Sen. Don Harmon

Filed: 5/29/2011

 

 


 

 


 
09700HB1716sam001LRB097 08394 JDS 56579 a

1
AMENDMENT TO HOUSE BILL 1716

2    AMENDMENT NO. ______. Amend House Bill 1716 by replacing
3everything after the enacting clause with the following:
 
4    "Section 3. The Freedom of Information Act is amended by
5changing Sections 2, 6, and 9.5 and by adding Section 3.2 as
6follows:
 
7    (5 ILCS 140/2)  (from Ch. 116, par. 202)
8    Sec. 2. Definitions. As used in this Act:
9    (a) "Public body" means all legislative, executive,
10administrative, or advisory bodies of the State, state
11universities and colleges, counties, townships, cities,
12villages, incorporated towns, school districts and all other
13municipal corporations, boards, bureaus, committees, or
14commissions of this State, any subsidiary bodies of any of the
15foregoing including but not limited to committees and
16subcommittees thereof, and a School Finance Authority created

 

 

09700HB1716sam001- 2 -LRB097 08394 JDS 56579 a

1under Article 1E of the School Code. "Public body" does not
2include a child death review team or the Illinois Child Death
3Review Teams Executive Council established under the Child
4Death Review Team Act.
5    (b) "Person" means any individual, corporation,
6partnership, firm, organization or association, acting
7individually or as a group.
8    (c) "Public records" means all records, reports, forms,
9writings, letters, memoranda, books, papers, maps,
10photographs, microfilms, cards, tapes, recordings, electronic
11data processing records, electronic communications, recorded
12information and all other documentary materials pertaining to
13the transaction of public business, regardless of physical form
14or characteristics, having been prepared by or for, or having
15been or being used by, received by, in the possession of, or
16under the control of any public body.
17    (c-5) "Private information" means unique identifiers,
18including a person's social security number, driver's license
19number, employee identification number, biometric identifiers,
20personal financial information, passwords or other access
21codes, medical records, home or personal telephone numbers, and
22personal email addresses. Private information also includes
23home address and personal license plates, except as otherwise
24provided by law or when compiled without possibility of
25attribution to any person.
26    (c-10) "Commercial purpose" means the use of any part of a

 

 

09700HB1716sam001- 3 -LRB097 08394 JDS 56579 a

1public record or records, or information derived from public
2records, in any form for sale, resale, or solicitation or
3advertisement for sales or services. For purposes of this
4definition, requests made by news media and non-profit,
5scientific, or academic organizations shall not be considered
6to be made for a "commercial purpose" when the principal
7purpose of the request is (i) to access and disseminate
8information concerning news and current or passing events, (ii)
9for articles of opinion or features of interest to the public,
10or (iii) for the purpose of academic, scientific, or public
11research or education.
12    (d) "Copying" means the reproduction of any public record
13by means of any photographic, electronic, mechanical or other
14process, device or means now known or hereafter developed and
15available to the public body.
16    (e) "Head of the public body" means the president, mayor,
17chairman, presiding officer, director, superintendent,
18manager, supervisor or individual otherwise holding primary
19executive and administrative authority for the public body, or
20such person's duly authorized designee.
21    (f) "News media" means a newspaper or other periodical
22issued at regular intervals whether in print or electronic
23format, a news service whether in print or electronic format, a
24radio station, a television station, a television network, a
25community antenna television service, or a person or
26corporation engaged in making news reels or other motion

 

 

09700HB1716sam001- 4 -LRB097 08394 JDS 56579 a

1picture news for public showing.
2    (g) "Recurrent requester", as used in Section 3.2 of this
3Act, means a person that, in the 12 months immediately
4preceding the request, has submitted to the same public body
5(i) a minimum of 50 requests for records, (ii) a minimum of 15
6requests for records within a 30-day period, or (iii) a minimum
7of 7 requests for records within a 7-day period. For purposes
8of this definition, requests made by news media and non-profit,
9scientific, or academic organizations shall not be considered
10in calculating the number of requests made in the time periods
11in this definition when the principal purpose of the requests
12is (i) to access and disseminate information concerning news
13and current or passing events, (ii) for articles of opinion or
14features of interest to the public, or (iii) for the purpose of
15academic, scientific, or public research or education.
16    For the purposes of this subsection (g), "request" means a
17written document (or oral request, if the public body chooses
18to honor oral requests) that is submitted to a public body via
19personal delivery, mail, telefax, electronic mail, or other
20means available to the public body and that identifies the
21particular public record the requester seeks. One request may
22identify multiple records to be inspected or copied.
23(Source: P.A. 96-261, eff. 1-1-10; 96-542, eff. 1-1-10;
2496-1000, eff. 7-2-10.)
 
25    (5 ILCS 140/3.2 new)

 

 

09700HB1716sam001- 5 -LRB097 08394 JDS 56579 a

1    Sec. 3.2. Recurrent requesters.
2    (a) Nothwithstanding any provision of this Act to the
3contrary, a public body shall respond to a request from a
4recurrent requester, as defined in subsection (g) of Section 2,
5within 21 business days after receipt. The response shall (i)
6provide to the requester an estimate of the time required by
7the public body to provide the records requested and an
8estimate of the fees to be charged, which the public body may
9require the person to pay in full before copying the requested
10documents, (ii) deny the request pursuant to one or more of the
11exemptions set out in this Act, (iii) notify the requester that
12the request is unduly burdensome and extend an opportunity to
13the requester to attempt to reduce the request to manageable
14proportions, or (iv) provide the records requested.
15    (b) Within 5 business days after receiving a request from a
16recurrent requester, as defined in subsection (g) of Section 2,
17the public body shall notify the requester (i) that the public
18body is treating the request as a request under subsection (g)
19of Section 2, (ii) of the reasons why the public body is
20treating the request as a request under subsection (g) of
21Section 2, and (iii) that the public body will send an initial
22response within 21 business days after receipt in accordance
23with subsection (a) of this Section. The public body shall also
24notify the requester of the proposed responses that can be
25asserted pursuant to subsection (a) of this Section.
26    (c) Unless the records are exempt from disclosure, a public

 

 

09700HB1716sam001- 6 -LRB097 08394 JDS 56579 a

1body shall comply with a request within a reasonable period
2considering the size and complexity of the request.
 
3    (5 ILCS 140/6)  (from Ch. 116, par. 206)
4    Sec. 6. Authority to charge fees.
5    (a) When a person requests a copy of a record maintained in
6an electronic format, the public body shall furnish it in the
7electronic format specified by the requester, if feasible. If
8it is not feasible to furnish the public records in the
9specified electronic format, then the public body shall furnish
10it in the format in which it is maintained by the public body,
11or in paper format at the option of the requester. A public
12body may charge the requester for the actual cost of purchasing
13the recording medium, whether disc, diskette, tape, or other
14medium. A public body may not charge the requester for the
15costs of any search for and review of the records or other
16personnel costs associated with reproducing the records,
17except for commercial requests as provided in subsection (f) of
18this Section. Except to the extent that the General Assembly
19expressly provides, statutory fees applicable to copies of
20public records when furnished in a paper format shall not be
21applicable to those records when furnished in an electronic
22format.
23    (b) Except when a fee is otherwise fixed by statute, each
24public body may charge fees reasonably calculated to reimburse
25its actual cost for reproducing and certifying public records

 

 

09700HB1716sam001- 7 -LRB097 08394 JDS 56579 a

1and for the use, by any person, of the equipment of the public
2body to copy records. No fees shall be charged for the first 50
3pages of black and white, letter or legal sized copies
4requested by a requester. The fee for black and white, letter
5or legal sized copies shall not exceed 15 cents per page. If a
6public body provides copies in color or in a size other than
7letter or legal, the public body may not charge more than its
8actual cost for reproducing the records. In calculating its
9actual cost for reproducing records or for the use of the
10equipment of the public body to reproduce records, a public
11body shall not include the costs of any search for and review
12of the records or other personnel costs associated with
13reproducing the records, except for commercial requests as
14provided in subsection (f) of this Section. Such fees shall be
15imposed according to a standard scale of fees, established and
16made public by the body imposing them. The cost for certifying
17a record shall not exceed $1.
18    (c) Documents shall be furnished without charge or at a
19reduced charge, as determined by the public body, if the person
20requesting the documents states the specific purpose for the
21request and indicates that a waiver or reduction of the fee is
22in the public interest. Waiver or reduction of the fee is in
23the public interest if the principal purpose of the request is
24to access and disseminate information regarding the health,
25safety and welfare or the legal rights of the general public
26and is not for the principal purpose of personal or commercial

 

 

09700HB1716sam001- 8 -LRB097 08394 JDS 56579 a

1benefit. For purposes of this subsection, "commercial benefit"
2shall not apply to requests made by news media when the
3principal purpose of the request is to access and disseminate
4information regarding the health, safety, and welfare or the
5legal rights of the general public. In setting the amount of
6the waiver or reduction, the public body may take into
7consideration the amount of materials requested and the cost of
8copying them.
9    (d) The imposition of a fee not consistent with subsections
10(6)(a) and (b) of this Act constitutes a denial of access to
11public records for the purposes of judicial review.
12    (e) The fee for each abstract of a driver's record shall be
13as provided in Section 6-118 of "The Illinois Vehicle Code",
14approved September 29, 1969, as amended, whether furnished as a
15paper copy or as an electronic copy.
16    (f) A public body may charge up to $10 for each hour spent
17by personnel in searching for and retrieving a requested
18record. No fees shall be charged for the first 8 hours spent by
19personnel in searching for or retrieving a requested record. A
20public body may charge the actual cost of retrieving and
21transporting public records from an off-site storage facility
22when the public records are maintained by a third-party storage
23company under contract with the public body. If a public body
24imposes a fee pursuant to this subsection (f), it must provide
25the requester with an accounting of all fees, costs, and
26personnel hours in connection with the request for public

 

 

09700HB1716sam001- 9 -LRB097 08394 JDS 56579 a

1records. The provisions of this subsection (f) apply only to
2commercial requests.
3(Source: P.A. 96-542, eff. 1-1-10; 96-1000, eff. 7-2-10.)
 
4    (5 ILCS 140/9.5)
5    Sec. 9.5. Public Access Counselor; opinions.
6    (a) A person whose request to inspect or copy a public
7record is denied by a public body, except the General Assembly
8and committees, commissions, and agencies thereof, may file a
9request for review with the Public Access Counselor established
10in the Office of the Attorney General not later than 60 days
11after the date of the final denial. The request for review must
12be in writing, signed by the requester, and include (i) a copy
13of the request for access to records and (ii) any responses
14from the public body.
15    (b) A person whose request to inspect or copy a public
16record is made for a commercial purpose as defined in
17subsection (c-10) of Section 2 of this Act may not file a
18request for review with the Public Access Counselor. A person
19whose request to inspect or copy a public record was treated by
20the public body as a request for a commercial purpose under
21Section 3.1 of this Act may file a request for review with the
22Public Access Counselor for the limited purpose of reviewing
23whether the public body properly determined that the request
24was made for a commercial purpose. A public body that receives
25a request for records, and asserts that the records are exempt

 

 

09700HB1716sam001- 10 -LRB097 08394 JDS 56579 a

1under subsection (1)(c) or (1)(f) of Section 7 of this Act,
2shall, within the time periods provided for responding to a
3request, provide written notice to the requester and the Public
4Access Counselor of its intent to deny the request in whole or
5in part. The notice shall include: (i) a copy of the request
6for access to records; (ii) the proposed response from the
7public body; and (iii) a detailed summary of the public body's
8basis for asserting the exemption. Upon receipt of a notice of
9intent to deny from a public body, the Public Access Counselor
10shall determine whether further inquiry is warranted. Within 5
11working days after receipt of the notice of intent to deny, the
12Public Access Counselor shall notify the public body and the
13requester whether further inquiry is warranted. If the Public
14Access Counselor determines that further inquiry is warranted,
15the procedures set out in this Section regarding the review of
16denials, including the production of documents, shall also be
17applicable to the inquiry and resolution of a notice of intent
18to deny from a public body. Times for response or compliance by
19the public body under Section 3 of this Act shall be tolled
20until the Public Access Counselor concludes his or her inquiry.
21    (c) Upon receipt of a request for review, the Public Access
22Counselor shall determine whether further action is warranted.
23If the Public Access Counselor determines that the alleged
24violation is unfounded, he or she shall so advise the requester
25and the public body and no further action shall be undertaken.
26In all other cases, the Public Access Counselor shall forward a

 

 

09700HB1716sam001- 11 -LRB097 08394 JDS 56579 a

1copy of the request for review to the public body within 7
2business working days after receipt and shall specify the
3records or other documents that the public body shall furnish
4to facilitate the review. Within 7 business working days after
5receipt of the request for review, the public body shall
6provide copies of records requested and shall otherwise fully
7cooperate with the Public Access Counselor. If a public body
8fails to furnish specified records pursuant to this Section, or
9if otherwise necessary, the Attorney General may issue a
10subpoena to any person or public body having knowledge of or
11records pertaining to a request for review of a denial of
12access to records under the Act. To the extent that records or
13documents produced by a public body contain information that is
14claimed to be exempt from disclosure under Section 7 of this
15Act, the Public Access Counselor shall not further disclose
16that information.
17    (d) Within 7 business working days after it receives a copy
18of a request for review and request for production of records
19from the Public Access Counselor, the public body may, but is
20not required to, answer the allegations of the request for
21review. The answer may take the form of a letter, brief, or
22memorandum. The Public Access Counselor shall forward a copy of
23the answer to the person submitting the request for review,
24with any alleged confidential information to which the request
25pertains redacted from the copy. The requester may, but is not
26required to, respond in writing to the answer within 7 business

 

 

09700HB1716sam001- 12 -LRB097 08394 JDS 56579 a

1working days and shall provide a copy of the response to the
2public body.
3    (e) In addition to the request for review, and the answer
4and the response thereto, if any, a requester or a public body
5may furnish affidavits or records concerning any matter germane
6to the review.
7    (f) Unless the Public Access Counselor extends the time by
8no more than 30 21 business days by sending written notice to
9the requester and the public body that includes a statement of
10the reasons for the extension in the notice, or decides to
11address the matter without the issuance of a binding opinion,
12the Attorney General shall examine the issues and the records,
13shall make findings of fact and conclusions of law, and shall
14issue to the requester and the public body an opinion in
15response to the request for review within 60 days after its
16receipt. The opinion shall be binding upon both the requester
17and the public body, subject to administrative review under
18Section 11.5.
19    In responding to any request under this Section 9.5, the
20Attorney General may exercise his or her discretion and choose
21to resolve a request for review by mediation or by a means
22other than the issuance of a binding opinion. The decision not
23to issue a binding opinion shall not be reviewable.
24    Upon receipt of a binding opinion concluding that a
25violation of this Act has occurred, the public body shall
26either take necessary action immediately to comply with the

 

 

09700HB1716sam001- 13 -LRB097 08394 JDS 56579 a

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

 

 

09700HB1716sam001- 14 -LRB097 08394 JDS 56579 a

1(Source: P.A. 96-542, eff. 1-1-10.)
 
2    Section 99. Effective date. This Act takes effect upon
3becoming law.".