Private Foundation Must Respond to FOIA Request
In a recent circuit court decision, the
DuPage County Circuit Court rendered a potentially precedent-setting decision
that could have ramifications for municipal and park district
foundations. Chicago Tribune v. College of DuPage.
In April, 2015, the Chicago Tribune sued
the College of DuPage and the College of DuPage Foundation to obtain documents
that were withheld in response to a federal grand jury subpoena the Tribune
sent to both entities. The College of DuPage later provided most, but not
all of the requested documents. The Foundation did not respond, arguing that it was not subject to FOIA as a
nonprofit entity that is not a subsidiary of the College.
In the lawsuit, the Chicago Tribune
argued that the College and the Foundation violated FOIA by refusing to respond
to the subpoena. Further, the Tribune argued that that Foundation is a
subsidiary of the College, and should be similarly subject to FOIA.
The court first addressed whether the
Foundation is a public body or a subsidiary of a public body. The court acknowledged that the
Foundation is a private, nonprofit corporation, with 501(c)(3) tax exempt
status. The court also noted that the Foundation was not created pursuant to any statute.
Based on the formal legal nature of the Foundation the independence of the
Foundation’s Board of Directors, and the lack of any case law finding a
private, nonprofit foundation to be a subsidiary of a public school, the Court
found that the Foundation is not a public body, nor a subsidiary of the
College.
The court next addressed whether the
Foundation possessed a public record pertaining to the transaction of public
business. Section 7(2) of FOIA provides as follows:
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. (emphasis added) 5 ILCS 140/7(2).
The court found that the Foundation had
indeed contracted to perform a governmental function on behalf of the
College. Although no specific contract was cited, a June 22, 2009
Memorandum of Understanding of the Foundations’ Board of Trustees, stated that
all donations to the College would be routed through the Foundation. The
Foundation holds all private donations to the College, even those that were not
solicited by the Foundation. Further, the College has no separate
endowment and its sole fundraising source is the Foundation. The court
found this proved that the Foundation performs duties that directly relate to
the governmental function of the College.
The court then addressed whether the
Tribune’s subpoena is a public record, subject to FOIA. The Court
answered this question in the affirmative, finding that the subpoena is a
public record of the Foundation, as the Foundation is under contract with the
College, to “perform a governmental function on behalf of the public body.”
The court acknowledged that this
decision could impact other private, non-profit foundations as it could cause donors who wish to remain
anonymous to withhold donations for fear of disclosure of information under
FOIA. However, it reasoned that this potential impact would be remedied
by the FOIA privacy exemptions.
The Foundation now has until April 19,
2016 to comply with the FOIA request or appeal. We will continue to
monitor the case to see whether an appeal is filed.
Post Authored by Erin Baker, Ancel Glink
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