HB5904 99TH GENERAL ASSEMBLY

LRB099 18981 HEP 43370 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB5904

Introduced , by Rep. Will Guzzardi

SYNOPSIS AS INTRODUCED:

5 ILCS 140/11

from Ch. 116, par. 211

Amends the Freedom of Information Act. Provides that if a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under the Act (instead of the Section concerning the filing of an action in court), the court shall award the person reasonable attorney's fees and costs. Provides that, for the purpose of awarding attorney's fees and costs under the Act, a requester prevails if he or she obtains relief through (i) a voluntary or unilateral change in position by the public body after suit has been filed, unless the public body can demonstrate that its voluntary or unilateral change was not caused by the filing of litigation, (ii) an enforceable written agreement or consent decree, or (iii) a judicial order. Effective immediately.

A BILL FOR

AN ACT concerning government.

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

Section 5. The Freedom of Information Act is amended by changing Section 11 as follows:

(5 ILCS 140/11) (from Ch. 116, par. 211)

Sec. 11. (a) Any person denied access to inspect or copy any public record by a public body may file suit for injunctive or declaratory relief.

(b) Where the denial is from a public body of the State, suit may be filed in the circuit court for the county where the public body has its principal office or where the person denied access resides.

(c) Where the denial is from a municipality or other public body, except as provided in subsection (b) of this Section, suit may be filed in the circuit court for the county where the public body is located.

(d) The circuit court shall have the jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access. If the public body can show that exceptional circumstances exist, and that the body is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.

(e) On motion of the plaintiff, prior to or after in camera inspection, the court shall order the public body to provide an index of the records to which access has been denied. The index shall include the following:

(i) A description of the nature or contents of each document withheld, or each deletion from a released document, provided, however, that the public body shall not be required to disclose the information which it asserts is exempt; and

(ii) A statement of the exemption or exemptions claimed for each such deletion or withheld document.

(f) In any action considered by the court, the court shall consider the matter de novo, and shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of this Act. The burden shall be on the public body to establish that its refusal to permit public inspection or copying is in accordance with the provisions of this Act. Any public body that asserts that a record is exempt from disclosure has the burden of proving that it is exempt by clear and convincing evidence.

(g) In the event of noncompliance with an order of the court to disclose, the court may enforce its order against any public official or employee so ordered or primarily responsible for such noncompliance through the court's contempt powers.

(h) Except as to causes the court considers to be of greater importance, proceedings arising under this Section shall take precedence on the docket over all other causes and be assigned for hearing and trial at the earliest practicable date and expedited in every way.

(i) If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Act Section, the court shall award such person reasonable attorney's attorneys' fees and costs. In determining what amount of attorney's fees is reasonable, the court shall consider the degree to which the relief obtained relates to the relief sought. The changes contained in this subsection made by Public Act 96-542 apply to an action filed on or after January 1, 2010 (the effective date of Public Act 96-542) this amendatory Act of the 96th General Assembly.

For the purposes of this subsection, a requester prevails if he or she obtains relief through (i) a voluntary or unilateral change in position by the public body after suit has been filed, unless the public body can demonstrate that its voluntary or unilateral change was not caused by the filing of litigation under this Section, (ii) an enforceable written agreement or consent decree, or (iii) a judicial order.

(j) If the court determines that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence. In assessing the civil penalty, the court shall consider in aggravation or mitigation the budget of the public body and whether the public body has previously been assessed penalties for violations of this Act. The changes contained in this subsection apply to an action filed on or after January 1, 2010 (the effective date of Public Act 96-542) this amendatory Act of the 96th General Assembly.

(Source: P.A. 96-542, eff. 1-1-10; 97-813, eff. 7-13-12; revised 10-14-15.)

Section 99. Effective date. This Act takes effect upon becoming law.