Chicago Tribune v. College of DuPage
2017 IL App (2d) 160274
| Ill. App. Ct. | 2017Background
- The Chicago Tribune sued the College of Du Page (College) and the College of Du Page Foundation (Foundation) under FOIA seeking a federal grand jury subpoena served on the Foundation in April 2015.
- The College is a public community college; the Foundation is a 501(c)(3) nonprofit created to raise, manage, and distribute private donations exclusively for the College and is governed by a separate board with certain ex officio College members.
- An MOU centralized the College’s private fundraising with the Foundation, provided College staff (who are College employees) to the Foundation, and directed that donations be routed to the Foundation; Foundation staff used College email/phones and received State benefits.
- The circuit court granted the Tribune summary judgment under FOIA §7(2), concluding the Foundation performs a governmental function for the College and the subpoena directly related to that function; it rejected the argument that the Foundation was a subsidiary public body.
- Defendants appealed the summary judgment and the court’s order allowing the Tribune to withdraw a fee petition without prejudice; the Tribune cross‑appealed only the subsidiary‑public‑body ruling (dismissed as improper because Tribune obtained the relief it sought).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §7(2) apply to a third‑party document not prepared by the public body? | §7(2) converts third‑party records into public records when they relate directly to a contracted governmental function. | §7(2) should only apply if the document independently meets FOIA’s §2(c) definition of a public record (i.e., was prepared by/for or in possession/control of the public body). | Court rejected defendants’ narrow reading; §7(2) applies when its own elements are met without requiring the document to independently satisfy all §2(c) hallmarks. |
| Does the Foundation perform a "governmental function" for the College under §7(2)? | Foundation contracted to solicit, accept, hold, and manage all private donations for the College — functions the College previously performed — thereby performing a governmental function. | Foundation argues governmental function must be exclusive governmental power or otherwise narrowly defined; fundraising is private charitable activity. | Court held the Foundation performs a governmental function for the College given the MOU, centralized fundraising, exclusive role, staffing, and integration with College operations. |
| Does the subpoena "directly relate" to the governmental function? | The subpoena concerns the Foundation’s private‑development activities performed for the College and thus directly relates. | Foundation asserted generally that its functions are nongovernmental (did not press separate direct‑relation argument on appeal). | Court affirmed that the subpoena directly relates to the Foundation’s governmental function; defendants forfeited any separate challenge to direct relation. |
| Will the trial court retain jurisdiction to consider a subsequently filed fee petition after appeal and mandate? | Withdrawal of the initial fee petition without prejudice was permitted; upon affirmance and issuance of mandate, the circuit court will be revested with jurisdiction under Supreme Court Rule 369(b). | Defendants argued voluntary withdrawal beyond the 30‑day window deprives the trial court of jurisdiction to consider a later fee petition. | Court held the circuit court will have jurisdiction to consider a timely renewed fee petition after issuance of the appellate mandate; no ruling on fee merits. |
Key Cases Cited
- Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (decision discussing subsidiary public body factors)
- Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382 (principle that a successful party cannot appeal to change reasons for judgment)
- Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 414 Ill. 275 (courts of appeal not for successful parties dissatisfied with rationale)
- Better Government Ass’n v. Blagojevich, 386 Ill. App. 3d 808 (federal grand jury subpoenas can be subject to FOIA)
- PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291 (mandate revests trial court with jurisdiction)
- Coldwell Banker Havens, Inc. v. Renfro, 288 Ill. App. 3d 442 (attorney‑fee petition as an “other proceeding” under Rule 369)
- Workmann v. Illinois State Board of Education, 229 Ill. App. 3d 459 (lost or destroyed records context under FOIA)
- Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa Supreme Court on university foundation performing governmental function)
- SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. case on when an independent contractor performs a governmental function)
- East Stroudsburg Univ. Foundation v. Office of Open Records, 995 A.2d 496 (Pa. case considering university foundation as public‑function actor)