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| [ Engrossed ] | [ House Amendment 001 ] |
91_HB3469
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1 AN ACT to amend the Freedom of Information Act by
2 changing Sections 9 and 11 and adding Sections 15 and 20.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Freedom of Information Act is amended by
6 changing Sections 9 and 11 and adding Sections 15 and 20 as
7 follows:
8 (5 ILCS 140/9) (from Ch. 116, par. 209)
9 Sec. 9. (a) Each public body or head of a public body
10 denying a request for public records shall notify by letter
11 the person making the request of the decision to deny such,
12 the reasons for the denial, and the names and titles or
13 positions of each person responsible for the denial. Each
14 notice of denial by a public body shall also inform such
15 person of his right to appeal to the head of the public body.
16 Each notice of denial of an appeal by the head of a public
17 body shall inform such person of his right to judicial
18 review under Section 11 and his right to request review by
19 the Attorney General or State's Attorney under Section 15 of
20 this Act.
21 (b) When a request for public records is denied on the
22 grounds that the records are exempt under Section 7 of this
23 Act, the notice of denial shall specify the exemption claimed
24 to authorize the denial. Copies of all notices of denial
25 shall be retained by each public body in a single central
26 office file that is open to the public and indexed according
27 to the type of exemption asserted and, to the extent
28 feasible, according to the types of records requested.
29 (Source: P.A. 83-1013.)
30 (5 ILCS 140/11) (from Ch. 116, par. 211)
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1 Sec. 11. (a) Any person denied access to inspect or
2 copy any public record by the head of a public body may file
3 suit for injunctive or declaratory relief regardless of
4 whether the person has filed a request for review under
5 Section 15.
6 (b) Where the denial is from the head of a public body
7 of the State, suit may be filed in the circuit court for the
8 county where the public body has its principal office or
9 where the person denied access resides.
10 (c) Where the denial is from the head of a municipality
11 or other public body, except as provided in subsection (b) of
12 this Section, suit may be filed in the circuit court for the
13 county where the public body is located.
14 (d) The circuit court shall have the jurisdiction to
15 enjoin the public body from withholding public records and to
16 order the production of any public records improperly
17 withheld from the person seeking access. If the public body
18 can show that exceptional circumstances exist, and that the
19 body is exercising due diligence in responding to the
20 request, the court may retain jurisdiction and allow the
21 agency additional time to complete its review of the records.
22 (e) On motion of the plaintiff, prior to or after in
23 camera inspection, the court shall order the public body to
24 provide an index of the records to which access has been
25 denied. The index shall include the following:
26 (i) A description of the nature or contents of each
27 document withheld, or each deletion from a released document,
28 provided, however, that the public body shall not be required
29 to disclose the information which it asserts is exempt; and
30 (ii) A statement of the exemption or exemptions claimed
31 for each such deletion or withheld document.
32 (f) In any action considered by the court, the court
33 shall consider the matter de novo, and shall conduct such in
34 camera examination of the requested records as it finds
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1 appropriate to determine if such records or any part thereof
2 may be withheld under any provision of this Act. The burden
3 shall be on the public body to establish that its refusal to
4 permit public inspection or copying is in accordance with the
5 provisions of this Act.
6 (g) In the event of noncompliance with an order of the
7 court to disclose, the court may enforce its order against
8 any public official or employee so ordered or primarily
9 responsible for such noncompliance through the court's
10 contempt powers.
11 (h) Except as to causes the court considers to be of
12 greater importance, proceedings arising under this Section
13 shall take precedence on the docket over all other causes and
14 be assigned for hearing and trial at the earliest practicable
15 date and expedited in every way.
16 (i) If a person seeking the right to inspect or receive
17 a copy of a public record substantially prevails in a
18 proceeding under this Section, the court may award such
19 person costs and reasonable attorneys' fees if the court
20 finds that the record or records in question were of clearly
21 significant interest to the general public and that the
22 public body lacked any reasonable basis in law for
23 withholding the record.
24 (Source: P.A. 85-1357.)
25 (5 ILCS 140/15 new)
26 Sec. 15. Request for review of denial.
27 (a) A person denied access to inspect or copy a public
28 record by the head of a public body may, prior to filing an
29 action under Section 11, request a review of that denial by
30 either the Attorney General or the State's Attorney for the
31 county in which the public body's principal or responding
32 office is located. Although matters may be referred by one
33 officer to another for reasons outlined in the protocol
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1 developed under Section 20 or in other circumstances deemed
2 appropriate by the Attorney General or a State's Attorney, a
3 requestor may submit a request to review a given denial to no
4 more than one officer. The request for review shall be in
5 writing, shall be signed by the requestor, and shall include
6 a copy of the request for access to records, the appeal, and
7 any responses from the public body.
8 (b) Upon receipt of a proper request for review, the
9 Attorney General or State's Attorney shall notify the public
10 body of his or her receipt of the request and shall offer the
11 public body an opportunity to consult upon and informally
12 mediate or otherwise resolve the question of the propriety of
13 its denial.
14 (c) The Attorney General and the State's Attorney shall
15 have the powers necessary to investigate the circumstances
16 and propriety of the denial, including, but not limited to,
17 the power to:
18 (1) issue administrative subpoenas to compel the
19 production of documents or the presence of witnesses;
20 (2) inspect records on the premises of the public
21 body or where they are stored and inspect so much of the
22 public body's record keeping system as may be necessary
23 to determine the application of any exemption that may be
24 asserted by the public body;
25 (3) require affidavits or sworn responses to
26 interrogatories;
27 (4) examine under oath any person, including the
28 person seeking access to the records, or any officer,
29 member, employee, or other agent of a public body in
30 connection with any question that may have, or may lead
31 to the discovery of other information that may have, a
32 bearing on the public body's duty to disclose or on a
33 decision whether or how to proceed under subsections (d)
34 and (e); and
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1 (5) bring an action in the circuit court to compel
2 compliance with an investigation under this Section.
3 (d) The Attorney General or State's Attorney, who may
4 accept written or oral legal argument on the issues
5 presented, shall determine whether the denial was lawful
6 under this Act and shall notify the requestor and the public
7 body of his or her determination. If it is determined that
8 any or all of the public body's denial of access is unlawful,
9 the public body shall provide access to records determined by
10 the Attorney General or State's Attorney not to be exempt
11 from disclosure within 3 working days of its receipt of
12 notification of the determination or within whatever
13 additional period of time may be directed by the Attorney
14 General or State's Attorney.
15 (e) If the public body fails to comply with the
16 determination made by the Attorney General or State's
17 Attorney within the time period prescribed in subsection (d),
18 then the Attorney General or State's Attorney may file suit
19 for declaratory or injunctive relief in the circuit court if,
20 in the exercise of prosecutorial discretion, he or she
21 determines that such action is in the public interest. The
22 suit shall be governed by the provisions of subsections (a)
23 through (h) of Section 11 and be brought by the Attorney
24 General or State's Attorney in the name of the People of the
25 State of Illinois.
26 (f) Upon a determination that the Act has been violated,
27 the court may also impose a civil penalty against the public
28 body in an amount of up to $1,000 or, if it appears that the
29 head of the public body has knowingly and willfully persisted
30 in an unlawful denial of the request or has previously been
31 found to have violated this Act, up to $2,500. In making
32 these determinations the court may consider, among other
33 things, the good faith of the public body, the public body's
34 reliance on legal counsel, whether or not the public body had
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1 responded to the request in the manner provided in this Act,
2 the public body's cooperation with the investigation by the
3 Attorney General or State's Attorney, the public interest in
4 disclosure, and the repetitive nature of unlawful denials.
5 (g) If the People substantially prevail in the action,
6 then the court shall award to the Attorney General or State's
7 Attorney the costs of the action and the reasonable costs of
8 the investigation.
9 (h) If the requestor files suit under Section 11 with
10 respect to the same denial that is the subject of a pending
11 request for review, the requestor shall notify the Attorney
12 General or State's Attorney, and the pending review shall
13 terminate without a determination.
14 (5 ILCS 140/20 new)
15 Sec. 20. Protocol for review requests; Attorney General
16 determinations.
17 (a) The Attorney General shall assist State's Attorneys
18 in carrying out their responsibilities under Section 15.
19 (b) The Attorney General, in consultation and
20 cooperation with the Illinois State's Attorneys Association,
21 shall develop and implement a statewide protocol on the
22 handling of requests for review under Section 15. The
23 protocol, which shall not have the force and effect of law
24 and shall not be considered to be a rule for purposes of the
25 Illinois Administrative Procedure Act, shall be designed to
26 facilitate the rapid resolution of disputes and shall address
27 such matters as:
28 (1) the establishment of a form for the informal
29 review and mediation processes;
30 (2) the conduct of investigations;
31 (3) the exchange of information between the
32 Attorney General and State's Attorneys;
33 (4) the making and accepting of referrals of
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1 requests for review in conflict and other appropriate
2 situations; and
3 (5) the filing of lawsuits.
4 (c) The Attorney General shall publish in the Illinois
5 Register an annual index of his or her determinations and any
6 individual determinations that he or she believes may be of
7 significant interest to the public.