Illinois state appellate court rules high school association not subject to FOIA





ILLINOIS — An Illinois appellate court has affirmed a circuit court ruling that the Illinois High School Association, which oversees public high school athletics, is exempt from Freedom of Information Act requests.

The Better Government Association, which did not return requests for comment, filed a complaint against IHSA after they refused BGA’s request in June 2014 for accounting, legal, sponsorship and public relations contracts and vendor applications.

IHSA responded to the request claiming it was exempt from FOIA by being a private, nonprofit organization. The organization is independent of member schools, which voluntarily join and are comprised of both private and public schools.

BGA filed a complaint requesting the court classify IHSA a public body under FOIA, arguing IHSA performs governmental functions for its member schools.

The main question of the case is whether or not the IHSA is a public body, which the circuit and appellate courts both found it not to be.

Donald Craven, an Illinois lawyer not connected with the lawsuit, said BGA acknowledged winning the case would be difficult, but Craven believes the court made the wrong decision.

The IHSA has a substantial influence in Illinois and has many functions that make it a public body, such as regulating public schools, said Craven, who often works with First Amendment and FOIA cases.

“The IHSA essentially runs high school athletics in Illinois and they impose mandates on clearly public bodies,” Craven said.

Instead of fighting in the courts, Craven said classifying IHSA as a public entity may have to be done through legislation.

“The IHSA clearly performs public functions for public bodies. Maybe this will have to be a decision for the General Assembly,” he said.

This ruling means that citizens, journalists, watchdog organizations and any other person trying to use FOIA to get information from the organization will be unable to do so.

There are no set guidelines in FOIA legislation to determine what is or is not a public entity, so the appellate court applied three standards established in Rockford Newspapers Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence. Rockford Newspapers is an Open Meetings Act case, but the court found there was not a substantial difference between defining a public body for that act and for FOIA.

Craven also said it is common for courts to apply the standards in the Open Meetings Act to FOIA cases.

Per Rockford, the courts must consider whether the entity has a legal existence independent of government resolution, the nature of the functions performed and the degree the entity is controlled by governmental actors.

The appellate court confirmed that since the IHSA is a charitable organization, it has a separate legal existence from its member schools.

The court also ruled that the IHSA does not perform governmental functions. Students do not have to participate in athletics, schools voluntarily join the IHSA and the schools run their own athletic programs.

In answering the third question, the court found that the IHSA is not controlled by its member schools and does not receive government funding, so it is not controlled by any government entity.

The circuit court previously ruled that the organization and supervision of athletic activities are not activities exclusively conducted by the government. Private actors are frequently involved in educational activities, the court noted.

IHSA Executive Director Craig Anderson said in a statement that he hopes this ruling makes it clear that the organization is not a public entity. The organization will continue to voluntarily provide several documents they already make available, the statement said.

“While the association has consistently asserted that it is a private, non-governmental entity, we hope this ruling clears up any misconceptions regarding the legal status of our organization,” Anderson said. “Notwithstanding the ruling, many documents of the IHSA are available on the association’s website and via public filings with various governmental agencies. Those practices will not change."

Craven doesn’t believe this ruling will have negative effects on BGA’s other investigations, and despite the ruling not being in their favor, he still thinks the lawsuit was the right choice.

“It was an admirable effort by BGA to try to bring the association into the public spotlight,” he said.

SPLC staff writer Evelyn Andrews can be reached by email or (202) 974-6317

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