06/01/2017

By: Brittany Flaherty Theis

The Freedom of Information Act (“FOIA”) requires public bodies, including their “subsidiary bodies,” to make public records available for inspection or copying. The Illinois Supreme Court recently reiterated that there are four factors to be considered on a case-by-case basis to determine whether a private entity is deemed a “subsidiary body” subject to the requirements of Section 2 of FOIA. Performing a governmental function, alone, is not sufficient to transform a private entity into a public body for purposes of FOIA. Specifically, in Better Government Association v. Illinois High School Association, the Court held that the Illinois High School Association (“IHSA”) was not a public body subject to FOIA and Consolidated High School District No. 230 (the “District”) was not required to obtain or disclose the requested IHSA records under FOIA.

In Better Government Association, the Better Government Association (“BGA”) submitted a FOIA request to the IHSA for all of its contracts for accounting, legal, sponsorship, and public relations/crisis communications services, and all licensed vendor applications for the 2012-13 and 2013-14 fiscal years. The IHSA responded by stating it was a not-for-profit charitable organization that is not subject to FOIA. The BGA then requested the same records from the District, which responded that it did not have any responsive records and that the District was not required by FOIA to obtain them. The BGA challenged those denials by filing a complaint against the IHSA and the District, which was ultimately decided by the Illinois Supreme Court.

Background

As in the FOIA analysis in Chicago Tribune v. College of DuPage, the Illinois Supreme Court’s analysis in Better Government Association is highly fact-specific. The Court described the formation, purposes, composition, and operation of the IHSA. In summary, the IHSA is a private, not-for-profit with over 800 public and private high school members that was founded in 1900 to provide leadership for the development, supervision, and promotion of interscholastic competition. The IHSA establishes bylaws and rules, as well as sponsors and coordinates post-season tournaments. It does not govern all sports or extracurricular activities of the member schools, or arrange regular season competitions. The IHSA is governed by a board of directors comprised of principals from member schools, who are authorized to employ an executive director and other administrative staff.

The IHSA Is Not a “Public Body” or “Subsidiary Body”

The Illinois Supreme Court started its analysis by determining whether the IHSA was a public body or subsidiary body of a public body, and held that the same standard used to make this determination under the Open Meetings Act is to be used for FOIA. Relying on its prior precedent, the Court explained that the following factors determine whether a private entity is a “subsidiary body”:

  • The extent to which the entity has a legal existence independent of government resolution,
  • The degree of government control exerted over the entity,
  • The extent to which the entity is publicly funded, and
  • The nature of the function performed by the entity.

The Court emphasized that no single factor is conclusive, but that the key distinguishing factors are government creation and control.

As it relates to the IHSA, the Court found that the first three factors weighed against finding that the IHSA is a public body under FOIA. Because the IHSA is not created, controlled, or funded by the government, the Court did not decide whether it performs a governmental function – explaining that even if the nature of the functions of the IHSA were governmental, that factor alone would not be enough to “transform a private entity into a public body for purposes of the FOIA.” In so doing, the Court recognized that to hold otherwise would mean that any private entity that merely provides education services to public schools would risk being deemed a “public body” for FOIA purposes.

The Requested Records Were Not “Public Records” Under FOIA

The BGA also alleged that the requested records were public records of the District under Section 7(2) of FOIA, which states that records in the possession of a third party with which a public body has contracted to perform a governmental function are considered public records of the public body if the records are directly related to the governmental function. Section 7(2) ensures that governmental entities cannot avoid their disclosure obligations by contractually delegating their responsibilities to third parties.

In Better Government Association, the Court held that the District’s responsibilities were set out in the School Code, and that the responsibility to govern and coordinate interscholastic athletic competitions for public and private school students is not one of its functions. Although the Court noted that there are state high school associations where states have ceded government authority to an association to perform those functions, it ultimately concluded that the IHSA is not acting on behalf of the District to perform the District’s responsibilities and the District did not delegate any of its governmental functions to the IHSA. Therefore, the requested records were not public records of the District.

Whitt Law attorneys actively monitor legal developments related to the language and interpretation of FOIA and regularly assist clients in complying with FOIA. For questions regarding the Illinois Supreme Court’s decision in Better Government Association v. IHSA, please contact Whitt Law Attorney Brittany Flaherty Theis. If you are part of an organization that received a FOIA request and need assistance or guidance as to how to respond, please contact Whitt Law Attorneys Brian R. Bare or Brittany Flaherty Theis.

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