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Sen. Christine Radogno
Filed: 5/18/2016
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1 | | AMENDMENT TO HOUSE BILL 4715
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2 | | AMENDMENT NO. ______. Amend House Bill 4715, AS AMENDED, by |
3 | | replacing everything after the enacting clause with the |
4 | | following:
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5 | | "Section 5. The Freedom of Information Act is amended by |
6 | | changing Section 11 and by adding Section 11.6 as follows:
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7 | | (5 ILCS 140/11) (from Ch. 116, par. 211)
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8 | | Sec. 11.
(a) Any person denied access to inspect or copy |
9 | | any public
record by a public body
may file suit for injunctive |
10 | | or
declaratory relief.
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11 | | (a-5) In accordance with Section 11.6 of this Act, a |
12 | | requester may file an action to enforce a binding opinion |
13 | | issued under Section 9.5 of this Act. |
14 | | (b) Where the denial is from a public body of the State, |
15 | | suit
may be filed in the circuit court for the county where the |
16 | | public body has
its principal office or where the person denied |
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1 | | access resides.
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2 | | (c) Where the denial is from a municipality or other public
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3 | | body, except as provided in subsection (b) of this Section, |
4 | | suit may be filed
in the circuit court for the county where the |
5 | | public body is located.
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6 | | (d) The circuit court shall have the jurisdiction to enjoin |
7 | | the public
body from withholding public records and to order |
8 | | the production of any
public records improperly withheld from |
9 | | the person seeking access. If the
public body can show that |
10 | | exceptional circumstances exist, and that the
body is |
11 | | exercising due diligence in responding to the request, the |
12 | | court
may retain jurisdiction and allow the agency additional |
13 | | time to complete
its review of the records.
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14 | | (e) On motion of the plaintiff, prior to or after in camera
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15 | | inspection, the court shall order the public body
to provide an |
16 | | index of the records to which access has been denied. The
index |
17 | | shall include the following:
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18 | | (i) A description of the nature or contents of each |
19 | | document
withheld, or each deletion from a released |
20 | | document, provided, however,
that the public body shall not |
21 | | be required to disclose the information
which it asserts is |
22 | | exempt; and
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23 | | (ii) A statement of the exemption or exemptions claimed |
24 | | for each such
deletion or withheld document.
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25 | | (f) In any action considered by the court, the court shall |
26 | | consider the
matter de novo, and shall conduct such in camera |
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1 | | examination of the requested
records as it finds appropriate to |
2 | | determine if such records or any part
thereof may be withheld |
3 | | under any provision of this Act. The burden shall
be on the |
4 | | public body to establish that its refusal to permit public |
5 | | inspection
or copying is in accordance with the provisions of |
6 | | this Act. Any public body that asserts that a record is exempt |
7 | | from disclosure has the burden of proving that it is exempt by |
8 | | clear and convincing evidence.
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9 | | (g) In the event of noncompliance with an order of the |
10 | | court to disclose,
the court may enforce its order against any |
11 | | public official or employee
so ordered or primarily responsible |
12 | | for such noncompliance through the court's
contempt powers.
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13 | | (h) Except as to causes the court considers to be of |
14 | | greater importance,
proceedings arising under this Section |
15 | | shall take precedence on the docket
over all other causes and |
16 | | be assigned for hearing and trial at the earliest
practicable |
17 | | date and expedited in every way.
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18 | | (i) If a person seeking the right to inspect or receive a |
19 | | copy of a public
record prevails in a
proceeding under this |
20 | | Section, the court shall award such
person reasonable |
21 | | attorney's attorneys' fees and costs. In determining what |
22 | | amount of attorney's fees is reasonable, the court shall |
23 | | consider the degree to which the relief obtained relates to the |
24 | | relief sought. The changes contained in this subsection apply |
25 | | to an action filed on or after January 1, 2010 ( the effective |
26 | | date of Public Act 96-542) this amendatory Act of the 96th |
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1 | | General Assembly .
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2 | | (j) If the court determines that a public body willfully |
3 | | and intentionally failed to comply with this Act, or otherwise |
4 | | acted in bad faith, the court shall also impose upon the public |
5 | | body a civil penalty of not less than $2,500 nor more than |
6 | | $5,000 for each occurrence. In assessing the civil penalty, the |
7 | | court shall consider in aggravation or mitigation the budget of |
8 | | the public body and whether the public body has previously been |
9 | | assessed penalties for violations of this Act. The court may |
10 | | impose an additional penalty of up to $1,000 for each day the |
11 | | violation continues if: |
12 | | (1) the public body fails to comply with the court's |
13 | | order after 30 days; |
14 | | (2) the court's order is not on appeal or stayed; and |
15 | | (3) the court does not grant the public body additional |
16 | | time to comply with the court's order to disclose public |
17 | | records. |
18 | | The changes contained in this subsection made by Public Act |
19 | | 96-542 apply to an action filed on or after January 1, 2010 |
20 | | ( the effective date of Public Act 96-542) this amendatory Act |
21 | | of the 96th General Assembly . |
22 | | (k) The changes to this Section made by this amendatory Act |
23 | | of the 99th General Assembly apply to actions filed on or after |
24 | | the effective date of this amendatory Act of the 99th General |
25 | | Assembly. |
26 | | (Source: P.A. 96-542, eff. 1-1-10; 97-813, eff. 7-13-12; |
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1 | | revised 10-14-15.)
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2 | | (5 ILCS 140/11.6 new) |
3 | | Sec. 11.6. Noncompliance with binding opinion. |
4 | | (a) The requester may file an action under Section 11 and |
5 | | there shall be a rebuttable presumption that the public body |
6 | | willfully and intentionally failed to comply with this Act for |
7 | | purposes of subsection (j) of Section 11 if: |
8 | | (1) the Attorney General issues a binding opinion |
9 | | pursuant to Section 9.5; |
10 | | (2) the public body does not file for administrative |
11 | | review of the binding opinion within 35 days after the |
12 | | binding opinion is served on the public body; and |
13 | | (3) the public body does not comply with the binding |
14 | | opinion within 35 days after the binding opinion is served |
15 | | on the public body. |
16 | | For purposes of this subsection (a), service of the binding |
17 | | opinion shall be by personal delivery or by depositing the |
18 | | opinion in the United States mail as provided in Section 3-103 |
19 | | of the Code of Civil Procedure. |
20 | | (b) The presumption in subsection (a) may be rebutted by |
21 | | the public body showing that it is making a good faith effort |
22 | | to comply with the binding opinion, but compliance was not |
23 | | possible within the 35-day time frame. |
24 | | (c) This Section applies to binding opinions of the |
25 | | Attorney General requested or issued on or after the effective |