Recently, the Illinois Appellate Court (First District) issued its decision in Better Government Association v. Illinois High School Association affirming the lower court’s dismissal of the case, and holding that the IHSA is not subject to the Freedom of Information Act (FOIA). The Better Government Association (BGA) filed suit against the Illinois High School Association (IHSA) asserting that the IHSA violated FOIA when it rejected BGA’s request for various contracts and vendor applications. The IHSA denied the BGA’s document request on the basis that the IHSA is a 501(c)(3) charitable organization not subject to FOIA. The Appellate Court rejected BGA’s arguments that the IHSA is a subsidiary public body and found in favor of the IHSA. In finding no violation of the Act, the court articulated three factors for consideration when determining whether an entity is a subsidiary public body subject to FOIA. The factors are: “(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.”
In reviewing these factors, the court first noted that as a 501(c)(3) charitable organization, which is recognized by the IRS and files its own tax returns, the IHSA maintains a separate legal existence from its member schools and any other public bodies.
Additionally, the court found that the functions performed by the IHSA are not governmental in nature. The court noted that students are not entitled to participate in interscholastic athletics, that the member schools voluntarily participate in the IHSA and run their own athletic programs, and that the IHSA does not govern all athletics at its member schools. Based on these facts, the court determined that although a public body could perform the functions the IHSA performs, the IHSA is not necessarily performing governmental functions.
Finally, the court examined the governing structure of the IHSA. The court determined that the IHSA is not controlled by any governmental entity to a degree warranting designation as a subsidiary public body as the IHSA is controlled by its own board, is run on a daily basis by an executive director and administrative staff not associated with any member school, is not owned or controlled by its member schools, and receives no government funding through membership dues, entry fees, or otherwise. The court reached this conclusion although BGA argued that there are a “number of statues aimed at regulating the IHSA.” The court dismissed this assertion, stating: “The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.”
Finding that all three factors weighed against finding that the IHSA is a subsidiary public body, the court affirmed the lower court’s dismissal of the case. Going forward, this case sets out the factors a court will consider when determining if an entity is subject to FOIA.