SB2621 96TH GENERAL ASSEMBLY

LRB096 18328 AJT 33705 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB2621

Introduced 1/21/2010, by Sen. Dale E. Risinger

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 140/7	from Ch. 116, par. 207

Creates the Public-Private Transportation Act of 2010. Finds that the public need for timely development and operation of transportation facilities may not be wholly satisfied by the existing methods of delivering those services, and authorizing private entities to develop or operate one or more transportation facilities may result in the development or operation of such transportation facilities to the public in a more timely, more efficient, or less costly fashion, thereby serving the public safety and welfare. Provides that a private entity may enter into comprehensive agreements with the State and any agency or authority thereof, any city, village, incorporated town, or county and any other political subdivision of any of the foregoing for the development or operation of transportation facilities. Allows for the comprehensive agreement between the public and private entities to include a maximum rate of return for the private entity on the development or operation of the transportation facility, and provides for the allowable methods of compensation for both the public and private parties. Provides detailed rules and procedures for: the dedication of public property as a transportation facility, the powers and duties of the private entity, interim and service agreements, financing, material default and remedies, condemnation, crossing of utility lines, sovereign immunity, public disclosure, and procurement, among others. Amends the Freedom of Information Act to provide exemptions for certain proprietary information related to the new Act. Effective immediately.

FISCAL NOTE ACT MAY APPLY

STATE DEBT IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning transportation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Public-Private Transportation Act of 2010.

Section 5. Definitions. As used in this Act:

"Affected jurisdiction" means any city, village, incorporated town, or county in which all or a portion of a qualifying transportation facility is located and any other responsible public entity directly affected by the qualifying transportation facility.

"Asset management" means a systematic process of operating and maintaining the State highway system by combining engineering practices and analyses with sound business practices and economic theory to achieve cost-effective outcomes.

"Comprehensive agreement" means the comprehensive agreement between the private entity and the responsible public entity required by Section 45 of this Act.

"Concession" means any lease, license, franchise, easement, or other binding agreement transferring rights for the use or control, in whole or in part, of a qualifying transportation facility by a responsible public entity to a private entity for a definite term during which the private entity will provide transportation-related services including, but not limited to, operations and maintenance, revenue collection, toll-collection enforcement, design, construction, and other activities that enhance throughput, reduce congestion, or otherwise manage the facility in return for the right to receive all or a portion of the revenues of the qualifying transportation facility.

"Concession payment" means a payment from a private entity to a responsible public entity in connection with the development and/or operation of a qualifying transportation facility pursuant to a concession.

"Develop" or "development" means to plan, design, develop, finance, lease, acquire, install, construct, or expand.

"Interim agreement" means an agreement, including a memorandum of understanding or binding preliminary agreement, between the private entity and the responsible public entity that provides for completion of studies and any other activities to advance the development and/or operation of a qualifying transportation facility.

"Maintenance" has the meaning ascribed to that term in Section 2-214 of the Illinois Highway Code.

"Material default" means any default by the private entity in the performance of its duties under subsection (e) of Section 40 of this Act that jeopardizes adequate service to the public from a qualifying transportation facility and remains unremedied after the responsible public entity has provided notice to the private entity and a reasonable cure period has elapsed.

"Multimodal transportation facility" means a transportation facility consisting of multiple modes of transportation.

"Operate" or "operation" means to finance, maintain, improve, equip, modify, repair, or operate.

"Private entity" means any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, non-profit entity, or other business entity.

"Public entity" means the State and any agency or authority thereof, any city, village, incorporated town, or county and any other political subdivision of any of the foregoing.

"Public utility" has the meaning ascribed to it in Section 3-105 of the Public Utilities Act.

"Qualifying transportation facility" means one or more transportation facilities developed and/or operated by a private entity pursuant to this Act.

"Responsible public entity" means a public entity, including local governments and regional authorities, that has the power to develop and/or operate the qualifying transportation facility.

"Revenues" means all revenues, including, but not limited to, income, earnings, user fees, lease payments, allocations, federal, State, regional, and local appropriations or the appropriations or other funds available to any political subdivision, authority, or instrumentality thereof, bond proceeds, equity investments, and/or service payments arising out of or in connection with supporting the development and/or operation of a qualifying transportation facility, including without limitation, money received as grants or otherwise from the United States of America, from any public entity, or from any agency or instrumentality of the foregoing in aid of such facility.

"Service contract" means a contract entered into between a public entity and the private entity pursuant to Section 25 of this Act.

"Service payments" means payments to the private entity in connection with the development and/or operation of a qualifying transportation facility pursuant to a service contract.

"Transportation facility" means any road, bridge, tunnel, overpass, ferry, airport, mass transit facility, vehicle parking facility, port facility, or similar commercial facility used for the transportation of persons or goods, together with any buildings, structures, parking areas, appurtenances, and other property needed to operate such facility; however, a commercial or retail use or enterprise not essential to the transportation of persons or goods is not a "transportation facility".

"User fees" mean the rates, tolls, fees, or other charges imposed by the private entity for use of all or a portion of a qualifying transportation facility pursuant to the interim or comprehensive agreement.

Section 10. Findings and policy.

(a) There is a public need for timely development and/or operation of transportation facilities within the State that address the needs identified by the appropriate State, regional, or local transportation plan by improving safety, reducing congestion, increasing capacity, and/or enhancing economic efficiency and that such public need may not be wholly satisfied by existing methods of procurement in which qualifying transportation facilities are developed and/or operated;

(b) The public need may not be wholly satisfied by existing ways in which transportation facilities are developed and/or operated; and

(c) Authorizing private entities to develop and/or operate one or more transportation facilities may result in the development and/or operation of such transportation facilities to the public in a more timely, more efficient, or less costly fashion, thereby serving the public safety and welfare.

(1) An action, other than the approval of the responsible public entity under Section 20 of this Act, must serve the public purpose of this Act if such action, including undertaking a concession, facilitates the timely development and/or operation of a qualifying transportation facility.

(2) It is the intent of this Act, among other things, to encourage investment in the State by private entities that facilitates the development and/or operation of transportation facilities. Accordingly, public and private entities may have the greatest possible flexibility in contracting with each other for the provision of the public services which are the subject of this Act.

(3) This Act shall be liberally construed in conformity with the purposes hereof.

Section 15. Prerequisite for operation. Any private entity seeking authorization under this Act to develop and/or operate a transportation facility must first obtain approval of the responsible public entity under Section 20. Such private entity may initiate the approval process by requesting approval pursuant to subsection (a) of Section 20 or the responsible public entity may request proposals pursuant to subsection (b) of Section 20.

Section 20. Approval by the responsible public entity.

(a) The private entity may request approval by the responsible public entity. Any such request must be accompanied by the following material and information unless waived by the responsible public entity in its guidelines or other instructions given, in writing, to the private entity with respect to the transportation facility or facilities that the private entity proposes to develop and/or operate as a qualifying transportation facility:

(1) A topographic map (1:2,000 or other appropriate scale) indicating the location of the transportation facility or facilities;

(2) A description of the transportation facility or facilities, including the conceptual design of such facility or facilities and all proposed interconnections with other transportation facilities;

(3) The proposed date for development and/or operation of the transportation facility or facilities along with an estimate of the life-cycle cost of the transportation facility as proposed;

(4) A statement setting forth the method by which the private entity proposes to secure any property interests required for the transportation facility or facilities;

(5) Information relating to the current transportation plans, if any, of each affected jurisdiction;

(6) A list of all permits and approvals required for developing and/or operating improvements to the transportation facility or facilities from local, State, or federal agencies and a projected schedule for obtaining such permits and approvals;

(7) A list of public utility facilities, if any, that will be crossed by the transportation facility or facilities and a statement of the plans of the private entity to accommodate such crossings;

(8) A statement setting forth the private entity's general plans for developing and/or operating the transportation facility or facilities, including identification of any revenue, public or private, or proposed debt or equity investment or concession proposed by the private entity;

(9) The names and addresses of the persons who may be contacted for further information concerning the request;

(10) Information on how the private entity's proposal will address the needs identified in the appropriate State, regional, or local transportation plan by improving safety, reducing congestion, increasing capacity, and/or enhancing economic efficiency; and

(11) Such additional material and information as the responsible public entity may reasonably request pursuant to its guidelines or other written instructions.

(b) The responsible public entity may request proposals from private entities for the development and/or operation of transportation facilities. The responsible public entity may not charge a fee to cover the costs of processing, reviewing, and evaluating proposals received in response to such requests.

(c) The responsible public entity may grant approval of the development and/or operation of the transportation facility or facilities as a qualifying transportation facility if the responsible public entity determines that it serves the public purpose of this Act. The responsible public entity may determine that the development and/or operation of the transportation facility or facilities as a qualifying transportation facility serves such public purpose if:

(1) There is a public need for the transportation facility or facilities the private entity proposes to develop and/or operate as a qualifying transportation facility;

(2) The transportation facility or facilities and the proposed interconnections with existing transportation facilities, and the private entity's plans for development and/or operation of the qualifying transportation facility or facilities, are, in the opinion of the responsible public entity, reasonable and will address the needs identified in the appropriate State, regional, or local transportation plan by improving safety, reducing congestion, increasing capacity, and/or enhancing economic efficiency;

(3) The estimated cost of developing and/or operating the transportation facility or facilities is reasonable in relation to similar facilities; and

(4) The private entity's plans will result in the timely development and/or operation of the transportation facility or facilities or their more efficient operation. In evaluating any request, the responsible public entity may rely upon internal staff reports prepared by personnel familiar with the operation of similar facilities or the advice of outside advisors or consultants having relevant experience.

(d) The responsible public entity may charge a reasonable fee to cover the costs of processing, reviewing, and evaluating the request submitted by a private entity pursuant to subsection (a), including without limitation, reasonable attorney's fees and fees for financial and other necessary advisors or consultants. The responsible public entity must also develop guidelines that establish the process for the acceptance and review of a proposal from a private entity pursuant to subsections (a) and (b). Such guidelines must establish a specific schedule for review of the proposal by the responsible public entity, a process for alteration of that schedule by the responsible public entity if it deems that changes are necessary because of the scope or complexity of proposals it receives, the process for receipt and review of competing proposals, and the type and amount of information that is necessary for adequate review of proposals in each stage of review. For qualifying transportation facilities that have approved or pending State and federal environmental clearances, secured significant right of way, have previously allocated significant State or federal funding, or exhibit other circumstances that could reasonably reduce the amount of time to develop and/or operate the qualifying transportation facility in accordance with the purpose of this Act, the guidelines must provide for a prioritized documentation, review, and selection process.

(e) The approval of the responsible public entity is subject to the private entity's entering into an interim agreement or a comprehensive agreement with the responsible public entity. For any project with an estimated construction cost of over $50,000,000, the responsible public entity must also require the private entity to pay the costs for an independent audit of any and all traffic and cost estimates associated with the private entity's proposal, as well as a review of all public costs and potential liabilities to which taxpayers could be exposed (including improvements to other transportation facilities that may be needed as a result of the proposal, failure by the private entity to reimburse the responsible public entity for services provided, and potential risk and liability in the event the private entity defaults on the comprehensive agreement or on bonds issued for the project). This independent audit must be conducted by an independent consultant selected by the responsible public entity, and all such information from such review must be fully disclosed.

(f) In connection with its approval of the development and/or operation of the transportation facility or facilities as a qualifying transportation facility, the responsible public entity must establish a date for the acquisition of or the beginning of construction of or improvements to the qualifying transportation facility. The responsible public entity may extend such date from time to time.

(g) The responsible public entity must take appropriate action, as more specifically set forth in its guidelines, to protect confidential and proprietary information provided by the private entity pursuant to an agreement under paragraph (tt) of subsection (1) of Section 7 of the Freedom of Information Act.

(h) The responsible public entity may also apply for, execute, and/or endorse applications submitted by private entities to obtain federal credit assistance for qualifying projects developed and/or operated pursuant to this Act.

Section 25. Service contracts. In addition to any authority otherwise conferred by law, any public entity may contract with a private entity for transportation services to be provided by a qualifying transportation facility in exchange for such service payments and other consideration as such public entity may deem appropriate.

Section 30. Affected jurisdictions.

(a) Any private entity requesting approval from, or submitting a proposal to, a responsible public entity under Section 20 must notify each affected jurisdiction by furnishing a copy of its request or proposal to each affected jurisdiction.

(b) Each affected jurisdiction that is not a responsible public entity for the respective qualifying transportation facility must, within 60 days after receiving a request for comments from the responsible public entity, submit any comments it may have in writing on the proposed qualifying transportation facility to the responsible public entity and indicating whether the facility will address the needs identified in the appropriate State, regional, or local transportation plan by improving safety, reducing congestion, increasing capacity, and/or enhancing economic efficiency.

Section 35. Dedication of public property. Any public entity may dedicate any property interest that it has for public use as a qualified transportation facility if it finds that so doing will serve the public purpose of this Act. In connection with such dedication, a public entity may convey any property interest that it has, subject to the conditions imposed by general law governing such conveyances, to the private entity, subject to the provisions of this Act, for such consideration as such public entity may determine. The aforementioned consideration may include, without limitation, the agreement of the private entity to develop and/or operate the qualifying transportation facility. The property interests that the public entity may convey to the private entity in connection with a dedication under this Section may include licenses, franchises, easements, concessions, or any other right or interest the public entity deems appropriate. Such property interest including, but not limited to, a leasehold interest in and/or rights to use real property constituting a qualifying transportation facility is considered property indirectly owned by a government if described in Section 15-55 of the Property Tax Code.

Section 40. Powers and duties of the private entity.

(a) The private entity has all power allowed by law generally to a private entity having the same form of organization as the private entity and has the power to develop and/or operate the qualifying transportation facility and impose user fees and/or enter into service contracts in connection with the use thereof.

(b) The private entity may own, lease or acquire any other right to use or develop and/or operate the qualifying transportation facility.

(c) Subject to applicable permit requirements, the private entity has the authority to cross any canal or navigable watercourse so long as the crossing does not unreasonably interfere with then current navigation and use of the waterway.

(d) In operating the qualifying transportation facility, the private entity may:

(1) Make classifications according to reasonable categories for assessment of user fees; and

(2) With the consent of the responsible public entity, make and enforce reasonable rules to the same extent that the responsible public entity may make and enforce rules with respect to a similar transportation facility.

(e) The private entity must:

(1) Develop and/or operate the qualifying transportation facility in a manner that meets the standards of the responsible public entity for transportation facilities operated and maintained by such responsible public entity, all in accordance with the provisions of the interim agreement or the comprehensive agreement;

(2) Keep the qualifying transportation facility open for use by the members of the public in accordance with the terms and conditions of the interim or comprehensive agreement after its initial opening upon payment of the applicable user fees, and/or service payments; provided that the qualifying transportation facility may be temporarily closed because of emergencies or, with the consent of the responsible public entity, to protect the safety of the public or for reasonable construction or maintenance procedures;

(3) Maintain, or provide by contract for the maintenance of, the qualifying transportation facility;

(4) Cooperate with the responsible public entity in establishing any interconnection with the qualifying transportation facility requested by the responsible public entity; and

(5) Comply with the provisions of the interim or comprehensive agreement and any service contract.

Section 45. Comprehensive agreement.

(a) Prior to developing and/or operating the qualifying transportation facility, the private entity must enter into a comprehensive agreement with the responsible public entity. The comprehensive agreement must, as appropriate, provide for:

(1) Delivery of performance and payment bonds in connection with the development and/or operation of the qualifying transportation facility, in the forms and amounts satisfactory to the responsible public entity;

(2) Review of plans for the development and/or operation of the qualifying transportation facility by the responsible public entity and approval by the responsible public entity if the plans conform to standards acceptable to the responsible public entity;

(3) Inspection of construction of or improvements to the qualifying transportation facility by the responsible public entity to ensure that they conform to the standards acceptable to the responsible public entity;

(4) Maintenance of a policy or policies of public liability insurance (copies of which must be filed with the responsible public entity accompanied by proofs of coverage) or self-insurance, each in form and amount satisfactory to the responsible public entity and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying transportation facility;

(5) Monitoring of the maintenance practices of the private entity by the responsible public entity and the taking of such actions as the responsible public entity finds appropriate to ensure that the qualifying transportation facility is properly maintained;

(6) Reimbursement to be paid to the responsible public entity for services provided by the responsible public entity;

(7) Filing of appropriate financial statements in a form acceptable to the responsible public entity on a periodic basis;

(8) Compensation to the private entity which may include a reasonable development fee, a reasonable maximum rate of return on investment, and/or reimbursement of development expenses in the event of termination for convenience by the responsible public entity as agreed upon between the responsible public entity and the private entity;

(9) The date of termination of the private entity's authority and duties under this Act and dedication to the appropriate public entity; and

(10) Guaranteed cost and completion guarantees related to the development and/or operation of the qualified transportation facility and payment of damages for failure to meet the completion guarantee.

(b) The comprehensive agreement must provide for such user fees as may be established from time to time by agreement of the parties. Any user fees must be set at a level that takes into account any lease payments, service payments, and compensation to the private entity or as specified in the comprehensive agreement. A copy of any service contract must be filed with the responsible public entity. A schedule of the current user fees must be made available by the private entity to any member of the public on request. In negotiating user fees under this Section, the parties must establish fees that are the same for persons using the facility under like conditions except as required by agreement between the parties to preserve capacity and prevent congestion on the qualifying transportation facility. The execution of the comprehensive agreement or any amendment thereto constitutes conclusive evidence that the user fees provided for therein comply with this Act. User fees established in the comprehensive agreement as a source of revenues may be in addition to, or in lieu of, service payments.

(c) In the comprehensive agreement, the responsible public entity may agree to make grants or loans for the development and/or operation of the qualifying transportation facility from time to time from amounts received from the federal government or any agency or instrumentality thereof.

(d) The comprehensive agreement must incorporate the duties of the private entity under this Act and may contain such other terms and conditions that the responsible public entity determines serve the public purpose of this Act. Without limitation, the comprehensive agreement may contain provisions under which the responsible public entity agrees to provide notice of default and cure rights for the benefit of the private entity and the persons specified therein as providing financing for the qualifying transportation facility. The comprehensive agreement may contain such other lawful terms and conditions to which the private entity and the responsible public entity mutually agree, including, without limitation, provisions regarding unavoidable delays or provisions providing for a loan of public funds for the development and/or operation of one or more qualifying transportation facilities.

(e) The comprehensive agreement must provide for the distribution of any earnings in excess of the maximum rate of return as negotiated in the comprehensive agreement. Without limitation, excess earnings may be distributed to the State's Road Fund, to the responsible public entity, or to the private entity for debt reduction or they may be shared with appropriate public entities. Any payments under a concession arrangement for which the State is the responsible public entity must be paid into the Road Fund.

(f) Any changes in the terms of the comprehensive agreement, as may be agreed upon by the parties from time to time, must be added to the comprehensive agreement by written amendment.

(g) Notwithstanding any contrary provision of this Act, a responsible public entity may enter into a comprehensive agreement with multiple private entities if the responsible public entity determines in writing that it is in the public interest to do so.

(h) The comprehensive agreement may provide for the development and/or operation of phases or segments of the qualifying transportation facility.

Section 50. Interim agreement.

(a) Prior to or in connection with the negotiation of the comprehensive agreement, the responsible public entity may enter into an interim agreement with the private entity proposing the development and/or operation of the facility or facilities. Such interim agreement may: (i) permit the private entity to commence activities for which it may be compensated relating to the proposed qualifying transportation facility, including project planning and development, advance right-of-way acquisition, design and engineering, environmental analysis and mitigation, survey, conducting transportation and revenue studies, and ascertaining the availability of financing for the proposed facility or facilities; (ii) establish the process and timing of the negotiation of the comprehensive agreement; and (iii) contain any other provisions related to any aspect of the development and/or operation of a qualifying transportation facility that the parties may deem appropriate.

(b) Notwithstanding anything to the contrary in this Act, a responsible public entity may enter in to an interim agreement with multiple private entities if the responsible public entity determines in writing that it is in the public interest to do so.

Section 55. Multiple public entities.

(a) If a private entity submits a proposal pursuant to subsection (a) of Section 20 of this Act to develop and/or operate a qualifying transportation facility or a multimodal transportation facility that may require approval by more than one public entity, representatives of each of the affected public entities must, prior to acceptance of such proposal, convene and determine which public entity will serve as the coordinating responsible public entity. Such determination must occur within 60 days of the receipt of a proposal by the respective public entities.

(b) If public entities request proposals from private entities for the development and/or operation of a qualifying transportation facility or a multimodal transportation facility pursuant to subsection (b) of Section 20, the determination of which public entity will serve as the coordinating responsible public entity must be made prior to any request for proposals.

(c) Once a determination has been made in accordance with subsections (a) or (b), the coordinating responsible public entity and the private entity must proceed in accordance with this Act.

Section 60. Federal, State and local assistance.

(a) The responsible public entity may take any action to obtain federal, State, or local assistance for a qualifying transportation facility that serves the public purpose of this Act and may enter into any contracts required to receive such federal assistance. If the responsible public entity is a State agency, any funds received from the State or federal government or any agency or instrumentality thereof are subject to appropriation by the General Assembly. The responsible public entity may determine that it serves the public purpose of this Act for all or any portion of the costs of a qualifying transportation facility to be paid, directly or indirectly, from the proceeds of a grant or loan made by the local, State, or federal government or any agency or instrumentality thereof.

(b) The responsible public entity may agree to make grants or loans for the development and/or operation of the qualifying transportation facility from time to time from amounts received from the federal, State, or local government, or any agency or instrumentality thereof.

(c) Nothing in this Act or in an interim or comprehensive agreement entered into pursuant to this Act may be deemed to enlarge, diminish, or affect the authority, if any, otherwise possessed by the responsible public entity to take action that would impact the debt capacity of the State or the affected jurisdictions.

Section 65. Financing. Any financing of a qualifying transportation facility may be in such amounts and upon such terms and conditions as may be determined by the parties to the interim or comprehensive agreement. Without limiting the generality of the foregoing, the private entity and the responsible public entity may propose to utilize any and all revenues that may be available to them and may, to the fullest extent permitted by applicable law, issue debt, equity, or other securities or obligations, enter into leases, concessions, and grant and loan agreements, access any designated transportation trust funds, borrow or accept grants from any State infrastructure bank and secure any financing with a pledge of, security interest in, or lien on, any or all of its property, including all of its property interests in the qualifying transportation facility.

Section 70. Material default; remedies.

(a) Upon the occurrence and during the continuation of material default, the responsible public entity may exercise any or all of the following remedies:

(1) The responsible public entity may elect to take over the transportation facility or facilities and in such case it must succeed to all of the right, title and interest in such transportation facility or facilities, subject to any liens on revenues previously granted by the private entity to any person providing financing therefor;

(2) The responsible public entity may terminate the interim or comprehensive agreement and exercise any other rights and remedies which may be available to it at law or in equity; or

(3) The responsible public entity may make or cause to be made any appropriate claims under the performance and/or payment bonds required by Section 45.

(b) In the event the responsible public entity elects to take over a qualifying transportation facility pursuant to subsection (a), the responsible public entity may develop and/or operate the transportation facility, impose user fees for the use thereof and comply with any service contracts as if it were the private entity. Any revenues that are subject to a lien must be collected for the benefit of, and paid to, secured parties, as their interests may appear, to the extent necessary to satisfy the private entity's obligations to secured parties, including the maintenance of reserves and such liens must be correspondingly reduced and, when paid off, released. Before any payments to, or for the benefit of, secured parties, the responsible public entity may use revenues to pay current operation and maintenance costs of the transportation facility or facilities, including compensation to the responsible public entity for its services in operating and maintaining the qualifying transportation facility. Remaining revenues, if any, after all payments for operation and maintenance of the transportation facility or facilities, and to, or for the benefit of, secured parties, have been made, must be paid to the private entity, subject to the negotiated maximum rate of return. The right to receive such payment, if any, must be considered just compensation for the transportation facility or facilities. The full faith and credit of the responsible public entity may not be pledged to secure any financing of the private entity by the election to take over the qualifying transportation facility. Assumption of operation of the qualifying transportation facility does not obligate the responsible public entity to pay any obligation of the private entity from sources other than revenues.

Section 75. Condemnation.

(a) At the request of the private entity, the responsible public entity may exercise any power of condemnation that it has under law for the purpose of acquiring any lands or estates or interests therein to the extent that the responsible public entity finds that such action serves the public purpose of this Act. Any amounts to be paid in any such condemnation proceeding must be paid by the private entity.

(b) Except as provided in subsection (a), until the Secretary of State, after notice to the private entity and the secured parties, as may appear in the private entity's records, and an opportunity for hearing, has entered a final declaratory judgment that a material default has occurred and is continuing, the power of condemnation may not be exercised against a qualifying transportation facility.

(c) After the entry of such final order by the Secretary of State, any responsible public entity having the power of condemnation under State law may exercise such power of condemnation in lieu of, or at any time after taking over the transportation facility pursuant to paragraph (1) of Section 70 of this Act, to acquire the qualifying transportation facility or facilities. Nothing in this Act may be construed to limit the exercise of the power of condemnation by any responsible public entity against a qualifying transportation facility after the entry by the Secretary of State of a final declaratory judgment order pursuant to subsection (b). Any person that has provided financing for the qualifying transportation facility and the private entity, to the extent of its capital investment, may participate in the condemnation proceedings with the standing of a property owner.

Section 80. Utility crossings. The private entity and each public utility, railroad, and cable television provider, whose facilities are to be crossed or affected must cooperate fully with the other in planning and arranging the manner of the crossing or relocation of the facilities. Any such entity possessing the power of condemnation is hereby expressly granted such powers in connection with the moving or relocation of facilities to be crossed by the qualifying transportation facility or that must be relocated to the extent that such moving or relocation is made necessary or desirable by construction of or improvements to the qualifying transportation facility, which will be construed to include construction of or improvements to temporary facilities for the purpose of providing service during the period of construction or improvement. Should the private entity and any such public utility, railroad, and cable television provider not be able to agree upon a plan for the crossing or relocation, the Illinois Commerce Commission may determine the manner in which the crossing or relocation is to be accomplished and any damages due arising out of the crossing or relocation. The Illinois Commerce Commission may employ expert engineers who will examine the location and plans for such crossing or relocation, hear any objections and consider modifications, and make a recommendation to the Illinois Commerce Commission. In such a case, the cost of the experts is to be borne by the private entity. Any amount to be paid for such crossing, construction, moving or relocating of facilities must be paid for by the private entity or any other person contractually responsible therefor under the interim or comprehensive agreement or under any other contract, license or permit. The Illinois Commerce Commission must make a determination within 90 days of notification by the private entity that the qualifying transportation facility will cross utilities subject to the Illinois Commerce Commission's jurisdiction.

Section 85. Police powers; violations of law.

(a) All police officers of the State and of each affected local jurisdiction, have the same powers and jurisdiction within the limits of such qualifying transportation facility as they have in their respective areas of jurisdiction and such police officers will have access to the qualifying transportation facility at any time for the purpose of exercising such powers and jurisdiction. This authority does not extend to the private offices, buildings, garages, and other improvements of the private entity to any greater degree than the police power extends to any other private buildings and improvements.

(b) To the extent the transportation facility is a road, bridge, tunnel, overpass, or similar transportation facility for motor vehicles, the traffic and motor vehicle laws of the State or, if applicable, any local jurisdiction must be the same as those applying to conduct on similar transportation facilities in the State or such local jurisdiction. Punishment for offenses shall be as prescribed by law for conduct occurring on similar transportation facilities in the State or such local jurisdiction.

Section 90. Dedication of assets. The responsible public entity must terminate the private entity's authority and duties under this Act on the date set forth in the interim or comprehensive agreement. Upon termination, the authority and duties of the private entity under this Act will cease, and the qualifying transportation facility will be dedicated to the responsible public entity or, if the qualifying transportation facility was initially dedicated by an affected jurisdiction, to such affected local jurisdiction for public use.

Section 95. Sovereign immunity. Nothing in this Act may be construed as or deemed a waiver of the sovereign immunity of the State, any responsible public entity or any affected local jurisdiction or any officer or employee thereof with respect to the participation in, or approval of all or any part of the qualifying transportation facility or its operation, including but not limited to interconnection of the qualifying transportation facility with any other transportation facility. A city, village, incorporated town, or county in which a qualifying transportation facility is located has sovereign immunity with respect to its construction and operation.

Section 100. Procurement.

(a) The Illinois Procurement Code does not apply to this Act; however, a responsible public entity may enter into an interim or a comprehensive agreement only in accordance with guidelines adopted by it as follows:

(1) A responsible public entity may enter into an interim or a comprehensive agreement in accordance with guidelines adopted by it that are consistent with procurement through "competitive sealed bidding" as provided in Section 20-10 of the Illinois Procurement Code.

(2) A responsible public entity may enter into an interim or a comprehensive agreement in accordance with guidelines adopted by it that are consistent with the procurement of "other than professional services" through competitive sealed bidding as provided in Sections 20-10 and 30-15 of the Illinois Procurement Code. Such responsible public entity may not be required to select the proposal with the lowest price offer, but may consider price as one factor in evaluating the proposals received. Other factors that may be considered include (i) the proposed cost of the qualifying transportation facility; (ii) the general reputation, qualifications, industry experience, and financial capacity of the private entity; (iii) the proposed design, operation, and feasibility of the qualifying transportation facility; (iv) the eligibility of the facility for priority selection, review, and documentation timelines under the responsible public entity's guidelines; (v) local citizen and public entity comments; (vi) benefits to the public; (vii) the private entity's compliance with a minority business enterprise participation plan or good faith effort to comply with the goals of such plan; (viii) the private entity's plans to employ local contractors and residents; (ix) the safety record of the private entity; (x) the ability of the facility to address the needs identified in the appropriate State, regional or local transportation plan by improving safety, reducing congestion, increasing capacity, and/or enhancing economic efficiency; and (xi) other criteria that the responsible public entity deems appropriate.

A responsible public entity must proceed in accordance with the guidelines adopted by it pursuant to paragraph (1) of this subsection unless it determines that proceeding in accordance with the guidelines adopted by it pursuant to this paragraph is likely to be advantageous to the responsible public entity and the public, based on: (i) the probable scope, complexity, or urgency of a project; (ii) risk sharing including guaranteed cost or completion guarantees, added value, or debt or equity investments proposed by the private entity; or (iii) an increase in funding, dedicated revenue source or other economic benefit that would not otherwise be available. When the responsible public entity determines to proceed according to the guidelines adopted by it pursuant to this paragraph, it must state the reasons for its determination in writing. If a State agency is the responsible public entity, the approval of the Secretary of the Illinois Department of Transportation may be required as more specifically set forth in the guidelines before the comprehensive agreement is signed.

(3) Interim or comprehensive agreements for maintenance or asset management services for a transportation facility that is a highway, bridge, tunnel, or overpass, and any amendment or change order thereto that increases the highway lane-miles receiving services under such an agreement, must be procured in accordance with guidelines that are consistent with procurement through "competitive sealed bidding" as provided in Section 20-10 of the Illinois Procurement Code. Furthermore, such contracts must be of a size and scope to encourage maximum competition and participation by agency prequalified contractors and otherwise qualified contractors.

(4) The provisions of paragraph (3) do not apply to maintenance or asset management services agreed to as part of the initial provisions of any interim or comprehensive agreement entered into for the original construction, reconstruction, or improvement of any highway pursuant to this Act and do not apply to any concession that, at a minimum, provides for (i) the construction, reconstruction, or improvement of any transportation facility or (ii) the operation and maintenance of any transportation facility with existing toll facilities.

(5) Nothing in this Section requires professional services be procured by any method other than competitive sealed bidding in accordance with the Illinois Procurement Code.

Section 105. Posting of conceptual proposals; public comment; public access to procurement records.

(a) Conceptual proposals submitted in accordance with subsection (a) or (b) of Section 20 of this Act to a responsible public entity must be posted by the responsible public entity within 10 working days after acceptance of such proposals as follows:

(1) For responsible public entities that are State agencies, departments, and institutions, posting must be in accordance with the Department of Central Management Services requirements; and

(2) For responsible public entities that are local public bodies, posting must be on the responsible public entity's website or by publication, in a newspaper of general circulation in the area in which the contract is to be performed, of a summary of the proposals and the location where copies of the proposals are available for public inspection.

In addition to the posting requirements, at least one copy of the proposals must be made available for public inspection. Nothing in this Section may be construed to prohibit the posting of the conceptual proposals by additional means deemed appropriate by the responsible public entity so as to provide maximum notice to the public of the opportunity to inspect the proposals. Trade secrets, financial records, or other records of the private entity excluded from disclosure under the provisions of paragraph (tt) of subsection (1) of Section 7 of the Freedom of Information Act are not be required to be posted, except as otherwise agreed to by the responsible public entity and the private entity.

(b) In addition to the posting requirements of subsection (a), for 30 days prior to entering into an interim or comprehensive agreement, a responsible public entity must provide an opportunity for public comment on the proposals. The public comment period required by this subsection may include a public hearing in the sole discretion of the responsible public entity. After the end of the public comment period, no additional posting is required.

(c) Once the negotiation phase for the development of an interim or a comprehensive agreement is complete and a decision to award has been made by a responsible public entity, the responsible public entity must present the major business points of the interim or comprehensive agreement, including the use of any public funds, to its oversight board at a regularly scheduled meeting of the board that is open to the public.

(d) Once an interim agreement or a comprehensive agreement has been entered into, a responsible public entity must make procurement records available for public inspection, in accordance with the Freedom of Information Act. For the purposes of this subsection, procurement records may not be interpreted to include (i) trade secrets of the person as provided in the Illinois Trade Secrets Act or (ii) financial records, including balance sheets or financial statements of the private entity that are not generally available to the public through regulatory disclosure or otherwise.

(e) Cost estimates relating to a proposed procurement transaction prepared by or for a responsible public entity must not be open to public inspection.

(f) Any inspection of procurement transaction records under this Section is subject to reasonable restrictions to ensure the security and integrity of the records.

(g) The provisions of this Section apply to accepted proposals regardless of whether the process of bargaining will result in an interim or a comprehensive agreement.

Section 110. Jurisdiction. The Illinois Commerce Commission has exclusive jurisdiction to adjudicate all matters specifically committed to its jurisdiction by this Act.

Section 905. The Freedom of Information Act is amended by changing Section 7 as follows:

(5 ILCS 140/7) (from Ch. 116, par. 207)

(Text of Section before amendment by P.A. 96-736)

Sec. 7. Exemptions.

(1) When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. Subject to this requirement, the following shall be exempt from inspection and copying:

(a) Information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.

(b) Private information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.

(b-5) Files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.

(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. "Unwarranted invasion of personal privacy" means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.

(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request;

(ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request;

(iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing;

(iv) unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies; except that the identities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be provided by agencies of local government, except when disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient of the request;

(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request;

(vi) endanger the life or physical safety of law enforcement personnel or any other person; or

(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.

(e) Records that relate to or affect the security of correctional institutions and detention facilities.

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.

The information included under this exemption includes all (i) All trade secrets and commercial or financial information obtained by a public body, including a public pension fund, from a private equity fund or a privately held company within the investment portfolio of a private equity fund as a result of either investing or evaluating a potential investment of public funds in a private equity fund. The exemption contained in this item does not apply to the aggregate financial performance information of a private equity fund, nor to the identity of the fund's managers or general partners. The exemption contained in this item does not apply to the identity of a privately held company within the investment portfolio of a private equity fund, unless the disclosure of the identity of a privately held company may cause competitive harm.

Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.

(h) Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.

(i) Valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. The exemption for "computer geographic systems" provided in this paragraph (i) does not extend to requests made by news media as defined in Section 2 of this Act when the requested information is not otherwise exempt and the only purpose of the request is to access and disseminate information regarding the health, safety, welfare, or legal rights of the general public.

(j) The following information pertaining to educational matters:

(i) test questions, scoring keys and other examination data used to administer an academic examination;

(ii) information received by a primary or secondary school, college, or university under its procedures for the evaluation of faculty members by their academic peers;

(iii) information concerning a school or university's adjudication of student disciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of the student; and

(iv) course materials or research materials used by faculty members.

(k) Architects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds and the same for projects constructed or developed with public funds, including but not limited to power generating and distribution stations and other transmission and distribution facilities, water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings, but only to the extent that disclosure would compromise security.

(l) Minutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act.

(m) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

(n) Records relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.

(o) Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

(p) Records relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.

(q) Test questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment.

(r) The records, documents, and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding under the Eminent Domain Act, records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale shall be exempt until a sale is consummated.

(s) Any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool. Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.

(t) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of a public body responsible for the regulation or supervision of financial institutions or insurance companies, unless disclosure is otherwise required by State law.

(u) Information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs, or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act.

(v) Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations.

(w) (Blank).

(x) Maps and other records regarding the location or security of generation, transmission, distribution, storage, gathering, treatment, or switching facilities owned by a utility, by a power generator, or by the Illinois Power Agency.

(y) Information contained in or related to proposals, bids, or negotiations related to electric power procurement under Section 1-75 of the Illinois Power Agency Act and Section 16-111.5 of the Public Utilities Act that is determined to be confidential and proprietary by the Illinois Power Agency or by the Illinois Commerce Commission.

(z) (tt) Information about students exempted from disclosure under Sections 10-20.38 or 34-18.29 of the School Code, and information about undergraduate students enrolled at an institution of higher education exempted from disclosure under Section 25 of the Illinois Credit Card Marketing Act of 2009.

(aa) Certain information related to the Public-Private Transportation Act of 2010, including:

(1) Memoranda, staff evaluations, or other records prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the Public-Private Transportation Act of 2010 where (i) if such records were made public prior to or after the execution of an interim or a comprehensive agreement, Section 105 of the Public-Private Transportation Act of 2010 notwithstanding, the financial interest or bargaining position of the public entity would be adversely affected, and (ii) the basis for the determination required in clause (i) is documented in writing by the responsible public entity.

(2) Records provided by a private entity to a responsible public entity, affected jurisdiction, or affected local jurisdiction pursuant to the provisions of the Public-Private Transportation Act of 2010 to the extent that such records contain (i) trade secrets of the private entity as defined in subsection (d) of Section 2 of the Illinois Trade Secrets Act, (ii) financial records of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (iii) other information submitted by the private entity, where, if the records were made public prior to the execution of an interim agreement or a comprehensive agreement, the financial interest or bargaining position of the public or private entity would be adversely affected. In order for the records specified in clauses (i), (ii) and (iii) to be excluded from the provisions of this chapter, the private entity must make a written request to the responsible public entity:

(A) Invoking such exclusion upon submission of the data or other materials for which protection from disclosure is sought;

(B) Identifying with specificity the data or other materials for which protection is sought; and

(C) Stating the reasons why protection is necessary.

(3) The responsible public entity in subdivision (1)(tt)(2) must determine whether the requested exclusion from disclosure is necessary to protect the trade secrets or financial records of the private entity. To protect other records submitted by the private entity from disclosure, the responsible public entity must determine whether public disclosure prior to the execution of an interim agreement or a comprehensive agreement would adversely affect the financial interest or bargaining position of the public or private entity. The responsible public entity must make a written determination of the nature and scope of the protection to be afforded by the responsible public entity under paragraph (tt). Once a written determination is made by the responsible public entity, the records afforded protection under paragraph (tt) must continue to be protected from disclosure when in the possession of any affected jurisdiction or affected local jurisdiction.

(4) Except as specifically provided in subdivision (1)(tt)(1), nothing in subdivision (1)(tt) shall be construed to authorize the withholding of (i) procurement records as required by Section 105 of the Public-Private Transportation Act of 2010, (ii) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the responsible public entity and the private entity, (iii) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds, or (iv) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project.

(5) For the purposes of subdivision (1)(tt), the terms "affected jurisdiction," "affected local jurisdiction," "comprehensive agreement," "interim agreement," "qualifying project," "qualifying transportation facility," "responsible public entity," and "private entity" mean the same as those terms are defined in the Public-Private Transportation Act of 2010.

(2) A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.

(3) This Section does not authorize withholding of information or limit the availability of records to the public, except as stated in this Section or otherwise provided in this Act.

(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07; 95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10; 96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10; revised 9-25-09.)

(Text of Section after amendment by P.A. 96-736)

Sec. 7. Exemptions.

(1) When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. Subject to this requirement, the following shall be exempt from inspection and copying:

(a) Information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.

(b) Private information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.

(b-5) Files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.

(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. "Unwarranted invasion of personal privacy" means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.

(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request;

(ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request;

(iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing;

(iv) unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies; except that the identities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be provided by agencies of local government, except when disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient of the request;

(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request;

(vi) endanger the life or physical safety of law enforcement personnel or any other person; or

(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.

(e) Records that relate to or affect the security of correctional institutions and detention facilities.

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.

The information included under this exemption includes all (i) All trade secrets and commercial or financial information obtained by a public body, including a public pension fund, from a private equity fund or a privately held company within the investment portfolio of a private equity fund as a result of either investing or evaluating a potential investment of public funds in a private equity fund. The exemption contained in this item does not apply to the aggregate financial performance information of a private equity fund, nor to the identity of the fund's managers or general partners. The exemption contained in this item does not apply to the identity of a privately held company within the investment portfolio of a private equity fund, unless the disclosure of the identity of a privately held company may cause competitive harm.

Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.

(h) Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.

(i) Valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. The exemption for "computer geographic systems" provided in this paragraph (i) does not extend to requests made by news media as defined in Section 2 of this Act when the requested information is not otherwise exempt and the only purpose of the request is to access and disseminate information regarding the health, safety, welfare, or legal rights of the general public.

(j) The following information pertaining to educational matters:

(i) test questions, scoring keys and other examination data used to administer an academic examination;

(ii) information received by a primary or secondary school, college, or university under its procedures for the evaluation of faculty members by their academic peers;

(iii) information concerning a school or university's adjudication of student disciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of the student; and

(iv) course materials or research materials used by faculty members.

(k) Architects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds and the same for projects constructed or developed with public funds, including but not limited to power generating and distribution stations and other transmission and distribution facilities, water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings, but only to the extent that disclosure would compromise security.

(l) Minutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act.

(m) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

(n) Records relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.

(o) Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

(p) Records relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.

(q) Test questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment.

(r) The records, documents, and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding under the Eminent Domain Act, records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale shall be exempt until a sale is consummated.

(s) Any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool. Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.

(t) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of a public body responsible for the regulation or supervision of financial institutions or insurance companies, unless disclosure is otherwise required by State law.

(u) Information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs, or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act.

(v) Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations.

(w) (Blank).

(x) Maps and other records regarding the location or security of generation, transmission, distribution, storage, gathering, treatment, or switching facilities owned by a utility, by a power generator, or by the Illinois Power Agency.

(y) Information contained in or related to proposals, bids, or negotiations related to electric power procurement under Section 1-75 of the Illinois Power Agency Act and Section 16-111.5 of the Public Utilities Act that is determined to be confidential and proprietary by the Illinois Power Agency or by the Illinois Commerce Commission.

(z) (tt) Information about students exempted from disclosure under Sections 10-20.38 or 34-18.29 of the School Code, and information about undergraduate students enrolled at an institution of higher education exempted from disclosure under Section 25 of the Illinois Credit Card Marketing Act of 2009.

(aa) (tt) Information the disclosure of which is exempted under the Viatical Settlements Act of 2009.

(bb) Certain information related to the Public-Private Transportation Act of 2010, including:

(1) Memoranda, staff evaluations, or other records prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the Public-Private Transportation Act of 2010 where (i) if such records were made public prior to or after the execution of an interim or a comprehensive agreement, Section 105 of the Public-Private Transportation Act of 2010 notwithstanding, the financial interest or bargaining position of the public entity would be adversely affected, and (ii) the basis for the determination required in clause (i) is documented in writing by the responsible public entity.

(2) Records provided by a private entity to a responsible public entity, affected jurisdiction, or affected local jurisdiction pursuant to the provisions of the Public-Private Transportation Act of 2010 to the extent that such records contain (i) trade secrets of the private entity as defined in subsection (d) of Section 2 of the Illinois Trade Secrets Act, (ii) financial records of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (iii) other information submitted by the private entity, where, if the records were made public prior to the execution of an interim agreement or a comprehensive agreement, the financial interest or bargaining position of the public or private entity would be adversely affected. In order for the records specified in clauses (i), (ii) and (iii) to be excluded from the provisions of this chapter, the private entity must make a written request to the responsible public entity:

(A) Invoking such exclusion upon submission of the data or other materials for which protection from disclosure is sought;

(B) Identifying with specificity the data or other materials for which protection is sought; and

(C) Stating the reasons why protection is necessary.

(3) The responsible public entity in subdivision (1)(tt)(2) must determine whether the requested exclusion from disclosure is necessary to protect the trade secrets or financial records of the private entity. To protect other records submitted by the private entity from disclosure, the responsible public entity must determine whether public disclosure prior to the execution of an interim agreement or a comprehensive agreement would adversely affect the financial interest or bargaining position of the public or private entity. The responsible public entity must make a written determination of the nature and scope of the protection to be afforded by the responsible public entity under paragraph (tt). Once a written determination is made by the responsible public entity, the records afforded protection under paragraph (tt) must continue to be protected from disclosure when in the possession of any affected jurisdiction or affected local jurisdiction.

(4) Except as specifically provided in subdivision (1)(tt)(1), nothing in subdivision (1)(tt) shall be construed to authorize the withholding of (i) procurement records as required by Section 105 of the Public-Private Transportation Act of 2010, (ii) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the responsible public entity and the private entity, (iii) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds, or (iv) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project.

(5) For the purposes of subdivision (1)(tt), the terms "affected jurisdiction," "affected local jurisdiction," "comprehensive agreement," "interim agreement," "qualifying project," "qualifying transportation facility," "responsible public entity," and "private entity" mean the same as those terms are defined in the Public-Private Transportation Act of 2010.

(2) A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.

(3) This Section does not authorize withholding of information or limit the availability of records to the public, except as stated in this Section or otherwise provided in this Act.

(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07; 95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10; 96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10; 96-736, eff. 7-1-10; revised 9-25-09.)

Section 950. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.

Section 999. Effective date. This Act takes effect upon becoming law.