Sen. Edward D. Maloney

Filed: 3/2/2011





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2    AMENDMENT NO. ______. Amend Senate Bill 1645 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Freedom of Information Act is amended by
5changing Sections 1, 2, and 9.5 and by adding Section 3.2 as
7    (5 ILCS 140/1)  (from Ch. 116, par. 201)
8    Sec. 1. Pursuant to the fundamental philosophy of the
9American constitutional form of government, it is declared to
10be the public policy of the State of Illinois that all persons
11are entitled to full and complete information regarding the
12affairs of government and the official acts and policies of
13those who represent them as public officials and public
14employees consistent with the terms of this Act. Such access is
15necessary to enable the people to fulfill their duties of
16discussing public issues fully and freely, making informed



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



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



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



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1been or being used by, received by, in the possession of, or
2under the control of any public body.
3    (c-5) "Private information" means unique identifiers,
4including a person's social security number, driver's license
5number, employee identification number, biometric identifiers,
6personal financial information, passwords or other access
7codes, medical records, home or personal telephone numbers, and
8personal email addresses. Private information also includes
9home address and personal license plates, except as otherwise
10provided by law or when compiled without possibility of
11attribution to any person.
12    (c-10) "Commercial purpose" means the use of any part of a
13public record or records, or information derived from public
14records, in any form for sale, resale, or solicitation or
15advertisement for sales or services. For purposes of this
16definition, requests made by news media and non-profit,
17scientific, or academic organizations shall not be considered
18to be made for a "commercial purpose" when the principal
19purpose of the request is (i) to access and disseminate
20information concerning news and current or passing events, (ii)
21for articles of opinion or features of interest to the public,
22or (iii) for the purpose of academic, scientific, or public
23research or education.
24    (d) "Copying" means the reproduction of any public record
25by means of any photographic, electronic, mechanical or other
26process, device or means now known or hereafter developed and



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1available to the public body.
2    (e) "Head of the public body" means the president, mayor,
3chairman, presiding officer, director, superintendent,
4manager, supervisor or individual otherwise holding primary
5executive and administrative authority for the public body, or
6such person's duly authorized designee.
7    (f) "News media" means a newspaper or other periodical
8issued at regular intervals whether in print or electronic
9format, a news service whether in print or electronic format, a
10radio station, a television station, a television network, a
11community antenna television service, or a person or
12corporation engaged in making news reels or other motion
13picture news for public showing.
14    (g) "Vexatious request for records" means a request for
15records that is made by a person who, in the 12 months
16immediately preceding the request, has submitted to the same
17public body (i) a minimum of 15 requests for records, (ii) a
18minimum of 5 requests for records within a 30-day period, (iii)
19a minimum of 5 requests for records that were deemed unduly
20burdensome by the public body, or (iv) one or more requests for
21records that have sought a minimum of 20 different categories
22of records.
23(Source: P.A. 96-261, eff. 1-1-10; 96-542, eff. 1-1-10;
2496-1000, eff. 7-2-10.)
25    (5 ILCS 140/3.2 new)



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1    Sec. 3.2. Vexatious request for records.
2    (a) Notwithstanding any provision to the contrary, a public
3body shall respond to a vexatious request for records within 21
4working days after receipt. The response shall (i) provide to
5the requester an estimate of the time required by the public
6body to provide the records requested and an estimate of the
7fees to be charged, which the public body may require the
8person to pay in full before copying the requested documents,
9(ii) deny the request pursuant to one or more of the exemptions
10set out in this Act, (iii) notify the requester that the
11request is unduly burdensome and extend an opportunity to the
12requester to attempt to reduce the request to manageable
13proportions, or (iv) provide the records requested.
14    (b) Unless the records are exempt from disclosure, a public
15body shall comply with a request within a reasonable period
16considering the size and complexity of the request, and giving
17priority to records requested for non-commercial or commercial
19    (c) The Public Access Counselor shall adopt by
20administrative rule procedures to create and maintain a log for
21public bodies to use for tracking vexatious requests for
22records. The log shall track all requests submitted by a person
23who has filed a vexatious request for records within the
2412-month period described in the definition of "vexatious
25request for records" in Section 2 of this Act. Upon receiving a
26vexatious request for records, a public body shall promptly



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



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



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



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1Attorney General shall examine the issues and the records,
2shall make findings of fact and conclusions of law, and shall
3issue to the requester and the public body an opinion in
4response to the request for review within 60 days after its
5receipt. The opinion shall be binding upon both the requester
6and the public body, subject to administrative review under
7Section 11.5.
8    In responding to any request under this Section 9.5, the
9Attorney General may exercise his or her discretion and choose
10to resolve a request for review by mediation or by a means
11other than the issuance of a binding opinion. The decision not
12to issue a binding opinion shall not be reviewable.
13    Upon receipt of a binding opinion concluding that a
14violation of this Act has occurred, the public body shall
15either take necessary action immediately to comply with the
16directive of the opinion or shall initiate administrative
17review under Section 11.5. If the opinion concludes that no
18violation of the Act has occurred, the requester may initiate
19administrative review under Section 11.5.
20    A public body that discloses records in accordance with an
21opinion of the Attorney General is immune from all liabilities
22by reason thereof and shall not be liable for penalties under
23this Act.
24    (g) If the requester files suit under Section 11 with
25respect to the same denial that is the subject of a pending
26request for review, the requester shall notify the Public



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