Bill Text: IL SB2621 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Creates the Public-Private Transportation Act of 2010. Finds that the public need for timely development and operation of transportation facilities may not be wholly satisfied by the existing methods of delivering those services, and authorizing private entities to develop or operate one or more transportation facilities may result in the development or operation of such transportation facilities to the public in a more timely, more efficient, or less costly fashion, thereby serving the public safety and welfare. Provides that a private entity may enter into comprehensive agreements with the State and any agency or authority thereof, any city, village, incorporated town, or county and any other political subdivision of any of the foregoing for the development or operation of transportation facilities. Allows for the comprehensive agreement between the public and private entities to include a maximum rate of return for the private entity on the development or operation of the transportation facility, and provides for the allowable methods of compensation for both the public and private parties. Provides detailed rules and procedures for: the dedication of public property as a transportation facility, the powers and duties of the private entity, interim and service agreements, financing, material default and remedies, condemnation, crossing of utility lines, sovereign immunity, public disclosure, and procurement, among others. Amends the Freedom of Information Act to provide exemptions for certain proprietary information related to the new Act. Effective immediately.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2010-03-08 - Rule 3-9(a) / Re-referred to Assignments [SB2621 Detail]

Download: Illinois-2009-SB2621-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 SB2621 Introduced 1/21/2010, by Sen. Dale E. Risinger SYNOPSIS AS INTRODUCED:
New Act
5 ILCS 140/7 from Ch. 116, par. 207
Creates the Public-Private Transportation Act of 2010. Finds that the public need for timely development and operation of transportation facilities may not be wholly satisfied by the existing methods of delivering those services, and authorizing private entities to develop or operate one or more transportation facilities may result in the development or operation of such transportation facilities to the public in a more timely, more efficient, or less costly fashion, thereby serving the public safety and welfare. Provides that a private entity may enter into comprehensive agreements with the State and any agency or authority thereof, any city, village, incorporated town, or county and any other political subdivision of any of the foregoing for the development or operation of transportation facilities. Allows for the comprehensive agreement between the public and private entities to include a maximum rate of return for the private entity on the development or operation of the transportation facility, and provides for the allowable methods of compensation for both the public and private parties. Provides detailed rules and procedures for: the dedication of public property as a transportation facility, the powers and duties of the private entity, interim and service agreements, financing, material default and remedies, condemnation, crossing of utility lines, sovereign immunity, public disclosure, and procurement, among others. Amends the Freedom of Information Act to provide exemptions for certain proprietary information related to the new Act. Effective immediately.
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FISCAL NOTE ACT MAY APPLY STATE DEBT IMPACT NOTE ACT MAY APPLY
A BILL FOR
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AN ACT concerning transportation.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Public-Private Transportation Act of 2010.
Section 5. Definitions. As used in this Act:
"Affected jurisdiction" means any city, village,
incorporated town, or county in which all or a portion of a
qualifying transportation facility is located and any other
responsible public entity directly affected by the qualifying
transportation facility.
"Asset management" means a systematic process of operating
and maintaining the State highway system by combining
engineering practices and analyses with sound business
practices and economic theory to achieve cost-effective
outcomes.
"Comprehensive agreement" means the comprehensive
agreement between the private entity and the responsible public
entity required by Section 45 of this Act.
"Concession" means any lease, license, franchise,
easement, or other binding agreement transferring rights for
the use or control, in whole or in part, of a qualifying
transportation facility by a responsible public entity to a

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private entity for a definite term during which the private
entity will provide transportation-related services including,
but not limited to, operations and maintenance, revenue
collection, toll-collection enforcement, design, construction,
and other activities that enhance throughput, reduce
congestion, or otherwise manage the facility in return for the
right to receive all or a portion of the revenues of the
qualifying transportation facility.
"Concession payment" means a payment from a private entity
to a responsible public entity in connection with the
development and/or operation of a qualifying transportation
facility pursuant to a concession.
"Develop" or "development" means to plan, design, develop,
finance, lease, acquire, install, construct, or expand.
"Interim agreement" means an agreement, including a
memorandum of understanding or binding preliminary agreement,
between the private entity and the responsible public entity
that provides for completion of studies and any other
activities to advance the development and/or operation of a
qualifying transportation facility.
"Maintenance" has the meaning ascribed to that term in
Section 2-214 of the Illinois Highway Code.
"Material default" means any default by the private entity
in the performance of its duties under subsection (e) of
Section 40 of this Act that jeopardizes adequate service to the
public from a qualifying transportation facility and remains

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unremedied after the responsible public entity has provided
notice to the private entity and a reasonable cure period has
elapsed.
"Multimodal transportation facility" means a
transportation facility consisting of multiple modes of
transportation.
"Operate" or "operation" means to finance, maintain,
improve, equip, modify, repair, or operate.
"Private entity" means any natural person, corporation,
general partnership, limited liability company, limited
partnership, joint venture, business trust, public benefit
corporation, non-profit entity, or other business entity.
"Public entity" means the State and any agency or authority
thereof, any city, village, incorporated town, or county and
any other political subdivision of any of the foregoing.
"Public utility" has the meaning ascribed to it in Section
3-105 of the Public Utilities Act.
"Qualifying transportation facility" means one or more
transportation facilities developed and/or operated by a
private entity pursuant to this Act.
"Responsible public entity" means a public entity,
including local governments and regional authorities, that has
the power to develop and/or operate the qualifying
transportation facility.
"Revenues" means all revenues, including, but not limited
to, income, earnings, user fees, lease payments, allocations,

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federal, State, regional, and local appropriations or the
appropriations or other funds available to any political
subdivision, authority, or instrumentality thereof, bond
proceeds, equity investments, and/or service payments arising
out of or in connection with supporting the development and/or
operation of a qualifying transportation facility, including
without limitation, money received as grants or otherwise from
the United States of America, from any public entity, or from
any agency or instrumentality of the foregoing in aid of such
facility.
"Service contract" means a contract entered into between a
public entity and the private entity pursuant to Section 25 of
this Act.
"Service payments" means payments to the private entity in
connection with the development and/or operation of a
qualifying transportation facility pursuant to a service
contract.
"Transportation facility" means any road, bridge, tunnel,
overpass, ferry, airport, mass transit facility, vehicle
parking facility, port facility, or similar commercial
facility used for the transportation of persons or goods,
together with any buildings, structures, parking areas,
appurtenances, and other property needed to operate such
facility; however, a commercial or retail use or enterprise not
essential to the transportation of persons or goods is not a
"transportation facility".

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"User fees" mean the rates, tolls, fees, or other charges
imposed by the private entity for use of all or a portion of a
qualifying transportation facility pursuant to the interim or
comprehensive agreement.
Section 10. Findings and policy.
(a) There is a public need for timely development and/or
operation of transportation facilities within the State that
address the needs identified by the appropriate State,
regional, or local transportation plan by improving safety,
reducing congestion, increasing capacity, and/or enhancing
economic efficiency and that such public need may not be wholly
satisfied by existing methods of procurement in which
qualifying transportation facilities are developed and/or
operated;
(b) The public need may not be wholly satisfied by existing
ways in which transportation facilities are developed and/or
operated; and
(c) Authorizing private entities to develop and/or operate
one or more transportation facilities may result in the
development and/or operation of such transportation facilities
to the public in a more timely, more efficient, or less costly
fashion, thereby serving the public safety and welfare.
(1) An action, other than the approval of the
responsible public entity under Section 20 of this Act,
must serve the public purpose of this Act if such action,

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including undertaking a concession, facilitates the timely
development and/or operation of a qualifying
transportation facility.
(2) It is the intent of this Act, among other things,
to encourage investment in the State by private entities
that facilitates the development and/or operation of
transportation facilities. Accordingly, public and private
entities may have the greatest possible flexibility in
contracting with each other for the provision of the public
services which are the subject of this Act.
(3) This Act shall be liberally construed in conformity
with the purposes hereof.
Section 15. Prerequisite for operation. Any private entity
seeking authorization under this Act to develop and/or operate
a transportation facility must first obtain approval of the
responsible public entity under Section 20. Such private entity
may initiate the approval process by requesting approval
pursuant to subsection (a) of Section 20 or the responsible
public entity may request proposals pursuant to subsection (b)
of Section 20.
Section 20. Approval by the responsible public entity.
(a) The private entity may request approval by the
responsible public entity. Any such request must be accompanied
by the following material and information unless waived by the

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responsible public entity in its guidelines or other
instructions given, in writing, to the private entity with
respect to the transportation facility or facilities that the
private entity proposes to develop and/or operate as a
qualifying transportation facility:
(1) A topographic map (1:2,000 or other appropriate
scale) indicating the location of the transportation
facility or facilities;
(2) A description of the transportation facility or
facilities, including the conceptual design of such
facility or facilities and all proposed interconnections
with other transportation facilities;
(3) The proposed date for development and/or operation
of the transportation facility or facilities along with an
estimate of the life-cycle cost of the transportation
facility as proposed;
(4) A statement setting forth the method by which the
private entity proposes to secure any property interests
required for the transportation facility or facilities;
(5) Information relating to the current transportation
plans, if any, of each affected jurisdiction;
(6) A list of all permits and approvals required for
developing and/or operating improvements to the
transportation facility or facilities from local, State,
or federal agencies and a projected schedule for obtaining
such permits and approvals;

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(7) A list of public utility facilities, if any, that
will be crossed by the transportation facility or
facilities and a statement of the plans of the private
entity to accommodate such crossings;
(8) A statement setting forth the private entity's
general plans for developing and/or operating the
transportation facility or facilities, including
identification of any revenue, public or private, or
proposed debt or equity investment or concession proposed
by the private entity;
(9) The names and addresses of the persons who may be
contacted for further information concerning the request;
(10) Information on how the private entity's proposal
will address the needs identified in the appropriate State,
regional, or local transportation plan by improving
safety, reducing congestion, increasing capacity, and/or
enhancing economic efficiency; and
(11) Such additional material and information as the
responsible public entity may reasonably request pursuant
to its guidelines or other written instructions.
(b) The responsible public entity may request proposals
from private entities for the development and/or operation of
transportation facilities. The responsible public entity may
not charge a fee to cover the costs of processing, reviewing,
and evaluating proposals received in response to such requests.
(c) The responsible public entity may grant approval of the

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development and/or operation of the transportation facility or
facilities as a qualifying transportation facility if the
responsible public entity determines that it serves the public
purpose of this Act. The responsible public entity may
determine that the development and/or operation of the
transportation facility or facilities as a qualifying
transportation facility serves such public purpose if:
(1) There is a public need for the transportation
facility or facilities the private entity proposes to
develop and/or operate as a qualifying transportation
facility;
(2) The transportation facility or facilities and the
proposed interconnections with existing transportation
facilities, and the private entity's plans for development
and/or operation of the qualifying transportation facility
or facilities, are, in the opinion of the responsible
public entity, reasonable and will address the needs
identified in the appropriate State, regional, or local
transportation plan by improving safety, reducing
congestion, increasing capacity, and/or enhancing economic
efficiency;
(3) The estimated cost of developing and/or operating
the transportation facility or facilities is reasonable in
relation to similar facilities; and
(4) The private entity's plans will result in the
timely development and/or operation of the transportation

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facility or facilities or their more efficient operation.
In evaluating any request, the responsible public entity
may rely upon internal staff reports prepared by personnel
familiar with the operation of similar facilities or the
advice of outside advisors or consultants having relevant
experience.
(d) The responsible public entity may charge a reasonable
fee to cover the costs of processing, reviewing, and evaluating
the request submitted by a private entity pursuant to
subsection (a), including without limitation, reasonable
attorney's fees and fees for financial and other necessary
advisors or consultants. The responsible public entity must
also develop guidelines that establish the process for the
acceptance and review of a proposal from a private entity
pursuant to subsections (a) and (b). Such guidelines must
establish a specific schedule for review of the proposal by the
responsible public entity, a process for alteration of that
schedule by the responsible public entity if it deems that
changes are necessary because of the scope or complexity of
proposals it receives, the process for receipt and review of
competing proposals, and the type and amount of information
that is necessary for adequate review of proposals in each
stage of review. For qualifying transportation facilities that
have approved or pending State and federal environmental
clearances, secured significant right of way, have previously
allocated significant State or federal funding, or exhibit

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other circumstances that could reasonably reduce the amount of
time to develop and/or operate the qualifying transportation
facility in accordance with the purpose of this Act, the
guidelines must provide for a prioritized documentation,
review, and selection process.
(e) The approval of the responsible public entity is
subject to the private entity's entering into an interim
agreement or a comprehensive agreement with the responsible
public entity. For any project with an estimated construction
cost of over $50,000,000, the responsible public entity must
also require the private entity to pay the costs for an
independent audit of any and all traffic and cost estimates
associated with the private entity's proposal, as well as a
review of all public costs and potential liabilities to which
taxpayers could be exposed (including improvements to other
transportation facilities that may be needed as a result of the
proposal, failure by the private entity to reimburse the
responsible public entity for services provided, and potential
risk and liability in the event the private entity defaults on
the comprehensive agreement or on bonds issued for the
project). This independent audit must be conducted by an
independent consultant selected by the responsible public
entity, and all such information from such review must be fully
disclosed.
(f) In connection with its approval of the development
and/or operation of the transportation facility or facilities

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as a qualifying transportation facility, the responsible
public entity must establish a date for the acquisition of or
the beginning of construction of or improvements to the
qualifying transportation facility. The responsible public
entity may extend such date from time to time.
(g) The responsible public entity must take appropriate
action, as more specifically set forth in its guidelines, to
protect confidential and proprietary information provided by
the private entity pursuant to an agreement under paragraph
(tt) of subsection (1) of Section 7 of the Freedom of
Information Act.
(h) The responsible public entity may also apply for,
execute, and/or endorse applications submitted by private
entities to obtain federal credit assistance for qualifying
projects developed and/or operated pursuant to this Act.
Section 25. Service contracts. In addition to any authority
otherwise conferred by law, any public entity may contract with
a private entity for transportation services to be provided by
a qualifying transportation facility in exchange for such
service payments and other consideration as such public entity
may deem appropriate.
Section 30. Affected jurisdictions.
(a) Any private entity requesting approval from, or
submitting a proposal to, a responsible public entity under

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Section 20 must notify each affected jurisdiction by furnishing
a copy of its request or proposal to each affected
jurisdiction.
(b) Each affected jurisdiction that is not a responsible
public entity for the respective qualifying transportation
facility must, within 60 days after receiving a request for
comments from the responsible public entity, submit any
comments it may have in writing on the proposed qualifying
transportation facility to the responsible public entity and
indicating whether the facility will address the needs
identified in the appropriate State, regional, or local
transportation plan by improving safety, reducing congestion,
increasing capacity, and/or enhancing economic efficiency.
Section 35. Dedication of public property. Any public
entity may dedicate any property interest that it has for
public use as a qualified transportation facility if it finds
that so doing will serve the public purpose of this Act. In
connection with such dedication, a public entity may convey any
property interest that it has, subject to the conditions
imposed by general law governing such conveyances, to the
private entity, subject to the provisions of this Act, for such
consideration as such public entity may determine. The
aforementioned consideration may include, without limitation,
the agreement of the private entity to develop and/or operate
the qualifying transportation facility. The property interests

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that the public entity may convey to the private entity in
connection with a dedication under this Section may include
licenses, franchises, easements, concessions, or any other
right or interest the public entity deems appropriate. Such
property interest including, but not limited to, a leasehold
interest in and/or rights to use real property constituting a
qualifying transportation facility is considered property
indirectly owned by a government if described in Section 15-55
of the Property Tax Code.
Section 40. Powers and duties of the private entity.
(a) The private entity has all power allowed by law
generally to a private entity having the same form of
organization as the private entity and has the power to develop
and/or operate the qualifying transportation facility and
impose user fees and/or enter into service contracts in
connection with the use thereof.
(b) The private entity may own, lease or acquire any other
right to use or develop and/or operate the qualifying
transportation facility.
(c) Subject to applicable permit requirements, the private
entity has the authority to cross any canal or navigable
watercourse so long as the crossing does not unreasonably
interfere with then current navigation and use of the waterway.
(d) In operating the qualifying transportation facility,
the private entity may:

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(1) Make classifications according to reasonable
categories for assessment of user fees; and
(2) With the consent of the responsible public entity,
make and enforce reasonable rules to the same extent that
the responsible public entity may make and enforce rules
with respect to a similar transportation facility.
(e) The private entity must:
(1) Develop and/or operate the qualifying
transportation facility in a manner that meets the
standards of the responsible public entity for
transportation facilities operated and maintained by such
responsible public entity, all in accordance with the
provisions of the interim agreement or the comprehensive
agreement;
(2) Keep the qualifying transportation facility open
for use by the members of the public in accordance with the
terms and conditions of the interim or comprehensive
agreement after its initial opening upon payment of the
applicable user fees, and/or service payments; provided
that the qualifying transportation facility may be
temporarily closed because of emergencies or, with the
consent of the responsible public entity, to protect the
safety of the public or for reasonable construction or
maintenance procedures;
(3) Maintain, or provide by contract for the
maintenance of, the qualifying transportation facility;

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(4) Cooperate with the responsible public entity in
establishing any interconnection with the qualifying
transportation facility requested by the responsible
public entity; and
(5) Comply with the provisions of the interim or
comprehensive agreement and any service contract.
Section 45. Comprehensive agreement.
(a) Prior to developing and/or operating the qualifying
transportation facility, the private entity must enter into a
comprehensive agreement with the responsible public entity.
The comprehensive agreement must, as appropriate, provide for:
(1) Delivery of performance and payment bonds in
connection with the development and/or operation of the
qualifying transportation facility, in the forms and
amounts satisfactory to the responsible public entity;
(2) Review of plans for the development and/or
operation of the qualifying transportation facility by the
responsible public entity and approval by the responsible
public entity if the plans conform to standards acceptable
to the responsible public entity;
(3) Inspection of construction of or improvements to
the qualifying transportation facility by the responsible
public entity to ensure that they conform to the standards
acceptable to the responsible public entity;
(4) Maintenance of a policy or policies of public

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liability insurance (copies of which must be filed with the
responsible public entity accompanied by proofs of
coverage) or self-insurance, each in form and amount
satisfactory to the responsible public entity and
reasonably sufficient to insure coverage of tort liability
to the public and employees and to enable the continued
operation of the qualifying transportation facility;
(5) Monitoring of the maintenance practices of the
private entity by the responsible public entity and the
taking of such actions as the responsible public entity
finds appropriate to ensure that the qualifying
transportation facility is properly maintained;
(6) Reimbursement to be paid to the responsible public
entity for services provided by the responsible public
entity;
(7) Filing of appropriate financial statements in a
form acceptable to the responsible public entity on a
periodic basis;
(8) Compensation to the private entity which may
include a reasonable development fee, a reasonable maximum
rate of return on investment, and/or reimbursement of
development expenses in the event of termination for
convenience by the responsible public entity as agreed upon
between the responsible public entity and the private
entity;
(9) The date of termination of the private entity's

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authority and duties under this Act and dedication to the
appropriate public entity; and
(10) Guaranteed cost and completion guarantees related
to the development and/or operation of the qualified
transportation facility and payment of damages for failure
to meet the completion guarantee.
(b) The comprehensive agreement must provide for such user
fees as may be established from time to time by agreement of
the parties. Any user fees must be set at a level that takes
into account any lease payments, service payments, and
compensation to the private entity or as specified in the
comprehensive agreement. A copy of any service contract must be
filed with the responsible public entity. A schedule of the
current user fees must be made available by the private entity
to any member of the public on request. In negotiating user
fees under this Section, the parties must establish fees that
are the same for persons using the facility under like
conditions except as required by agreement between the parties
to preserve capacity and prevent congestion on the qualifying
transportation facility. The execution of the comprehensive
agreement or any amendment thereto constitutes conclusive
evidence that the user fees provided for therein comply with
this Act. User fees established in the comprehensive agreement
as a source of revenues may be in addition to, or in lieu of,
service payments.
(c) In the comprehensive agreement, the responsible public

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entity may agree to make grants or loans for the development
and/or operation of the qualifying transportation facility
from time to time from amounts received from the federal
government or any agency or instrumentality thereof.
(d) The comprehensive agreement must incorporate the
duties of the private entity under this Act and may contain
such other terms and conditions that the responsible public
entity determines serve the public purpose of this Act. Without
limitation, the comprehensive agreement may contain provisions
under which the responsible public entity agrees to provide
notice of default and cure rights for the benefit of the
private entity and the persons specified therein as providing
financing for the qualifying transportation facility. The
comprehensive agreement may contain such other lawful terms and
conditions to which the private entity and the responsible
public entity mutually agree, including, without limitation,
provisions regarding unavoidable delays or provisions
providing for a loan of public funds for the development and/or
operation of one or more qualifying transportation facilities.
(e) The comprehensive agreement must provide for the
distribution of any earnings in excess of the maximum rate of
return as negotiated in the comprehensive agreement. Without
limitation, excess earnings may be distributed to the State's
Road Fund, to the responsible public entity, or to the private
entity for debt reduction or they may be shared with
appropriate public entities. Any payments under a concession

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arrangement for which the State is the responsible public
entity must be paid into the Road Fund.
(f) Any changes in the terms of the comprehensive
agreement, as may be agreed upon by the parties from time to
time, must be added to the comprehensive agreement by written
amendment.
(g) Notwithstanding any contrary provision of this Act, a
responsible public entity may enter into a comprehensive
agreement with multiple private entities if the responsible
public entity determines in writing that it is in the public
interest to do so.
(h) The comprehensive agreement may provide for the
development and/or operation of phases or segments of the
qualifying transportation facility.
Section 50. Interim agreement.
(a) Prior to or in connection with the negotiation of the
comprehensive agreement, the responsible public entity may
enter into an interim agreement with the private entity
proposing the development and/or operation of the facility or
facilities. Such interim agreement may: (i) permit the private
entity to commence activities for which it may be compensated
relating to the proposed qualifying transportation facility,
including project planning and development, advance
right-of-way acquisition, design and engineering,
environmental analysis and mitigation, survey, conducting

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transportation and revenue studies, and ascertaining the
availability of financing for the proposed facility or
facilities; (ii) establish the process and timing of the
negotiation of the comprehensive agreement; and (iii) contain
any other provisions related to any aspect of the development
and/or operation of a qualifying transportation facility that
the parties may deem appropriate.
(b) Notwithstanding anything to the contrary in this Act, a
responsible public entity may enter in to an interim agreement
with multiple private entities if the responsible public entity
determines in writing that it is in the public interest to do
so.
Section 55. Multiple public entities.
(a) If a private entity submits a proposal pursuant to
subsection (a) of Section 20 of this Act to develop and/or
operate a qualifying transportation facility or a multimodal
transportation facility that may require approval by more than
one public entity, representatives of each of the affected
public entities must, prior to acceptance of such proposal,
convene and determine which public entity will serve as the
coordinating responsible public entity. Such determination
must occur within 60 days of the receipt of a proposal by the
respective public entities.
(b) If public entities request proposals from private
entities for the development and/or operation of a qualifying

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transportation facility or a multimodal transportation
facility pursuant to subsection (b) of Section 20, the
determination of which public entity will serve as the
coordinating responsible public entity must be made prior to
any request for proposals.
(c) Once a determination has been made in accordance with
subsections (a) or (b), the coordinating responsible public
entity and the private entity must proceed in accordance with
this Act.
Section 60. Federal, State and local assistance.
(a) The responsible public entity may take any action to
obtain federal, State, or local assistance for a qualifying
transportation facility that serves the public purpose of this
Act and may enter into any contracts required to receive such
federal assistance. If the responsible public entity is a State
agency, any funds received from the State or federal government
or any agency or instrumentality thereof are subject to
appropriation by the General Assembly. The responsible public
entity may determine that it serves the public purpose of this
Act for all or any portion of the costs of a qualifying
transportation facility to be paid, directly or indirectly,
from the proceeds of a grant or loan made by the local, State,
or federal government or any agency or instrumentality thereof.
(b) The responsible public entity may agree to make grants
or loans for the development and/or operation of the qualifying

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transportation facility from time to time from amounts received
from the federal, State, or local government, or any agency or
instrumentality thereof.
(c) Nothing in this Act or in an interim or comprehensive
agreement entered into pursuant to this Act may be deemed to
enlarge, diminish, or affect the authority, if any, otherwise
possessed by the responsible public entity to take action that
would impact the debt capacity of the State or the affected
jurisdictions.
Section 65. Financing. Any financing of a qualifying
transportation facility may be in such amounts and upon such
terms and conditions as may be determined by the parties to the
interim or comprehensive agreement. Without limiting the
generality of the foregoing, the private entity and the
responsible public entity may propose to utilize any and all
revenues that may be available to them and may, to the fullest
extent permitted by applicable law, issue debt, equity, or
other securities or obligations, enter into leases,
concessions, and grant and loan agreements, access any
designated transportation trust funds, borrow or accept grants
from any State infrastructure bank and secure any financing
with a pledge of, security interest in, or lien on, any or all
of its property, including all of its property interests in the
qualifying transportation facility.

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Section 70. Material default; remedies.
(a) Upon the occurrence and during the continuation of
material default, the responsible public entity may exercise
any or all of the following remedies:
(1) The responsible public entity may elect to take
over the transportation facility or facilities and in such
case it must succeed to all of the right, title and
interest in such transportation facility or facilities,
subject to any liens on revenues previously granted by the
private entity to any person providing financing therefor;
(2) The responsible public entity may terminate the
interim or comprehensive agreement and exercise any other
rights and remedies which may be available to it at law or
in equity; or
(3) The responsible public entity may make or cause to
be made any appropriate claims under the performance and/or
payment bonds required by Section 45.
(b) In the event the responsible public entity elects to
take over a qualifying transportation facility pursuant to
subsection (a), the responsible public entity may develop
and/or operate the transportation facility, impose user fees
for the use thereof and comply with any service contracts as if
it were the private entity. Any revenues that are subject to a
lien must be collected for the benefit of, and paid to, secured
parties, as their interests may appear, to the extent necessary
to satisfy the private entity's obligations to secured parties,

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including the maintenance of reserves and such liens must be
correspondingly reduced and, when paid off, released. Before
any payments to, or for the benefit of, secured parties, the
responsible public entity may use revenues to pay current
operation and maintenance costs of the transportation facility
or facilities, including compensation to the responsible
public entity for its services in operating and maintaining the
qualifying transportation facility. Remaining revenues, if
any, after all payments for operation and maintenance of the
transportation facility or facilities, and to, or for the
benefit of, secured parties, have been made, must be paid to
the private entity, subject to the negotiated maximum rate of
return. The right to receive such payment, if any, must be
considered just compensation for the transportation facility
or facilities. The full faith and credit of the responsible
public entity may not be pledged to secure any financing of the
private entity by the election to take over the qualifying
transportation facility. Assumption of operation of the
qualifying transportation facility does not obligate the
responsible public entity to pay any obligation of the private
entity from sources other than revenues.
Section 75. Condemnation.
(a) At the request of the private entity, the responsible
public entity may exercise any power of condemnation that it
has under law for the purpose of acquiring any lands or estates

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or interests therein to the extent that the responsible public
entity finds that such action serves the public purpose of this
Act. Any amounts to be paid in any such condemnation proceeding
must be paid by the private entity.
(b) Except as provided in subsection (a), until the
Secretary of State, after notice to the private entity and the
secured parties, as may appear in the private entity's records,
and an opportunity for hearing, has entered a final declaratory
judgment that a material default has occurred and is
continuing, the power of condemnation may not be exercised
against a qualifying transportation facility.
(c) After the entry of such final order by the Secretary of
State, any responsible public entity having the power of
condemnation under State law may exercise such power of
condemnation in lieu of, or at any time after taking over the
transportation facility pursuant to paragraph (1) of Section 70
of this Act, to acquire the qualifying transportation facility
or facilities. Nothing in this Act may be construed to limit
the exercise of the power of condemnation by any responsible
public entity against a qualifying transportation facility
after the entry by the Secretary of State of a final
declaratory judgment order pursuant to subsection (b). Any
person that has provided financing for the qualifying
transportation facility and the private entity, to the extent
of its capital investment, may participate in the condemnation
proceedings with the standing of a property owner.

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Section 80. Utility crossings. The private entity and each
public utility, railroad, and cable television provider, whose
facilities are to be crossed or affected must cooperate fully
with the other in planning and arranging the manner of the
crossing or relocation of the facilities. Any such entity
possessing the power of condemnation is hereby expressly
granted such powers in connection with the moving or relocation
of facilities to be crossed by the qualifying transportation
facility or that must be relocated to the extent that such
moving or relocation is made necessary or desirable by
construction of or improvements to the qualifying
transportation facility, which will be construed to include
construction of or improvements to temporary facilities for the
purpose of providing service during the period of construction
or improvement. Should the private entity and any such public
utility, railroad, and cable television provider not be able to
agree upon a plan for the crossing or relocation, the Illinois
Commerce Commission may determine the manner in which the
crossing or relocation is to be accomplished and any damages
due arising out of the crossing or relocation. The Illinois
Commerce Commission may employ expert engineers who will
examine the location and plans for such crossing or relocation,
hear any objections and consider modifications, and make a
recommendation to the Illinois Commerce Commission. In such a
case, the cost of the experts is to be borne by the private

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entity. Any amount to be paid for such crossing, construction,
moving or relocating of facilities must be paid for by the
private entity or any other person contractually responsible
therefor under the interim or comprehensive agreement or under
any other contract, license or permit. The Illinois Commerce
Commission must make a determination within 90 days of
notification by the private entity that the qualifying
transportation facility will cross utilities subject to the
Illinois Commerce Commission's jurisdiction.
Section 85. Police powers; violations of law.
(a) All police officers of the State and of each affected
local jurisdiction, have the same powers and jurisdiction
within the limits of such qualifying transportation facility as
they have in their respective areas of jurisdiction and such
police officers will have access to the qualifying
transportation facility at any time for the purpose of
exercising such powers and jurisdiction. This authority does
not extend to the private offices, buildings, garages, and
other improvements of the private entity to any greater degree
than the police power extends to any other private buildings
and improvements.
(b) To the extent the transportation facility is a road,
bridge, tunnel, overpass, or similar transportation facility
for motor vehicles, the traffic and motor vehicle laws of the
State or, if applicable, any local jurisdiction must be the

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same as those applying to conduct on similar transportation
facilities in the State or such local jurisdiction. Punishment
for offenses shall be as prescribed by law for conduct
occurring on similar transportation facilities in the State or
such local jurisdiction.
Section 90. Dedication of assets. The responsible public
entity must terminate the private entity's authority and duties
under this Act on the date set forth in the interim or
comprehensive agreement. Upon termination, the authority and
duties of the private entity under this Act will cease, and the
qualifying transportation facility will be dedicated to the
responsible public entity or, if the qualifying transportation
facility was initially dedicated by an affected jurisdiction,
to such affected local jurisdiction for public use.
Section 95. Sovereign immunity. Nothing in this Act may be
construed as or deemed a waiver of the sovereign immunity of
the State, any responsible public entity or any affected local
jurisdiction or any officer or employee thereof with respect to
the participation in, or approval of all or any part of the
qualifying transportation facility or its operation, including
but not limited to interconnection of the qualifying
transportation facility with any other transportation
facility. A city, village, incorporated town, or county in
which a qualifying transportation facility is located has

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sovereign immunity with respect to its construction and
operation.
Section 100. Procurement.
(a) The Illinois Procurement Code does not apply to this
Act; however, a responsible public entity may enter into an
interim or a comprehensive agreement only in accordance with
guidelines adopted by it as follows:
(1) A responsible public entity may enter into an
interim or a comprehensive agreement in accordance with
guidelines adopted by it that are consistent with
procurement through "competitive sealed bidding" as
provided in Section 20-10 of the Illinois Procurement Code.
(2) A responsible public entity may enter into an
interim or a comprehensive agreement in accordance with
guidelines adopted by it that are consistent with the
procurement of "other than professional services" through
competitive sealed bidding as provided in Sections 20-10
and 30-15 of the Illinois Procurement Code. Such
responsible public entity may not be required to select the
proposal with the lowest price offer, but may consider
price as one factor in evaluating the proposals received.
Other factors that may be considered include (i) the
proposed cost of the qualifying transportation facility;
(ii) the general reputation, qualifications, industry
experience, and financial capacity of the private entity;

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(iii) the proposed design, operation, and feasibility of
the qualifying transportation facility; (iv) the
eligibility of the facility for priority selection,
review, and documentation timelines under the responsible
public entity's guidelines; (v) local citizen and public
entity comments; (vi) benefits to the public; (vii) the
private entity's compliance with a minority business
enterprise participation plan or good faith effort to
comply with the goals of such plan; (viii) the private
entity's plans to employ local contractors and residents;
(ix) the safety record of the private entity; (x) the
ability of the facility to address the needs identified in
the appropriate State, regional or local transportation
plan by improving safety, reducing congestion, increasing
capacity, and/or enhancing economic efficiency; and (xi)
other criteria that the responsible public entity deems
appropriate.
A responsible public entity must proceed in accordance
with the guidelines adopted by it pursuant to paragraph (1)
of this subsection unless it determines that proceeding in
accordance with the guidelines adopted by it pursuant to
this paragraph is likely to be advantageous to the
responsible public entity and the public, based on: (i) the
probable scope, complexity, or urgency of a project; (ii)
risk sharing including guaranteed cost or completion
guarantees, added value, or debt or equity investments

SB2621 - 32 - LRB096 18328 AJT 33705 b
proposed by the private entity; or (iii) an increase in
funding, dedicated revenue source or other economic
benefit that would not otherwise be available. When the
responsible public entity determines to proceed according
to the guidelines adopted by it pursuant to this paragraph,
it must state the reasons for its determination in writing.
If a State agency is the responsible public entity, the
approval of the Secretary of the Illinois Department of
Transportation may be required as more specifically set
forth in the guidelines before the comprehensive agreement
is signed.
(3) Interim or comprehensive agreements for
maintenance or asset management services for a
transportation facility that is a highway, bridge, tunnel,
or overpass, and any amendment or change order thereto that
increases the highway lane-miles receiving services under
such an agreement, must be procured in accordance with
guidelines that are consistent with procurement through
"competitive sealed bidding" as provided in Section 20-10
of the Illinois Procurement Code. Furthermore, such
contracts must be of a size and scope to encourage maximum
competition and participation by agency prequalified
contractors and otherwise qualified contractors.
(4) The provisions of paragraph (3) do not apply to
maintenance or asset management services agreed to as part
of the initial provisions of any interim or comprehensive

SB2621 - 33 - LRB096 18328 AJT 33705 b
agreement entered into for the original construction,
reconstruction, or improvement of any highway pursuant to
this Act and do not apply to any concession that, at a
minimum, provides for (i) the construction,
reconstruction, or improvement of any transportation
facility or (ii) the operation and maintenance of any
transportation facility with existing toll facilities.
(5) Nothing in this Section requires professional
services be procured by any method other than competitive
sealed bidding in accordance with the Illinois Procurement
Code.
Section 105. Posting of conceptual proposals; public
comment; public access to procurement records.
(a) Conceptual proposals submitted in accordance with
subsection (a) or (b) of Section 20 of this Act to a
responsible public entity must be posted by the responsible
public entity within 10 working days after acceptance of such
proposals as follows:
(1) For responsible public entities that are State
agencies, departments, and institutions, posting must be
in accordance with the Department of Central Management
Services requirements; and
(2) For responsible public entities that are local
public bodies, posting must be on the responsible public
entity's website or by publication, in a newspaper of

SB2621 - 34 - LRB096 18328 AJT 33705 b
general circulation in the area in which the contract is to
be performed, of a summary of the proposals and the
location where copies of the proposals are available for
public inspection.
In addition to the posting requirements, at least one
copy of the proposals must be made available for public
inspection. Nothing in this Section may be construed to
prohibit the posting of the conceptual proposals by
additional means deemed appropriate by the responsible
public entity so as to provide maximum notice to the public
of the opportunity to inspect the proposals. Trade secrets,
financial records, or other records of the private entity
excluded from disclosure under the provisions of paragraph
(tt) of subsection (1) of Section 7 of the Freedom of
Information Act are not be required to be posted, except as
otherwise agreed to by the responsible public entity and
the private entity.
(b) In addition to the posting requirements of subsection
(a), for 30 days prior to entering into an interim or
comprehensive agreement, a responsible public entity must
provide an opportunity for public comment on the proposals. The
public comment period required by this subsection may include a
public hearing in the sole discretion of the responsible public
entity. After the end of the public comment period, no
additional posting is required.
(c) Once the negotiation phase for the development of an

SB2621 - 35 - LRB096 18328 AJT 33705 b
interim or a comprehensive agreement is complete and a decision
to award has been made by a responsible public entity, the
responsible public entity must present the major business
points of the interim or comprehensive agreement, including the
use of any public funds, to its oversight board at a regularly
scheduled meeting of the board that is open to the public.
(d) Once an interim agreement or a comprehensive agreement
has been entered into, a responsible public entity must make
procurement records available for public inspection, in
accordance with the Freedom of Information Act. For the
purposes of this subsection, procurement records may not be
interpreted to include (i) trade secrets of the person as
provided in the Illinois Trade Secrets Act or (ii) financial
records, including balance sheets or financial statements of
the private entity that are not generally available to the
public through regulatory disclosure or otherwise.
(e) Cost estimates relating to a proposed procurement
transaction prepared by or for a responsible public entity must
not be open to public inspection.
(f) Any inspection of procurement transaction records
under this Section is subject to reasonable restrictions to
ensure the security and integrity of the records.
(g) The provisions of this Section apply to accepted
proposals regardless of whether the process of bargaining will
result in an interim or a comprehensive agreement.

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Section 110. Jurisdiction. The Illinois Commerce
Commission has exclusive jurisdiction to adjudicate all
matters specifically committed to its jurisdiction by this Act.
Section 905. The Freedom of Information Act is amended by
changing Section 7 as follows:
(5 ILCS 140/7) (from Ch. 116, par. 207)
(Text of Section before amendment by P.A. 96-736)
Sec. 7. Exemptions.
(1) When a request is made to inspect or copy a public
record that contains information that is exempt from disclosure
under this Section, but also contains information that is not
exempt from disclosure, the public body may elect to redact the
information that is exempt. The public body shall make the
remaining information available for inspection and copying.
Subject to this requirement, the following shall be exempt from
inspection and copying:
(a) Information specifically prohibited from
disclosure by federal or State law or rules and regulations
implementing federal or State law.
(b) Private information, unless disclosure is required
by another provision of this Act, a State or federal law or
a court order.
(b-5) Files, documents, and other data or databases
maintained by one or more law enforcement agencies and

SB2621 - 37 - LRB096 18328 AJT 33705 b
specifically designed to provide information to one or more
law enforcement agencies regarding the physical or mental
status of one or more individual subjects.
(c) Personal information contained within public
records, the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy, unless the
disclosure is consented to in writing by the individual
subjects of the information. "Unwarranted invasion of
personal privacy" means the disclosure of information that
is highly personal or objectionable to a reasonable person
and in which the subject's right to privacy outweighs any
legitimate public interest in obtaining the information.
The disclosure of information that bears on the public
duties of public employees and officials shall not be
considered an invasion of personal privacy.
(d) Records in the possession of any public body
created in the course of administrative enforcement
proceedings, and any law enforcement or correctional
agency for law enforcement purposes, but only to the extent
that disclosure would:
(i) interfere with pending or actually and
reasonably contemplated law enforcement proceedings
conducted by any law enforcement or correctional
agency that is the recipient of the request;
(ii) interfere with active administrative
enforcement proceedings conducted by the public body

SB2621 - 38 - LRB096 18328 AJT 33705 b
that is the recipient of the request;
(iii) create a substantial likelihood that a
person will be deprived of a fair trial or an impartial
hearing;
(iv) unavoidably disclose the identity of a
confidential source, confidential information
furnished only by the confidential source, or persons
who file complaints with or provide information to
administrative, investigative, law enforcement, or
penal agencies; except that the identities of
witnesses to traffic accidents, traffic accident
reports, and rescue reports shall be provided by
agencies of local government, except when disclosure
would interfere with an active criminal investigation
conducted by the agency that is the recipient of the
request;
(v) disclose unique or specialized investigative
techniques other than those generally used and known or
disclose internal documents of correctional agencies
related to detection, observation or investigation of
incidents of crime or misconduct, and disclosure would
result in demonstrable harm to the agency or public
body that is the recipient of the request;
(vi) endanger the life or physical safety of law
enforcement personnel or any other person; or
(vii) obstruct an ongoing criminal investigation

SB2621 - 39 - LRB096 18328 AJT 33705 b
by the agency that is the recipient of the request.
(e) Records that relate to or affect the security of
correctional institutions and detention facilities.
(f) Preliminary drafts, notes, recommendations,
memoranda and other records in which opinions are
expressed, or policies or actions are formulated, except
that a specific record or relevant portion of a record
shall not be exempt when the record is publicly cited and
identified by the head of the public body. The exemption
provided in this paragraph (f) extends to all those records
of officers and agencies of the General Assembly that
pertain to the preparation of legislative documents.
(g) Trade secrets and commercial or financial
information obtained from a person or business where the
trade secrets or commercial or financial information are
furnished under a claim that they are proprietary,
privileged or confidential, and that disclosure of the
trade secrets or commercial or financial information would
cause competitive harm to the person or business, and only
insofar as the claim directly applies to the records
requested.
The information included under this exemption includes
all (i) All trade secrets and commercial or financial
information obtained by a public body, including a public
pension fund, from a private equity fund or a privately
held company within the investment portfolio of a private

SB2621 - 40 - LRB096 18328 AJT 33705 b
equity fund as a result of either investing or evaluating a
potential investment of public funds in a private equity
fund. The exemption contained in this item does not apply
to the aggregate financial performance information of a
private equity fund, nor to the identity of the fund's
managers or general partners. The exemption contained in
this item does not apply to the identity of a privately
held company within the investment portfolio of a private
equity fund, unless the disclosure of the identity of a
privately held company may cause competitive harm.
Nothing contained in this paragraph (g) shall be
construed to prevent a person or business from consenting
to disclosure.
(h) Proposals and bids for any contract, grant, or
agreement, including information which if it were
disclosed would frustrate procurement or give an advantage
to any person proposing to enter into a contractor
agreement with the body, until an award or final selection
is made. Information prepared by or for the body in
preparation of a bid solicitation shall be exempt until an
award or final selection is made.
(i) Valuable formulae, computer geographic systems,
designs, drawings and research data obtained or produced by
any public body when disclosure could reasonably be
expected to produce private gain or public loss. The
exemption for "computer geographic systems" provided in

SB2621 - 41 - LRB096 18328 AJT 33705 b
this paragraph (i) does not extend to requests made by news
media as defined in Section 2 of this Act when the
requested information is not otherwise exempt and the only
purpose of the request is to access and disseminate
information regarding the health, safety, welfare, or
legal rights of the general public.
(j) The following information pertaining to
educational matters:
(i) test questions, scoring keys and other
examination data used to administer an academic
examination;
(ii) information received by a primary or
secondary school, college, or university under its
procedures for the evaluation of faculty members by
their academic peers;
(iii) information concerning a school or
university's adjudication of student disciplinary
cases, but only to the extent that disclosure would
unavoidably reveal the identity of the student; and
(iv) course materials or research materials used
by faculty members.
(k) Architects' plans, engineers' technical
submissions, and other construction related technical
documents for projects not constructed or developed in
whole or in part with public funds and the same for
projects constructed or developed with public funds,

SB2621 - 42 - LRB096 18328 AJT 33705 b
including but not limited to power generating and
distribution stations and other transmission and
distribution facilities, water treatment facilities,
airport facilities, sport stadiums, convention centers,
and all government owned, operated, or occupied buildings,
but only to the extent that disclosure would compromise
security.
(l) Minutes of meetings of public bodies closed to the
public as provided in the Open Meetings Act until the
public body makes the minutes available to the public under
Section 2.06 of the Open Meetings Act.
(m) Communications between a public body and an
attorney or auditor representing the public body that would
not be subject to discovery in litigation, and materials
prepared or compiled by or for a public body in
anticipation of a criminal, civil or administrative
proceeding upon the request of an attorney advising the
public body, and materials prepared or compiled with
respect to internal audits of public bodies.
(n) Records relating to a public body's adjudication of
employee grievances or disciplinary cases; however, this
exemption shall not extend to the final outcome of cases in
which discipline is imposed.
(o) Administrative or technical information associated
with automated data processing operations, including but
not limited to software, operating protocols, computer

SB2621 - 43 - LRB096 18328 AJT 33705 b
program abstracts, file layouts, source listings, object
modules, load modules, user guides, documentation
pertaining to all logical and physical design of
computerized systems, employee manuals, and any other
information that, if disclosed, would jeopardize the
security of the system or its data or the security of
materials exempt under this Section.
(p) Records relating to collective negotiating matters
between public bodies and their employees or
representatives, except that any final contract or
agreement shall be subject to inspection and copying.
(q) Test questions, scoring keys, and other
examination data used to determine the qualifications of an
applicant for a license or employment.
(r) The records, documents, and information relating
to real estate purchase negotiations until those
negotiations have been completed or otherwise terminated.
With regard to a parcel involved in a pending or actually
and reasonably contemplated eminent domain proceeding
under the Eminent Domain Act, records, documents and
information relating to that parcel shall be exempt except
as may be allowed under discovery rules adopted by the
Illinois Supreme Court. The records, documents and
information relating to a real estate sale shall be exempt
until a sale is consummated.
(s) Any and all proprietary information and records

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related to the operation of an intergovernmental risk
management association or self-insurance pool or jointly
self-administered health and accident cooperative or pool.
Insurance or self insurance (including any
intergovernmental risk management association or self
insurance pool) claims, loss or risk management
information, records, data, advice or communications.
(t) Information contained in or related to
examination, operating, or condition reports prepared by,
on behalf of, or for the use of a public body responsible
for the regulation or supervision of financial
institutions or insurance companies, unless disclosure is
otherwise required by State law.
(u) Information that would disclose or might lead to
the disclosure of secret or confidential information,
codes, algorithms, programs, or private keys intended to be
used to create electronic or digital signatures under the
Electronic Commerce Security Act.
(v) Vulnerability assessments, security measures, and
response policies or plans that are designed to identify,
prevent, or respond to potential attacks upon a community's
population or systems, facilities, or installations, the
destruction or contamination of which would constitute a
clear and present danger to the health or safety of the
community, but only to the extent that disclosure could
reasonably be expected to jeopardize the effectiveness of

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the measures or the safety of the personnel who implement
them or the public. Information exempt under this item may
include such things as details pertaining to the
mobilization or deployment of personnel or equipment, to
the operation of communication systems or protocols, or to
tactical operations.
(w) (Blank).
(x) Maps and other records regarding the location or
security of generation, transmission, distribution,
storage, gathering, treatment, or switching facilities
owned by a utility, by a power generator, or by the
Illinois Power Agency.
(y) Information contained in or related to proposals,
bids, or negotiations related to electric power
procurement under Section 1-75 of the Illinois Power Agency
Act and Section 16-111.5 of the Public Utilities Act that
is determined to be confidential and proprietary by the
Illinois Power Agency or by the Illinois Commerce
Commission.
(z) (tt) Information about students exempted from
disclosure under Sections 10-20.38 or 34-18.29 of the
School Code, and information about undergraduate students
enrolled at an institution of higher education exempted
from disclosure under Section 25 of the Illinois Credit
Card Marketing Act of 2009.
(aa) Certain information related to the Public-Private

SB2621 - 46 - LRB096 18328 AJT 33705 b
Transportation Act of 2010, including:
(1) Memoranda, staff evaluations, or other records
prepared by the responsible public entity, its staff,
outside advisors, or consultants exclusively for the
evaluation and negotiation of proposals filed under
the Public-Private Transportation Act of 2010 where
(i) if such records were made public prior to or after
the execution of an interim or a comprehensive
agreement, Section 105 of the Public-Private
Transportation Act of 2010 notwithstanding, the
financial interest or bargaining position of the
public entity would be adversely affected, and (ii) the
basis for the determination required in clause (i) is
documented in writing by the responsible public
entity.
(2) Records provided by a private entity to a
responsible public entity, affected jurisdiction, or
affected local jurisdiction pursuant to the provisions
of the Public-Private Transportation Act of 2010 to the
extent that such records contain (i) trade secrets of
the private entity as defined in subsection (d) of
Section 2 of the Illinois Trade Secrets Act, (ii)
financial records of the private entity, including
balance sheets and financial statements, that are not
generally available to the public through regulatory
disclosure or otherwise, or (iii) other information

SB2621 - 47 - LRB096 18328 AJT 33705 b
submitted by the private entity, where, if the records
were made public prior to the execution of an interim
agreement or a comprehensive agreement, the financial
interest or bargaining position of the public or
private entity would be adversely affected. In order
for the records specified in clauses (i), (ii) and
(iii) to be excluded from the provisions of this
chapter, the private entity must make a written request
to the responsible public entity:
(A) Invoking such exclusion upon submission of
the data or other materials for which protection
from disclosure is sought;
(B) Identifying with specificity the data or
other materials for which protection is sought;
and
(C) Stating the reasons why protection is
necessary.
(3) The responsible public entity in subdivision
(1)(tt)(2) must determine whether the requested
exclusion from disclosure is necessary to protect the
trade secrets or financial records of the private
entity. To protect other records submitted by the
private entity from disclosure, the responsible public
entity must determine whether public disclosure prior
to the execution of an interim agreement or a
comprehensive agreement would adversely affect the

SB2621 - 48 - LRB096 18328 AJT 33705 b
financial interest or bargaining position of the
public or private entity. The responsible public
entity must make a written determination of the nature
and scope of the protection to be afforded by the
responsible public entity under paragraph (tt). Once a
written determination is made by the responsible
public entity, the records afforded protection under
paragraph (tt) must continue to be protected from
disclosure when in the possession of any affected
jurisdiction or affected local jurisdiction.
(4) Except as specifically provided in subdivision
(1)(tt)(1), nothing in subdivision (1)(tt) shall be
construed to authorize the withholding of (i)
procurement records as required by Section 105 of the
Public-Private Transportation Act of 2010, (ii)
information concerning the terms and conditions of any
interim or comprehensive agreement, service contract,
lease, partnership, or any agreement of any kind
entered into by the responsible public entity and the
private entity, (iii) information concerning the terms
and conditions of any financing arrangement that
involves the use of any public funds, or (iv)
information concerning the performance of any private
entity developing or operating a qualifying
transportation facility or a qualifying project.
(5) For the purposes of subdivision (1)(tt), the

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terms "affected jurisdiction," "affected local
jurisdiction," "comprehensive agreement," "interim
agreement," "qualifying project," "qualifying
transportation facility," "responsible public entity,"
and "private entity" mean the same as those terms are
defined in the Public-Private Transportation Act of
2010.
(2) A public record that is not in the possession of a
public body but is in the possession of a party with whom the
agency has contracted to perform a governmental function on
behalf of the public body, and that directly relates to the
governmental function and is not otherwise exempt under this
Act, shall be considered a public record of the public body,
for purposes of this Act.
(3) This Section does not authorize withholding of
information or limit the availability of records to the public,
except as stated in this Section or otherwise provided in this
Act.
(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;
revised 9-25-09.)
(Text of Section after amendment by P.A. 96-736)
Sec. 7. Exemptions.
(1) When a request is made to inspect or copy a public

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record that contains information that is exempt from disclosure
under this Section, but also contains information that is not
exempt from disclosure, the public body may elect to redact the
information that is exempt. The public body shall make the
remaining information available for inspection and copying.
Subject to this requirement, the following shall be exempt from
inspection and copying:
(a) Information specifically prohibited from
disclosure by federal or State law or rules and regulations
implementing federal or State law.
(b) Private information, unless disclosure is required
by another provision of this Act, a State or federal law or
a court order.
(b-5) Files, documents, and other data or databases
maintained by one or more law enforcement agencies and
specifically designed to provide information to one or more
law enforcement agencies regarding the physical or mental
status of one or more individual subjects.
(c) Personal information contained within public
records, the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy, unless the
disclosure is consented to in writing by the individual
subjects of the information. "Unwarranted invasion of
personal privacy" means the disclosure of information that
is highly personal or objectionable to a reasonable person
and in which the subject's right to privacy outweighs any

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legitimate public interest in obtaining the information.
The disclosure of information that bears on the public
duties of public employees and officials shall not be
considered an invasion of personal privacy.
(d) Records in the possession of any public body
created in the course of administrative enforcement
proceedings, and any law enforcement or correctional
agency for law enforcement purposes, but only to the extent
that disclosure would:
(i) interfere with pending or actually and
reasonably contemplated law enforcement proceedings
conducted by any law enforcement or correctional
agency that is the recipient of the request;
(ii) interfere with active administrative
enforcement proceedings conducted by the public body
that is the recipient of the request;
(iii) create a substantial likelihood that a
person will be deprived of a fair trial or an impartial
hearing;
(iv) unavoidably disclose the identity of a
confidential source, confidential information
furnished only by the confidential source, or persons
who file complaints with or provide information to
administrative, investigative, law enforcement, or
penal agencies; except that the identities of
witnesses to traffic accidents, traffic accident

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reports, and rescue reports shall be provided by
agencies of local government, except when disclosure
would interfere with an active criminal investigation
conducted by the agency that is the recipient of the
request;
(v) disclose unique or specialized investigative
techniques other than those generally used and known or
disclose internal documents of correctional agencies
related to detection, observation or investigation of
incidents of crime or misconduct, and disclosure would
result in demonstrable harm to the agency or public
body that is the recipient of the request;
(vi) endanger the life or physical safety of law
enforcement personnel or any other person; or
(vii) obstruct an ongoing criminal investigation
by the agency that is the recipient of the request.
(e) Records that relate to or affect the security of
correctional institutions and detention facilities.
(f) Preliminary drafts, notes, recommendations,
memoranda and other records in which opinions are
expressed, or policies or actions are formulated, except
that a specific record or relevant portion of a record
shall not be exempt when the record is publicly cited and
identified by the head of the public body. The exemption
provided in this paragraph (f) extends to all those records
of officers and agencies of the General Assembly that

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pertain to the preparation of legislative documents.
(g) Trade secrets and commercial or financial
information obtained from a person or business where the
trade secrets or commercial or financial information are
furnished under a claim that they are proprietary,
privileged or confidential, and that disclosure of the
trade secrets or commercial or financial information would
cause competitive harm to the person or business, and only
insofar as the claim directly applies to the records
requested.
The information included under this exemption includes
all (i) All trade secrets and commercial or financial
information obtained by a public body, including a public
pension fund, from a private equity fund or a privately
held company within the investment portfolio of a private
equity fund as a result of either investing or evaluating a
potential investment of public funds in a private equity
fund. The exemption contained in this item does not apply
to the aggregate financial performance information of a
private equity fund, nor to the identity of the fund's
managers or general partners. The exemption contained in
this item does not apply to the identity of a privately
held company within the investment portfolio of a private
equity fund, unless the disclosure of the identity of a
privately held company may cause competitive harm.
Nothing contained in this paragraph (g) shall be

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construed to prevent a person or business from consenting
to disclosure.
(h) Proposals and bids for any contract, grant, or
agreement, including information which if it were
disclosed would frustrate procurement or give an advantage
to any person proposing to enter into a contractor
agreement with the body, until an award or final selection
is made. Information prepared by or for the body in
preparation of a bid solicitation shall be exempt until an
award or final selection is made.
(i) Valuable formulae, computer geographic systems,
designs, drawings and research data obtained or produced by
any public body when disclosure could reasonably be
expected to produce private gain or public loss. The
exemption for "computer geographic systems" provided in
this paragraph (i) does not extend to requests made by news
media as defined in Section 2 of this Act when the
requested information is not otherwise exempt and the only
purpose of the request is to access and disseminate
information regarding the health, safety, welfare, or
legal rights of the general public.
(j) The following information pertaining to
educational matters:
(i) test questions, scoring keys and other
examination data used to administer an academic
examination;

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(ii) information received by a primary or
secondary school, college, or university under its
procedures for the evaluation of faculty members by
their academic peers;
(iii) information concerning a school or
university's adjudication of student disciplinary
cases, but only to the extent that disclosure would
unavoidably reveal the identity of the student; and
(iv) course materials or research materials used
by faculty members.
(k) Architects' plans, engineers' technical
submissions, and other construction related technical
documents for projects not constructed or developed in
whole or in part with public funds and the same for
projects constructed or developed with public funds,
including but not limited to power generating and
distribution stations and other transmission and
distribution facilities, water treatment facilities,
airport facilities, sport stadiums, convention centers,
and all government owned, operated, or occupied buildings,
but only to the extent that disclosure would compromise
security.
(l) Minutes of meetings of public bodies closed to the
public as provided in the Open Meetings Act until the
public body makes the minutes available to the public under
Section 2.06 of the Open Meetings Act.

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(m) Communications between a public body and an
attorney or auditor representing the public body that would
not be subject to discovery in litigation, and materials
prepared or compiled by or for a public body in
anticipation of a criminal, civil or administrative
proceeding upon the request of an attorney advising the
public body, and materials prepared or compiled with
respect to internal audits of public bodies.
(n) Records relating to a public body's adjudication of
employee grievances or disciplinary cases; however, this
exemption shall not extend to the final outcome of cases in
which discipline is imposed.
(o) Administrative or technical information associated
with automated data processing operations, including but
not limited to software, operating protocols, computer
program abstracts, file layouts, source listings, object
modules, load modules, user guides, documentation
pertaining to all logical and physical design of
computerized systems, employee manuals, and any other
information that, if disclosed, would jeopardize the
security of the system or its data or the security of
materials exempt under this Section.
(p) Records relating to collective negotiating matters
between public bodies and their employees or
representatives, except that any final contract or
agreement shall be subject to inspection and copying.

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(q) Test questions, scoring keys, and other
examination data used to determine the qualifications of an
applicant for a license or employment.
(r) The records, documents, and information relating
to real estate purchase negotiations until those
negotiations have been completed or otherwise terminated.
With regard to a parcel involved in a pending or actually
and reasonably contemplated eminent domain proceeding
under the Eminent Domain Act, records, documents and
information relating to that parcel shall be exempt except
as may be allowed under discovery rules adopted by the
Illinois Supreme Court. The records, documents and
information relating to a real estate sale shall be exempt
until a sale is consummated.
(s) Any and all proprietary information and records
related to the operation of an intergovernmental risk
management association or self-insurance pool or jointly
self-administered health and accident cooperative or pool.
Insurance or self insurance (including any
intergovernmental risk management association or self
insurance pool) claims, loss or risk management
information, records, data, advice or communications.
(t) Information contained in or related to
examination, operating, or condition reports prepared by,
on behalf of, or for the use of a public body responsible
for the regulation or supervision of financial

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institutions or insurance companies, unless disclosure is
otherwise required by State law.
(u) Information that would disclose or might lead to
the disclosure of secret or confidential information,
codes, algorithms, programs, or private keys intended to be
used to create electronic or digital signatures under the
Electronic Commerce Security Act.
(v) Vulnerability assessments, security measures, and
response policies or plans that are designed to identify,
prevent, or respond to potential attacks upon a community's
population or systems, facilities, or installations, the
destruction or contamination of which would constitute a
clear and present danger to the health or safety of the
community, but only to the extent that disclosure could
reasonably be expected to jeopardize the effectiveness of
the measures or the safety of the personnel who implement
them or the public. Information exempt under this item may
include such things as details pertaining to the
mobilization or deployment of personnel or equipment, to
the operation of communication systems or protocols, or to
tactical operations.
(w) (Blank).
(x) Maps and other records regarding the location or
security of generation, transmission, distribution,
storage, gathering, treatment, or switching facilities
owned by a utility, by a power generator, or by the

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Illinois Power Agency.
(y) Information contained in or related to proposals,
bids, or negotiations related to electric power
procurement under Section 1-75 of the Illinois Power Agency
Act and Section 16-111.5 of the Public Utilities Act that
is determined to be confidential and proprietary by the
Illinois Power Agency or by the Illinois Commerce
Commission.
(z) (tt) Information about students exempted from
disclosure under Sections 10-20.38 or 34-18.29 of the
School Code, and information about undergraduate students
enrolled at an institution of higher education exempted
from disclosure under Section 25 of the Illinois Credit
Card Marketing Act of 2009.
(aa) (tt) Information the disclosure of which is
exempted under the Viatical Settlements Act of 2009.
(bb) Certain information related to the Public-Private
Transportation Act of 2010, including:
(1) Memoranda, staff evaluations, or other records
prepared by the responsible public entity, its staff,
outside advisors, or consultants exclusively for the
evaluation and negotiation of proposals filed under
the Public-Private Transportation Act of 2010 where
(i) if such records were made public prior to or after
the execution of an interim or a comprehensive
agreement, Section 105 of the Public-Private

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Transportation Act of 2010 notwithstanding, the
financial interest or bargaining position of the
public entity would be adversely affected, and (ii) the
basis for the determination required in clause (i) is
documented in writing by the responsible public
entity.
(2) Records provided by a private entity to a
responsible public entity, affected jurisdiction, or
affected local jurisdiction pursuant to the provisions
of the Public-Private Transportation Act of 2010 to the
extent that such records contain (i) trade secrets of
the private entity as defined in subsection (d) of
Section 2 of the Illinois Trade Secrets Act, (ii)
financial records of the private entity, including
balance sheets and financial statements, that are not
generally available to the public through regulatory
disclosure or otherwise, or (iii) other information
submitted by the private entity, where, if the records
were made public prior to the execution of an interim
agreement or a comprehensive agreement, the financial
interest or bargaining position of the public or
private entity would be adversely affected. In order
for the records specified in clauses (i), (ii) and
(iii) to be excluded from the provisions of this
chapter, the private entity must make a written request
to the responsible public entity:

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(A) Invoking such exclusion upon submission of
the data or other materials for which protection
from disclosure is sought;
(B) Identifying with specificity the data or
other materials for which protection is sought;
and
(C) Stating the reasons why protection is
necessary.
(3) The responsible public entity in subdivision
(1)(tt)(2) must determine whether the requested
exclusion from disclosure is necessary to protect the
trade secrets or financial records of the private
entity. To protect other records submitted by the
private entity from disclosure, the responsible public
entity must determine whether public disclosure prior
to the execution of an interim agreement or a
comprehensive agreement would adversely affect the
financial interest or bargaining position of the
public or private entity. The responsible public
entity must make a written determination of the nature
and scope of the protection to be afforded by the
responsible public entity under paragraph (tt). Once a
written determination is made by the responsible
public entity, the records afforded protection under
paragraph (tt) must continue to be protected from
disclosure when in the possession of any affected

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jurisdiction or affected local jurisdiction.
(4) Except as specifically provided in subdivision
(1)(tt)(1), nothing in subdivision (1)(tt) shall be
construed to authorize the withholding of (i)
procurement records as required by Section 105 of the
Public-Private Transportation Act of 2010, (ii)
information concerning the terms and conditions of any
interim or comprehensive agreement, service contract,
lease, partnership, or any agreement of any kind
entered into by the responsible public entity and the
private entity, (iii) information concerning the terms
and conditions of any financing arrangement that
involves the use of any public funds, or (iv)
information concerning the performance of any private
entity developing or operating a qualifying
transportation facility or a qualifying project.
(5) For the purposes of subdivision (1)(tt), the
terms "affected jurisdiction," "affected local
jurisdiction," "comprehensive agreement," "interim
agreement," "qualifying project," "qualifying
transportation facility," "responsible public entity,"
and "private entity" mean the same as those terms are
defined in the Public-Private Transportation Act of
2010.
(2) A public record that is not in the possession of a
public body but is in the possession of a party with whom the

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agency has contracted to perform a governmental function on
behalf of the public body, and that directly relates to the
governmental function and is not otherwise exempt under this
Act, shall be considered a public record of the public body,
for purposes of this Act.
(3) This Section does not authorize withholding of
information or limit the availability of records to the public,
except as stated in this Section or otherwise provided in this
Act.
(Source: P.A. 95-331, eff. 8-21-07; 95-481, eff. 8-28-07;
95-941, eff. 8-29-08; 95-988, eff. 6-1-09; 96-261, eff. 1-1-10;
96-328, eff. 8-11-09; 96-542, eff. 1-1-10; 96-558, eff. 1-1-10;
96-736, eff. 7-1-10; revised 9-25-09.)
Section 950. No acceleration or delay. Where this Act makes
changes in a statute that is represented in this Act by text
that is not yet or no longer in effect (for example, a Section
represented by multiple versions), the use of that text does
not accelerate or delay the taking effect of (i) the changes
made by this Act or (ii) provisions derived from any other
Public Act.
Section 999. Effective date. This Act takes effect upon
becoming law.