Senate Bill 189 - Illinois

Senate Bill 189 Sent to Governor: June 26, 2009
Governor Action Deadline: August 25, 2009
Effective Date: January 1, 2010



Synopsis of Senate Bill 189, amendments to the Freedom of Information Act (FOIA).

In the waning hours of the legislative session the General Assembly gave final approval to Senate Bill 189, a major rewrite of the Illinois Freedom of Information Act. The following information provides a glimpse into the provisions of the new Act.

The legislation declares that it is the policy of the state that public records shall be made available upon request except when denial of access furthers the public policy underlying a specific exemption.

All records, with certain exceptions, in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving so by clear and convincing evidence standard.

Senate Bill 189 creates the Office of Public Access Counselor in the Attorney General’s Office and provides that office with the following responsibilities:

• To establish and administer a program to provide free training for public officials and to educate the public on the Freedom of Information Act and the Open Meetings Act;

• To prepare and distribute interpretive or educational materials and programs;

• To resolve disputes involving a potential violations of the Open Meetings Act or the Freedom of Information Act by mediating or informally resolving the dispute or by issuing a binding opinion;

• To issue advisory opinions;

• To respond to informal inquiries made by the public and public bodies;

• To conduct research on compliance issues;

• To make recommendations to the General Assembly;

• To develop an electronic training curriculum for Freedom of Information officers;

• To develop an electronic Open Meetings Act training curriculum for employees, officers, and members designated by public bodies; and

• To prepare and distribute to public bodies model policies for compliance with the Freedom of Information Act.

The Public Access Counselor may request that subpoenas be issued by the Attorney General.

The Attorney General shall post binding opinions and any rules on the official office website and shall make them available for immediate inspection.


Public Access Counselor

A person may file a request in writing for review with the Public Access Counselor not later than 60 days after the alleged violation.

The Public Access Counselor may determine the alleged violation is unfounded. If so, no further action will be taken.

In cases where the Public Access Counselor does feel that further action is warranted:

• A copy of the request for review will be sent to the public body within seven (7) working days.

• Within five (5) working days the Public Access Counselor shall notify the public body and the requester whether further inquiry is warranted.

• Within seven (7) working days after receipt of the request for review, the public body shall provide copies of the records requested and may answer the allegations.

• If a public body fails to furnish specified records the Attorney General may issue a subpoena.

• The Public Access Counselor also has the right to examine a verbatim recording of a meeting closed to the public or the minutes of a closed meeting.

• The Public Access Counselor can extend the time for making final decision by up to twenty-one (21) business days or can decide to address the matter without the issuance of a binding opinion. Otherwise the Attorney General shall issue an opinion within sixty (60) business days after initiating review. The opinion shall be binding upon both the requester and the public body, subject to administrative review.

The Attorney General may exercise discretion and choose to resolve a request for review by mediation or by a means other than the issuance of a binding opinion.

A public body that discloses records in accordance with an binding or advisory opinion of the Attorney General is immune from all liabilities and not liable for penalties under the Act.

The Attorney General may also issue advisory opinions to public bodies regarding compliance with this Act.

If a person seeking the right to inspect or receive a copy of a public record prevails (now substantially prevails) in a proceeding under this Section, the court shall (now may) award such person reasonable attorneys' fees and costs

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 that $2,500 nor more than $5,000 for each occurrence.

Training

Every public body shall designate employees, officers, or members to receive training on compliance and must submit the list to the Public Access Counselor. The designated employees must complete an electronic training curriculum by July 1, 2010.

Employees added to the list have 30 days to complete the training.

Revised Definitions

The definition of "public records" expanded to include
electronic communications;

New definitions of “private information” and “commercial purpose” have been included;


Public Bodies

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.

Shall comply with requests within five (now seven) business days and may extend for five (now seven) business days. Denial shall be furnished in writing (now by letter) and provide a detailed factual basis for any exemptions claimed;

Failure to comply (now respond) shall be considered a denial.

Allows twenty-one (21) working days to respond to commercial purpose requests.

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 impose a fee.

A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. A public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with producing the records.

No fees shall be charged for the first 50 pages of black and white, letter or legal sized copies.

The fee for black and white, letter or legal sized copies shall not exceed 15 cents per page.

If a public body provides copies in color or in a size other than letter or legal, the public body may not charge more than its actual cost for reproducing the records.

The cost for certifying a record shall not exceed $1.

Freedom of Information Officers

Each public body shall designate one or more officials or employees to act as its Freedom of Information officer or officers and ensure that the public body responds to requests in a timely fashion. All Freedom of Information officers shall annually complete an electronic training curriculum.

Exclusions/Exemptions:

There are various exclusions and exemptions provided for in the Act. The following is an almost inclusive listing:

• Personal information from any certified prevailing wage payroll records;

• Selected information from criminal history records;

• Some information from settlement agreements, however settlement agreements themselves are public records;

• Education test related materials;

• Information received under procedures for evaluation faculty members by peers in educational institutions;

• Information concerning a school or university's adjudication of student disciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of the student;

• Course materials or research materials used by faculty members;

• A redefinition of the exemption for Architects' plans, and other construction related technical documents to include power generating and distribution stations and other transmission and distribution facilities, water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings, but only to the extent that disclosure would compromise security;
• Records relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed;

• All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act;

• Library circulation and order records identifying library users with specific materials;

• Applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board and any and all documents or other records prepared by the Experimental Organ Transplantation Procedures Board or its staff relating to applications it has received;

• Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease;

• Information exempted under Section 30 of the Radon Industry Licensing Act;

• Firm performance evaluations under the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act;

• Information restricted by the Illinois Prepaid Tuition Act;

• Information exempted under the State Officials and Employees Ethics Act, and records of any lawfully created State or local inspector general's office that would be exempt if created or obtained by an Executive Inspector General's office under that Act;

• Information contained in a local emergency energy plan submitted to a municipality;

• Information and data concerning the distribution of surcharge funds collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act;

• Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation;

• Records and information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act;

• Information provided to the predatory lending database created pursuant the Residential Real Property Disclosure Act, except when authorized;

• Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel;

• Information that is prohibited from being disclosed under the Illinois Health and Hazardous Substances Registry Act;

• Security information compiled, collected, or prepared by or for the Regional Transportation Authority or the St. Clair County Transit District;

• Information prohibited from being disclosed by the Personnel Records Review Act;

• Information prohibited from being disclosed by the Illinois School Student Records Act; and

• Information the disclosure of which is restricted under the Public Utilities Act.