State of Illinois
92nd General Assembly

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[ Introduced ][ House Amendment 002 ]


HB0524 Engrossed                               LRB9202743TAtm

 1        AN ACT to create the Agriculture Producer Protection Act.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 1. Short title. This Act  may  be  cited  as  the
 5    Agriculture Producer Protection Act.

 6        Section  5.  Definitions. As used in this Act, unless the
 7    context otherwise requires:
 8        "Capital investment" means  a  purchase  of  any  of  the
 9    following:
10             (1)  A   structure   associated   with  producing  a
11        commodity,  including,  but  not  limited  to,  a   swine
12        farrowing building, a grain storage facility, or a manure
13        storage lagoon.
14             (2)  Machinery    or   equipment   associated   with
15        producing a commodity, if the machinery or equipment  has
16        a useful life in excess of one year.
17        "Commodity" means livestock, raw milk, or a crop.
18        "Contractor"  means a person who enters into a production
19    contract with a producer for the production by  the  producer
20    of commodities in this State.
21        "Crop"  means  a plant used for food, animal feed, fiber,
22    oil, pharmaceuticals, nutriceuticals, or seed, including, but
23    not limited  to,  alfalfa,  barley,  buckwheat,  corn,  flax,
24    forage,  millet,  oats,  popcorn,  rye,  sorghum, sunflowers,
25    tobacco, wheat, and grasses used for forage or silage.
26        "Department" means the Department of Agriculture.
27        "Director" means the Director of Agriculture.
28        "Investment requirement"  means  any  capital  investment
29    made  by a producer to produce a commodity in accordance with
30    a production contract that the producer has executed  if  (i)
31    the  production  contract  specifically requires that capital
HB0524 Engrossed            -2-                LRB9202743TAtm
 1    investment or (ii) the  producer  reasonably  concludes  that
 2    investment  is  either necessary or important in enabling the
 3    producer to efficiently and effectively produce the commodity
 4    required under the production contract.
 5        "Livestock" means beef  cattle,  dairy  cattle,  poultry,
 6    sheep, or swine.
 7    "Produce" means to do any of the following:
 8             (1)  Provide  feed  or services relating to the care
 9        and feeding of  livestock.  If  the  livestock  is  dairy
10        cattle,  then "produce" includes milking the dairy cattle
11        and storing raw milk.
12             (2)  Provide for planting, raising,  harvesting,  or
13        storing a crop. "Produce" includes preparing the soil for
14        planting   and  nurturing  the  crop  by  application  of
15        fertilizers  or  soil   conditioners,   including   those
16        substances regulated under the Illinois Fertilizer Act of
17        1961  or  pesticides as defined in the Illinois Pesticide
18        Act.
19        "Producer"  means  a  person  who  has  entered  into   a
20    production  contract whereby that person produces a commodity
21    for a contractor.  "Producer"  does  not  mean  a  commercial
22    fertilizer   applicator   or  pesticide  applicator,  a  feed
23    supplier, or a veterinarian when acting in that capacity.
24        "Production contract" means (1) an  agreement  between  a
25    producer and a contractor in which (i) the producer agrees to
26    produce  and  sell  to  the  contractor  or  the contractor's
27    designee an identified commodity or commodities and (ii)  the
28    contractor  has  or  exercises some control or direction over
29    the  production  process;  or  (2)  an  agreement  between  a
30    producer and a contractor in which  the  producer  agrees  to
31    care  for  and  raise a commodity or commodities that are not
32    owned by the producer, using land, equipment,  or  facilities
33    owned or leased by the producer, in exchange for payment. For
34    purposes  of  this definition, "control or direction over the
HB0524 Engrossed            -3-                LRB9202743TAtm
 1    production process" includes, but  is  not  limited  to,  the
 2    contractor's     designation     of     special     commodity
 3    characteristics,  such  as  oil  content  for corn or special
 4    genetics for livestock; the  contractor's  designation  of  a
 5    seed  variety  or  varieties to be used by the producer under
 6    the contract; or the contractor's right, or that  of  his  or
 7    her  designee,  to  review,  check,  sample,  or  analyze the
 8    commodity during the production process.

 9        Section 10. Written production contracts. All  production
10    contracts must be in writing.

11        Section 15. Summary of material terms and conditions.
12        (a)  Summary  sheet.  A production contract entered into,
13    amended, or renewed after the effective date of this Act must
14    contain as the first page, or as the first page of text if it
15    is preceded by a title page or  pages,  a  summary  sheet  as
16    provided  in  this  Section. The summary sheet shall have the
17    following   heading:   "SUMMARY   OF   MATERIAL   TERMS   AND
18    CONDITIONS". It shall list the material terms and  conditions
19    of  the production contract; provide a summary explanation of
20    each material term  and  condition;  include  an  example  or
21    examples  for those provisions relating to the calculation of
22    the amounts to be received by the producer for the  commodity
23    produced  under  the  production  contract; and designate the
24    page or pages where these material terms and  conditions  are
25    found  within  the  text  of the document. This summary shall
26    meet the readability requirements of this Section  and  shall
27    accurately reflect the text of the production contract.
28        In   this   Section,   "material  terms  and  conditions"
29    includes, but is not limited to:
30             (1)  the type of commodity to be produced;
31             (2)  the  particular  quality   characteristics   or
32        specifications   for   the   commodity  to  be  produced,
HB0524 Engrossed            -4-                LRB9202743TAtm
 1        including, but not limited to, the type of  genetics  for
 2        livestock or percentage of non-GMO content for grain;
 3             (3)  the  quantity or acreage of the commodity to be
 4        produced;
 5             (4)  any special production or handling requirements
 6        for the commodity, including, but not limited to, disease
 7        protocols  for  livestock  and  segregation  or  identity
 8        preservation for grain;
 9             (5)  the  time  or  times  for   delivery   of   the
10        commodity;
11             (6)  the delivery locations for the commodity;
12             (7)  provisions  for the calculation of the price or
13        other compensation to be received by the  producer  under
14        the production contract;
15             (8)  the  circumstances under which the amount to be
16        received  by  the  producer  might   be   discounted   or
17        increased;
18             (9)  the  circumstances  under  which  the commodity
19        produced under the production contract might be  rejected
20        by the contractor;
21             (10)  the   duration  of  the  production  contract,
22        including any renewal provisions; and
23             (11)  any cancellation or termination  clauses,  and
24        specific causes for cancellation and termination.
25        (b)  Readability.  A production contract must (i) be in a
26    typeface at least as  large  as  10-point  modern,  one-point
27    leaded;   (ii)  be  divided  and  captioned  by  its  various
28    sections; (iii) be written in clear  and  coherent  language;
29    (iv)  use  words  and  grammar  that  are understandable by a
30    person of average  intelligence,  education,  and  experience
31    within the industry; and (v) use clear definitions.
32        (c)  Review by Director of Agriculture.
33             (1)  Process  of  review.  A contractor may submit a
34        production  contract  to  the  Director  for  review   to
HB0524 Engrossed            -5-                LRB9202743TAtm
 1        determine  whether  it  complies  with  this Section. The
 2        Director shall do one of the following:
 3                  (A)  certify  that  the   production   contract
 4             complies with this Section;
 5                  (B)  decline  to  certify  that  the production
 6             contract  complies  with  this  Section   and   note
 7             objections;
 8                  (C)  decline  to review the production contract
 9             because the contract's compliance with this  Section
10             is subject to pending litigation; or
11                  (D)  decline  to review the production contract
12             because it is not subject to this Section.
13             (2)  Factors to consider in determining readability.
14        In determining whether a production contract is  readable
15        within  the meaning of subsection (b), the Director shall
16        consider  the  provisions  of  subsection  (b)  and   the
17        following:
18                  (A)  the simplicity of the sentence structure;
19                  (B)  the  extent  to  which  commonly  used and
20             understood words and terms are employed;
21                  (C)  the extent to which esoteric  legal  terms
22             are  avoided, although the Director shall permit the
23             use of particular  words,  phrases,  provisions,  or
24             forms    of    agreement    specifically   required,
25             recommended, or  endorsed  by  a  state  or  federal
26             statute, rule, regulation, or case law;
27                  (D)  the  extent  to  which references to other
28             sections or provisions are minimized;
29                  (E)  the  extent  to  which  clear  and  easily
30             understood definitions are used; and
31                  (F)  any  additional  factors  deemed  by   the
32             Director  to  be  relevant  to  the  readability  or
33             understandability of the production contract.
34             (3)  Actions  of the Director under this Section are
HB0524 Engrossed            -6-                LRB9202743TAtm
 1        subject to judicial review under the  provisions  of  the
 2        Administrative Review Law.
 3             (4)  Limited  effect  of certification. A production
 4        contract certified under this  subsection  is  deemed  to
 5        comply  with  subsections (a) and (b). Certification of a
 6        production  contract  under  this  subsection  does   not
 7        constitute approval of the production contract's legality
 8        or  legal  effect. If the Director certifies a production
 9        contract, then the contractor  will  have  complied  with
10        subsections  (a)  and  (b),  and  the  remedies stated in
11        paragraph (6) are not available. If, during the first  90
12        days  after  the effective date of this Act, the Director
13        receives a  production  contract  and  fails  to  respond
14        within  60  days  after receipt, then the contractor will
15        have complied with  subsections  (a)  and  (b),  and  the
16        remedies  stated in subsection (6) are not available. If,
17        after the first 90 days after the effective date of  this
18        Act,  the  Director  receives  a  production contract and
19        fails to respond within 30 days after receipt,  then  the
20        contractor  will  have  complied with subsections (a) and
21        (b), and the remedies stated in  paragraph  (6)  are  not
22        available.
23             (5)  Review   not  required.  Failure  to  submit  a
24        production contract to the Director for review under this
25        subsection does not show a lack of good faith or raise  a
26        presumption  that  the  production contract violates this
27        Section.
28             (6)  Reformation by court.
29                  (A)  Change terms. In addition to the  remedies
30             provided   in   Section  45,  a  court  reviewing  a
31             production contract may  change  the  terms  of  the
32             production contract or limit a provision to avoid an
33             unfair   result  if  the  court  finds  all  of  the
34             following:
HB0524 Engrossed            -7-                LRB9202743TAtm
 1                       (i)  a   material   provision    of    the
 2                  production  contract violates subsection (a) or
 3                  (b);
 4                       (ii)  the violation caused the producer to
 5                  be substantially  confused  about  any  of  the
 6                  rights,   obligations,   or   remedies  of  the
 7                  production contract; and
 8                       (iii)  the  violation  has  caused  or  is
 9                  likely to  cause  financial  detriment  to  the
10                  producer.
11                  (B)  Avoid  unjust  enrichment.  If  the  court
12             reforms  or  limits  a  provision  of  a  production
13             contract, the court shall also make orders necessary
14             to  avoid  unjust  enrichment.  Bringing a claim for
15             relief under  this  paragraph  does  not  entitle  a
16             producer  to  withhold  performance  of an otherwise
17             valid  contractual  obligation.  No  relief  may  be
18             granted under this paragraph  unless  the  claim  is
19             brought  before  the  obligations  of the production
20             contract have been fully performed by all parties to
21             the production contract.
22             (7)  Limits on  producer  actions.  A  producer  may
23        recover  actual  damages  caused  by  a violation of this
24        Section only if the violation caused the producer to  not
25        fully  understand the rights, obligations, or remedies of
26        the production contract.
27             (8)  Statute  of  limitations.  A   claim   that   a
28        production  contract violates this Section must be raised
29        within 4 years after the date on which the party alleging
30        the violation knew or should have known of the  existence
31        of the violation.

32        Section  20. Limitation on application of confidentiality
33    provisions.  After  the  effective  date  of  this  Act,   no
HB0524 Engrossed            -8-                LRB9202743TAtm
 1    confidentiality  provision  of  a  production  contract shall
 2    prohibit, or be  construed  or  interpreted  to  prohibit,  a
 3    producer  from  discussing any and all terms and details of a
 4    production  contract  with  the  producer's  legal   advisor,
 5    lender,  accountant,  financial  advisor,  business  advisor,
 6    immediate family members, or actual or anticipated production
 7    association  colleagues.   This  Section  does  not require a
 8    party to a production contract to divulge information in  the
 9    production contract to another person.

10        Section 25. Investment requirements.
11        (a)  Applicability.   This   Section   applies   to   all
12    production  contracts  that have investment requirements. The
13    value of the capital investments shall be deemed  to  be  the
14    total  dollar amount spent or committed to by the producer in
15    satisfying the investment requirements.
16        (b) Breach. Except as provided in subsection  (c),  if  a
17    producer   materially   breaches  a  production  contract,  a
18    contractor  may  not  terminate  or  cancel  the   production
19    contract until the following have occurred:
20             (1)  The contractor has provided a written notice of
21        termination or cancellation to the producer that has been
22        received by the producer at  least  15  days  before  the
23        effective  date  of  the termination or cancellation; the
24        notice must provide a comprehensive listing of the causes
25        for the material breach.
26             (2) The producer has failed to remedy each cause  of
27        the  breach,  as  alleged  in the listing provided in the
28        notice, within 15 days following receipt of  the  notice.
29        An  effort  by a producer to remedy a cause of an alleged
30        breach shall not be construed as an admission of a breach
31        in a civil cause of action.
32        (c) Exceptions. A contractor may terminate  or  cancel  a
33    production  contract  without  regard  to  the  provisions of
HB0524 Engrossed            -9-                LRB9202743TAtm
 1    subsection  (b)  if  the  basis  for   the   termination   or
 2    cancellation is either of the following:
 3             (1)  A  voluntary  abandonment  of  the  contractual
 4        relationship  by  the  producer.  A complete failure of a
 5        producer's performance under a production contract  shall
 6        be deemed to be abandonment.
 7             (2)  The  conviction  of a producer of an offense of
 8        fraud or theft committed against the contractor.
 9        (d) Penalty. If a  contractor  terminates  or  cancels  a
10    production  contract  other than as provided in this Section,
11    the contractor shall  pay  the  producer  the  value  of  the
12    remaining useful life of the capital investments, taking into
13    account the producer's ability to use the capital investments
14    in  the    producer's  other  business  enterprises  and  the
15    opportunity  to recoup the cost of the capital investments by
16    selling or leasing them, plus any other  damages  allowed  by
17    law.

18        Section 30. Unfair practices.
19        (a)  Definitions. As used in this Section:
20             (1)  "Contract   input"  means  a  commodity  or  an
21        organic or synthetic substance or compound that  is  used
22        to  produce a commodity, including but not limited to any
23        of the following:
24                  (A)  Livestock or plants.
25                  (B)  Agricultural seeds.
26                  (C)  Semen or eggs for breeding livestock.
27                  (D)  Fertilizer,   pesticides,   or   petroleum
28             products.
29             (2)  "Producer right" means  one  of  the  following
30        legal rights and protections:
31                  (A)  Right  to join association. The right of a
32             producer to join or belong to, or  to  refrain  from
33             joining   or   belonging   to,   an  association  of
HB0524 Engrossed            -10-               LRB9202743TAtm
 1             producers.
 2                  (B)  Right to contract. The right of a producer
 3             to enter into a membership  agreement  or  marketing
 4             contract   with   an  association  of  producers,  a
 5             processor, or another producer and the right of  the
 6             producer to exercise contractual rights under such a
 7             membership agreement or marketing contract.
 8                  (C)  Right  to be a whistleblower. The right of
 9             a  producer  to  lawfully  provide   statements   or
10             information,   including   to   the   United  States
11             Secretary of Agriculture or  to  a  law  enforcement
12             agency,   regarding   alleged  improper  actions  or
13             violations of law by a contractor or processor. This
14             right does not include the right to make  statements
15             or   provide   information   if  the  statements  or
16             information  are  determined  to  be   libelous   or
17             slanderous.
18                  (D)  Right  to  disclose contractual terms. The
19             right  of  a  producer  to  disclose  the  terms  of
20             agricultural contracts under Section 20.
21                  (E)  Right to exercise other  protections.  The
22             right  of  a  producer  to enforce other protections
23             afforded by this Act or other laws or regulations.
24        (b)  Unfair practices.  It  shall  be  unlawful  for  any
25    contractor to knowingly do or permit any employee or agent to
26    do  any  of  the  following  in  connection  with  production
27    contracts:
28             (1)  Retaliation.   To   take   actions  to  coerce,
29        intimidate,   disadvantage,   retaliate    against,    or
30        discriminate  against  any  producer because the producer
31        exercises, or attempts to exercise, any  producer  right,
32        or  to  diminish  or  deny a reward, or impose a penalty,
33        without a reasonable basis for doing so.
34             (2)  False information. To provide false information
HB0524 Engrossed            -11-               LRB9202743TAtm
 1        to the producer,  which  may  include  false  information
 2        relating to any of the following:
 3                  (A)  A   producer   with   whom   the  producer
 4             associates or an  association  of  producers  or  an
 5             agricultural organization with which the producer is
 6             affiliated,  including  but  not  limited to (i) the
 7             character of the producer or (ii) the  condition  of
 8             the finances or the management of the association of
 9             producers or agricultural organization.
10                  (B)  Producer  rights  provided  by this Act or
11             other provisions of law.
12             (3)  Compensation information. To refuse to  provide
13        to a producer in a timely manner the statistical data and
14        other  data  used  to  determine compensation paid to the
15        producer under a production contract, including, but  not
16        limited  to,  feed  conversion  rates, feed analyses, and
17        origination and breeder history.
18             (4)  Observation of weighing. To refuse to  allow  a
19        producer  or  the producer's designated representative to
20        observe,  at  the  time  of  weighing,  the  weights  and
21        measures used to determine  the  producer's  compensation
22        under a production contract.
23             (5)  Additional  capital  investments.  To require a
24        producer to make new or  additional  capital  investments
25        that   are   beyond  the  investment  requirements  of  a
26        production contract.
27             (6)  Disclosure  of  risks   and   readability.   To
28        provide,  offer,  or  execute  a  production  contract in
29        violation  of  the  disclosure  of  material  terms   and
30        conditions and readability requirements of Section 15.
31             (7)  Confidentiality  provisions. To provide, offer,
32        or  execute  a  production  contract  that   includes   a
33        confidentiality provision in violation of Section 20.
34             (8)  Waivers.   To  provide,  offer,  or  execute  a
HB0524 Engrossed            -12-               LRB9202743TAtm
 1        production  contract  that  includes  a  waiver  of   any
 2        producer  right  or  any  obligation  of  a contractor or
 3        processor established under this Act.
 4             (9)  Forum.  To  execute   a   production   contract
 5        requiring  a  cause of action to be brought in a location
 6        other than the state in which the  commodity  subject  to
 7        the production contract is grown or produced.
 8             (10)  Limitation  on  damages. To provide, offer, or
 9        execute a  production  contract  that  contains  language
10        limiting  the producer's damages in the event of a breach
11        or other failure to perform the  production  contract  by
12        the contractor.
13             (11)  Contract inputs. To provide, offer, or execute
14        a  production  contract  in which the contractor requires
15        the use of certain contract inputs but also  attempts  to
16        limit  its liability for a failure of the contract inputs
17        to perform in accordance with the  producer's  reasonable
18        expectations.
19             (12)  Use  of  certain  undefined terms. To provide,
20        offer, or execute  a  production  contract  requiring  or
21        suggesting   that  the  producer  "segregate",  "identity
22        preserve",  or  "channel"   the   commodity,   or   using
23        variations   or   derivatives  of  these  terms,  without
24        providing  definitions  of  these  terms  and  guidelines
25        describing   how   producers   should    satisfy    these
26        requirements.
27             (13)  Alter the quality, quantity, or delivery times
28        of contract inputs provided to the producer.

29        Section  35.  Waivers  unenforceable.  Any provision of a
30    production contract  that  waives  a  producer  right  or  an
31    obligation  of  a  contractor established by this Act is void
32    and  unenforceable.  This  Section  does  not  affect   other
33    provisions  of  a  production contract or a related document,
HB0524 Engrossed            -13-               LRB9202743TAtm
 1    policy, or agreement that can be  given  effect  without  the
 2    voided provision.

 3        Section   40.   Choice  of  law;  forum.  Any  condition,
 4    stipulation, or provision requiring the  application  of  the
 5    law of a state other than the State of Illinois, or requiring
 6    a  cause  of  action  to be brought in a state other than the
 7    State of Illinois, is void and unenforceable.

 8        Section 45. Penalties and enforcement.
 9        (a)  Civil penalties. A contractor committing  an  unfair
10    practice under Section 30 is subject to a civil penalty of up
11    to $1000 per violation per day.
12        (b)  Criminal   penalties.  A  contractor  committing  an
13    unfair practice under Section 30  is  guilty  of  a  Class  C
14    misdemeanor.
15        (c)  Private  cause  of  action.  A  producer who suffers
16    damages because of a contractor's violation of this  Act  may
17    bring  a  private  civil  action  against  the contractor and
18    obtain appropriate  legal  and  equitable  relief,  including
19    damages.
20             (1)  Attorneys  fees.  In a civil action against the
21        contractor, the court shall award any producer who is the
22        prevailing  party  reasonable  attorney  fees  and  other
23        litigation expenses.
24             (2)  Injunctive   relief.   In   order   to   obtain
25        injunctive relief, the producer is not required to post a
26        bond, prove the absence of an adequate remedy at law,  or
27        show  the  existence of special circumstances, unless the
28        court for good cause  otherwise  orders.  The  court  may
29        order any form of prohibitory or mandatory relief that is
30        appropriate under principles of equity, including but not
31        limited  to  issuing a temporary or permanent restraining
32        order.
HB0524 Engrossed            -14-               LRB9202743TAtm
 1        (d)  Enforcement  by  Attorney  General.   The   Attorney
 2    General's  office  is  the  agency  primarily responsible for
 3    enforcing this Act. In enforcing the provisions of this  Act,
 4    the Attorney General may do all of the following:
 5             (1)  Injunctions.  Apply to the circuit court for an
 6        injunction to do any of the following:
 7                  (A)  Restrain a  contractor  from  engaging  in
 8             conduct or practices in violation of this Act.
 9                  (B)  Require  a  contractor  to  comply  with a
10             provision of this Act.
11             (2)  Subpoenas. Apply to the circuit court  for  the
12        issuance of a subpoena to obtain a production contract or
13        material  related  to actions undertaken in entering into
14        the production contract or related  to  the  intent  with
15        which those actions were taken, for purposes of enforcing
16        this Act.
17             (3)  Penalties. Bring an action in the circuit court
18        to enforce penalties provided in subsections (a) and (b).

19        Section  50.  Rulemaking.  The  Director must adopt rules
20    necessary to implement this Act not  later  than  January  1,
21    2002.

22        Section 55. Applicability.
23        (a)  General  Rule. Except as provided in subsection (b),
24    this Act applies to production contracts in force on or after
25    the effective date of this Act, regardless of  the  date  the
26    production contract is executed.
27        (b)  Exceptions.  Section  15,  relating to disclosure of
28    material  terms  and  conditions,  Section  25,  relating  to
29    production contracts involving investment  requirements,  and
30    Section  40, relating to choice of law and forum, shall apply
31    to production contracts  executed  or  substantively  amended
32    after the effective date of this Act.
HB0524 Engrossed            -15-               LRB9202743TAtm
 1        Section 90.  The Freedom of Information Act is amended by
 2    changing Section 7 as follows:

 3        (5 ILCS 140/7) (from Ch. 116, par. 207)
 4        Sec. 7.  Exemptions.
 5        (1)  The  following  shall  be exempt from inspection and
 6    copying:
 7             (a)  Information   specifically   prohibited    from
 8        disclosure   by   federal  or  State  law  or  rules  and
 9        regulations adopted under federal or State law.
10             (b)  Information   that,   if    disclosed,    would
11        constitute  a  clearly  unwarranted  invasion of personal
12        privacy, unless the disclosure is consented to in writing
13        by the  individual  subjects  of  the  information.   The
14        disclosure of information that bears on the public duties
15        of public employees and officials shall not be considered
16        an  invasion  of  personal privacy.  Information exempted
17        under this  subsection  (b)  shall  include  but  is  not
18        limited to:
19                  (i)  files  and personal information maintained
20             with  respect  to  clients,   patients,   residents,
21             students  or  other  individuals  receiving  social,
22             medical,    educational,    vocational,   financial,
23             supervisory or custodial care or  services  directly
24             or   indirectly  from  federal  agencies  or  public
25             bodies;
26                  (ii)  personnel files and personal  information
27             maintained  with respect to employees, appointees or
28             elected officials of any public body  or  applicants
29             for those positions;
30                  (iii)  files     and    personal    information
31             maintained with respect to any applicant, registrant
32             or licensee by any public body cooperating  with  or
33             engaged     in    professional    or    occupational
HB0524 Engrossed            -16-               LRB9202743TAtm
 1             registration, licensure or discipline;
 2                  (iv)  information required of any  taxpayer  in
 3             connection  with the assessment or collection of any
 4             tax unless disclosure is otherwise required by State
 5             statute; and
 6                  (v)  information  revealing  the  identity   of
 7             persons   who   file   complaints  with  or  provide
 8             information to  administrative,  investigative,  law
 9             enforcement  or  penal  agencies; provided, however,
10             that  identification   of   witnesses   to   traffic
11             accidents,  traffic  accident  reports,  and  rescue
12             reports   may  be  provided  by  agencies  of  local
13             government, except in a case for  which  a  criminal
14             investigation  is  ongoing,  without  constituting a
15             clearly unwarranted  per  se  invasion  of  personal
16             privacy under this subsection.
17             (c)  Records   compiled   by  any  public  body  for
18        administrative  enforcement  proceedings  and   any   law
19        enforcement  or  correctional  agency for law enforcement
20        purposes or for internal matters of a  public  body,  but
21        only to the extent that disclosure would:
22                  (i)  interfere  with  pending  or  actually and
23             reasonably contemplated law enforcement  proceedings
24             conducted  by  any  law  enforcement or correctional
25             agency;
26                  (ii)  interfere  with  pending   administrative
27             enforcement  proceedings  conducted  by  any  public
28             body;
29                  (iii)  deprive  a  person of a fair trial or an
30             impartial hearing;
31                  (iv)  unavoidably disclose the  identity  of  a
32             confidential   source  or  confidential  information
33             furnished only by the confidential source;
34                  (v)  disclose     unique     or     specialized
HB0524 Engrossed            -17-               LRB9202743TAtm
 1             investigative techniques other than those  generally
 2             used  and  known  or  disclose internal documents of
 3             correctional   agencies   related   to    detection,
 4             observation  or  investigation of incidents of crime
 5             or misconduct;
 6                  (vi)  constitute  an   invasion   of   personal
 7             privacy under subsection (b) of this Section;
 8                  (vii)  endanger  the life or physical safety of
 9             law enforcement personnel or any other person; or
10                  (viii)  obstruct    an     ongoing     criminal
11             investigation.
12             (d)  Criminal  history record information maintained
13        by State or local criminal justice agencies,  except  the
14        following  which  shall be open for public inspection and
15        copying:
16                  (i)  chronologically     maintained      arrest
17             information,  such  as  traditional  arrest  logs or
18             blotters;
19                  (ii)  the name of a person in the custody of  a
20             law  enforcement  agency  and  the charges for which
21             that person is being held;
22                  (iii)  court records that are public;
23                  (iv)  records  that  are  otherwise   available
24             under State or local law; or
25                  (v)  records  in  which the requesting party is
26             the individual identified, except as provided  under
27             part  (vii)  of  paragraph  (c) of subsection (1) of
28             this Section.
29             "Criminal history  record  information"  means  data
30        identifiable   to   an   individual   and  consisting  of
31        descriptions  or  notations   of   arrests,   detentions,
32        indictments, informations, pre-trial proceedings, trials,
33        or  other formal events in the criminal justice system or
34        descriptions or notations of criminal charges  (including
HB0524 Engrossed            -18-               LRB9202743TAtm
 1        criminal  violations  of  local municipal ordinances) and
 2        the  nature  of  any   disposition   arising   therefrom,
 3        including  sentencing, court or correctional supervision,
 4        rehabilitation and release.  The term does not  apply  to
 5        statistical  records and reports in which individuals are
 6        not identified and from which their  identities  are  not
 7        ascertainable,  or  to  information  that is for criminal
 8        investigative or intelligence purposes.
 9             (e)  Records that relate to or affect  the  security
10        of correctional institutions and detention facilities.
11             (f)  Preliminary   drafts,  notes,  recommendations,
12        memoranda  and  other  records  in  which  opinions   are
13        expressed,  or policies or actions are formulated, except
14        that a specific record or relevant portion  of  a  record
15        shall not be exempt when the record is publicly cited and
16        identified  by the head of the public body. The exemption
17        provided in this  paragraph  (f)  extends  to  all  those
18        records  of officers and agencies of the General Assembly
19        that pertain to the preparation of legislative documents.
20             (g)  Trade  secrets  and  commercial  or   financial
21        information  obtained from a person or business where the
22        trade secrets or information are proprietary,  privileged
23        or confidential, or where disclosure of the trade secrets
24        or  information may cause competitive harm, including all
25        information determined to be confidential  under  Section
26        4002  of  the Technology Advancement and Development Act.
27        Nothing  contained  in  this  paragraph  (g)   shall   be
28        construed to prevent a person or business from consenting
29        to disclosure.
30             (h)  Proposals  and bids for any contract, grant, or
31        agreement,  including  information  which  if   it   were
32        disclosed   would   frustrate   procurement  or  give  an
33        advantage  to  any  person  proposing  to  enter  into  a
34        contractor agreement with the body,  until  an  award  or
HB0524 Engrossed            -19-               LRB9202743TAtm
 1        final  selection is made.  Information prepared by or for
 2        the body in preparation of a bid  solicitation  shall  be
 3        exempt until an award or final selection is made.
 4             (i)  Valuable   formulae,   designs,   drawings  and
 5        research data obtained or produced  by  any  public  body
 6        when  disclosure  could reasonably be expected to produce
 7        private gain or public loss.
 8             (j)  Test  questions,   scoring   keys   and   other
 9        examination   data   used   to   administer  an  academic
10        examination  or  determined  the  qualifications  of   an
11        applicant for a license or employment.
12             (k)  Architects'   plans  and  engineers'  technical
13        submissions for projects not constructed or developed  in
14        whole  or  in  part  with  public  funds and for projects
15        constructed or developed with public funds, to the extent
16        that disclosure would compromise security.
17             (l)  Library   circulation   and    order    records
18        identifying library users with specific materials.
19             (m)  Minutes  of meetings of public bodies closed to
20        the public as provided in the Open Meetings Act until the
21        public body makes the minutes  available  to  the  public
22        under Section 2.06 of the Open Meetings Act.
23             (n)  Communications  between  a  public  body and an
24        attorney or auditor representing  the  public  body  that
25        would  not  be  subject  to  discovery in litigation, and
26        materials prepared or compiled by or for a public body in
27        anticipation  of  a  criminal,  civil  or  administrative
28        proceeding upon the request of an attorney  advising  the
29        public  body,  and  materials  prepared  or compiled with
30        respect to internal audits of public bodies.
31             (o)  Information received by a primary or  secondary
32        school,  college  or  university under its procedures for
33        the evaluation  of  faculty  members  by  their  academic
34        peers.
HB0524 Engrossed            -20-               LRB9202743TAtm
 1             (p)  Administrative    or    technical   information
 2        associated with  automated  data  processing  operations,
 3        including   but   not   limited  to  software,  operating
 4        protocols,  computer  program  abstracts,  file  layouts,
 5        source  listings,  object  modules,  load  modules,  user
 6        guides,  documentation  pertaining  to  all  logical  and
 7        physical  design  of   computerized   systems,   employee
 8        manuals,  and  any  other information that, if disclosed,
 9        would jeopardize the security of the system or  its  data
10        or the security of materials exempt under this Section.
11             (q)  Documents  or  materials relating to collective
12        negotiating  matters  between  public  bodies  and  their
13        employees  or  representatives,  except  that  any  final
14        contract or agreement shall be subject to inspection  and
15        copying.
16             (r)  Drafts,  notes,  recommendations  and memoranda
17        pertaining to the financing and marketing transactions of
18        the public body. The records of ownership,  registration,
19        transfer, and exchange of municipal debt obligations, and
20        of   persons  to  whom  payment  with  respect  to  these
21        obligations is made.
22             (s)  The records, documents and information relating
23        to  real  estate  purchase   negotiations   until   those
24        negotiations have been completed or otherwise terminated.
25        With regard to a parcel involved in a pending or actually
26        and  reasonably  contemplated  eminent  domain proceeding
27        under  Article  VII  of  the  Code  of  Civil  Procedure,
28        records,  documents  and  information  relating  to  that
29        parcel shall be exempt except as  may  be  allowed  under
30        discovery  rules  adopted  by the Illinois Supreme Court.
31        The records, documents and information relating to a real
32        estate sale shall be exempt until a sale is consummated.
33             (t)  Any and all proprietary information and records
34        related to the operation  of  an  intergovernmental  risk
HB0524 Engrossed            -21-               LRB9202743TAtm
 1        management  association or self-insurance pool or jointly
 2        self-administered  health  and  accident  cooperative  or
 3        pool.
 4             (u)  Information    concerning    a     university's
 5        adjudication   of   student   or  employee  grievance  or
 6        disciplinary cases, to the extent that  disclosure  would
 7        reveal  the  identity  of  the  student  or  employee and
 8        information concerning any public body's adjudication  of
 9        student  or  employee  grievances  or disciplinary cases,
10        except for the final outcome of the cases.
11             (v)  Course materials or research materials used  by
12        faculty members.
13             (w)  Information  related  solely  to  the  internal
14        personnel rules and practices of a public body.
15             (x)  Information   contained   in   or   related  to
16        examination, operating, or condition reports prepared by,
17        on behalf of, or for the use of a public body responsible
18        for  the   regulation   or   supervision   of   financial
19        institutions or insurance companies, unless disclosure is
20        otherwise required by State law.
21             (y)  Information   the   disclosure   of   which  is
22        restricted under Section 5-108 of  the  Public  Utilities
23        Act.
24             (z)  Manuals  or instruction to staff that relate to
25        establishment or collection of liability  for  any  State
26        tax  or that relate to investigations by a public body to
27        determine violation of any criminal law.
28             (aa)  Applications, related documents,  and  medical
29        records    received    by    the    Experimental    Organ
30        Transplantation   Procedures   Board   and  any  and  all
31        documents or other records prepared by  the  Experimental
32        Organ  Transplantation  Procedures  Board  or  its  staff
33        relating to applications it has received.
34             (bb)  Insurance  or  self  insurance  (including any
HB0524 Engrossed            -22-               LRB9202743TAtm
 1        intergovernmental risk  management  association  or  self
 2        insurance   pool)   claims,   loss   or  risk  management
 3        information, records, data, advice or communications.
 4             (cc)  Information and records held by the Department
 5        of  Public  Health  and  its  authorized  representatives
 6        relating  to  known  or  suspected  cases   of   sexually
 7        transmissible  disease  or any information the disclosure
 8        of  which  is  restricted  under  the  Illinois  Sexually
 9        Transmissible Disease Control Act.
10             (dd)  Information  the  disclosure   of   which   is
11        exempted under Section 30 of the Radon Industry Licensing
12        Act.
13             (ee)  Firm  performance evaluations under Section 55
14        of the Architectural,  Engineering,  and  Land  Surveying
15        Qualifications Based Selection Act.
16             (ff)  Security  portions  of  system  safety program
17        plans, investigation reports, surveys, schedules,  lists,
18        data,  or information compiled, collected, or prepared by
19        or  for  the  Regional  Transportation  Authority   under
20        Section 2.11 of the Regional Transportation Authority Act
21        or  the  State  of  Missouri  under  the Bi-State Transit
22        Safety Act.
23             (gg)  Information  the  disclosure   of   which   is
24        restricted  and exempted under Section 50 of the Illinois
25        Prepaid Tuition Act.
26             (hh)  Information  the  disclosure   of   which   is
27        exempted under Section 80 of the State Gift Ban Act.
28             (ii)  Beginning July 1, 1999, information that would
29        disclose  or  might  lead  to the disclosure of secret or
30        confidential information, codes, algorithms, programs, or
31        private keys intended to be used to create electronic  or
32        digital signatures under the Electronic Commerce Security
33        Act.
34             (jj)  Information  contained  in  a  local emergency
HB0524 Engrossed            -23-               LRB9202743TAtm
 1        energy plan submitted to  a  municipality  in  accordance
 2        with  a  local  emergency  energy  plan ordinance that is
 3        adopted under Section 11-21.5-5 of the Illinois Municipal
 4        Code.
 5             (kk)  (jj)  Information  and  data  concerning   the
 6        distribution  of  surcharge moneys collected and remitted
 7        by  wireless  carriers  under  the   Wireless   Emergency
 8        Telephone Safety Act.
 9             (ll)  Production  contracts  submitted for review to
10        the Director of  Agriculture  under  Section  15  of  the
11        Agriculture Producer Protection Act.
12        (2)  This  Section  does  not  authorize  withholding  of
13    information  or  limit  the  availability  of  records to the
14    public,  except  as  stated  in  this  Section  or  otherwise
15    provided in this Act.
16    (Source: P.A. 90-262, eff.  7-30-97;  90-273,  eff.  7-30-97;
17    90-546,  eff.  12-1-97;  90-655,  eff.  7-30-98; 90-737, eff.
18    1-1-99; 90-759, eff. 7-1-99; 91-137,  eff.  7-16-99;  91-357,
19    eff. 7-29-99; 91-660, eff. 12-22-99; revised 1-17-00.)

20        Section 99.  Effective date.  This Section and Section 50
21    take  effect  upon  becoming  law.  The remainder of this Act
22    takes effect on January 1, 2002.

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