Full Text of HB5557 103rd General Assembly
HB5557ham001 103RD GENERAL ASSEMBLY | Rep. Tracy Katz Muhl Filed: 4/1/2024 | | 10300HB5557ham001 | | LRB103 38850 AWJ 71582 a |
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| 1 | | AMENDMENT TO HOUSE BILL 5557
| 2 | | AMENDMENT NO. ______. Amend House Bill 5557 by replacing | 3 | | everything after the enacting clause with the following: | 4 | | "Section 5. The Open Meetings Act is amended by changing | 5 | | Section 3.5 as follows: | 6 | | (5 ILCS 120/3.5) | 7 | | Sec. 3.5. Public Access Counselor; opinions. | 8 | | (a) A person who believes that a violation of this Act by a | 9 | | public body has occurred may file a request for review with the | 10 | | Public Access Counselor established in the Office of the | 11 | | Attorney General not later than 60 days after the alleged | 12 | | violation. If facts concerning the violation are not | 13 | | discovered within the 60-day period, but are discovered at a | 14 | | later date, not exceeding 2 years after the alleged violation, | 15 | | by a person utilizing reasonable diligence, the request for | 16 | | review may be made within 60 days of the discovery of the |
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| 1 | | alleged violation. The request for review must be in writing, | 2 | | must be signed by the requester, and must include a summary of | 3 | | the facts supporting the allegation. The changes made by this | 4 | | amendatory Act of the 99th General Assembly apply to | 5 | | violations alleged to have occurred at meetings held on or | 6 | | after the effective date of this amendatory Act of the 99th | 7 | | General Assembly. | 8 | | (b) Upon receipt of a request for review, the Public | 9 | | Access Counselor shall determine whether further action is | 10 | | warranted. If the Public Access Counselor determines from the | 11 | | request for review that the alleged violation is unfounded, he | 12 | | or she shall so advise the requester and the public body of the | 13 | | refusal. The Public Access Counselor shall draft language, to | 14 | | be included in the notice to the requester, regarding the | 15 | | requester's right to amend and refile the request with | 16 | | additional relevant information before the deadline set forth | 17 | | in paragraph (a), if the deadline has not yet passed, and shall | 18 | | state in the notice that and no further action shall be taken | 19 | | unless the request is timely amended and refiled undertaken . | 20 | | In all other cases, the Public Access Counselor shall forward | 21 | | a copy of the request for review to the public body within 7 | 22 | | working days. The Public Access Counselor shall specify the | 23 | | records or other documents that the public body shall furnish | 24 | | to facilitate the review. Within 7 working days after receipt | 25 | | of the request for review, the public body shall provide | 26 | | copies of the records requested and shall otherwise fully |
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| 1 | | cooperate with the Public Access Counselor. If a public body | 2 | | fails to furnish specified records pursuant to this Section, | 3 | | or if otherwise necessary, the Attorney General may issue a | 4 | | subpoena to any person or public body having knowledge of or | 5 | | records pertaining to an alleged violation of this Act. For | 6 | | purposes of conducting a thorough review, the Public Access | 7 | | Counselor has the same right to examine a verbatim recording | 8 | | of a meeting closed to the public or the minutes of a closed | 9 | | meeting as does a court in a civil action brought to enforce | 10 | | this Act. | 11 | | (c) Within 7 working days after it receives a copy of a | 12 | | request for review and request for production of records from | 13 | | the Public Access Counselor, the public body may, but is not | 14 | | required to, answer the allegations of the request for review. | 15 | | The answer may take the form of a letter, brief, or memorandum. | 16 | | Upon request, the public body may also furnish the Public | 17 | | Access Counselor with a redacted copy of the answer excluding | 18 | | specific references to any matters at issue. The Public Access | 19 | | Counselor shall forward a copy of the answer or redacted | 20 | | answer, if furnished, to the person submitting the request for | 21 | | review. The requester may, but is not required to, respond in | 22 | | writing to the answer within 7 working days and shall provide a | 23 | | copy of the response to the public body. | 24 | | (d) In addition to the request for review, and the answer | 25 | | and the response thereto, if any, a requester or a public body | 26 | | may furnish affidavits and records concerning any matter |
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| 1 | | germane to the review. | 2 | | (e) In responding to any written request under this | 3 | | Section, the Public Access Counselor may exercise the Public | 4 | | Access Counselor's discretion and choose to resolve a request | 5 | | for review by: (1) issuing a binding opinion; (2) issuing a | 6 | | nonbinding opinion; or (3) mediation or another means other | 7 | | than the issuance of a binding opinion. The decision not to | 8 | | issue a binding opinion shall not be reviewable. A binding | 9 | | Unless the Public Access Counselor extends the time by no more | 10 | | than 21 business days by sending written notice to the | 11 | | requester and public body that includes a statement of the | 12 | | reasons for the extension in the notice, or decides to address | 13 | | the matter without the issuance of a binding opinion, the | 14 | | Attorney General shall examine the issues and the records, | 15 | | shall make findings of fact and conclusions of law, and shall | 16 | | issue to the requester and the public body an opinion within 60 | 17 | | days after initiating review. The opinion shall be binding | 18 | | upon both the requester and the public body, subject to | 19 | | administrative review under Section 7.5 of this Act. | 20 | | In the case of binding opinions, the Public Access | 21 | | Counselor shall examine the issues and the records, shall make | 22 | | findings of fact and conclusions of law, and shall issue to the | 23 | | requester and the public body an opinion within 60 days after | 24 | | initiating review. The Public Access Counselor may extend the | 25 | | issuance of a binding opinion by sending written notice to the | 26 | | requester and public body that includes: (1) a statement of |
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| 1 | | the reasons for the extension in the notice by a specified | 2 | | period of days not to exceed 21 business days or (2) a | 3 | | certification if a case is of particular public interest | 4 | | warranting an indefinite extension. | 5 | | In responding to any written request under this Section | 6 | | 3.5, the Attorney General may exercise his or her discretion | 7 | | and choose to resolve a request for review by mediation or by a | 8 | | means other than the issuance of a binding opinion. The | 9 | | decision not to issue a binding opinion shall not be | 10 | | reviewable. | 11 | | Upon receipt of a binding opinion concluding that a | 12 | | violation of this Act has occurred, the public body shall | 13 | | either take necessary action as soon as practical to comply | 14 | | with the directive of the opinion or shall initiate | 15 | | administrative review under Section 7.5. If the opinion | 16 | | concludes that no violation of the Act has occurred, the | 17 | | requester may initiate administrative review under Section | 18 | | 7.5. | 19 | | (f) If the requester files suit under Section 3 with | 20 | | respect to the same alleged violation that is the subject of a | 21 | | pending request for review, the requester shall notify the | 22 | | Public Access Counselor, and the Public Access Counselor shall | 23 | | take no further action with respect to the request for review | 24 | | and shall so notify the public body. | 25 | | (g) Records that are obtained by the Public Access | 26 | | Counselor from a public body for purposes of addressing a |
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| 1 | | request for review under this Section 3.5 may not be disclosed | 2 | | to the public, including the requester, by the Public Access | 3 | | Counselor. Those records, while in the possession of the | 4 | | Public Access Counselor, shall be exempt from disclosure by | 5 | | the Public Access Counselor under the Freedom of Information | 6 | | Act. | 7 | | (h) The Attorney General may also issue advisory opinions | 8 | | to public bodies regarding compliance with this Act. A review | 9 | | may be initiated upon receipt of a written request from the | 10 | | head of the public body or its attorney. The request must | 11 | | contain sufficient accurate facts from which a determination | 12 | | can be made. The Public Access Counselor may request | 13 | | additional information from the public body in order to | 14 | | facilitate the review. A public body that relies in good faith | 15 | | on an advisory opinion of the Attorney General in complying | 16 | | with the requirements of this Act is not liable for penalties | 17 | | under this Act, so long as the facts upon which the opinion is | 18 | | based have been fully and fairly disclosed to the Public | 19 | | Access Counselor. | 20 | | (i) The Public Access Counselor may initiate an internal | 21 | | investigation, gather data, and report on a public body for | 22 | | frequent violations of this Act or for frequent violations of | 23 | | court orders for failure to comply with this Act. | 24 | | If the Public Access Counselor finds that a public body | 25 | | has frequently violated this Act or has frequently violated | 26 | | court orders for failure to comply with this Act, the Public |
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| 1 | | Access Counselor may impose a civil penalty of $1,000 for the | 2 | | first finding of a violation of this Act after investigation | 3 | | under this Section and $2,000 for the second and each | 4 | | subsequent finding of a violation. A civil penalty may only be | 5 | | imposed after a hearing with notice to the public body and an | 6 | | opportunity for the public body's representative to be heard. | 7 | | The Attorney General may enforce a penalty imposed by filing | 8 | | an action in circuit court. | 9 | | The Attorney General shall adopt rules to implement this | 10 | | subsection, including the procedures of the investigation and | 11 | | hearings and defining "frequent violation". | 12 | | (Source: P.A. 99-402, eff. 8-19-15.) | 13 | | Section 10. The Freedom of Information Act is amended by | 14 | | changing Sections 3 and 9.5 as follows: | 15 | | (5 ILCS 140/3) (from Ch. 116, par. 203) | 16 | | Sec. 3. (a) Each public body shall make available to any | 17 | | person for inspection or copying all public records, except as | 18 | | otherwise provided in Sections 7 and 8.5 of this Act. | 19 | | Notwithstanding any other law, a public body may not grant to | 20 | | any person or entity, whether by contract, license, or | 21 | | otherwise, the exclusive right to access and disseminate any | 22 | | public record as defined in this Act. | 23 | | (b) Subject to the fee provisions of Section 6 of this Act, | 24 | | each public body shall promptly provide, to any person who |
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| 1 | | submits a request, a copy of any public record required to be | 2 | | disclosed by subsection (a) of this Section and shall certify | 3 | | such copy if so requested. | 4 | | (c) Requests for inspection or copies shall be made in | 5 | | writing and directed to the public body. Written requests may | 6 | | be submitted to a public body via personal delivery, mail, | 7 | | telefax, or other means available to the public body. A public | 8 | | body may honor oral requests for inspection or copying. A | 9 | | public body may not require that a request be submitted on a | 10 | | standard form or require the requester to specify the purpose | 11 | | for a request, except to determine whether the records are | 12 | | requested for a commercial purpose or whether to grant a | 13 | | request for a fee waiver. All requests for inspection and | 14 | | copying received by a public body shall immediately be | 15 | | forwarded to its Freedom of Information officer or designee. | 16 | | (d) Each public body shall, promptly, either comply with | 17 | | or deny a request for public records within 5 business days | 18 | | after its receipt of the request, unless the time for response | 19 | | is properly extended under subsection (e) of this Section. | 20 | | Denial shall be in writing as provided in Section 9 of this | 21 | | Act. Failure to comply with a written request, extend the time | 22 | | for response, or deny a request within 5 business days after | 23 | | its receipt shall be considered a denial of the request. A | 24 | | public body that fails to respond to a request within the | 25 | | requisite periods in this Section but thereafter provides the | 26 | | requester with copies of the requested public records may not |
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| 1 | | impose a fee for such copies. A public body that fails to | 2 | | respond to a request received may not treat the request as | 3 | | unduly burdensome under subsection (g). | 4 | | (e) The time for response under this Section may be | 5 | | extended by the public body for not more than 5 business days | 6 | | from the original due date for any of the following reasons: | 7 | | (i) the requested records are stored in whole or in | 8 | | part at other locations than the office having charge of | 9 | | the requested records; | 10 | | (ii) the request requires the collection of a | 11 | | substantial number of specified records; | 12 | | (iii) the request is couched in categorical terms and | 13 | | requires an extensive search for the records responsive to | 14 | | it; | 15 | | (iv) the requested records have not been located in | 16 | | the course of routine search and additional efforts are | 17 | | being made to locate them; | 18 | | (v) the requested records require examination and | 19 | | evaluation by personnel having the necessary competence | 20 | | and discretion to determine if they are exempt from | 21 | | disclosure under Section 7 of this Act or should be | 22 | | revealed only with appropriate deletions; | 23 | | (vi) the request for records cannot be complied with | 24 | | by the public body within the time limits prescribed by | 25 | | subsection (d) of this Section without unduly burdening or | 26 | | interfering with the operations of the public body; |
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| 1 | | (vii) there is a need for consultation, which shall be | 2 | | conducted with all practicable speed, with another public | 3 | | body or among 2 or more components of a public body having | 4 | | a substantial interest in the determination or in the | 5 | | subject matter of the request. | 6 | | The person making a request and the public body may agree | 7 | | in writing to extend the time for compliance for a period to be | 8 | | determined by the parties. If the requester and the public | 9 | | body agree to extend the period for compliance, a failure by | 10 | | the public body to comply with any previous deadlines shall | 11 | | not be treated as a denial of the request for the records. | 12 | | (f) When additional time is required for any of the above | 13 | | reasons, the public body shall, within 5 business days after | 14 | | receipt of the request, notify the person making the request | 15 | | of the reasons for the extension and the date by which the | 16 | | response will be forthcoming. Failure to respond within the | 17 | | time permitted for extension shall be considered a denial of | 18 | | the request. A public body that fails to respond to a request | 19 | | within the time permitted for extension but thereafter | 20 | | provides the requester with copies of the requested public | 21 | | records may not impose a fee for those copies. A public body | 22 | | that requests an extension and subsequently fails to respond | 23 | | to the request may not treat the request as unduly burdensome | 24 | | under subsection (g). | 25 | | (g) Requests calling for all records falling within a | 26 | | category shall be complied with unless compliance with the |
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| 1 | | request would be unduly burdensome for the complying public | 2 | | body and there is no way to narrow the request and the burden | 3 | | on the public body outweighs the public interest in the | 4 | | information. Before invoking this exemption, the public body | 5 | | shall extend to the person making the request an opportunity | 6 | | to confer with it in an attempt to reduce the request to | 7 | | manageable proportions. The public body's response to the | 8 | | request shall provide specific suggestions that are likely to | 9 | | narrow the request, such as providing an alternative time | 10 | | period or limiting the authors or recipients of records. If | 11 | | any public body responds to a categorical request by stating | 12 | | that compliance would unduly burden its operation and the | 13 | | conditions described above are met, it shall do so in writing, | 14 | | specifying the reasons why it would be unduly burdensome , | 15 | | including, but not limited to, stating the manner in which the | 16 | | public body searched for records or explaining why it would | 17 | | not be feasible to conduct a search, the approximate number of | 18 | | records located or estimated to exist, the approximate time to | 19 | | review each record, including the basis for that time | 20 | | estimate, and the extent to which compliance will so burden | 21 | | the operations of the public body. Such a response shall be | 22 | | treated as a denial of the request for information. | 23 | | Repeated requests from the same person for the same | 24 | | records that are unchanged or identical to records previously | 25 | | provided or properly denied under this Act shall be deemed | 26 | | unduly burdensome under this provision. |
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| 1 | | (h) Each public body may promulgate rules and regulations | 2 | | in conformity with the provisions of this Section pertaining | 3 | | to the availability of records and procedures to be followed, | 4 | | including: | 5 | | (i) the times and places where such records will be | 6 | | made available, and | 7 | | (ii) the persons from whom such records may be | 8 | | obtained. | 9 | | (i) The time periods for compliance or denial of a request | 10 | | to inspect or copy records set out in this Section shall not | 11 | | apply to requests for records made for a commercial purpose, | 12 | | requests by a recurrent requester, or voluminous requests. | 13 | | Such requests shall be subject to the provisions of Sections | 14 | | 3.1, 3.2, and 3.6 of this Act, as applicable. | 15 | | (Source: P.A. 101-81, eff. 7-12-19.) | 16 | | (5 ILCS 140/9.5) | 17 | | Sec. 9.5. Public Access Counselor; opinions. | 18 | | (a) A person whose request to inspect or copy a public | 19 | | record is denied by a public body, except the General Assembly | 20 | | and committees, commissions, and agencies thereof, may file a | 21 | | request for review with the Public Access Counselor | 22 | | established in the Office of the Attorney General not later | 23 | | than 60 days after the date of the final denial. The request | 24 | | for review must be in writing, signed by the requester, and | 25 | | include (i) a copy of the request for access to records and |
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| 1 | | (ii) any responses from the public body. | 2 | | (b) A person whose request to inspect or copy a public | 3 | | record is made for a commercial purpose as defined in | 4 | | subsection (c-10) of Section 2 of this Act may not file a | 5 | | request for review with the Public Access Counselor. A person | 6 | | whose request to inspect or copy a public record was treated by | 7 | | the public body as a request for a commercial purpose under | 8 | | Section 3.1 of this Act may file a request for review with the | 9 | | Public Access Counselor for the limited purpose of reviewing | 10 | | whether the public body properly determined that the request | 11 | | was made for a commercial purpose. | 12 | | (b-5) A person whose request to inspect or copy a public | 13 | | record was treated by a public body, except the General | 14 | | Assembly and committees, commissions, and agencies thereof, as | 15 | | a voluminous request under Section 3.6 of this Act may file a | 16 | | request for review with the Public Access Counselor for the | 17 | | purpose of reviewing whether the public body properly | 18 | | determined that the request was a voluminous request. | 19 | | (c) Upon receipt of a request for review, the Public | 20 | | Access Counselor shall determine whether further action is | 21 | | warranted. If the Public Access Counselor determines from the | 22 | | request for review that the alleged violation is unfounded, he | 23 | | or she shall so advise the requester and the public body of the | 24 | | refusal. The Public Access Counselor shall draft language, to | 25 | | be included in the notice to the requester, regarding the | 26 | | requester's right to amend and refile the request with |
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| 1 | | additional relevant information before the deadline set forth | 2 | | in paragraph (a), if the deadline has not yet passed, and shall | 3 | | state in the notice that and no further action shall be taken | 4 | | unless the request is timely amended and refiled undertaken . | 5 | | In all other cases, the Public Access Counselor shall forward | 6 | | a copy of the request for review to the public body within 7 | 7 | | business days after receipt and shall specify the records or | 8 | | other documents that the public body shall furnish to | 9 | | facilitate the review. Within 7 business days after receipt of | 10 | | the request for review, the public body shall provide copies | 11 | | of records requested and shall otherwise fully cooperate with | 12 | | the Public Access Counselor. If a public body fails to furnish | 13 | | specified records pursuant to this Section, or if otherwise | 14 | | necessary, the Attorney General may issue a subpoena to any | 15 | | person or public body having knowledge of or records | 16 | | pertaining to a request for review of a denial of access to | 17 | | records under the Act. Records or documents obtained by the | 18 | | Public Access Counselor from a public body for the purpose of | 19 | | addressing a request for review under this Section may not be | 20 | | disclosed to the public, including the requester, by the | 21 | | Public Access Counselor. These records, while in the | 22 | | possession of the Public Access Counselor, are exempt under | 23 | | this Act from disclosure by the Public Access Counselor. | 24 | | (d) Within 7 business days after it receives a copy of a | 25 | | request for review and request for production of records from | 26 | | the Public Access Counselor, the public body may, but is not |
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| 1 | | required to, answer the allegations of the request for review. | 2 | | The answer may take the form of a letter, brief, or memorandum. | 3 | | The Public Access Counselor shall forward a copy of the answer | 4 | | to the person submitting the request for review, with any | 5 | | alleged confidential information to which the request pertains | 6 | | redacted from the copy. The requester may, but is not required | 7 | | to, respond in writing to the answer within 7 business days and | 8 | | shall provide a copy of the response to the public body. | 9 | | (e) In addition to the request for review, and the answer | 10 | | and the response thereto, if any, a requester or a public body | 11 | | may furnish affidavits or records concerning any matter | 12 | | germane to the review. | 13 | | (f) In responding to any written request under this | 14 | | Section, the Public Access Counselor may exercise the Public | 15 | | Access Counselor's discretion and choose to resolve a request | 16 | | for review by: (1) issuing a binding opinion; (2) issuing a | 17 | | nonbinding opinion; or (3) mediation or another means other | 18 | | than the issuance of a binding opinion. The decision not to | 19 | | issue a binding opinion shall not be reviewable. A binding | 20 | | opinion shall be binding upon both the requester and the | 21 | | public body, subject to administrative review under Section | 22 | | 11.5. | 23 | | In the case of binding opinions, the Public Access | 24 | | Counselor shall examine the issues and the records, shall make | 25 | | findings of fact and conclusions of law, and shall issue to the | 26 | | requester and the public body an opinion within 60 days after |
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| 1 | | initiating review. The Public Access Counselor may extend the | 2 | | issuance of a binding opinion by sending written notice to the | 3 | | requester and public body that includes: (1) a statement of | 4 | | the reasons for the extension in the notice by a specified | 5 | | period of days not to exceed 30 business days or (2) a | 6 | | certification if a case is of particular public interest | 7 | | warranting an indefinite extension. | 8 | | Unless the Public Access Counselor extends the time by | 9 | | no more than 30 business days by sending written notice to the | 10 | | requester and the public body that includes a statement of the | 11 | | reasons for the extension in the notice, or decides to address | 12 | | the matter without the issuance of a binding opinion, the | 13 | | Attorney General shall examine the issues and the records, | 14 | | shall make findings of fact and conclusions of law, and shall | 15 | | issue to the requester and the public body an opinion in | 16 | | response to the request for review within 60 days after its | 17 | | receipt. The opinion shall be binding upon both the requester | 18 | | and the public body, subject to administrative review under | 19 | | Section 11.5. | 20 | | In responding to any request under this Section 9.5, the | 21 | | Attorney General may exercise his or her discretion and choose | 22 | | to resolve a request for review by mediation or by a means | 23 | | other than the issuance of a binding opinion. The decision not | 24 | | to issue a binding opinion shall not be reviewable. | 25 | | Upon receipt of a binding opinion concluding that a | 26 | | violation of this Act has occurred, the public body shall |
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| 1 | | either take necessary action immediately to comply with the | 2 | | directive of the opinion or shall initiate administrative | 3 | | review under Section 11.5. If the opinion concludes that no | 4 | | violation of the Act has occurred, the requester may initiate | 5 | | administrative review under Section 11.5. | 6 | | A public body that discloses records in accordance with an | 7 | | opinion of the Attorney General is immune from all liabilities | 8 | | by reason thereof and shall not be liable for penalties under | 9 | | this Act. | 10 | | (g) If the requester files suit under Section 11 with | 11 | | respect to the same denial that is the subject of a pending | 12 | | request for review, the requester shall notify the Public | 13 | | Access Counselor, and the Public Access Counselor shall take | 14 | | no further action with respect to the request for review and | 15 | | shall so notify the public body. | 16 | | (h) The Attorney General may also issue advisory opinions | 17 | | to public bodies regarding compliance with this Act. A review | 18 | | may be initiated upon receipt of a written request from the | 19 | | head of the public body or its attorney, which shall contain | 20 | | sufficient accurate facts from which a determination can be | 21 | | made. The Public Access Counselor may request additional | 22 | | information from the public body in order to assist in the | 23 | | review. A public body that relies in good faith on an advisory | 24 | | opinion of the Attorney General in responding to a request is | 25 | | not liable for penalties under this Act, so long as the facts | 26 | | upon which the opinion is based have been fully and fairly |
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| 1 | | disclosed to the Public Access Counselor. | 2 | | (i) The Public Access Counselor may initiate an internal | 3 | | investigation, gather data, and report on a public body for | 4 | | frequent violations of this Act, for frequent violations of | 5 | | court orders, for failure to comply with this Act, for | 6 | | unreasonably denying a request under this Act, and for failure | 7 | | to adequately inform a requester why a request is denied. | 8 | | If the Public Access Counselor finds that a public body | 9 | | has violated any of the topics allowed to be investigated | 10 | | under this Section, the Public Access Counselor may impose a | 11 | | civil penalty of $1,000 for the first finding of a violation of | 12 | | this Act after investigation under this Section and $2,000 for | 13 | | the second and each subsequent finding of a violation. A civil | 14 | | penalty may only be imposed after a hearing with notice to the | 15 | | public body and an opportunity for the public body's | 16 | | representative to be heard. The Attorney General may enforce a | 17 | | penalty imposed by filing an action in circuit court. | 18 | | The Attorney General shall adopt rules to implement this | 19 | | subsection, including the procedures of the investigation and | 20 | | hearings and defining "frequent violation". | 21 | | (Source: P.A. 103-69, eff. 1-1-24 .)". |
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