The Chicago Tribune v. The College of DuPage
79 N.E.3d 694
| Ill. App. Ct. | 2017Background
- The Chicago Tribune sued the College of Du Page (a public community college) and the College of DuPage Foundation (a private 501(c)(3) nonprofit) under the Illinois Freedom of Information Act (FOIA) seeking a federal grand jury subpoena served on the Foundation in April 2015.
- The College and Foundation have an MOU: the Foundation is the College’s primary depository for private donations, manages endowments, coordinates fundraising, and Foundation staff are College employees paid/benefitted by the College; the Foundation occupies College offices and transfers assets to the College on dissolution.
- The Tribune filed FOIA requests; the College produced some documents but not the federal grand jury subpoena, which the Foundation refused to disclose claiming it was a private nonprofit not subject to FOIA.
- The trial court granted summary judgment to the Tribune under FOIA §7(2), concluding the Foundation performs a governmental function for the College and the subpoena directly relates to that function; it declined to decide whether the subpoena was independently a “public record.”
- The Tribune sought attorney fees, then voluntarily withdrew the petition without prejudice pending appeal; defendants appealed the summary judgment and the withdrawal-order; Tribune cross-appealed the court’s ruling that the Foundation was not a subsidiary public body.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does FOIA §7(2) apply so that a record in a contractor’s possession is a public record of the public body? | Section 7(2) makes records in a contractor’s possession public records when they directly relate to a governmental function the contractor performs for the public body. | Section 7(2) should only extend to records that already meet FOIA’s definition of “public records” (i.e., were prepared for/used by/received by the public body). | Court held §7(2) applies without requiring the record independently meet §2(c); applying §7(2) avoids rendering it superfluous and fulfills FOIA’s disclosure purpose. |
| Does the Foundation perform a "governmental function" for the College under §7(2)? | The Foundation performs the College’s statutory authority to accept/manage donations and thus performs a governmental function. | The Foundation argues governmental function should be narrowly construed to activities requiring exclusive governmental powers; IHSA-like private functions are not governmental. | Court held the Foundation performs a governmental function based on the MOU, operational integration, exclusive handling of College private fundraising, staff overlap, and historical centralization of fundraising. |
| Does the subpoena "directly relate" to the governmental function? | The subpoena concerns Foundation activities (development/fundraising) performed for the College and therefore directly relates. | Foundation contends the function is nongovernmental, so the subpoena cannot directly relate. | Court affirmed that the subpoena directly relates to the Foundation’s governmental function; defendants forfeited contrary argument on appeal. |
| Is the College’s claim moot because it does not physically possess the subpoena? | Tribune contends the College must obtain and produce contractor-held records under §7(2). | College contends claims are moot because it already produced responsive records it possessed and cannot compel the Foundation to produce the subpoena. | Court held not moot: §7(2) makes contractor-held records the public body’s records for FOIA purposes; the College was obligated to attempt to obtain the subpoena and did not demonstrate inability to do so. |
| Will the trial court have jurisdiction to consider a renewed fee petition after appeal? | Tribune: Yes; Rule 369(b) restores trial-court proceedings after affirmance and mandate. | Defendants: No; withdrawal beyond 30 days forecloses later review and leaves trial court without jurisdiction. | Court held Rule 369(b) will revest jurisdiction after mandate and the Tribune may timely refile a fee petition; declined to decide fee-forfeiture effect. |
Key Cases Cited
- Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (discussed subsidiary-public-body test)
- Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382 (party cannot appeal when it obtained all relief below)
- Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 414 Ill. 275 (appellate forum is not for successful parties who merely disagree with reasoning)
- Blagojevich v. (university-related citation), 386 Ill. App. 3d 808 (public bodies may be required to disclose federal grand jury subpoenas under FOIA)
- SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa.) (contractor activity must be more than routine services; delegation of a non-ancillary governmental undertaking)
- Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa) (activity advancing statutory objects of public institution may constitute governmental function)