IHSA Not a Public Body Subject to FOIA; Seeking IHSA Records from a School District Under Section 7(2) Fails When Requestor Does Not Establish Records are “Public Records”
Plaintiff Better Government Association (BGA) issued a FOIA to the Illinois High School Association (IHSA) for all of IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. IHSA responded by stating it was not subject to FOIA because it was a 501(c)(3) nonprofit charitable organization. BGA then issued a FOIA to Consolidated High School District 230 (District 230) for the same records, seeking them under FOIA Section 7(2), which provides that “a public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.” 5 ILCS 140/2. District 230 responded that it did not have any of the requested records in its possession.
Next, BGA filed a complaint in circuit court alleging both IHSA and District 230 violated FOIA, asking that the court declare IHSA to be a subsidiary “public body” subject to FOIA because it performs a governmental function on behalf of its member schools, and asking that the court order IHSA and District 230 to produce the requested records. The circuit court dismissed BGA’s complaint. Applying a three-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence (64 Ill.App.3d 94 (1978)), the circuit court held that IHSA is not a subsidiary public body covered by FOIA. The circuit court further held that FOIA Section 7(2) did not apply to District 230 because IHSA did not perform a governmental function on its behalf.
BGA appealed and the appellate court affirmed the circuit court’s dismissal. In so doing, the appellate court also relied upon the Rockford Newspapers, Inc. test to hold that IHSA is not a subsidiary public body covered by FOIA. It further held that BGA could not obtain the IHSA records through District 230 via FOIA Section 7(2) because BGA had not established that the IHSA’s records were “public records.”