Full Text of SB2799 98th General Assembly
SB2799ham003 98TH GENERAL ASSEMBLY | Rep. Barbara Flynn Currie Filed: 11/25/2014
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| 1 | | AMENDMENT TO SENATE BILL 2799
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2799 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Freedom of Information Act is amended by | 5 | | changing 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 | 9 | | record that contains information that is exempt from disclosure | 10 | | under this Section, but also contains information that is not | 11 | | exempt from disclosure, the public body may elect to redact the | 12 | | information that is exempt. The public body shall make the | 13 | | remaining information available for inspection and copying. | 14 | | Subject to this requirement, the following shall be exempt from | 15 | | inspection 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 | 19 | | Judicial Privacy Act shall be redacted from public records | 20 | | prior to disclosure under this Act. | 21 | | (2) A public record that is not in the possession of a | 22 | | public body but is in the possession of a party with whom the | 23 | | agency has contracted to perform a governmental function on | 24 | | behalf of the public body, and that directly relates to the | 25 | | governmental function and is not otherwise exempt under this | 26 | | Act, shall be considered a public record of the public body, |
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| 1 | | for purposes of this Act. | 2 | | (3) This Section does not authorize withholding of | 3 | | information or limit the
availability of records to the public, | 4 | | except as stated in this Section or
otherwise provided in this | 5 | | Act.
| 6 | | (Source: P.A. 97-333, eff. 8-12-11; 97-385, eff. 8-15-11; | 7 | | 97-452, eff. 8-19-11; 97-783, eff. 7-13-12; 97-813, eff. | 8 | | 7-13-12; 97-847, eff. 9-22-12; 97-1065, eff. 8-24-12; 97-1129, | 9 | | eff. 8-28-12; 98-463, eff. 8-16-13; 98-578, eff. 8-27-13; | 10 | | 98-695, 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 | 13 | | any public
record by a public body
may file suit for injunctive | 14 | | or
declaratory relief.
| 15 | | (b) Where the denial is from a public body of the State, | 16 | | suit
may be filed in the circuit court for the county where the | 17 | | public body has
its principal office or where the person denied | 18 | | access resides.
| 19 | | (c) Where the denial is from a municipality or other public
| 20 | | body, except as provided in subsection (b) of this Section, | 21 | | suit may be filed
in the circuit court for the county where the | 22 | | public body is located.
| 23 | | (d) The circuit court shall have the jurisdiction to enjoin | 24 | | the public
body from withholding public records and to order | 25 | | the production of any
public records improperly withheld from |
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| 1 | | the person seeking access. If the
public body can show that | 2 | | exceptional circumstances exist, and that the
body is | 3 | | exercising due diligence in responding to the request, the | 4 | | court
may retain jurisdiction and allow the agency additional | 5 | | time to complete
its review of the records.
| 6 | | (e) On motion of the plaintiff, prior to or after in camera
| 7 | | inspection, the court shall order the public body
to provide an | 8 | | index of the records to which access has been denied. The
index | 9 | | shall 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 | 18 | | consider the
matter de novo, and shall conduct such in camera | 19 | | examination of the requested
records as it finds appropriate to | 20 | | determine if such records or any part
thereof may be withheld | 21 | | under any provision of this Act. The burden shall
be on the | 22 | | public body to establish that its refusal to permit public | 23 | | inspection
or copying is in accordance with the provisions of | 24 | | this Act. Any public body that asserts that a record is exempt | 25 | | from disclosure has the burden of proving that it is exempt by | 26 | | clear and convincing evidence.
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| 1 | | (g) In the event of noncompliance with an order of the | 2 | | court to disclose,
the court may enforce its order against any | 3 | | public official or employee
so ordered or primarily responsible | 4 | | for such noncompliance through the court's
contempt powers.
| 5 | | (h) Except as to causes the court considers to be of | 6 | | greater importance,
proceedings arising under this Section | 7 | | shall take precedence on the docket
over all other causes and | 8 | | be assigned for hearing and trial at the earliest
practicable | 9 | | date and expedited in every way.
| 10 | | (i) If a person seeking the right to inspect or receive a | 11 | | copy of a public
record prevails in a
proceeding under this | 12 | | Section, the court shall award such
person reasonable | 13 | | attorneys' fees and costs. If the public body produces the | 14 | | records after a suit has been filed under this Section, but | 15 | | before the court renders a final judgment, the court shall | 16 | | award reasonable attorney's fees and costs if the court imposes | 17 | | a civil penalty under subsection (j). In determining what | 18 | | amount of attorney's fees is reasonable, the court shall | 19 | | consider the degree to which the relief obtained relates to the | 20 | | relief sought. For purposes of this subsection, a requester | 21 | | "prevails" if the person obtains relief through: (i) a | 22 | | court-approved settlement or consent decree; or (ii) a final | 23 | | unappealable judgment from a court of competent jurisdiction. | 24 | | The changes by Public Act 96-542 contained in this subsection | 25 | | apply to an action filed on or after January 1, 2010 ( the | 26 | | effective date of Public Act 96-542) this amendatory Act of the |
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| 1 | | 96th General Assembly . The changes to this subsection by this | 2 | | amendatory Act of the 98th General Assembly apply to an action | 3 | | filed on or after the effective date of this amendatory Act of | 4 | | the 98th General Assembly.
| 5 | | (j) If the court determines that a public body willfully | 6 | | and intentionally failed to comply with this Act, or otherwise | 7 | | acted in bad faith, the court shall also impose upon the public | 8 | | body a civil penalty of not less than $2,500 nor more than | 9 | | $5,000 for each occurrence. In assessing the civil penalty, the | 10 | | court shall consider in aggravation or mitigation the budget of | 11 | | the public body and whether the public body has previously been | 12 | | assessed penalties for violations of this Act. The changes | 13 | | contained in this subsection apply to an action filed on or | 14 | | after the effective date of this amendatory Act of the 96th | 15 | | General Assembly. | 16 | | (Source: P.A. 96-542, eff. 1-1-10; 97-813, eff. 7-13-12.)".
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