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Illinois Supreme Court: IHSA may oversee public high school sports, but not a public body subject to FOIA

By Scott Holland | May 19, 2017

In an unanimous opinion, the Illinois Supreme Court agreed the Illinois High School Association – the organization which partners with high schools to oversee high school athletics across the state – does not need to share its documents with the public under the Freedom of Information Act.

The Better Government Association filed a FOIA complaint against the IHSA in Cook County Circuit Court in 2014. Circuit Judge Mary L. Mikva dismissed the one-count complaint, and in July 2016 the Illinois First District Appellate Court agreed, refusing to compel IHSA to turn over certain documents.

Supreme Court Justice Mary Jane Theis wrote the opinion, filed May 18, finally resolving the BGA’s complaint stemming from June 5, 2014, when it submitted a written request to the IHSA seeking the organization’s contracts for accounting, legal, sponsorship and public relations/crisis communications services for fiscal years ending in 2013 and 2014. IHSA responded that its federal nonprofit status makes it exempt from FOIA.  

BGA asked the circuit court to declare IHSA a subsidiary “public body” under FOIA rules, to declare the group performs a governmental function for its member schools and to compel IHSA and south suburban District 230 to produce the records. In upholding Mikva’s dismissal, the appellate panel cited the 1978 Illinois Third District Appellate Court ruling in Rockford Newspapers Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, which “articulated a three-part test for determining whether an entity is a ‘subsidiary body’ as the term is used in the Open Meetings Act.”

The three components ask whether the entity has legal existence outside of government resolution; the nature of its functions; and the degree of government control exerted.  Lampkin said IHSA passes on all three questions. The Supreme Court reviewed the same issue, noting it had “not yet considered whether a private entity could be considered a ‘subsidiary body’ under the FOIA.”

The BGA asked the Supreme Court to consider both the extent to which a private entity can, under federal civil rights laws, be found to have performed a state function, and whether any private entity is entitled to governmental tort immunity. The court rejected the first request.

“The fact that in some instances,” Theis wrote, “a private entity’s conduct may subject it to the constitutional limits placed on state action based on the federal courts’ ‘state actor’ analysis is not necessarily helpful in determining the scope of the statutory definition of ‘public body’ as defined by our General Assembly.”

With respect to the tort immunity request, Theis wrote the key inquiry again is if the entity seeking immunity is operationally controlled by a local government, something the court said needs to be determined on a case-by-case basis.

Theis noted the BGA did not specifically allege which public body holds the IHSA as a subsidiary and further that “IHSA’s governing documents do not reflect any such organizational structure.” Founded in 1900, IHSA “has had a separate legal existence, independent from any public body, for more than the past 100 years,” she added. “The IHSA has never been ‘housed’ within a public body, and its rules and regulations have never been part of the School Code.”

Although the BGA is correct in asserting the majority of IHSA’s membership is public schools, Theis said the IHSA constitution does not require that be so, nor are the unpaid IHSA board members accountable to any particular district or school. IHSA staff members are not paid from government funds or eligible for government retirement and insurance programs.

Theis further explained that the IHSA does not act on behalf of District 230 with regards to the records the BGA sought, nor does District 230 delegate its governmental functions to the IHSA.

“The responsibility to govern and coordinate interscholastic athletic competitions for public and private school students” is not a District 230 function under the law, Theis wrote, nor is there any such language in the School Code except that allowing school boards to join or form associations.

According to Cook County court records, the IHSA was defended in the action by attorneys with the firm of Dykema Gossett PLLC, of Chicago.

The BGA was represented by the firm of Loevy & Loevy, of Chicago.

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Organizations in this Story

Better Government Association Dykema Gossett PLLC Illinois High School Association Illinois Supreme Court Loevy & Loevy