The FOIA litigation saga continues as the Illinois Supreme Court in Better Government Association v. IHSA ruled in favor of the athletic association and High School District 230, holding that the records requested are not public records subject to the Freedom of Information Act. This case involves the question of whether non-public bodies are subject to FOIA because they are either a subsidiary of a public body or have a contracted with a public body to perform a governmental function.

The case affirms a First District decision from 2016 (alert). The Illinois Supreme Court spent the majority of the opinion analyzing whether the IHSA is a subsidiary of the public member school districts within the Association. If the IHSA were a subsidiary of a public body, it would be subject to FOIA under Section 2(a) of the FOIA, defining a public body to include its subsidiaries. In its analysis, the Court reviewed the four factors outlined by the lower court: 1) independence from the public body; 2) degree of government control; 3) the extent the private entity is publicly funded; and 4) the nature of the private entity’s functions. The Court found that none of the factors established the IHSA as a subsidiary of School District 230 and thus the IHSA was not subject to FOIA.

The Court also considered whether the records were subject to FOIA under Section 7(2) of the FOIA, which would apply if the records related to a government function that IHSA contracted to provide for District 230. The Court found that governing and coordinating interscholastic athletic competitions for public and private schools is not a governmental function because no law mandates or authorizes public school districts to perform those functions.

We recently reported on another case dealing with this issue, Chicago Tribune v. College of DuPage/College of DuPage Foundation. In that case, the Second District held that the certain records in the possession of the College of DuPage Foundation were public records subject to FOIA because the Foundation contracted with the College of DuPage to perform a governmental function, overseeing fundraising on behalf of the College. The court rejected the reasoning used by the First District to find that IHSA is not subject to FOIA.

This opinion does not invalidate the Chicago Tribune/College of DuPage case in the Second District. Rather, it illustrates the fact-specific analysis that courts wrestle with in determining if a private entity is subject to FOIA. One major factual distinction between the two cases is that the College of DuPage Foundation works closely with the College to align its fundraising goals to the mission of the College, whereas the IHSA acts independently in coordinating interscholastic athletic competitions for public and private schools.

As the case law currently stands, a private entity is more likely to be considered engaged in a governmental function if the service is codified in a statute or regulation. Conversely, performing a service that a public body would not otherwise perform makes the service less likely to be considered a governmental function and as such, less likely that related records will be subject to FOIA.