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Thursday, September 29, 2016

The IHSA is Not a Subsidiary Body Under FOIA (part 3)… The Saga Continues

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.  Over the summer, we wrote about this case again when the Illinois Appellate Court affirmed that ruling, denying the Better Government Association’s (BGA) appeal. The BGA then filed a Petition for Leave to Appeal to the Illinois Supreme Court, which recently agreed to hear the case. 

The Illinois Supreme Court will be tasked to determine whether the Appellate Court was correct in finding that the IHSA was not a "subsidiary public body" under FOIA.  As you may recall, the appellate court looked to the three part test used by the Open Meetings Act in applying the definition of “public body:”

(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.

Under that test, the court found that the IHSA, a non-profit 501(c)(3) organization, has an independent legal existence separate from its member schools. It further determined that the IHSA does not perform public, governmental functions, and that the IHSA does not receive governmental funding, leading the appellate court to determine what the IHSA was not a “subsidiary public body” and not subject to FOIA.

We will continue to watch the developments in this case and keep you posted on the Illinois Supreme Court proceedings. This case will likely provide public bodies with more definitive guidance on how courts will interpret the "subsidiary public body" language in both the OMA and FOIA.

Post Authored by Erin Baker, Ancel Glink


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