Bill Amendment: IL HB5557 | 2023-2024 | 103rd General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: PUBLIC ACCESS COUNSELOR DUTIES

Status: 2024-04-05 - House Committee Amendment No. 1 Rule 19(c) / Re-referred to Rules Committee [HB5557 Detail]

Download: Illinois-2023-HB5557-House_Amendment_001.html

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Rep. Tracy Katz Muhl

Filed: 4/1/2024

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AMENDMENT TO HOUSE BILL 5557
AMENDMENT NO. ______. Amend House Bill 5557 by replacing
everything after the enacting clause with the following:
"Section 5. The Open Meetings Act is amended by changing
Section 3.5 as follows:
(5 ILCS 120/3.5)
Sec. 3.5. Public Access Counselor; opinions.
(a) A person who believes that a violation of this Act by a
public body has occurred may file a request for review with the
Public Access Counselor established in the Office of the
Attorney General not later than 60 days after the alleged
violation. If facts concerning the violation are not
discovered within the 60-day period, but are discovered at a
later date, not exceeding 2 years after the alleged violation,
by a person utilizing reasonable diligence, the request for
review may be made within 60 days of the discovery of the

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alleged violation. The request for review must be in writing,
must be signed by the requester, and must include a summary of
the facts supporting the allegation. The changes made by this
amendatory Act of the 99th General Assembly apply to
violations alleged to have occurred at meetings held on or
after the effective date of this amendatory Act of the 99th
General Assembly.
(b) Upon receipt of a request for review, the Public
Access Counselor shall determine whether further action is
warranted. If the Public Access Counselor determines from the
request for review that the alleged violation is unfounded, he
or she shall so advise the requester and the public body of the
refusal. The Public Access Counselor shall draft language, to
be included in the notice to the requester, regarding the
requester's right to amend and refile the request with
additional relevant information before the deadline set forth
in paragraph (a), if the deadline has not yet passed, and shall
state in the notice that and no further action shall be taken
unless the request is timely amended and refiled undertaken.
In all other cases, the Public Access Counselor shall forward
a copy of the request for review to the public body within 7
working days. The Public Access Counselor shall specify the
records or other documents that the public body shall furnish
to facilitate the review. Within 7 working days after receipt
of the request for review, the public body shall provide
copies of the records requested and shall otherwise fully

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cooperate with the Public Access Counselor. If a public body
fails to furnish specified records pursuant to this Section,
or if otherwise necessary, the Attorney General may issue a
subpoena to any person or public body having knowledge of or
records pertaining to an alleged violation of this Act. For
purposes of conducting a thorough review, the Public Access
Counselor has the same right to examine a verbatim recording
of a meeting closed to the public or the minutes of a closed
meeting as does a court in a civil action brought to enforce
this Act.
(c) Within 7 working days after it receives a copy of a
request for review and request for production of records from
the Public Access Counselor, the public body may, but is not
required to, answer the allegations of the request for review.
The answer may take the form of a letter, brief, or memorandum.
Upon request, the public body may also furnish the Public
Access Counselor with a redacted copy of the answer excluding
specific references to any matters at issue. The Public Access
Counselor shall forward a copy of the answer or redacted
answer, if furnished, to the person submitting the request for
review. The requester may, but is not required to, respond in
writing to the answer within 7 working days and shall provide a
copy of the response to the public body.
(d) In addition to the request for review, and the answer
and the response thereto, if any, a requester or a public body
may furnish affidavits and records concerning any matter

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germane to the review.
(e) In responding to any written request under this
Section, the Public Access Counselor may exercise the Public
Access Counselor's discretion and choose to resolve a request
for review by: (1) issuing a binding opinion; (2) issuing a
nonbinding opinion; or (3) mediation or another means other
than the issuance of a binding opinion. The decision not to
issue a binding opinion shall not be reviewable. A binding
Unless the Public Access Counselor extends the time by no more
than 21 business days by sending written notice to the
requester and public body that includes a statement of the
reasons for the extension in the notice, or decides to address
the matter without the issuance of a binding opinion, the
Attorney General shall examine the issues and the records,
shall make findings of fact and conclusions of law, and shall
issue to the requester and the public body an opinion within 60
days after initiating review. The opinion shall be binding
upon both the requester and the public body, subject to
administrative review under Section 7.5 of this Act.
In the case of binding opinions, the Public Access
Counselor shall examine the issues and the records, shall make
findings of fact and conclusions of law, and shall issue to the
requester and the public body an opinion within 60 days after
initiating review. The Public Access Counselor may extend the
issuance of a binding opinion by sending written notice to the
requester and public body that includes: (1) a statement of

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the reasons for the extension in the notice by a specified
period of days not to exceed 21 business days or (2) a
certification if a case is of particular public interest
warranting an indefinite extension.
In responding to any written request under this Section
3.5, the Attorney General may exercise his or her discretion
and choose to resolve a request for review by mediation or by a
means other than the issuance of a binding opinion. The
decision not to issue a binding opinion shall not be
reviewable.
Upon receipt of a binding opinion concluding that a
violation of this Act has occurred, the public body shall
either take necessary action as soon as practical to comply
with the directive of the opinion or shall initiate
administrative review under Section 7.5. If the opinion
concludes that no violation of the Act has occurred, the
requester may initiate administrative review under Section
7.5.
(f) If the requester files suit under Section 3 with
respect to the same alleged violation that is the subject of a
pending request for review, the requester shall notify the
Public Access Counselor, and the Public Access Counselor shall
take no further action with respect to the request for review
and shall so notify the public body.
(g) Records that are obtained by the Public Access
Counselor from a public body for purposes of addressing a

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request for review under this Section 3.5 may not be disclosed
to the public, including the requester, by the Public Access
Counselor. Those records, while in the possession of the
Public Access Counselor, shall be exempt from disclosure by
the Public Access Counselor under the Freedom of Information
Act.
(h) The Attorney General may also issue advisory opinions
to public bodies regarding compliance with this Act. A review
may be initiated upon receipt of a written request from the
head of the public body or its attorney. The request must
contain sufficient accurate facts from which a determination
can be made. The Public Access Counselor may request
additional information from the public body in order to
facilitate the review. A public body that relies in good faith
on an advisory opinion of the Attorney General in complying
with the requirements of this Act is not liable for penalties
under this Act, so long as the facts upon which the opinion is
based have been fully and fairly disclosed to the Public
Access Counselor.
(i) The Public Access Counselor may initiate an internal
investigation, gather data, and report on a public body for
frequent violations of this Act or for frequent violations of
court orders for failure to comply with this Act.
If the Public Access Counselor finds that a public body
has frequently violated this Act or has frequently violated
court orders for failure to comply with this Act, the Public

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Access Counselor may impose a civil penalty of $1,000 for the
first finding of a violation of this Act after investigation
under this Section and $2,000 for the second and each
subsequent finding of a violation. A civil penalty may only be
imposed after a hearing with notice to the public body and an
opportunity for the public body's representative to be heard.
The Attorney General may enforce a penalty imposed by filing
an action in circuit court.
The Attorney General shall adopt rules to implement this
subsection, including the procedures of the investigation and
hearings and defining "frequent violation".
(Source: P.A. 99-402, eff. 8-19-15.)
Section 10. The Freedom of Information Act is amended by
changing Sections 3 and 9.5 as follows:
(5 ILCS 140/3) (from Ch. 116, par. 203)
Sec. 3. (a) Each public body shall make available to any
person for inspection or copying all public records, except as
otherwise provided in Sections 7 and 8.5 of this Act.
Notwithstanding any other law, a public body may not grant to
any person or entity, whether by contract, license, or
otherwise, the exclusive right to access and disseminate any
public record as defined in this Act.
(b) Subject to the fee provisions of Section 6 of this Act,
each public body shall promptly provide, to any person who

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submits a request, a copy of any public record required to be
disclosed by subsection (a) of this Section and shall certify
such copy if so requested.
(c) Requests for inspection or copies shall be made in
writing and directed to the public body. Written requests may
be submitted to a public body via personal delivery, mail,
telefax, or other means available to the public body. A public
body may honor oral requests for inspection or copying. A
public body may not require that a request be submitted on a
standard form or require the requester to specify the purpose
for a request, except to determine whether the records are
requested for a commercial purpose or whether to grant a
request for a fee waiver. All requests for inspection and
copying received by a public body shall immediately be
forwarded to its Freedom of Information officer or designee.
(d) Each public body shall, promptly, either comply with
or deny a request for public records within 5 business days
after its receipt of the request, unless the time for response
is properly extended under subsection (e) of this Section.
Denial shall be in writing as provided in Section 9 of this
Act. Failure to comply with a written request, extend the time
for response, or deny a request within 5 business days after
its receipt shall be considered a denial of the request. A
public body that fails to respond to a request within the
requisite periods in this Section but thereafter provides the
requester with copies of the requested public records may not

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impose a fee for such copies. A public body that fails to
respond to a request received may not treat the request as
unduly burdensome under subsection (g).
(e) The time for response under this Section may be
extended by the public body for not more than 5 business days
from the original due date for any of the following reasons:
(i) the requested records are stored in whole or in
part at other locations than the office having charge of
the requested records;
(ii) the request requires the collection of a
substantial number of specified records;
(iii) the request is couched in categorical terms and
requires an extensive search for the records responsive to
it;
(iv) the requested records have not been located in
the course of routine search and additional efforts are
being made to locate them;
(v) the requested records require examination and
evaluation by personnel having the necessary competence
and discretion to determine if they are exempt from
disclosure under Section 7 of this Act or should be
revealed only with appropriate deletions;
(vi) the request for records cannot be complied with
by the public body within the time limits prescribed by
subsection (d) of this Section without unduly burdening or
interfering with the operations of the public body;

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(vii) there is a need for consultation, which shall be
conducted with all practicable speed, with another public
body or among 2 or more components of a public body having
a substantial interest in the determination or in the
subject matter of the request.
The person making a request and the public body may agree
in writing to extend the time for compliance for a period to be
determined by the parties. If the requester and the public
body agree to extend the period for compliance, a failure by
the public body to comply with any previous deadlines shall
not be treated as a denial of the request for the records.
(f) When additional time is required for any of the above
reasons, the public body shall, within 5 business days after
receipt of the request, notify the person making the request
of the reasons for the extension and the date by which the
response will be forthcoming. Failure to respond within the
time permitted for extension shall be considered a denial of
the request. A public body that fails to respond to a request
within the time permitted for extension but thereafter
provides the requester with copies of the requested public
records may not impose a fee for those copies. A public body
that requests an extension and subsequently fails to respond
to the request may not treat the request as unduly burdensome
under subsection (g).
(g) Requests calling for all records falling within a
category shall be complied with unless compliance with the

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request would be unduly burdensome for the complying public
body and there is no way to narrow the request and the burden
on the public body outweighs the public interest in the
information. Before invoking this exemption, the public body
shall extend to the person making the request an opportunity
to confer with it in an attempt to reduce the request to
manageable proportions. The public body's response to the
request shall provide specific suggestions that are likely to
narrow the request, such as providing an alternative time
period or limiting the authors or recipients of records. If
any public body responds to a categorical request by stating
that compliance would unduly burden its operation and the
conditions described above are met, it shall do so in writing,
specifying the reasons why it would be unduly burdensome,
including, but not limited to, stating the manner in which the
public body searched for records or explaining why it would
not be feasible to conduct a search, the approximate number of
records located or estimated to exist, the approximate time to
review each record, including the basis for that time
estimate, and the extent to which compliance will so burden
the operations of the public body. Such a response shall be
treated as a denial of the request for information.
Repeated requests from the same person for the same
records that are unchanged or identical to records previously
provided or properly denied under this Act shall be deemed
unduly burdensome under this provision.

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(h) Each public body may promulgate rules and regulations
in conformity with the provisions of this Section pertaining
to the availability of records and procedures to be followed,
including:
(i) the times and places where such records will be
made available, and
(ii) the persons from whom such records may be
obtained.
(i) The time periods for compliance or denial of a request
to inspect or copy records set out in this Section shall not
apply to requests for records made for a commercial purpose,
requests by a recurrent requester, or voluminous requests.
Such requests shall be subject to the provisions of Sections
3.1, 3.2, and 3.6 of this Act, as applicable.
(Source: P.A. 101-81, eff. 7-12-19.)
(5 ILCS 140/9.5)
Sec. 9.5. Public Access Counselor; opinions.
(a) A person whose request to inspect or copy a public
record is denied by a public body, except the General Assembly
and committees, commissions, and agencies thereof, may file a
request for review with the Public Access Counselor
established in the Office of the Attorney General not later
than 60 days after the date of the final denial. The request
for review must be in writing, signed by the requester, and
include (i) a copy of the request for access to records and

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(ii) any responses from the public body.
(b) A person whose request to inspect or copy a public
record is made for a commercial purpose as defined in
subsection (c-10) of Section 2 of this Act may not file a
request for review with the Public Access Counselor. A person
whose request to inspect or copy a public record was treated by
the public body as a request for a commercial purpose under
Section 3.1 of this Act may file a request for review with the
Public Access Counselor for the limited purpose of reviewing
whether the public body properly determined that the request
was made for a commercial purpose.
(b-5) A person whose request to inspect or copy a public
record was treated by a public body, except the General
Assembly and committees, commissions, and agencies thereof, as
a voluminous request under Section 3.6 of this Act may file a
request for review with the Public Access Counselor for the
purpose of reviewing whether the public body properly
determined that the request was a voluminous request.
(c) Upon receipt of a request for review, the Public
Access Counselor shall determine whether further action is
warranted. If the Public Access Counselor determines from the
request for review that the alleged violation is unfounded, he
or she shall so advise the requester and the public body of the
refusal. The Public Access Counselor shall draft language, to
be included in the notice to the requester, regarding the
requester's right to amend and refile the request with

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additional relevant information before the deadline set forth
in paragraph (a), if the deadline has not yet passed, and shall
state in the notice that and no further action shall be taken
unless the request is timely amended and refiled undertaken.
In all other cases, the Public Access Counselor shall forward
a copy of the request for review to the public body within 7
business days after receipt and shall specify the records or
other documents that the public body shall furnish to
facilitate the review. Within 7 business days after receipt of
the request for review, the public body shall provide copies
of records requested and shall otherwise fully cooperate with
the Public Access Counselor. If a public body fails to furnish
specified records pursuant to this Section, or if otherwise
necessary, the Attorney General may issue a subpoena to any
person or public body having knowledge of or records
pertaining to a request for review of a denial of access to
records under the Act. Records or documents obtained by the
Public Access Counselor from a public body for the purpose of
addressing a request for review under this Section may not be
disclosed to the public, including the requester, by the
Public Access Counselor. These records, while in the
possession of the Public Access Counselor, are exempt under
this Act from disclosure by the Public Access Counselor.
(d) Within 7 business days after it receives a copy of a
request for review and request for production of records from
the Public Access Counselor, the public body may, but is not

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required to, answer the allegations of the request for review.
The answer may take the form of a letter, brief, or memorandum.
The Public Access Counselor shall forward a copy of the answer
to the person submitting the request for review, with any
alleged confidential information to which the request pertains
redacted from the copy. The requester may, but is not required
to, respond in writing to the answer within 7 business days and
shall provide a copy of the response to the public body.
(e) In addition to the request for review, and the answer
and the response thereto, if any, a requester or a public body
may furnish affidavits or records concerning any matter
germane to the review.
(f) In responding to any written request under this
Section, the Public Access Counselor may exercise the Public
Access Counselor's discretion and choose to resolve a request
for review by: (1) issuing a binding opinion; (2) issuing a
nonbinding opinion; or (3) mediation or another means other
than the issuance of a binding opinion. The decision not to
issue a binding opinion shall not be reviewable. A binding
opinion shall be binding upon both the requester and the
public body, subject to administrative review under Section
11.5.
In the case of binding opinions, the Public Access
Counselor shall examine the issues and the records, shall make
findings of fact and conclusions of law, and shall issue to the
requester and the public body an opinion within 60 days after

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initiating review. The Public Access Counselor may extend the
issuance of a binding opinion by sending written notice to the
requester and public body that includes: (1) a statement of
the reasons for the extension in the notice by a specified
period of days not to exceed 30 business days or (2) a
certification if a case is of particular public interest
warranting an indefinite extension.
Unless the Public Access Counselor extends the time by
no more than 30 business days by sending written notice to the
requester and the public body that includes a statement of the
reasons for the extension in the notice, or decides to address
the matter without the issuance of a binding opinion, the
Attorney General shall examine the issues and the records,
shall make findings of fact and conclusions of law, and shall
issue to the requester and the public body an opinion in
response to the request for review within 60 days after its
receipt. The opinion shall be binding upon both the requester
and the public body, subject to administrative review under
Section 11.5.
In responding to any request under this Section 9.5, the
Attorney General may exercise his or her discretion and choose
to resolve a request for review by mediation or by a means
other than the issuance of a binding opinion. The decision not
to issue a binding opinion shall not be reviewable.
Upon receipt of a binding opinion concluding that a
violation of this Act has occurred, the public body shall

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either take necessary action immediately to comply with the
directive of the opinion or shall initiate administrative
review under Section 11.5. If the opinion concludes that no
violation of the Act has occurred, the requester may initiate
administrative review under Section 11.5.
A public body that discloses records in accordance with an
opinion of the Attorney General is immune from all liabilities
by reason thereof and shall not be liable for penalties under
this Act.
(g) If the requester files suit under Section 11 with
respect to the same denial that is the subject of a pending
request for review, the requester shall notify the Public
Access Counselor, and the Public Access Counselor shall take
no further action with respect to the request for review and
shall so notify the public body.
(h) The Attorney General may also issue advisory opinions
to public bodies regarding compliance with this Act. A review
may be initiated upon receipt of a written request from the
head of the public body or its attorney, which shall contain
sufficient accurate facts from which a determination can be
made. The Public Access Counselor may request additional
information from the public body in order to assist in the
review. A public body that relies in good faith on an advisory
opinion of the Attorney General in responding to a request is
not liable for penalties under this Act, so long as the facts
upon which the opinion is based have been fully and fairly

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