HB6053 96TH GENERAL ASSEMBLY

LRB096 20797 MJR 36555 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB6053

Introduced 2/10/2010, by Rep. Barbara Flynn Currie

SYNOPSIS AS INTRODUCED:

New Act

Creates the Illinois Accurate Government Records Act. Sets forth the findings of the General Assembly. Contains provisions concerning the access to an individual's personal records, changes to an individual's personal records, the limitations on a public body's disclosure of an individual's personal records, the limitations on a public body's maintenance of systems of personal records, the limitations on a public body's maintenance of an individual's personal records, and the rights of legal guardians. Specifies the responsibilities of a public body under the Act.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning government records.

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 Illinois Accurate Government Records Act.

Section 5. Findings. The General Assembly makes the following findings:

(1) The right to privacy is being threatened by the indiscriminate collection, maintenance, and dissemination of personal information and the lack of effective laws and legal remedies.

(2) The increasing use of computers and other sophisticated information technology has greatly magnified the potential risk to individual privacy that can occur from the maintenance of personal information.

(3) In order to protect the privacy of individuals, it is necessary that the maintenance and dissemination of personal information be subject to strict limits.

Section 10. Definitions. For purposes of this Act:

"Copy" means the reproduction of any personal record by means of any photographic, electronic, mechanical, or other process, device, or means now known or hereafter developed and available to the public body.

"Individual" means a natural person.

"Maintain" means to maintain, collect, use, or disseminate.

"Personal record" includes, but is not limited to, the following information about an individual that is maintained by a public body: the individual's education, financial, medical, or employment history, or items that contain or make reference to the individual's name, identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. "Personal record" does not include any record under the Personnel Record Review Act or the School Student Record Act.

"Public body" means all legislative, executive, administrative, or advisory bodies of the State, State universities and colleges, counties, townships, cities, villages, incorporated towns, school districts, and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing, including, but not limited to, committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. "Public body" does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act or the legislative offices of members of the General Assembly.

"Routine use" means, with respect to the disclosure of a record, the use of the record for a purpose that is compatible with the purpose for which it was collected.

"System of records" means a group of any records under the control of any public body from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to that individual.

Section 15. Access to an individual's personal records.

(a) Upon the request of an individual to gain access to the individual's personal record, a public body shall permit the individual to review the record and have a copy made within 10 working days after the date of receipt of the request by the public body, unless the personal record requested is exempted under subsection (c) to this Section. The 10-day period may be extended for an additional 20 working days if the public body provides to the individual, within the initial 10 working days, a written explanation of unusual circumstances causing the delay.

(b) Each public body that maintains any accessible personal record shall make that record available to the individual to whom it pertains in a reasonably intelligible form. Where necessary the public body shall provide a translation into common terms of any machine readable code or any code or abbreviation employed for internal public body use.

(c) A public body is not required under this Section to grant an individual access to personal records or information in records:

(1) Maintained by a public body that performs as its or as a principal function any activity pertaining to the prevention, control, or reduction of crime, including, but not limited to, State and local police departments, and which consist of:

(A) information or reports prepared or compiled for the purpose of criminal intelligence or of a criminal investigation, including reports of informers, witnesses, and investigators; or

(B) reports prepared or compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through confinement, correctional supervision, and release from supervision.

(2) The disclosure of which would reveal the identity of a source who furnished information to the public body under an express or implied promise of confidentiality.

(3) Consisting of testing or examination material or scoring keys used solely to determine individual qualifications for appointment or promotion in public employment, or used as or to administer a licensing examination or an academic examination, the disclosure of which would compromise the objectivity, fairness, or effectiveness of the testing or examination process.

(4) Including investigative reports and materials, related to an upcoming, ongoing, or pending civil or criminal action or administrative proceeding against the individual.

(5) Required to be withheld from the individual to whom it pertains by statute or judicial decision or authorized to be so withheld by constitutional or statutory privilege.

(d) Nothing in this Section shall be construed to permit or require a public body to withhold or deny access to a personal record or any information in a personal record where any statute, administrative rule, rule of court, judicial decision, or other law authorizes or allows an individual to gain access to a personal record or to any information in a personal record or requires that the individual be given such access.

(e) For the State of Illinois, or a municipality having a population of 500,000 or more, or a county having a population of 3,000,000 or more, each department of the State, municipality, or county is a separate public body for purposes of this Section, and an individual's request to one department for access to his or her personal records shall not oblige that department to seek out any personal records of another department.

Section 20. Changes to an individual's personal records.

(a) Each public body shall permit an individual, after inspection, to request in writing a change to his or her personal record, and shall within 30 days after the date of receipt of such request:

(1) make each change in accordance with the individual's request of any portion of a personal record that the individual believes is not accurate, relevant, timely, or complete and inform the individual of the changes made in accordance with his or her request; or

(2) inform the individual of its decision not to change the personal record in accordance with such individual's request, the reason for the decision, the procedures established by the public body for the individual to request a review by the head of the public body or an official specifically designated by the head of the public body of the decision not to make the change, and the name, title, and business address of the reviewing official.

(b) Each public body shall permit any individual who disagrees with the decision of the public body not to make the change to a personal record to request a review of such decision by the head of the public body or an official specifically designated by the head of the public body, and, not later than 30 days after the date on which the individual requests such review, complete the review and make a final determination unless, for good cause shown, the head of the public body extends the review period by 30 days.

(c) If, after review, the reviewing official decides not to change the personal record in accordance with the request, the public body shall permit the individual to file with the public body a statement of no more than 1,500 words setting forth the reasons for the individual's disagreement.

(d) If the public body discloses to any person the portion of the record for which the individual has filed a statement of disagreement under subsection (c) of this Section, then the public body shall clearly note in the record that a statement has been filed and, upon request, make a copy of the statement available. The public body may provide a concise statement of the reasons of the public body for not changing the record.

Section 25. Limitations on a public body's disclosure of an individual's personal records. No public body shall disclose any personal record by any means of communication to any person, or to another public body, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be:

(1) to those officers and employees of the public body that maintains the record who have a need for the record in the performance of their duties;

(2) pursuant to and to the extent required by the Freedom of Information Act;

(3) for a routine use;

(4) to a recipient who has provided the public body with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(5) to the State archives as a record that has sufficient historical or other value to warrant its continued preservation;

(6) to another public body or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the public body or instrumentality has made a written request to the public body which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(7) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of the individual;

(8) to either chamber of the General Assembly, or, to the extent of matter within its jurisdiction, any committee or subcommittee of the General Assembly;

(9) to either the Comptroller or the Auditor General, or any of his or her authorized representatives, in the course of the performance of his or her duties;

(10) pursuant to the order of a court of competent jurisdiction; or

(11) to a consumer reporting agency as permitted or allowed by federal or State statute.

Section 30. Limitations on a public body's maintenance of systems of personal records. Each public body that maintains a system of records shall do all of the following:

(1) Maintain in its personal records only the information about an individual that is relevant and necessary to accomplish a purpose of the public body that is required or authorized by the Illinois Constitution or statute or mandated by the federal government.

(2) Collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under State programs.

(3) Post upon establishment or revision a notice of the existence and character of the system of records, which notice shall include the following:

(A) the name and location of the system;

(B) the categories of individuals on whom records are maintained in the system;

(C) each routine use of the records contained in the system, including the categories of users and the purpose of such use;

(D) the title and business address of the agency official who is responsible for compliance with this Act; and

(E) the categories of sources of records in the system.

(4) Maintain all records that are used by the public body in making any determination about any individual with accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual in the determination.

(5) Prior to disseminating any record about an individual to any person other than a public body, unless the dissemination is made pursuant to the Freedom of Information Act, make reasonable efforts to ensure that the records are accurate, complete, timely, and relevant for public body purposes.

(6) Establish rules of conduct for persons involved in the design, development, operation, disclosure, or maintenance of records containing personal information and instruct each person with respect to such rules and the requirements of this Act, including any other rules and procedures adopted pursuant to this Act, and the remedies and penalties for noncompliance.

(7) Establish appropriate and reasonable administrative, technical, and physical safeguards to ensure compliance with the provisions of this Act, to ensure the security and confidentiality of records, and to protect against anticipated threats or hazards to their security or integrity that could result in any injury.

Section 35. Limitations on a public body's maintenance of an individual's personal records. A public body shall maintain no personal record, whether or not the personal record is part of a system of records, describing how any individual exercises rights guaranteed by the First Amendment to the United States Constitution or Sections 3, 4, or 5 of Article I of the Illinois Constitution, unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.

Section 40. Civil remedies.

(a) An individual may bring a civil action against a public body in a circuit court of the State whenever a public body fails to comply with any provision of this Act, and after appropriate administrative remedies have been exhausted.

(b) In any action brought by an individual under this Section, the court may:

(1) order the public body to disclose, correct, or amend the individual's personal record;

(2) issue an injunction to require any other action by the public body, or to enjoin the public body from improper actions, as the court may deem necessary and appropriate to render substantial relief; and

(3) order the public body to pay the individual all or a portion of the costs of maintaining the action, including reasonable attorney's fees, in any case in which the individual has prevailed under Section 15, 20, or 35 of this Act.

(c) In any action brought by an individual under this Section in which the court determines that the public body knowingly or intentionally violated a provision of this Act, the public body shall be liable to the individual in an amount equal to the sum of:

(1) actual damages sustained by the individual as a result of the failure of the public body to properly maintain the personal record, but in no case shall an individual entitled to recovery receive less than the sum of $1,000; and

(2) the costs of the action together with reasonable attorney's fees as determined by the court for a violation of Section 15, 20, or 35 of this Act.

(d) An action may be brought against a public body of the State in the circuit court for the county where the public body of the State has its principal office or where the complainant resides.

(e) An action may be brought against a municipal or other public body, except as provided in subsection (d) of this Section, in the circuit court for the county where the municipal or other public body is located.

(f) No action shall be brought later than 2 years after notification of the public body's denial.

(g) The rights and remedies set forth in this Act shall be deemed to be nonexclusive and are in addition to all those rights and remedies that are otherwise available under any other provision of law.

(h) Notwithstanding any other provision of this Act, no fees, costs, or damages may be assessed against a public body for a violation of Section 25 of this Act arising from the public body's disclosure of records pursuant to the Freedom of Information Act, unless the plaintiff can prove that the public body did not have an objectively reasonable basis in law or in fact to conclude that such disclosure was required by the Freedom of Information Act.

(i) If an individual brings any action under this Section that is not well grounded in fact, or is not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, then the court may impose an appropriate sanction upon the individual, which may include an order to pay the public body the amount of reasonable expenses incurred because of the filing of the action, including reasonable attorney's fees.

(j) For civil actions alleging violation of items (1) or (4) of Section 30 or Section 35 of this Act, the administrative exhaustion required by subsection (a) of this Section shall include the individual notifying the public body of the precise information in the personal record to which the individual objects, and the public body having an opportunity to decide whether to remove or amend the disputed information.

Section 45. Public body responsibilities. Each public body shall:

(1) issue instructions and guidelines necessary to effectuate this Act; and

(2) take steps to ensure that all its employees and officers responsible for the collection, maintenance, use, and dissemination of personal records are informed of the requirements of this Act.

Section 50. Rights of legal guardians. For the purposes of this Section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.