by Thomas J. Gilbert (Summer 2017)

In a decision filed on May 18, 2017, the Illinois Supreme Court decided that the Illinois High School Association (IHSA) is not a “public body” and, therefore, does not need to respond to Freedom of Information Act (FOIA) (5 ILCS 140/2) requests. Furthermore, the court held that the IHSA’s records need not be produced by a member school district pursuant to a special section of FOIA, as the records did not relate to a governmental function.

In Better Government Association v. Illinois High School Association, 2017 IL 121124, the Better Government Association (BGA) submitted a FOIA request to the IHSA for all of its contracts for accounting, legal, sponsorship and public relations/crisis communications services, as well as all licensed vendor applications for certain fiscal years. IHSA responded with a denial based upon its position that it is not a “public body” as provided in FOIA, and therefore is not subject to its provisions.

Central to the Better Government Association decision is the legal composition of the IHSA. The IHSA is a private, not-for-profit entity with a membership consisting of over 800 private and public high schools. It establishes bylaws and rules for interscholastic sports competition and is responsible for enforcement of those rules. It also sponsors and coordinates various post-season tournaments for certain sports in which its member schools choose to compete. Joining the IHSA is not a legal obligation of the schools under state or federal laws.

The IHSA has a 10-member, volunteer board of directors elected by the general membership – each board member must be a principal of a member school and represents one of seven geographic districts. Furthermore, the IHSA is not funded by participating member schools. Instead, IHSA generates its revenue from its organizational efforts and from the sale of event tickets to the general public.

Based upon the IHSA’s structure, the Supreme Court concluded that IHSA is not a public body under FOIA. In holding that the IHSA is not a public body, the Court relied upon four factors in making its determination:

Factor 1: The extent to which the entity has a legal existence independent of government resolution: This factor considers whether IHSA had a separate existence from its governmental constituents. Indeed, if the IHSA was merely an arm of a governmental agency, it would be more likely that it would be a public body and, therefore, subject to FOIA. In this case, the court noted that the IHSA has never been designated as the official athletic association of the state and has never been housed within a public body, nor have its rules and regulations ever been part of the Illinois School Code. Therefore, the IHSA had an independent legal existence from its government members, which cut against finding that it was a “public body” under FOIA.

Factor 2: The degree of governmental control: Similarly, this second factor tests whether the IHSA was merely a puppet for other public bodies. Here, the Court noted that, while the IHSA members are primarily public schools (approximately 85%), no one public body has control over how the governing board is established or comprised. The Court also relied upon the fact that the board is not accountable to any particular school district and the board members do not receive compensation to be a member of the board. Consequently, due to the lack of government control, this factor weighed against finding the IHSA to be a public body.

Factor 3: The extent to which the IHSA receives public funding: Under this factor, the more public funding an entity receives the more the court would presume it to be a public body. But, as the court noted, the IHSA does not receive any public funding. The IHSA also does not receive dues from its member schools and does not charge schools entry fees for any of its events. In fact, IHSA’s primary source of funding was from the sale of tickets to post-season interscholastic events to the general public. All promotion of these events is underwritten by the IHSA and not by the member schools. Accordingly, IHSA was not publicly funded and, therefore, this factor weighed against finding it to be a public body.

Factor 4: The nature of functions performed by IHSA: The crux of this test is whether the organization performs a governmental function. The Court said that it did not need to address this issue due to the fact that it found that the IHSA is not created, controlled or funded by government (factors 1, 2 and 3 above) and that this factor alone would not transform a private entity (IHSA) into a public body for purposes of FOIA.

After analyzing all of these factors together, the Court found that the IHSA was not a public body and, accordingly, was not required to answer FOIA requests.

The lesson from this aspect of the case is that entities that are related to — but separate and distinct from — a governmental body may still be subject to FOIA due to the nature of the functions they perform. If those independent bodies fall within the four-factor test established by the Illinois Supreme Court, they would be subject to FOIA. Indeed, the more an entity looks and acts like a government, the court will be more apt to presume that FOIA applies.

Perhaps anticipating that its direct FOIA request to IHSA might fail, the BGA also submitted an identical FOIA request to Consolidated School District 230. The District denied the request, which the BGA also challenged in court.

Before the Illinois Supreme Court, the BGA argued that Consolidated School District 230 should have to turn over IHSA’s records pursuant to Section 7(2) of FOIA. Section 7(2) provides that records which are not in the possession of a public body, but still in the possession of a party with whom the agency has contracted to perform a governmental function on its behalf and that directly relate to the governmental function, shall be considered public records of the public body.

The purpose of Section 7(2) is to prevent governmental bodies from “sheltering” otherwise non-exempt documents by having them in the possession of a party under their control. Therefore, merely having public records in the possession of the contracted entity cannot shield them from FOIA; where Section 7(2) is met, the requested records must be disclosed under FOIA.

After reviewing Section 7(2), the court concluded that the IHSA’s records did not pertain to any governmental functions of Consolidated School District 230. Therefore, the court held that the requested documents need not be produced under Section 7(2) of the Act.

The lesson to take from this part of the decision is that, under Section 7(2), public records in possession of vendors of local governments that do pertain to the government’s business and are consistent with the performance of governmental responsibilities are not shielded from FOIA merely because they are not in the government’s possession. Importantly, those records would still be subject to FOIA exemptions; but if they do not fall within an exempt classification, they must be disclosed.

The Better Government Association case is a reminder that, under certain defined circumstances, public records may be requested of private entities. However, local governments must not assume that documents in the possession of vendors or closely related corporations will be shielded by FOIA. Local governments should continue to exercise caution in responding to FOIA requests, especially when related entities or vendors may also have responsive records.