HB6053ham002 96TH GENERAL ASSEMBLY

Rep. Barbara Flynn Currie

Filed: 3/22/2010

09600HB6053ham002 LRB096 20797 AMC 39490 a

AMENDMENT TO HOUSE BILL 6053

AMENDMENT NO. ______. Amend House Bill 6053, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Illinois Accurate Government Records Act.

Section 5. Definitions. For purposes of this Act:

"Individual" means a natural person.

"Maintain" means to maintain, collect, use, or disseminate.

"Public body" means all legislative, executive, administrative, or advisory bodies of the State, State universities and colleges, counties, townships, cities, villages, incorporated towns, school districts, and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing, including, but not limited to, committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. "Public body" does not include a body established by the Child Death Review Team Act, individual elected or appointed officials, individual employees of a public body, or the legislative offices of members of the General Assembly.

"Record of personal information" means any information collected or maintained in a system of records by a public body that is attributable to an individual by name, identifying number, or other form of identification assigned to the individual. "Record of personal information" does not include any information collected or maintained pursuant to the Personnel Record Review Act, the School Student Record Act, or the federal Driver's Privacy Protection Act.

"Routine use" means, with respect to the disclosure of a record, the use of the record for a purpose that is compatible with the purpose for which it was collected.

"System of records" means a group of records collected or maintained by a public body from which information is attributable to an individual and can be retrieved by name, identifying number, or other form of identification assigned to an individual.

Section 10. Access to records of personal information.

(a) A public body shall make available to an individual for inspection and copying any record of personal information attributable to that individual in a system of records collected or maintained by the public body. Requests for inspection or copies shall be made in writing and directed to the public body. Written requests may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body. All requests for inspection and copying received by a public body shall immediately be forwarded to its Freedom of Information officer or designee.

(b) Each public body shall comply with or deny a request for inspection or copying any record of personal information within 10 business days after its receipt of the request, unless the public body provides the individual with a written explanation detailing the circumstances causing a delay and a date no more than 30 days after the date of the receipt by which the public body will comply or deny a request.

(c) A public body shall not comply with a request to inspect or copy any record of personal information for any of the following reasons:

(1) the record of personal information is maintained by a public body that performs or has as a principal function any activity pertaining to the prevention, control, or reduction of crime and the record of personal information is maintained in a system of records maintained for the purpose of criminal intelligence or investigation and would not otherwise be accessible under the Freedom of Information Act;

(2) the disclosure of a record of personal information would reveal the identity of a source who furnished information to the public body under an express or implied promise of confidentiality;

(3) the record of personal information is part of or contained in testing or examination materials or scoring keys used solely to determine individual qualifications for appointment or promotion in public employment, or used as or to administer a licensing examination or an academic examination, the disclosure of which would compromise the objectivity, fairness, or effectiveness of the testing or examination process;

(4) the record of personal information is part of or contained in investigative reports and materials related to an individual that is the subject of an upcoming, ongoing, or pending civil or criminal action, administrative investigation, or administrative proceeding;

(5) the record of personal information is part of or contained in information required to be withheld from the individual to whom it pertains by statute or judicial decision or authorized to be so withheld by constitutional or statutory privilege; or

(6) the public body does not maintain a system of records applicable to the request for records of personal information.

(d) Nothing in this Section shall be construed to permit or require a public body to withhold or deny access to a record of personal information maintained in a system of records where any statute, administrative rule, rule of court, judicial decision, or other law authorizes or allows an individual to gain access to a record of personal information.

(e) Requests calling for all records falling within a category shall be complied with unless there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Before denying a request, the public body shall extend to the person making the request an opportunity to confer with it in an attempt to reduce the request to manageable proportions. A public body responding to a categorical request by stating that compliance would unduly burden its operation shall specify the reasons why it would be unduly burdensome and the extent to which compliance will so burden the operations of the public body.

(f) An individual's request to one department for access to a record of personal information shall not oblige that department to seek out any records of personal information located in another department.

Section 15. Changes to records of personal information.

(a) A public body shall permit an individual to submit a written request for changes to a record of personal information if the individual believes the information is not accurate, relevant, timely, or complete. A request must state the information to be changed, the reason for the change, and any information supporting the request for change.

(b) Within 30 days after the date of receipt of such request, a public body shall either (1) change a record of personal information in accordance with the request, or (2) inform the individual of its decision not to change the personal record and provide a specific reason for the decision, the description of the procedures established by the public body for the individual to request the head of the public body or a designee of the head of the public body review the decision, and the name of the persons responsible for the denial of the request.

(c) If a public body does not make the requested change, the public body shall permit the individual to appeal the decision to the head of the public body or a designee of the head of the public body. The head of the public body or the designee shall review and make a final determination not later than 30 days after the date of receipt of the appeal.

(d) If the head of the public body or designee affirms the decision of the public body not to change the record of personal information in accordance with the request, the public body shall permit the individual to file with the public body a statement of no more than 1,500 words setting forth the reasons for the individual's disagreement.

(e) If the public body discloses to any person the portion of the record for which the individual has filed a statement of under subsection (d), the public body shall clearly note in the record that a statement has been filed and, upon request, make a copy of the statement available. The public body may provide a concise statement of the reasons of the public body for not changing the record.

Section 20. Limitations on a public body's disclosure of records of personal information. No public body shall disclose any record of personal information to any person or public body, except pursuant to a written request by or with the prior written consent of the individual to whom the record pertains, unless the record of personal information is disclosed:

(1) to officers and employees of the public body that maintains the record who have a need for the record in the performance of their duties;

(2) pursuant to a request under the Freedom of Information Act;

(3) for a routine use;

(4) to a recipient who has provided the public body with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(5) to the State archives as a record that has sufficient historical or other value to warrant its continued preservation;

(6) to another public body or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the public body or instrumentality has made a written request to the public body that maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(7) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of the individual;

(8) to the General Assembly, a joint committee of the General Assembly, or a committee or subcommittee of either chamber;

(9) to either the Comptroller or the Auditor General, or any of his or her authorized representatives, in the course of the performance of his or her duties;

(10) to a consumer reporting agency as permitted or allowed by federal or State statute; or

(11) pursuant to federal or State law or the order of a court.

Section 25. Limitations on a public body's maintenance of systems of records.

(a) Each public body that maintains a system of records shall:

(1) maintain only the information about an individual that is relevant and necessary to accomplish a purpose of the public body that is required or authorized by the Illinois Constitution or statute or mandated by the federal government;

(2) post a notice on the website of the public body with a description of the types of system of records maintained by the public body;

(3) maintain all records that are used by the public body in making any determination about any individual with accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in the determination;

(4) establish appropriate and reasonable safeguards to ensure compliance with the provisions of this Act, the security and confidentiality of records, and protect against anticipated threats or hazards that could result in any injury, including rules of conduct for persons involved in the design, development, operation, disclosure, or maintenance of records containing personal information; and

(5) maintain no record of personal information in a system of records describing how any individual exercises rights guaranteed by the First Amendment to the United States Constitution or Section 3, 4, or 5 of Article I of the Illinois Constitution, unless maintenance is authorized by statute, authorized by the individual, or pertinent to and within the scope of an authorized investigation or the description of the exercise of rights comprises evidence of criminal activity.

(b) Prior to bringing an action in accordance with Section 30 alleging violations of subsection (a), the individual shall notify the public body that the individual objects to the public body's maintenance of the record of personal information and the public body shall have an opportunity to decide whether to remove or amend the disputed information.

Section 30. Civil remedies.

(a) An individual may bring a civil action against a public body in a circuit court of the State, after appropriate administrative remedies have been exhausted, as follows:

(1) if a public body fails to comply with Section 10 of this Act, then the court may order the public body to disclose a record of personal information;

(2) if a public body fails to comply with Section 15 of this Act, then the court may order the public body to accept a statement of disagreement from the individual and make the statement part of the record;

(3) if a public body fails to comply with Section 20 of this Act, and such violation has an adverse effect on the individual, and the public body acted in a manner that was intentional or willful, then the court may order the public body not to continue to disclose the individual's record of personal information; and

(4) whenever a public body fails to comply with part (3) or (5) of Section 25 of this Act, and such violation has an adverse effect on the individual, and the public body acted in a manner that was intentional or willful, the court may order the public body to expunge information from the individual's personal record.

(b) If an individual prevails in a civil action under this Section, then the court may order the public body to pay the individual all or a portion of the costs of maintaining the action, including reasonable attorney's fees.

(c) An action may be brought against a public body of the State in the circuit court in Cook or Sangamon counties. An action may be brought against any other public body in the circuit court for the county where the public body is located. In any action considered by the court, the court shall consider the matter de novo, and shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of this Act.

(d) No action shall be brought later than 2 years after notification of the public body's denial.

(e) If an individual brings any action under this Section that is not well grounded in fact, or is not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, then the court may impose an appropriate sanction upon the individual, which may include an order to pay the public body the amount of reasonable expenses incurred because of the filing of the action, including reasonable attorney's fees.

Section 35. Rights of legal guardians. For the purposes of this Act, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.".