Bill Text: IL SB1216 | 2019-2020 | 101st General Assembly | Introduced
Bill Title: Amends the Freedom of Information Act. Provides that a public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that release of the record would harm an interest protected by the asserted exemption. Removes the requirement that, before imposing specified civil penalties, the court find that a public body willfully and intentionally failed to comply with the Act or otherwise acted in bad faith. Provides that in assessing the civil penalty, the court shall consider in aggravation or mitigation, among other factors, whether the public body acted in bad faith and the extent to which the public body delayed the resolution of the request or lawsuit. Provides that, under specified circumstances, the court shall (rather than may) impose an additional penalty of up to $1,000 for each day the violation continues.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2021-01-13 - Session Sine Die [SB1216 Detail]
Download: Illinois-2019-SB1216-Introduced.html
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1 | AN ACT concerning government.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Freedom of Information Act is amended by | |||||||||||||||||||||
5 | changing Sections 1.2 and 11 as follows:
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6 | (5 ILCS 140/1.2) | |||||||||||||||||||||
7 | Sec. 1.2. Presumption. All records in the custody or | |||||||||||||||||||||
8 | possession of a public body are presumed to be open to | |||||||||||||||||||||
9 | inspection or copying. Any public body that asserts that a | |||||||||||||||||||||
10 | record is exempt from disclosure has the burden of proving by | |||||||||||||||||||||
11 | clear and convincing evidence that it is exempt and that | |||||||||||||||||||||
12 | release of the record would harm an interest protected by the | |||||||||||||||||||||
13 | asserted exemption .
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14 | (Source: P.A. 96-542, eff. 1-1-10.)
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15 | (5 ILCS 140/11) (from Ch. 116, par. 211)
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16 | Sec. 11.
(a) Any person denied access to inspect or copy | |||||||||||||||||||||
17 | any public
record by a public body
may file suit for injunctive | |||||||||||||||||||||
18 | or
declaratory relief.
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19 | (a-5) In accordance with Section 11.6 of this Act, a | |||||||||||||||||||||
20 | requester may file an action to enforce a binding opinion | |||||||||||||||||||||
21 | issued under Section 9.5 of this Act. | |||||||||||||||||||||
22 | (b) Where the denial is from a public body of the State, |
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1 | suit
may be filed in the circuit court for the county where the | ||||||
2 | public body has
its principal office or where the person denied | ||||||
3 | access resides.
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4 | (c) Where the denial is from a municipality or other public
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5 | body, except as provided in subsection (b) of this Section, | ||||||
6 | suit may be filed
in the circuit court for the county where the | ||||||
7 | public body is located.
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8 | (d) The circuit court shall have the jurisdiction to enjoin | ||||||
9 | the public
body from withholding public records and to order | ||||||
10 | the production of any
public records improperly withheld from | ||||||
11 | the person seeking access. If the
public body can show that | ||||||
12 | exceptional circumstances exist, and that the
body is | ||||||
13 | exercising due diligence in responding to the request, the | ||||||
14 | court
may retain jurisdiction and allow the agency additional | ||||||
15 | time to complete
its review of the records.
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16 | (e) On motion of the plaintiff, prior to or after in camera
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17 | inspection, the court shall order the public body
to provide an | ||||||
18 | index of the records to which access has been denied. The
index | ||||||
19 | shall include the following:
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20 | (i) A description of the nature or contents of each | ||||||
21 | document
withheld, or each deletion from a released | ||||||
22 | document, provided, however,
that the public body shall not | ||||||
23 | be required to disclose the information
which it asserts is | ||||||
24 | exempt; and
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25 | (ii) A statement of the exemption or exemptions claimed | ||||||
26 | for each such
deletion or withheld document.
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1 | (f) In any action considered by the court, the court shall | ||||||
2 | consider the
matter de novo, and shall conduct such in camera | ||||||
3 | examination of the requested
records as it finds appropriate to | ||||||
4 | determine if such records or any part
thereof may be withheld | ||||||
5 | under any provision of this Act. The burden shall
be on the | ||||||
6 | public body to establish that its refusal to permit public | ||||||
7 | inspection
or copying is in accordance with the provisions of | ||||||
8 | this Act. Any public body that asserts that a record is exempt | ||||||
9 | from disclosure has the burden of proving that it is exempt by | ||||||
10 | clear and convincing evidence.
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11 | (g) In the event of noncompliance with an order of the | ||||||
12 | court to disclose,
the court may enforce its order against any | ||||||
13 | public official or employee
so ordered or primarily responsible | ||||||
14 | for such noncompliance through the court's
contempt powers.
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15 | (h) Except as to causes the court considers to be of | ||||||
16 | greater importance,
proceedings arising under this Section | ||||||
17 | shall take precedence on the docket
over all other causes and | ||||||
18 | be assigned for hearing and trial at the earliest
practicable | ||||||
19 | date and expedited in every way.
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20 | (i) If a person seeking the right to inspect or receive a | ||||||
21 | copy of a public
record prevails in a
proceeding under this | ||||||
22 | Section, the court shall award such
person reasonable | ||||||
23 | attorney's fees and costs. In determining what amount of | ||||||
24 | attorney's fees is reasonable, the court shall consider the | ||||||
25 | degree to which the relief obtained relates to the relief | ||||||
26 | sought. The changes contained in this subsection apply to an |
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1 | action filed on or after January 1, 2010 (the effective date of | ||||||
2 | Public Act 96-542).
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3 | (j) If the court determines that a public body willfully | ||||||
4 | and intentionally failed to comply with this Act, or otherwise | ||||||
5 | acted in bad faith, the court shall also impose upon the public | ||||||
6 | body a civil penalty of not less than $2,500 nor more than | ||||||
7 | $5,000 for each occurrence. In assessing the civil penalty, the | ||||||
8 | court shall consider in aggravation or mitigation the budget of | ||||||
9 | the public body , and whether the public body has previously | ||||||
10 | been assessed penalties for violations of this Act , whether the | ||||||
11 | public body acted in bad faith, and the extent to which the | ||||||
12 | public body delayed the resolution of the request or lawsuit . | ||||||
13 | The court shall may impose an additional penalty of up to | ||||||
14 | $1,000 for each day the violation continues if: | ||||||
15 | (1) the public body fails to comply with the court's | ||||||
16 | order after 30 days; | ||||||
17 | (2) the court's order is not on appeal or stayed; and | ||||||
18 | (3) the court does not grant the public body additional | ||||||
19 | time to comply with the court's order to disclose public | ||||||
20 | records. | ||||||
21 | The changes contained in this subsection made by Public Act | ||||||
22 | 96-542 apply to an action filed on or after January 1, 2010 | ||||||
23 | (the effective date of Public Act 96-542). | ||||||
24 | (k) The changes to this Section made by this amendatory Act | ||||||
25 | of the 99th General Assembly apply to actions filed on or after | ||||||
26 | the effective date of this amendatory Act of the 99th General |
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1 | Assembly. | ||||||
2 | (Source: P.A. 99-586, eff. 1-1-17; 99-642, eff. 7-28-16 .)
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