Robert Lawson Sep. 6, 2016, 4:56pm

CHICAGO – The Illinois High School Association (IHSA) has been ruled by an Illinois Appellate Court to not be subject to public records requests under the Freedom of Information Act (FOIA), even though its member schools receive public money from taxes. 

But lawyers for a journalistic group suing the IHSA for access believes the courts may have erred in determining too narrowly what constitutes a public organization which must disclose information about itself to the people. And they hope the Illinois Supreme Court will take their side in the records dispute.

The ruling was made in a lawsuit from the Better Government Association (BGA) requesting that the IHSA be designated as a subsidiary public body.

The BGA had previously requested contract information regarding accounting, public affairs, sponsorship and legal expense from both school District 230 and the IHSA. The IHSA claimed exempt status from FOIA and the district denied possessing any of the documents in question. The district was also included in the suit, and it filed a motion to dismiss on the grounds that the records were not the district's and not related to any government use the group might conduct for the district. 

Appellate justices sided with the defendants, IHSA and District 230, in the ruling. The panel cited a three-part test for determining a subsidiary body: Does it have legal existence outside of government resolution? What is the nature of its functions as it relates to government? What is the degree of government control exerted? The IHSA did not meet a public body subsidiary standard of the Open Meetings Act, they concluded, based mostly on the fact that the IHSA is a non-profit organization not subject to FOIA.

BGA attorney Matthew Topic, from the firm Loevy & Loevy, of Chicago, explained the BGA's position in responses provided by email to questions from The Cook County Record. Attorney Joshua Burday is also representing the BGA. 

"BGA requested various vendor and sponsorship contracts from IHSA, but the case also involves the bigger issue of public access to records of entities that perform a governmental function like regulation of high school athletics," Topic said.

The BGA does not agree with the court in its ruling because it believes the documents are public in nature due to the relationship between the district and the IHSA. 

"We believe that the fundamental error is that the court interpreted 'governmental function' much too narrowly," Topic said. "Under a more reasonable interpretation, we think it is clear that IHSA records are subject to disclosure. In addition, the court refused to consider admissions that IHSA made in a prior case seeking governmental tort immunity as a nonprofit performing 'public business.' We think those admissions, as applied to the relevant FOIA case law, dictate a conclusion that IHSA records are subject to disclosure."

BGA's attorneys contend the organization is interested in reform of policy in regard to IHSA accountability.

"IHSA essentially regulates high school athletics and other competitions, and it generates revenue largely from the efforts of public school students," Topic said. "The public should be able to scrutinize how IHSA conducts business."

Topic said the difference between IHSA's activities and those of private vendors largely relates to language the IHSA itself used. 

"The question is what qualifies as a 'governmental function,'" Topic said. "The argument is clearer when discussing the functions IHSA performs – functions that IHSA itself has described as governmental and serving the public interest."

The BGA expects the case filed with the Illinois Supreme Court to be heard in late July. Their attorneys believe the case is unique, but important, in terms of FOIA and privatization.  

"The Illinois Supreme Court has not previously addressed these specific FOIA issues, and we believe that in an age of increasing privatization, it is important for the court to take this case," Topic said. 

The BGA is also seeking more transparency from other quasi-public bodies like the IHSA that have been allowed to deny the BGA or others access to their financial records under FOIA, Topic said.

"BGA is currently litigating a case before the Cook County trial court seeking records of Navy Pier Inc, a nonprofit that was fairly recently created to run Navy Pier," Topic said. "The pier is owned by government and government previously ran the pier until it elected to create a nonprofit and spin off those functions to the nonprofit. A DuPage County trial court has also addressed the College of DuPage Foundation and came out in favor of disclosure."

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Organizations in this Story

Loevy & Loevy
312 N May St
Chicago, IL 60607

Illinois High School Association
2715 Mc Graw Dr
Bloomington, IL 61704

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