HB2558sam001 97TH GENERAL ASSEMBLY

Sen. Pamela J. Althoff

Filed: 10/27/2011

09700HB2558sam001 LRB097 07783 KMW 59046 a

AMENDMENT TO HOUSE BILL 2558

AMENDMENT NO. ______. Amend House Bill 2558 by replacing everything after the enacting clause with the following:

"Section 5. 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) When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying. Subject to this requirement, the following shall be exempt from inspection and copying:

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

(b) Private information, unless disclosure is required by another provision of this Act, a State or federal law or a court order.

(b-5) Files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.

(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. "Unwarranted invasion of personal privacy" means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining 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.

(d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, 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 that is the recipient of the request;

(ii) interfere with active administrative enforcement proceedings conducted by the public body that is the recipient of the request;

(iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing;

(iv) unavoidably disclose the identity of a confidential source, confidential information furnished only by the confidential source, or persons who file complaints with or provide information to administrative, investigative, law enforcement, or penal agencies; except that the identities of witnesses to traffic accidents, traffic accident reports, and rescue reports shall be provided by agencies of local government, except when disclosure would interfere with an active criminal investigation conducted by the agency that is the recipient of the request;

(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, and disclosure would result in demonstrable harm to the agency or public body that is the recipient of the request;

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

(vii) obstruct an ongoing criminal investigation by the agency that is the recipient of the request.

(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 commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.

The information included under this exemption includes 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) The following information pertaining to educational matters:

(i) test questions, scoring keys and other examination data used to administer an academic examination;

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

(iii) 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; and

(iv) course materials or research materials used by faculty members.

(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, including but not limited to 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.

(l) 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.

(m) 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.

(n) 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.

(o) 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.

(p) Records 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.

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

(r) 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 the Eminent Domain Act, 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.

(s) 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. 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.

(t) 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.

(u) 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.

(v) 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.

(w) (Blank).

(x) Maps and other records regarding the location or security of generation, transmission, distribution, storage, gathering, treatment, or switching facilities owned by a utility, by a power generator, or by the Illinois Power Agency.

(y) Information contained in or related to proposals, bids, or negotiations related to electric power procurement under Section 1-75 of the Illinois Power Agency Act and Section 16-111.5 of the Public Utilities Act that is determined to be confidential and proprietary by the Illinois Power Agency or by the Illinois Commerce Commission.

(z) Information about students exempted from disclosure under Sections 10-20.38 or 34-18.29 of the School Code, and information about undergraduate students enrolled at an institution of higher education exempted from disclosure under Section 25 of the Illinois Credit Card Marketing Act of 2009.

(aa) Information the disclosure of which is exempted under the Viatical Settlements Act of 2009.

(bb) Records and information provided to a mortality review team and records maintained by a mortality review team appointed under the Department of Juvenile Justice Mortality Review Team Act.

(cc) Information regarding interments, entombments, or inurnments of human remains that are submitted to the Cemetery Oversight Database under the Cemetery Care Act or the Cemetery Oversight Act, whichever is applicable.

(dd) Correspondence and records (i) that may not be disclosed under Section 11-9 of the Public Aid Code or (ii) that pertain to appeals under Section 11-8 of the Public Aid Code.

(ee) (dd) The names, addresses, or other personal information of persons who are minors and are also participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations.

(ff) (ee) The names, addresses, or other personal information of participants and registrants in programs of park districts, forest preserve districts, conservation districts, recreation agencies, and special recreation associations where such programs are targeted primarily to minors.

(gg) Matters under seal pursuant to subsection (f) of Section 3-9008 of the Counties Code.

(2) A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.

(3) 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. 96-261, eff. 1-1-10; 96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10; 96-736, eff. 7-1-10; 96-863, eff. 3-1-10; 96-1378, eff. 7-29-10; 97-333, eff. 8-12-11; 97-385, eff. 8-15-11; 97-452, eff. 8-19-11; revised 9-2-11.)

Section 10. The Counties Code is amended by changing Section 3-9008 as follows:

(55 ILCS 5/3-9008) (from Ch. 34, par. 3-9008)

Sec. 3-9008. Appointment of attorney to perform duties of the State's attorney.

(a) Appointment of attorney to perform duties. Upon the filing of a verified petition alleging that a State's Attorney is unable to perform at least one of the duties of his or her office either by an officer of the court or by any resident of a county where the State's Attorney serves, the court shall determine whether there are sufficient facts that justify the appointment of a competent attorney or attorneys to serve as special prosecutors to perform those duties of the State's Attorney. Upon notice to the State's Attorney and an opportunity to be heard, the court may rule either based upon the pleadings or by conducting a hearing. If the court determines by clear and convincing evidence that the State's Attorney is unable to perform at least one of the duties of his or her office, the court shall appoint a special prosecutor or prosecutors and define the scope and duration of their appointment. A verified pleading filed by the State's Attorney agreeing to the appointment of a special prosecutor shall be sufficient evidence as to the necessity for the appointment of a special prosecutor or prosecutors.

(b) In appointing a special prosecutor or prosecutors based upon a petition alleging an inability of the State's Attorney to perform his or her duties as to particular matters because he or she has a conflict of interest, either actual or by appearance, the court shall give preference to attorneys of any existing State or local prosecutorial agencies that are willing and able to serve as appointed special prosecutors, without additional compensation, except as to expenses and experts, and shall appoint such an attorney unless the court makes a specific finding that no such attorney is available or that the interests of justice clearly necessitate the appointment of a special prosecutor unconnected with an existing prosecutorial agency. Upon such a finding, the court may appoint other private counsel as it deems necessary, subject to the provisions of subsection (d) of this Section.

(c) In appointing a special prosecutor or prosecutors based upon a petition alleging a declared vacancy in office or an inability of the State's Attorney to perform his or her duties generally due to an absence from the county or because he or she is otherwise unavailable for an extended period of time, or because the State's Attorney is suffering from a physical, mental, or legal disability that impairs his or her ability to substantially perform his or her duties, the court may appoint a special prosecutor or prosecutors who shall be authorized to act as the State's Attorney until (i) the elected State's Attorney files a petition alleging that the circumstances justifying the order of appointment of a special prosecutor have abated or (ii) a vacancy is declared in the office of State's Attorney and subsequently filled in accordance with the provisions of the Election Code. Upon a determination of the court that the allegations contained with the provisions of the State's Attorney's petition are proven by a preponderance of the evidence or that the vacancy has been filled in accordance with the Election Code, the court shall issue an order terminating the appointment of the special prosecutor or prosecutors and re-authorizing the State's Attorney to resume his or her duties.

(d) Representation budgets. When the court appoints counsel as provided in subsection (b) of this Section other than an appointment of an attorney from an existing State or local prosecutorial agency, it shall require the special prosecutor, after he or she has had adequate time to review the scope of his or her appointment and prior to initiating representation, to submit a proposed estimated budget for court approval, that will be subject to modification in light of facts that emerge as the case proceeds. The budget shall be submitted ex parte and filed and maintained under seal in order to protect the interests of the State. Petitions for compensation of the special prosecutors shall be as provided under subsection (e) of this Section. An order of the court regarding a proposed budget shall be a final and appealable order.

The budget shall be incorporated into a sealed initial pretrial order that reflects the understandings of the court and special prosecutor regarding all matters affecting the special prosecutor's compensation and reimbursement and payments for investigative, expert, and other services, including but not limited to, the following matters:

(1) the hourly rate at which the special prosecutor will be compensated;

(2) the hourly rate and anticipated time that private investigators, experts, and other support staff, including any potential subcontractors, will be contracted, other than investigators and experts employed by law enforcement or other agencies of government; along with an explanation as to why the use of existing law enforcement agencies is not adequate; and

(3) the best preliminary estimate that can be made of the cost of all services, including but not limited to, attorneys, experts, support staff, and investigative services that are likely to be needed through the completion of the representation; the court shall have discretion to require that budgets be prepared for shorter intervals of time.

Attorneys appointed under this Section may obtain, subject to later review, investigative, expert, or other services without prior authorization if necessary for adequate representation. If those services are obtained, the presiding judge or the presiding judge's designee shall consider in a closed ex parte proceeding that timely procurement of necessary services could not await prior authorization. If an ex parte hearing is requested by the special prosecutor or deemed necessary by the judge prior to modifying a budget, an ex parte hearing shall be held. The judge may then approve payment as if previously budgeted. If the judge finds that the services could have been reasonably provided by existing law enforcement agencies or were not otherwise reasonable, payment shall be reduced or denied.

An approved budget shall guide the special prosecutor's use of time and resources by indicating the services for which compensation is authorized. The representation budget shall be re-evaluated when justified by changed or unexpected circumstances and shall be modified by the court when reasonable and necessary for an adequate representation. If a closed ex parte hearing is requested by the special prosecutor or deemed necessary by the appointing judge prior to modifying a budget, the ex parte hearing shall be held before the appointing judge.

Special prosecutors may periodically during the course of representation petition the Court for payment of reasonable and necessary expenses including, but not limited to, travel, support staff, copying, investigatory and other assistance, expert, forensic, and other witnesses. The Court shall not authorize payment of bills that are not properly itemized. Travel expenses must be paid at the rate as established by the county or by rules promulgated by the Central Management Services for those expenses, whichever is less, for the date and location in which they were incurred, unless extraordinary reasons are shown for the difference. If the expenses are in excess of the promulgated rate or in excess of the budgeted amounts, the court must make a specific finding that the expenses were reasonable and necessary to the representation.

The court shall issue a written order approving the petition for payment or with written objections under seal. The petitioner has 7 days from his or her receipt of the objections by the court to file a sealed response. With or without a closed ex parte hearing, the court must promptly rule on the objections. An order of the court regarding a petition for certification of expenses shall be a final and appealable order.

(e) Compensation of special prosecutors. Special prosecutors appointed under the provisions of subsection (b) of this Section shall be compensated upon presentment and written certification by the court of a claim for payment for services, detailing the date, activity, and time duration for which compensation is sought. Compensation for special prosecutors shall be consistent with the approved representation budget and may be paid at a reasonable rate not to exceed $165 per hour.

Special prosecutors appointed under the provisions of subsection (c) of this Section shall be compensated upon presentment to and certification by the court of a claim for services detailing the date, activities, and time duration for which compensation is sought. Upon appointment, the court shall determine the hourly rate of compensation applicable to the appointment. In determining the hourly rate, the court shall consider the annual salary for a sworn State's Attorney in the county and divide that sum by the number of hours regularly worked within the county during the usual pay period. However, in no event shall the compensation for a special prosecutor exceed one-twelfth of the annual salary of the State's Attorney in the county within any calendar month. Subject to other provisions of law, all compensation due and owing to the sworn State's Attorney shall be tolled pending the issuance of a subsequent court order re-authorizing the sworn State's Attorney to resume his or her duties. A request for payment shall be presented under the provisions of subsection (f).

(f) Hearings. All hearings on establishment and modification of a proposed budget, payment of expenses, or compensation shall be closed and except as provided herein, conducted ex parte, with a court reporter present.

The county may petition the court for appointment of a legal representative solely on the issue of protecting the county's financial interests. Unless the court determines that good cause exists to deny the appointment, a legal representative shall be appointed and have standing before the court as to the adoption and modification of a proposed budget, as well as payments either pursuant to the budget or otherwise. If the court conducts an ex parte hearing, the county's legal representative shall be permitted to notice and an opportunity to be heard. In addition, the county shall be entitled to appeal any final order of the court as to these matters. Subject to court approval, the county's legal representative shall not disclose the contents of any sealed document or subject matter of any closed ex parte hearing.

All pleadings and attachments filed pursuant this subsection shall be under seal. In exercising his or her rights under this Section, the county's legal representative shall be permitted to inspect any petitions or attachments filed by the special prosecutor under seal and file objections under seal thereto. Subject to court approval, the county's legal representative may obtain a copy of petitions or attachments filed by the special prosecutor. Matters submitted under seal shall remain so, until the appointing court certifies that the subject of the appointment has concluded. Matters under seal are not subject to the Freedom of Information Act. Whenever the State's attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the State's attorney would have had if present and attending to the same, and in case of a vacancy of more than one year occurring in any county in the office of State's attorney, by death, resignation or otherwise, and it becomes necessary for the transaction of the public business, that some competent attorney act as State's attorney in and for such county during the period between the time of the occurrence of such vacancy and the election and qualification of a State's attorney, as provided by law, the vacancy shall be filled upon the written request of a majority of the circuit judges of the circuit in which is located the county where such vacancy exists, by appointment as provided in The Election Code of some competent attorney to perform and discharge all the duties of a State's attorney in the said county, such appointment and all authority thereunder to cease upon the election and qualification of a State's attorney, as provided by law. Any attorney appointed for any reason under this Section shall possess all the powers and discharge all the duties of a regularly elected State's attorney under the laws of the State to the extent necessary to fulfill the purpose of such appointment, and shall be paid by the county he serves not to exceed in any one period of 12 months, for the reasonable amount of time actually expended in carrying out the purpose of such appointment, the same compensation as provided by law for the State's attorney of the county, apportioned, in the case of lesser amounts of compensation, as to the time of service reasonably and actually expended.

(Source: P.A. 86-962.)".