What constitutes being a “public body” subject to the provisions of FOIA – Better Government Association v. Illinois High School Association, et al.
The Illinois Supreme Court, in Better Government Association v. Illinois High School Association, et al., 2017 IL 121124, determined that the Illinois High School Association (the IHSA) was not a “public body” as defined by the Freedom of Information Act (FOIA or the Act), 5 ILCS 140/2 (West 2014).
The Better Government Association (the BGA) submitted a FOIA request to the IHSA in 2014 seeking various records of the IHSA for the 2012-2013 and 2013-2014 fiscal years. The BGA requested copies of contracts from the IHSA involving contractors such as Nike and Gatorade. The IHSA refused to produce any records, claiming it is a not-for-profit charitable organization, and thus, not subject to the provisions of FOIA.
The BGA then requested the same records from School District 230 (District 230), which is a member of the IHSA. School District 230 responded that it did not have any responsive documents and that the records were not subject to FOIA. The BGA then filed suit in the Circuit Court of Cook County, which court ultimately held that the IHSA was not a public body and that District 230 had no duty to obtain and disclose the IHSA records. The Appellate Court affirmed the Circuit Court. 2016 IL App. (1st) 151356.
The IHSA is a private, not-for-profit, unincorporated association. Over 800 high schools in Illinois are members. The IHSA establishes bylaws and rules for sports competitions and enforces its rules. The IHSA also sponsors and coordinates tournaments in sports in which member schools choose to participate. ¶3.
The IHSA is governed by a 10 member board. Each board member is a principal of a member school. ¶5. The IHSA employs an Executive Director and staff. ¶7. Its revenue comes from events it runs and from sponsorships it receives. ¶12. The employees of IHSA are not public employees, not paid from public funds and not subject to government pension or insurance programs. ¶14.
After the IHSA refused to produce any records, the BGA sued District 230 to get the same records that had been requested of the IHSA, claiming that the IHSA performs governmental functions for District 230. ¶9. District 230 moved to dismiss the claim, arguing that the records sought were not “public records” of the District and not related to any claimed governmental functions the IHSA may perform for District 230. ¶15.
The Appellate Court found that IHSA did not perform any public, governmental function, and the IHSA was not controlled by a governmental entity and did not receive any public funds. District 230 did not have any “public records” as defined by FOIA. ¶17.
The Supreme Court’s Analysis
The Court first considered whether the IHSA was a “public body” as defined by FOIA. The Act defines a “public body.” 5 ILCS 140/2(a). A plain reading of the Act shows that the IHSA is not one of the specifically named bodies of state or local government. ¶23.
The Court next had to determine if the IHSA was a “subsidiary” body of a governmental unit. The Act provides that “committees and subcommittees” of a public body are within the control of a public body and thus subordinate to that public body. ¶23.
FOIA requires that each organization’s argument must be reviewed on a case by case basis. ¶24. The Court looked to the Open Meetings Act (OMA) (5 ILCS 120/1.02 West 2014) for guidance on what constitutes a public body and determined that there was no reason to distinguish between FOIA and OMA to determine whether the IHSA was a “subsidiary” body under FOIA. ¶25.
The BGA also claimed that federal civil rights legislation, 42 USC §1983, allows private entities to enforce rights against defendants who act under color of state law. ¶27. The BGA’s argument was not persuasive. The Court refused to expand the definition of a subsidiary body to an organization that was a state actor for purposes of §1983. ¶31.
The BGA also argued that the IHSA was a “local public entity” for purposes of the Tort Immunity Act. The Court determined that to have tort immunity, the not-for-profit organization must be subject to operational control by the unit of local government. ¶32. IHSA is not a “local public entity” under the Tort Immunity Act. ¶33.
The Court reviewed the organizational structure of the IHSA noting the following: (1) it has had a separate legal existence for over 100 years, (2) it is a voluntary unincorporated association that can sue or be sued, and (3) it has its own constitution and board of directors. ¶37. The IHSA was not created by any public body and is not part of or housed within a public body. ¶38.
The degree of any governmental control over the IHSA was discussed by the Court. The IHSA board is not controlled by any government, including any school districts. Membership in the IHSA by school districts is not mandatory. ¶40. No actions taken by the IHSA board need approval by any unit of government. ¶41. The IHSA employees and executive director are not government employees and are not paid from government funds and are not part of government retirement or insurance programs. ¶43.
The IHSA does not receive any direct government funding and does not charge any dues from its member schools. ¶49. Any revenue it generates coms from its own organizational efforts. ¶53. The Circuit Court of Cook County properly found that the IHSA is not a public body as defined by FOIA. ¶55.
The BGA also claimed that District 230 had a duty to disclose the requested records of the IHSA because the IHSA performed as a governmental function for District 230, which is a public body defined by FOIA. ¶59. Sec. 7(2) of FOIA prohibits public bodies from avoiding disclosure by delegating by contract, responsibilities to a private entity. ¶62.
District 230’s responsibilities are governed by the School Code. 10 5 ILCS 5/1-1 et seq. (West 2014). Governing and coordinating athletic competitions is not a statutory requirement of District 230. While District 230 can form or join associations, such as the IHSA, the IHSA is not acting on behalf of District 230 and does not perform any of the District’s responsibilities. District 230 did not delegate any of its statutory functions to the IHSA. ¶64.
Because the IHSA did not contract to perform any governmental function on behalf of District 230, it is not a public bod as defined by FOIA, and the requested records of the District are not public records under FOIA.