Sen. Don Harmon
Filed: 5/17/2009
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1 | AMENDMENT TO HOUSE BILL 4088
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2 | AMENDMENT NO. ______. Amend House Bill 4088 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 1. Short title. This Act may be cited as the | ||||||
5 | Illinois Accurate Government Records Act. | ||||||
6 | Section 5. Findings. The General Assembly makes the | ||||||
7 | following findings: | ||||||
8 | (1) The right to privacy is being threatened by the | ||||||
9 | indiscriminate collection, maintenance, and dissemination | ||||||
10 | of personal information and the lack of effective laws and | ||||||
11 | legal remedies. | ||||||
12 | (2) The increasing use of computers and other | ||||||
13 | sophisticated information technology has greatly magnified | ||||||
14 | the potential risk to individual privacy that can occur | ||||||
15 | from the maintenance of personal information. | ||||||
16 | (3) In order to protect the privacy of individuals, it |
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1 | is necessary that the maintenance and dissemination of | ||||||
2 | personal information be subject to strict limits.
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3 | Section 10. Definitions. For purposes of this Act: | ||||||
4 | "Agency" means any State agency or local agency. | ||||||
5 | "Individual" means a natural person. | ||||||
6 | "Local agency" means any municipality, unit of local | ||||||
7 | government, county, school district, special purpose district, | ||||||
8 | or township of the State or any elected officer or board, | ||||||
9 | bureau, commission, department, division, institution, or | ||||||
10 | instrumentality thereof. | ||||||
11 | "Maintain" means to maintain, collect, use, or | ||||||
12 | disseminate. | ||||||
13 | "Personal record" includes, but is not limited to, the | ||||||
14 | following information about an individual that is maintained by | ||||||
15 | an agency: the individual's education, financial, medical, or | ||||||
16 | employment history, or items that contain or make reference to | ||||||
17 | the individual's name, identifying number, symbol, or other | ||||||
18 | identifying particular assigned to the individual, such as a | ||||||
19 | finger or voice print or a photograph. "Personal record" does | ||||||
20 | not include any record under the Personnel Record Review Act or | ||||||
21 | the School Student Record Act. | ||||||
22 | "Routine use" means, with respect to the disclosure of a | ||||||
23 | record, the use of the record for a purpose that is compatible | ||||||
24 | with the purpose for which it was collected. | ||||||
25 | "State agency" means the office of any elected State |
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1 | officer and any agency, board, commission, department, | ||||||
2 | division, or educational institution of the State. | ||||||
3 | "System of records" means a group of any records under the | ||||||
4 | control of any agency from which information is retrieved by | ||||||
5 | the name of the individual or by some identifying number, | ||||||
6 | symbol, or other identifying particular assigned to that | ||||||
7 | individual.
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8 | Section 15. Access to an individual's personal records. | ||||||
9 | (a) Upon the request of an individual to gain access to the | ||||||
10 | individual's personal record, an agency shall permit the | ||||||
11 | individual to review the record and have a copy made within 10 | ||||||
12 | working days after the date of receipt of the request by the | ||||||
13 | agency, unless the personal record requested is exempted under | ||||||
14 | subsection (c) to this Section. The 10-day period may be | ||||||
15 | extended for an additional 20 working days if the agency | ||||||
16 | provides to the individual, within the initial 10 working days, | ||||||
17 | a written explanation of unusual circumstances causing the | ||||||
18 | delay. | ||||||
19 | (b) Each agency that maintains any accessible personal | ||||||
20 | record shall make that record available to the individual to | ||||||
21 | whom it pertains in a reasonably intelligible form. Where | ||||||
22 | necessary the agency shall provide a translation into common | ||||||
23 | terms of any machine readable code or any code or abbreviation | ||||||
24 | employed for internal agency use. | ||||||
25 | (c) An agency is not required under this Section to grant |
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1 | an individual access to personal records or information in | ||||||
2 | records: | ||||||
3 | (1) Maintained by an agency that performs as its or as | ||||||
4 | a principal function any activity pertaining to the | ||||||
5 | prevention, control, or reduction of crime, including, but | ||||||
6 | not limited to, State and local police departments, and | ||||||
7 | which consist of: | ||||||
8 | (A) information or reports prepared or compiled | ||||||
9 | for the purpose of criminal intelligence or of a | ||||||
10 | criminal investigation, including reports of | ||||||
11 | informers, witnesses, and investigators; or | ||||||
12 | (B) reports prepared or compiled at any stage of | ||||||
13 | the process of enforcement of the criminal laws from | ||||||
14 | arrest or indictment through confinement, correctional | ||||||
15 | supervision, and release from supervision. | ||||||
16 | (2) The disclosure of which would reveal the identity | ||||||
17 | of a source who furnished information to the agency under | ||||||
18 | an express or implied promise of confidentiality. | ||||||
19 | (3) Consisting of testing or examination material or | ||||||
20 | scoring keys used solely to determine individual | ||||||
21 | qualifications for appointment or promotion in public | ||||||
22 | employment, or used as or to administer a licensing | ||||||
23 | examination or an academic examination, the disclosure of | ||||||
24 | which would compromise the objectivity, fairness, or | ||||||
25 | effectiveness of the testing or examination process. | ||||||
26 | (4) Including investigative reports and materials, |
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1 | related to an upcoming, ongoing, or pending civil or | ||||||
2 | criminal action or administrative proceeding against the | ||||||
3 | individual. | ||||||
4 | (5) Required to be withheld from the individual to whom | ||||||
5 | it pertains by statute or judicial decision or authorized | ||||||
6 | to be so withheld by constitutional or statutory privilege.
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7 | (d) Nothing in this Section shall be construed to permit or | ||||||
8 | require an agency to withhold or deny access to a personal | ||||||
9 | record or any information in a personal record where any | ||||||
10 | statute, administrative rule, rule of court, judicial | ||||||
11 | decision, or other law authorizes or allows an individual to | ||||||
12 | gain access to a personal record or to any information in a | ||||||
13 | personal record or requires that the individual be given such | ||||||
14 | access. | ||||||
15 | (e) For the State of Illinois, or a municipality having a | ||||||
16 | population of 500,000 or more, or a county having a population | ||||||
17 | of 3,000,000 or more, each department of the State, | ||||||
18 | municipality, or county is a separate agency for purposes of | ||||||
19 | this Section, and an individual's request to one department for | ||||||
20 | access to his or her personal records shall not oblige that | ||||||
21 | department to seek out any personal records of another | ||||||
22 | department. | ||||||
23 | Section 20. Changes to an individual's personal records. | ||||||
24 | (a) Each agency shall permit an individual, after | ||||||
25 | inspection, to request in writing a change to his or her |
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1 | personal record, and shall within 30 days after the date of | ||||||
2 | receipt of such request: | ||||||
3 | (1) make each change in accordance with the | ||||||
4 | individual's request of any portion of a personal record | ||||||
5 | that the individual believes is not accurate, relevant, | ||||||
6 | timely, or complete and inform the individual of the | ||||||
7 | changes made in accordance with his or her request; or | ||||||
8 | (2) inform the individual of its decision not to change | ||||||
9 | the personal record in accordance with such individual's | ||||||
10 | request, the reason for the decision, the procedures | ||||||
11 | established by the agency for the individual to request a | ||||||
12 | review by the head of the agency or an official | ||||||
13 | specifically designated by the head of the agency of the | ||||||
14 | decision not to make the change, and the name, title, and | ||||||
15 | business address of the reviewing official. | ||||||
16 | (b) Each agency shall permit any individual who disagrees | ||||||
17 | with the decision of the agency not to make the change to a | ||||||
18 | personal record to request a review of such decision by the | ||||||
19 | head of the agency or an official specifically designated by | ||||||
20 | the head of the agency, and, not later than 30 days after the | ||||||
21 | date on which the individual requests such review, complete the | ||||||
22 | review and make a final determination unless, for good cause | ||||||
23 | shown, the head of the agency extends the review period by 30 | ||||||
24 | days. | ||||||
25 | (c) If, after review, the reviewing official decides not to | ||||||
26 | change the personal record in accordance with the request, the |
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1 | agency shall permit the individual to file with the agency a | ||||||
2 | statement of no more than 1,500 words setting forth the reasons | ||||||
3 | for the individual's disagreement. | ||||||
4 | (d) If the agency discloses to any person the portion of | ||||||
5 | the record for which the individual has filed a statement of | ||||||
6 | disagreement under subsection (c) of this Section, then the | ||||||
7 | agency shall clearly note in the record that a statement has | ||||||
8 | been filed and, upon request, make a copy of the statement | ||||||
9 | available. The agency may provide a concise statement of the | ||||||
10 | reasons of the agency for not changing the record. | ||||||
11 | Section 25. Limitations on an agency's disclosure of an | ||||||
12 | individual's personal records. No agency shall disclose any | ||||||
13 | personal record by any means of communication to any person, or | ||||||
14 | to another agency, except pursuant to a written request by, or | ||||||
15 | with the prior written consent of, the individual to whom the | ||||||
16 | record pertains, unless disclosure of the record would be: | ||||||
17 | (1) to those officers and employees of the agency that | ||||||
18 | maintains the record who have a need for the record in the | ||||||
19 | performance of their duties; | ||||||
20 | (2) pursuant to and to the extent required by the | ||||||
21 | Freedom of Information Act; | ||||||
22 | (3) for a routine use; | ||||||
23 | (4) to a recipient who has provided the agency with | ||||||
24 | advance adequate written assurance that the record will be | ||||||
25 | used solely as a statistical research or reporting record, |
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1 | and the record is to be transferred in a form that is not | ||||||
2 | individually identifiable; | ||||||
3 | (5) to the State archives as a record that has | ||||||
4 | sufficient historical or other value to warrant its | ||||||
5 | continued preservation; | ||||||
6 | (6) to another agency or to an instrumentality of any | ||||||
7 | governmental jurisdiction within or under the control of | ||||||
8 | the United States for a civil or criminal law enforcement | ||||||
9 | activity if the activity is authorized by law, and if the | ||||||
10 | head of the agency or instrumentality has made a written | ||||||
11 | request to the agency which maintains the record specifying | ||||||
12 | the particular portion desired and the law enforcement | ||||||
13 | activity for which the record is sought; | ||||||
14 | (7) to a person pursuant to a showing of compelling | ||||||
15 | circumstances affecting the health or safety of an | ||||||
16 | individual if upon such disclosure notification is | ||||||
17 | transmitted to the last known address of the individual; | ||||||
18 | (8) to either chamber of the General Assembly, or, to | ||||||
19 | the extent of matter within its jurisdiction, any committee | ||||||
20 | or subcommittee of the General Assembly; | ||||||
21 | (9) to either the Comptroller or the Auditor General, | ||||||
22 | or any of his or her authorized representatives, in the | ||||||
23 | course of the performance of his or her duties; | ||||||
24 | (10) pursuant to the order of a court of competent | ||||||
25 | jurisdiction; or | ||||||
26 | (11) to a consumer reporting agency as permitted or |
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1 | allowed by federal or State statute. | ||||||
2 | Section 30. Limitations on an agency's maintenance of | ||||||
3 | systems of personal records. Each agency that maintains a | ||||||
4 | system of records shall do all of the following: | ||||||
5 | (1) Maintain in its personal records only the | ||||||
6 | information about an individual that is relevant and | ||||||
7 | necessary to accomplish a purpose of the agency that is | ||||||
8 | required or authorized by the Illinois Constitution or | ||||||
9 | statute or mandated by the federal government. | ||||||
10 | (2) Collect information to the greatest extent | ||||||
11 | practicable directly from the subject individual when the | ||||||
12 | information may result in adverse determinations about an | ||||||
13 | individual's rights, benefits, and privileges under State | ||||||
14 | programs. | ||||||
15 | (3) Post upon establishment or revision a notice of the | ||||||
16 | existence and character of the system of records, which | ||||||
17 | notice shall include the following: | ||||||
18 | (A) the name and location of the system; | ||||||
19 | (B) the categories of individuals on whom records | ||||||
20 | are maintained in the system; | ||||||
21 | (C) the categories of records maintained in the | ||||||
22 | system; | ||||||
23 | (D) each routine use of the records contained in | ||||||
24 | the system, including the categories of users and the | ||||||
25 | purpose of such use; |
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1 | (E) the policies and practices of the agency | ||||||
2 | regarding storage, retrievability, access controls, | ||||||
3 | retention, and disposal of the records; | ||||||
4 | (F) the title and business address of the agency | ||||||
5 | official who is responsible for the system of records; | ||||||
6 | (G) the agency procedures whereby an individual | ||||||
7 | can be notified at his or her request if the system of | ||||||
8 | records contains a record pertaining to him or her; | ||||||
9 | (H) the agency procedures whereby an individual | ||||||
10 | can be notified at his or her request how he or she can | ||||||
11 | gain access to any record pertaining to him or her | ||||||
12 | contained in the system of records, and how he or she | ||||||
13 | may contest its content; and | ||||||
14 | (I) the categories of sources of records in the | ||||||
15 | system. | ||||||
16 | (4) Maintain all records that are used by the agency in | ||||||
17 | making any determination about any individual with | ||||||
18 | accuracy, relevance, timeliness, and completeness as is | ||||||
19 | reasonably necessary to ensure fairness to the individual | ||||||
20 | in the determination. | ||||||
21 | (5) Prior to disseminating any record about an | ||||||
22 | individual to any person other than an agency, unless the | ||||||
23 | dissemination is made pursuant to the Freedom of | ||||||
24 | Information Act, make reasonable efforts to ensure that the | ||||||
25 | records are accurate, complete, timely, and relevant for | ||||||
26 | agency purposes. |
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1 | (6) Establish rules of conduct for persons involved in | ||||||
2 | the design, development, operation, disclosure, or | ||||||
3 | maintenance of records containing personal information and | ||||||
4 | instruct each person with respect to such rules and the | ||||||
5 | requirements of this Act, including any other rules and | ||||||
6 | procedures adopted pursuant to this Act, and the remedies | ||||||
7 | and penalties for noncompliance. | ||||||
8 | (7) Establish appropriate and reasonable | ||||||
9 | administrative, technical, and physical safeguards to | ||||||
10 | ensure compliance with the provisions of this Act, to | ||||||
11 | ensure the security and confidentiality of records, and to | ||||||
12 | protect against anticipated threats or hazards to their | ||||||
13 | security or integrity that could result in any injury. | ||||||
14 | Section 35. Limitations on an agency's maintenance of an | ||||||
15 | individual's personal records. An agency shall maintain no | ||||||
16 | personal record, whether or not the personal record is part of | ||||||
17 | a system of records, describing how any individual exercises | ||||||
18 | rights guaranteed by the First Amendment to the United States | ||||||
19 | Constitution or Sections 3, 4, or 5 of Article I of the | ||||||
20 | Illinois Constitution, unless expressly authorized by statute | ||||||
21 | or by the individual about whom the record is maintained or | ||||||
22 | unless pertinent to and within the scope of an authorized law | ||||||
23 | enforcement activity. | ||||||
24 | Section 40. Civil remedies. |
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1 | (a) An individual may bring a civil action against an | ||||||
2 | agency in a circuit court of the State whenever an agency fails | ||||||
3 | to comply with any provision of this Act, and after appropriate | ||||||
4 | administrative remedies have been exhausted. | ||||||
5 | (b) In any action brought by an individual under this | ||||||
6 | Section, the court may: | ||||||
7 | (1) order the agency to disclose, correct, or amend the | ||||||
8 | individual's personal record; | ||||||
9 | (2) issue an injunction to require any other agency | ||||||
10 | action, or to enjoin the agency from improper actions, as | ||||||
11 | the court may deem necessary and appropriate to render | ||||||
12 | substantial relief; and
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13 | (3) order the agency to pay the individual all or a | ||||||
14 | portion of the costs of maintaining the action, including | ||||||
15 | reasonable attorney's fees, in any case in which the | ||||||
16 | individual has prevailed. | ||||||
17 | (c) In any action brought by an individual under this | ||||||
18 | Section in which the court determines that the agency knowingly | ||||||
19 | or intentionally violated a provision of this Act, the agency | ||||||
20 | shall be liable to the individual in an amount equal to the sum | ||||||
21 | of: | ||||||
22 | (1) actual damages sustained by the individual as a | ||||||
23 | result of the failure of the agency to properly maintain | ||||||
24 | the personal record, but in no case shall an individual | ||||||
25 | entitled to recovery receive less than the sum of $1,000; | ||||||
26 | and |
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1 | (2) the costs of the action together with reasonable | ||||||
2 | attorney's fees as determined by the court. | ||||||
3 | (d) An action may be brought against a State agency in the | ||||||
4 | circuit court for the county where the State agency has its | ||||||
5 | principal office or where the complainant resides. An action | ||||||
6 | may be brought against a local agency in the circuit court for | ||||||
7 | the county where the local agency is located. No action shall | ||||||
8 | be brought later than 2 years after notification of the agency | ||||||
9 | denial or, where applicable, the date of receipt of the final | ||||||
10 | determination of the office of information practices. | ||||||
11 | (e) The rights and remedies set forth in this Act shall be | ||||||
12 | deemed to be nonexclusive and are in addition to all those | ||||||
13 | rights and remedies that are otherwise available under any | ||||||
14 | other provision of law.
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15 | (f) Notwithstanding any other provision of this Act, no | ||||||
16 | fees, costs, or damages may be assessed against an agency for a | ||||||
17 | violation of Section 25 of this Act arising from the agency's | ||||||
18 | disclosure of records pursuant to the Freedom of Information | ||||||
19 | Act, unless the plaintiff can prove that the agency did not | ||||||
20 | have an objectively reasonable basis in law or in fact to | ||||||
21 | conclude that such disclosure was required by the Freedom of | ||||||
22 | Information Act. | ||||||
23 | (g) If an individual brings any action under this Section | ||||||
24 | that is not well grounded in fact, or is not warranted by | ||||||
25 | existing law or a good-faith argument for the extension, | ||||||
26 | modification, or reversal of existing law, then the court may |
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1 | impose an appropriate sanction upon the individual, which may | ||||||
2 | include an order to pay the agency the amount of reasonable | ||||||
3 | expenses incurred because of the filing of the action, | ||||||
4 | including reasonable attorney fees. | ||||||
5 | (h) For civil actions alleging violation of items (1) or | ||||||
6 | (4) of Section 30 or Section 35 of this Act, the administrative | ||||||
7 | exhaustion required by subsection (a) of this Section shall | ||||||
8 | include the individual notifying the agency of the precise | ||||||
9 | information in the personal record to which the individual | ||||||
10 | objects, and the agency having an opportunity to decide whether | ||||||
11 | to remove or amend the disputed information.
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12 | Section 45. Agency responsibilities. Each agency shall:
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13 | (1) issue instructions and guidelines necessary to effectuate | ||||||
14 | this Act; and
(2) take steps to ensure that all its employees | ||||||
15 | and officers responsible for the collection, maintenance, use, | ||||||
16 | and dissemination of personal records are informed of the | ||||||
17 | requirements of this Act.
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18 | Section 50. Attorney General responsibilities. The Office | ||||||
19 | of the Attorney General of Illinois: | ||||||
20 | (1) shall biennially submit to the Speaker of the House | ||||||
21 | of Representatives and the President of the Senate a | ||||||
22 | report:
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23 | (A) describing the actions of the Attorney General | ||||||
24 | pursuant to this Section during the preceding 2 years; |
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1 | (B) describing the exercise of individual rights | ||||||
2 | of access and amendment under this Section during those | ||||||
3 | years; | ||||||
4 | (C) identifying changes in or additions to systems | ||||||
5 | of records; and | ||||||
6 | (D) containing such other information concerning | ||||||
7 | administration of this Section as may be necessary or | ||||||
8 | useful to the General Assembly in reviewing the | ||||||
9 | effectiveness of this Section in carrying out the | ||||||
10 | purposes of this Act; | ||||||
11 | (2) may, upon request by any person, provide advisory | ||||||
12 | opinions or other information regarding that person's | ||||||
13 | rights and the functions and responsibilities of agencies | ||||||
14 | under this Act; and | ||||||
15 | (3) shall receive complaints from and actively solicit | ||||||
16 | the comments of the public regarding the implementation of | ||||||
17 | this Act.
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18 | Section 55. Government contractors. If an agency provides | ||||||
19 | by a contract for the operation by or on behalf of the agency | ||||||
20 | of a system of records to accomplish an agency function, then | ||||||
21 | the agency shall, consistent with its authority, cause the | ||||||
22 | requirements of this Section to be applied to that system. | ||||||
23 | Section 60. Rights of legal guardians. For the purposes of | ||||||
24 | this Section, the parent of any minor, or the legal guardian of |
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1 | any individual who has been declared to be incompetent due to | ||||||
2 | physical or mental incapacity or age by a court of competent | ||||||
3 | jurisdiction, may act on behalf of the individual.".
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