Better Government Ass'n v. Illinois High School Ass'n
56 N.E.3d 497
Ill. App. Ct.2016Background
- BGA requested IHSA contracts (accounting, legal, sponsorship, PR/crisis communications) and licensed vendor applications for FY 2012–2013 and 2013–2014; IHSA refused as a private 501(c)(3).
- BGA then requested the same records from Consolidated High School District 230 under FOIA §7(2); District 230 said it did not possess the records.
- BGA sued, seeking declarations that IHSA is a subsidiary public body under FOIA and that IHSA performs governmental functions for member public schools, obligating District 230 to produce the records.
- IHSA moved to dismiss under 735 ILCS 5/2‑619, submitting its constitution, an affidavit by executive director Martin Hickman, and a PAC letter concluding IHSA is a private nonprofit not subject to FOIA.
- The trial court treated Hickman’s unchallenged affidavit as admitted, applied the Rockford Newspapers three‑factor test, and held IHSA is not a subsidiary public body and does not perform governmental functions for District 230; both defendants’ motions were granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IHSA is a “subsidiary public body” under FOIA | IHSA is functionally public and controlled by member public schools, so FOIA applies | IHSA is a private, independent 501(c)(3) unincorporated association with its own governance and employees; not a public body | Court: IHSA is not a subsidiary public body (applied Rockford Newspapers factors) |
| Whether IHSA performs a governmental function for District 230 triggering FOIA §7(2) | IHSA’s activities are governmental for member schools and requested records are public records of District 230 under §7(2) | IHSA’s functions are voluntary, private, and not governmental; records are not District 230 public records | Court: §7(2) inapplicable because records are not “public records” of District 230 |
| Procedural sufficiency of IHSA’s 2‑619 showing | IHSA’s affidavit and attachments are inadequate affirmative matter | IHSA’s submissions constitute affirmative matter negating FOIA coverage | Court: IHSA’s 2‑619 satisfied; Hickman affidavit uncontradicted and admitted |
| Whether prior statements in Hood bind IHSA as evidentiary admissions | BGA relied on IHSA’s statements in Hood to show public control | IHSA’s Hood statements were legal arguments for immunity, not factual admissions | Court: Hood statements were legal arguments and not binding factual admissions |
Key Cases Cited
- Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (Ill. App. Ct. 1978) (articulates three‑factor test for “subsidiary body” analysis)
- Board of Regents of the Regency University System v. Reynard, 292 Ill. App. 3d 968 (Ill. App. Ct. 1997) (applies subsidiary/body analysis to FOIA/Open Meetings Act)
- Hopf v. Topcorp, Inc., 256 Ill. App. 3d 887 (Ill. App. Ct. 1993) (funding alone does not make private entity a subsidiary public body)
- Hood v. Illinois High School Ass’n, 359 Ill. App. 3d 1065 (Ill. App. Ct. 2005) (IHSA litigated immunities; statements there were legal arguments)
- National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (U.S. 1988) (private athletic associations do not necessarily exercise governmental powers)
- Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (U.S. 2001) (state‑action analysis for private athletic association where entwinement with public schools is extreme)
- Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148 (Ill. 2012) (standards for reviewing section 2‑619 motions)
- Smith v. Waukegan Park District, 231 Ill. 2d 111 (Ill. 2008) (definition and use of affirmative matter in 2‑619 context)