SB2131 94TH GENERAL ASSEMBLY

SRS094 00028 SDF 30029 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2131

Introduced 10/19/2005, by Sen. Pamela J. Althoff

SYNOPSIS AS INTRODUCED:

5 ILCS 140/7	from Ch. 116, par. 207
35 ILCS 636/5-53 new
35 ILCS 645/5-10 new
65 ILCS 5/8-11-2.5 new

Amends the Simplified Municipal Telecommunications Tax Act, the Electricity Infrastructure Maintenance Fee Law, and the Illinois Municipal Code. Authorizes municipalities that impose certain taxes or fees on or collected by public utilities to conduct audits of those utilities to determine the accuracy of the taxes or fees paid to the municipality. Sets forth procedures under which a municipality may collect information from a public utility that is necessary to perform an audit. Sets forth procedures concerning the audit findings, liability for errors, penalties, confidentiality, and exemptions. Amends the Freedom of Information Act to exempt information provided by a public utility to a municipality in the course of an audit from the Act's inspection requirements. Effective immediately.

A BILL FOR

AN ACT concerning local government.

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

Section 3. The Freedom of Information Act is amended by changing Section 7 as follows:

(5 ILCS 140/7) (from Ch. 116, par. 207)

Sec. 7. Exemptions.

(1) The following shall be exempt from inspection and copying:

(a) Information specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.

(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:

(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies;

(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions;

(iii) files and personal information maintained with respect to any applicant, registrant or licensee by any public body cooperating with or engaged in professional or occupational registration, licensure or discipline;

(iv) information required of any taxpayer in connection with the assessment or collection of any tax unless disclosure is otherwise required by State statute;

(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies; provided, however, that identification of witnesses to traffic accidents, traffic accident reports, and rescue reports may be provided by agencies of local government, except in a case for which a criminal investigation is ongoing, without constituting a clearly unwarranted per se invasion of personal privacy under this subsection; and

(vi) the names, addresses, or other personal information of participants and registrants in park district, forest preserve district, and conservation district programs.

(c) Records compiled by any public body for administrative enforcement proceedings and any law enforcement or correctional agency for law enforcement purposes or for internal matters of a public body, but only to the extent that disclosure would:

(i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency;

(ii) interfere with pending administrative enforcement proceedings conducted by any public body;

(iii) deprive a person of a fair trial or an impartial hearing;

(iv) unavoidably disclose the identity of a confidential source or confidential information furnished only by the confidential source;

(v) disclose unique or specialized investigative techniques other than those generally used and known or disclose internal documents of correctional agencies related to detection, observation or investigation of incidents of crime or misconduct;

(vi) constitute an invasion of personal privacy under subsection (b) of this Section;

(vii) endanger the life or physical safety of law enforcement personnel or any other person; or

(viii) obstruct an ongoing criminal investigation.

(d) Criminal history record information maintained by State or local criminal justice agencies, except the following which shall be open for public inspection and copying:

(i) chronologically maintained arrest information, such as traditional arrest logs or blotters;

(ii) the name of a person in the custody of a law enforcement agency and the charges for which that person is being held;

(iii) court records that are public;

(iv) records that are otherwise available under State or local law; or

(v) records in which the requesting party is the individual identified, except as provided under part (vii) of paragraph (c) of subsection (1) of this Section.

"Criminal history record information" means data identifiable to an individual and consisting of descriptions or notations of arrests, detentions, indictments, informations, pre-trial proceedings, trials, or other formal events in the criminal justice system or descriptions or notations of criminal charges (including criminal violations of local municipal ordinances) and the nature of any disposition arising therefrom, including sentencing, court or correctional supervision, rehabilitation and release. The term does not apply to statistical records and reports in which individuals are not identified and from which their identities are not ascertainable, or to information that is for criminal investigative or intelligence purposes.

(e) Records that relate to or affect the security of correctional institutions and detention facilities.

(f) Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or information are proprietary, privileged or confidential, or where disclosure of the trade secrets or information may cause competitive harm, including:

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

(ii) All trade secrets and commercial or financial information obtained by a public body, including a public pension fund, from a private equity fund or a privately held company within the investment portfolio of a private equity fund as a result of either investing or evaluating a potential investment of public funds in a private equity fund. The exemption contained in this item does not apply to the aggregate financial performance information of a private equity fund, nor to the identity of the fund's managers or general partners. The exemption contained in this item does not apply to the identity of a privately held company within the investment portfolio of a private equity fund, unless the disclosure of the identity of a privately held company may cause competitive harm.

Nothing contained in this paragraph (g) shall be construed to prevent a person or business from consenting to disclosure.

(h) Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.

(i) Valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. The exemption for "computer geographic systems" provided in this paragraph (i) does not extend to requests made by news media as defined in Section 2 of this Act when the requested information is not otherwise exempt and the only purpose of the request is to access and disseminate information regarding the health, safety, welfare, or legal rights of the general public.

(j) Test questions, scoring keys and other examination data used to administer an academic examination or determined the qualifications of an applicant for a license or employment.

(k) Architects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds and the same for projects constructed or developed with public funds, but only to the extent that disclosure would compromise security, including but not limited to water treatment facilities, airport facilities, sport stadiums, convention centers, and all government owned, operated, or occupied buildings.

(l) Library circulation and order records identifying library users with specific materials.

(m) Minutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public under Section 2.06 of the Open Meetings Act.

(n) Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

(o) Information received by a primary or secondary school, college or university under its procedures for the evaluation of faculty members by their academic peers.

(p) Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

(q) Documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, except that any final contract or agreement shall be subject to inspection and copying.

(r) Drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body. The records of ownership, registration, transfer, and exchange of municipal debt obligations, and of persons to whom payment with respect to these obligations is made.

(s) The records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated. With regard to a parcel involved in a pending or actually and reasonably contemplated eminent domain proceeding under Article VII of the Code of Civil Procedure, records, documents and information relating to that parcel shall be exempt except as may be allowed under discovery rules adopted by the Illinois Supreme Court. The records, documents and information relating to a real estate sale shall be exempt until a sale is consummated.

(t) Any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool.

(u) Information concerning a university's adjudication of student or employee grievance or disciplinary cases, to the extent that disclosure would reveal the identity of the student or employee and information concerning any public body's adjudication of student or employee grievances or disciplinary cases, except for the final outcome of the cases.

(v) Course materials or research materials used by faculty members.

(w) Information related solely to the internal personnel rules and practices of a public body.

(x) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of a public body responsible for the regulation or supervision of financial institutions or insurance companies, unless disclosure is otherwise required by State law.

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

(z) Manuals or instruction to staff that relate to establishment or collection of liability for any State tax or that relate to investigations by a public body to determine violation of any criminal law.

(aa) 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.

(bb) Insurance or self insurance (including any intergovernmental risk management association or self insurance pool) claims, loss or risk management information, records, data, advice or communications.

(cc) 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.

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

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

(ff) 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.

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

(hh) Information the disclosure of which is exempted under the State Officials and Employees Ethics Act.

(ii) Beginning July 1, 1999, information that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs, or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act.

(jj) 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.

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

(ll) Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations.

(mm) Maps and other records regarding the location or security of a utility's generation, transmission, distribution, storage, gathering, treatment, or switching facilities.

(nn) 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.

(oo) Records and information provided to a residential health care facility resident sexual assault and death review team or the Residential Health Care Facility Resident Sexual Assault and Death Review Teams Executive Council under the Residential Health Care Facility Resident Sexual Assault and Death Review Team Act.

(pp) 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.

(qq) (pp) 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 (qq) (pp) shall apply until the conclusion of the trial and appeal of the case, even if the prosecution chooses not to pursue the death penalty prior to trial or sentencing.

(rr) Information collected from a public utility in the course of a municipal audit under Section 5-53 of the Simplified Municipal Telecommunications Tax Act, Section 5-10 of the Electricity Infrastructure Maintenance Fee Law, or Section 8-11-2.5 of the Illinois Municipal Code.

(2) This Section does not authorize withholding of information or limit the availability of records to the public, except as stated in this Section or otherwise provided in this Act.

(Source: P.A. 93-43, eff. 7-1-03; 93-209, eff. 7-18-03; 93-237, eff. 7-22-03; 93-325, eff. 7-23-03, 93-422, eff. 8-5-03; 93-577, eff. 8-21-03; 93-617, eff. 12-9-03; 94-280, eff. 1-1-06; 94-508, eff. 1-1-06; 94-664, eff. 1-1-06; revised 8-29-05.)

Section 5. The Simplified Municipal Telecommunications Tax Act is amended by adding Section 5-53 as follows:

(35 ILCS 636/5-53 new)

Sec. 5-53. Municipal tax review; requests for information.

(a) A municipality may conduct an audit of tax receipts collected by retailers on behalf of the municipality under this Act to determine whether the amount of tax that was collected by the retailer on behalf of the municipality was accurate.

(b) Not more than once each year, a municipality that has imposed a tax under this Act may request any information from a retailer that the municipality reasonably requires to perform an audit under subsection (a). The information that may be requested by the municipality includes, without limitation:

(1) in an electronic format, the database used by the retailer to assess the taxes on behalf of the municipality, which, at a minimum, must provide the service or location address, the billing address, and the usage by account, including gross charge and tax revenue collected by account, of all customers subject to the municipal tax; and

(2) in a format required by the municipality, summary data as needed by the municipality to determine the unit consumption of telecommunications services by providing the gross minutes or other units of measurement being taxed within the municipal jurisdiction, the gross charges collected, and the associated taxes assessed.

(c) Each retailer must provide the information requested under subsection (b) within:

(1) 30 days after the date of the request if the population of the requesting municipality is 500,000 or less; or

(2) 90 days after the date of the request if the population of the requesting municipality exceeds 500,000.

The time in which a retailer must provide the information requested under subsection (b) may be extended by an agreement between the municipality and the retailer or, when the parties cannot agree, by application to the Illinois Commerce Commission by the retailer with a written notice provided to the municipality within the original time required for providing the requested information.

(d) If an audit by the municipality or its agents finds an error by the retailer in the collection or assessment of the taxes, then the municipality may notify the retailer of the error. Upon such a notice, the retailer must submit a written response within 30 days after the notice stating that it has corrected the error or stating the reason that the error is inapplicable or inaccurate. The municipality then has 30 days after the receipt of the retailer's response to review and contest the conclusion of the retailer. If the parties are unable to agree on the disposition of the audit findings within 60 days after the notification of the error to the retailer, then either party may submit the matter to the Illinois Commerce Commission for resolution.

(e) Retailers and municipalities are not liable for any error in past collections and payments that were unknown to the retailer or municipality prior to the audit process unless the error was due to gross negligence in collection or processing of required data.

(f) All information provided by a retailer under this Section must be held in strict confidence by the municipality and its agents and is excluded from disclosure to the public under the Freedom of Information Act.

(g) Any retailer that fails to comply with the provisions of this Section is subject to a civil penalty of $500 for each day that the retailer is in noncompliance.

(h) A retailer that collects less than $1,000 annually in taxes under this Act is exempt from the provisions of this Section. The Illinois Commerce Commission must adopt any rules that are required to effectively enforce this Section.

Section 10. The Electricity Infrastructure Maintenance Fee Law is amended by adding Section 5-10 as follows:

(35 ILCS 645/5-10 new)

Sec. 5-10. Municipal tax review; requests for information.

(a) A municipality may conduct an audit of fees under this Act to determine the accuracy of the fees paid by an electricity deliverer.

(b) Not more than once each year, a municipality that has imposed a fee under this Act may request any information from an electricity deliverer that the municipality reasonably requires to perform an audit under subsection (a). The information that may be requested by the municipality includes, without limitation:

(1) in an electronic format, the database used by the deliverer to determine the fee amount due to the municipality, which, at a minimum, must provide the service or location address, the billing address, and the usage by account, including gross kilowatt-hours and any fees collected by account from the purchaser, of all purchasers; and

(2) in a format required by the municipality, summary data as needed by the municipality to determine the unit consumption by providing the gross kilowatt-hours or other units of measurement being taxed within the municipal jurisdiction.

(c) Each electricity deliverer must provide the information requested under subsection (b) within:

(1) 30 days after the date of the request if the population of the requesting municipality is 500,000 or less; or

(2) 90 days after the date of the request if the population of the requesting municipality exceeds 500,000.

The time in which an electricity deliverer must provide the information requested under subsection (b) may be extended by an agreement between the municipality and the electricity deliverer or, when the parties cannot agree, by application to the Illinois Commerce Commission by the electricity deliverer with a written notice provided to the municipality within the original time required for providing the requested information.

(d) If an audit by the municipality or its agents finds an error by the electricity deliverer in the payment of the fee, then the municipality may notify the electricity deliverer of the error. Upon such a notice, the electricity deliverer must submit a written response within 30 days after the notice stating that it has corrected the error or stating the reason that the error is inapplicable or inaccurate. The municipality then has 30 days after the receipt of the electricity deliverer's response to review and contest the conclusion of the electricity deliverer. If the parties are unable to agree on the disposition of the audit findings within 60 days after the notification of the error to the electricity deliverer, then either party may submit the matter to the Illinois Commerce Commission for resolution.

(e) Electricity deliverers and municipalities are not liable for any error in past collections and payments that were unknown to the electricity deliverer or municipality prior to the audit process unless the error was due to gross negligence in collection or processing of required data.

(f) All information provided by an electricity deliverer under this Section must be held in strict confidence by the municipality and its agents and is excluded from disclosure to the public under the Freedom of Information Act.

(g) Any electricity deliverer that fails to comply with the provisions of this Section is subject to a civil penalty of $500 for each day that the electricity deliverer is in noncompliance.

(h) An electricity deliverer that collects less than $1,000 annually in taxes under this Act is exempt from the provisions of this Section. The Illinois Commerce Commission must adopt any rules that are required to effectively enforce this Section.

Section 15. The Illinois Municipal Code is amended by adding Section 8-11-2.5 as follows:

(65 ILCS 5/8-11-2.5 new)

Sec. 8-11-2.5. Municipal tax review; requests for information.

(a) If a municipality has imposed a tax under Section 8-11-2, then the municipality may conduct an audit of tax receipts collected from the utility that is subject to the tax or that collects the tax from purchasers on behalf of the municipality to determine whether the amount of tax that was paid by the utility was accurate.

(b) Not more than once each year, a municipality that has imposed a tax under this Act may request any information from a utility that the municipality reasonably requires to perform an audit under subsection (a). The information that may be requested by the municipality includes, without limitation:

(1) in an electronic format, the database used by the utility to determine the amount of tax due to the municipality, which, at a minimum, must provide the service or location address, the billing address, and the usage by account, gross taxable revenues, and any tax revenue collected from the purchaser, of all purchasers; and

(2) in a format required by the municipality, summary data as needed by the municipality to determine the unit consumption of utility services by providing the gross therms, kilowatts, minutes or other units of measurement being taxed within the municipal jurisdiction and the gross revenues collected and the associated taxes assessed.

(c) Each public utility must provide the information requested under subsection (b) within:

(1) 30 days after the date of the request if the population of the requesting municipality is 500,000 or less; or

(2) 90 days after the date of the request if the population of the requesting municipality exceeds 500,000.

The time in which a public utility must provide the information requested under subsection (b) may be extended by an agreement between the municipality and the public utility or, when the parties cannot agree, by application to the Illinois Commerce Commission by the public utility with a written notice provided to the municipality within the original time required for providing the requested information.

(d) If an audit by the municipality or its agents finds an error by the public utility in the amount of taxes paid by the public utility, then the municipality may notify the public utility of the error. Upon such a notice, the public utility must submit a written response within 30 days after the notice stating that it has corrected the error or stating the reason that the error is inapplicable or inaccurate. The municipality then has 30 days after the receipt of the public utility's response to review and contest the conclusion of the public utility. If the parties are unable to agree on the disposition of the audit findings within 60 days after the notification of the error to the public utility, then either party may submit the matter to the Illinois Commerce Commission for resolution.

(e) Public utilities and municipalities are not liable for any error in past collections and payments that were unknown to the public utility or municipality prior to the audit process unless the error was due to gross negligence in collection or processing of required data.

(f) All information provided by a public utility under this Section must be held in strict confidence by the municipality and its agents and is excluded from disclosure to the public under the Freedom of Information Act.

(g) Any public utility that fails to comply with the provisions of this Section is subject to a civil penalty of $500 for each day that the public utility is in noncompliance.

(h) A public utility that collects less than $1,000 annually in taxes under this Act is exempt from the provisions of this Section. The Illinois Commerce Commission must adopt any rules that are required to effectively enforce this Section.

Section 99. Effective date. This Act takes effect upon becoming law.