Last year we reported on a circuit court decision ruling that the Illinois High School Association (IHSA) was not a public body for purposes of the Illinois Freedom of Information Act. The case had been filed by the Better Government Association (BGA) after it had requested, and been denied, a request for various records held by the IHSA. The circuit court agreed with the IHSA that it was not subject to FOIA.
The BGA subsequently appealed to the appellate court, which issued an opinion last week affirming the circuit court. In short, the appellate court agreed that the IHSA was not a public body for purposes of FOIA. Better Government Association v. Illinois High School Ass'n, et al., 2016 IL App (1st) 151356.
The BGA had filed a request with the IHSA for accounting, sponsorship, public relations/crisis communications services and all licensed vendor applications for 2012-2014. IHSA had denied the request, stating it was a non-profit organization that is not subject to FOIA. The BGA sued, arguing that the IHSA is a "subsidiary public body" under FOIA because it performs a governmental service for its member school districts. The appellate court applied a three-part test in determining whether the IHSA was a subsidiary body, which test had been used in applying the Open Meetings Act definition of "public body." Under that test, the court is to look at the following:
(1) whether the entity has a legal existence independent of government resolution;
(2) the nature of the functions performed by the entity; and
(3) the degree of government control exerted.
As to the first factor, the appellate court determined that the IHSA, as a non-profit 501(c)(3) organization, has an independent legal existence separate from its member schools. It maintains its own employees, owns its own building, and files its own tax returns, all factors in favor of independence.
With respect to the second factor, the appellate court determined that even though a public body could perform the same functions as the IHSA in developing, supervising, and promoting interscholastic competitions among its member schools, the IHSA does not perform public, governmental functions in this case.
Applying the third factor, the appellate court found that the IHSA is not owned or controlled by its member schools; rather, it is controlled by its board members. The day-to-day functioning of IHSA is provided by an executive director and administrative staff, all of whom are employees of IHSA and not its member schools. The IHSA does not receive governmental funding.
This case provides a good analysis and guidance on how courts will interpret the "subsidiary public body" language in both the OMA and FOIA.
Post Authored by Julie Tappendorf