Sen. David Koehler

Filed: 4/11/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2203

2    AMENDMENT NO. ______. Amend Senate Bill 2203, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Freedom of Information Act is amended by
6changing Sections 1, 2, 3, 6, 7, and 9.5 and by adding Section
73.2 as follows:
 
8    (5 ILCS 140/1)  (from Ch. 116, par. 201)
9    Sec. 1. Pursuant to the fundamental philosophy of the
10American constitutional form of government, it is declared to
11be the public policy of the State of Illinois that all persons
12are entitled to full and complete information regarding the
13affairs of government and the official acts and policies of
14those who represent them as public officials and public
15employees consistent with the terms of this Act. Such access is
16necessary to enable the people to fulfill their duties of

 

 

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1discussing public issues fully and freely, making informed
2political judgments and monitoring government to ensure that it
3is being conducted in the public interest.
4    The General Assembly hereby declares that it is the public
5policy of the State of Illinois that access by all persons to
6public records promotes the transparency and accountability of
7public bodies at all levels of government. It is a fundamental
8obligation of government to operate openly and provide public
9records as expediently and efficiently as possible in
10compliance with this Act.
11     This Act is not intended to cause an unwarranted invasion
12of personal privacy, nor to allow the requests of a commercial
13enterprise to unduly burden public resources, nor to allow
14vexatious requests for records to unduly burden public
15resources, nor or to disrupt the duly-undertaken work of any
16public body independent of the fulfillment of any of the
17fore-mentioned rights of the people to access to information.
18    This Act is not intended to create an obligation on the
19part of any public body to maintain or prepare any public
20record which was not maintained or prepared by such public body
21at the time when this Act becomes effective, except as
22otherwise required by applicable local, State or federal law.
23    Restraints on access to information, to the extent
24permitted by this Act, are limited exceptions to the principle
25that the people of this State have a right to full disclosure
26of information relating to the decisions, policies,

 

 

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1procedures, rules, standards, and other aspects of government
2activity that affect the conduct of government and the lives of
3any or all of the people. The provisions of this Act shall be
4construed in accordance with this principle. This Act shall be
5construed to require disclosure of requested information as
6expediently and efficiently as possible and adherence to the
7deadlines established in this Act.
8    The General Assembly recognizes that this Act imposes
9fiscal obligations on public bodies to provide adequate staff
10and equipment to comply with its requirements. The General
11Assembly declares that providing records in compliance with the
12requirements of this Act is a primary duty of public bodies to
13the people of this State, and this Act should be construed to
14this end, fiscal obligations notwithstanding.
15    The General Assembly further recognizes that technology
16may advance at a rate that outpaces its ability to address
17those advances legislatively. To the extent that this Act may
18not expressly apply to those technological advances, this Act
19should nonetheless be interpreted to further the declared
20policy of this Act that public records shall be made available
21upon request except when denial of access furthers the public
22policy underlying a specific exemption.
23    This Act shall be the exclusive State statute on freedom of
24information, except to the extent that other State statutes
25might create additional restrictions on disclosure of
26information or other laws in Illinois might create additional

 

 

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1obligations for disclosure of information to the public.
2(Source: P.A. 96-542, eff. 1-1-10.)
 
3    (5 ILCS 140/2)  (from Ch. 116, par. 202)
4    Sec. 2. Definitions. As used in this Act:
5    (a) "Public body" means all legislative, executive,
6administrative, or advisory bodies of the State, state
7universities and colleges, counties, townships, cities,
8villages, incorporated towns, school districts and all other
9municipal corporations, boards, bureaus, committees, or
10commissions of this State, any subsidiary bodies of any of the
11foregoing including but not limited to committees and
12subcommittees thereof, and a School Finance Authority created
13under Article 1E of the School Code. "Public body" does not
14include a child death review team or the Illinois Child Death
15Review Teams Executive Council established under the Child
16Death Review Team Act.
17    (b) "Person" means any individual, corporation,
18partnership, firm, organization or association, acting
19individually or as a group.
20    (c) "Public records" means all records, reports, forms,
21writings, letters, memoranda, books, papers, maps,
22photographs, microfilms, cards, tapes, recordings, electronic
23data processing records, electronic communications, recorded
24information and all other documentary materials pertaining to
25the transaction of public business, regardless of physical form

 

 

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1or characteristics, having been prepared by or for, or having
2been or being used by, received by, in the possession of, or
3under the control of any public body. Communications and
4materials exchanged between a lobbyist and a public body that
5concern either lobbying performed on behalf of the public body
6by the lobbyist or the expenditure of public moneys for goods
7or services provided on behalf of the public body by the
8lobbyist are public records and are not exempt from inspection
9and copying unless exempt under Section 7.
10    (c-5) "Private information" means unique identifiers,
11including a person's social security number, driver's license
12number, employee identification number, biometric identifiers,
13personal financial information, passwords or other access
14codes, medical records or information (such as treatment
15histories, descriptions of injuries, information regarding the
16hospital to which an injured person is taken, insurance policy
17numbers, and pregnancy status), home or personal telephone
18numbers, dates of birth, the names of applicants for public
19employment, completed applications for public employment, and
20personal email addresses. Private information also includes
21home address and personal license plates, except as otherwise
22provided by law or when compiled without possibility of
23attribution to any person.
24    (c-10) "Commercial purpose" means the purpose or intent to
25use of any part of a public record or records, or information
26derived from public records, in any form for sale, resale, or

 

 

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1solicitation or advertisement for sales or services or to
2otherwise further a commercial, trade, or profit interest or
3enterprise, as those terms are commonly understood. For
4purposes of this definition, requests made by news media and
5non-profit, scientific, or academic organizations shall not be
6considered to be made for a "commercial purpose" when the
7principal purpose of the request is (i) to access and
8disseminate information concerning news and current or passing
9events, (ii) for articles of opinion or features of interest to
10the public, or (iii) for the purpose of academic, scientific,
11or public research or education. For purposes of this
12definition, requests made by a member or employee of a public
13body to either the public body of which the person is a member
14or employee or to another public body shall not be considered
15to be made for a commercial purpose if the information will be
16used by that person in his or her official capacity or as part
17of his or her employment.
18    (d) "Copying" means the reproduction of any public record
19by means of any photographic, electronic, mechanical or other
20process, device or means now known or hereafter developed and
21available to the public body.
22    (e) "Head of the public body" means the president, mayor,
23chairman, presiding officer, director, superintendent,
24manager, supervisor or individual otherwise holding primary
25executive and administrative authority for the public body, or
26such person's duly authorized designee.

 

 

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1    (f) "News media" means a newspaper or other periodical
2issued at regular intervals whether in print or electronic
3format, a news service whether in print or electronic format, a
4radio station, a television station, a television network, a
5community antenna television service, or a person or
6corporation engaged in making news reels or other motion
7picture news for public showing.
8    (g) "Vexatious request for records" means a request for
9records that is made by a person who, in the 12 months
10immediately preceding the request, has submitted to the same
11public body (i) a minimum of 48 requests for records, (ii) a
12minimum of 10 requests for records within a 30-day period,
13(iii) a minimum of 5 requests for records within a 7-day
14period, (iv) one or more requests for records that required a
15response by the public body consisting of at least 1,500 pages
16in the aggregate, or (v) one or more requests for records that
17have sought a minimum of 20 different categories of records.
18For the purposes of this definition, a request made by news
19media shall not be considered a vexatious request for records
20when the principal purpose of the request is (i) to access and
21disseminate information concerning news and current or passing
22events or (ii) for articles of opinion or features of interest
23to the public.
24    (h) "Business day" means any calendar day except a
25Saturday, Sunday, or legal holiday. For public bodies that are
26organized or established pursuant to the School Code, "business

 

 

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1day" does not include any non-pupil attendance days between the
2opening and closing of the school term specified in the
3calendar established in accordance with Section 10-19 of the
4School Code.
5(Source: P.A. 96-261, eff. 1-1-10; 96-542, eff. 1-1-10;
696-1000, eff. 7-2-10.)
 
7    (5 ILCS 140/3)  (from Ch. 116, par. 203)
8    Sec. 3. Inspection or copying of public records; no
9exclusive right to access and dissemination; request
10procedure.
11    (a) Each public body shall make available to any person for
12inspection or copying all public records, except as otherwise
13provided in Section 7 of this Act. Notwithstanding any other
14law, a public body may not grant to any person or entity,
15whether by contract, license, or otherwise, the exclusive right
16to access and disseminate any public record as defined in this
17Act.
18    (b) Subject to the fee provisions of Section 6 of this Act,
19each public body shall promptly provide, to any person who
20submits a request, a copy of any public record required to be
21disclosed by subsection (a) of this Section and shall certify
22such copy if so requested.
23    (c) Requests for inspection or copies shall be made in
24writing and directed to the public body. Written requests may
25be submitted to a public body via personal delivery, mail,

 

 

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1telefax, or other means available to the public body. A public
2body may honor oral requests for inspection or copying. A
3public body may not require that a request be submitted on a
4standard form or require the requester to specify the purpose
5for a request, except to determine whether the records are
6requested for a commercial purpose or whether to grant a
7request for a fee waiver. All requests for inspection and
8copying received by a public body shall immediately be
9forwarded to its Freedom of Information officer or designee.
10    (d) Each public body shall, promptly, either comply with or
11deny a request for public records within 5 business days after
12its receipt of the request, unless the time for response is
13properly extended under subsection (e) of this Section. Denial
14shall be in writing as provided in Section 9 of this Act.
15Failure to comply with a written request, extend the time for
16response, or deny a request within 5 business days after its
17receipt shall be considered a denial of the request. A public
18body that fails to respond to a request within the requisite
19periods in this Section but thereafter provides the requester
20with copies of the requested public records may not impose a
21fee for such copies. A public body that fails to respond to a
22request received may not treat the request as unduly burdensome
23under subsection (g).
24    (e) The time for response under this Section may be
25extended by the public body for not more than 5 business days
26from the original due date for any of the following reasons:

 

 

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1        (i) the requested records are stored in whole or in
2    part at other locations than the office having charge of
3    the requested records;
4        (ii) the request requires the collection of a
5    substantial number of specified records;
6        (iii) the request is couched in categorical terms and
7    requires an extensive search for the records responsive to
8    it;
9        (iv) the requested records have not been located in the
10    course of routine search and additional efforts are being
11    made to locate them;
12        (v) the requested records require examination and
13    evaluation by personnel having the necessary competence
14    and discretion to determine if they are exempt from
15    disclosure under Section 7 of this Act or should be
16    revealed only with appropriate deletions;
17        (vi) the request for records cannot be complied with by
18    the public body within the time limits prescribed by
19    paragraph (c) of this Section without unduly burdening or
20    interfering with the operations of the public body;
21        (vii) there is a need for consultation, which shall be
22    conducted with all practicable speed, with another public
23    body or among two or more components of a public body
24    having a substantial interest in the determination or in
25    the subject matter of the request.
26    The person making a request and the public body may agree

 

 

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1in writing to extend the time for compliance for a period to be
2determined by the parties. If the requester and the public body
3agree to extend the period for compliance, a failure by the
4public body to comply with any previous deadlines shall not be
5treated as a denial of the request for the records.
6    (f) When additional time is required for any of the above
7reasons, the public body shall, within 5 business days after
8receipt of the request, notify the person making the request of
9the reasons for the extension and the date by which the
10response will be forthcoming. Failure to respond within the
11time permitted for extension shall be considered a denial of
12the request. A public body that fails to respond to a request
13within the time permitted for extension but thereafter provides
14the requester with copies of the requested public records may
15not impose a fee for those copies. A public body that requests
16an extension and subsequently fails to respond to the request
17may not treat the request as unduly burdensome under subsection
18(g).
19    (g) Requests calling for all records falling within a
20category shall be complied with unless compliance with the
21request would be unduly burdensome for the complying public
22body and there is no way to narrow the request and the burden
23on the public body outweighs the public interest in the
24information. Before invoking this exemption, the public body
25shall extend to the person making the request an opportunity to
26confer with it in an attempt to reduce the request to

 

 

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1manageable proportions. If any body responds to a categorical
2request by stating that compliance would unduly burden its
3operation and the conditions described above are met, it shall
4do so in writing, specifying the reasons why it would be unduly
5burdensome and the extent to which compliance will so burden
6the operations of the public body. Such a response shall be
7treated as a denial of the request for information.
8    Repeated requests from the same person for the same records
9that are unchanged or identical to records previously provided
10or properly denied under this Act shall be deemed unduly
11burdensome under this provision.
12    (h) Each public body may promulgate rules and regulations
13in conformity with the provisions of this Section pertaining to
14the availability of records and procedures to be followed,
15including:
16        (i) the times and places where such records will be
17    made available, and
18        (ii) the persons from whom such records may be
19    obtained.
20    (i) The time periods for compliance or denial of a request
21to inspect or copy records set out in this Section shall not
22apply to requests for records made for a commercial purpose.
23Such requests shall be subject to the provisions of Section 3.1
24of this Act.
25    (j) Notwithstanding any provision of this Act to the
26contrary, if a public body receives a request from a person who

 

 

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1is incarcerated in a State correctional institution, it may
2forward the request to the Freedom of Information officer for
3the Illinois Department of Corrections within 5 business days
4after receipt of the request. The Freedom of Information
5officer for the Illinois Department of Corrections shall
6attempt to locate all public records that are responsive to the
7request and shall forward those public records to the requester
8within 5 business days after he or she receives the request. If
9the Freedom of Information officer for the Illinois Department
10of Corrections is unable to locate all public records that are
11responsive to a request, he or she shall submit a request for
12any outstanding public records to the public body that is in
13possession or control of those public records within 10
14business days after the Freedom of Information officer for the
15Illinois Department of Corrections is forwarded a request from
16another public body. Upon receipt of the forwarded request the
17public body shall respond within the time limits otherwise set
18forth in this Act.
19(Source: P.A. 96-542, eff. 1-1-10.)
 
20    (5 ILCS 140/3.2 new)
21    Sec. 3.2. Vexatious request for records.
22    (a) Notwithstanding any provision to the contrary, a public
23body shall respond to a vexatious request for records within 21
24working days after receipt. The response shall (i) provide to
25the requester an estimate of the time required by the public

 

 

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1body to provide the records requested and an estimate of the
2fees to be charged, which the public body may require the
3person to pay in full before copying the requested documents,
4(ii) deny the request pursuant to one or more of the exemptions
5set out in this Act, (iii) notify the requester that the
6request is unduly burdensome and extend an opportunity to the
7requester to attempt to reduce the request to manageable
8proportions, or (iv) provide the records requested.
9    (b) Within 5 working days after receiving a vexatious
10request for records, the public body shall notify the requester
11(i) that the public body is treating the request as a vexatious
12request for records, (ii) of the reasons why the public body is
13treating the request as a vexatious request for records, and
14(iii) that the public body will send an initial response within
1521 working days after receipt in accordance with subsection (a)
16of this Section. The public body shall also notify the
17requester of the proposed responses that can be asserted
18pursuant to subsection (a) of this Section.
19    (c) Unless the records are exempt from disclosure, a public
20body shall comply with a request within a reasonable period
21considering the size and complexity of the request, and
22prioritizing non-commercial or commercial requests for records
23over vexatious requests for records.
24    (d) The Public Access Counselor shall adopt by
25administrative rule procedures to create and maintain a log for
26public bodies that are governed by subsection (a) of Section

 

 

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19.5 of this Act to use for tracking vexatious requests for
2records. The log shall track all requests submitted by a person
3who has filed a vexatious request for records within the
412-month period described in the definition of "vexatious
5request for records" in Section 2 of this Act. Upon receiving a
6vexatious request for records, a public body shall promptly
7send to the Public Access Counselor any information that is
8necessary to complete an entry in the log.
 
9    (5 ILCS 140/6)  (from Ch. 116, par. 206)
10    Sec. 6. Authority to charge fees.
11    (a) When a person requests a copy of a record maintained in
12an electronic format, the public body shall furnish it in the
13electronic format specified by the requester, if feasible. If
14it is not feasible to furnish the public records in the
15specified electronic format, then the public body shall furnish
16it in the format in which it is maintained by the public body,
17or in paper format at the option of the requester. A public
18body may charge the requester for the actual cost of purchasing
19the recording medium, whether disc, diskette, tape, or other
20medium. A public body may not charge the requester for the
21costs of any search for and review of the records or other
22personnel costs associated with reproducing the records only as
23permitted in subsection (f) of this Section. Except to the
24extent that the General Assembly expressly provides, statutory
25fees applicable to copies of public records when furnished in a

 

 

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

 

 

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

 

 

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1    A public body may charge the actual cost of retrieving and
2transporting public records from an off-site storage facility
3when the public records are maintained by a third-party storage
4company under contract with the public body. If a public body
5imposes a fee pursuant to this subsection (f), it must provide
6the requester with an accounting of all fees, costs, and
7personnel hours in connection with the request for public
8records.
9    (g) When a public body determines or estimates that fees to
10be charged under this Section will amount to more than $100,
11the public body shall notify the requester of the actual or
12estimated amount of the fees, unless the requester has
13indicated a willingness to pay fees as high as those
14anticipated. If the public body is able to estimate only a
15portion of the expected fee, the public body shall advise the
16requester that the estimated fee may be only a portion of the
17total fee. If a public body notifies a requester that the
18actual or estimated fees will exceed $100 and requests advance
19payment or deposit of a specific amount by the requester, the
20public body does not have to expend additional resources on the
21request until the requester makes an advance payment or deposit
22of the specific amount.
23    (h) Notwithstanding any provision of this Section to the
24contrary, no fees shall be imposed on the person making the
25request if (i) he or she is a member or employee of a public
26body and (ii) he or she intends to use the requested

 

 

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1information in his or her official capacity or as part of his
2or her employment.
3    (i) If a requester has previously failed to pay a properly
4charged fee to the public body within 30 days after the date of
5billing, the public body may require the requester to pay the
6full amount due and to make an advance payment of the full
7amount of any anticipated fee before the public body begins to
8process a new request or continues to process a pending request
9from that requester.
10    (j) If a public body reasonably believes that a requester
11or group of requesters acting together is attempting to divide
12a request into multiple series of requests for the purpose of
13avoiding fees, the public body may aggregate those requests and
14charge accordingly, provided that the public body notifies the
15requester or requesters before taking that action.
16(Source: P.A. 96-542, eff. 1-1-10; 96-1000, eff. 7-2-10.)
 
17    (5 ILCS 140/7)  (from Ch. 116, par. 207)
18    Sec. 7. Exemptions.
19    (1) When a request is made to inspect or copy a public
20record that contains information that is exempt from disclosure
21under this Section, but also contains information that is not
22exempt from disclosure, the public body may elect to redact the
23information that is exempt. The public body shall make the
24remaining information available for inspection and copying.
25Subject to this requirement, the following shall be exempt from

 

 

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

 

 

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

 

 

09700SB2203sam002- 22 -LRB097 08645 JDS 54290 a

1        techniques other than those generally used and known or
2        disclose internal documents of correctional agencies
3        related to detection, observation, or investigation of
4        incidents of crime or misconduct, and disclosure would
5        result in demonstrable harm to the agency or public
6        body that is the recipient of the request;
7            (vi) endanger the life or physical safety of law
8        enforcement personnel or any other person; or
9            (vii) obstruct an ongoing criminal investigation
10        by the agency that is the recipient of the request.
11    For the purposes of this paragraph (d), if the recipient of
12the request for records is other than (i) the public body that
13is contemplating or conducting the administrative enforcement
14proceeding or investigation or (ii) the law enforcement or
15correctional agency that is contemplating or conducting the law
16enforcement proceeding or investigation, then the original
17recipient of the request shall transmit the request to the
18Freedom of Information officer of the public body that is
19contemplating or conducting the proceeding or investigation
20within 2 business days after the receipt of the request. The
21original recipient of the request shall notify the requester
22that the request for records was transmitted to another public
23body and shall identify the public body to which the request
24was forwarded. Upon receipt of the forwarded request, the
25public body shall respond to the request within the time limits
26otherwise set forth in this Act.

 

 

09700SB2203sam002- 23 -LRB097 08645 JDS 54290 a

1        (e) Records that relate to or affect the security of
2    correctional institutions and detention facilities.
3        (f) Preliminary drafts, notes, recommendations,
4    memoranda and any other records in which opinions are
5    expressed, or policies or actions are formulated, except
6    that a specific record or relevant portion of a record
7    shall not be exempt when the record is publicly cited and
8    identified by the head of the public body. The exemption
9    provided in this paragraph (f) extends to all those records
10    of officers and agencies of the General Assembly that
11    pertain to the preparation of legislative documents.
12        (g) Trade secrets and commercial or financial
13    information obtained from a person or business where the
14    trade secrets or commercial or financial information are
15    furnished under a claim that they are proprietary,
16    privileged or confidential, and that disclosure of the
17    trade secrets or commercial or financial information would
18    cause competitive harm to the person or business, and only
19    insofar as the claim directly applies to the records
20    requested.
21        The information included under this exemption includes
22    all trade secrets and commercial or financial information
23    obtained by a public body, including a public pension fund,
24    from a private equity fund or a privately held company
25    within the investment portfolio of a private equity fund as
26    a result of either investing or evaluating a potential

 

 

09700SB2203sam002- 24 -LRB097 08645 JDS 54290 a

1    investment of public funds in a private equity fund. The
2    exemption contained in this item does not apply to the
3    aggregate financial performance information of a private
4    equity fund, nor to the identity of the fund's managers or
5    general partners. The exemption contained in this item does
6    not apply to the identity of a privately held company
7    within the investment portfolio of a private equity fund,
8    unless the disclosure of the identity of a privately held
9    company may cause competitive harm.
10        Nothing contained in this paragraph (g) shall be
11    construed to prevent a person or business from consenting
12    to disclosure.
13        (h) Proposals and bids for any contract, grant, or
14    agreement, including information which if it were
15    disclosed would frustrate procurement or give an advantage
16    to any person proposing to enter into a contractor
17    agreement with the body, until an award or final selection
18    is made. Information prepared by or for the body in
19    preparation of a bid solicitation shall be exempt until an
20    award or final selection is made.
21        (i) Valuable formulae, computer geographic systems,
22    designs, drawings and research data obtained or produced by
23    any public body when disclosure could reasonably be
24    expected to produce private gain or public loss. The
25    exemption for "computer geographic systems" provided in
26    this paragraph (i) does not extend to requests made by news

 

 

09700SB2203sam002- 25 -LRB097 08645 JDS 54290 a

1    media as defined in Section 2 of this Act when the
2    requested information is not otherwise exempt and the only
3    purpose of the request is to access and disseminate
4    information regarding the health, safety, welfare, or
5    legal rights of the general public.
6        (j) The following information pertaining to
7    educational matters:
8            (i) test questions, scoring keys and other
9        examination data used to administer an academic
10        examination;
11            (ii) information received by a primary or
12        secondary school, college, or university under its
13        procedures for the evaluation of faculty members by
14        their academic peers;
15            (iii) information concerning a school or
16        university's adjudication of student disciplinary
17        cases, but only to the extent that disclosure would
18        unavoidably reveal the identity of the student; and
19            (iv) course materials or research materials used
20        by faculty members.
21        (k) Architects' plans, engineers' technical
22    submissions, and other construction related technical
23    documents for projects not constructed or developed in
24    whole or in part with public funds and the same for
25    projects constructed or developed with public funds,
26    including but not limited to power generating and

 

 

09700SB2203sam002- 26 -LRB097 08645 JDS 54290 a

1    distribution stations and other transmission and
2    distribution facilities, water treatment facilities,
3    airport facilities, sport stadiums, convention centers,
4    and all government owned, operated, or occupied buildings,
5    but only to the extent that disclosure would compromise
6    security.
7        (l) Minutes of meetings of public bodies closed to the
8    public as provided in the Open Meetings Act until the
9    public body makes the minutes available to the public under
10    Section 2.06 of the Open Meetings Act.
11        (m) Communications between a public body and an
12    attorney or auditor representing the public body that would
13    not be subject to discovery in litigation, and materials
14    prepared or compiled by or for a public body in
15    anticipation of a criminal, civil or administrative
16    proceeding upon the request of an attorney advising the
17    public body, and materials prepared or compiled with
18    respect to internal audits of public bodies. However,
19    communications and materials exchanged between a lobbyist
20    and a public body that concern either lobbying performed on
21    behalf of the public body by the lobbyist or the
22    expenditure of public moneys for goods or services provided
23    on behalf of the public body by the lobbyist are public
24    records and are not exempt from inspection and copying
25    based solely on the lobbyist's status as an attorney or
26    auditor.

 

 

09700SB2203sam002- 27 -LRB097 08645 JDS 54290 a

1        (n) Records relating to a public body's adjudication of
2    employee grievances or disciplinary cases; however, this
3    exemption shall not extend to the final outcome of cases in
4    which discipline is imposed.
5        (o) Administrative or technical information associated
6    with automated data processing operations, including but
7    not limited to software, operating protocols, computer
8    program abstracts, file layouts, source listings, object
9    modules, load modules, user guides, documentation
10    pertaining to all logical and physical design of
11    computerized systems, employee manuals, and any other
12    information that, if disclosed, would jeopardize the
13    security of the system or its data or the security of
14    materials exempt under this Section.
15        (p) Records relating to collective negotiating matters
16    between public bodies and their employees or
17    representatives, except that any final contract or
18    agreement shall be subject to inspection and copying.
19        (q) Test questions, scoring keys, and other
20    examination data used to determine the qualifications of an
21    applicant for a license or employment.
22        (r) The records, documents, and information relating
23    to real estate purchase negotiations until those
24    negotiations have been completed or otherwise terminated.
25    With regard to a parcel involved in a pending or actually
26    and reasonably contemplated eminent domain proceeding

 

 

09700SB2203sam002- 28 -LRB097 08645 JDS 54290 a

1    under the Eminent Domain Act, records, documents and
2    information relating to that parcel shall be exempt except
3    as may be allowed under discovery rules adopted by the
4    Illinois Supreme Court. The records, documents and
5    information relating to a real estate sale shall be exempt
6    until a sale is consummated.
7        (s) Any and all proprietary information and records
8    related to the operation of an intergovernmental risk
9    management association or self-insurance pool or jointly
10    self-administered health and accident cooperative or pool.
11    Insurance or self insurance (including any
12    intergovernmental risk management association or self
13    insurance pool) claims, loss or risk management
14    information, records, data, advice or communications.
15        (t) Information contained in or related to
16    examination, operating, or condition reports prepared by,
17    on behalf of, or for the use of a public body responsible
18    for the regulation or supervision of financial
19    institutions or insurance companies, unless disclosure is
20    otherwise required by State law.
21        (u) Information that would disclose or might lead to
22    the disclosure of secret or confidential information,
23    codes, algorithms, programs, or private keys intended to be
24    used to create electronic or digital signatures under the
25    Electronic Commerce Security Act.
26        (v) Vulnerability assessments, security measures, and

 

 

09700SB2203sam002- 29 -LRB097 08645 JDS 54290 a

1    response policies or plans that are designed to identify,
2    prevent, or respond to potential attacks upon a community's
3    population or systems, facilities, or installations, the
4    destruction or contamination of which would constitute a
5    clear and present danger to the health or safety of the
6    community, but only to the extent that disclosure could
7    reasonably be expected to jeopardize the effectiveness of
8    the measures or the safety of the personnel who implement
9    them or the public. Information exempt under this item may
10    include such things as details pertaining to the
11    mobilization or deployment of personnel or equipment, to
12    the operation of communication systems or protocols, or to
13    tactical operations.
14        (w) (Blank).
15        (x) Maps and other records regarding the location or
16    security of generation, transmission, distribution,
17    storage, gathering, treatment, or switching facilities
18    owned by a utility, by a power generator, or by the
19    Illinois Power Agency.
20        (y) Information contained in or related to proposals,
21    bids, or negotiations related to electric power
22    procurement under Section 1-75 of the Illinois Power Agency
23    Act and Section 16-111.5 of the Public Utilities Act that
24    is determined to be confidential and proprietary by the
25    Illinois Power Agency or by the Illinois Commerce
26    Commission.

 

 

09700SB2203sam002- 30 -LRB097 08645 JDS 54290 a

1        (z) Information about students exempted from
2    disclosure under Sections 10-20.38 or 34-18.29 of the
3    School Code, and information about undergraduate students
4    enrolled at an institution of higher education exempted
5    from disclosure under Section 25 of the Illinois Credit
6    Card Marketing Act of 2009.
7        (aa) Information the disclosure of which is exempted
8    under the Viatical Settlements Act of 2009.
9        (bb) Records and information provided to a mortality
10    review team and records maintained by a mortality review
11    team appointed under the Department of Juvenile Justice
12    Mortality Review Team Act.
13        (cc) (bb) Information regarding interments,
14    entombments, or inurnments of human remains that are
15    submitted to the Cemetery Oversight Database under the
16    Cemetery Care Act or the Cemetery Oversight Act, whichever
17    is applicable.
18        (dd) The names, addresses, or other personal
19    information of participants, volunteers, and registrants
20    in programs of park districts, forest preserve districts,
21    conservation districts, recreation agencies, and special
22    recreation associations.
23        (ee) The names of subscribers to any magazine,
24    newsletter, periodical, or other publication of a public
25    body.
26        (ff) Personally identifiable information exempted from

 

 

09700SB2203sam002- 31 -LRB097 08645 JDS 54290 a

1    disclosure by subsection (g) of Section 19.1 of the Toll
2    Highway Act.
3        (gg) Utility bills for individual customers of a
4    municipally owned or operated gas, electric, telephone, or
5    water utility company. However, this exemption does not
6    apply to any utility bills of a public body.
7        (hh) Investigative or crime scene photographs or video
8    recordings of a deceased person, a part of a deceased
9    person, or any part of a person's extreme, severe, or acute
10    injuries. However, that information shall be released in
11    accordance with this Act to the person depicted in the
12    photographs or video recordings, or if the person is
13    deceased, that information shall be released to the
14    person's surviving spouse, parents, adult siblings, or
15    adult children. This information shall also be released to
16    any public body or federal agency in furtherance of its
17    official duties and pursuant to a written request to the
18    public body in possession of the records.
19    (2) A public record that is not in the possession of a
20public body but is in the possession of a party with whom the
21agency has contracted to perform a governmental function on
22behalf of the public body, and that directly relates to the
23governmental function and is not otherwise exempt under this
24Act, shall be considered a public record of the public body,
25for purposes of this Act.
26    (3) This Section does not authorize withholding of

 

 

09700SB2203sam002- 32 -LRB097 08645 JDS 54290 a

1information or limit the availability of records to the public,
2except as stated in this Section or otherwise provided in this
3Act.
4(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
595-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
696-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;
796-736, eff. 7-1-10; 96-863, eff. 3-1-10; 96-1378, eff.
87-29-10; revised 9-2-10.)
 
9    (5 ILCS 140/9.5)
10    Sec. 9.5. Public Access Counselor; opinions.
11    (a) A person whose request to inspect or copy a public
12record is denied by a public body, except the General Assembly
13and committees, commissions, and agencies thereof, may file a
14request for review with the Public Access Counselor established
15in the Office of the Attorney General not later than 60 days
16after the date of the final denial. The request for review must
17be in writing, signed by the requester, and include (i) a copy
18of the request for access to records and (ii) any responses
19from the public body.
20    (b) A public body that receives a request for records, and
21asserts that the records are exempt under subsection (1)(c) or
22(1)(f) of Section 7 of this Act, shall, within the time periods
23provided for responding to a request, provide written notice to
24the requester and the Public Access Counselor of its intent to
25deny the request in whole or in part. The notice shall include:

 

 

09700SB2203sam002- 33 -LRB097 08645 JDS 54290 a

1(i) a copy of the request for access to records; (ii) the
2proposed response from the public body; and (iii) a detailed
3summary of the public body's basis for asserting the exemption.
4Upon receipt of a notice of intent to deny from a public body,
5the Public Access Counselor shall determine whether further
6inquiry is warranted. Within 5 working days after receipt of
7the notice of intent to deny, the Public Access Counselor shall
8notify the public body and the requester whether further
9inquiry is warranted. If the Public Access Counselor determines
10that further inquiry is warranted, the procedures set out in
11this Section regarding the review of denials, including the
12production of documents, shall also be applicable to the
13inquiry and resolution of a notice of intent to deny from a
14public body. Times for response or compliance by the public
15body under Section 3 of this Act shall be tolled until the
16Public Access Counselor concludes his or her inquiry.
17    Notwithstanding any other provision of this subsection
18(b), a public body that receives a request for records and
19asserts that those records are exempt under subsection (1)(c)
20or (1)(f) of Section 7 of this Act has no duty to provide a
21written notice of its intent not to disclose a date of birth,
22medical or health information, the names of applicants for
23public employment, or completed applications for public
24employment.
25    (c) Upon receipt of a request for review, the Public Access
26Counselor shall determine whether further action is warranted.

 

 

09700SB2203sam002- 34 -LRB097 08645 JDS 54290 a

1If the Public Access Counselor determines that the alleged
2violation is unfounded, he or she shall so advise the requester
3and the public body and no further action shall be undertaken.
4In all other cases, the Public Access Counselor shall forward a
5copy of the request for review to the public body within 7
6working days after receipt and shall specify the records or
7other documents that the public body shall furnish to
8facilitate the review. Within 7 working days after receipt of
9the request for review, the public body shall provide copies of
10records requested and shall otherwise fully cooperate with the
11Public Access Counselor. If a public body fails to furnish
12specified records pursuant to this Section, or if otherwise
13necessary, the Attorney General may issue a subpoena to any
14person or public body having knowledge of or records pertaining
15to a request for review of a denial of access to records under
16the Act. To the extent that records or documents produced by a
17public body contain information that is claimed to be exempt
18from disclosure under Section 7 of this Act, the Public Access
19Counselor shall not further disclose that information.
20    (d) Within 7 working days after it receives a copy of a
21request for review and request for production of records from
22the Public Access Counselor, the public body may, but is not
23required to, answer the allegations of the request for review.
24The answer may take the form of a letter, brief, or memorandum.
25The Public Access Counselor shall forward a copy of the answer
26to the person submitting the request for review, with any

 

 

09700SB2203sam002- 35 -LRB097 08645 JDS 54290 a

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

 

 

09700SB2203sam002- 36 -LRB097 08645 JDS 54290 a

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

 

 

09700SB2203sam002- 37 -LRB097 08645 JDS 54290 a

1upon which the opinion is based have been fully and fairly
2disclosed to the Public Access Counselor.
3(Source: P.A. 96-542, eff. 1-1-10.)
 
4    Section 10. The Toll Highway Act is amended by adding
5Section 19.1 as follows:
 
6    (605 ILCS 10/19.1 new)
7    Sec. 19.1. Confidentiality of personally identifiable
8information obtained through electronic toll collection
9system.
10    (a) Except as otherwise provided in this Section, the
11Authority may not sell or otherwise provide to any person or
12entity personally identifiable information of any electronic
13toll collection system user that the Authority obtains through
14the operation of its electronic toll collection system.
15    (b) The Authority may, within practical business and cost
16constraints, store personally identifiable information of an
17electronic toll collection system user only if the information
18is required to perform account functions, such as billing,
19account settlement, or toll violation enforcement activities.
20    (c) By no later than December 31, 2011, the Authority shall
21establish a privacy policy regarding the collection and use of
22personally identifiable information. Upon its adoption, the
23policy shall be posted on the Authority's website and a copy
24shall be included with each transponder transmitted to a user.

 

 

09700SB2203sam002- 38 -LRB097 08645 JDS 54290 a

1The policy shall include but need not be limited to the
2following:
3        (1) A description of the types of personally
4    identifiable information collected by the Authority.
5        (2) The categories of third-party persons or entities
6    with whom the Authority may share personally identifiable
7    information and for what purposes that information is
8    shared.
9        (3) The process by which the Authority notifies
10    electronic toll collection system users of material
11    changes to its privacy policy.
12        (4) The process by which an electronic toll collection
13    system user may review and request changes to any of his or
14    her personally identifiable information.
15        (5) The effective date of the privacy policy.
16    (d) This Section does not prohibit the Authority from:
17        (1) providing aggregated traveler information derived
18    from collective data relating to a group or category of
19    electronic toll collection system users from which
20    personally identifiable information has been removed;
21        (2) sharing data with another transportation agency or
22    third-party vendor to comply with interoperability
23    specifications and standards regarding electronic toll
24    collection devices and technologies, provided that the
25    other transportation agency or third-party vendor may not
26    use personally identifiable information obtained under

 

 

09700SB2203sam002- 39 -LRB097 08645 JDS 54290 a

1    this Section for a purpose other than described in this
2    Section;
3        (3) performing financial, legal and accounting
4    functions such as billing, account settlement, toll
5    violation enforcement, or other activities required to
6    operate and manage its toll collection system;
7        (4) communicating about products and services offered
8    by itself, a business partner, or another public agency;
9        (5) using personally identifiable information in
10    research projects, provided that appropriate
11    confidentiality restrictions are employed to protect
12    against the unauthorized release of such information;
13        (6) releasing personally identifiable information in
14    response to a warrant, subpoena or lawful order from a
15    court of competent jurisdiction;
16        (7) releasing personally identifiable information to
17    law enforcement agencies in the case of an emergency when
18    obtaining a warrant or subpoena would be impractical; and
19        (8) releasing personally identifiable information to
20    the Authority's Inspector General or, at the Inspector
21    General's direction, to law enforcement agencies under
22    paragraphs (5) and (6) of subsection (f) of Section 8.5 of
23    this Act.
24    (e) For purposes of this Section:
25    "Electronic toll collection system" is a system where a
26transponder, camera-based vehicle identification system, or

 

 

09700SB2203sam002- 40 -LRB097 08645 JDS 54290 a

1other electronic medium is used to deduct payment of a toll
2from a subscriber's account or to establish an obligation to
3pay a toll.
4    "Electronic toll collection system user" means any natural
5person who subscribes to an electronic toll collection system
6or any natural person who uses a tolled transportation facility
7that employs the Authority's electronic toll collection
8system.
9    "Personally identifiable information" means any
10information that identifies or describes an electronic toll
11collection system user, including but not limited to travel
12pattern data, address, telephone number, e-mail address,
13license plate number, photograph, vehicle location, bank
14account information, or credit card number.
15    (f) In any agreement allowing another public entity to use
16the Authority's toll collection system in a transportation
17facility, the Authority shall require the other public entity
18to comply with the requirements of this Section.
19    (g) Personally identifiable information generated through
20the Authority's toll collection process that reveals the date,
21time, location or direction of travel by an electronic toll
22collection system user shall be exempt from release under the
23Illinois Freedom of Information Act. The exemption in this
24subsection shall not apply to information that concerns (i) the
25public duties of public employees; (ii) whether an electronic
26toll collection system user has paid tolls; (iii) whether the

 

 

09700SB2203sam002- 41 -LRB097 08645 JDS 54290 a

1Authority is enforcing toll violation penalties against
2electronic toll collection users who do not pay tolls; (iv)
3accidents or other incidents that occur on highways under the
4jurisdiction of the Authority; or (v) other operations of the
5Authority.
 
6    Section 99. Effective date. This Act takes effect upon
7becoming law.".