98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB4719

 

Introduced , by Rep. Dwight Kay

 

SYNOPSIS AS INTRODUCED:
 
5 ILCS 140/11  from Ch. 116, par. 211

    Amends the Freedom of Information Act. Provides that a public body that willfully and intentionally failed to comply with the Act, or otherwise acted in bad faith, is guilty of a business offense (rather than being subject to a civil penalty) and subject to a fine of not less than $2,500 nor more than $5,000 for each occurrence. Provides that an individual acting on behalf of a public body who willfully and intentionally fails to comply with the Act is guilty of a Class B misdemeanor and subject to a term of imprisonment not to exceed 60 days.


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A BILL FOR

 

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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 Section 11 as follows:
 
6    (5 ILCS 140/11)  (from Ch. 116, par. 211)
7    Sec. 11. (a) Any person denied access to inspect or copy
8any public record by a public body may file suit for injunctive
9or declaratory relief.
10    (b) Where the denial is from a public body of the State,
11suit may be filed in the circuit court for the county where the
12public body has its principal office or where the person denied
13access resides.
14    (c) Where the denial is from a municipality or other public
15body, except as provided in subsection (b) of this Section,
16suit may be filed in the circuit court for the county where the
17public body is located.
18    (d) The circuit court shall have the jurisdiction to enjoin
19the public body from withholding public records and to order
20the production of any public records improperly withheld from
21the person seeking access. If the public body can show that
22exceptional circumstances exist, and that the body is
23exercising due diligence in responding to the request, the

 

 

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1court may retain jurisdiction and allow the agency additional
2time to complete its review of the records.
3    (e) On motion of the plaintiff, prior to or after in camera
4inspection, the court shall order the public body to provide an
5index of the records to which access has been denied. The index
6shall include the following:
7        (i) A description of the nature or contents of each
8    document withheld, or each deletion from a released
9    document, provided, however, that the public body shall not
10    be required to disclose the information which it asserts is
11    exempt; and
12        (ii) A statement of the exemption or exemptions claimed
13    for each such deletion or withheld document.
14    (f) In any action considered by the court, the court shall
15consider the matter de novo, and shall conduct such in camera
16examination of the requested records as it finds appropriate to
17determine if such records or any part thereof may be withheld
18under any provision of this Act. The burden shall be on the
19public body to establish that its refusal to permit public
20inspection or copying is in accordance with the provisions of
21this Act. Any public body that asserts that a record is exempt
22from disclosure has the burden of proving that it is exempt by
23clear and convincing evidence.
24    (g) In the event of noncompliance with an order of the
25court to disclose, the court may enforce its order against any
26public official or employee so ordered or primarily responsible

 

 

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1for such noncompliance through the court's contempt powers.
2    (h) Except as to causes the court considers to be of
3greater importance, proceedings arising under this Section
4shall take precedence on the docket over all other causes and
5be assigned for hearing and trial at the earliest practicable
6date and expedited in every way.
7    (i) If a person seeking the right to inspect or receive a
8copy of a public record prevails in a proceeding under this
9Section, the court shall award such person reasonable
10attorneys' fees and costs. In determining what amount of
11attorney's fees is reasonable, the court shall consider the
12degree to which the relief obtained relates to the relief
13sought. The changes contained in this subsection apply to an
14action filed on or after the effective date of this amendatory
15Act of the 96th General Assembly.
16    (j) A If the court determines that a public body that
17willfully and intentionally failed to comply with this Act, or
18otherwise acted in bad faith, is guilty of a business offense
19and subject to a fine the court shall also impose upon the
20public body a civil penalty of not less than $2,500 nor more
21than $5,000 for each occurrence. An individual acting on behalf
22of a public body who willfully and intentionally fails to
23comply with this Act is guilty of a Class B misdemeanor and
24subject to a term of imprisonment not to exceed 60 days. In
25assessing the fine civil penalty, the court shall consider in
26aggravation or mitigation the budget of the public body and

 

 

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1whether the public body has previously been assessed penalties
2for violations of this Act. The changes by Public Act 96-542
3contained in this subsection apply to an action filed on or
4after January 1, 2010(the effective date of Public Act 96-542)
5this amendatory Act of the 96th General Assembly.
6(Source: P.A. 96-542, eff. 1-1-10; 97-813, eff. 7-13-12.)