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Better Government Association v. Illinois High School Association

Supreme Court of Illinois

May 18, 2017


          JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.


          THEIS JUSTICE.

         ¶ 1 In this appeal, the primary issue we are asked to consider is whether the Illinois High School Association (IHSA), which governs and coordinates interscholastic athletic competitions for public and private secondary schools in Illinois, is a "public body" as defined by the Freedom of Information Act (FOIA) (5 ILCS 140/2 (West 2014)) and, alternatively, whether certain requested records of the IHSA should be considered "public records" of Consolidated High School District 230 (District 230 or the District), a public body, for purposes of section 7(2) of the FOIA (5 ILCS 140/7(2) (West 2014)). The Cook County circuit court held the IHSA was not a public body subject to the FOIA and that District 230 had no obligation to obtain and disclose the requested IHSA records under section 7(2). The appellate court affirmed. 2016 IL App (1st) 151356. For the following reasons, we affirm the judgment of the appellate court.

         ¶ 2 BACKGROUND

         ¶ 3 Founded in 1900, the IHSA is a private, not-for-profit, unincorporated association with over 800 public and private high school members located throughout Illinois. Its purpose, as stated in its constitution, is to "provide leadership for the development, supervision, and promotion of interscholastic competition and other activities in which its member schools engage." In keeping with that purpose, the IHSA performs two primary functions: (1) it establishes bylaws and various rules for interscholastic sports competition and is charged with enforcement of those rules, and (2) it sponsors and coordinates various post-season tournaments for certain sports in which its member schools choose to compete.

         ¶ 4 According to the IHSA constitution, any private or public high school in the state may join the IHSA if it agrees to abide by the IHSA rules. Although currently public schools comprise roughly 85% of the IHSA's membership, there is no requirement that public schools constitute a certain percentage of the membership and no requirement that public schools join the IHSA. The IHSA does not govern all sports or extracurricular activities of the member schools. It does not supervise intramural sports or most club sports. It is also not involved in arranging or organizing regular season interscholastic contests among the member schools.

         ¶ 5 Under its constitution, the administrative authority of the IHSA is vested in a volunteer, 10-member board of directors elected by the collective general membership for a three-year term. Each board member must be a principal of a member school and acts in a representative capacity to one of seven geographic divisions in the state as established by the IHSA constitution. Each member is elected by a vote of other public and private member school principals in that division. The remaining board members are elected from the member schools at-large. One board member must represent a private school, one must represent underrepresented genders, and one must represent racial minorities.

         ¶ 6 The IHSA's governing documents also set forth the legislative process used to create, amend, or repeal provisions of its constitution and bylaws. Member schools are divided into 21 election districts. A principal from each election district is elected to the legislative commission. Additionally, seven at-large commission members are elected by the general membership, one from each of the seven divisions, as well as seven athletic administrators elected by the general membership, one from each of the seven divisions. Each member school is given the opportunity to vote on legislative proposals, and all changes require the approval of a majority of member schools.

         ¶ 7 The board is also authorized by the IHSA constitution to employ an executive director and other administrative staff as necessary to conduct the business of the association. The executive director is authorized to "investigate and decide all matters concerning eligibility, protests, by-laws or rules, " which then may be appealed to the board.

         ¶ 8 In June 2014, the Better Government Association (BGA), a not-for-profit corporation engaged as a watchdog in the public interest, submitted a FOIA request to the IHSA for all of its contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-13 and 2013-14 fiscal years. The request specifically identified contracts with Home Team Marketing, Streigel Knobloch & Co., Nike, Gatorade, and Country Financial. The IHSA responded by indicating that it was a not-for-profit charitable organization not subject to the FOIA.

         ¶ 9 The BGA subsequently requested the same records from District 230, a school district whose high schools are among the public and private school members of the IHSA. The BGA claimed that it was entitled to the records under section 7(2) of the FOIA because the IHSA performs governmental functions on behalf of District 230. The District responded that it had no responsive documents and that the requested documents did not fall under section 7(2) because they did not pertain to the transaction of the District's public business and were not prepared by or for the District and were not used by, received by, in the possession of, or under the control of the District. District 230 further stated that the documents as described did not directly relate to any services performed on behalf of the District.

         ¶ 10 The BGA then sought to challenge the denials by filing a complaint against the IHSA and District 230 seeking a declaratory judgment in the circuit court that both parties violated the FOIA. The BGA attached to its complaint several exhibits, including the IHSA's governing documents and a copy of the IHSA's brief, filed in a separate proceeding in the appellate court in a case in which the IHSA had argued it was a "local public entity, " as that term is defined under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). 745 ILCS 10/1-206 (West 2014).

         ¶ 11 Thereafter, the IHSA moved for involuntary dismissal under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2014)), arguing that it was not a public body subject to the FOIA. In support of its motion, the IHSA attached several exhibits, including its governing documents; an affidavit from Martin Hickman, the IHSA's Executive Director; and a letter from the Illinois Attorney General's Office of the Public Access Counselor dated September 2010, indicating to a records requester that the IHSA was not a public body subject to the FOIA.

         ¶ 12 In Hickman's affidavit, he addressed the nature of the IHSA and the functions it performs under its governing documents. He stated that the IHSA is a recognized 501(c)(3) charitable organization. See 26 U.S.C. § 501(c)(3) (2012). Although the IHSA constitution permits the IHSA to charge membership fees, dues, and entry fees, Hickman stated that it does not charge its member schools any membership fees, dues, or entry fees to its events. Rather, its revenue is generated based on the events that it organizes and the sponsorships that it receives.

         ¶ 13 In describing the nature of the board, Hickman explained that it is the individual principal that is elected to the board and not the member school. Thus, if an elected principal moves from one member school to a different member school, the principal would not lose his or her seat on the board and would not be replaced by the new principal of the original member school. Hickman stated that this rule applies even if the principal moves from a public to a private school or vice versa, as long as the new member school is located within the board member's elected division, if it is a "districted" seat, or continues to meet the requirements for a particular "at-large" seat. As an example, Hickman stated that a former elected board member continued to hold his board seat after changing jobs from Marmion High School to DePaul College Prep High School. The board seat did not pass to the new principal at Marmion. Additionally, according to Hickman, Division 1, which was overwhelmingly composed of Chicago public schools, had two back-to-back elected board members from private schools.

         ¶ 14 With respect to voting on legislative proposals, Hickman stated that each school is given the opportunity to vote and that nothing in the governing documents prevents member schools within the same school district from casting opposite votes. Hickman further stated that the day-to-day operations of the IHSA are performed by the executive director and the administrative staff. They are not public employees, are not paid from public funds, and are not subject to state regulations regarding public employees or eligible for state or local government retirement programs or insurance benefits. Rather, Hickman indicated that they are paid by the IHSA and are provided benefits by the IHSA. Hickman also stated that the IHSA has its own federal employer identification number, withholds payroll taxes, and issues W-2 forms annually to its employees. He added that the IHSA owns the building that houses its offices.

         ¶ 15 In addition to the IHSA's motion, District 230 filed a motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)), arguing that the BGA's claim against it was legally insufficient and based upon unsupported legal conclusions. Specifically, the District argued that the requested documents are not "public records" of the District and are not directly related to any alleged governmental function the IHSA may perform on the District's behalf.

         ¶ 16 After briefing and argument on the respective motions, the circuit court granted both motions to dismiss. With respect to the IHSA's motion, the circuit court concluded that under the factors announced in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill.App.3d 94 (1978), the IHSA is not a public body subject to the FOIA. With respect to the District's motion, the court found that section 7(2) of the FOIA did not apply in this case because the IHSA was not performing a governmental function on behalf of the District. Accordingly, the trial court dismissed the complaint with prejudice.

         ¶ 17 The appellate court affirmed. 2016 IL App (1st) 151356, ¶ 51. Applying the Rockford factors, the court found that the IHSA has an independent legal existence separate from its member schools or any other public body, a fact that the BGA conceded at oral argument. Id. ¶ 23. Additionally, the court found that although a public body could perform the functions of the IHSA, the IHSA does not perform a public, governmental function. The association is not controlled by a government entity and does not receive government funding. Id. ¶¶ 28, 31, 32. Accordingly, the court found that the IHSA is not a public body as defined by the FOIA. Id. ¶ 37. With respect to District 230's motion, the appellate court found that the requested records were not "public records" as defined by the FOIA and, therefore, not subject to disclosure under section 7(2). Id. ¶¶ 46, 48.

         ¶ 18 We allowed the BGA's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Jan. 1, 2015). Additionally, we allowed the Illinois Press Association and the Illinois Broadcasters Association to file an amicus curiae brief in support of the BGA and allowed the Metropolitan Pier & Exposition Authority and Navy Pier, Inc., to file an amicus curiae brief in support of the IHSA. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 19 ANALYSIS

         ¶ 20 The IHSA's Motion to Dismiss

         ¶ 21 Section 2-619(a)(9) of the Code allows for dismissal of an action on the ground that "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2014). A motion to dismiss under 2-619 admits well-pleaded facts, but does not admit conclusions of law and conclusory factual allegations unsupported by allegations of specific facts. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ΒΆ 31. In considering the dismissal under section 2-619(a)(9), our task is ultimately to consider whether "the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a ...

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