HB0229 100TH GENERAL ASSEMBLY

LRB100 04257 SLF 14263 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB0229

Introduced , by Rep. André Thapedi

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 140/7.5

Creates the Eliminate Racial Profiling Act. Prohibits a State or local law enforcement agent or law enforcement agency from engaging in racial profiling. Allows the State or an individual injured by racial profiling to enforce the racial profiling provision in a civil action for declaratory or injunctive relief. Requires law enforcement agencies to maintain policies and procedures, designed to eliminate racial profiling, and to certify that in applications for certain federal grant programs. Requires the Attorney General to adopt rules for administrative complaint procedures and independent audit programs applicable to law enforcement agencies. Allows the Attorney General to make grants to law enforcement agencies to develop and implement best practices to eliminate racial profiling. Allows the Attorney General to order the withholding of certain federal grants for law enforcement agencies that are not in compliance with the Act. Grants rulemaking authority to the Attorney General to implement the Act. Contains report and publication requirements, with some limitations to protect personal identifying information. Amends the Freedom of Information Act to exempt disclosure of the name and identifying information of a law enforcement officer, complainant, or other person in any activity for which data is collected and compiled under the Eliminate Racial Profiling Act, except for disclosure of information to that person.

A BILL FOR

AN ACT concerning racial profiling.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Eliminate Racial Profiling Act.

Section 5. Definitions. As used in this Act:

"Covered program" means any program or activity funded in whole or in part with funds made available under:

(1) the Edward Byrne Memorial Justice Assistance Grant Program under part E of title I of the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.); and

(2) the "Cops on the Beat" program under part Q of title I of the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.), except that no program, project, or other activity specified in Section 1701(b)(13) of that part shall be a covered program under this paragraph.

"Governmental body" means any department, agency, special purpose district, or other instrumentality of State or local government.

"Hit rate" means the percentage of stops and searches in which a law enforcement officer finds drugs, a gun, or other contraband that leads to an arrest. The hit rate is calculated by dividing the total number of searches by the number of searches that yield contraband. The hit rate is complementary to the rate of false stops.

"Law enforcement agency" means any State or local public agency engaged in the prevention, detection, or investigation of violations of criminal laws.

"Law enforcement agent" means any State or local official responsible for enforcing criminal laws, including police officers and other agents of a law enforcement agency.

"Racial profiling" means the practice of a law enforcement agent or agency relying, to any degree, on actual or perceived race, ethnicity, national origin, religion, gender, gender identity, or sexual orientation in selecting which individual to subject to routine or spontaneous investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and time frame, that links a person with a particular characteristic described in this paragraph to an identified criminal incident or scheme.

"Routine or spontaneous investigatory activities" means the following activities by a law enforcement agent:

(1) interviews;

(2) traffic stops;

(3) pedestrian stops;

(4) frisks and other types of body searches;

(5) consensual or nonconsensual searches of the persons, property, or possessions including vehicles, of individuals using any form of public or private transportation, including motorists and pedestrians;

(6) data collection and analysis, assessments, and predicated investigations; or

(7) any other types of law enforcement encounters compiled for or by the Department of State Police and the Racial Profiling Prevention and Data Oversight Board under the Racial Profiling Prevention and Data Oversight Act.

"Reasonable request" means all requests for information, except for those that:

(1) are immaterial to the investigation;

(2) would result in the unnecessary disclosure of personal information; or

(3) would place a severe burden on the resources of the law enforcement agency given its size.

"Unit of local government" means:

(1) any municipal, county, township, town, village, or other general purpose political subdivision of this State;

(2) any law enforcement district or jurisdiction that:

(A) is established under applicable State law; and

(B) has the authority to, in a manner independent of other State entities, establish a budget and impose taxes.

Section 10. Racial profiling prohibition. No law enforcement agent or law enforcement agency shall engage in racial profiling.

Section 15. Enforcement.

(a) The State or an individual injured by racial profiling, may enforce Section 10 of this Act in a civil action for declaratory or injunctive relief, filed in a State court of competent jurisdiction.

(b) In any action brought under this Act, relief may be obtained against:

(1) any governmental body that employed any law enforcement agent who engaged in racial profiling;

(2) any agent of a governmental body who engaged in racial profiling; and

(3) any person with supervisory authority over any law enforcement agent who engaged in racial profiling.

(c) Proof that the routine or spontaneous investigatory activities of law enforcement agents in a jurisdiction have had a disparate impact on individuals with a particular racial profiling characteristic shall constitute prima facie evidence of a violation of this Act.

(d) In any action or proceeding to enforce this Act against any governmental body, the court may allow a prevailing plaintiff reasonable attorney's fees as part of the costs, and may include expert fees as part of the attorney's fee.

Section 20. Policies to eliminate racial profiling.

(a) Law enforcement agencies shall:

(1) maintain adequate policies and procedures designed to eliminate racial profiling; and

(2) cease existing practices that permit racial profiling.

(b) The policies and procedures described in paragraph (1) of subsection (a) shall include:

(1) a prohibition on racial profiling;

(2) training on racial profiling issues as part of law enforcement training;

(3) the collection of data under rules adopted under Section 45 of this Act;

(4) procedures for receiving, investigating, and responding meaningfully to complaints alleging racial profiling by law enforcement agents; and

(5) any other policies and procedures the Attorney General determines to be necessary to eliminate racial profiling by law enforcement agencies.

Section 25. Policies required for grants.

(a) An application by a unit of local government or a law enforcement agency for funding under a covered program shall include a certification that the unit of local government or law enforcement agency, and any law enforcement agency to which it will distribute funds:

(1) maintains adequate policies and procedures designed to eliminate racial profiling; and

(2) has eliminated any existing practices that permit or encourage racial profiling.

(b) The policies and procedures described in paragraph (1) of subsection (a) shall include:

(1) a prohibition on racial profiling;

(2) training on racial profiling issues as part of law enforcement training;

(3) the collection of data under the rules adopted by the Attorney General under Section 45 of this Act; and

(4) participation in an administrative complaint procedure or independent audit program that meets the requirements of Section 30 of this Act.

Section 30. Attorney General.

(a) Not later than 6 months after the effective date of this Act and in consultation with stakeholders, including law enforcement agencies and community, professional, research, and civil rights organizations, the Attorney General shall adopt rules for the operation of administrative complaint procedures and independent audit programs to ensure that the programs and procedures provide an appropriate response to allegations of racial profiling by law enforcement agents or agencies. The rules shall contain guidelines that ensure the fairness, effectiveness, and independence of the administrative complaint procedures and independent auditor programs.

(b) If the Attorney General determines that the recipient of a grant from any covered program is not in compliance with the requirements of Section 20 of this Act or any rule adopted under subsection (a) of this Section, the Attorney General shall order the distributing agency to withhold, in whole or in part, at the discretion of the Attorney General, funds for one or more grants to the recipient under the covered program, until the recipient establishes compliance.

(c) The Attorney General shall provide notice and an opportunity for private parties to present evidence to the Attorney General that a recipient of a grant from any covered program is not in compliance with the requirements of this Act.

Section 35. Data collection.

(a) The Attorney General may, through competitive grants or contracts, carry out a 2-year demonstration project for the purpose of developing and implementing data collection programs on the hit rates for stops and searches by law enforcement agencies. The data collected shall be disaggregated by race, ethnicity, national origin, gender, and religion.

(1) The Attorney General shall provide not more than 10 grants or contracts under this Section.

(2) Grants or contracts under this Section shall be awarded to law enforcement agencies that serve communities in which there is a significant concentration of racial or ethnic minorities and that are not already collecting data voluntarily beyond that which is required under the Traffic Stop Statistical Study Act.

(b) Activities carried out with a grant under this Section shall include:

(1) developing a data collection tool and reporting the compiled data to the Attorney General; and

(2) training of law enforcement personnel on data collection, particularly for data collection on hit rates for stops and searches.

(c) Not later than 3 years after the effective date of this Act, the Attorney General shall enter into a contract with a State institution of higher education to analyze the data collected by each of the grantees funded under this Section.

Section 40. Best practices development grants.

(a) The Attorney General may make grants to law enforcement agencies and units of local government to develop and implement best practice devices and systems to eliminate racial profiling.

(b) The funds provided under subsection (a) of this Section shall be used for programs that include the following purposes:

(1) The development and implementation of training to prevent racial profiling and to encourage more respectful interaction with the public.

(2) The acquisition and use of technology to facilitate the accurate collection and analysis of data.

(3) The development and acquisition of feedback systems and technologies that identify officers or units of officers engaged in, or at risk of engaging in, racial profiling or other misconduct.

(4) The establishment and maintenance of an administrative complaint procedure or independent auditor program.

(c) The Attorney General shall ensure that grants under this Section are awarded in a manner that reserves an equitable share of funding for small and rural law enforcement agencies.

(d) Each law enforcement agency or unit of local government desiring a grant under this Section shall submit an application to the Attorney General at the time, in the manner, and accompanied by the information as the Attorney General may reasonably require.

Section 45. Rulemaking.

(a) Not later than 6 months after the effective date of this Act, the Attorney General, in consultation with stakeholders, including State and local law enforcement agencies and community, professional, research, and civil rights organizations, shall adopt rules for the collection and compilation of data under Sections 15 and 20 of this Act.

(b) The rules adopted under subsection (a) shall:

(1) provide for the collection of data on all routine or spontaneous investigatory activities;

(2) provide that the data collected shall:

(A) be collected by race, ethnicity, national origin, gender, and religion, as perceived by the law enforcement officer;

(B) include the date, time, and location of the investigatory activities;

(C) include detail sufficient to permit an analysis of whether a law enforcement agency is engaging in racial profiling; and

(D) not include personally identifiable information

(3) provide that a standardized form shall be made available to law enforcement agencies for the submission of collected data to the Attorney General;

(4) provide that law enforcement agencies shall compile data on the standardized form made available under paragraph (3) of this subsection (b), and submit the form to the Attorney General;

(5) provide that law enforcement agencies shall maintain all data collected under this Act for not less than 4 years;

(6) include guidelines for setting comparative benchmarks, consistent with best practices, against which collected data shall be measured;

(7) provide that the Attorney General shall:

(A) analyze the data for any statistically significant disparities, including:

(i) disparities in the percentage of drivers or pedestrians stopped relative to the proportion of the population passing through the neighborhood;

(ii) disparities in the hit rate; and

(iii) disparities in the frequency of searches performed on racial or ethnic minority drivers and the frequency of searches performed on non-minority drivers; and

(B) not later than 3 years after the effective date of this Act, and annually thereafter:

(i) prepare a report regarding the findings of the analysis conducted under subparagraph (A) of this paragraph (7);

(ii) provide the report to the General Assembly; and

(iii) make the report available to the public, including on the Attorney General's website; and

(8) protect the privacy of individuals whose data is collected by:

(A) limiting the use of the data collected under this Act to the purposes under this Act;

(B) except as otherwise provided in this Act, limiting access to the data collected under this Act to those State or local employees or agents who require this access in order to fulfill the purposes for the data under this Act;

(C) requiring contractors or other non-governmental agents who are permitted access to the data collected under this Act to sign use agreements incorporating the use and disclosure restrictions set forth in subparagraph (A) of this paragraph (8); and

(D) requiring the maintenance of adequate security measures to prevent unauthorized access to the data collected under this Act.

(c) In addition to the rules under subsections (a) and (b) of this Section, the Attorney General may adopt any other rules he or she determines are necessary to implement this Act.

Section 50. Publication of data. The Attorney General shall provide to the General Assembly and make available to the public, together with each annual report described in Section 25, the data collected under this Act, excluding any personally identifiable information described in Section 55.

Section 55. Limitations on publication of data. The name or identifying information of a law enforcement officer, complainant, or any other individual involved in any activity for which data is collected and compiled under this Act shall not be:

(1) released to the public;

(2) disclosed to any person, except for:

(A) the disclosures as are necessary to comply with this Act;

(B) disclosures of information regarding a particular person to that person; or

(C) disclosures pursuant to litigation; or

(3) subject to disclosure under the Freedom of Information Act, except for disclosures of information regarding a particular person to that person.

Section 60. Reports. Not later than 2 years after the effective date of this Act, and annually thereafter, the Attorney General shall submit to the General Assembly a report on racial profiling by law enforcement agencies. Each report submitted shall include:

(1) a summary of data collected under paragraph (3) of subsection (b) of Section 15 and paragraph (3) of subsection (b) of Section 20 of this Act and from any other reliable source of information regarding racial profiling in the State;

(2) a discussion of the findings in the most recent report prepared by the Attorney General under paragraph (7) of subsection (b) of Section 45 of this Act;

(3) the status of the adoption and implementation of policies and procedures by law enforcement agencies under this Act; and

(4) a description of any other policies and procedures that the Attorney General believes would facilitate the elimination of racial profiling.

Section 105. The Freedom of Information Act is amended by changing Section 7.5 as follows:

(5 ILCS 140/7.5)

Sec. 7.5. Statutory exemptions. To the extent provided for by the statutes referenced below, the following shall be exempt from inspection and copying:

(a) All information determined to be confidential under Section 4002 of the Technology Advancement and Development Act.

(b) Library circulation and order records identifying library users with specific materials under the Library Records Confidentiality Act.

(c) 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.

(d) Information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease or any information the disclosure of which is restricted under the Illinois Sexually Transmissible Disease Control Act.

(e) Information the disclosure of which is exempted under Section 30 of the Radon Industry Licensing Act.

(f) Firm performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

(g) Information the disclosure of which is restricted and exempted under Section 50 of the Illinois Prepaid Tuition Act.

(h) Information the disclosure of which is 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.

(i) Information contained in a local emergency energy plan submitted to a municipality in accordance with a local emergency energy plan ordinance that is adopted under Section 11-21.5-5 of the Illinois Municipal Code.

(j) Information and data concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act.

(k) Law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code.

(l) 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.

(m) Information provided to the predatory lending database created pursuant to Article 3 of the Residential Real Property Disclosure Act, except to the extent authorized under that Article.

(n) Defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under Sections 10 and 15 of the Capital Crimes Litigation Act. This subsection (n) shall apply until the conclusion of the trial of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(o) Information that is prohibited from being disclosed under Section 4 of the Illinois Health and Hazardous Substances Registry Act.

(p) Security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under Section 2.11 of the Regional Transportation Authority Act or the St. Clair County Transit District under the Bi-State Transit Safety Act.

(q) Information prohibited from being disclosed by the Personnel Records Review Act.

(r) Information prohibited from being disclosed by the Illinois School Student Records Act.

(s) Information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.

(t) All identified or deidentified health information in the form of health data or medical records contained in, stored in, submitted to, transferred by, or released from the Illinois Health Information Exchange, and identified or deidentified health information in the form of health data and medical records of the Illinois Health Information Exchange in the possession of the Illinois Health Information Exchange Authority due to its administration of the Illinois Health Information Exchange. The terms "identified" and "deidentified" shall be given the same meaning as in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, or any subsequent amendments thereto, and any regulations promulgated thereunder.

(u) Records and information provided to an independent team of experts under Brian's Law.

(v) Names and information of people who have applied for or received Firearm Owner's Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act.

(w) Personally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.

(x) Information which is exempted from disclosure under Section 5-1014.3 of the Counties Code or Section 8-11-21 of the Illinois Municipal Code.

(y) Confidential information under the Adult Protective Services Act and its predecessor enabling statute, the Elder Abuse and Neglect Act, including information about the identity and administrative finding against any caregiver of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult maintained in the Registry established under Section 7.5 of the Adult Protective Services Act.

(z) Records and information provided to a fatality review team or the Illinois Fatality Review Team Advisory Council under Section 15 of the Adult Protective Services Act.

(aa) Information which is exempted from disclosure under Section 2.37 of the Wildlife Code.

(bb) Information which is or was prohibited from disclosure by the Juvenile Court Act of 1987.

(cc) Recordings made under the Law Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that Act.

(dd) Information that is prohibited from being disclosed under Section 45 of the Condominium and Common Interest Community Ombudsperson Act.

(ee) (dd) Information that is exempted from disclosure under Section 30.1 of the Pharmacy Practice Act.

(ff) The name and identifying information of a law enforcement officer, complainant, or other person involved in any activity for which data is collected and compiled under the Eliminate Racial Profiling Act, except for information regarding a particular person to that person.

(Source: P.A. 98-49, eff. 7-1-13; 98-63, eff. 7-9-13; 98-756, eff. 7-16-14; 98-1039, eff. 8-25-14; 98-1045, eff. 8-25-14; 99-78, eff. 7-20-15; 99-298, eff. 8-6-15; 99-352, eff. 1-1-16; 99-642, eff. 7-28-16; 99-776, eff. 8-12-16; 99-863, eff. 8-19-16; revised 9-1-16.)