Public Act 93-0579
SB1785 Enrolled LRB093 08648 WGH 08876 b
AN ACT concerning whistleblower protection.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Whistleblower Reward and Protection Act
is amended by changing Section 6 as follows:
(740 ILCS 175/6) (from Ch. 127, par. 4106)
Sec. 6. Subpoenas. Civil investigative demands.
(a) In general.
(1) Issuance and service. Whenever the Attorney
General has reason to believe that any person may be in
possession, custody, or control of any documentary
material or information relevant to an investigation, the
Attorney General may, before commencing a civil
proceeding under this Act, issue in writing and cause to
be served upon such person, a subpoena civil
investigative demand requiring such person:
(A) to produce such documentary material for
inspection and copying,
(B) to answer, in writing, written
interrogatories with respect to such documentary
material or information,
(C) to give oral testimony concerning such
documentary material or information, or
(D) to furnish any combination of such
material, answers, or testimony.
The Attorney General may shall delegate the authority to
issue subpoenas civil investigative demands under this
subsection (a) to the Department of State Police subject
to conditions as the Attorney General deems appropriate.
Whenever a subpoena civil investigative demand is an
express demand for any product of discovery, the Attorney
General or his or her delegate, an Assistant Attorney
General or the delegate of the Department of State Police
shall cause to be served, in any manner authorized by
this Section, a copy of such demand upon the person from
whom the discovery was obtained and shall notify the
person to whom such demand is issued of the date on which
such copy was served.
(2) Contents and deadlines. (A) Each subpoena
civil investigative demand issued under paragraph (1):
(A) Shall state the nature of the conduct
constituting an alleged violation that is under
investigation and the applicable provision of law
alleged to be violated.
(B) Shall identify the individual causing the
subpoena to be served and to whom communications
regarding the subpoena should be directed.
(C) Shall state the date, place, and time at
which the person is required to appear, produce
written answers to interrogatories, produce
documentary material or give oral testimony. The
date shall not be less than 10 days from the date of
service of the subpoena. Compliance with the
subpoena shall be at the Office of the Attorney
General in either the Springfield or Chicago
location or at other location by agreement.
(D) If the subpoena is for documentary
material or interrogatories, shall describe the
documents or information requested with specificity.
(E) Shall notify the person of the right to be
assisted by counsel.
(F) Shall advise that the person has 20 days
from the date of service or up until the return date
specified in the demand, whichever date is earlier,
to move, modify, or set aside the subpoena pursuant
to subparagraph (j)(2)(A) of this Section. shall
state the nature of the conduct constituting and
alleged violation which is under investigation, and
the applicable provision of law alleged to be
violated.
(B) If such demand is for the production of
documentary material, the demand shall:
(i) describe each class of documentary
material to be produced with such definiteness
and certainty as to permit such material to be
fairly identified;
(ii) prescribe a return date for each
such class which will provide a reasonable
period of time within which the material so
demanded may be assembled and made available
for inspection and copying; and
(iii) identify the investigator to whom
such material shall be made available.
(C) If such demand is for answers to written
interrogatories, the demand shall:
(i) set forth with specificity the
written interrogatories to be answered;
(ii) prescribe dates at which time
answers to written interrogatories shall be
submitted; and
(iii) identify the investigator to whom
such answers shall be submitted.
(D) If such demand is for the giving of oral
testimony, the demand shall:
(i) prescribe a date, time, and place at
which oral testimony shall be commenced;
(ii) identify an investigator who shall
conduct the examination and the custodian to
whom the transcript of such examination shall
be submitted;
(iii) specify that such attendance and
testimony are necessary to the conduct of the
investigation;
(iv) notify the person receiving the
demand of the right to be accompanied by an
attorney and any other representative; and
(v) describe the general purpose for
which the demand is being issued and the
general nature of the testimony, including the
primary areas of inquiry, which will be taken
pursuant to the demand.
(E) Any civil investigative demand issued
under this Section which is an express demand for
any product of discovery shall not be returned or
returnable until 20 days after a copy of such demand
has been served upon the person from whom the
discovery was obtained.
(F) The date prescribed for the commencement
of oral testimony pursuant to a civil investigative
demand issued under this Section shall be a date
which is not less than 7 days after the date on
which demand is received, unless the Attorney
General or an Assistant Attorney General designated
by the Attorney General or the delegate of the
Department of State Police determines that
exceptional circumstances are present which warrant
the commencement of such testimony within a lesser
period of time.
(G) The Attorney General or the delegate of
the Department of State Police shall not authorize
the issuance under this Section of more than one
civil investigative demand for oral testimony by the
same person unless the person requests otherwise or
unless the Attorney General or the delegate of the
Department of State Police, after investigation,
notifies that person in writing that an additional
demand for oral testimony is necessary. The
Attorney General shall authorize the performance by
the delegate of the Department of State Police of
any function vested in the Attorney General under
this subparagraph (G).
(b) Protected material or information.
(1) In general. A subpoena civil investigative
demand issued under subsection (a) may not require the
production of any documentary material, the submission of
any answers to written interrogatories, or the giving of
any oral testimony if such material, answers, or
testimony would be protected from disclosure under:
(A) the standards applicable to subpoenas or
subpoenas duces tecum issued by a court of this
State to aid in a grand jury investigation; or
(B) the standards applicable to discovery
requests under the Code of Civil Procedure, to the
extent that the application of such standards to any
such subpoena demand is appropriate and consistent
with the provisions and purposes of this Section.
(2) Effect on other orders, rules, and laws. Any
such subpoena demand which is an express demand for any
product of discovery supersedes any inconsistent order,
rule, or provision of law (other than this Section)
preventing or restraining disclosure of such product of
discovery to any person. Disclosure of any product of
discovery pursuant to any such subpoena express demand
does not constitute a waiver of any right or privilege
which the person making such disclosure may be entitled
to invoke to resist discovery of trial preparation
materials.
(c) Service in general; jurisdiction. (1) By whom
served. Any subpoena civil investigative demand issued under
subsection (a) may be served by any person so authorized by
the Attorney General an investigator, or by any person
authorized to serve process on individuals within Illinois,
through any method prescribed in the Code of Civil Procedure
or as otherwise set forth in this Act.
(2) Service in foreign countries. Any such demand
or any petition filed under subsection (j) may be served
upon any person who is not found within Illinois in such
manner as the Code of Civil Procedure prescribes for
service of process outside Illinois. To the extent that
the courts of this State can assert jurisdiction over any
such person consistent with due process, the courts of
this State shall have the same jurisdiction to take any
action respecting compliance with this Section by any
such person that such court would have if such person
were personally within the jurisdiction of such court.
(d) Service upon legal entities and natural persons.
(1) Legal entities. Service of any subpoena civil
investigative demand issued under subsection (a) or of
any petition filed under subsection (j) may be made upon
a partnership, corporation, association, or other legal
entity by:
(A) delivering an executed copy of such
subpoena demand or petition to any partner,
executive officer, managing agent, general agent, or
registered agent of the partnership, corporation,
association or entity;
(B) delivering an executed copy of such
subpoena demand or petition to the principal office
or place of business of the partnership,
corporation, association, or entity; or
(C) depositing an executed copy of such
subpoena demand or petition in the United States
mails by registered or certified mail, with a return
receipt requested, addressed to such partnership,
corporation, association, or entity as its principal
office or place of business.
(2) Natural person. Service of any such subpoena
demand or petition may be made upon any natural person
by:
(A) delivering an executed copy of such
subpoena demand or petition to the person; or
(B) depositing an executed copy of such
subpoena demand or petition in the United States
mails by registered or certified mail, with a return
receipt requested, addressed to the person at the
person's residence or principal office or place of
business.
(e) Proof of service. A verified return by the
individual serving any subpoena civil investigative demand
issued under subsection (a) or any petition filed under
subsection (j) setting forth the manner of such service shall
be proof of such service. In the case of service by
registered or certified mail, such return shall be
accompanied by the return post office receipt of delivery of
such subpoena demand.
(f) Documentary material.
(1) Sworn certificates. The production of
documentary material in response to a subpoena civil
investigative demand served under this Section shall be
made under a sworn certificate, in such form as the
subpoena demand designates, by:
(A) in the case of a natural person, the
person to whom the subpoena demand is directed, or
(B) in the case of a person other than a
natural person, a person having knowledge of the
facts and circumstances relating to such production
and authorized to act on behalf of such person.
The certificate shall state that all of the documentary
material required by the demand and in the possession,
custody, or control of the person to whom the subpoena
demand is directed has been produced and made available
to the Attorney General investigator identified in the
demand.
(2) Production of materials. Any person upon whom
any subpoena civil investigative demand for the
production of documentary material has been served under
this Section shall make such material available for
inspection and copying to the Attorney General
investigator identified in such demand at the place
designated in the subpoena principal place of business of
such person, or at such other place as the Attorney
General investigator and the person thereafter may agree
and prescribe in writing, or as the court may direct
under subsection (j)(1). Such material shall be made so
available on the return date specified in such subpoena
demand, or on such later date as the Attorney General
investigator may prescribe in writing. Such person may,
upon written agreement between the person and the
Attorney General investigator, substitute copies for
originals of all or any part of such material.
(g) Interrogatories. Each interrogatory in a subpoena
civil investigative demand served under this Section shall be
answered separately and fully in writing under oath and shall
be submitted under a sworn certificate, in such form as the
subpoena demand designates by:
(1) in the case of a natural person, the person to
whom the subpoena demand is directed, or
(2) in the case of a person other than a natural
person, the person or persons responsible for answering
each interrogatory.
If any interrogatory is objected to, the reasons for the
objection shall be stated in the certificate instead of an
answer. The certificate shall state that all information
required by the subpoena demand and in the possession,
custody, control, or knowledge of the person to whom the
demand is directed has been submitted. To the extent that
any information is not furnished, the information shall be
identified and reasons set forth with particularity regarding
the reasons why the information was not furnished.
(h) Oral examinations.
(1) Procedures. The examination of any person
pursuant to a subpoena civil investigative demand for
oral testimony served under this Section shall be taken
before an officer authorized to administer oaths and
affirmations by the laws of this State or of the place
where the examination is held. The officer before whom
the testimony is to be taken shall put the witness on
oath or affirmation and shall, personally or by someone
acting under the direction of the officer and in the
officer's presence, record the testimony of the witness.
The testimony shall be taken stenographically and shall
be transcribed. When the testimony is fully transcribed,
the officer before whom the testimony is taken shall
promptly transmit a certified copy of the transcript of
the testimony in accordance with the instructions of the
Attorney General to the custodian. This subsection shall
not preclude the taking of testimony by any means
authorized by, and in a manner consistent with, the Code
of Civil Procedure.
(2) Persons present. The investigator conducting
the examination shall exclude from the place where the
examination is held all persons except the person giving
the testimony, the attorney for and any other
representative of the person giving the testimony, the
attorney for the State, any person who may be agreed upon
by the attorney for the State and the person giving the
testimony, the officer before whom the testimony is to be
taken, and any stenographer taking such testimony.
(3) Where testimony taken. The oral testimony of
any person taken pursuant to a subpoena civil
investigative demand served under this Section shall be
taken in the county within which such person resides, is
found, or transacts business, or in such other place as
may be agreed upon by the Attorney General investigator
conducting the examination and such person.
(4) Transcript of testimony. When the testimony is
fully transcribed, the Attorney General investigator or
the officer before whom the testimony is taken shall
afford the witness, who may be accompanied by counsel, a
reasonable opportunity to review and correct examine and
read the transcript, in accordance with the rules
applicable to deposition witnesses in civil cases. Upon
payment of reasonable charges, the Attorney General shall
furnish a copy of the transcript to the witness, except
that the Attorney General may, for good cause, limit the
witness to inspection of the official transcript of the
witness' testimony. unless such examination and reading
are waived by the witness. Any changes in form or
substance which the witness desires to make shall be
entered and identified upon the transcript by the officer
or the investigator, with a statement of the reasons
given by the witness for making such changes. The
transcript shall then be signed by the witness, unless
the witness in writing waives the signing, is ill, cannot
be found, or refuses to sign. If the transcript is not
signed by the witness within 30 days after being afforded
a reasonable opportunity to examine it, the officer of
investigator shall sign it and state on the record the
fact of the waiver, illness, absence of the witness, or
the refusal to sign, together with the reasons, if any,
given therefor.
(5) Certification and delivery to custodian. The
officer before whom the testimony is taken shall certify
on the transcript that the witness was sworn by the
officer and that the transcript is a true record of the
testimony given by the witness, and the officer or
investigator shall promptly deliver the transcript, or
send the transcript by registered or certified mail, to
the custodian.
(6) Furnishing or inspection of transcript by
witness. Upon payment of reasonable charges therefor, the
investigator shall furnish a copy of the transcript to
the witness only, except that the Attorney General, an
Assistant Attorney General or employee of the Department
of State Police may, for good cause, limit such witness
to inspection of the official transcript of the witness'
testimony.
(5) (7) Conduct of oral testimony.
(A) Any person compelled to appear for oral
testimony under a subpoena civil investigative
demand issued under subsection (a) may be
accompanied, represented, and advised by counsel,
who may raise objections based on matters of
privilege in accordance with the rules applicable to
depositions in civil cases. Counsel may advise such
person, in confidence, with respect to any question
asked of such person. Such person or counsel may
object on the record to any question, in whole or in
part, and shall briefly state for the record the
reason for the objection. An objection may be made,
received, and entered upon the record when it is
claimed that such person is entitled to refuse to
answer the question on the grounds of any
constitutional or other legal right or privilege,
including the privilege against self-incrimination.
If such person refuses to answer any question, a
petition may be filed in circuit court under
subsection (j)(1) for an order compelling such
person to answer such question.
(B) If such person refuses any question on the
grounds of the privilege against self-incrimination,
the testimony of such person may be compelled in
accordance with Article 106 of the Code of Criminal
Procedure of 1963.
(6) (8) Witness fees and allowances. Any person
appearing for oral testimony under a subpoena civil
investigative demand issued under subsection (a) shall be
entitled to the same fees and allowances which are paid
to witnesses in the circuit court.
(i) Custodians of documents, answers, and transcripts.
(1) Designation. The Attorney General or his or her
delegate shall designate the Department of State Police
to serve as custodian of documentary material, answers to
interrogatories, and transcripts of oral testimony
received under this Section. and shall designate
additional employees of the Department of State Police as
the Attorney General determines from time to time to be
necessary to serve as deputies to the custodian.
(2) Responsibility for materials; disclosure.
(A) An investigator who receives any
documentary material, answers to interrogatories, or
transcripts of oral testimony under this Section
shall transmit them to the custodian. The custodian
shall take physical possession of such material,
answers, or transcripts and shall be responsible for
the use made of them and for the return of
documentary material under paragraph (4).
(B) The custodian may cause the preparation of
such copies of such documentary material, answers to
interrogatories, or transcripts of oral testimony as
may be required for official use by any
investigator, or other officer or employee of the
Attorney General or employee of the Department of
State Police who is authorized for such use under
regulations which the Attorney General shall issue.
Such material, answers, and transcripts may be used
by any such authorized investigator or other officer
or employee in connection with the taking of oral
testimony under this Section.
(2) (C) Except as otherwise provided in this
Section subsection (i), no documentary material, answers
to interrogatories, or transcripts of oral testimony, or
copies thereof, while in the possession of the custodian,
shall be available for examination by any individual,
except as determined necessary by the Attorney General
and subject to the conditions imposed by him or her for
effective enforcement of the laws of this State, or as
otherwise provided by court order. other than an
investigator or other officer or employee of the Attorney
General or employee of the Department of State Police
authorized under subparagraph (B). The prohibition in the
preceding sentence on the availability of material,
answers, or transcripts shall not apply if consent is
given by the person who produced such material, answers,
or transcripts, or, in the case of any product of
discovery produced pursuant to an express demand for such
material, consent is given by the person from whom the
discovery was obtained. Nothing in this subparagraph is
intended to prevent disclosure to the General Assembly,
including any committee or subcommittee of the General
Assembly, or to any other State agency for use by such
agency in furtherance of its statutory responsibilities.
Disclosure of information to any such other agency shall
be allowed only upon application, made by the Attorney
General to a circuit court, showing substantial need for
the use of the information by such agency in furtherance
of its statutory responsibilities.
(D) While in the possession of the custodian
and under such reasonable terms and conditions as
the Attorney General shall prescribe:
(i) documentary material and answers to
interrogatories shall be available for
examination by the person who produced such
material or answers, or by a representative for
that person authorized by that person to
examine such material and answers; and
(ii) transcripts of oral testimony shall
be available for examination by the person who
produced such testimony, or by a representative
of that person authorized by that person to
examine such transcripts.
(3) Use of material, answers, or transcripts in
other proceedings. Whenever any attorney of the office of
the Attorney General, or State's Attorney upon a
referral, has been designated to appear before any court,
grand jury, or State agency in any case or proceeding,
the custodian of any documentary material, answers to
interrogatories, or transcripts of oral testimony
received under this Section may deliver to such attorney
such material, answers, or transcripts for official use
in connection with any such case or proceeding as such
attorney determines to be required. Upon the completion
of any such case or proceeding, such attorney shall
return to the custodian any such material, answers, or
transcripts so delivered which have not passed into the
control of such court, grand jury, or agency through
introduction into the record of such case or proceeding.
(3) (4) Conditions for return of material. If any
documentary material has been produced by any person in
the course of any investigation pursuant to a subpoena
civil investigative demand under this Section and:
(A) any case or proceeding before the court or
grand jury arising out of such investigation, or any
proceeding before any State agency involving such
material, has been completed, or
(B) no case or proceeding in which such
material may be used has been commenced within a
reasonable time after completion of the examination
and analysis of all documentary material and other
information assembled in the course of such
investigation,
the custodian shall, upon written request of the person
who produced such material, return to such person any
such material (other than copies furnished to the
investigator under subsection (f)(2) or made for the
Attorney General or employee of the Department of State
Police under paragraph (2)(B)) which has not passed into
the control of any court, grand jury, or agency through
introduction into the record of such case or proceeding.
(5) Appointment of successor custodians. In the
event of the death, disability, or separation from
service in the Department of State Police of the
custodian of any documentary material, answers to
interrogatories, or transcripts of oral testimony
produced pursuant to a civil investigative demand under
this Section, or in the event of the official relief of
such custodian from responsibility for the custody and
control of such material, answers, or transcripts, the
Attorney General shall promptly:
(A) designate another employee of the
Department of State Police to serve as custodian of
such material, answers, or transcripts, and
(B) transmit in writing to the person who
produced such material, answers, or testimony notice
of the identity and address of the successor so
designated.
Any person who is designated to be a successor under this
paragraph (5) shall have, with regard to such material,
answers, or transcripts, the same duties and
responsibilities as were imposed by this Section upon
that person's predecessor in office, except that the
successor shall not be held responsible for any default
or dereliction which occurred before that designation.
(j) Judicial proceedings.
(1) Petition for enforcement. Whenever any person
fails to comply with any subpoena civil investigative
demand issued under subsection (a), or whenever
satisfactory copying or reproduction of any material
requested in such demand cannot be done and such person
refuses to surrender such material, the Attorney General
may file, in the circuit court of any county in which
such person resides, is found, or transacts business, or
the circuit court of the county in which an action filed
pursuant to Section 4 of this Act is pending if the
action relates to the subject matter of the subpoena and
serve upon such person a petition for an order of such
court for the enforcement of the subpoena civil
investigative demand.
(2) Petition to modify or set aside subpoena
demand.
(A) Any person who has received a subpoena
civil investigative demand issued under subsection
(a) may file, in the circuit court of any county
within which such person resides, is found, or
transacts business, and serve upon the Attorney
General investigator identified in such demand a
petition for an order of the court to modify or set
aside such subpoena demand. In the case of a
petition addressed to an express demand for any
product of discovery, a petition to modify or set
aside such demand may be brought only in the circuit
court of the county in which the proceeding in which
such discovery was obtained is or was last pending.
Any petition under this subparagraph (A) must be
filed:
(i) within 20 days after the date of
service of the subpoena civil investigative
demand, or at any time before the return date
specified in the subpoena demand, whichever
date is earlier, or
(ii) within such longer period as may be
prescribed in writing by the Attorney General
any investigator identified in the demand.
(B) The petition shall specify each ground
upon which the petitioner relies in seeking relief
under subparagraph (A), and may be based upon any
failure of the subpoena demand to comply with the
provisions of this Section or upon any
constitutional or other legal right or privilege of
such person. During the pendency of the petition in
the court, the court may stay, as it deems proper,
the running of the time allowed for compliance with
the subpoena demand, in whole or in part, except
that the person filing the petition shall comply
with any portion of the subpoena demand not sought
to be modified or set aside.
(3) Petition to modify or set aside demand for
product of discovery. (A) In the case of any subpoena
civil investigative demand issued under subsection (a)
which is an express demand for any product of discovery,
the person from whom such discovery was obtained may
file, in the circuit court of the county in which the
proceeding in which such discovery was obtained is or was
last pending, and serve upon any investigator identified
in the demand and upon the recipient of the demand, a
petition for an order of such court to modify or set
aside those portions of the subpoena demand requiring
production of any such product of discovery, subject to
the same terms, conditions, and limitations set forth in
subparagraph (j)(2) of this Section. Any petition under
this subparagraph (A) must be filed:
(i) within 20 days after the date of
service of the civil investigative demand, or
at any time before the return date specified in
the demand, whichever date is earlier, or
(ii) within such longer period as may be
prescribed in writing by any investigator
identified in the demand.
(B) The petition shall specify each ground
upon which the petitioner relies in seeking relief
under subparagraph (A), and may be based upon any
failure of the portions of the demand from which
relief is sought to comply with the provisions of
this Section, or upon any constitutional or other
legal right or privilege of the petitioner. During
the pendency of the petition, the court may stay, as
it deems proper, compliance with the demand and the
running of the time allowed from compliance with the
demand.
(4) Petition to require performance by custodian of
duties. At any time during which any custodian is in
custody or control of any documentary material or answers
to interrogatories produced, or transcripts of oral
testimony given, by any person in compliance with any
civil investigative demand issued under subsection (a),
such person, and in the case of an express demand for any
product of discovery, the person from whom such discovery
was obtained, may file, in the circuit court of the
county within which the office of such custodian is
situated, and serve upon such custodian, a petition for
an order of such court to require the performance by the
custodian of any duty imposed upon the custodian by this
Section.
(4) (5) Jurisdiction. Whenever any petition is
filed in any circuit court under this subsection (j),
such court shall have jurisdiction to hear and determine
the matter so presented, and to enter such orders as may
be required to carry out the provisions of this Section.
Any final order so entered shall be subject to appeal in
the same manner as appeals of other final orders in civil
matters. Any disobedience of any final order entered
under this Section by any court shall be punished as a
contempt of the court.
(k) Disclosure exemption. Any documentary material,
answers to written interrogatories, or oral testimony
provided under any subpoena civil investigative demand issued
under subsection (a) shall be exempt from disclosure under
the Illinois Administrative Procedure Act.
(Source: P.A. 92-651, eff. 7-11-02.)