Scott Holland Jul. 15, 2016, 2:41pm

The state's Freedom of Information law doesn't apply to the Illinois High School Association, which oversees Illinois high school athletics, a state appeals panel has ruled, rejecting the request by the Better Government Association to compel the IHSA to turn over certain documents.

The BGA took its FOIA complaint against the IHSA to Cook County Circuit Court in 2014, asking the court to order the athletic association to release certain documents. But Circuit Judge Mary L. Mikva dismissed the one-count complaint. 

The Illinois First District Appellate Court has now chimed in on the BGA’s appeal of that decision, and justices there said Mikva was correct. 

Justice Bertina E. Lampkin wrote the opinion; Justices Jesse Reyes and Eileen O’Neill Burke concurred. 

The BGA’s complaint originated June 5, 2014, when it submitted a written request to the IHSA seeking the organization’s contracts for accounting, legal, sponsorship and public relations/crisis communications services for fiscal years ending in 2013 and 2014. IHSA responded that its federal nonprofit status makes it exempt from FOIA. 

The BGA then submitted a request for the same records from Consolidated School District 230, which responded by saying it didn’t have any of the documents. 

District 230, based in south suburban Orland Park, includes Carl Sandburg High School in Orland Park, Victor J. Andrew High School in Tinley Park and Amos Alonzo Stagg High School in Palos Hills. 

In its one-count complaint filed in July 2014, BGA asked the court to declare IHSA a subsidiary “public body” under FOIA rules, to declare the group performs a governmental function for its member schools and to compel IHSA and District 230 to produce the records. 

In its motion to dismiss, IHSA included a Sept. 29, 2010, letter from the Illinois Attorney General’s public access counselor — clarifying IHSA’s status as a FOIA-exempt private body — as well as an affidavit from IHSA executive director Marty Hickman. District 230 also filed a motion to dismiss on the same grounds, further contending the records in question were not its own records and not directly related to any government function IHSA might perform on its behalf. 

In appealing the circuit court decision, BGA targeted both the IHSA’s motion and Hickman’s affidavit, arguing they didn’t qualify as an “affirmative matter.” Lampkin explained her court’s disagreement, noting, “IHSA’s motion and accompanying documents were not merely its version of the facts intended to negate the essential allegations of BGA’s cause of action.” 

While the FOIA does not define what constitutes a “subsidiary public body,” Lampkin cited the 1978 Illinois Third District Appellate Court ruling in Rockford Newspapers Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, which “articulated a three-part test for determining whether an entity is a ‘subsidiary body’ as the term is used in the Open Meetings Act.” 

The three components ask whether the entity has legal existence outside of government resolution; the nature of its functions; and the degree of government control exerted. 

Lampkin said IHSA passes on all three questions. 

BGA suggested IHSA’s testimony in a 2005 case, in which it sought protection under the Local Governmental and Governmental Employees Tort Immunity Act as a “local public entity,” proved the standing that would make it subject to FOIA regulations. But the appellate justices agreed with Mikva in reading those statements as legal arguments, not evidentiary admissions. 

As for BGA’s pursuit of the records via District 230, Lampkin clarified FOIA applied to documents of “public record.” Based on affirmation of IHSA as a private entity, the justices determined its documents are therefore not public. Lampkin further noted BGA failed to demonstrate why the records in question should be held up as public on their own merits independent of IHSA’s classification. 

The decisions did not indicate why BGA desired to obtain those documents from the IHSA and District 230.

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