Illinois General Assembly - Full Text of SB2799
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Full Text of SB2799  98th General Assembly


Rep. Barbara Flynn Currie

Filed: 11/25/2014





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2    AMENDMENT NO. ______. Amend Senate Bill 2799 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Freedom of Information Act is amended by
5changing Sections 7 and 11 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



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



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



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1        related to detection, observation or investigation of
2        incidents of crime or misconduct, and disclosure would
3        result in demonstrable harm to the agency or public
4        body that is the recipient of the request;
5            (vi) endanger the life or physical safety of law
6        enforcement personnel or any other person; or
7            (vii) obstruct an ongoing criminal investigation
8        by the agency that is the recipient of the request.
9        (d-5) A law enforcement record created for law
10    enforcement purposes and contained in a shared electronic
11    record management system if the law enforcement agency that
12    is the recipient of the request did not create the record,
13    did not participate in or have a role in any of the events
14    which are the subject of the record, and only has access to
15    the record through the shared electronic record management
16    system.
17        (e) Records that relate to or affect the security of
18    correctional institutions and detention facilities.
19        (e-5) Records requested by persons committed to the
20    Department of Corrections if those materials are available
21    in the library of the correctional facility where the
22    inmate is confined.
23        (e-6) Records requested by persons committed to the
24    Department of Corrections if those materials include
25    records from staff members' personnel files, staff
26    rosters, or other staffing assignment information.



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1        (e-7) Records requested by persons committed to the
2    Department of Corrections if those materials are available
3    through an administrative request to the Department of
4    Corrections.
5        (f) Preliminary drafts, notes, recommendations,
6    correspondence, memoranda and other records in which
7    opinions are expressed, or policies or actions are
8    formulated, except that a specific record or relevant
9    portion of a record shall no longer be exempt if and only
10    if the specific record not be exempt when the record is
11    publicly cited and identified by the head of the public
12    body. If the specific record is publicly cited and
13    identified by the head of the public body, then only those
14    portions of the specific record publicly cited and
15    identified shall no longer be exempt and may be disclosed.
16    Records exempt from disclosure under this subsection and
17    not publicly cited and identified by the head of the public
18    body, including, but not limited to, purely factual
19    material, shall remain exempt regardless of whether the
20    record was adopted or incorporated into a final decision of
21    the public body. The exemption provided in this paragraph
22    (f) extends, as an independent basis, to all those records
23    of officers and agencies of the General Assembly that
24    pertain to the preparation of legislative documents.
25        (g) Trade secrets and commercial or financial
26    information obtained from a person or business where the



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



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



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



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



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



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



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1    procurement under Section 1-75 of the Illinois Power Agency
2    Act and Section 16-111.5 of the Public Utilities Act that
3    is determined to be confidential and proprietary by the
4    Illinois Power Agency or by the Illinois Commerce
5    Commission.
6        (z) Information about students exempted from
7    disclosure under Sections 10-20.38 or 34-18.29 of the
8    School Code, and information about undergraduate students
9    enrolled at an institution of higher education exempted
10    from disclosure under Section 25 of the Illinois Credit
11    Card Marketing Act of 2009.
12        (aa) Information the disclosure of which is exempted
13    under the Viatical Settlements Act of 2009.
14        (bb) Records and information provided to a mortality
15    review team and records maintained by a mortality review
16    team appointed under the Department of Juvenile Justice
17    Mortality Review Team Act.
18        (cc) Information regarding interments, entombments, or
19    inurnments of human remains that are submitted to the
20    Cemetery Oversight Database under the Cemetery Care Act or
21    the Cemetery Oversight Act, whichever is applicable.
22        (dd) Correspondence and records (i) that may not be
23    disclosed under Section 11-9 of the Public Aid Code or (ii)
24    that pertain to appeals under Section 11-8 of the Public
25    Aid Code.
26        (ee) The names, addresses, or other personal



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1    information of persons who are minors and are also
2    participants and registrants in programs of park
3    districts, forest preserve districts, conservation
4    districts, recreation agencies, and special recreation
5    associations.
6        (ff) The names, addresses, or other personal
7    information of participants and registrants in programs of
8    park districts, forest preserve districts, conservation
9    districts, recreation agencies, and special recreation
10    associations where such programs are targeted primarily to
11    minors.
12        (gg) Confidential information described in Section
13    1-100 of the Illinois Independent Tax Tribunal Act of 2012.
14        (hh) The report submitted to the State Board of
15    Education by the School Security and Standards Task Force
16    under item (8) of subsection (d) of Section 2-3.160 of the
17    School Code and any information contained in that report.
18    (1.5) Any information exempt from disclosure under the
19Judicial Privacy Act shall be redacted from public records
20prior to disclosure under this Act.
21    (2) A public record that is not in the possession of a
22public body but is in the possession of a party with whom the
23agency has contracted to perform a governmental function on
24behalf of the public body, and that directly relates to the
25governmental function and is not otherwise exempt under this
26Act, shall be considered a public record of the public body,



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1for purposes of this Act.
2    (3) This Section does not authorize withholding of
3information or limit the availability of records to the public,
4except as stated in this Section or otherwise provided in this
6(Source: P.A. 97-333, eff. 8-12-11; 97-385, eff. 8-15-11;
797-452, eff. 8-19-11; 97-783, eff. 7-13-12; 97-813, eff.
87-13-12; 97-847, eff. 9-22-12; 97-1065, eff. 8-24-12; 97-1129,
9eff. 8-28-12; 98-463, eff. 8-16-13; 98-578, eff. 8-27-13;
1098-695, eff. 7-3-14.)
11    (5 ILCS 140/11)  (from Ch. 116, par. 211)
12    Sec. 11. (a) Any person denied access to inspect or copy
13any public record by a public body may file suit for injunctive
14or declaratory relief.
15    (b) Where the denial is from a public body of the State,
16suit may be filed in the circuit court for the county where the
17public body has its principal office or where the person denied
18access resides.
19    (c) Where the denial is from a municipality or other public
20body, except as provided in subsection (b) of this Section,
21suit may be filed in the circuit court for the county where the
22public body is located.
23    (d) The circuit court shall have the jurisdiction to enjoin
24the public body from withholding public records and to order
25the production of any public records improperly withheld from



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1the person seeking access. If the public body can show that
2exceptional circumstances exist, and that the body is
3exercising due diligence in responding to the request, the
4court may retain jurisdiction and allow the agency additional
5time to complete its review of the records.
6    (e) On motion of the plaintiff, prior to or after in camera
7inspection, the court shall order the public body to provide an
8index of the records to which access has been denied. The index
9shall include the following:
10        (i) A description of the nature or contents of each
11    document withheld, or each deletion from a released
12    document, provided, however, that the public body shall not
13    be required to disclose the information which it asserts is
14    exempt; and
15        (ii) A statement of the exemption or exemptions claimed
16    for each such deletion or withheld document.
17    (f) In any action considered by the court, the court shall
18consider the matter de novo, and shall conduct such in camera
19examination of the requested records as it finds appropriate to
20determine if such records or any part thereof may be withheld
21under any provision of this Act. The burden shall be on the
22public body to establish that its refusal to permit public
23inspection or copying is in accordance with the provisions of
24this Act. Any public body that asserts that a record is exempt
25from disclosure has the burden of proving that it is exempt by
26clear and convincing evidence.



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1    (g) In the event of noncompliance with an order of the
2court to disclose, the court may enforce its order against any
3public official or employee so ordered or primarily responsible
4for such noncompliance through the court's contempt powers.
5    (h) Except as to causes the court considers to be of
6greater importance, proceedings arising under this Section
7shall take precedence on the docket over all other causes and
8be assigned for hearing and trial at the earliest practicable
9date and expedited in every way.
10    (i) If a person seeking the right to inspect or receive a
11copy of a public record prevails in a proceeding under this
12Section, the court shall award such person reasonable
13attorneys' fees and costs. If the public body produces the
14records after a suit has been filed under this Section, but
15before the court renders a final judgment, the court shall
16award reasonable attorney's fees and costs if the court imposes
17a civil penalty under subsection (j). In determining what
18amount of attorney's fees is reasonable, the court shall
19consider the degree to which the relief obtained relates to the
20relief sought. For purposes of this subsection, a requester
21"prevails" if the person obtains relief through: (i) a
22court-approved settlement or consent decree; or (ii) a final
23unappealable judgment from a court of competent jurisdiction.
24The changes by Public Act 96-542 contained in this subsection
25apply to an action filed on or after January 1, 2010 (the
26effective date of Public Act 96-542) this amendatory Act of the



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196th General Assembly. The changes to this subsection by this
2amendatory Act of the 98th General Assembly apply to an action
3filed on or after the effective date of this amendatory Act of
4the 98th General Assembly.
5    (j) If the court determines that a public body willfully
6and intentionally failed to comply with this Act, or otherwise
7acted in bad faith, the court shall also impose upon the public
8body a civil penalty of not less than $2,500 nor more than
9$5,000 for each occurrence. In assessing the civil penalty, the
10court shall consider in aggravation or mitigation the budget of
11the public body and whether the public body has previously been
12assessed penalties for violations of this Act. The changes
13contained in this subsection apply to an action filed on or
14after the effective date of this amendatory Act of the 96th
15General Assembly.
16(Source: P.A. 96-542, eff. 1-1-10; 97-813, eff. 7-13-12.)".