HIGHLIGHTS:

  • In Better Government Association v. Illinois High School Association and High School District 230 IL Supreme Court No. 121124, the Illinois Supreme Court, on May 18, 2017, affirmed an appellate court's ruling that the Illinois High School Association (IHSA) is not a public body subject to the Freedom of Information Act (FOIA). Additionally, District 230 had no obligation to obtain or produce any IHSA records in response to an FOIA request.
  • It is clear now that the determination of whether an entity is a public body for purposes of the FOIA is controlled by the four-prong test in Better Government Association v. Illinois High School Association and High School District 230 (using theRockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence three-prong test andHopf v. Topcorp, Inc. 256 Ill. App. 3d 887 (1993)).
  • Public bodies do not have to produce records that are not their own when they have not contracted out a government function to a third party.

In Better Government Association v. Illinois High School Association and High School District 230 IL Supreme Court No. 121124, the Illinois Supreme Court, on May 18, 2017, affirmed an appellate court's ruling that the Illinois High School Association (IHSA) is not a public body subject to the Freedom of Information Act (FOIA). Additionally, District 230 had no obligation to obtain or produce any IHSA records in response to an FOIA request.

Background

The Better Government Association (BGA) sued the IHSA and District 230 when neither of them would respond to the BGA's FOIA requests for contracts and vendor applications. The Cook County Circuit Court granted motions from the IHSA and District 230 to dismiss the case. Illinois' First District Appellate Court affirmed the Circuit Court's decision, ruling that the IHSA is not a public body and the requested records thus were not "public records" under the FOIA.

Illinois Supreme Court Decision

Until now, there has been no definitive Supreme Court decision regarding when an entity is deemed to be a subsidiary of a public body under FOIA. The issue has been decided by appellate courts under the FOIA and the Illinois Open Meetings Act, in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978), andHopf v. Topcorp, Inc. 256 Ill. App. 3d 887 (1993). The Illinois Supreme Court applied the Rockford Newspapers' three-prong test regarding subsidiaries of public bodies to this case, and – Better Government Association v. Illinois High School Association and High School District 230 – test elements include the following:

1. Is there a legal existence of the subject entity outside of government?

2. What is the degree of the public body's oversite of the entity?

3. Is the entity publicly funded?

4. What is the nature of the function of the entity?

The BGA wanted Rockford Newspapers' test to be used as a "start" but also wanted two prongs added to the test:

1. Does the entity perform state action under federal civil rights laws (state actor)?

2. Is the entity entitled to tort immunity as a governmental agency?

The Supreme Court declined to add the BGA's additional prongs to the test and concluded the question of whether an entity is a subsidiary public body must be determined on a case-by-case basis. Based on the facts here the IHSA is not a subsidiary body: it has an independent legal identity for more than 100 years; it is not substantively controlled (and its pleadings in a prior case to the contrary are not determinative because the Court interprets the law); and it does not receive direct public funding; therefore, the nature of the IHSA's functions are of no consequence since the other factors were not met.

The Supreme Court says public bodies must disclose their public records unless those records are exempt. The public records may include records not in the possession of the public body but in possession of a contractor serving the public body. In this case, however, the IHSA is not a public body and District 230 had not contracted with the IHSA to perform any of its government functions. As a result, District 230 does not have to seek and produce records from the IHSA because they are not public records of District 230.

Chicago Tribune v. College of DuPage

In the recent Second District Appellate Court case, Chicago Tribune v. College of DuPage 2017 IL App (2d) 160274, opinion filed May 9, 2017, the Appellate Court held that the College of Du Page and the College of Du Page Foundation had to disclose, in response to a FOIA request, a federal subpoena recently served on the Foundation for the express reason that the College had contracted with the Foundation to perform governmental functions on the College's behalf. Although the circuit court had decided the Foundation was not a subsidiary body of the College and that issue was raised at the Appellate Court, the Appellate Court for various reasons would not revisit the circuit court's decision. Interestingly, the Second District Appellate Court determined that the First District Appellate Court had misconstrued the law in its opinion in Better Government Association v. Illinois High School Association when the First District held that the first determination that had to be made was whether the requested records are "public records" under the FOIA. Several sections in the College of DuPage decision discuss this "misinterpretation" by the First District.

It is possible that the College of DuPage case may now be appealed to the Illinois Supreme Court.

Practical Implications

It is clear now that the determination of whether an entity is a public body for purposes of the FOIA is controlled by the four-prong test in Better Government Association v. Illinois High School Association and High School District 230.

Municipalities do not have to produce records that are not their own when they have not contracted out a government function to a third party.