The Chicago Zoological Society – the organization which operates the Brookfield Zoo under contract with the Cook County Forest Preserve District – can’t easily escape a demand from an animal rights group to turn over documents regarding the deaths of dozens of stingrays at the zoo.
On Sept. 21, Cook County Circuit Judge Anna M. Loftus sided with the People for the Ethical Treatment of Animals, finding the CZS could be required by the state’s Freedom of Information Act to release communications and other information related to the stingrays.
“The District has contractually delegated it statutory authorization to run a zoo to the Society,” Judge Loftus wrote in the decision. “Therefore, the Society’s operation of the Zoo is a governmental function under (FOIA).”
Cook County Circuit Judge Anna Loftus
PETA sued the Cook County Forest Preserve in 2018, asking the court to find the Forest Preserve had improperly withheld the documents.
The lawsuit had been filed nearly three years after 54 stingrays died in a mishap overnight at the Brookfield Zoo’s Stingray Bay exhibit in July 2015.
PETA said it attempted to secure the documents related to the incident in an attempt to determine the nature and parameters of the relationship between the zoo and SeaWorld, which had loaned the stingrays to the zoo for the exhibit.
PETA said the Cook County Forest Preserve District refused their FOIA requests, claiming the documents were held by the Zoological Society, which is not a government agency, so is not subject to FOIA.
More than two years since PETA filed suit, Judge Loftus said that excuse may not hold up under Illinois law and legal precedent.
She noted, under Illinois Supreme Court decisions, FOIA can be extended to non-government agencies, if they are contractors hired to perform governmental functions.
Judge Loftus noted the Forest Preserve District is explicitly authorized by state law to operate a zoo for the public benefit, subject to rules provided in the law, such as requiring Brookfield Zoo to be open to the public for free at least 52 days each year.
And the judge noted the District has contracted with CZS to manage the zoo.
With this relationship in place, she said, CZS could be subject to FOIA.
She also rejected attempts by the Forest Preserve District to argue CZS could not be subject to FOIA, because the courts had already ruled the Zoological Society could not enjoy the immunity to personal injury lawsuits ordinarily granted to government agencies.
In this case, Judge Loftus said the requirements in the state’s FOIA law are not the same as those laid out in the state’s so-called Tort Immunity Act, which generally shields taxpayer-funded agencies from most personal injury lawsuits.
She noted the Illinois Supreme Court’s decision denying the CZS the immunity from lawsuits it sought “explicitly notes that the parties there did not discuss the extent, if any, to which FOIA applied to the Society.”
Loftus said she believed the “terms of art used” in the FOIA and Tort Immunity laws “cannot be read interchangeably,” so CZS should still be subject to FOIA even if it doesn’t also enjoy the immunity it believes it should, if it is classified as a government agency.
In response to the ruling, PETA Foundation Deputy General Counsel Jared Goodman released a statement, saying:
“The court agrees. Cook County cannot shield Brookfield Zoo's records from public scrutiny by outsourcing the operation of its public enterprise to a private corporation. PETA will now go full steam ahead with efforts to uncover the extent to which the zoo is in bed with the notoriously problematic SeaWorld - and why more than 50 stingrays endured miserable deaths in what is believed to have been a malfunctioning tank. “
PETA is represented in the action by attorneys with the firm of Perkins Coie LLP, with offices in Chicago and Washington, D.C., as well as Goodman, of Los Angeles.
The Forest Preserve District has been represented by the firm of Chilton Yambert & Porter, of Chicago.