HB3796ham001 98TH GENERAL ASSEMBLY

Rep. Robert Rita

Filed: 5/23/2014

 

 


 

 


 
09800HB3796ham001LRB098 15774 HEP 60062 a

1
AMENDMENT TO HOUSE BILL 3796

2    AMENDMENT NO. ______. Amend House Bill 3796 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Freedom of Information Act is amended by
5changing Sections 2, 3, 6, and 9.5 and by adding Sections 3.6
6and 8.5 as follows:
 
7    (5 ILCS 140/2)  (from Ch. 116, par. 202)
8    Sec. 2. Definitions. As used in this Act:
9    (a) "Public body" means all legislative, executive,
10administrative, or advisory bodies of the State, state
11universities and colleges, counties, townships, cities,
12villages, incorporated towns, school districts and all other
13municipal corporations, boards, bureaus, committees, or
14commissions of this State, any subsidiary bodies of any of the
15foregoing including but not limited to committees and
16subcommittees thereof, and a School Finance Authority created

 

 

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1under Article 1E of the School Code. "Public body" does not
2include a child death review team or the Illinois Child Death
3Review Teams Executive Council established under the Child
4Death Review Team Act.
5    (b) "Person" means any individual, corporation,
6partnership, firm, organization or association, acting
7individually or as a group.
8    (c) "Public records" means all records, reports, forms,
9writings, letters, memoranda, books, papers, maps,
10photographs, microfilms, cards, tapes, recordings, electronic
11data processing records, electronic communications, recorded
12information and all other documentary materials pertaining to
13the transaction of public business, regardless of physical form
14or characteristics, having been prepared by or for, or having
15been or being used by, received by, in the possession of, or
16under the control of any public body.
17    (c-5) "Private information" means unique identifiers,
18including a person's social security number, driver's license
19number, employee identification number, biometric identifiers,
20personal financial information, passwords or other access
21codes, medical records, home or personal telephone numbers, and
22personal email addresses. Private information also includes
23home address and personal license plates, except as otherwise
24provided by law or when compiled without possibility of
25attribution to any person.
26    (c-10) "Commercial purpose" means the use of any part of a

 

 

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1public record or records, or information derived from public
2records, in any form for sale, resale, or solicitation or
3advertisement for sales or services. For purposes of this
4definition, requests made by news media and non-profit,
5scientific, or academic organizations shall not be considered
6to be made for a "commercial purpose" when the principal
7purpose of the request is (i) to access and disseminate
8information concerning news and current or passing events, (ii)
9for articles of opinion or features of interest to the public,
10or (iii) for the purpose of academic, scientific, or public
11research or education.
12    (d) "Copying" means the reproduction of any public record
13by means of any photographic, electronic, mechanical or other
14process, device or means now known or hereafter developed and
15available to the public body.
16    (e) "Head of the public body" means the president, mayor,
17chairman, presiding officer, director, superintendent,
18manager, supervisor or individual otherwise holding primary
19executive and administrative authority for the public body, or
20such person's duly authorized designee.
21    (f) "News media" means a newspaper or other periodical
22issued at regular intervals whether in print or electronic
23format, a news service whether in print or electronic format, a
24radio station, a television station, a television network, a
25community antenna television service, or a person or
26corporation engaged in making news reels or other motion

 

 

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1picture news for public showing.
2    (g) "Recurrent requester", as used in Section 3.2 of this
3Act, means a person that, in the 12 months immediately
4preceding the request, has submitted to the same public body
5(i) a minimum of 50 requests for records, (ii) a minimum of 15
6requests for records within a 30-day period, or (iii) a minimum
7of 7 requests for records within a 7-day period. For purposes
8of this definition, requests made by news media and non-profit,
9scientific, or academic organizations shall not be considered
10in calculating the number of requests made in the time periods
11in this definition when the principal purpose of the requests
12is (i) to access and disseminate information concerning news
13and current or passing events, (ii) for articles of opinion or
14features of interest to the public, or (iii) for the purpose of
15academic, scientific, or public research or education.
16    For the purposes of this subsection (g), "request" means a
17written document (or oral request, if the public body chooses
18to honor oral requests) that is submitted to a public body via
19personal delivery, mail, telefax, electronic mail, or other
20means available to the public body and that identifies the
21particular public record the requester seeks. One request may
22identify multiple records to be inspected or copied.
23    (h) "Voluminous request" means a request that: (i) includes
24more than 5 individual requests for more than 5 different
25categories of records or a combination of individual requests
26that total requests for more than 5 different categories of

 

 

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1records in a period of 20 business days; or (ii) requires the
2compilation of more than 500 letter or legal-sized pages of
3public records unless a single requested record exceeds 500
4pages. "Single requested record" may include, but is not
5limited to, one report, form, e-mail, letter, memorandum, book,
6map, microfilm, tape, or recording.
7    "Voluminous request" does not include a request made by
8news media and non-profit, scientific, or academic
9organizations if the principal purpose of the request is: (1)
10to access and disseminate information concerning news and
11current or passing events; (2) for articles of opinion or
12features of interest to the public; or (3) for the purpose of
13academic, scientific, or public research or education.
14    For the purposes of this subsection (h), "request" means a
15written document, or oral request, if the public body chooses
16to honor oral requests, that is submitted to a public body via
17personal delivery, mail, telefax, electronic mail, or other
18means available to the public body and that identifies the
19particular public record or records the requester seeks. One
20request may identify multiple individual records to be
21inspected or copied.
22(Source: P.A. 96-261, eff. 1-1-10; 96-542, eff. 1-1-10;
2396-1000, eff. 7-2-10; 97-579, eff. 8-26-11.)
 
24    (5 ILCS 140/3)  (from Ch. 116, par. 203)
25    Sec. 3. (a) Each public body shall make available to any

 

 

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1person for inspection or copying all public records, except as
2otherwise provided in Sections Section 7 and 8.5 of this Act.
3Notwithstanding any other law, a public body may not grant to
4any person or entity, whether by contract, license, or
5otherwise, the exclusive right to access and disseminate any
6public record as defined in this Act.
7    (b) Subject to the fee provisions of Section 6 of this Act,
8each public body shall promptly provide, to any person who
9submits a request, a copy of any public record required to be
10disclosed by subsection (a) of this Section and shall certify
11such copy if so requested.
12    (c) Requests for inspection or copies shall be made in
13writing and directed to the public body. Written requests may
14be submitted to a public body via personal delivery, mail,
15telefax, or other means available to the public body. A public
16body may honor oral requests for inspection or copying. A
17public body may not require that a request be submitted on a
18standard form or require the requester to specify the purpose
19for a request, except to determine whether the records are
20requested for a commercial purpose or whether to grant a
21request for a fee waiver. All requests for inspection and
22copying received by a public body shall immediately be
23forwarded to its Freedom of Information officer or designee.
24    (d) Each public body shall, promptly, either comply with or
25deny a request for public records within 5 business days after
26its receipt of the request, unless the time for response is

 

 

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1properly extended under subsection (e) of this Section. Denial
2shall be in writing as provided in Section 9 of this Act.
3Failure to comply with a written request, extend the time for
4response, or deny a request within 5 business days after its
5receipt shall be considered a denial of the request. A public
6body that fails to respond to a request within the requisite
7periods in this Section but thereafter provides the requester
8with copies of the requested public records may not impose a
9fee for such copies. A public body that fails to respond to a
10request received may not treat the request as unduly burdensome
11under subsection (g).
12    (e) The time for response under this Section may be
13extended by the public body for not more than 5 business days
14from the original due date for any of the following reasons:
15        (i) the requested records are stored in whole or in
16    part at other locations than the office having charge of
17    the requested records;
18        (ii) the request requires the collection of a
19    substantial number of specified records;
20        (iii) the request is couched in categorical terms and
21    requires an extensive search for the records responsive to
22    it;
23        (iv) the requested records have not been located in the
24    course of routine search and additional efforts are being
25    made to locate them;
26        (v) the requested records require examination and

 

 

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1    evaluation by personnel having the necessary competence
2    and discretion to determine if they are exempt from
3    disclosure under Section 7 of this Act or should be
4    revealed only with appropriate deletions;
5        (vi) the request for records cannot be complied with by
6    the public body within the time limits prescribed by
7    paragraph (c) of this Section without unduly burdening or
8    interfering with the operations of the public body;
9        (vii) there is a need for consultation, which shall be
10    conducted with all practicable speed, with another public
11    body or among two or more components of a public body
12    having a substantial interest in the determination or in
13    the subject matter of the request.
14    The person making a request and the public body may agree
15in writing to extend the time for compliance for a period to be
16determined by the parties. If the requester and the public body
17agree to extend the period for compliance, a failure by the
18public body to comply with any previous deadlines shall not be
19treated as a denial of the request for the records.
20    (f) When additional time is required for any of the above
21reasons, the public body shall, within 5 business days after
22receipt of the request, notify the person making the request of
23the reasons for the extension and the date by which the
24response will be forthcoming. Failure to respond within the
25time permitted for extension shall be considered a denial of
26the request. A public body that fails to respond to a request

 

 

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1within the time permitted for extension but thereafter provides
2the requester with copies of the requested public records may
3not impose a fee for those copies. A public body that requests
4an extension and subsequently fails to respond to the request
5may not treat the request as unduly burdensome under subsection
6(g).
7    (g) Requests calling for all records falling within a
8category shall be complied with unless compliance with the
9request would be unduly burdensome for the complying public
10body and there is no way to narrow the request and the burden
11on the public body outweighs the public interest in the
12information. Before invoking this exemption, the public body
13shall extend to the person making the request an opportunity to
14confer with it in an attempt to reduce the request to
15manageable proportions. If any public body responds to a
16categorical request by stating that compliance would unduly
17burden its operation and the conditions described above are
18met, it shall do so in writing, specifying the reasons why it
19would be unduly burdensome and the extent to which compliance
20will so burden the operations of the public body. Such a
21response shall be treated as a denial of the request for
22information.
23    Repeated requests from the same person for the same records
24that are unchanged or identical to records previously provided
25or properly denied under this Act shall be deemed unduly
26burdensome under this provision.

 

 

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1    (h) Each public body may promulgate rules and regulations
2in conformity with the provisions of this Section pertaining to
3the availability of records and procedures to be followed,
4including:
5        (i) the times and places where such records will be
6    made available, and
7        (ii) the persons from whom such records may be
8    obtained.
9    (i) The time periods for compliance or denial of a request
10to inspect or copy records set out in this Section shall not
11apply to requests for records made for a commercial purpose,
12requests by a recurrent requester, or voluminous requests. Such
13requests shall be subject to the provisions of Sections Section
143.1, 3.2, and 3.6 of this Act, as applicable.
15(Source: P.A. 96-542, eff. 1-1-10.)
 
16    (5 ILCS 140/3.6 new)
17    Sec. 3.6. Voluminous requests.
18    (a) Notwithstanding any provision of this Act to the
19contrary, a public body shall respond to a voluminous request
20within 5 business days after receipt. The response shall notify
21the requester: (i) that the public body is treating the request
22as a voluminous request; (ii) the reasons why the public body
23is treating the request as a voluminous request; (iii) that the
24requester must respond to the public body within 10 business
25days after the public body's response was sent and specify

 

 

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1whether the requester would like to amend the request in such a
2way that the public body will no longer treat the request as a
3voluminous request; (iv) that if the requester does not respond
4within 10 business days or if the request continues to be a
5voluminous request following the requester's response, the
6public body will respond to the request and assess any fees the
7public body charges pursuant to Section 6 of this Act; (v) that
8the public body has 5 business days after receipt of the
9requester's response or 5 business days from the last day for
10the requester to amend his or her request, whichever is sooner,
11to respond to the request; (vi) that the public body may
12request an additional 10 business days to comply with the
13request; (vii) of the requester's right to review of the public
14body's determination by the Public Access Counselor and provide
15the address and phone number for the Public Access Counselor;
16and (viii) that if the requester fails to accept or collect the
17responsive records, the public body may still charge the
18requester for its response pursuant to Section 6 of this Act
19and the requester's failure to pay will be considered a debt
20due and owing to the public body and may be collected in
21accordance with applicable law.
22    (b) A public body shall provide a person making a
23voluminous request 10 business days from the date the public
24body's response pursuant to subsection (a) of this Section is
25sent to amend the request in such a way that the public body
26will no longer treat the request as a voluminous request.

 

 

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1    (c) If a request continues to be a voluminous request
2following the requester's response under subsection (b) of this
3Section or the requester fails to respond, the public body
4shall respond within the earlier of 5 business days after it
5receives the response from the requester or 5 business days
6after the final day for the requester to respond to the public
7body's notification under this subsection. The response shall:
8(i) provide an estimate of the fees to be charged, which the
9public body may require the person to pay in full before
10copying the requested documents; (ii) deny the request pursuant
11to one or more of the exemptions set out in this Act; (iii)
12notify the requester that the request is unduly burdensome and
13extend an opportunity to the requester to attempt to reduce the
14request to manageable proportions; or (iv) provide the records
15requested.
16    (d) The time for response by the public body under
17subsection (c) of this Section may be extended by the public
18body for not more than 10 business days from the final day for
19the requester to respond to the public body's notification
20under subsection (c) of this Section for any of the reasons
21provided in subsection (e) of Section 3 of this Act.
22    The person making a request and the public body may agree
23in writing to extend the time for compliance for a period to be
24determined by the parties. If the requester and the public body
25agree to extend the period for compliance, a failure by the
26public body to comply with any previous deadlines shall not be

 

 

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1treated as a denial of the request for the records.
2    (e) If a requester does not pay a fee charged pursuant to
3Section 6 of this Act for a voluminous request, the debt shall
4be considered a debt due and owing to the public body and may
5be collected in accordance with applicable law. This fee may be
6charged by the public body even if the requester fails to
7accept or collect records the public body has prepared in
8response to a voluminous request.
 
9    (5 ILCS 140/6)  (from Ch. 116, par. 206)
10    Sec. 6. Authority to charge fees.
11    (a) When a person requests a copy of a record maintained in
12an electronic format, the public body shall furnish it in the
13electronic format specified by the requester, if feasible. If
14it is not feasible to furnish the public records in the
15specified electronic format, then the public body shall furnish
16it in the format in which it is maintained by the public body,
17or in paper format at the option of the requester. A public
18body may charge the requester for the actual cost of purchasing
19the recording medium, whether disc, diskette, tape, or other
20medium. If a request is not a request for a commercial purpose
21or a voluminous request, a A public body may not charge the
22requester for the costs of any search for and review of the
23records or other personnel costs associated with reproducing
24the records, except for commercial requests as provided in
25subsection (f) of this Section. Except to the extent that the

 

 

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1General Assembly expressly provides, statutory fees applicable
2to copies of public records when furnished in a paper format
3shall not be applicable to those records when furnished in an
4electronic format.
5    (a-5) If a voluminous request is for electronic records and
6those records are not in a portable document format (PDF), the
7public body may charge up to $20 for not more than 2 megabytes
8of data, up to $40 for more than 2 but not more than 4 megabytes
9of data, and up to $100 for more than 4 megabytes of data. If a
10voluminous request is for electronic records and those records
11are in a portable document format, the public body may charge
12up to $20 for not more than 80 megabytes of data, up to $40 for
13more than 80 megabytes but not more than 160 megabytes of data,
14and up to $100 for more than 160 megabytes of data. If the
15responsive electronic records are in both a portable document
16format and not in a portable document format, the public body
17may separate the fees and charge the requester under both fee
18scales.
19    If a public body imposes a fee pursuant to this subsection
20(a-5), it must provide the requester with an accounting of all
21fees, costs, and personnel hours in connection with the request
22for public records.
23    (b) Except when a fee is otherwise fixed by statute, each
24public body may charge fees reasonably calculated to reimburse
25its actual cost for reproducing and certifying public records
26and for the use, by any person, of the equipment of the public

 

 

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1body to copy records. No fees shall be charged for the first 50
2pages of black and white, letter or legal sized copies
3requested by a requester. The fee for black and white, letter
4or legal sized copies shall not exceed 15 cents per page. If a
5public body provides copies in color or in a size other than
6letter or legal, the public body may not charge more than its
7actual cost for reproducing the records. In calculating its
8actual cost for reproducing records or for the use of the
9equipment of the public body to reproduce records, a public
10body shall not include the costs of any search for and review
11of the records or other personnel costs associated with
12reproducing the records, except for commercial requests as
13provided in subsection (f) of this Section. Such fees shall be
14imposed according to a standard scale of fees, established and
15made public by the body imposing them. The cost for certifying
16a record shall not exceed $1.
17    (c) Documents shall be furnished without charge or at a
18reduced charge, as determined by the public body, if the person
19requesting the documents states the specific purpose for the
20request and indicates that a waiver or reduction of the fee is
21in the public interest. Waiver or reduction of the fee is in
22the public interest if the principal purpose of the request is
23to access and disseminate information regarding the health,
24safety and welfare or the legal rights of the general public
25and is not for the principal purpose of personal or commercial
26benefit. For purposes of this subsection, "commercial benefit"

 

 

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1shall not apply to requests made by news media when the
2principal purpose of the request is to access and disseminate
3information regarding the health, safety, and welfare or the
4legal rights of the general public. In setting the amount of
5the waiver or reduction, the public body may take into
6consideration the amount of materials requested and the cost of
7copying them.
8    (d) The imposition of a fee not consistent with subsections
9(6)(a) and (b) of this Act constitutes a denial of access to
10public records for the purposes of judicial review.
11    (e) The fee for each abstract of a driver's record shall be
12as provided in Section 6-118 of "The Illinois Vehicle Code",
13approved September 29, 1969, as amended, whether furnished as a
14paper copy or as an electronic copy.
15    (f) A public body may charge up to $10 for each hour spent
16by personnel in searching for and retrieving a requested record
17or examining the record for necessary redactions. No fees shall
18be charged for the first 8 hours spent by personnel in
19searching for or retrieving a requested record. A public body
20may charge the actual cost of retrieving and transporting
21public records from an off-site storage facility when the
22public records are maintained by a third-party storage company
23under contract with the public body. If a public body imposes a
24fee pursuant to this subsection (f), it must provide the
25requester with an accounting of all fees, costs, and personnel
26hours in connection with the request for public records. The

 

 

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1provisions of this subsection (f) apply only to commercial
2requests.
3(Source: P.A. 96-542, eff. 1-1-10; 96-1000, eff. 7-2-10;
497-579, eff. 8-26-11.)
 
5    (5 ILCS 140/8.5 new)
6    Sec. 8.5. Records maintained online.
7    (a) Notwithstanding any provision of this Act to the
8contrary, a public body is not required to copy a public record
9that is published on the public body's website. The public body
10shall notify the requester that the public record is available
11online and direct the requester to the website where the record
12can be reasonably accessed.
13    (b) If the person requesting the public record is unable to
14reasonably access the record online after being directed to the
15website pursuant to subsection (a) of this Section, the
16requester may re-submit his or her request for the record
17stating his or her inability to reasonably access the record
18online, and the public body shall make the requested record
19available for inspection or copying as provided in Section 3 of
20this Act.
 
21    (5 ILCS 140/9.5)
22    Sec. 9.5. Public Access Counselor; opinions.
23    (a) A person whose request to inspect or copy a public
24record is denied by a public body, except the General Assembly

 

 

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1and committees, commissions, and agencies thereof, may file a
2request for review with the Public Access Counselor established
3in the Office of the Attorney General not later than 60 days
4after the date of the final denial. The request for review must
5be in writing, signed by the requester, and include (i) a copy
6of the request for access to records and (ii) any responses
7from the public body.
8    (b) A person whose request to inspect or copy a public
9record is made for a commercial purpose as defined in
10subsection (c-10) of Section 2 of this Act may not file a
11request for review with the Public Access Counselor. A person
12whose request to inspect or copy a public record was treated by
13the public body as a request for a commercial purpose under
14Section 3.1 of this Act may file a request for review with the
15Public Access Counselor for the limited purpose of reviewing
16whether the public body properly determined that the request
17was made for a commercial purpose.
18    (b-5) A person whose request to inspect or copy a public
19record was treated by a public body, except the General
20Assembly and committees, commissions, and agencies thereof, as
21a voluminous request under Section 3.6 of this Act may file a
22request for review with the Public Access Counselor for the
23purpose of reviewing whether the public body properly
24determined that the request was a voluminous request.
25    (c) Upon receipt of a request for review, the Public Access
26Counselor shall determine whether further action is warranted.

 

 

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1If the Public Access Counselor determines that the alleged
2violation is unfounded, he or she shall so advise the requester
3and the public body and no further action shall be undertaken.
4In all other cases, the Public Access Counselor shall forward a
5copy of the request for review to the public body within 7
6business days after receipt and shall specify the records or
7other documents that the public body shall furnish to
8facilitate the review. Within 7 business days after receipt of
9the request for review, the public body shall provide copies of
10records requested and shall otherwise fully cooperate with the
11Public Access Counselor. If a public body fails to furnish
12specified records pursuant to this Section, or if otherwise
13necessary, the Attorney General may issue a subpoena to any
14person or public body having knowledge of or records pertaining
15to a request for review of a denial of access to records under
16the Act. To the extent that records or documents produced by a
17public body contain information that is claimed to be exempt
18from disclosure under Section 7 of this Act, the Public Access
19Counselor shall not further disclose that information.
20    (d) Within 7 business days after it receives a copy of a
21request for review and request for production of records from
22the Public Access Counselor, the public body may, but is not
23required to, answer the allegations of the request for review.
24The answer may take the form of a letter, brief, or memorandum.
25The Public Access Counselor shall forward a copy of the answer
26to the person submitting the request for review, with any

 

 

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1alleged confidential information to which the request pertains
2redacted from the copy. The requester may, but is not required
3to, respond in writing to the answer within 7 business days and
4shall provide a copy of the response to the public body.
5    (e) In addition to the request for review, and the answer
6and the response thereto, if any, a requester or a public body
7may furnish affidavits or records concerning any matter germane
8to the review.
9    (f) Unless the Public Access Counselor extends the time by
10no more than 30 business days by sending written notice to the
11requester and the public body that includes a statement of the
12reasons for the extension in the notice, or decides to address
13the matter without the issuance of a binding opinion, the
14Attorney General shall examine the issues and the records,
15shall make findings of fact and conclusions of law, and shall
16issue to the requester and the public body an opinion in
17response to the request for review within 60 days after its
18receipt. The opinion shall be binding upon both the requester
19and the public body, subject to administrative review under
20Section 11.5.
21    In responding to any request under this Section 9.5, the
22Attorney General may exercise his or her discretion and choose
23to resolve a request for review by mediation or by a means
24other than the issuance of a binding opinion. The decision not
25to issue a binding opinion shall not be reviewable.
26    Upon receipt of a binding opinion concluding that a

 

 

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1violation of this Act has occurred, the public body shall
2either take necessary action immediately to comply with the
3directive of the opinion or shall initiate administrative
4review under Section 11.5. If the opinion concludes that no
5violation of the Act has occurred, the requester may initiate
6administrative review under Section 11.5.
7    A public body that discloses records in accordance with an
8opinion of the Attorney General is immune from all liabilities
9by reason thereof and shall not be liable for penalties under
10this Act.
11    (g) If the requester files suit under Section 11 with
12respect to the same denial that is the subject of a pending
13request for review, the requester shall notify the Public
14Access Counselor, and the Public Access Counselor shall take no
15further action with respect to the request for review and shall
16so notify the public body.
17    (h) The Attorney General may also issue advisory opinions
18to public bodies regarding compliance with this Act. A review
19may be initiated upon receipt of a written request from the
20head of the public body or its attorney, which shall contain
21sufficient accurate facts from which a determination can be
22made. The Public Access Counselor may request additional
23information from the public body in order to assist in the
24review. A public body that relies in good faith on an advisory
25opinion of the Attorney General in responding to a request is
26not liable for penalties under this Act, so long as the facts

 

 

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1upon which the opinion is based have been fully and fairly
2disclosed to the Public Access Counselor.
3(Source: P.A. 96-542, eff. 1-1-10; 97-579, eff. 8-26-11.)
 
4    Section 99. Effective date. This Act takes effect upon
5becoming law.".