State of Illinois
92nd General Assembly
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92_HB4938gms

 
                            STATE OF ILLINOIS
                         OFFICE OF THE GOVERNOR
                           SPRINGFIELD, 62706
      GEORGE H. RYAN
      GOVERNOR
                             August 2, 2002
      To the Honorable Members of the
          Illinois House of Representatives
          92nd General Assembly
          Pursuant to the  authority  vested  in  the  Governor  by
      Article  IV,  Section  9(e)  of  the Illinois Constitution of
      1970, and re-affirmed by the People of the State of  Illinois
      by popular referendum in 1974, and conforming to the standard
      articulated  by  the Illinois Supreme Court in People ex Rel.
      Klinger v.  Howlett,  50  Ill.  2d  242  (1972),  Continental
      Illinois National Bank and Trust Co. v. Zagel, 78 Ill. 2d 387
      (1979),  People  ex Rel. City of Canton v. Crouch, 79 Ill. 2d
      356 (1980), and County of Kane v. Carlson, 116  Ill.  2d  186
      (1987),  that  gubernatorial  action  be  consistent with the
      fundamental purposes and the intent of  the  bill,  I  hereby
      return  House  Bill  4938  entitled  "AN ACT concerning State
      records, " with my specific recommendation for change.
          House Bill 4938 amends the State Records Act  to  include
      "digitized electronic material" and "databases" in definition
      of "record," and exempts "blank forms" from the definition of
      "record".  House Bill 4938 makes changes regarding inspection
      and  copying  of certain records covered by the State Records
      Act.  House Bill 4938 provides that the Auditor General shall
      audit agencies for compliance with the provisions of this Act
      and  shall  report  findings  to  both  the  agency  and  the
      Secretary of State.
          The legislation  also  makes  it  a  Class  4  felony  to
      knowingly  and  without  authority  alter,  destroy,  deface,
      remove  or  conceal  any public record.  The legislation also
      adds similar language to Section 3 of the State  Records  Act
      to   prohibit   records   from  being  mutilated,  destroyed,
      transferred, removed, or otherwise damaged  or  disposed  of,
      except  as  provided by law.  However, the current Section 24
      of the State Records Act makes any violation of Section  3  a
      Class  B  misdemeanor.   These  two provisions have a penalty
      conflict, since both cover nearly the same type of prohibited
      conduct  but  have  different  penalties.    When   different
      penalties  apply  to  offenses  with  the  same elements, the
      courts are constitutionally required to apply only the  lower
      penalty.   Therefore,  the  new Class 4 felony penalty may be
      partially or totally invalidated by the addition  to  Section
      3.   I propose changes that will remove the conflict and make
      the Class 4 felony the applicable penalty.
          For these reasons, I hereby return House Bill  4938  with
      the following specific recommendations for change:
          on page 2, by replacing line 29 with the following:
               "Sec. 3. Records as property of State.
               (a) All records"; and
          on page 3, by replacing line 5 with the following:
               prohibited by law.
               (b) Reports and records of the obligation,"; and
          on page 13, line 22, by inserting "subsection (b) of' after "of'.
          With   these  changes,  House  Bill  4938  will  have  my
      approval.  I respectfully request your concurrence.
                                             Sincerely,
                                             s/GEORGE H. RYAN
                                             Governor

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