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| [ Introduced ] | [ House Amendment 001 ] |
91_HB3469eng HB3469 Engrossed LRB9111302JMmbA 1 AN ACT to amend the Freedom of Information Act. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Freedom of Information Act is amended by 5 changing Sections 9 and 11 and adding Sections 10.5 and 15 as 6 follows: 7 (5 ILCS 140/9) (from Ch. 116, par. 209) 8 Sec. 9. (a) Each public body or head of a public body 9 denying a request for public records shall notify by letter 10 the person making the request of the decision to deny such, 11 the reasons for the denial, and the names and titles or 12 positions of each person responsible for the denial. Each 13 notice of denial by a public body shall also inform such 14 person of his right to appeal to the head of the public body. 15 Each notice of denial of an appeal by the head of a public 16 body shall inform such person of his right to judicial 17 review under Section 11 and right to request review by the 18 Attorney General under Section 10.5of this Act. 19 (b) When a request for public records is denied on the 20 grounds that the records are exempt under Section 7 of this 21 Act, the notice of denial shall specify the exemption claimed 22 to authorize the denial. Copies of all notices of denial 23 shall be retained by each public body in a single central 24 office file that is open to the public and indexed according 25 to the type of exemption asserted and, to the extent 26 feasible, according to the types of records requested. 27 (Source: P.A. 83-1013.) 28 (5 ILCS 140/10.5 new) 29 Sec. 10.5. Request for review of denial. 30 (a) A person denied access to inspect or copy a public HB3469 Engrossed -2- LRB9111302JMmbA 1 record by the head of a public body may, prior to filing an 2 action under Section 11, request a review of that denial by 3 the Attorney General. The request for review shall be in 4 writing, shall be signed by the requestor, and shall include 5 a copy of the request for access to records, the appeal, and 6 any responses from the public body. 7 (b) Within 3 business days after receipt of a proper 8 request for review, the Attorney General shall notify the 9 public body of his or her receipt of the request and shall 10 offer the public body an opportunity to consult upon and 11 informally mediate or otherwise resolve the question of the 12 propriety of its denial. If the public body is or is part of 13 a unit of local government or school district, the Attorney 14 General shall, at the same time, also notify the State's 15 Attorney of the county in which the public body's principal 16 office is located. 17 (c) The Attorney General shall have the powers necessary 18 to investigate the circumstances and propriety of the denial, 19 including, but not limited to, the power to: 20 (1) issue administrative subpoenas to compel the 21 production of documents or the presence of witnesses; 22 (2) inspect records on the premises of the public 23 body or where they are stored and inspect so much of the 24 public body's record keeping system as may be necessary 25 to determine the application of any exemption that may be 26 asserted by the public body; 27 (3) require affidavits or sworn responses to 28 interrogatories; 29 (4) examine under oath any person, including the 30 person seeking access to the records, or any officer, 31 member, employee, or other agent of a public body in 32 connection with any question that may have, or may lead 33 to the discovery of other information that may have, a 34 bearing on the public body's duty to disclose; and HB3469 Engrossed -3- LRB9111302JMmbA 1 (5) bring an action in the circuit court to compel 2 compliance with an investigation under this Section. 3 (d) The Attorney General, who may accept written or oral 4 legal argument on the issues presented, shall determine 5 whether the denial was lawful under this Act and shall notify 6 the requestor, the public body, and the appropriate State's 7 Attorney of his or her opinion. 8 (e) If the requestor files suit under Section 11 with 9 respect to the same denial that is the subject of a pending 10 request for review, the requestor shall notify the Attorney 11 General, and the pending review shall terminate without 12 issuance of an opinion. 13 (f) The Attorney General shall have the power to adopt 14 rules necessary to implement this Section. 15 (g) The Attorney General shall post his or her opinions 16 on the official World Wide Web home page of the Office of the 17 Attorney General and shall make them available for inspection 18 in his or her office. 19 (5 ILCS 140/11) (from Ch. 116, par. 211) 20 Sec. 11. (a) Any person denied access to inspect or 21 copy any public record by the head of a public body may file 22 suit for injunctive or declaratory relief regardless of 23 whether the person has filed a request for review under 24 Section 10.5. 25 (b) Where the denial is from the head of a public body 26 of the State, suit may be filed in the circuit court for the 27 county where the public body has its principal office or 28 where the person denied access resides. 29 (c) Where the denial is from the head of a municipality 30 or other public body, except as provided in subsection (b) of 31 this Section, suit may be filed in the circuit court for the 32 county where the public body is located. 33 (d) The circuit court shall have the jurisdiction to HB3469 Engrossed -4- LRB9111302JMmbA 1 enjoin the public body from withholding public records and to 2 order the production of any public records improperly 3 withheld from the person seeking access. If the public body 4 can show that exceptional circumstances exist, and that the 5 body is exercising due diligence in responding to the 6 request, the court may retain jurisdiction and allow the 7 agency additional time to complete its review of the records. 8 (e) On motion of the plaintiff, prior to or after in 9 camera inspection, the court shall order the public body to 10 provide an index of the records to which access has been 11 denied. The index shall include the following: 12 (i) A description of the nature or contents of each 13 document withheld, or each deletion from a released document, 14 provided, however, that the public body shall not be required 15 to disclose the information which it asserts is exempt; and 16 (ii) A statement of the exemption or exemptions claimed 17 for each such deletion or withheld document. 18 (f) In any action considered by the court, the court 19 shall consider the matter de novo, and shall conduct such in 20 camera examination of the requested records as it finds 21 appropriate to determine if such records or any part thereof 22 may be withheld under any provision of this Act. The burden 23 shall be on the public body to establish that its refusal to 24 permit public inspection or copying is in accordance with the 25 provisions of this Act. 26 (g) In the event of noncompliance with an order of the 27 court to disclose, the court may enforce its order against 28 any public official or employee so ordered or primarily 29 responsible for such noncompliance through the court's 30 contempt powers. 31 (h) Except as to causes the court considers to be of 32 greater importance, proceedings arising under this Section 33 shall take precedence on the docket over all other causes and 34 be assigned for hearing and trial at the earliest practicable HB3469 Engrossed -5- LRB9111302JMmbA 1 date and expedited in every way. 2(i) If a person seeking the right to inspect or receive3a copy of a public record substantially prevails in a4proceeding under this Section, the court may award such5person reasonable attorneys' fees if the court finds that the6record or records in question were of clearly significant7interest to the general public and that the public body8lacked any reasonable basis in law for withholding the9record.10 (Source: P.A. 85-1357.) 11 (5 ILCS 140/15 new) 12 Sec. 15. Litigation costs and punitive damages. 13 (a) The court may assess against any party reasonable 14 attorney's fees and other litigation costs reasonably 15 incurred by any other party who substantially prevails in any 16 action brought in accordance with Section 11, provided that 17 litigation costs may be assessed against any private party or 18 parties bringing the action only: 19 (1) if the Attorney General had opined in 20 accordance with Section 10.5 that the records were not 21 subject to disclosure; or 22 (2) upon the court's determination that the action 23 is malicious or frivolous in nature. An action brought 24 consistent with an Attorney General opinion under Section 25 10.5 shall not be considered to be malicious or frivolous 26 in nature. 27 (b) If the requestor substantially prevails in a suit 28 seeking records that the Attorney General opined were subject 29 to disclosure in accordance with Section 10.5, the court 30 shall award to the requestor, in addition to any award of 31 costs under subsection (a), punitive damages of up to $50 per 32 day for each day of delay in producing the records from the 33 date that the Attorney General's opinion was received by the HB3469 Engrossed -6- LRB9111302JMmbA 1 public body.