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Appellate Court Holding Extends FOIA to College Foundation

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May 17, 2017

By Jamel A.R. Greer and Brian P. Crowley

Recently the Second District Appellate Court issued an opinion holding that the Illinois Freedom of Information Act (FOIA) applied to certain records in the possession of the College of DuPage Foundation, a 501(c)(3) entity separate from the College of DuPage. This decision has implications for public higher education institutions, as well as other public bodies that work closely with non-public entities, including possibly K-12 school districts.

In Chicago Tribune v. College of DuPage/College of DuPage Foundation, the Tribune made multiple FOIA requests to the College of DuPage (College) and the College of DuPage Foundation (Foundation) for documents, including a federal grand jury subpoena that was served on the Foundation. The College responded that it had no records responsive to the requests, and the Foundation stated that it was not subject to FOIA because it was a non-governmental not-for-profit corporation. In turn, the Tribune filed a lawsuit seeking to obtain the requested documents. The circuit court ruled in favor of the Tribune, holding that the federal grand jury subpoena was a public record in the Foundation’s possession and that the Foundation was under a contract to perform a governmental function on behalf of the College, thus triggering Section 7(2) of the FOIA. 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).

On appeal, the College and the Foundation argued that the record was not subject to the FOIA, relying upon the First District Appellate Court’s decision in Better Government Association v. IHSA (holding that the Illinois High School Association – a voluntary unincorporated association of public and private member Illinois high schools – is not subject to the FOIA). Specifically, they argued that the grand jury subpoena was not a public record because it was not prepared for or by the College and that the College did not receive, possess, or control the subpoena. Instead, they argued that the subpoena was issued to the Foundation and therefore not subject to FOIA. The Appellate Court rejected this argument as well as the IHSA Court’s analysis, holding that the subpoena issued to the Foundation was in fact a public record subject to the FOIA. The Court held that the proper analysis in determining whether a record is a public record depends on: 1) whether the third party in question is contracted to perform a governmental function; and 2) whether the record in question directly relates to that governmental function. Here, the holding of the Appellate Court in College of DuPage appears to be that a record that is not prepared by or in the possession of a public body may still be a public record subject to FOIA if it is prepared by or in the possession of a third party while that third party is performing a governmental function for the public body.

The Court stopped short, however, of providing a bright line rule regarding what is considered a “governmental function.” Rather, the Court’s ruling relied heavily upon the specific facts of the case in determining that the Foundation was engaged in a governmental function for the College. The Court focused on a memorandum of understanding (MOU) between the College and Foundation, noting that the Foundation’s activities on behalf of the College go far beyond handling charitable fundraising and include close coordination with the College on integrating the Foundation’s private-fundraising efforts with the College’s goals and objectives. The Court reasoned that if the Foundation did not perform these functions, the College would necessarily perform them, as it did prior to the MOU.

The Court ultimately concluded that the Foundation was performing a governmental function on behalf of the College and that the subpoena was related to its governmental function, thereby making the subpoena a public record subject to the FOIA. Further, in the final part of its ruling, the Court held that even without being in possession of the public record, a public body (in this case the College) has an obligation to attempt to obtain records from a third party that performs governmental function on the public body’s behalf. In this instance, the College was therefore required to make reasonable efforts to obtain the subpoena in order to comply with the FOIA request.

While this opinion is significant, the decision was fact-driven and the results of similar future FOIA challenges will accordingly turn on the specific facts at issue. Significantly, the Court expressly stated that this decision likely does not expand the reach of the FOIA to organizations that raise funds to support K-12 schools, such as parent-teacher associations and booster clubs. The Court distinguished those organizations from the Foundation, since they are usually run by volunteers, are not under contract to manage the school’s endowment, and are not staffed by employees of the public body. Despite the Court’s fact-driven analysis and its reassurances that the decision may not reach foundations or other third parties with less direct connections to a public body, the decision is a case that public bodies (and especially their third party fundraising arms) must consider carefully. In light of this decision, public bodies should reach out to their counsel and review their activities with third parties in order to determine if records stemming from such activities may be considered a public record subject to FOIA.  

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