Recently, the Illinois Appellate Court (First District) issued its decision in Better Government Association v. Illinois High School Association and Consolidated High School District 230 affirming the lower court’s dismissal of the case, and holding that the IHSA is not subject to the Freedom of Information Act (FOIA).  The Better Government Association (BGA) filed suit against the Illinois High School Association (IHSA) and Consolidated School District No. 230 asserting that the IHSA and the School District violated FOIA when they rejected the BGA’s request for various contracts and vendor applications.  The IHSA denied the BGA’s document request on the basis that the IHSA is a 501(c)(3) charitable organization not subject to FOIA. The Appellate Court rejected the BGA’s arguments that the IHSA is a subsidiary public body.  In finding no violation of the Act, the court articulated three factors for consideration when determining whether an entity is a subsidiary public body subject to FOIA. The factors are: “(1) whether the entity has a legal existence independent of government resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted.”

The court recognized that the IHSA maintains a separate legal existence from its member schools and any other public bodies; the functions performed by the IHSA are not governmental in nature; and the IHSA is not controlled by any governmental entity to a degree warranting designation as a subsidiary public body. As a result, the IHSA was not a subsidiary public body subject to FOIA.

Of more significance to public bodies, the court dismissed the BGA’s argument that the FOIA compelled the School District to obtain the IHSA records on behalf of the BGA because the IHSA performs a governmental function on behalf of the School District.  Section 7(2) of the FOIA provides the following:

A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act. 5 ILCS 140/7(2).

This FOIA provision has left open the question as to whether third party vendors that are not otherwise subject to FOIA but contract with a public body may be compelled under FOIA to provide records that relate to the public body. Here, however, the court held that the requested IHSA records were not public records because, as noted above, the IHSA is neither a public body, nor a subsidiary of a public body. As a result, the IHSA records requested by the BGA were not public records. Therefore, the School District was not compelled to release the records pursuant to Section 7(2) of the FOIA.

This case could serve as significant precedent to protect from release under FOIA certain records generated by third parties (such as architects, engineers, consultants, attorneys, and other vendors) that contract and work with public bodies.