HB4165 96TH GENERAL ASSEMBLY

LRB096 11799 RCE 22614 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB4165

Introduced 2/27/2009, by Rep. Barbara Flynn Currie - William B. Black

SYNOPSIS AS INTRODUCED:

5 ILCS 120/3.5 new
5 ILCS 120/7.5 new
5 ILCS 140/3.5 new
5 ILCS 140/9.5 new
5 ILCS 140/11.5 new
15 ILCS 205/7 new

Amends the Open Meetings Act, the Freedom of Information Act, and the Attorney General Act. Requires each public body to have a freedom of information officer to process requests for inspection and copying of public records. Establishes within the Attorney General's Office an Office of the Public Access Counselor, and requires the Attorney General to appoint the Counselor. Authorizes the Counselor to issue binding opinions on a public body's compliance with the Open Meetings Act or on a public body's denial of access to public records, when requested by the denied party. Provides for administrative review of Public Access Counselor's opinions.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning government.

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

Section 5. The Open Meetings Act is amended by adding Sections 3.5 and 7.5 as follows:

(5 ILCS 120/3.5 new)

Sec. 3.5. Public Access Counselor; opinions.

(a) A person who believes that a violation of this Act has occurred may file a request for review with the Public Access Counselor established in the Office of the Attorney General. The request for review must be in writing, be signed by the requestor, and include a summary of the facts supporting the allegation.

(b) The Public Access Counselor shall immediately notify the State's Attorney of the county in which the alleged violation occurred that a request for review has been received and shall forward a copy of the complaint. The State's Attorney shall determine whether he or she wishes to conduct an investigation of the alleged violation. If the State's Attorney elects not to conduct an investigation, he or she shall notify the Public Access Counselor, who may then proceed to review the allegations. The Public Access Counselor shall notify the public body of the request for review within 7 working days thereafter.

(c) The public body shall provide access to records and otherwise fully cooperate with the Public Access Counselor to the extent necessary for the Public Access Counselor to issue a timely opinion as to the allegation of a violation. Alternatively, the Public Access Counselor may issue subpoenas to any person or public body having knowledge of or records pertaining to an alleged violation of this Act. For purposes of conducting a thorough review, the Public Access Counselor shall have the same right to examine a verbatim recording of a meeting closed to the public or the minutes of a closed meeting as does a court in a civil action brought to enforce the Act.

(d) Unless the Public Access Counselor extends the time on written notice to the requestor and public body and includes a statement of the reasons for the extension in the notice, the Public Access Counselor shall issue to the requestor and the public body an opinion in response to the request for review within 60 days after initiating review. The opinion shall be binding upon both the requestor and the public, subject to judicial review under Section 7.5 of this Act.

(e) If the requestor files suit under Section 3 with respect to the same alleged violation that is the subject of a pending request for review, the requestor shall notify the Public Access Counselor, and the Public Access Counselor shall take no further action with respect to the request for review.

(f) Records that are obtained by the Public Access Counselor from a person or a public body for purposes of review and issuance of an opinion under this Section may not be disclosed to the public by the Public Access Counselor. Those records while in the possession of the Public Access Counselor shall be exempt from disclosure under the Freedom of Information Act.

(5 ILCS 120/7.5 new)

Sec. 7.5. Administrative review. An opinion issued by the Public Access Counselor shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law.

Section 10. The Freedom of Information Act is amended by adding Sections 3.5, 9.5, and 11.5 as follows:

(5 ILCS 140/3.5 new)

Sec. 3.5. Freedom of Information Officer.

(a) Each public body shall designate an official or employee to act as its Freedom of Information officer. The Freedom of Information officer shall receive requests submitted to the public body under this Act, direct such requests to appropriate persons within the public body or to appropriate persons in another public body, ensure that the public body responds to requests in a timely fashion, and issue final responses under this Act. Upon receiving a request for a public record, the Freedom of Information officer shall:

(i) Note the date of receipt on the written request;

(ii) Compute the day on which the period for response will expire and make a notation of that date on the written request;

(iii) Maintain an electronic or paper copy of a written request, including all documents submitted with the request until the request has been complied with or denied; and

(iv) Create a file for the retention of the original request, a copy of the response, a record of written communications with the requester, and a copy of other communications.

(b) All Freedom of Information Officers shall, within 6 months after the effective date of this amendatory Act of the 96th General Assembly, successfully complete an electronic training curriculum to be developed by the Public Access Counselor. Thereafter, whenever a new Freedom of Information Officer is designated by a public body, that person shall successfully complete the electronic training curriculum within 30 days after assuming the position. Successful completion of the required training curriculum within the periods provided shall be a prerequisite to continue serving as a Freedom of Information Officer.

(5 ILCS 140/9.5 new)

Sec. 9.5. Public Access Counselor; opinions.

(a) A person whose request to inspect or copy a public record is denied by a public body may file a request for review with the Public Access Counselor established in the Office of the Attorney General. The request for review must be in writing, signed by the requestor, and include (i) a copy of the request for access to records and (ii) any responses from the public body.

(b) The Public Access Counselor shall forward a copy of a proper request for review to the public body within 7 working days after receipt. The public body shall provide access to records and otherwise fully cooperate with the Counselor to the extent necessary for the Counselor to issue a timely opinion as to the propriety of the denial. Alternatively, the Public Access Counselor may issue subpoenas to any person or public body having knowledge of or records pertaining to a request for review of a denial of access to records under this Act.

(c) Unless the Public Access Counselor extends the time on written notice to the requestor and public body and includes a statement of the reasons for the extension in the notice, the Counselor shall issue to the requestor and the public body an opinion in response to the request for review within 60 days after its receipt. The opinion shall be binding upon both the requestor and the public body, subject to judicial review under Section 11.

(d) If the requestor files suit under Section 11 with respect to the same denial that is the subject of a pending request for review, the requestor shall notify the Public Access Counselor, and the Public Access Counselor shall take no further action with respect to the request for review.

(e) Records that are the subject of a request for review and obtained by the Public Access Counselor from a public body for purposes of issuing an opinion under this Section may not be disclosed to the public by the Public Access Counselor.

(5 ILCS 140/11.5 new)

Sec. 11.5. Administrative review. An opinion issued by the Public Access Counselor shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law.

Section 15. The Attorney General Act is amended by adding Section 7 as follows:

(15 ILCS 205/7 new)

Sec. 7. Public Access Counselor.

(a) The General Assembly finds that members of the public have encountered obstacles in obtaining copies of public records from units of government, that many of those obstacles result from difficulties that both members of the public and public bodies have had in interpreting and applying the Freedom of Information Act. The General Assembly further finds that members of the public heave encountered difficulties in resolving alleged violations of the Open Meetings Act. The public's significant interest in access to public records and in open meetings would be better served if there were a central office available to provide advice and education with respect to the interpretation and implementation of the Freedom of Information Act and the Open Meetings Act.

(b) Therefore, there is created in the Office of the Attorney General the Office of Public Access Counselor. The Attorney General shall appoint a Public Access Counselor on the basis of experience and demonstrated knowledge and ability. The Public Access Counselor's Office shall be comprised of the Public Access Counselor and such assistant attorneys general and other staff as are deemed necessary by the Attorney General. A separate appropriation shall be made to the Attorney General to fund the operations of the Office of Public Access Counselor.

(c) The Public Access Counselor shall have the power:

(1) to establish and administer a program to train public officials and educate the public on the rights of the public and the responsibilities of public bodies under the Freedom of Information Act and the Open Meetings Act;

(2) to prepare and distribute interpretive or educational materials and programs;

(3) to issue binding opinions as provided in Section 9.5 of the Freedom of Information Act and Section 3.5 of the Open Meetings Act; except that the Public Access Counselor may not issue an opinion concerning a specific matter with respect to which a lawsuit has been filed under Section 11 of the Freedom of Information Act or Section 3 of the Open Meetings Act;

(4) to respond to informal inquiries made by the public and public bodies;

(5) to conduct research on compliance issues;

(6) to make recommendations to the General Assembly concerning ways to improve access to public records and on other issues pertaining to public access to the processes of government;

(7) to develop and make available on the Attorney General's website or by other means an electronic training curriculum for Freedom of Information Officers; successful completion of the training program within the requisite time periods shall be a prerequisite to continue serving as a Freedom of Information Officer; and

(8) to adopt rules necessary to implement these powers.

(d) To accomplish the objectives and to carry out the duties prescribed by this Section, the Public Access Counselor, in addition to other powers conferred upon him or her by this Section, may issue subpoenas as provided in Section 9.5 of the Freedom of Information Act and Section 3.5 of the Open Meetings Act. Service by the Public Access Counselor of any subpoena upon any person shall be made:

(i) personally by delivery of a duly executed copy thereof to the person to be served, or in the case of a public body, in the manner provided in Section 2-211 of the Civil Practice Law; or

(ii) by mailing by certified mail a duly executed copy thereof to the person to be served at his or her last known abode or, in the case of a public body, to its principal place of business.

(e) If any person or public body fails or refuses to obey any subpoena issued by the Public Access Counselor, the Attorney General may file a complaint in the circuit court for the:

(i) granting of injunctive relief; and

(ii) granting of such other relief as may be required.

(f) The Public Access Counselor shall post his or her opinions on the official website of the Office of the Attorney General, with links to those opinions from the official home page, and shall make them available for inspection in his or her office. Further, the Public Access Counselor, at least annually, shall post the following information on the Attorney General's website:

(1) the number of complaints received since the date of the last report;

(2) the number of opinions issued since the date of the last report; and

(3) a summary of the decisions issued since the date of the last report.