97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3137

 

Introduced 2/23/2011, by Rep. Roger L. Eddy

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 140/7  from Ch. 116, par. 207
5 ILCS 140/9.5

    Amends the Freedom of Information Act. Exempts the following types of information from disclosure: the date of birth of public employees, medical and health information of public employees, the names of applicants for public employment, applications for public employment, recommendations and opinions regarding the qualification of public employment applicants, investigative notes of public employees, and outlines or drafts of oral statements, presentations, or remarks. Removes a provision that required public bodies to seek pre-authorization from the Public Access Counselor before opting not to disclose these types of information.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB3137LRB097 06930 JDS 47023 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 7 and 9.5 as follows:
 
6    (5 ILCS 140/7)  (from Ch. 116, par. 207)
7    Sec. 7. Exemptions.
8    (1) When a request is made to inspect or copy a public
9record that contains information that is exempt from disclosure
10under this Section, but also contains information that is not
11exempt from disclosure, the public body may elect to redact the
12information that is exempt. The public body shall make the
13remaining information available for inspection and copying.
14Subject to this requirement, the following shall be exempt from
15inspection and copying:
16        (a) Information specifically prohibited from
17    disclosure by federal or State law or rules and regulations
18    implementing federal or State law.
19        (b) Private information, unless disclosure is required
20    by another provision of this Act, a State or federal law or
21    a court order.
22        (b-5) Files, documents, and other data or databases
23    maintained by one or more law enforcement agencies and

 

 

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1    specifically designed to provide information to one or more
2    law enforcement agencies regarding the physical or mental
3    status of one or more individual subjects.
4        (c) Personal information contained within public
5    records, the disclosure of which would constitute a clearly
6    unwarranted invasion of personal privacy, unless the
7    disclosure is consented to in writing by the individual
8    subjects of the information.
9        For the purposes of this paragraph (c):
10            (i) "Personal information" includes, but is not
11        limited to:
12                (A) the date of birth of public employees;
13                (B) medical or health information of public
14            employees, such as treatment histories,
15            descriptions of injuries, information regarding
16            the hospital to which an injured person is taken,
17            insurance policy numbers, and the pregnancy status
18            of public employees;
19                (C) the names of applicants for public
20            employment; and
21                (D) applications for public employment.
22            (ii)"Unwarranted invasion of personal privacy"
23        means the disclosure of information that is highly
24        personal or objectionable to a reasonable person and in
25        which the subject's right to privacy outweighs any
26        legitimate public interest in obtaining the

 

 

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1        information. The disclosure of information that bears
2        on the public duties of public employees and officials
3        shall not be considered an invasion of personal
4        privacy.
5        (d) Records in the possession of any public body
6    created in the course of administrative enforcement
7    proceedings, and any law enforcement or correctional
8    agency for law enforcement purposes, but only to the extent
9    that disclosure would:
10            (i) interfere with pending or actually and
11        reasonably contemplated law enforcement proceedings
12        conducted by any law enforcement or correctional
13        agency that is the recipient of the request;
14            (ii) interfere with active administrative
15        enforcement proceedings conducted by the public body
16        that is the recipient of the request;
17            (iii) create a substantial likelihood that a
18        person will be deprived of a fair trial or an impartial
19        hearing;
20            (iv) unavoidably disclose the identity of a
21        confidential source, confidential information
22        furnished only by the confidential source, or persons
23        who file complaints with or provide information to
24        administrative, investigative, law enforcement, or
25        penal agencies; except that the identities of
26        witnesses to traffic accidents, traffic accident

 

 

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1        reports, and rescue reports shall be provided by
2        agencies of local government, except when disclosure
3        would interfere with an active criminal investigation
4        conducted by the agency that is the recipient of the
5        request;
6            (v) disclose unique or specialized investigative
7        techniques other than those generally used and known or
8        disclose internal documents of correctional agencies
9        related to detection, observation or investigation of
10        incidents of crime or misconduct, and disclosure would
11        result in demonstrable harm to the agency or public
12        body that is the recipient of the request;
13            (vi) endanger the life or physical safety of law
14        enforcement personnel or any other person; or
15            (vii) obstruct an ongoing criminal investigation
16        by the agency that is the recipient of the request.
17        (e) Records that relate to or affect the security of
18    correctional institutions and detention facilities.
19        (f) Preliminary drafts, notes, recommendations,
20    memoranda, recommendations and opinions regarding the
21    qualification of public employment applicants,
22    investigative notes of public employees, outlines or
23    drafts of oral statements, presentations, or remarks, and
24    any other records in which opinions are expressed, or
25    policies or actions are formulated, except that a specific
26    record or relevant portion of a record shall not be exempt

 

 

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1    when the record is publicly cited and identified by the
2    head of the public body. The exemption provided in this
3    paragraph (f) extends to all those records of officers and
4    agencies of the General Assembly that pertain to the
5    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        (w) (Blank).

 

 

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

 

 

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1    submitted to the Cemetery Oversight Database under the
2    Cemetery Care Act or the Cemetery Oversight Act, whichever
3    is applicable.
4    (2) A public record that is not in the possession of a
5public body but is in the possession of a party with whom the
6agency has contracted to perform a governmental function on
7behalf of the public body, and that directly relates to the
8governmental function and is not otherwise exempt under this
9Act, shall be considered a public record of the public body,
10for purposes of this Act.
11    (3) This Section does not authorize withholding of
12information or limit the availability of records to the public,
13except as stated in this Section or otherwise provided in this
14Act.
15(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
1695-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
1796-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;
1896-736, eff. 7-1-10; 96-863, eff. 3-1-10; 96-1378, eff.
197-29-10; revised 9-2-10.)
 
20    (5 ILCS 140/9.5)
21    Sec. 9.5. Public Access Counselor; opinions.
22    (a) A person whose request to inspect or copy a public
23record is denied by a public body, except the General Assembly
24and committees, commissions, and agencies thereof, may file a
25request for review with the Public Access Counselor established

 

 

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1in the Office of the Attorney General not later than 60 days
2after the date of the final denial. The request for review must
3be in writing, signed by the requester, and include (i) a copy
4of the request for access to records and (ii) any responses
5from the public body.
6    (b) A public body that receives a request for records, and
7asserts that the records are exempt under subsection (1)(c) or
8(1)(f) of Section 7 of this Act, shall, within the time periods
9provided for responding to a request, provide written notice to
10the requester and the Public Access Counselor of its intent to
11deny the request in whole or in part. The notice shall include:
12(i) a copy of the request for access to records; (ii) the
13proposed response from the public body; and (iii) a detailed
14summary of the public body's basis for asserting the exemption.
15Upon receipt of a notice of intent to deny from a public body,
16the Public Access Counselor shall determine whether further
17inquiry is warranted. Within 5 working days after receipt of
18the notice of intent to deny, the Public Access Counselor shall
19notify the public body and the requester whether further
20inquiry is warranted. If the Public Access Counselor determines
21that further inquiry is warranted, the procedures set out in
22this Section regarding the review of denials, including the
23production of documents, shall also be applicable to the
24inquiry and resolution of a notice of intent to deny from a
25public body. Times for response or compliance by the public
26body under Section 3 of this Act shall be tolled until the

 

 

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1Public Access Counselor concludes his or her inquiry.
2    Notwithstanding any other provision of this subsection
3(b), a public body that receives a request for records and
4asserts that those records are exempt under subsection (1)(c)
5or (1)(f) of Section 7 of this Act has no duty to provide a
6written notice of its intent not to disclose the date of birth
7of a public employee, the medical or health information of a
8public employee, the names of applicants for public employment,
9requests for applications for public employment,
10recommendations and opinions regarding the qualification of
11public employment applicants, investigative notes of public
12employees, or outlines or drafts of oral statements,
13presentations, or remarks.
14    (c) Upon receipt of a request for review, the Public Access
15Counselor shall determine whether further action is warranted.
16If the Public Access Counselor determines that the alleged
17violation is unfounded, he or she shall so advise the requester
18and the public body and no further action shall be undertaken.
19In all other cases, the Public Access Counselor shall forward a
20copy of the request for review to the public body within 7
21working days after receipt and shall specify the records or
22other documents that the public body shall furnish to
23facilitate the review. Within 7 working days after receipt of
24the request for review, the public body shall provide copies of
25records requested and shall otherwise fully cooperate with the
26Public Access Counselor. If a public body fails to furnish

 

 

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1specified records pursuant to this Section, or if otherwise
2necessary, the Attorney General may issue a subpoena to any
3person or public body having knowledge of or records pertaining
4to a request for review of a denial of access to records under
5the Act. To the extent that records or documents produced by a
6public body contain information that is claimed to be exempt
7from disclosure under Section 7 of this Act, the Public Access
8Counselor shall not further disclose that information.
9    (d) Within 7 working days after it receives a copy of a
10request for review and request for production of records from
11the Public Access Counselor, the public body may, but is not
12required to, answer the allegations of the request for review.
13The answer may take the form of a letter, brief, or memorandum.
14The Public Access Counselor shall forward a copy of the answer
15to the person submitting the request for review, with any
16alleged confidential information to which the request pertains
17redacted from the copy. The requester may, but is not required
18to, respond in writing to the answer within 7 working days and
19shall provide a copy of the response to the public body.
20    (e) In addition to the request for review, and the answer
21and the response thereto, if any, a requester or a public body
22may furnish affidavits or records concerning any matter germane
23to the review.
24    (f) Unless the Public Access Counselor extends the time by
25no more than 21 business days by sending written notice to the
26requester and the public body that includes a statement of the

 

 

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1reasons for the extension in the notice, or decides to address
2the matter without the issuance of a binding opinion, the
3Attorney General shall examine the issues and the records,
4shall make findings of fact and conclusions of law, and shall
5issue to the requester and the public body an opinion in
6response to the request for review within 60 days after its
7receipt. The opinion shall be binding upon both the requester
8and the public body, subject to administrative review under
9Section 11.5.
10    In responding to any request under this Section 9.5, the
11Attorney General may exercise his or her discretion and choose
12to resolve a request for review by mediation or by a means
13other than the issuance of a binding opinion. The decision not
14to issue a binding opinion shall not be reviewable.
15    Upon receipt of a binding opinion concluding that a
16violation of this Act has occurred, the public body shall
17either take necessary action immediately to comply with the
18directive of the opinion or shall initiate administrative
19review under Section 11.5. If the opinion concludes that no
20violation of the Act has occurred, the requester may initiate
21administrative review under Section 11.5.
22    A public body that discloses records in accordance with an
23opinion of the Attorney General is immune from all liabilities
24by reason thereof and shall not be liable for penalties under
25this Act.
26    (g) If the requester files suit under Section 11 with

 

 

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1respect to the same denial that is the subject of a pending
2request for review, the requester shall notify the Public
3Access Counselor, and the Public Access Counselor shall take no
4further action with respect to the request for review and shall
5so notify the public body.
6    (h) The Attorney General may also issue advisory opinions
7to public bodies regarding compliance with this Act. A review
8may be initiated upon receipt of a written request from the
9head of the public body or its attorney, which shall contain
10sufficient accurate facts from which a determination can be
11made. The Public Access Counselor may request additional
12information from the public body in order to assist in the
13review. A public body that relies in good faith on an advisory
14opinion of the Attorney General in responding to a request is
15not liable for penalties under this Act, so long as the facts
16upon which the opinion is based have been fully and fairly
17disclosed to the Public Access Counselor.
18(Source: P.A. 96-542, eff. 1-1-10.)