In a unanimous decision, a state appellate court in Illinois recently ordered a public college’s fundraising organization to release records in its possession pursuant to a state Freedom of Information Act (“FOIA,” a.k.a. “sunshine law”) request. In Chicago Tribune v. The College of DuPage and The College of DuPage Foundation, the court held that the College’s separately incorporated foundation conducts government business on its behalf and therefore is subject to the state’s FOIA laws. While the decision will have wide-ranging effects for public bodies in Illinois, the decision brings Illinois into alignment with many other states in how they apply their state FOIA laws to non-governmental entities performing work on behalf of the public body. In light of this decision, public colleges and universities across all states should reexamine the reach of their state’s FOIA laws to entities that perform government functions on their behalf, such as foundations.
A public community college in Illinois and its separate foundation were sued by a prominent newspaper seeking disclosure pursuant to a FOIA request of a federal grand jury subpoena that was served on the foundation. The foundation was incorporated as a not-for-profit corporation, which, as stated in its bylaws, “exists to support the education mission of the College by raising money to fund the College’s academic programs, capital programs, and student scholarships.” The foundation replied to the FOIA request asserting that it was not subject to FOIA because it was a nongovernmental not-for-profit corporation.
The lower court found that the College had contracted with the foundation to perform a governmental function on its behalf and that the subpoena directly related to that governmental function and was therefore subject to disclosure. In its decision, the court noted that the foundation is staffed by employees of the College who split their time to assist the foundation in holding and managing assets to support the College’s mission. The College and foundation appealed the circuit court’s decision, arguing the subpoena was not a “public record” as defined by FOIA and that the foundation did not perform a “governmental function” on behalf of the College.
The appellate court upheld the lower court’s decision holding that “public records remain public records if they are transferred to a nonpublic body.” The appellate court further held that while FOIA does not define “governmental function,” it is a fact-specific inquiry “with an eye toward the particular public body’s role and responsibilities and keeping in mind the specific act that it has contracted to a third party to perform on its behalf…” Further, the court found that the foundation was performing a governmental function on behalf of the College by performing the fundraising tasks that are integrated and coordinated with the College’s goals and objectives.
The appellate court also pointed out that the College and foundation’s arguments that its decision would impermissibly expand the reach of FOIA to volunteer organizations that support schools was without merit because the foundation differed from volunteer organizations because those organizations: (1) are run by volunteers and are not contracted to manage funds on behalf of schools, and (2) are not staffed by public employees (like the foundation’s employees in this case). The court also recognized that its decision was in line with holdings of courts in other states, such as Pennsylvania and Iowa, which found that foundations carrying out fundraising on behalf of a public university perform a governmental function under those states’ open-records laws.
We anticipate that this case will be appealed to the Illinois Supreme Court in light of another decision on this topic issued by the Illinois Supreme Court mere days after the decision in this case. In Better Government Association v. Illinois High School Association, the Illinois Supreme Court solidified a four-factor test for determining the extent to which an entity is performing a governmental function on behalf of a governmental entity. There, the State Supreme Court “considered the following factors in determining whether a private entity could be a ‘subsidiary body’: (1) the extent to which the entity has a legal existence independent of government resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of the functions performed by the entity.” Unlike in the college foundation case, in applying the four-factor test to the Illinois High School Association, the court found that the defendant was not performing a governmental function that would subject it to FOIA because it was not contracted to perform a governmental function and it was not controlled by public entities in any manner.
Why this decision is significant
The Illinois court decisions are bringing the interpretation of Illinois’ FOIA law in line with many other states whose FOIA laws either clearly extend to related entities like foundations or have been interpreted by the courts to clearly apply to such entities. Indeed, states such as Oklahoma, Georgia, Hawaii, Idaho, Kansas, Missouri, and Pennsylvania have drafted their FOIA statutes in a way in which the courts could reasonably interpret the law to subject certain private entities to FOIA laws. States such as Rhode Island, Florida, Arkansas, Kentucky, and Texas have drafted their FOIA statutes so that the language clearly includes certain private entities as subject to FOIA.