Illinois General Assembly - Full Text of SB0778
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Full Text of SB0778  100th General Assembly




State of Illinois
2017 and 2018


Introduced 2/1/2017, by Sen. Daniel Biss


5 ILCS 140/7  from Ch. 116, par. 207

    Amends the Freedom of Information Act. In a provision establishing exemptions for disclosure under the Act, excludes from those exemptions the text of an agreement to invest in a private equity fund, hedge fund, or absolute return fund that is proposed or executed after January 1, 2018 and any modification to or amendment of such an agreement that modifies or alters any of the provisions. Provides that trade secrets in the text of the agreement are not subject to disclosure under the Act. Defines terms. Effective immediately.

LRB100 06749 RPS 16790 b






SB0778LRB100 06749 RPS 16790 b

1    AN ACT concerning State government.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Freedom of Information Act is amended by
5changing Section 7 as follows:
6    (5 ILCS 140/7)  (from Ch. 116, par. 207)
7    Sec. 7. Exemptions.
8    (1) When a request is made to inspect or copy a public
9record that contains information that is exempt from disclosure
10under this Section, but also contains information that is not
11exempt from disclosure, the public body may elect to redact the
12information that is exempt. The public body shall make the
13remaining information available for inspection and copying.
14Subject to this requirement, the following shall be exempt from
15inspection and copying:
16        (a) Information specifically prohibited from
17    disclosure by federal or State law or rules and regulations
18    implementing federal or State law.
19        (b) Private information, unless disclosure is required
20    by another provision of this Act, a State or federal law or
21    a court order.
22        (b-5) Files, documents, and other data or databases
23    maintained by one or more law enforcement agencies and



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1    specifically designed to provide information to one or more
2    law enforcement agencies regarding the physical or mental
3    status of one or more individual subjects.
4        (c) Personal information contained within public
5    records, the disclosure of which would constitute a clearly
6    unwarranted invasion of personal privacy, unless the
7    disclosure is consented to in writing by the individual
8    subjects of the information. "Unwarranted invasion of
9    personal privacy" means the disclosure of information that
10    is highly personal or objectionable to a reasonable person
11    and in which the subject's right to privacy outweighs any
12    legitimate public interest in obtaining the information.
13    The disclosure of information that bears on the public
14    duties of public employees and officials shall not be
15    considered an invasion of personal privacy.
16        (d) Records in the possession of any public body
17    created in the course of administrative enforcement
18    proceedings, and any law enforcement or correctional
19    agency for law enforcement purposes, but only to the extent
20    that disclosure would:
21            (i) interfere with pending or actually and
22        reasonably contemplated law enforcement proceedings
23        conducted by any law enforcement or correctional
24        agency that is the recipient of the request;
25            (ii) interfere with active administrative
26        enforcement proceedings conducted by the public body



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1        that is the recipient of the request;
2            (iii) create a substantial likelihood that a
3        person will be deprived of a fair trial or an impartial
4        hearing;
5            (iv) unavoidably disclose the identity of a
6        confidential source, confidential information
7        furnished only by the confidential source, or persons
8        who file complaints with or provide information to
9        administrative, investigative, law enforcement, or
10        penal agencies; except that the identities of
11        witnesses to traffic accidents, traffic accident
12        reports, and rescue reports shall be provided by
13        agencies of local government, except when disclosure
14        would interfere with an active criminal investigation
15        conducted by the agency that is the recipient of the
16        request;
17            (v) disclose unique or specialized investigative
18        techniques other than those generally used and known or
19        disclose internal documents of correctional agencies
20        related to detection, observation or investigation of
21        incidents of crime or misconduct, and disclosure would
22        result in demonstrable harm to the agency or public
23        body that is the recipient of the request;
24            (vi) endanger the life or physical safety of law
25        enforcement personnel or any other person; or
26            (vii) obstruct an ongoing criminal investigation



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1        by the agency that is the recipient of the request.
2        (d-5) A law enforcement record created for law
3    enforcement purposes and contained in a shared electronic
4    record management system if the law enforcement agency that
5    is the recipient of the request did not create the record,
6    did not participate in or have a role in any of the events
7    which are the subject of the record, and only has access to
8    the record through the shared electronic record management
9    system.
10        (e) Records that relate to or affect the security of
11    correctional institutions and detention facilities.
12        (e-5) Records requested by persons committed to the
13    Department of Corrections if those materials are available
14    in the library of the correctional facility where the
15    inmate is confined.
16        (e-6) Records requested by persons committed to the
17    Department of Corrections if those materials include
18    records from staff members' personnel files, staff
19    rosters, or other staffing assignment information.
20        (e-7) Records requested by persons committed to the
21    Department of Corrections if those materials are available
22    through an administrative request to the Department of
23    Corrections.
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 trade secrets and commercial or financial information
18    obtained by a public body, including a public pension fund,
19    from a private equity fund or a privately held company
20    within the investment portfolio of a private equity fund as
21    a result of either investing or evaluating a potential
22    investment of public funds in a private equity fund. The
23    exemption contained in this item does not apply to the
24    aggregate financial performance information of a private
25    equity fund, nor to the identity of the fund's managers or
26    general partners. The exemption contained in this item does



SB0778- 6 -LRB100 06749 RPS 16790 b

1    not apply to the identity of a privately held company
2    within the investment portfolio of a private equity fund,
3    unless the disclosure of the identity of a privately held
4    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.
16        (k) Architects' plans, engineers' technical
17    submissions, and other construction related technical
18    documents for projects not constructed or developed in
19    whole or in part with public funds and the same for
20    projects constructed or developed with public funds,
21    including but not limited to power generating and
22    distribution stations and other transmission and
23    distribution facilities, water treatment facilities,
24    airport facilities, sport stadiums, convention centers,
25    and all government owned, operated, or occupied buildings,
26    but only to the extent that disclosure would compromise



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



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



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



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1        (w) (Blank).
2        (x) Maps and other records regarding the location or
3    security of generation, transmission, distribution,
4    storage, gathering, treatment, or switching facilities
5    owned by a utility, by a power generator, or by the
6    Illinois Power Agency.
7        (y) Information contained in or related to proposals,
8    bids, or negotiations related to electric power
9    procurement under Section 1-75 of the Illinois Power Agency
10    Act and Section 16-111.5 of the Public Utilities Act that
11    is determined to be confidential and proprietary by the
12    Illinois Power Agency or by the Illinois Commerce
13    Commission.
14        (z) Information about students exempted from
15    disclosure under Sections 10-20.38 or 34-18.29 of the
16    School Code, and information about undergraduate students
17    enrolled at an institution of higher education exempted
18    from disclosure under Section 25 of the Illinois Credit
19    Card Marketing Act of 2009.
20        (aa) Information the disclosure of which is exempted
21    under the Viatical Settlements Act of 2009.
22        (bb) Records and information provided to a mortality
23    review team and records maintained by a mortality review
24    team appointed under the Department of Juvenile Justice
25    Mortality Review Team Act.
26        (cc) Information regarding interments, entombments, or



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1    inurnments of human remains that are submitted to the
2    Cemetery Oversight Database under the Cemetery Care Act or
3    the Cemetery Oversight Act, whichever is applicable.
4        (dd) Correspondence and records (i) that may not be
5    disclosed under Section 11-9 of the Illinois Public Aid
6    Code or (ii) that pertain to appeals under Section 11-8 of
7    the Illinois Public Aid Code.
8        (ee) The names, addresses, or other personal
9    information of persons who are minors and are also
10    participants and registrants in programs of park
11    districts, forest preserve districts, conservation
12    districts, recreation agencies, and special recreation
13    associations.
14        (ff) The names, addresses, or other personal
15    information of participants and registrants in programs of
16    park districts, forest preserve districts, conservation
17    districts, recreation agencies, and special recreation
18    associations where such programs are targeted primarily to
19    minors.
20        (gg) Confidential information described in Section
21    1-100 of the Illinois Independent Tax Tribunal Act of 2012.
22        (hh) The report submitted to the State Board of
23    Education by the School Security and Standards Task Force
24    under item (8) of subsection (d) of Section 2-3.160 of the
25    School Code and any information contained in that report.
26        (ii) Records requested by persons committed to or



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1    detained by the Department of Human Services under the
2    Sexually Violent Persons Commitment Act or committed to the
3    Department of Corrections under the Sexually Dangerous
4    Persons Act if those materials: (i) are available in the
5    library of the facility where the individual is confined;
6    (ii) include records from staff members' personnel files,
7    staff rosters, or other staffing assignment information;
8    or (iii) are available through an administrative request to
9    the Department of Human Services or the Department of
10    Corrections.
11        (jj) Confidential information described in Section
12    5-535 of the Civil Administrative Code of Illinois.
13    (1.5) Any information exempt from disclosure under the
14Judicial Privacy Act shall be redacted from public records
15prior to disclosure under this Act.
16    (1.10) Neither the exemption contained in paragraph (g) of
17subsection (1), nor any other exemption under this Act, applies
18to the text of a new agreement involving a public pension fund;
19except for trade secrets in the text of that new agreement.
20    As used in this subsection:
21    "New agreement" means an agreement to invest in a private
22equity fund, hedge fund, or absolute return fund that is
23proposed or executed after January 1, 2018, and includes any
24modification to or amendment of such an agreement that modifies
25or alters any of the provisions.
26    "Private equity fund" means a pooled investment entity that



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1is, or holds itself out as being, engaged primarily, or
2proposes to engage primarily, in investment strategies
3involving equity or debt financings that are provided for
4purchasing or expanding private or public companies, or for
5related purposes such as financing for capital, research and
6development, introduction of a product or process into the
7marketplace, or similar needs requiring risk capital. This
8includes, but is not limited to, financing classified as
9venture capital, mezzanine, buyout, or growth funds.
10    (2) A public record that is not in the possession of a
11public body but is in the possession of a party with whom the
12agency has contracted to perform a governmental function on
13behalf of the public body, and that directly relates to the
14governmental function and is not otherwise exempt under this
15Act, shall be considered a public record of the public body,
16for purposes of this Act.
17    (3) This Section does not authorize withholding of
18information or limit the availability of records to the public,
19except as stated in this Section or otherwise provided in this
21(Source: P.A. 98-463, eff. 8-16-13; 98-578, eff. 8-27-13;
2298-695, eff. 7-3-14; 99-298, eff. 8-6-15; 99-346, eff. 1-1-16;
2399-642, eff. 7-28-16; revised 10-25-16.)
24    Section 99. Effective date. This Act takes effect upon
25becoming law.