HB4088sam001 96TH GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 5/17/2009

09600HB4088sam001 LRB096 09577 MJR 26958 a

AMENDMENT TO HOUSE BILL 4088

AMENDMENT NO. ______. Amend House Bill 4088 by replacing everything after the enacting clause with the following:

"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:

"Agency" means any State agency or local agency.

"Individual" means a natural person.

"Local agency" means any municipality, unit of local government, county, school district, special purpose district, or township of the State or any elected officer or board, bureau, commission, department, division, institution, or instrumentality thereof.

"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 an agency: 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.

"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.

"State agency" means the office of any elected State officer and any agency, board, commission, department, division, or educational institution of the State.

"System of records" means a group of any records under the control of any agency 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, an agency 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 agency, 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 agency provides to the individual, within the initial 10 working days, a written explanation of unusual circumstances causing the delay.

(b) Each agency 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 agency shall provide a translation into common terms of any machine readable code or any code or abbreviation employed for internal agency use.

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

(1) Maintained by an agency 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 agency 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 an agency 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 agency 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 agency 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 agency for the individual to request a review by the head of the agency or an official specifically designated by the head of the agency of the decision not to make the change, and the name, title, and business address of the reviewing official.

(b) Each agency shall permit any individual who disagrees with the decision of the agency not to make the change to a personal record to request a review of such decision by the head of the agency or an official specifically designated by the head of the agency, 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 agency 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 agency shall permit the individual to file with the agency a statement of no more than 1,500 words setting forth the reasons for the individual's disagreement.

(d) If the agency 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 agency shall clearly note in the record that a statement has been filed and, upon request, make a copy of the statement available. The agency may provide a concise statement of the reasons of the agency for not changing the record.

Section 25. Limitations on an agency's disclosure of an individual's personal records. No agency shall disclose any personal record by any means of communication to any person, or to another agency, 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 agency 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 agency 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 agency 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 agency or instrumentality has made a written request to the agency 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 an agency's maintenance of systems of personal records. Each agency 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 agency 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) the categories of records maintained in the system;

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

(E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;

(F) the title and business address of the agency official who is responsible for the system of records;

(G) the agency procedures whereby an individual can be notified at his or her request if the system of records contains a record pertaining to him or her;

(H) the agency procedures whereby an individual can be notified at his or her request how he or she can gain access to any record pertaining to him or her contained in the system of records, and how he or she may contest its content; and

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

(4) Maintain all records that are used by the agency 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 an agency, 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 agency 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 an agency's maintenance of an individual's personal records. An agency 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 an agency in a circuit court of the State whenever an agency 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 agency to disclose, correct, or amend the individual's personal record;

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

(3) order the agency 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.

(c) In any action brought by an individual under this Section in which the court determines that the agency knowingly or intentionally violated a provision of this Act, the agency 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 agency 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.

(d) An action may be brought against a State agency in the circuit court for the county where the State agency has its principal office or where the complainant resides. An action may be brought against a local agency in the circuit court for the county where the local agency is located. No action shall be brought later than 2 years after notification of the agency denial or, where applicable, the date of receipt of the final determination of the office of information practices.

(e) 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.

(f) Notwithstanding any other provision of this Act, no fees, costs, or damages may be assessed against an agency for a violation of Section 25 of this Act arising from the agency's disclosure of records pursuant to the Freedom of Information Act, unless the plaintiff can prove that the agency 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.

(g) 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 agency the amount of reasonable expenses incurred because of the filing of the action, including reasonable attorney fees.

(h) 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 agency of the precise information in the personal record to which the individual objects, and the agency having an opportunity to decide whether to remove or amend the disputed information.

Section 45. Agency responsibilities. Each agency 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. Attorney General responsibilities. The Office of the Attorney General of Illinois:

(1) shall biennially submit to the Speaker of the House of Representatives and the President of the Senate a report:

(A) describing the actions of the Attorney General pursuant to this Section during the preceding 2 years;

(B) describing the exercise of individual rights of access and amendment under this Section during those years;

(C) identifying changes in or additions to systems of records; and

(D) containing such other information concerning administration of this Section as may be necessary or useful to the General Assembly in reviewing the effectiveness of this Section in carrying out the purposes of this Act;

(2) may, upon request by any person, provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of agencies under this Act; and

(3) shall receive complaints from and actively solicit the comments of the public regarding the implementation of this Act.

Section 55. Government contractors. If an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, then the agency shall, consistent with its authority, cause the requirements of this Section to be applied to that system.

Section 60. 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.".