By: Brittany Flaherty Theis

On September 28, 2016, the Illinois Supreme Court granted the Better Government Association’s petition for leave to appeal from a decision of the First District Appellate Court of Illinois in Better Government Association v. Illinois High School Association. In Better Government Association, the First District of the Illinois Appellate Court rejected the Better Government Association’s claim that it was entitled to all of the Illinois High School Association’s (“IHSA”) “contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012 to 2013 and 2013 to 2014 fiscal years” under the Freedom of Information Act (“FOIA”). In doing so, the Illinois Appellate Court determined that IHSA is neither a public body nor a subsidiary public body, which would be subject to the requirements of FOIA.

FOIA does not define the term subsidiary public body so the court relied on a 3-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978). Based on Rockford Newspapers, in determining whether an entity is a subsidiary body, as that term is used in FOIA, courts are to consider: “(1) whether the entity has a legal existence independent of government resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted.”

First, as to whether IHSA has a legal existence independent of government, the Illinois Appellate Court in Better Government Association considered that IHSA is a voluntary, unincorporated association of member Illinois high schools, both public and private; has standing to sue and be sued; is an established 501(c)(3) that files its own tax returns; maintains its own employees; and owns the building in which its offices are housed. It determined that the IHSA has a legal existence independent of government.

Second, the Illinois Appellate Court considered the nature of the functions performed by the IHSA. The court acknowledged that the IHSA coordinates sporting events for member high schools, which enhances the students’ educational experience, but again found it relevant that participation by member schools is voluntary. The court compared the IHSA to the NCAA, which does not have governmental powers. As the Illinois Appellate Court explained, the NCAA is not a subsidiary body despite its various rules governing member schools and the authority it has to sanction members. “The mere fact that a private company may be connected with a governmental function does not create a public body where none existed before.” The court concluded that although a public body could develop, supervise, and promote interscholastic competitions among schools, IHSA is a private, independent not-for-profit doing so, and it is not performing public, governmental functions.

Third, the appellate court determined that the IHSA is not owned or controlled by its member schools. The director and staff are employees of IHSA, not employees of any of the member schools or any public entity. The employees are paid by IHSA, are not subject to the same regulations as public employees, and are not eligible for state retirement or insurance benefits. IHSA does not receive governmental funding. Additionally, the independence of the directors and employees from direct government control was extremely significant in this case and in Rockford Newspapers.

All three factors led the Illinois Appellate Court to conclude that IHSA is not a subsidiary public body as the term is used in FOIA. Therefore, IHSA was not subject to FOIA and did not need to provide the Better Government Association with the documents it requested.

The Better Government Association also sought the records through Consolidated High School District 230 (“District 230”), arguing that IHSA performed a governmental function on behalf of District 230. As a threshold matter, the court determined that the Better Government Association did not support its argument that the records requested were “public records” subject to FOIA. Therefore, the Illinois Appellate Court determined the Better Government Association’s claim against District 230 was also properly dismissed.

Many of the attorneys at Whitt Law assist clients handling FOIA requests. They actively monitor for legal developments regarding FOIA. For questions you may have regarding FOIA generally or for assistance with a particular FOIA request, please contact Whitt Law Attorneys Brittany Flaherty Theis or Brian R. Bare.