The Illinois state Freedom of Information Act applies broadly to any “public body” in state or local government. The Act defines “public body” to include subsidiaries of any public body, “including but not limited to committees and subcommittees thereof.” The Act does not, however, expressly define what is meant by a “subsidiary public body.” The Illinois Supreme Court agreed to clarify that term in the closing days of the September term, allowing a petition for leave to appeal in Better Government Association v. Illinois High School Association, a case from Division Five of the First District.

The Illinois High School Association is a membership organization intended to “provide leadership for the development, supervision, and promotion of interscholastic competition and other activities” for its member schools. Better Government began in 2014 when the Better Government Association (BGA) sent the IHSA a FOIA request demanding all of its contracts for accounting, legal, sponsorship and public relations/crisis communications services, and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. The IHSA responded that it was a private 501(c)(3) charitable organization and therefore not subject to FOIA. The BGA sent a similar request to one of the member schools, but the School responded that it didn’t have any of the documents.

The BGA filed suit, seeking a declaration that the IHSA was a subsidiary public body under FOIA and an order to produce the documents. The IHSA responded by moving to dismiss, attaching (among other things) a 2010 letter from the Public Access Counselor for the Attorney General concluding that the IHSA was a private non-profit organization and not subject to FOIA. The member school which had declined to produce also filed its own motion to dismiss. The trial court granted both motions, holding that the IHSA was not a subsidiary public body under FOIA.

The Appellate Court affirmed. Borrowing a test from the Open Meetings Act, the Court held that three factors determine whether an entity is a public entity for purposes of FOIA: (1) whether it has a legal existence independent of government resolution; (2) the nature of its functions; and (3) the degree of government control over it. As for the first factor, the Court held that as an unincorporated association, the IHSA had the capacity under Illinois law to sue and be sued.

An entity can be found to be a public entity when it performs governmental functions on behalf of a public entity. The IHSA certainly performs functions for its member schools – which are clearly public entities – but the Appellate Court held that coordinating interscholastic athletics was not a necessarily governmental function. Nor was the third factor satisfied – the IHSA is controlled by its directors, not by its member schools, and it receives no direct government funding. Since none of the three factors were met, the Court held that IHSA was not a “subsidiary public body” under the Act. The Court also affirmed the dismissal of the member school defendant. Section 7(2) of the Act (5 ILCS 140/7(2)) requires that when another entity performs governmental functions on behalf of a public entity, the entity may be required to produce documents which are actually in the possession of the agent rather than the principal. The statute didn’t save the plaintiffs complaint with respect to the school defendant, however, given the Court’s holding that IHSA’s work was not a “governmental function.”

We expect Better Government to be decided in the summer of 2017.