HB3289ham003 99TH GENERAL ASSEMBLY

Rep. Peter Breen

Filed: 4/20/2015

09900HB3289ham003 LRB099 07563 RLC 34560 a

AMENDMENT TO HOUSE BILL 3289

AMENDMENT NO. ______. Amend House Bill 3289, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Freedom from Automatic License Plate Reader Surveillance Act.

Section 5. Definitions. For the purpose of this Act:

"Alert" means information contained in databases maintained by the Secretary of State of this State or by federal, State, or local law enforcement agencies, and license plate numbers that have been manually entered into the ALPR system upon an officer's determination that the vehicles or individuals associated with the license plate numbers are relevant and material to an ongoing criminal or missing person investigation.

"Automatic license plate reader system" or "ALPR system" means a system of one or more mobile or fixed automatic high-speed cameras used in combination with computer algorithms to convert images of license plates into computer-readable data.

"Captured plate data" means the GPS coordinates, date and time, photograph, license plate number, and any other data captured by or derived from any ALPR system.

"Law enforcement agency" means any agency of this State or a unit of local government which is vested by law or ordinance with the duty to maintain public order and to enforce criminal laws and ordinances.

"Law enforcement officer" means any officer, agent, or employee of this State or a unit of local government authorized by law or by a government agency to engage in or supervise the prevention, detection, or investigation of any violation of criminal law, or authorized by law to supervise sentenced criminal offenders.

"Look-out order" means an order received or initiated by a law enforcement agency to look out for a particular person reasonably suspected of being a threat to public safety or engaged in criminal activity.

Section 10. Allowable uses of ALPR systems. Except as otherwise provided in this Section, a person acting under the color of State law may not use any ALPR system. An ALPR systems may be used:

(1) for electronic toll collection and enforcement of violations for non-payment of tolls;

(2) for traffic enforcement;

(3) by parking enforcement entities for regulating the use of parking facilities;

(4) for controlling access to secured areas that have clear boundaries, entry only through specific controlled points, and limited access;

(5) for the purpose of conducting criminal investigations upon an officer's determination that the vehicles or individuals associated with the license plate numbers are relevant and material to an ongoing criminal investigation; or

(6) by law enforcement agencies for the comparison of captured plate data with information contained in databases maintained by the Secretary of State of this State or by federal, State, or local law enforcement agencies, and with license plate numbers that have been manually entered into an ALPR system upon an officer's determination that the vehicles or individuals associated with the license plate numbers are relevant and material to an ongoing criminal or missing person investigation, for the purpose of identifying:

(A) vehicles that are stolen, or in violation of any registration or inspection requirements;

(B) persons who are missing, or the subject of an arrest warrant, look-out order, traffic citation, or parking citation; or

(C) vehicles that are relevant and material to an ongoing criminal investigation.

Section 15. Protections.

(a) Captured plate data obtained for the purposes described under paragraph (6) of Section 10 shall not be used, shared, sold, traded, or exchanged for any other purpose and shall not be preserved for more than 30 months by a law enforcement agency except it may be preserved for more than 30 months:

(1) under a preservation request under Section 20;

(2) under a disclosure order under Section 20;

(3) as part of an ongoing investigation provided that the captured plate data is confirmed as matching an alert and is destroyed at the conclusion of either:

(A) an investigation that does not result in any criminal charges being filed; or

(B) any criminal action undertaken in the matter involving the captured plate data.

(b) Any law enforcement agency that uses an ALPR system under paragraph (6) of Section 10 must update that system from the databases described in paragraph (6) of Section 10 at the beginning of each shift if the updates are available.

(c) Any law enforcement agency that uses an ALPR system under paragraph (6) of Section 10 may manually enter license plate numbers into the ALPR system only if an officer determines that the vehicle or individuals associated with the license plate numbers are relevant and material to an ongoing criminal or missing persons investigation and subject to the following limitations:

(1) any manual entry must document the reason for the entry; and

(2) manual entries must be purged after 48 hours, unless an officer determines that the vehicle or individuals associated with the license plate numbers continue to be relevant and material to an ongoing criminal or missing persons investigation.

(d) ALPR system captured plate data is not subject to disclosure under the Freedom of Information Act, unless the disclosure is consented to in writing by the individual subjects of the information.

Section 20. Preservation and disclosure.

(a) An operator of an automatic license plate reader system, upon the request of a law enforcement agency or a defendant in a criminal case, shall take all necessary steps to preserve captured plate data in its possession for 30 months pending the issuance of a court order under Section (b). A requesting governmental entity or defendant in a criminal case must specify in a written sworn statement:

(1) the particular camera or cameras for which captured plate data must be preserved or the particular license plate for which captured plate data must be preserved; and

(2) the date or dates and timeframes for which captured plate data must be preserved.

(b) A law enforcement agency or defendant in a criminal case may apply for a court order for disclosure of captured plate data which shall be issued by any court that is a court of competent jurisdiction if the law enforcement agency or defendant in a criminal case offers specific and articulable facts showing that there are reasonable grounds to believe that the captured plate data is relevant and material to an ongoing criminal or missing persons investigation or criminal prosecution.

(c) A law enforcement agency or defendant in a criminal case may apply for a court order for disclosure of private ALPR captured plate data if a warrant is issued for a forcible felony as defined in Section 2-8 of the Criminal Code of 2012, including first degree murder and child abduction, which shall be issued by any court of competent jurisdiction if the law enforcement agency or defendant in a criminal case offers specific and articulable facts showing that there are reasonable grounds to believe that the captured plate data is relevant and material to an ongoing criminal or missing persons investigation or criminal prosecution.

(d) Captured plate data held by a law enforcement agency shall be destroyed if the application for an order under Section (b) of this Section is denied or at the end of 30 months, whichever is later.

Section 25. Allowable uses of all other captured plate data. If an ALPR system captures plate information under paragraph (1), (2), (3), (4), or (5) of Section 10 of this Act, then the captured plate information:

(1) shall be used and disclosed only as necessary to achieve the purpose for which the information was captured and shall not be sold, traded, or exchanged for any other purpose;

(2) shall be destroyed within 48 hours of the completion of that purpose; and

(3) shall not be subject to disclosure under the Freedom of Information Act, unless the disclosure is consented to in writing by the individual subjects of the information.

Section 30. Use of privately held captured plate data.

(a) A law enforcement agency may obtain, receive, or use privately-held captured plate data for the purposes described in paragraph (3) of Section 10 only if the law enforcement agency accesses private automatic license plate reader system captured plate data for a time period of 30 months or fewer.

(b) A law enforcement agency may obtain, receive, or use privately-held captured plate data for the purposes described in paragraphs (5) and (6) of Section 10, and only if the law enforcement agency accesses private automatic license plate reader system captured plate data for a time period of 30 months or fewer.

Section 35. Admissibility. If a court finds by a preponderance of the evidence that captured plate information was gathered, stored, used, or disclosed in violation of this Act, then that information shall be presumed to be inadmissible in any judicial or administrative proceeding. The State may overcome this presumption by proving the applicability of a judicially recognized exception to the exclusionary rule of the Fourth Amendment to the United States Constitution or Article I, Section 6 of the Illinois Constitution, or by a preponderance of the evidence that the individual, partnership, corporation, association, or the law enforcement officer was acting in good faith and reasonably believed that one or more of the exceptions identified in Section 10 existed at the time that the captured plate information was gathered, stored, used, or disclosed.

Section 40. Policies and procedures. Any law enforcement agency that uses automatic license plate reader systems under Section 10 shall:

(1) adopt a policy governing use of the system and conspicuously post the policy on the law enforcement agency's Internet Web site;

(2) adopt a privacy policy to ensure that captured plate data is not shared in violation of this act or any other law and conspicuously post the privacy policy on the law enforcement agency's Internet Web site;

(3) adopt audit procedures relating to the use of ALPR system data; and

(4) adopt and periodically update a comprehensive training program for agency employees who use or have access to ALPR system data, which fully trains the employees on safeguards in the use of ALPR system data and procedures to adhere to policies and procedures governing the use of ALPR system data.

Section 100. 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; or .

(viii) disclose captured plate data as that term is defined in Section 5 of the Freedom from Automatic License Plate Reader Surveillance Act, unless the disclosure is consented to in writing by the individual subjects of the information.

(d-5) A law enforcement record created for law enforcement purposes and contained in a shared electronic record management system if the law enforcement agency that is the recipient of the request did not create the record, did not participate in or have a role in any of the events which are the subject of the record, and only has access to the record through the shared electronic record management system.

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

(e-5) Records requested by persons committed to the Department of Corrections if those materials are available in the library of the correctional facility where the inmate is confined.

(e-6) Records requested by persons committed to the Department of Corrections if those materials include records from staff members' personnel files, staff rosters, or other staffing assignment information.

(e-7) Records requested by persons committed to the Department of Corrections if those materials are available through an administrative request to the Department of Corrections.

(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) 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) 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) Confidential information described in Section 1-100 of the Illinois Independent Tax Tribunal Act of 2012.

(hh) The report submitted to the State Board of Education by the School Security and Standards Task Force under item (8) of subsection (d) of Section 2-3.160 of the School Code and any information contained in that report.

(1.5) Any information exempt from disclosure under the Judicial Privacy Act shall be redacted from public records prior to disclosure under this Act.

(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. 97-333, eff. 8-12-11; 97-385, eff. 8-15-11; 97-452, eff. 8-19-11; 97-783, eff. 7-13-12; 97-813, eff. 7-13-12; 97-847, eff. 9-22-12; 97-1065, eff. 8-24-12; 97-1129, eff. 8-28-12; 98-463, eff. 8-16-13; 98-578, eff. 8-27-13; 98-695, eff. 7-3-14.)".