Appellate Court Limits FOIA Obligation to Disclose Records Held by Third Parties

In a case successfully defended by HLERK’s Jeff Goelitz, the Illinois Appellate Court recently upheld the dismissal of a lawsuit filed by the Better Government Association (“BGA”) alleging that the Illinois High School Association (“IHSA”) and Consolidated High School District 230 (“District 230”) violated the Freedom of Information Act (“FOIA”) by not releasing certain contracts and vendor applications.

In Better Government Association v. Illinois High School Association and Consolidated High School District 230, the BGA submitted a FOIA request to the IHSA to obtain all of the IHSA’s contracts for accounting, legal, sponsorship, public relations/crisis communications services, and all licensed vendor applications from 2012 to 2014. The IHSA refused to provide the documents and argued that it was not subject to FOIA.

The BGA then requested the same documents from District 230, arguing that the IHSA is essentially a contractor of District 230 under Section 7(2) of FOIA, which requires certain contractor records to be considered records of the public body. District 230 also denied the BGA’s request.

The court ruled that the IHSA is not subject to FOIA, as it is not a “subsidiary” public body and does not perform a governmental function for its member schools, such as District 230. The court reviewed several factors, including that the IHSA has a separate legal existence independent of government resolution. Further, regulating high school athletics is not something schools are required to provide to their students, and the IHSA does not perform public, governmental functions. Lastly, the mere presence of public employees on the board of the IHSA does not mean the IHSA is government-controlled.

More importantly for all public bodies, the court also determined that the records requested from District 230 did not meet the standard of “public records” under FOIA and were not accessible via District 230. Section 7(2) of FOIA requires that “public records” not in the possession of a public body, but 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 are directly related to that function, are considered public records of the public body. The court ruled that the requested IHSA records were not “public records” because they did not pertain to the IHSA’s transaction of public business (indeed, the IHSA does not engage in public business) and did not satisfy the statutory definition. Therefore, the BGA did not satisfy the requirements of Section 7(2) of FOIA, and District 230 was not obligated to obtain and provide the requested records.

This case is critical FOIA precedent for public bodies and third parties contracting with public bodies. Based on this case, a public body will not have to obtain from a contractor documents that are not first determined to be “public records” of the public body. This will prevent FOIA requesters from using public bodies to obtain from companies records that pertain exclusively to the company’s own business and would otherwise be inaccessible through FOIA.

For questions concerning FOIA, contact Bob Kohn or Jeff Goelitz.

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