Full Text of HB3378 97th General Assembly
HB3378 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB3378 Introduced 2/24/2011, by Rep. Randy Ramey, Jr. SYNOPSIS AS INTRODUCED: |
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5 ILCS 120/2 | from Ch. 102, par. 42 |
5 ILCS 140/7 | from Ch. 116, par. 207 |
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Amends the Open Meetings Act. Authorizes a public body to hold a closed meeting to discuss correspondence and records (i) that may not be disclosed under a specific portion of the Public Aid Code or (ii) that pertain to appeals conducted a specific provision of the Public Aid Code. Amends the Freeom of Information Act. Exempts those types of correspondence and records from the Act's inspection and copying requirements. Effective immediately.
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| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 1 | | AN ACT concerning government.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Open Meetings Act is amended by changing | 5 | | Section 2 as follows:
| 6 | | (5 ILCS 120/2) (from Ch. 102, par. 42)
| 7 | | Sec. 2. Open meetings.
| 8 | | (a) Openness required. All meetings of public
bodies shall | 9 | | be open to the public unless excepted in subsection (c)
and | 10 | | closed in accordance with Section 2a.
| 11 | | (b) Construction of exceptions. The exceptions contained | 12 | | in subsection
(c) are in derogation of the requirement that | 13 | | public bodies
meet in the open, and therefore, the exceptions | 14 | | are to be strictly
construed, extending only to subjects | 15 | | clearly within their scope.
The exceptions authorize but do not | 16 | | require the holding of
a closed meeting to discuss a subject | 17 | | included within an enumerated exception.
| 18 | | (c) Exceptions. A public body may hold closed meetings to | 19 | | consider the
following subjects:
| 20 | | (1) The appointment, employment, compensation, | 21 | | discipline, performance,
or dismissal of specific | 22 | | employees of the public body or legal counsel for
the | 23 | | public body, including hearing
testimony on a complaint |
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| 1 | | lodged against an employee of the public body or
against | 2 | | legal counsel for the public body to determine its | 3 | | validity.
| 4 | | (2) Collective negotiating matters between the public | 5 | | body and its
employees or their representatives, or | 6 | | deliberations concerning salary
schedules for one or more | 7 | | classes of employees.
| 8 | | (3) The selection of a person to fill a public office,
| 9 | | as defined in this Act, including a vacancy in a public | 10 | | office, when the public
body is given power to appoint | 11 | | under law or ordinance, or the discipline,
performance or | 12 | | removal of the occupant of a public office, when the public | 13 | | body
is given power to remove the occupant under law or | 14 | | ordinance.
| 15 | | (4) Evidence or testimony presented in open hearing, or | 16 | | in closed
hearing where specifically authorized by law, to
| 17 | | a quasi-adjudicative body, as defined in this Act, provided | 18 | | that the body
prepares and makes available for public | 19 | | inspection a written decision
setting forth its | 20 | | determinative reasoning.
| 21 | | (5) The purchase or lease of real property for the use | 22 | | of
the public body, including meetings held for the purpose | 23 | | of discussing
whether a particular parcel should be | 24 | | acquired.
| 25 | | (6) The setting of a price for sale or lease of | 26 | | property owned
by the public body.
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| 1 | | (7) The sale or purchase of securities, investments, or | 2 | | investment
contracts.
| 3 | | (8) Security procedures and the use of personnel and
| 4 | | equipment to respond to an actual, a threatened, or a | 5 | | reasonably
potential danger to the safety of employees, | 6 | | students, staff, the public, or
public
property.
| 7 | | (9) Student disciplinary cases.
| 8 | | (10) The placement of individual students in special | 9 | | education
programs and other matters relating to | 10 | | individual students.
| 11 | | (11) Litigation, when an action against, affecting or | 12 | | on behalf of the
particular public body has been filed and | 13 | | is pending before a court or
administrative tribunal, or | 14 | | when the public body finds that an action is
probable or | 15 | | imminent, in which case the basis for the finding shall be
| 16 | | recorded and entered into the minutes of the closed | 17 | | meeting.
| 18 | | (12) The establishment of reserves or settlement of | 19 | | claims as provided
in the Local Governmental and | 20 | | Governmental Employees Tort Immunity Act, if
otherwise the | 21 | | disposition of a claim or potential claim might be
| 22 | | prejudiced, or the review or discussion of claims, loss or | 23 | | risk management
information, records, data, advice or | 24 | | communications from or with respect
to any insurer of the | 25 | | public body or any intergovernmental risk management
| 26 | | association or self insurance pool of which the public body |
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| 1 | | is a member.
| 2 | | (13) Conciliation of complaints of discrimination in | 3 | | the sale or rental
of housing, when closed meetings are | 4 | | authorized by the law or ordinance
prescribing fair housing | 5 | | practices and creating a commission or
administrative | 6 | | agency for their enforcement.
| 7 | | (14) Informant sources, the hiring or assignment of | 8 | | undercover personnel
or equipment, or ongoing, prior or | 9 | | future criminal investigations, when
discussed by a public | 10 | | body with criminal investigatory responsibilities.
| 11 | | (15) Professional ethics or performance when | 12 | | considered by an advisory
body appointed to advise a | 13 | | licensing or regulatory agency on matters
germane to the | 14 | | advisory body's field of competence.
| 15 | | (16) Self evaluation, practices and procedures or | 16 | | professional ethics,
when meeting with a representative of | 17 | | a statewide association of which the
public body is a | 18 | | member.
| 19 | | (17) The recruitment, credentialing, discipline or | 20 | | formal peer review
of physicians or other
health care | 21 | | professionals for a hospital, or
other institution | 22 | | providing medical care, that is operated by the public | 23 | | body.
| 24 | | (18) Deliberations for decisions of the Prisoner | 25 | | Review Board.
| 26 | | (19) Review or discussion of applications received |
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| 1 | | under the
Experimental Organ Transplantation Procedures | 2 | | Act.
| 3 | | (20) The classification and discussion of matters | 4 | | classified as
confidential or continued confidential by | 5 | | the State Government Suggestion Award
Board.
| 6 | | (21) Discussion of minutes of meetings lawfully closed | 7 | | under this Act,
whether for purposes of approval by the | 8 | | body of the minutes or semi-annual
review of the minutes as | 9 | | mandated by Section 2.06.
| 10 | | (22) Deliberations for decisions of the State
| 11 | | Emergency Medical Services Disciplinary
Review Board.
| 12 | | (23) The operation by a municipality of a municipal | 13 | | utility or the
operation of a
municipal power agency or | 14 | | municipal natural gas agency when the
discussion involves | 15 | | (i) contracts relating to the
purchase, sale, or delivery | 16 | | of electricity or natural gas or (ii) the results
or | 17 | | conclusions of load forecast studies.
| 18 | | (24) Meetings of a residential health care facility | 19 | | resident sexual
assault and death review
team or
the | 20 | | Executive
Council under the Abuse Prevention Review
Team | 21 | | Act.
| 22 | | (25) Meetings of an independent team of experts under | 23 | | Brian's Law. | 24 | | (26) (25) Meetings of a mortality review team appointed | 25 | | under the Department of Juvenile Justice Mortality Review | 26 | | Team Act. |
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| 1 | | (27) (25) Confidential information, when discussed by | 2 | | one or more members of an elder abuse fatality review team, | 3 | | designated under Section 15 of the Elder Abuse and Neglect | 4 | | Act, while participating in a review conducted by that team | 5 | | of the death of an elderly person in which abuse or neglect | 6 | | is suspected, alleged, or substantiated; provided that | 7 | | before the review team holds a closed meeting, or closes an | 8 | | open meeting, to discuss the confidential information, | 9 | | each participating review team member seeking to disclose | 10 | | the confidential information in the closed meeting or | 11 | | closed portion of the meeting must state on the record | 12 | | during an open meeting or the open portion of a meeting the | 13 | | nature of the information to be disclosed and the legal | 14 | | basis for otherwise holding that information confidential. | 15 | | (28) Correspondence and records (i) that may not be | 16 | | disclosed under Section 11-9 of the Public Aid Code or (ii) | 17 | | that pertain to appeals under Section 11-8 of the Public | 18 | | Aid Code. | 19 | | (d) Definitions. For purposes of this Section:
| 20 | | "Employee" means a person employed by a public body whose | 21 | | relationship
with the public body constitutes an | 22 | | employer-employee relationship under
the usual common law | 23 | | rules, and who is not an independent contractor.
| 24 | | "Public office" means a position created by or under the
| 25 | | Constitution or laws of this State, the occupant of which is | 26 | | charged with
the exercise of some portion of the sovereign |
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| 1 | | power of this State. The term
"public office" shall include | 2 | | members of the public body, but it shall not
include | 3 | | organizational positions filled by members thereof, whether
| 4 | | established by law or by a public body itself, that exist to | 5 | | assist the
body in the conduct of its business.
| 6 | | "Quasi-adjudicative body" means an administrative body | 7 | | charged by law or
ordinance with the responsibility to conduct | 8 | | hearings, receive evidence or
testimony and make | 9 | | determinations based
thereon, but does not include
local | 10 | | electoral boards when such bodies are considering petition | 11 | | challenges.
| 12 | | (e) Final action. No final action may be taken at a closed | 13 | | meeting.
Final action shall be preceded by a public recital of | 14 | | the nature of the
matter being considered and other information | 15 | | that will inform the
public of the business being conducted.
| 16 | | (Source: P.A. 95-185, eff. 1-1-08; 96-1235, eff. 1-1-11; | 17 | | 96-1378, eff. 7-29-10; 96-1428, eff. 8-11-10; revised 9-2-10.)
| 18 | | Section 10. The Freedom of Information Act is amended by | 19 | | changing Section 7 as follows: | 20 | | (5 ILCS 140/7) (from Ch. 116, par. 207) | 21 | | Sec. 7. Exemptions.
| 22 | | (1) When a request is made to inspect or copy a public | 23 | | record that contains information that is exempt from disclosure | 24 | | under this Section, but also contains information that is not |
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| 1 | | exempt from disclosure, the public body may elect to redact the | 2 | | information that is exempt. The public body shall make the | 3 | | remaining information available for inspection and copying. | 4 | | Subject to this requirement, the following shall be exempt from | 5 | | inspection and copying:
| 6 | | (a) Information specifically prohibited from | 7 | | disclosure by federal or
State law or rules and regulations | 8 | | implementing federal or State law.
| 9 | | (b) Private information, unless disclosure is required | 10 | | by another provision of this Act, a State or federal law or | 11 | | a court order. | 12 | | (b-5) Files, documents, and other data or databases | 13 | | maintained by one or more law enforcement agencies and | 14 | | specifically designed to provide information to one or more | 15 | | law enforcement agencies regarding the physical or mental | 16 | | status of one or more individual subjects. | 17 | | (c) Personal information contained within public | 18 | | records, the disclosure of which would constitute a clearly
| 19 | | unwarranted invasion of personal privacy, unless the | 20 | | disclosure is
consented to in writing by the individual | 21 | | subjects of the information. "Unwarranted invasion of | 22 | | personal privacy" means the disclosure of information that | 23 | | is highly personal or objectionable to a reasonable person | 24 | | and in which the subject's right to privacy outweighs any | 25 | | legitimate public interest in obtaining the information. | 26 | | The
disclosure of information that bears on the public |
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| 1 | | duties of public
employees and officials shall not be | 2 | | considered an invasion of personal
privacy.
| 3 | | (d) Records in the possession of any public body | 4 | | created in the course of administrative enforcement
| 5 | | proceedings, and any law enforcement or correctional | 6 | | agency for
law enforcement purposes,
but only to the extent | 7 | | that disclosure would:
| 8 | | (i) interfere with pending or actually and | 9 | | reasonably contemplated
law enforcement proceedings | 10 | | conducted by any law enforcement or correctional
| 11 | | agency that is the recipient of the request;
| 12 | | (ii) interfere with active administrative | 13 | | enforcement proceedings
conducted by the public body | 14 | | that is the recipient of the request;
| 15 | | (iii) create a substantial likelihood that a | 16 | | person will be deprived of a fair trial or an impartial | 17 | | hearing;
| 18 | | (iv) unavoidably disclose the identity of a | 19 | | confidential source, confidential information | 20 | | furnished only by the confidential source, or persons | 21 | | who file complaints with or provide information to | 22 | | administrative, investigative, law enforcement, or | 23 | | penal agencies; except that the identities of | 24 | | witnesses to traffic accidents, traffic accident | 25 | | reports, and rescue reports shall be provided by | 26 | | agencies of local government, except when disclosure |
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| 1 | | would interfere with an active criminal investigation | 2 | | conducted by the agency that is the recipient of the | 3 | | request;
| 4 | | (v) disclose unique or specialized investigative | 5 | | techniques other than
those generally used and known or | 6 | | disclose internal documents of
correctional agencies | 7 | | related to detection, observation or investigation of
| 8 | | incidents of crime or misconduct, and disclosure would | 9 | | result in demonstrable harm to the agency or public | 10 | | body that is the recipient of the request;
| 11 | | (vi) endanger the life or physical safety of law | 12 | | enforcement personnel
or any other person; or
| 13 | | (vii) obstruct an ongoing criminal investigation | 14 | | by the agency that is the recipient of the request.
| 15 | | (e) Records that relate to or affect the security of | 16 | | correctional
institutions and detention facilities.
| 17 | | (f) Preliminary drafts, notes, recommendations, | 18 | | memoranda and other
records in which opinions are | 19 | | expressed, or policies or actions are
formulated, except | 20 | | that a specific record or relevant portion of a
record | 21 | | shall not be exempt when the record is publicly cited
and | 22 | | identified by the head of the public body. The exemption | 23 | | provided in
this paragraph (f) extends to all those records | 24 | | of officers and agencies
of the General Assembly that | 25 | | pertain to the preparation of legislative
documents.
| 26 | | (g) Trade secrets and commercial or financial |
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| 1 | | information obtained from
a person or business where the | 2 | | trade secrets or commercial or financial information are | 3 | | furnished under a claim that they are
proprietary, | 4 | | privileged or confidential, and that disclosure of the | 5 | | trade
secrets or commercial or financial information would | 6 | | cause competitive harm to the person or business, and only | 7 | | insofar as the claim directly applies to the records | 8 | | requested. | 9 | | The information included under this exemption includes | 10 | | all trade secrets and commercial or financial information | 11 | | obtained by a public body, including a public pension fund, | 12 | | from a private equity fund or a privately held company | 13 | | within the investment portfolio of a private equity fund as | 14 | | a result of either investing or evaluating a potential | 15 | | investment of public funds in a private equity fund. The | 16 | | exemption contained in this item does not apply to the | 17 | | aggregate financial performance information of a private | 18 | | equity fund, nor to the identity of the fund's managers or | 19 | | general partners. The exemption contained in this item does | 20 | | not apply to the identity of a privately held company | 21 | | within the investment portfolio of a private equity fund, | 22 | | unless the disclosure of the identity of a privately held | 23 | | company may cause competitive harm. | 24 | | Nothing contained in this
paragraph (g) shall be | 25 | | construed to prevent a person or business from
consenting | 26 | | to disclosure.
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| 1 | | (h) Proposals and bids for any contract, grant, or | 2 | | agreement, including
information which if it were | 3 | | disclosed would frustrate procurement or give
an advantage | 4 | | to any person proposing to enter into a contractor | 5 | | agreement
with the body, until an award or final selection | 6 | | is made. Information
prepared by or for the body in | 7 | | preparation of a bid solicitation shall be
exempt until an | 8 | | award or final selection is made.
| 9 | | (i) Valuable formulae,
computer geographic systems,
| 10 | | designs, drawings and research data obtained or
produced by | 11 | | any public body when disclosure could reasonably be | 12 | | expected to
produce private gain or public loss.
The | 13 | | exemption for "computer geographic systems" provided in | 14 | | this paragraph
(i) does not extend to requests made by news | 15 | | media as defined in Section 2 of
this Act when the | 16 | | requested information is not otherwise exempt and the only
| 17 | | purpose of the request is to access and disseminate | 18 | | information regarding the
health, safety, welfare, or | 19 | | legal rights of the general public.
| 20 | | (j) The following information pertaining to | 21 | | educational matters: | 22 | | (i) test questions, scoring keys and other | 23 | | examination data used to
administer an academic | 24 | | examination;
| 25 | | (ii) information received by a primary or | 26 | | secondary school, college, or university under its |
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| 1 | | procedures for the evaluation of faculty members by | 2 | | their academic peers; | 3 | | (iii) information concerning a school or | 4 | | university's adjudication of student disciplinary | 5 | | cases, but only to the extent that disclosure would | 6 | | unavoidably reveal the identity of the student; and | 7 | | (iv) course materials or research materials used | 8 | | by faculty members. | 9 | | (k) Architects' plans, engineers' technical | 10 | | submissions, and
other
construction related technical | 11 | | documents for
projects not constructed or developed in | 12 | | whole or in part with public funds
and the same for | 13 | | projects constructed or developed with public funds, | 14 | | including but not limited to power generating and | 15 | | distribution stations and other transmission and | 16 | | distribution facilities, water treatment facilities, | 17 | | airport facilities, sport stadiums, convention centers, | 18 | | and all government owned, operated, or occupied buildings, | 19 | | but
only to the extent
that disclosure would compromise | 20 | | security.
| 21 | | (l) Minutes of meetings of public bodies closed to the
| 22 | | public as provided in the Open Meetings Act until the | 23 | | public body
makes the minutes available to the public under | 24 | | Section 2.06 of the Open
Meetings Act.
| 25 | | (m) Communications between a public body and an | 26 | | attorney or auditor
representing the public body that would |
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| 1 | | not be subject to discovery in
litigation, and materials | 2 | | prepared or compiled by or for a public body in
| 3 | | anticipation of a criminal, civil or administrative | 4 | | proceeding upon the
request of an attorney advising the | 5 | | public body, and materials prepared or
compiled with | 6 | | respect to internal audits of public bodies.
| 7 | | (n) Records relating to a public body's adjudication of | 8 | | employee grievances or disciplinary cases; however, this | 9 | | exemption shall not extend to the final outcome of cases in | 10 | | which discipline is imposed.
| 11 | | (o) Administrative or technical information associated | 12 | | with automated
data processing operations, including but | 13 | | not limited to software,
operating protocols, computer | 14 | | program abstracts, file layouts, source
listings, object | 15 | | modules, load modules, user guides, documentation
| 16 | | pertaining to all logical and physical design of | 17 | | computerized systems,
employee manuals, and any other | 18 | | information that, if disclosed, would
jeopardize the | 19 | | security of the system or its data or the security of
| 20 | | materials exempt under this Section.
| 21 | | (p) Records relating to collective negotiating matters
| 22 | | between public bodies and their employees or | 23 | | representatives, except that
any final contract or | 24 | | agreement shall be subject to inspection and copying.
| 25 | | (q) Test questions, scoring keys, and other | 26 | | examination data used to determine the qualifications of an |
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| 1 | | applicant for a license or employment.
| 2 | | (r) The records, documents, and information relating | 3 | | to real estate
purchase negotiations until those | 4 | | negotiations have been completed or
otherwise terminated. | 5 | | With regard to a parcel involved in a pending or
actually | 6 | | and reasonably contemplated eminent domain proceeding | 7 | | under the Eminent Domain Act, records, documents and
| 8 | | information relating to that parcel shall be exempt except | 9 | | as may be
allowed under discovery rules adopted by the | 10 | | Illinois Supreme Court. The
records, documents and | 11 | | information relating to a real estate sale shall be
exempt | 12 | | until a sale is consummated.
| 13 | | (s) Any and all proprietary information and records | 14 | | related to the
operation of an intergovernmental risk | 15 | | management association or
self-insurance pool or jointly | 16 | | self-administered health and accident
cooperative or pool.
| 17 | | Insurance or self insurance (including any | 18 | | intergovernmental risk management association or self | 19 | | insurance pool) claims, loss or risk management | 20 | | information, records, data, advice or communications.
| 21 | | (t) Information contained in or related to | 22 | | examination, operating, or
condition reports prepared by, | 23 | | on behalf of, or for the use of a public
body responsible | 24 | | for the regulation or supervision of financial
| 25 | | institutions or insurance companies, unless disclosure is | 26 | | otherwise
required by State law.
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| 1 | | (u) Information that would disclose
or might lead to | 2 | | the disclosure of
secret or confidential information, | 3 | | codes, algorithms, programs, or private
keys intended to be | 4 | | used to create electronic or digital signatures under the
| 5 | | Electronic Commerce Security Act.
| 6 | | (v) Vulnerability assessments, security measures, and | 7 | | response policies
or plans that are designed to identify, | 8 | | prevent, or respond to potential
attacks upon a community's | 9 | | population or systems, facilities, or installations,
the | 10 | | destruction or contamination of which would constitute a | 11 | | clear and present
danger to the health or safety of the | 12 | | community, but only to the extent that
disclosure could | 13 | | reasonably be expected to jeopardize the effectiveness of | 14 | | the
measures or the safety of the personnel who implement | 15 | | them or the public.
Information exempt under this item may | 16 | | include such things as details
pertaining to the | 17 | | mobilization or deployment of personnel or equipment, to | 18 | | the
operation of communication systems or protocols, or to | 19 | | tactical operations.
| 20 | | (w) (Blank). | 21 | | (x) Maps and other records regarding the location or | 22 | | security of generation, transmission, distribution, | 23 | | storage, gathering,
treatment, or switching facilities | 24 | | owned by a utility, by a power generator, or by the | 25 | | Illinois Power Agency.
| 26 | | (y) Information contained in or related to proposals, |
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| 1 | | bids, or negotiations related to electric power | 2 | | procurement under Section 1-75 of the Illinois Power Agency | 3 | | Act and Section 16-111.5 of the Public Utilities Act that | 4 | | is determined to be confidential and proprietary by the | 5 | | Illinois Power Agency or by the Illinois Commerce | 6 | | Commission.
| 7 | | (z) Information about students exempted from | 8 | | disclosure under Sections 10-20.38 or 34-18.29 of the | 9 | | School Code, and information about undergraduate students | 10 | | enrolled at an institution of higher education exempted | 11 | | from disclosure under Section 25 of the Illinois Credit | 12 | | Card Marketing Act of 2009. | 13 | | (aa) Information the disclosure of which is
exempted | 14 | | under the Viatical Settlements Act of 2009.
| 15 | | (bb) Records and information provided to a mortality | 16 | | review team and records maintained by a mortality review | 17 | | team appointed under the Department of Juvenile Justice | 18 | | Mortality Review Team Act. | 19 | | (cc) (bb) Information regarding interments, | 20 | | entombments, or inurnments of human remains that are | 21 | | submitted to the Cemetery Oversight Database under the | 22 | | Cemetery Care Act or the Cemetery Oversight Act, whichever | 23 | | is applicable. | 24 | | (dd) Correspondence and records (i) that may not be | 25 | | disclosed under Section 11-9 of the Public Aid Code or (ii) | 26 | | that pertain to appeals under Section 11-8 of the Public |
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| 1 | | Aid Code. | 2 | | (2) A public record that is not in the possession of a | 3 | | public body but is in the possession of a party with whom the | 4 | | agency has contracted to perform a governmental function on | 5 | | behalf of the public body, and that directly relates to the | 6 | | governmental function and is not otherwise exempt under this | 7 | | Act, shall be considered a public record of the public body, | 8 | | for purposes of this Act. | 9 | | (3) This Section does not authorize withholding of | 10 | | information or limit the
availability of records to the public, | 11 | | except as stated in this Section or
otherwise provided in this | 12 | | Act.
| 13 | | (Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07; | 14 | | 95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10; | 15 | | 96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10; | 16 | | 96-736, eff. 7-1-10; 96-863, eff. 3-1-10; 96-1378, eff. | 17 | | 7-29-10; revised 9-2-10.)
| 18 | | Section 99. Effective date. This Act takes effect upon | 19 | | becoming law.
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