In Better Government Association v. Metropolitan Pier and Exposition Authority and Navy Pier, Inc., an Illinois appellate court found that documents in the possession of a private corporation that was contracted to operate Navy Pier are subject to FOIA because the corporation was performing a governmental function on behalf of a public body. In this case, the Better Government Association (“BGA”) submitted a FOIA request to the Metropolitan Pier and Exposition Authority (“MPEA”), a government entity tasked with promoting events, operating events, and the general development of Navy Pier in Chicago. The BGA also submitted a FOIA request directly to Navy Pier Inc. (“NPI”), a nonprofit organization created by employees and directors of the MPEA to support and sustain the operations of Navy Pier. The BGA requested documents generally related to the operations of Navy Pier, and the MPEA supplied some of the documents but claimed it did not have possession of other responsive documents because they were in the possession of NPI. NPI denied the BGA’s FOIA request, claiming it was not subject to FOIA at all.
The BGA then sued the MPEA and NPI, claiming that NPI performed a governmental function for the MPEA and that the MPEA therefore had a duty to disclose documents held by NPI. Under FOIA, a public body has a duty to disclose responsive records possessed by a private, third-party entity if that entity has been contracted to provide a “governmental function” and the records directly relate to that governmental function. Here, the court found that NPI did provide a governmental function for the MPEA because the MPEA had delegated its legal responsibility for development of Navy Pier to NPI pursuant to a lease agreement. Accordingly, the MPEA violated FOIA when it denied the BGA’s FOIA request for documents in the possession of NPI that directly related to that governmental function.
Further, the BGA argued that NPI acted as a “subsidiary” of the MPEA and therefore was directly subject to FOIA in its own right. The court determined, however, that NPI was an independent legal entity from the MPEA, that NPI managed and controlled its own operations, and that the majority of NPI’s funding came from operational revenue and donations and was not financed solely on public funds it received from the MPEA. Therefore, NPI was not a subsidiary of the MPEA and not directly subject to FOIA.
While the relationship between the MPEA and NPI is unique, this case serves as a reminder that a public body may have the duty to provide records to a FOIA requester, even if those records are held by private entities. That is, if a contractor provides a governmental function on behalf of a school district, any records that are directly related to that governmental function would be subject to FOIA.
A similar FOIA case involving the BGA’s request for IHSA records was litigated before the Illinois Supreme Court in 2017. In that case, HLERK’s Jeff Goelitz successfully defended the school district’s FOIA denial, preventing the school district from having to obtain records from the IHSA and produce them to the BGA. The IHSA case and this Navy Pier case highlight the importance of consulting legal counsel when receiving FOIA requests for records of third-party contractors.
Please contact Steve Richart or Jeff Goelitz with your FOIA questions.