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92_HB4938gms
STATE OF ILLINOIS
OFFICE OF THE GOVERNOR
SPRINGFIELD, 62706
GEORGE H. RYAN
GOVERNOR
August 2, 2002
To the Honorable Members of the
Illinois House of Representatives
92nd General Assembly
Pursuant to the authority vested in the Governor by
Article IV, Section 9(e) of the Illinois Constitution of
1970, and re-affirmed by the People of the State of Illinois
by popular referendum in 1974, and conforming to the standard
articulated by the Illinois Supreme Court in People ex Rel.
Klinger v. Howlett, 50 Ill. 2d 242 (1972), Continental
Illinois National Bank and Trust Co. v. Zagel, 78 Ill. 2d 387
(1979), People ex Rel. City of Canton v. Crouch, 79 Ill. 2d
356 (1980), and County of Kane v. Carlson, 116 Ill. 2d 186
(1987), that gubernatorial action be consistent with the
fundamental purposes and the intent of the bill, I hereby
return House Bill 4938 entitled "AN ACT concerning State
records, " with my specific recommendation for change.
House Bill 4938 amends the State Records Act to include
"digitized electronic material" and "databases" in definition
of "record," and exempts "blank forms" from the definition of
"record". House Bill 4938 makes changes regarding inspection
and copying of certain records covered by the State Records
Act. House Bill 4938 provides that the Auditor General shall
audit agencies for compliance with the provisions of this Act
and shall report findings to both the agency and the
Secretary of State.
The legislation also makes it a Class 4 felony to
knowingly and without authority alter, destroy, deface,
remove or conceal any public record. The legislation also
adds similar language to Section 3 of the State Records Act
to prohibit records from being mutilated, destroyed,
transferred, removed, or otherwise damaged or disposed of,
except as provided by law. However, the current Section 24
of the State Records Act makes any violation of Section 3 a
Class B misdemeanor. These two provisions have a penalty
conflict, since both cover nearly the same type of prohibited
conduct but have different penalties. When different
penalties apply to offenses with the same elements, the
courts are constitutionally required to apply only the lower
penalty. Therefore, the new Class 4 felony penalty may be
partially or totally invalidated by the addition to Section
3. I propose changes that will remove the conflict and make
the Class 4 felony the applicable penalty.
For these reasons, I hereby return House Bill 4938 with
the following specific recommendations for change:
on page 2, by replacing line 29 with the following:
"Sec. 3. Records as property of State.
(a) All records"; and
on page 3, by replacing line 5 with the following:
prohibited by law.
(b) Reports and records of the obligation,"; and
on page 13, line 22, by inserting "subsection (b) of' after "of'.
With these changes, House Bill 4938 will have my
approval. I respectfully request your concurrence.
Sincerely,
s/GEORGE H. RYAN
Governor