,
4 including:
5         (i) the times and places where such records will be
6     made available, and
7         (ii) the persons from whom such records may be
8     obtained.
9     (i) The time periods for compliance or denial of a request
10 to inspect or copy records set out in this Section shall not
11 apply to requests for records made for a commercial purpose.
12 Such requests shall be subject to the provisions of Section 3.1
13 of this Act.
14 (Source: P.A. 96-542, eff. 1-1-10.)
 
15     (5 ILCS 140/7)  (from Ch. 116, par. 207)
16     (Text of Section before amendment by P.A. 96-736)
17     Sec. 7. Exemptions.
18     (1) When a request is made to inspect or copy a public
19 record that contains information that is exempt from disclosure
20 under this Section, but also contains information that is not
21 exempt from disclosure, the public body may elect to redact the
22 information that is exempt. The public body shall make the
23 remaining information available for inspection and copying.
24 Subject to this requirement, the following shall be exempt from
25 inspection and copying:

 

 

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1         (a) Information specifically prohibited from
2     disclosure by federal or State law or rules and regulations
3     implementing federal or State law.
4         (b) Private information, unless disclosure is required
5     by another provision of this Act, a State or federal law or
6     a court order.
7         (b-5) Files, documents, and other data or databases
8     maintained by one or more law enforcement agencies and
9     specifically designed to provide information to one or more
10     law enforcement agencies regarding the physical or mental
11     status of one or more individual subjects.
12         (c) Personal information contained within public
13     records, the disclosure of which would constitute a clearly
14     unwarranted invasion of personal privacy, unless the
15     disclosure is consented to in writing by the individual
16     subjects of the information. "Unwarranted invasion of
17     personal privacy" means the disclosure of information that
18     is highly personal or objectionable to a reasonable person
19     and in which the subject's right to privacy outweighs any
20     legitimate public interest in obtaining the information.
21     The disclosure of information that bears on the public
22     duties of public employees and officials shall not be
23     considered an invasion of personal privacy.
24         (d) Records in the possession of any public body
25     created in the course of administrative enforcement
26     proceedings, and any law enforcement or correctional

 

 

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1     agency for law enforcement purposes, but only to the extent
2     that disclosure would:
3             (i) interfere with pending or actually and
4         reasonably contemplated law enforcement proceedings
5         conducted by any law enforcement or correctional
6         agency that is the recipient of the request;
7             (ii) interfere with active administrative
8         enforcement proceedings conducted by the public body
9         that is the recipient of the request;
10             (iii) create a substantial likelihood that a
11         person will be deprived of a fair trial or an impartial
12         hearing;
13             (iv) unavoidably disclose the identity of a
14         confidential source, confidential information
15         furnished only by the confidential source, or persons
16         who file complaints with or provide information to
17         administrative, investigative, law enforcement, or
18         penal agencies; except that the identities of
19         witnesses to traffic accidents, traffic accident
20         reports, and rescue reports shall be provided by
21         agencies of local government, except when disclosure
22         would interfere with an active criminal investigation
23         conducted by the agency that is the recipient of the
24         request;
25             (v) disclose unique or specialized investigative
26         techniques other than those generally used and known or

 

 

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1         disclose internal documents of correctional agencies
2         related to detection, observation or investigation of
3         incidents of crime or misconduct, and disclosure would
4         result in demonstrable harm to the agency or public
5         body that is the recipient of the request;
6             (vi) endanger the life or physical safety of law
7         enforcement personnel or any other person; or
8             (vii) obstruct an ongoing criminal investigation
9         by the agency that is the recipient of the request.
10         (e) Records that relate to or affect the security of
11     correctional institutions and detention facilities.
12         (f) Preliminary drafts, notes, recommendations,
13     memoranda and other records in which opinions are
14     expressed, or policies or actions are formulated, except
15     that a specific record or relevant portion of a record
16     shall not be exempt when the record is publicly cited and
17     identified by the head of the public body. The exemption
18     provided in this paragraph (f) extends to all those records
19     of officers and agencies of the General Assembly that
20     pertain to the preparation of legislative documents.
21         (g) Trade secrets and commercial or financial
22     information obtained from a person or business where the
23     trade secrets or commercial or financial information are
24     furnished under a claim that they are proprietary,
25     privileged or confidential, and that disclosure of the
26     trade secrets or commercial or financial information would

 

 

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1     cause competitive harm to the person or business, and only
2     insofar as the claim directly applies to the records
3     requested.
4         The information included under this exemption includes
5     all (i) All trade secrets and commercial or financial
6     information obtained by a public body, including a public
7     pension fund, from a private equity fund or a privately
8     held company within the investment portfolio of a private
9     equity fund as a result of either investing or evaluating a
10     potential investment of public funds in a private equity
11     fund. The exemption contained in this item does not apply
12     to the aggregate financial performance information of a
13     private equity fund, nor to the identity of the fund's
14     managers or general partners. The exemption contained in
15     this item does not apply to the identity of a privately
16     held company within the investment portfolio of a private
17     equity fund, unless the disclosure of the identity of a
18     privately held company may cause competitive harm.
19         Nothing contained in this paragraph (g) shall be
20     construed to prevent a person or business from consenting
21     to disclosure.
22         (h) Proposals and bids for any contract, grant, or
23     agreement, including information which if it were
24     disclosed would frustrate procurement or give an advantage
25     to any person proposing to enter into a contractor
26     agreement with the body, until an award or final selection

 

 

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1     is made. Information prepared by or for the body in
2     preparation of a bid solicitation shall be exempt until an
3     award or final selection is made.
4         (i) Valuable formulae, computer geographic systems,
5     designs, drawings and research data obtained or produced by
6     any public body when disclosure could reasonably be
7     expected to produce private gain or public loss. The
8     exemption for "computer geographic systems" provided in
9     this paragraph (i) does not extend to requests made by news
10     media as defined in Section 2 of this Act when the
11     requested information is not otherwise exempt and the only
12     purpose of the request is to access and disseminate
13     information regarding the health, safety, welfare, or
14     legal rights of the general public.
15         (j) The following information pertaining to
16     educational matters:
17             (i) test questions, scoring keys and other
18         examination data used to administer an academic
19         examination;
20             (ii) information received by a primary or
21         secondary school, college, or university under its
22         procedures for the evaluation of faculty members by
23         their academic peers;
24             (iii) information concerning a school or
25         university's adjudication of student disciplinary
26         cases, but only to the extent that disclosure would

 

 

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1         unavoidably reveal the identity of the student; and
2             (iv) course materials or research materials used
3         by faculty members; and .
4             (v) evaluations and performance assessments of
5         certified and non-certified school district employees.
6         (k) Architects' plans, engineers' technical
7     submissions, and other construction related technical
8     documents for projects not constructed or developed in
9     whole or in part with public funds and the same for
10     projects constructed or developed with public funds,
11     including but not limited to power generating and
12     distribution stations and other transmission and
13     distribution facilities, water treatment facilities,
14     airport facilities, sport stadiums, convention centers,
15     and all government owned, operated, or occupied buildings,
16     but only to the extent that disclosure would compromise
17     security.
18         (l) Minutes of meetings of public bodies closed to the
19     public as provided in the Open Meetings Act until the
20     public body makes the minutes available to the public under
21     Section 2.06 of the Open Meetings Act.
22         (m) Communications between a public body and an
23     attorney or auditor representing the public body that would
24     not be subject to discovery in litigation, and materials
25     prepared or compiled by or for a public body in
26     anticipation of a criminal, civil or administrative

 

 

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1     proceeding upon the request of an attorney advising the
2     public body, and materials prepared or compiled with
3     respect to internal audits of public bodies.
4         (n) Records relating to a public body's adjudication of
5     employee grievances or disciplinary cases; however, this
6     exemption shall not extend to the final outcome of cases in
7     which discipline is imposed.
8         (o) Administrative or technical information associated
9     with automated data processing operations, including but
10     not limited to software, operating protocols, computer
11     program abstracts, file layouts, source listings, object
12     modules, load modules, user guides, documentation
13     pertaining to all logical and physical design of
14     computerized systems, employee manuals, and any other
15     information that, if disclosed, would jeopardize the
16     security of the system or its data or the security of
17     materials exempt under this Section.
18         (p) Records relating to collective negotiating matters
19     between public bodies and their employees or
20     representatives, except that any final contract or
21     agreement shall be subject to inspection and copying.
22         (q) Test questions, scoring keys, and other
23     examination data used to determine the qualifications of an
24     applicant for a license or employment.
25         (r) The records, documents, and information relating
26     to real estate purchase negotiations until those

 

 

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1     negotiations have been completed or otherwise terminated.
2     With regard to a parcel involved in a pending or actually
3     and reasonably contemplated eminent domain proceeding
4     under the Eminent Domain Act, records, documents and
5     information relating to that parcel shall be exempt except
6     as may be allowed under discovery rules adopted by the
7     Illinois Supreme Court. The records, documents and
8     information relating to a real estate sale shall be exempt
9     until a sale is consummated.
10         (s) Any and all proprietary information and records
11     related to the operation of an intergovernmental risk
12     management association or self-insurance pool or jointly
13     self-administered health and accident cooperative or pool.
14     Insurance or self insurance (including any
15     intergovernmental risk management association or self
16     insurance pool) claims, loss or risk management
17     information, records, data, advice or communications.
18         (t) Information contained in or related to
19     examination, operating, or condition reports prepared by,
20     on behalf of, or for the use of a public body responsible
21     for the regulation or supervision of financial
22     institutions or insurance companies, unless disclosure is
23     otherwise required by State law.
24         (u) Information that would disclose or might lead to
25     the disclosure of secret or confidential information,
26     codes, algorithms, programs, or private keys intended to be

 

 

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1     used to create electronic or digital signatures under the
2     Electronic Commerce Security Act.
3         (v) Vulnerability assessments, security measures, and
4     response policies or plans that are designed to identify,
5     prevent, or respond to potential attacks upon a community's
6     population or systems, facilities, or installations, the
7     destruction or contamination of which would constitute a
8     clear and present danger to the health or safety of the
9     community, but only to the extent that disclosure could
10     reasonably be expected to jeopardize the effectiveness of
11     the measures or the safety of the personnel who implement
12     them or the public. Information exempt under this item may
13     include such things as details pertaining to the
14     mobilization or deployment of personnel or equipment, to
15     the operation of communication systems or protocols, or to
16     tactical operations.
17         (w) Employment applications and, when the public body
18     has the authority to fill a vacancy in a public office by
19     appointment, applications for appointments to fill
20     vacancies in a public office.
21         (x) Maps and other records regarding the location or
22     security of generation, transmission, distribution,
23     storage, gathering, treatment, or switching facilities
24     owned by a utility, by a power generator, or by the
25     Illinois Power Agency.
26         (y) Information contained in or related to proposals,

 

 

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1     bids, or negotiations related to electric power
2     procurement under Section 1-75 of the Illinois Power Agency
3     Act and Section 16-111.5 of the Public Utilities Act that
4     is determined to be confidential and proprietary by the
5     Illinois Power Agency or by the Illinois Commerce
6     Commission.
7         (z) (tt) Information about students exempted from
8     disclosure under Sections 10-20.38 or 34-18.29 of the
9     School Code, and information about undergraduate students
10     enrolled at an institution of higher education exempted
11     from disclosure under Section 25 of the Illinois Credit
12     Card Marketing Act of 2009.
13     (2) A public record that is not in the possession of a
14 public body but is in the possession of a party with whom the
15 agency has contracted to perform a governmental function on
16 behalf of the public body, and that directly relates to the
17 governmental function and is not otherwise exempt under this
18 Act, shall be considered a public record of the public body,
19 for purposes of this Act.
20     (3) This Section does not authorize withholding of
21 information or limit the availability of records to the public,
22 except as stated in this Section or otherwise provided in this
23 Act.
24 (Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
25 95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
26 96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;

 

 

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1 revised 9-25-09.)
 
2     (Text of Section after amendment by P.A. 96-736)
3     Sec. 7. Exemptions.
4     (1) When a request is made to inspect or copy a public
5 record that contains information that is exempt from disclosure
6 under this Section, but also contains information that is not
7 exempt from disclosure, the public body may elect to redact the
8 information that is exempt. The public body shall make the
9 remaining information available for inspection and copying.
10 Subject to this requirement, the following shall be exempt from
11 inspection and copying:
12         (a) Information specifically prohibited from
13     disclosure by federal or State law or rules and regulations
14     implementing federal or State law.
15         (b) Private information, unless disclosure is required
16     by another provision of this Act, a State or federal law or
17     a court order.
18         (b-5) Files, documents, and other data or databases
19     maintained by one or more law enforcement agencies and
20     specifically designed to provide information to one or more
21     law enforcement agencies regarding the physical or mental
22     status of one or more individual subjects.
23         (c) Personal information contained within public
24     records, the disclosure of which would constitute a clearly
25     unwarranted invasion of personal privacy, unless the

 

 

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1     disclosure is consented to in writing by the individual
2     subjects of the information. "Unwarranted invasion of
3     personal privacy" means the disclosure of information that
4     is highly personal or objectionable to a reasonable person
5     and in which the subject's right to privacy outweighs any
6     legitimate public interest in obtaining the information.
7     The disclosure of information that bears on the public
8     duties of public employees and officials shall not be
9     considered an invasion of personal privacy.
10         (d) Records in the possession of any public body
11     created in the course of administrative enforcement
12     proceedings, and any law enforcement or correctional
13     agency for law enforcement purposes, but only to the extent
14     that disclosure would:
15             (i) interfere with pending or actually and
16         reasonably contemplated law enforcement proceedings
17         conducted by any law enforcement or correctional
18         agency that is the recipient of the request;
19             (ii) interfere with active administrative
20         enforcement proceedings conducted by the public body
21         that is the recipient of the request;
22             (iii) create a substantial likelihood that a
23         person will be deprived of a fair trial or an impartial
24         hearing;
25             (iv) unavoidably disclose the identity of a
26         confidential source, confidential information

 

 

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1         furnished only by the confidential source, or persons
2         who file complaints with or provide information to
3         administrative, investigative, law enforcement, or
4         penal agencies; except that the identities of
5         witnesses to traffic accidents, traffic accident
6         reports, and rescue reports shall be provided by
7         agencies of local government, except when disclosure
8         would interfere with an active criminal investigation
9         conducted by the agency that is the recipient of the
10         request;
11             (v) disclose unique or specialized investigative
12         techniques other than those generally used and known or
13         disclose internal documents of correctional agencies
14         related to detection, observation or investigation of
15         incidents of crime or misconduct, and disclosure would
16         result in demonstrable harm to the agency or public
17         body that is the recipient of the request;
18             (vi) endanger the life or physical safety of law
19         enforcement personnel or any other person; or
20             (vii) obstruct an ongoing criminal investigation
21         by the agency that is the recipient of the request.
22         (e) Records that relate to or affect the security of
23     correctional institutions and detention facilities.
24         (f) Preliminary drafts, notes, recommendations,
25     memoranda and other records in which opinions are
26     expressed, or policies or actions are formulated, except

 

 

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1     that a specific record or relevant portion of a record
2     shall not be exempt when the record is publicly cited and
3     identified by the head of the public body. The exemption
4     provided in this paragraph (f) extends to all those records
5     of officers and agencies of the General Assembly that
6     pertain to the preparation of legislative documents.
7         (g) Trade secrets and commercial or financial
8     information obtained from a person or business where the
9     trade secrets or commercial or financial information are
10     furnished under a claim that they are proprietary,
11     privileged or confidential, and that disclosure of the
12     trade secrets or commercial or financial information would
13     cause competitive harm to the person or business, and only
14     insofar as the claim directly applies to the records
15     requested.
16         The information included under this exemption includes
17     all (i) All trade secrets and commercial or financial
18     information obtained by a public body, including a public
19     pension fund, from a private equity fund or a privately
20     held company within the investment portfolio of a private
21     equity fund as a result of either investing or evaluating a
22     potential investment of public funds in a private equity
23     fund. The exemption contained in this item does not apply
24     to the aggregate financial performance information of a
25     private equity fund, nor to the identity of the fund's
26     managers or general partners. The exemption contained in

 

 

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1     this item does not apply to the identity of a privately
2     held company within the investment portfolio of a private
3     equity fund, unless the disclosure of the identity of a
4     privately held company may cause competitive harm.
5         Nothing contained in this paragraph (g) shall be
6     construed to prevent a person or business from consenting
7     to disclosure.
8         (h) Proposals and bids for any contract, grant, or
9     agreement, including information which if it were
10     disclosed would frustrate procurement or give an advantage
11     to any person proposing to enter into a contractor
12     agreement with the body, until an award or final selection
13     is made. Information prepared by or for the body in
14     preparation of a bid solicitation shall be exempt until an
15     award or final selection is made.
16         (i) Valuable formulae, computer geographic systems,
17     designs, drawings and research data obtained or produced by
18     any public body when disclosure could reasonably be
19     expected to produce private gain or public loss. The
20     exemption for "computer geographic systems" provided in
21     this paragraph (i) does not extend to requests made by news
22     media as defined in Section 2 of this Act when the
23     requested information is not otherwise exempt and the only
24     purpose of the request is to access and disseminate
25     information regarding the health, safety, welfare, or
26     legal rights of the general public.

 

 

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1         (j) The following information pertaining to
2     educational matters:
3             (i) test questions, scoring keys and other
4         examination data used to administer an academic
5         examination;
6             (ii) information received by a primary or
7         secondary school, college, or university under its
8         procedures for the evaluation of faculty members by
9         their academic peers;
10             (iii) information concerning a school or
11         university's adjudication of student disciplinary
12         cases, but only to the extent that disclosure would
13         unavoidably reveal the identity of the student; and
14             (iv) course materials or research materials used
15         by faculty members; and .
16             (v) evaluations and performance assessments of
17         certified and non-certified school district employees.
18         (k) Architects' plans, engineers' technical
19     submissions, and other construction related technical
20     documents for projects not constructed or developed in
21     whole or in part with public funds and the same for
22     projects constructed or developed with public funds,
23     including but not limited to power generating and
24     distribution stations and other transmission and
25     distribution facilities, water treatment facilities,
26     airport facilities, sport stadiums, convention centers,

 

 

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1     and all government owned, operated, or occupied buildings,
2     but only to the extent that disclosure would compromise
3     security.
4         (l) Minutes of meetings of public bodies closed to the
5     public as provided in the Open Meetings Act until the
6     public body makes the minutes available to the public under
7     Section 2.06 of the Open Meetings Act.
8         (m) Communications between a public body and an
9     attorney or auditor representing the public body that would
10     not be subject to discovery in litigation, and materials
11     prepared or compiled by or for a public body in
12     anticipation of a criminal, civil or administrative
13     proceeding upon the request of an attorney advising the
14     public body, and materials prepared or compiled with
15     respect to internal audits of public bodies.
16         (n) Records relating to a public body's adjudication of
17     employee grievances or disciplinary cases; however, this
18     exemption shall not extend to the final outcome of cases in
19     which discipline is imposed.
20         (o) Administrative or technical information associated
21     with automated data processing operations, including but
22     not limited to software, operating protocols, computer
23     program abstracts, file layouts, source listings, object
24     modules, load modules, user guides, documentation
25     pertaining to all logical and physical design of
26     computerized systems, employee manuals, and any other

 

 

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1     information that, if disclosed, would jeopardize the
2     security of the system or its data or the security of
3     materials exempt under this Section.
4         (p) Records relating to collective negotiating matters
5     between public bodies and their employees or
6     representatives, except that any final contract or
7     agreement shall be subject to inspection and copying.
8         (q) Test questions, scoring keys, and other
9     examination data used to determine the qualifications of an
10     applicant for a license or employment.
11         (r) The records, documents, and information relating
12     to real estate purchase negotiations until those
13     negotiations have been completed or otherwise terminated.
14     With regard to a parcel involved in a pending or actually
15     and reasonably contemplated eminent domain proceeding
16     under the Eminent Domain Act, records, documents and
17     information relating to that parcel shall be exempt except
18     as may be allowed under discovery rules adopted by the
19     Illinois Supreme Court. The records, documents and
20     information relating to a real estate sale shall be exempt
21     until a sale is consummated.
22         (s) Any and all proprietary information and records
23     related to the operation of an intergovernmental risk
24     management association or self-insurance pool or jointly
25     self-administered health and accident cooperative or pool.
26     Insurance or self insurance (including any

 

 

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1     intergovernmental risk management association or self
2     insurance pool) claims, loss or risk management
3     information, records, data, advice or communications.
4         (t) Information contained in or related to
5     examination, operating, or condition reports prepared by,
6     on behalf of, or for the use of a public body responsible
7     for the regulation or supervision of financial
8     institutions or insurance companies, unless disclosure is
9     otherwise required by State law.
10         (u) Information that would disclose or might lead to
11     the disclosure of secret or confidential information,
12     codes, algorithms, programs, or private keys intended to be
13     used to create electronic or digital signatures under the
14     Electronic Commerce Security Act.
15         (v) Vulnerability assessments, security measures, and
16     response policies or plans that are designed to identify,
17     prevent, or respond to potential attacks upon a community's
18     population or systems, facilities, or installations, the
19     destruction or contamination of which would constitute a
20     clear and present danger to the health or safety of the
21     community, but only to the extent that disclosure could
22     reasonably be expected to jeopardize the effectiveness of
23     the measures or the safety of the personnel who implement
24     them or the public. Information exempt under this item may
25     include such things as details pertaining to the
26     mobilization or deployment of personnel or equipment, to

 

 

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1     the operation of communication systems or protocols, or to
2     tactical operations.
3         (w) Employment applications and, when the public body
4     has the authority to fill a vacancy in a public office by
5     appointment, applications for appointments to fill
6     vacancies in a public office.
7         (x) Maps and other records regarding the location or
8     security of generation, transmission, distribution,
9     storage, gathering, treatment, or switching facilities
10     owned by a utility, by a power generator, or by the
11     Illinois Power Agency.
12         (y) Information contained in or related to proposals,
13     bids, or negotiations related to electric power
14     procurement under Section 1-75 of the Illinois Power Agency
15     Act and Section 16-111.5 of the Public Utilities Act that
16     is determined to be confidential and proprietary by the
17     Illinois Power Agency or by the Illinois Commerce
18     Commission.
19         (z) (tt) Information about students exempted from
20     disclosure under Sections 10-20.38 or 34-18.29 of the
21     School Code, and information about undergraduate students
22     enrolled at an institution of higher education exempted
23     from disclosure under Section 25 of the Illinois Credit
24     Card Marketing Act of 2009.
25         (aa) (tt) Information the disclosure of which is
26     exempted under the Viatical Settlements Act of 2009.

 

 

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1     (2) A public record that is not in the possession of a
2 public body but is in the possession of a party with whom the
3 agency has contracted to perform a governmental function on
4 behalf of the public body, and that directly relates to the
5 governmental function and is not otherwise exempt under this
6 Act, shall be considered a public record of the public body,
7 for purposes of this Act.
8     (3) This Section does not authorize withholding of
9 information or limit the availability of records to the public,
10 except as stated in this Section or otherwise provided in this
11 Act.
12 (Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
13 95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
14 96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;
15 96-736, eff. 7-1-10; revised 9-25-09.)
 
16     (5 ILCS 140/9.5)
17     Sec. 9.5. Public Access Counselor; opinions.
18     (a) A person whose request to inspect or copy a public
19 record is denied by a public body, except the General Assembly
20 and committees, commissions, and agencies thereof, may file a
21 request for review with the Public Access Counselor established
22 in the Office of the Attorney General not later than 60 days
23 after the date of the final denial. The request for review must
24 be in writing, signed by the requester, and include (i) a copy
25 of the request for access to records and (ii) any responses

 

 

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1 from the public body.
2     (b) A public body that receives a request for records, and
3 asserts that the records are exempt under subsection (1)(c) or
4 (1)(f) of Section 7 of this Act, shall, within the time periods
5 provided for responding to a request, provide written notice to
6 the requester and the Public Access Counselor of its intent to
7 deny the request in whole or in part. The notice shall include:
8 (i) a copy of the request for access to records; (ii) the
9 proposed response from the public body; and (iii) a detailed
10 summary of the public body's basis for asserting the exemption.
11 Upon receipt of a notice of intent to deny from a public body,
12 the Public Access Counselor shall determine whether further
13 inquiry is warranted. Within 5 working days after receipt of
14 the notice of intent to deny, the Public Access Counselor shall
15 notify the public body and the requester whether further
16 inquiry is warranted. If the Public Access Counselor determines
17 that further inquiry is warranted, the procedures set out in
18 this Section regarding the review of denials, including the
19 production of documents, shall also be applicable to the
20 inquiry and resolution of a notice of intent to deny from a
21 public body. Times for response or compliance by the public
22 body under Section 3 of this Act shall be tolled until the
23 Public Access Counselor concludes his or her inquiry.
24     (c) Upon receipt of a request for review, the Public Access
25 Counselor shall determine whether further action is warranted.
26 If the Public Access Counselor determines that the alleged

 

 

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1 violation is unfounded, he or she shall so advise the requester
2 and the public body and no further action shall be undertaken.
3 In all other cases, the Public Access Counselor shall forward a
4 copy of the request for review to the public body within 7
5 working days after receipt and shall specify the records or
6 other documents that the public body shall furnish to
7 facilitate the review. Within 7 working days after receipt of
8 the request for review, the public body shall provide copies of
9 records requested and shall otherwise fully cooperate with the
10 Public Access Counselor. If a public body fails to furnish
11 specified records pursuant to this Section, or if otherwise
12 necessary, the Attorney General may issue a subpoena to any
13 person or public body having knowledge of or records pertaining
14 to a request for review of a denial of access to records under
15 the Act. To the extent that records or documents produced by a
16 public body contain information that is claimed to be exempt
17 from disclosure under Section 7 of this Act, the Public Access
18 Counselor shall not further disclose that information.
19     (d) Within 7 working days after it receives a copy of a
20 request for review and request for production of records from
21 the Public Access Counselor, the public body may, but is not
22 required to, answer the allegations of the request for review.
23 The answer may take the form of a letter, brief, or memorandum.
24 The Public Access Counselor shall forward a copy of the answer
25 to the person submitting the request for review, with any
26 alleged confidential information to which the request pertains

 

 

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1 redacted from the copy. The requester may, but is not required
2 to, respond in writing to the answer within 7 working days and
3 shall provide a copy of the response to the public body.
4     (e) In addition to the request for review, and the answer
5 and the response thereto, if any, a requester or a public body
6 may furnish affidavits or records concerning any matter germane
7 to the review.
8     (f) Unless the Public Access Counselor extends the time by
9 no more than 21 business days by sending written notice to the
10 requester and the public body that includes a statement of the
11 reasons for the extension in the notice, or decides to address
12 the matter without the issuance of a binding opinion, the
13 Attorney General shall examine the issues and the records,
14 shall make findings of fact and conclusions of law, and shall
15 issue to the requester and the public body an opinion in
16 response to the request for review within 60 days after its
17 receipt. The opinion shall be binding upon both the requester
18 and the public body, subject to administrative review under
19 Section 11.5.
20     In responding to any request under this Section 9.5, the
21 Attorney General may exercise his or her discretion and choose
22 to resolve a request for review by mediation or by a means
23 other than the issuance of a binding opinion. The decision not
24 to issue a binding opinion shall not be reviewable.
25     Upon receipt of a binding opinion concluding that a
26 violation of this Act has occurred, the public body shall

 

 

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1 either take necessary action immediately to comply with the
2 directive of the opinion or shall initiate administrative
3 review under Section 11.5. If the opinion concludes that no
4 violation of the Act has occurred, the requester may initiate
5 administrative review under Section 11.5.
6     A public body that discloses records in accordance with an
7 opinion of the Attorney General is immune from all liabilities
8 by reason thereof and shall not be liable for penalties under
9 this Act.
10     (g) If the requester files suit under Section 11 with
11 respect to the same denial that is the subject of a pending
12 request for review, the requester shall notify the Public
13 Access Counselor, and the Public Access Counselor shall take no
14 further action with respect to the request for review and shall
15 so notify the public body.
16     (h) The Attorney General may also issue advisory opinions
17 to public bodies regarding compliance with this Act. A review
18 shall may be initiated upon receipt of a written request from
19 the head of the public body or its attorney, which shall
20 contain sufficient accurate facts from which a determination
21 can be made. The Public Access Counselor may request additional
22 information from the public body in order to assist in the
23 review. A public body that relies in good faith on an advisory
24 opinion of the Attorney General in responding to a request is
25 not liable for penalties under this Act, so long as the facts
26 upon which the opinion is based have been fully and fairly

 

 

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1 disclosed to the Public Access Counselor.
2     (i) If a public body requests an opinion from the Public
3 Access Counselor, the public body shall notify the requester in
4 writing by or before the deadline for response to the request.
5 The notification shall stop the running of the time for
6 response until the public body receives a binding written
7 opinion from the Public Access Counselor that identifies
8 whether or not the requested information must be provided and
9 to what extent that information shall be disclosed. Upon
10 receipt of such an opinion from the Public Access Counselor,
11 the public body shall have 5 days to comply.
12     (j) In the event an action is brought before the Public
13 Access Counselor against a public body for failure to comply
14 with this Act after the public body has properly sought an
15 opinion from the Public Access Counselor, the Public Access
16 Counselor's inquiry shall be limited to whether or not the
17 public body complied with the Public Access Counselor's ruling.
18 (Source: P.A. 96-542, eff. 1-1-10.)
 
19     (5 ILCS 140/11.5)
20     Sec. 11.5. Administrative review. A binding opinion issued
21 by the Attorney General shall be considered a final decision of
22 an administrative agency, for purposes of administrative
23 review under the Administrative Review Law (735 ILCS 5/Art.
24 III). An action for administrative review of a binding opinion
25 of the Attorney General shall be commenced in the county where

 

 

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1 the principal office of the public body is located Cook or
2 Sangamon County. An advisory opinion issued to a public body
3 shall not be considered a final decision of the Attorney
4 General for purposes of this Section.
5 (Source: P.A. 96-542, eff. 1-1-10.)
 
6     Section 95. No acceleration or delay. Where this Act makes
7 changes in a statute that is represented in this Act by text
8 that is not yet or no longer in effect (for example, a Section
9 represented by multiple versions), the use of that text does
10 not accelerate or delay the taking effect of (i) the changes
11 made by this Act or (ii) provisions derived from any other
12 Public Act.
 
13     Section 99. Effective date. This Act takes effect upon
14 becoming law.