Rep. Susana A Mendoza
Filed: 4/16/2008
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1 | AMENDMENT TO HOUSE BILL 4964
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2 | AMENDMENT NO. ______. Amend House Bill 4964, AS AMENDED, by | ||||||
3 | replacing everything after the enacting clause with the | ||||||
4 | following:
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5 | "Section 5. The Criminal Code of 1961 is amended by | ||||||
6 | changing Section 14-3 as follows:
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7 | (720 ILCS 5/14-3)
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8 | (Text of Section after amendment by P.A. 95-463 )
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9 | Sec. 14-3. Exemptions. The following activities shall be
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10 | exempt from the provisions of this Article:
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11 | (a) Listening to radio, wireless and television | ||||||
12 | communications of
any sort where the same are publicly made;
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13 | (b) Hearing conversation when heard by employees of any | ||||||
14 | common
carrier by wire incidental to the normal course of their | ||||||
15 | employment in
the operation, maintenance or repair of the | ||||||
16 | equipment of such common
carrier by wire so long as no |
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1 | information obtained thereby is used or
divulged by the hearer;
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2 | (c) Any broadcast by radio, television or otherwise whether | ||||||
3 | it be a
broadcast or recorded for the purpose of later | ||||||
4 | broadcasts of any
function where the public is in attendance | ||||||
5 | and the conversations are
overheard incidental to the main | ||||||
6 | purpose for which such broadcasts are
then being made;
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7 | (d) Recording or listening with the aid of any device to | ||||||
8 | any
emergency communication made in the normal course of | ||||||
9 | operations by any
federal, state or local law enforcement | ||||||
10 | agency or institutions dealing
in emergency services, | ||||||
11 | including, but not limited to, hospitals,
clinics, ambulance | ||||||
12 | services, fire fighting agencies, any public utility,
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13 | emergency repair facility, civilian defense establishment or | ||||||
14 | military
installation;
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15 | (e) Recording the proceedings of any meeting required to be | ||||||
16 | open by
the Open Meetings Act, as amended;
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17 | (f) Recording or listening with the aid of any device to | ||||||
18 | incoming
telephone calls of phone lines publicly listed or | ||||||
19 | advertised as consumer
"hotlines" by manufacturers or | ||||||
20 | retailers of food and drug products. Such
recordings must be | ||||||
21 | destroyed, erased or turned over to local law
enforcement | ||||||
22 | authorities within 24 hours from the time of such recording and
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23 | shall not be otherwise disseminated. Failure on the part of the | ||||||
24 | individual
or business operating any such recording or | ||||||
25 | listening device to comply with
the requirements of this | ||||||
26 | subsection shall eliminate any civil or criminal
immunity |
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1 | conferred upon that individual or business by the operation of
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2 | this Section;
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3 | (g) With prior notification to the State's Attorney of the
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4 | county in which
it is to occur, recording or listening with the | ||||||
5 | aid of any device to any
conversation
where a law enforcement | ||||||
6 | officer, or any person acting at the direction of law
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7 | enforcement, is a party to the conversation and has consented | ||||||
8 | to it being
intercepted or recorded under circumstances where | ||||||
9 | the use of the device is
necessary for the protection of the | ||||||
10 | law enforcement officer or any person
acting at the direction | ||||||
11 | of law enforcement, in the course of an
investigation
of a | ||||||
12 | forcible felony, a felony violation of the Illinois Controlled | ||||||
13 | Substances
Act, a felony violation of the Cannabis Control Act, | ||||||
14 | a felony violation of the Methamphetamine Control and Community | ||||||
15 | Protection Act, or any "streetgang
related" or "gang-related" | ||||||
16 | felony as those terms are defined in the Illinois
Streetgang | ||||||
17 | Terrorism Omnibus Prevention Act.
Any recording or evidence | ||||||
18 | derived
as the
result of this exemption shall be inadmissible | ||||||
19 | in any proceeding, criminal,
civil or
administrative, except | ||||||
20 | (i) where a party to the conversation suffers great
bodily | ||||||
21 | injury or is killed during such conversation, or
(ii)
when used | ||||||
22 | as direct impeachment of a witness concerning matters contained | ||||||
23 | in
the interception or recording. The Director of the
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24 | Department of
State Police shall issue regulations as are | ||||||
25 | necessary concerning the use of
devices, retention of tape | ||||||
26 | recordings, and reports regarding their
use;
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1 | (g-5) With approval of the State's Attorney of the county | ||||||
2 | in
which it is to occur, recording or listening with the aid of | ||||||
3 | any device to any
conversation where a law enforcement officer, | ||||||
4 | or any person acting at the
direction of law enforcement, is a | ||||||
5 | party to the conversation and has consented
to it being | ||||||
6 | intercepted or recorded in the course of an investigation of | ||||||
7 | any
offense defined in Article 29D of this Code.
In all such | ||||||
8 | cases, an application for an order approving
the previous or | ||||||
9 | continuing use of an eavesdropping
device must be made within | ||||||
10 | 48 hours of the commencement of
such use. In the absence of | ||||||
11 | such an order, or upon its denial,
any continuing use shall | ||||||
12 | immediately terminate.
The Director of
State Police shall issue | ||||||
13 | rules as are necessary concerning the use of
devices, retention | ||||||
14 | of tape recordings, and reports regarding their use.
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15 | Any recording or evidence obtained or derived in the course | ||||||
16 | of an
investigation of any offense defined in Article 29D of | ||||||
17 | this Code shall, upon
motion of the State's Attorney or | ||||||
18 | Attorney General prosecuting any violation of
Article 29D, be | ||||||
19 | reviewed in camera with notice to all parties present by the
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20 | court presiding over the criminal
case, and, if ruled by the | ||||||
21 | court to be relevant and otherwise admissible,
it shall be | ||||||
22 | admissible at the trial of the criminal
case.
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23 | This subsection (g-5) is inoperative on and after January | ||||||
24 | 1, 2005.
No conversations recorded or monitored pursuant to | ||||||
25 | this subsection (g-5)
shall be inadmissible in a court of law | ||||||
26 | by virtue of the repeal of this
subsection (g-5) on January 1, |
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1 | 2005;
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2 | (g-6) With approval of the State's Attorney of the county | ||||||
3 | in which it is to occur, recording or listening with the aid of | ||||||
4 | any device to any conversation where a law enforcement officer, | ||||||
5 | or any person acting at the direction of law enforcement, is a | ||||||
6 | party to the conversation and has consented to it being | ||||||
7 | intercepted or recorded in the course of an investigation of | ||||||
8 | child pornography. In all such cases, an application for an | ||||||
9 | order approving the previous or continuing use of an | ||||||
10 | eavesdropping device must be made within 48 hours of the | ||||||
11 | commencement of such use. In the absence of such an order, or | ||||||
12 | upon its denial, any continuing use shall immediately | ||||||
13 | terminate. The Director of State Police shall issue rules as | ||||||
14 | are necessary concerning the use of devices, retention of | ||||||
15 | recordings, and reports regarding their use.
Any recording or | ||||||
16 | evidence obtained or derived in the course of an investigation | ||||||
17 | of child pornography shall, upon motion of the State's Attorney | ||||||
18 | or Attorney General prosecuting any case involving child | ||||||
19 | pornography, be reviewed in camera with notice to all parties | ||||||
20 | present by the court presiding over the criminal case, and, if | ||||||
21 | ruled by the court to be relevant and otherwise admissible, it | ||||||
22 | shall be admissible at the trial of the criminal case. Absent | ||||||
23 | such a ruling, any such recording or evidence shall not be | ||||||
24 | admissible at the trial of the criminal case; | ||||||
25 | (h) Recordings made simultaneously with a video recording | ||||||
26 | of an oral
conversation between a peace officer, who has |
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1 | identified his or her office, and
a person stopped for an | ||||||
2 | investigation of an offense under the Illinois Vehicle
Code;
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3 | (i) Recording of a conversation made by or at the request | ||||||
4 | of a person, not a
law enforcement officer or agent of a law | ||||||
5 | enforcement officer, who is a party
to the conversation, under | ||||||
6 | reasonable suspicion that another party to the
conversation is | ||||||
7 | committing, is about to commit, or has committed a criminal
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8 | offense against the person or a member of his or her immediate | ||||||
9 | household, and
there is reason to believe that evidence of the | ||||||
10 | criminal offense may be
obtained by the recording;
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11 | (j) The use of a telephone monitoring device by either (1) | ||||||
12 | a
corporation or other business entity engaged in marketing or | ||||||
13 | opinion research
or (2) a corporation or other business entity | ||||||
14 | engaged in telephone
solicitation, as
defined in this | ||||||
15 | subsection, to record or listen to oral telephone solicitation
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16 | conversations or marketing or opinion research conversations | ||||||
17 | by an employee of
the corporation or other business entity | ||||||
18 | when:
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19 | (i) the monitoring is used for the purpose of service | ||||||
20 | quality control of
marketing or opinion research or | ||||||
21 | telephone solicitation, the education or
training of | ||||||
22 | employees or contractors
engaged in marketing or opinion | ||||||
23 | research or telephone solicitation, or internal
research | ||||||
24 | related to marketing or
opinion research or telephone
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25 | solicitation; and
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26 | (ii) the monitoring is used with the consent of at |
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1 | least one person who
is an active party to the marketing or | ||||||
2 | opinion research conversation or
telephone solicitation | ||||||
3 | conversation being
monitored.
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4 | No communication or conversation or any part, portion, or | ||||||
5 | aspect of the
communication or conversation made, acquired, or | ||||||
6 | obtained, directly or
indirectly,
under this exemption (j), may | ||||||
7 | be, directly or indirectly, furnished to any law
enforcement | ||||||
8 | officer, agency, or official for any purpose or used in any | ||||||
9 | inquiry
or investigation, or used, directly or indirectly, in | ||||||
10 | any administrative,
judicial, or other proceeding, or divulged | ||||||
11 | to any third party.
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12 | When recording or listening authorized by this subsection | ||||||
13 | (j) on telephone
lines used for marketing or opinion research | ||||||
14 | or telephone solicitation purposes
results in recording or
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15 | listening to a conversation that does not relate to marketing | ||||||
16 | or opinion
research or telephone solicitation; the
person | ||||||
17 | recording or listening shall, immediately upon determining | ||||||
18 | that the
conversation does not relate to marketing or opinion | ||||||
19 | research or telephone
solicitation, terminate the recording
or | ||||||
20 | listening and destroy any such recording as soon as is | ||||||
21 | practicable.
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22 | Business entities that use a telephone monitoring or | ||||||
23 | telephone recording
system pursuant to this exemption (j) shall | ||||||
24 | provide current and prospective
employees with notice that the | ||||||
25 | monitoring or recordings may occur during the
course of their | ||||||
26 | employment. The notice shall include prominent signage
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1 | notification within the workplace.
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2 | Business entities that use a telephone monitoring or | ||||||
3 | telephone recording
system pursuant to this exemption (j) shall | ||||||
4 | provide their employees or agents
with access to personal-only | ||||||
5 | telephone lines which may be pay telephones, that
are not | ||||||
6 | subject to telephone monitoring or telephone recording.
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7 | For the purposes of this subsection (j), "telephone | ||||||
8 | solicitation" means a
communication through the use of a | ||||||
9 | telephone by live operators:
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10 | (i) soliciting the sale of goods or services;
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11 | (ii) receiving orders for the sale of goods or | ||||||
12 | services;
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13 | (iii) assisting in the use of goods or services; or
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14 | (iv) engaging in the solicitation, administration, or | ||||||
15 | collection of bank
or
retail credit accounts.
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16 | For the purposes of this subsection (j), "marketing or | ||||||
17 | opinion research"
means
a marketing or opinion research | ||||||
18 | interview conducted by a live telephone
interviewer engaged by | ||||||
19 | a corporation or other business entity whose principal
business | ||||||
20 | is the design, conduct, and analysis of polls and surveys | ||||||
21 | measuring
the
opinions, attitudes, and responses of | ||||||
22 | respondents toward products and services,
or social or | ||||||
23 | political issues, or both;
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24 | (k) Electronic recordings, including but not limited to, a | ||||||
25 | motion picture,
videotape, digital, or other visual or audio | ||||||
26 | recording, made of a custodial
interrogation of an individual |
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1 | at a police station or other place of detention
by a law | ||||||
2 | enforcement officer under Section 5-401.5 of the Juvenile Court | ||||||
3 | Act of
1987 or Section 103-2.1 of the Code of Criminal | ||||||
4 | Procedure of 1963; | ||||||
5 | (l) Recording the interview or statement of any person when | ||||||
6 | the person
knows that the interview is being conducted by a law | ||||||
7 | enforcement officer or
prosecutor and the interview takes place | ||||||
8 | at a police station that is currently
participating in the | ||||||
9 | Custodial Interview Pilot Program established under the
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10 | Illinois Criminal Justice Information Act; and
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11 | (m) An electronic recording, including but not limited to, | ||||||
12 | a motion picture,
videotape, digital, or other visual or audio | ||||||
13 | recording, made of the interior of a school bus while the | ||||||
14 | school bus is being used in the transportation of students to | ||||||
15 | and from school and school-sponsored activities, when the | ||||||
16 | school board has adopted a policy authorizing such recording, | ||||||
17 | notice of such recording policy is included in student | ||||||
18 | handbooks and other documents including the policies of the | ||||||
19 | school, notice of the policy regarding recording is provided to | ||||||
20 | parents of students, and notice of such recording is clearly | ||||||
21 | posted on the door of and inside the school bus.
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22 | Recordings made pursuant to this subsection (m) shall be | ||||||
23 | confidential records and may only be used by school officials | ||||||
24 | (or their designees) and law enforcement personnel for | ||||||
25 | investigations, school disciplinary actions and hearings, | ||||||
26 | proceedings under the Juvenile Court Act of 1987, and criminal |
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1 | prosecutions, related to incidents occurring in or around the | ||||||
2 | school bus ; . | ||||||
3 | (n)
(m) Recording or listening to an audio transmission | ||||||
4 | from a microphone placed by a person under the authority of a | ||||||
5 | law enforcement agency inside a bait car surveillance vehicle | ||||||
6 | while simultaneously capturing a photographic or video image ; .
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7 | (o) With prior written request under oath to, and with | ||||||
8 | written approval of, the State's Attorney or any of his or her | ||||||
9 | designees of the county in which the conversation is | ||||||
10 | anticipated to occur, recording or listening with the aid of an | ||||||
11 | eavesdropping device to a conversation in which a law | ||||||
12 | enforcement officer, or any person acting at the direction of a | ||||||
13 | law enforcement officer, is a party to an undercover | ||||||
14 | conversation and has consented to the conversation being | ||||||
15 | intercepted or recorded in the course of an investigation of a | ||||||
16 | felony violation of the Illinois Controlled Substances Act, a | ||||||
17 | felony violation of the Cannabis Control Act, or a felony | ||||||
18 | violation of the Methamphetamine Control and Community | ||||||
19 | Protection Act, or conspiracies related to violations of any of | ||||||
20 | those Acts. The written request must have been submitted in the | ||||||
21 | name of the Superintendent of Police, Chief of Police, Director | ||||||
22 | of the Illinois State Police, or Sheriff, and must be | ||||||
23 | authorized and signed by him or her or by any of his or her | ||||||
24 | designees. The written request under oath must establish | ||||||
25 | reasonable cause for believing that an individual is | ||||||
26 | committing, has committed, or is about to commit any of the |
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1 | previously specified felony offenses, and that there is | ||||||
2 | reasonable cause for believing that particular conversations | ||||||
3 | concerning any of the previously specified felony offenses will | ||||||
4 | be obtained, and that the written request under oath contains | ||||||
5 | the information required
pursuant to Section 108A-3 of the Code | ||||||
6 | of Criminal Procedure of 1963. The written approval must be | ||||||
7 | signed by the State's Attorney or his or her designee and | ||||||
8 | specify that one party to the conversation has or will have | ||||||
9 | consented to the use of the device, there is reasonable cause | ||||||
10 | for believing that an individual is committing, has committed, | ||||||
11 | or is about to commit any of the previously specified felony | ||||||
12 | offenses, and there is reasonable cause for believing that | ||||||
13 | particular conversations concerning any of the previously | ||||||
14 | specified felony offenses will be obtained through such use of | ||||||
15 | such device. The State's Attorney's written approval | ||||||
16 | authorizing use of an eavesdropping device shall include and | ||||||
17 | specify all information required pursuant to Section 108A-5 of | ||||||
18 | the Code of Criminal Procedure of 1963, except that no written | ||||||
19 | approval under this Article may authorize the use of an | ||||||
20 | eavesdropping device for any period longer than 72 hours. A | ||||||
21 | subsequent written request under oath to, and written approval | ||||||
22 | of, the State's Attorney or any of his or her designees of the | ||||||
23 | county in which a conversation is anticipated to occur may be | ||||||
24 | made only after a judicial order pursuant to subsection (o-1) | ||||||
25 | of this Section has been granted. | ||||||
26 | (o-1) An application for a judicial order approving the |
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1 | State's Attorney's previous authorization of the use of an | ||||||
2 | eavesdropping device must be made to a Circuit Judge or an | ||||||
3 | Associate Judge of the county in which the conversation | ||||||
4 | occurred within 48 hours of the expiration of the 72-hour | ||||||
5 | period authorized in subsection (o). In the absence of such a | ||||||
6 | judicial order approving the State's Attorney's previous | ||||||
7 | authorization, or upon the denial of the judicial order, the | ||||||
8 | contents of the conversation overheard or recorded shall be | ||||||
9 | inadmissible as substantive evidence at any trial or hearing. | ||||||
10 | To approve the State's Attorney's previous authorization, the | ||||||
11 | Circuit Judge or Associate Judge must make the determination | ||||||
12 | and issue a written order that one party to the recorded | ||||||
13 | conversation consented to the use of the eavesdropping device, | ||||||
14 | there was reasonable cause for believing that an individual was | ||||||
15 | committing, had committed, or was about to commit any of
the | ||||||
16 | previously specified felony offenses, and there was reasonable | ||||||
17 | cause for believing that particular conversations concerning | ||||||
18 | any of the previously specified felony offenses would have been | ||||||
19 | obtained through use of an eavesdropping device, and that the | ||||||
20 | judge would have granted an order had the information been | ||||||
21 | before the court prior to the use of the device. | ||||||
22 | (o-2) The retention and review of recordings, notice to | ||||||
23 | parties overheard, motion to suppress contents of recordings, | ||||||
24 | appeal by State, and reports concerning use of eavesdropping | ||||||
25 | devices under this Article shall be governed by the provisions | ||||||
26 | of Sections 108A-7, 108A-8, 108A-9, 108A-10, and 108A-11 of the |
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1 | Code of Criminal Procedure of 1963. | ||||||
2 | (o-3) Whenever any wire, electronic, or oral communication | ||||||
3 | has been intercepted as a result of this exception that is not | ||||||
4 | related to felony violations of the Illinois Controlled | ||||||
5 | Substances Act, felony violations of the Cannabis Control Act, | ||||||
6 | or felony violations of the Methamphetamine Control and | ||||||
7 | Community Protection Act and conspiracies related to | ||||||
8 | violations of any of those Acts, no part of the contents of the | ||||||
9 | communication and no evidence derived from the communication | ||||||
10 | may be received in evidence in any trial, hearing, or other | ||||||
11 | proceeding in or before any court, grand jury, department, | ||||||
12 | officer, agency, regulatory body, legislative committee, or | ||||||
13 | other authority of this State, or a political subdivision of | ||||||
14 | this State if the disclosure of that information would be in | ||||||
15 | violation of this Article. The Director of State Police shall | ||||||
16 | issue rules as necessary concerning the use of devices and | ||||||
17 | reports regarding their use; and | ||||||
18 | (p) The use of eavesdropping cameras or audio devices | ||||||
19 | intended to ensure the safety of the general public or any law | ||||||
20 | enforcement officer in incidents involving hostages or | ||||||
21 | barricaded subjects. | ||||||
22 | (q) Notwithstanding any other rulemaking authority that | ||||||
23 | may exist, neither the Governor nor any agency or agency head | ||||||
24 | under the jurisdiction of the Governor has any authority to | ||||||
25 | make or promulgate rules to implement or enforce the provisions | ||||||
26 | of this amendatory Act of the 95th General Assembly. If, |
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1 | however, the Governor believes that rules are necessary to | ||||||
2 | implement or enforce the provisions of this amendatory Act of | ||||||
3 | the 95th General Assembly, the Governor may suggest rules to | ||||||
4 | the General Assembly by filing them with the Clerk of the House | ||||||
5 | and the Secretary of the Senate and by requesting that the | ||||||
6 | General Assembly authorize such rulemaking by law, enact those | ||||||
7 | suggested rules into law, or take any other appropriate action | ||||||
8 | in the General Assembly's discretion. Nothing contained in this | ||||||
9 | amendatory Act of the 95th General Assembly shall be | ||||||
10 | interpreted to grant rulemaking authority under any other | ||||||
11 | Illinois statute where such authority is not otherwise | ||||||
12 | explicitly given. For the purposes of this Section, "rules" is | ||||||
13 | given the meaning contained in Section 1-70 of the Illinois | ||||||
14 | Administrative Procedure Act, and "agency" and "agency head" | ||||||
15 | are given the meanings contained in Sections 1-20 and 1-25 of | ||||||
16 | the Illinois Administrative Procedure Act to the extent that | ||||||
17 | such definitions apply to agencies or agency heads under the | ||||||
18 | jurisdiction of the Governor. | ||||||
19 | (Source: P.A. 94-556, eff. 9-11-05; 95-258, eff. 1-1-08; | ||||||
20 | 95-352, eff. 8-23-07; 95-463, eff. 6-1-08; revised | ||||||
21 | 11-19-07.)".
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