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Full Text of SB2203  97th General Assembly

SB2203 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB2203

 

Introduced 2/10/2011, by Sen. David Koehler

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Freedom of Information Act. In the Act's intent provisions, removes references to the lower priority of a public body's financial obligations when considering requests. Changes the deadline by which a public body must act on a records request and provides that that period is to be calculated in accordance with the Statute on Statutes and, with respect to School Code entities, certain provisions of the School Code relating to non-pupil attendance days. Authorizes each public body to charge fees for reproducing and certifying public records. Removes the requirement that a public body provide the first 150 pages of a request at no charge. Removes the requirement that a public body include certain legal bases when denying a request. Permits a public body to seek review of a binding opinion of the Public Access Counselor in the county where the body's principal office is located (now, Cook County or Sangamon County). With respect to the disclosure exemption for personal information, removes the balancing test with respect to an unwarranted invasion of privacy. Exempts from disclosure employment applications and applications for appointments to fill vacancies in public offices. Deletes provisions requiring public bodies to give notice to the Public Access Counselor before asserting exemptions for personal information or preliminary documents. Requires (now, permits) a review when a public body seeks an advisory opinion from the Public Access Counselor. Provides for the effects of a public body seeking and relying upon a binding written opinion of the Public Access Counselor. Effective immediately.


LRB097 08645 JDS 48774 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB2203LRB097 08645 JDS 48774 b

1    AN ACT concerning government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Freedom of Information Act is amended by
5changing Sections 1, 3, 3.1, 6, 7, 9, 9.5, and 11.5 as follows:
 
6    (5 ILCS 140/1)  (from Ch. 116, par. 201)
7    Sec. 1. Pursuant to the fundamental philosophy of the
8American constitutional form of government, it is declared to
9be the public policy of the State of Illinois that all persons
10are entitled to full and complete information regarding the
11affairs of government and the official acts and policies of
12those who represent them as public officials and public
13employees consistent with the terms of this Act. Such access is
14necessary to enable the people to fulfill their duties of
15discussing public issues fully and freely, making informed
16political judgments and monitoring government to ensure that it
17is being conducted in the public interest.
18    The General Assembly hereby declares that it is the public
19policy of the State of Illinois that access by all persons to
20public records promotes the transparency and accountability of
21public bodies at all levels of government. It is a fundamental
22obligation of government to operate openly and provide public
23records as expediently and efficiently as possible in

 

 

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1compliance with this Act.
2     This Act is not intended to cause an unwarranted invasion
3of personal privacy, nor to allow a request the requests of a
4commercial enterprise to unduly burden public resources, or to
5disrupt the duly-undertaken work of any public body independent
6of the fulfillment of any of the fore-mentioned rights of the
7people to access to information.
8    This Act is not intended to create an obligation on the
9part of any public body to maintain or prepare any public
10record which was not maintained or prepared by such public body
11at the time when this Act becomes effective, except as
12otherwise required by applicable local, State or federal law.
13    Restraints on access to information, to the extent
14permitted by this Act, are limited exceptions to the principle
15that the people of this State have a right to full disclosure
16of information relating to the decisions, policies,
17procedures, rules, standards, and other aspects of government
18activity that affect the conduct of government and the lives of
19any or all of the people. The provisions of this Act shall be
20construed in accordance with this principle. This Act shall be
21construed to require disclosure of requested information as
22expediently and efficiently as possible and adherence to the
23deadlines established in this Act.
24    The General Assembly recognizes that this Act imposes
25fiscal obligations on public bodies to provide adequate staff
26and equipment to comply with its requirements. The General

 

 

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1Assembly declares that providing records in compliance with the
2requirements of this Act is a primary duty of public bodies to
3the people of this State, and this Act should be construed to
4this end, fiscal obligations notwithstanding.
5    The General Assembly further recognizes that technology
6may advance at a rate that outpaces its ability to address
7those advances legislatively. To the extent that this Act may
8not expressly apply to those technological advances, this Act
9should nonetheless be interpreted to further the declared
10policy of this Act that public records shall be made available
11upon request except when denial of access furthers the public
12policy underlying a specific exemption.
13    This Act shall be the exclusive State statute on freedom of
14information, except to the extent that other State statutes
15might create additional restrictions on disclosure of
16information or other laws in Illinois might create additional
17obligations for disclosure of information to the public.
18(Source: P.A. 96-542, eff. 1-1-10.)
 
19    (5 ILCS 140/3)  (from Ch. 116, par. 203)
20    Sec. 3. (a) Each public body shall make available to any
21person for inspection or copying all public records, except as
22otherwise provided in Section 7 of this Act. Notwithstanding
23any other law, a public body may not grant to any person or
24entity, whether by contract, license, or otherwise, the
25exclusive right to access and disseminate any public record as

 

 

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1defined in this Act.
2    (b) Subject to the fee provisions of Section 6 of this Act,
3each public body shall promptly provide, to any person who
4submits a request, a copy of any public record required to be
5disclosed by subsection (a) of this Section and shall certify
6such copy if so requested.
7    (c) Requests for inspection or copies shall be made in
8writing and directed to the public body. Written requests may
9be submitted to a public body via personal delivery, mail,
10telefax, or other means available to the public body. A public
11body may honor oral requests for inspection or copying. A
12public body may not require that a request be submitted on a
13standard form or require the requester to specify the purpose
14for a request, except to determine whether the records are
15requested for a commercial purpose or whether to grant a
16request for a fee waiver. All requests for inspection and
17copying received by a public body shall immediately be
18forwarded to its Freedom of Information officer or designee.
19    (d) Each public body shall, promptly, either comply with or
20deny a request for public records within 10 5 business days
21(calculated in accordance with Section 1.11 of the Statute on
22Statutes and, when the public body is organized or established
23pursuant to the School Code, excluding all non-pupil attendance
24days between the opening and closing days of the school term
25specified in the calendar established in accordance with
26Section 10-19 of the School Code) after its receipt of the

 

 

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1request, unless the time for response is properly extended
2under subsection (e) of this Section. Denial shall be in
3writing as provided in Section 9 of this Act. Failure to comply
4with a written request, extend the time for response, or deny a
5request within 5 business days after its receipt shall be
6considered a denial of the request. A public body that fails to
7respond to a request within the requisite periods in this
8Section but thereafter provides the requester with copies of
9the requested public records may not impose a fee for such
10copies. A public body that fails to respond to a request
11received may not treat the request as unduly burdensome under
12subsection (g).
13    (e) The time for response under this Section may be
14extended by the public body for not more than 5 business days
15from the original due date for any of the following reasons:
16        (i) the requested records are stored in whole or in
17    part at other locations than the office having charge of
18    the requested records;
19        (ii) the request requires the collection of a
20    substantial number of specified records;
21        (iii) the request is couched in categorical terms and
22    requires an extensive search for the records responsive to
23    it;
24        (iv) the requested records have not been located in the
25    course of routine search and additional efforts are being
26    made to locate them;

 

 

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1        (v) the requested records require examination and
2    evaluation by personnel having the necessary competence
3    and discretion to determine if they are exempt from
4    disclosure under Section 7 of this Act or should be
5    revealed only with appropriate deletions;
6        (vi) the request for records cannot be complied with by
7    the public body within the time limits prescribed by
8    paragraph (c) of this Section without unduly burdening or
9    interfering with the operations of the public body;
10        (vii) there is a need for consultation, which shall be
11    conducted with all practicable speed, with another public
12    body or among two or more components of a public body
13    having a substantial interest in the determination or in
14    the subject matter of the request.
15    The person making a request and the public body may agree
16in writing to extend the time for compliance for a period to be
17determined by the parties. If the requester and the public body
18agree to extend the period for compliance, a failure by the
19public body to comply with any previous deadlines shall not be
20treated as a denial of the request for the records.
21    (f) When additional time is required for any of the above
22reasons, the public body shall, within 5 business days after
23receipt of the request, notify the person making the request of
24the reasons for the extension and the date by which the
25response will be forthcoming. Failure to respond within the
26time permitted for extension shall be considered a denial of

 

 

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1the request. A public body that fails to respond to a request
2within the time permitted for extension but thereafter provides
3the requester with copies of the requested public records may
4not impose a fee for those copies. A public body that requests
5an extension and subsequently fails to respond to the request
6may not treat the request as unduly burdensome under subsection
7(g).
8    (g) Requests calling for all records falling within a
9category shall be complied with unless compliance with the
10request would be unduly burdensome for the complying public
11body and there is no way to narrow the request and the burden
12on the public body outweighs the public interest in the
13information. Before invoking this exemption, the public body
14shall extend to the person making the request an opportunity to
15confer with it in an attempt to reduce the request to
16manageable proportions. If any body responds to a categorical
17request by stating that compliance would unduly burden its
18operation and the conditions described above are met, it shall
19do so in writing, specifying the reasons why it would be unduly
20burdensome and the extent to which compliance will so burden
21the operations of the public body. Such a response shall be
22treated as a denial of the request for information.
23    Repeated requests from the same person for the same records
24that are unchanged or identical to records previously provided
25or properly denied under this Act shall be deemed unduly
26burdensome under this provision.

 

 

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1    (h) Each public body may promulgate rules and regulations
2in conformity with the provisions of this Section pertaining to
3the availability of records and procedures to be followed,
4including:
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
10to inspect or copy records set out in this Section shall not
11apply to requests for records made for a commercial purpose.
12Such requests shall be subject to the provisions of Section 3.1
13of this Act.
14(Source: P.A. 96-542, eff. 1-1-10.)
 
15    (5 ILCS 140/3.1)
16    Sec. 3.1. Requests for commercial purposes.
17    (a) A public body shall respond to a request for records to
18be used for a commercial purpose within 21 working days after
19receipt. Each public body may charge fees for reproducing and
20certifying public records and for the use, by any person, if
21the equipment of the public body to copy records. The response
22shall (i) provide to the requester an estimate of the time
23required by the public body to provide the records requested
24and an estimate of the fees to be charged, which the public
25body may require the person to pay in full before copying the

 

 

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1requested documents, (ii) deny the request pursuant to one or
2more of the exemptions set out in this Act, (iii) notify the
3requester that the request is unduly burdensome and extend an
4opportunity to the requester to attempt to reduce the request
5to manageable proportions, or (iv) provide the records
6requested.
7    (b) Unless the records are exempt from disclosure, a public
8body shall comply with a request within a reasonable period
9considering the size and complexity of the request, and giving
10priority to records requested for non-commercial purposes.
11    (c) It is a violation of this Act for a person to knowingly
12obtain a public record for a commercial purpose without
13disclosing that it is for a commercial purpose, if requested to
14do so by the public body.
15(Source: P.A. 96-542, eff. 1-1-10.)
 
16    (5 ILCS 140/6)  (from Ch. 116, par. 206)
17    Sec. 6. Authority to charge fees.
18    (a) When a person requests a copy of a record maintained in
19an electronic format, the public body shall furnish it in the
20electronic format specified by the requester, if feasible. If
21it is not feasible to furnish the public records in the
22specified electronic format, then the public body shall furnish
23it in the format in which it is maintained by the public body,
24or in paper format at the option of the requester. A public
25body may charge the requester for the actual cost of purchasing

 

 

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1the recording medium, whether disc, diskette, tape, or other
2medium. A public body may not charge the requester for the
3costs of any search for and review of the records or other
4personnel costs associated with reproducing the records.
5Except to the extent that the General Assembly expressly
6provides, statutory fees applicable to copies of public records
7when furnished in a paper format shall not be applicable to
8those records when furnished in an electronic format.
9    (b) Except when a fee is otherwise fixed by statute, each
10public body may charge fees reasonably calculated to reimburse
11its actual cost for reproducing and certifying public records
12and for the use, by any person, of the equipment of the public
13body to copy records. No fees shall be charged for the first 50
14pages of black and white, letter or legal sized copies
15requested by a requester. The fee for black and white, letter
16or legal sized copies shall not exceed 15 cents per page. If a
17public body provides copies in color or in a size other than
18letter or legal, the public body may not charge more than its
19actual cost for reproducing the records. In calculating its
20actual cost for reproducing records or for the use of the
21equipment of the public body to reproduce records, a public
22body shall not include the costs of any search for and review
23of the records or other personnel costs associated with
24reproducing the records. Such fees shall be imposed according
25to a standard scale of fees, established and made public by the
26body imposing them. The cost for certifying a record shall not

 

 

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1exceed $1.
2    (c) Documents shall be furnished without charge or at a
3reduced charge, as determined by the public body, if the person
4requesting the documents states the specific purpose for the
5request and indicates that a waiver or reduction of the fee is
6in the public interest. Waiver or reduction of the fee is in
7the public interest if the principal purpose of the request is
8to access and disseminate information regarding the health,
9safety and welfare or the legal rights of the general public
10and is not for the principal purpose of personal or commercial
11benefit. For purposes of this subsection, "commercial benefit"
12shall not apply to requests made by news media when the
13principal purpose of the request is to access and disseminate
14information regarding the health, safety, and welfare or the
15legal rights of the general public. In setting the amount of
16the waiver or reduction, the public body may take into
17consideration the amount of materials requested and the cost of
18copying them.
19    (d) The imposition of a fee not consistent with subsections
20(6)(a) and (b) of this Act constitutes a denial of access to
21public records for the purposes of judicial review.
22    (e) The fee for each abstract of a driver's record shall be
23as provided in Section 6-118 of "The Illinois Vehicle Code",
24approved September 29, 1969, as amended, whether furnished as a
25paper copy or as an electronic copy.
26(Source: P.A. 96-542, eff. 1-1-10; 96-1000, eff. 7-2-10.)
 

 

 

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1    (5 ILCS 140/7)  (from Ch. 116, par. 207)
2    Sec. 7. Exemptions.
3    (1) When a request is made to inspect or copy a public
4record that contains information that is exempt from disclosure
5under this Section, but also contains information that is not
6exempt from disclosure, the public body may elect to redact the
7information that is exempt. The public body shall make the
8remaining information available for inspection and copying.
9Subject to this requirement, the following shall be exempt from
10inspection and copying:
11        (a) Information specifically prohibited from
12    disclosure by federal or State law or rules and regulations
13    implementing federal or State law.
14        (b) Private information, unless disclosure is required
15    by another provision of this Act, a State or federal law or
16    a court order.
17        (b-5) Files, documents, and other data or databases
18    maintained by one or more law enforcement agencies and
19    specifically designed to provide information to one or more
20    law enforcement agencies regarding the physical or mental
21    status of one or more individual subjects.
22        (c) Personal information contained within public
23    records, the disclosure of which would constitute a clearly
24    unwarranted invasion of personal privacy, unless the
25    disclosure is consented to in writing by the individual

 

 

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1    subjects of the information. "Unwarranted invasion of
2    personal privacy" means the disclosure of information that
3    is highly personal or objectionable to a reasonable person
4    and in which the subject's right to privacy outweighs any
5    legitimate public interest in obtaining the information.
6    The disclosure of information that bears on the public
7    duties of public employees and officials shall not be
8    considered an invasion of personal privacy.
9        (d) Records in the possession of any public body
10    created in the course of administrative enforcement
11    proceedings, and any law enforcement or correctional
12    agency for law enforcement purposes, but only to the extent
13    that disclosure would:
14            (i) interfere with pending or actually and
15        reasonably contemplated law enforcement proceedings
16        conducted by any law enforcement or correctional
17        agency that is the recipient of the request;
18            (ii) interfere with active administrative
19        enforcement proceedings conducted by the public body
20        that is the recipient of the request;
21            (iii) create a substantial likelihood that a
22        person will be deprived of a fair trial or an impartial
23        hearing;
24            (iv) unavoidably disclose the identity of a
25        confidential source, confidential information
26        furnished only by the confidential source, or persons

 

 

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1        who file complaints with or provide information to
2        administrative, investigative, law enforcement, or
3        penal agencies; except that the identities of
4        witnesses to traffic accidents, traffic accident
5        reports, and rescue reports shall be provided by
6        agencies of local government, except when disclosure
7        would interfere with an active criminal investigation
8        conducted by the agency that is the recipient of the
9        request;
10            (v) disclose unique or specialized investigative
11        techniques other than those generally used and known or
12        disclose internal documents of correctional agencies
13        related to detection, observation or investigation of
14        incidents of crime or misconduct, and disclosure would
15        result in demonstrable harm to the agency or public
16        body that is the recipient of the request;
17            (vi) endanger the life or physical safety of law
18        enforcement personnel or any other person; or
19            (vii) obstruct an ongoing criminal investigation
20        by the agency that is the recipient of the request.
21        (e) Records that relate to or affect the security of
22    correctional institutions and detention facilities.
23        (f) Preliminary drafts, notes, recommendations,
24    memoranda and other records in which opinions are
25    expressed, or policies or actions are formulated, except
26    that a specific record or relevant portion of a record

 

 

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1    shall not be exempt when the record is publicly cited and
2    identified by the head of the public body. The exemption
3    provided in this paragraph (f) extends to all those records
4    of officers and agencies of the General Assembly that
5    pertain to the preparation of legislative documents.
6        (g) Trade secrets and commercial or financial
7    information obtained from a person or business where the
8    trade secrets or commercial or financial information are
9    furnished under a claim that they are proprietary,
10    privileged or confidential, and that disclosure of the
11    trade secrets or commercial or financial information would
12    cause competitive harm to the person or business, and only
13    insofar as the claim directly applies to the records
14    requested.
15        The information included under this exemption includes
16    all trade secrets and commercial or financial information
17    obtained by a public body, including a public pension fund,
18    from a private equity fund or a privately held company
19    within the investment portfolio of a private equity fund as
20    a result of either investing or evaluating a potential
21    investment of public funds in a private equity fund. The
22    exemption contained in this item does not apply to the
23    aggregate financial performance information of a private
24    equity fund, nor to the identity of the fund's managers or
25    general partners. The exemption contained in this item does
26    not apply to the identity of a privately held company

 

 

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1    within the investment portfolio of a private equity fund,
2    unless the disclosure of the identity of a privately held
3    company may cause competitive harm.
4        Nothing contained in this paragraph (g) shall be
5    construed to prevent a person or business from consenting
6    to disclosure.
7        (h) Proposals and bids for any contract, grant, or
8    agreement, including information which if it were
9    disclosed would frustrate procurement or give an advantage
10    to any person proposing to enter into a contractor
11    agreement with the body, until an award or final selection
12    is made. Information prepared by or for the body in
13    preparation of a bid solicitation shall be exempt until an
14    award or final selection is made.
15        (i) Valuable formulae, computer geographic systems,
16    designs, drawings and research data obtained or produced by
17    any public body when disclosure could reasonably be
18    expected to produce private gain or public loss. The
19    exemption for "computer geographic systems" provided in
20    this paragraph (i) does not extend to requests made by news
21    media as defined in Section 2 of this Act when the
22    requested information is not otherwise exempt and the only
23    purpose of the request is to access and disseminate
24    information regarding the health, safety, welfare, or
25    legal rights of the general public.
26        (j) The following information pertaining to

 

 

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1    educational matters:
2            (i) test questions, scoring keys and other
3        examination data used to administer an academic
4        examination;
5            (ii) information received by a primary or
6        secondary school, college, or university under its
7        procedures for the evaluation of faculty members by
8        their academic peers;
9            (iii) information concerning a school or
10        university's adjudication of student disciplinary
11        cases, but only to the extent that disclosure would
12        unavoidably reveal the identity of the student; and
13            (iv) course materials or research materials used
14        by faculty members.
15        (k) Architects' plans, engineers' technical
16    submissions, and other construction related technical
17    documents for projects not constructed or developed in
18    whole or in part with public funds and the same for
19    projects constructed or developed with public funds,
20    including but not limited to power generating and
21    distribution stations and other transmission and
22    distribution facilities, water treatment facilities,
23    airport facilities, sport stadiums, convention centers,
24    and all government owned, operated, or occupied buildings,
25    but only to the extent that disclosure would compromise
26    security.

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1    team appointed under the Department of Juvenile Justice
2    Mortality Review Team Act.
3        (cc) (bb) Information regarding interments,
4    entombments, or inurnments of human remains that are
5    submitted to the Cemetery Oversight Database under the
6    Cemetery Care Act or the Cemetery Oversight Act, whichever
7    is applicable.
8    (2) A public record that is not in the possession of a
9public body but is in the possession of a party with whom the
10agency has contracted to perform a governmental function on
11behalf of the public body, and that directly relates to the
12governmental function and is not otherwise exempt under this
13Act, shall be considered a public record of the public body,
14for purposes of this Act.
15    (3) This Section does not authorize withholding of
16information or limit the availability of records to the public,
17except as stated in this Section or otherwise provided in this
18Act.
19(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
2095-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
2196-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;
2296-736, eff. 7-1-10; 96-863, eff. 3-1-10; 96-1378, eff.
237-29-10; revised 9-2-10.)
 
24    (5 ILCS 140/9)  (from Ch. 116, par. 209)
25    Sec. 9. (a) Each public body denying a request for public

 

 

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1records shall notify the requester in writing of the decision
2to deny the request, the reasons for the denial, including a
3detailed factual basis for the application of any exemption
4claimed, and the names and titles or positions of each person
5responsible for the denial. Each notice of denial by a public
6body shall also inform such person of the right to review by
7the Public Access Counselor and provide the address and phone
8number for the Public Access Counselor. Each notice of denial
9shall inform such person of his right to judicial review under
10Section 11 of this Act.
11    (b) When a request for public records is denied on the
12grounds that the records are exempt under Section 7 of this
13Act, the notice of denial shall specify the exemption claimed
14to authorize the denial and the specific reasons for the
15denial, including a detailed factual basis and a citation to
16supporting legal authority. Copies of all notices of denial
17shall be retained by each public body in a single central
18office file that is open to the public and indexed according to
19the type of exemption asserted and, to the extent feasible,
20according to the types of records requested.
21    (c) Any person making a request for public records shall be
22deemed to have exhausted his or her administrative remedies
23with respect to that request if the public body fails to act
24within the time periods provided in Section 3 of this Act.
25(Source: P.A. 96-542, eff. 1-1-10.)
 

 

 

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1    (5 ILCS 140/9.5)
2    Sec. 9.5. Public Access Counselor; opinions.
3    (a) A person whose request to inspect or copy a public
4record is denied by a public body, except the General Assembly
5and committees, commissions, and agencies thereof, may file a
6request for review with the Public Access Counselor established
7in the Office of the Attorney General not later than 60 days
8after the date of the final denial. The request for review must
9be in writing, signed by the requester, and include (i) a copy
10of the request for access to records and (ii) any responses
11from the public body.
12    (b) (Blank). A public body that receives a request for
13records, and asserts that the records are exempt under
14subsection (1)(c) or (1)(f) of Section 7 of this Act, shall,
15within the time periods provided for responding to a request,
16provide written notice to the requester and the Public Access
17Counselor of its intent to deny the request in whole or in
18part. The notice shall include: (i) a copy of the request for
19access to records; (ii) the proposed response from the public
20body; and (iii) a detailed summary of the public body's basis
21for asserting the exemption. Upon receipt of a notice of intent
22to deny from a public body, the Public Access Counselor shall
23determine whether further inquiry is warranted. Within 5
24working days after receipt of the notice of intent to deny, the
25Public Access Counselor shall notify the public body and the
26requester whether further inquiry is warranted. If the Public

 

 

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1Access Counselor determines that further inquiry is warranted,
2the procedures set out in this Section regarding the review of
3denials, including the production of documents, shall also be
4applicable to the inquiry and resolution of a notice of intent
5to deny from a public body. Times for response or compliance by
6the public body under Section 3 of this Act shall be tolled
7until the Public Access Counselor concludes his or her inquiry.
8    (c) Upon receipt of a request for review, the Public Access
9Counselor shall determine whether further action is warranted.
10If the Public Access Counselor determines that the alleged
11violation is unfounded, he or she shall so advise the requester
12and the public body and no further action shall be undertaken.
13In all other cases, the Public Access Counselor shall forward a
14copy of the request for review to the public body within 7
15working days after receipt and shall specify the records or
16other documents that the public body shall furnish to
17facilitate the review. Within 7 working days after receipt of
18the request for review, the public body shall provide copies of
19records requested and shall otherwise fully cooperate with the
20Public Access Counselor. If a public body fails to furnish
21specified records pursuant to this Section, or if otherwise
22necessary, the Attorney General may issue a subpoena to any
23person or public body having knowledge of or records pertaining
24to a request for review of a denial of access to records under
25the Act. To the extent that records or documents produced by a
26public body contain information that is claimed to be exempt

 

 

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1from disclosure under Section 7 of this Act, the Public Access
2Counselor shall not further disclose that information.
3    (d) Within 7 working days after it receives a copy of a
4request for review and request for production of records from
5the Public Access Counselor, the public body may, but is not
6required to, answer the allegations of the request for review.
7The answer may take the form of a letter, brief, or memorandum.
8The Public Access Counselor shall forward a copy of the answer
9to the person submitting the request for review, with any
10alleged confidential information to which the request pertains
11redacted from the copy. The requester may, but is not required
12to, respond in writing to the answer within 7 working days and
13shall provide a copy of the response to the public body.
14    (e) In addition to the request for review, and the answer
15and the response thereto, if any, a requester or a public body
16may furnish affidavits or records concerning any matter germane
17to the review.
18    (f) Unless the Public Access Counselor extends the time by
19no more than 21 business days by sending written notice to the
20requester and the public body that includes a statement of the
21reasons for the extension in the notice, or decides to address
22the matter without the issuance of a binding opinion, the
23Attorney General shall examine the issues and the records,
24shall make findings of fact and conclusions of law, and shall
25issue to the requester and the public body an opinion in
26response to the request for review within 60 days after its

 

 

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1receipt. The opinion shall be binding upon both the requester
2and the public body, subject to administrative review under
3Section 11.5.
4    In responding to any request under this Section 9.5, the
5Attorney General may exercise his or her discretion and choose
6to resolve a request for review by mediation or by a means
7other than the issuance of a binding opinion. The decision not
8to issue a binding opinion shall not be reviewable.
9    Upon receipt of a binding opinion concluding that a
10violation of this Act has occurred, the public body shall
11either take necessary action immediately to comply with the
12directive of the opinion or shall initiate administrative
13review under Section 11.5. If the opinion concludes that no
14violation of the Act has occurred, the requester may initiate
15administrative review under Section 11.5.
16    A public body that discloses records in accordance with an
17opinion of the Attorney General is immune from all liabilities
18by reason thereof and shall not be liable for penalties under
19this Act.
20    (g) If the requester files suit under Section 11 with
21respect to the same denial that is the subject of a pending
22request for review, the requester shall notify the Public
23Access Counselor, and the Public Access Counselor shall take no
24further action with respect to the request for review and shall
25so notify the public body.
26    (h) The Attorney General may also issue advisory opinions

 

 

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1to public bodies regarding compliance with this Act. A review
2shall may be initiated upon receipt of a written request from
3the head of the public body or its attorney, which shall
4contain sufficient accurate facts from which a determination
5can be made. The Public Access Counselor may request additional
6information from the public body in order to assist in the
7review. A public body that relies in good faith on an advisory
8opinion of the Attorney General in responding to a request is
9not liable for penalties under this Act, so long as the facts
10upon which the opinion is based have been fully and fairly
11disclosed to the Public Access Counselor.
12    (i) If a public body requests an opinion from the Public
13Access Counselor, the public body shall notify the requester in
14writing by or before the deadline for response to the request.
15The notification shall toll the time for response until the
16public body receives a binding written opinion from the Public
17Access Counselor that identifies whether or not the requested
18information must be provided and to what extent that
19information shall be disclosed. Upon receipt of such an opinion
20from the Public Access Counselor, the public body shall have 5
21days to comply.
22    (j) In the event an action is brought before the Public
23Access Counselor against a public body for failure to comply
24with this Act after the public body has properly sought an
25opinion from the Public Access Counselor, the Public Access
26Counselor's inquiry shall be limited to whether or not the

 

 

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1public body complied with the Public Access Counselor's ruling.
2    (k) Service of any complaint in a court of law brought
3against a public body shall, in addition to the public body,
4also be made upon the Public Access Counselor. If the basis of
5the complaint is rooted in the production of documents in
6compliance with an opinion or directive of the Public Access
7Counselor, or if the basis of the complaint is rooted in the
8denial of documents in compliance with an opinion or directive
9of the Public Access Counselor, the Public Access Counselor
10shall be required to defend its advice in the action. The
11public body shall only be required to prove its full compliance
12with the directive of the Public Access Counselor and shall be
13immune from suit or inquiry as to whether or not the Public
14Access Counselor's opinion was consistent with this Act.
15(Source: P.A. 96-542, eff. 1-1-10.)
 
16    (5 ILCS 140/11.5)
17    Sec. 11.5. Administrative review. A binding opinion issued
18by the Attorney General shall be considered a final decision of
19an administrative agency, for purposes of administrative
20review under the Administrative Review Law (735 ILCS 5/Art.
21III). An action for administrative review of a binding opinion
22of the Attorney General shall be commenced in the county where
23the principal office of the public body is located Cook or
24Sangamon County. An advisory opinion issued to a public body
25shall not be considered a final decision of the Attorney

 

 

SB2203- 30 -LRB097 08645 JDS 48774 b

1General for purposes of this Section.
2(Source: P.A. 96-542, eff. 1-1-10.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.

 

 

SB2203- 31 -LRB097 08645 JDS 48774 b

1 INDEX
2 Statutes amended in order of appearance
3    5 ILCS 140/1from Ch. 116, par. 201
4    5 ILCS 140/3from Ch. 116, par. 203
5    5 ILCS 140/3.1
6    5 ILCS 140/6from Ch. 116, par. 206
7    5 ILCS 140/7from Ch. 116, par. 207
8    5 ILCS 140/9from Ch. 116, par. 209
9    5 ILCS 140/9.5
10    5 ILCS 140/11.5