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
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.