Better Government Ass'n v. Illinois High School Ass'n

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Appellate Court Date: 2016.08.29

12:19:33 -05'00'

Better Government Ass’n v. Illinois High School Ass’n, 2016 IL App (1st) 151356

Appellate Court BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellant, v.

Caption ILLINOIS HIGH SCHOOL ASSOCIATION and CONSOLIDATED

HIGH SCHOOL DISTRICT 230, Defendants-Appellees.

District & No. First District, Fifth Division

Docket No. 1-15-1356

Filed June 24, 2016

Decision Under Appeal from the Circuit Court of Cook County, No. 14-CH-12091; the

Review Hon. Mary Lane Mikva, Judge, presiding.

Judgment Affirmed.

Counsel on Loevy & Loevy, of Chicago (Matthew Topic, of counsel), for

Appeal appellant.

Dykema Gossett PLLC, of Lisle (David J. Bressler and Melanie J.

Chico, of counsel), for appellee Illinois High School Association.

Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, of Arlington

Heights (Vanessa V. Clohessy and Jeffrey C. Goelitz, of counsel), for

appellee Consolidated High School District 230.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with

opinion.

Presiding Justice Reyes and Justice Burke concurred in the judgment

and opinion.

OPINION

¶1 Plaintiff, Better Government Association (BGA), appeals the circuit court’s orders

dismissing its complaint alleging that defendants, Illinois High School Association (IHSA)

and Consolidated High School District 230 (District 230), violated the Freedom of Information

Act (FOIA or Act) (5 ILCS 140/1 (West 2014)). Plaintiff had submitted written requests from

defendants seeking all of IHSA’s contracts for accounting, legal, sponsorship, and public

relations/crisis communications services and all licensed vendor applications for the 2012 to

2013 and 2013 to 2014 fiscal years. Plaintiff contends the circuit court erred in finding: (1) that

IHSA was not a subsidiary public body as the term is used in FOIA and (2) that IHSA does not

perform a governmental function for member public schools, including District 230, such that

the requested records were available to the public vis-à-vis District 230 pursuant to section 7(2)

of FOIA. Based on the following, we affirm.

¶2 FACTS

¶3 On June 5, 2014, BGA submitted a written request to IHSA seeking all of IHSA’s contracts

for accounting, legal, sponsorship, and public relations/crisis communications services and all

licensed vendor applications for the 2012 to 2013 and 2013 to 2014 fiscal years. IHSA

responded to the request by stating that it was a nonprofit 501(c)(3) charitable organization that

is not subject to FOIA. BGA then submitted a request on July 2, 2014, to District 230 seeking

the same records pursuant to section 7(2) of FOIA. District 230 responded by stating that it did

not have any of the requested documents in its possession.

¶4 BGA filed its one-count complaint for violation of FOIA against defendants on July 23,

2014, requesting that the court declare IHSA a subsidiary “public body” under FOIA; declare

IHSA performs a governmental function on behalf of its member schools, including District

230; and order IHSA and District 230 to produce the requested documents.

¶5 IHSA responded by filing a section 2-619 motion to dismiss, arguing that it was not subject

to the provisions of FOIA because it was neither a public body nor a subsidiary as the terms are

used in the Act. To its motion, IHSA attached a copy of its constitution and bylaws, an affidavit

submitted by Martin Hickman, and a copy of a September 29, 2010, letter from the public

access counselor (PAC) from the Illinois Attorney General’s Office.

¶6 According to IHSA’s constitution, its purpose is to “provide leadership for the

development, supervision, and promotion of interscholastic competition and other activities in

which its member schools engage.” Each year, the member schools adopt IHSA’s constitution

and bylaws. Pursuant to section 1.300 of the constitution, the administrative authority of IHSA

is vested in a board of directors composed of 10 elected members chosen by general

membership. Each board member must be a principal of a member school. At least one

member of the board is elected from each of the seven divisions of member schools within

Illinois. The remaining three board members are elected from the schools at-large. Of those

three at-large elected board members, one must be from a private/nonpublic school, one must

represent underrepresented genders, and one must represent racial minorities. There is no

minimum number of members that must represent public schools. The bylaws provide the

rules governing participation by the member schools and students in the designated sports

covered by IHSA.

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¶7 In Hickman’s affidavit, he attested that he is the executive director of IHSA, which is a

voluntary, unincorporated association consisting of over 800 public and private high schools

located throughout Illinois. According to the affidavit, IHSA is a recognized 501(c)(3)

charitable organization that files separate tax returns annually. Hickman averred that IHSA

does not charge its member schools membership fees or dues1 and does not charge its member

schools entry fees for its events. Instead, IHSA generates revenue based on interscholastic

events organized by it and the sponsorships it receives. Hickman attested that the board of

directors is composed of elected individual principals and not the member schools. More

specifically, if a principal moved schools during his or her elected term, he or she would

remain a board member and not be replaced by a different principal from the original school

even if the principal switched to a private school from a public school or vice versa. According

to Hickman, the board of directors could consist of a majority of private/nonpublic schools. In

fact, Division 1, which contained all city of Chicago schools and overwhelmingly was

composed of public schools, had two back-to-back elected board members from private

schools. Hickman attested that the board of directors’ members were not paid a salary or

considered employees of IHSA. In addition, Hickman’s affidavit provided that the day-to-day

operations of IHSA were performed by the executive director and the administrative staff, who

were not government employees, were not paid from government funds, were not subject to

any state regulations regarding public employees, and were not eligible for any state or local

governmental retirement programs or insurance benefits. Instead, Hickman attested that the

executive director and administrative staff were employees of IHSA, were paid by IHSA, and

were provided benefits solely by IHSA where IHSA had its own federal employer

identification number, withheld payroll taxes, and issued W-2 forms annually to its employees.

Hickman added that IHSA owned the building housing its offices.

¶8 In the September 29, 2010, letter authored by the PAC, the PAC responded to an IHSA

denial of a FOIA request. In its responsive letter, the PAC opined that “[t]he IHSA is a private,

not-of-profit organization and, thus, does not fall within the definition of ‘public body’ as

defined by Section 2(a) of FOIA. 5/ILCS 140/2(a). For this reason, IHSA is not subject to

FOIA.”

¶9 District 230, in response to BGA’s complaint against it, filed a section 2-615 motion to

dismiss, arguing that IHSA is not a “public body” under FOIA and District 230 is not alleged to

possess the requested records. Moreover, District 230 argued that it should not be forced to try

to obtain the records in question because they were not public records of District 230 and were

not directly related to any alleged governmental function that IHSA may perform on its behalf.

¶ 10 Following oral argument on the motions, the circuit court granted both IHSA’s section

2-619 motion to dismiss and District 230’s section 2-615 motion to dismiss. In granting

IHSA’s motion, the circuit court noted that BGA’s failure to present a counter-affidavit

challenging the Hickman affidavit caused the facts therein to be admitted. The court also found

that statements made by IHSA in the prior case Hood v. Illinois High School Ass’n, 359 Ill.

App. 3d 1065 (2005), in which IHSA had sought protection under the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq.

(West 2002)) as a “local public entity” under that statute, were factual assertions and not

evidentiary admissions applicable to the instant case. Finally, after applying the factors of the

1

The IHSA constitution does permit it to charge dues to its members.

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test presented by Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism &

Drug Dependence, 64 Ill. App. 3d 94 (1978), the circuit court determined that IHSA was not a

subsidiary public body covered by FOIA. In so doing, the circuit court stated:

“In terms of [the] nature of [IHSA’s] functions, yes, perhaps those could be

governmental functions. They could be done by government, perhaps in some states

they are. But, you know, education is done by private and public entities, that doesn’t

make everybody who does education a public actor subject to FOIA. As we all know

there are private schools. And there are, as I indicated, a number of private

organizations that support the public and private schools and it does not make them all

governmental actors.

***

This is a function that could be done, as I’ve said now probably five times, by a

public entity or it could be done by a private, not-for-profit association. And [in] this

case [it] is being done by a private, not-for-profit association for the benefit of both

public and private schools.”

Then, in granting District 230’s motion, the circuit court held that section 7(2) of FOIA did not

apply because IHSA did not perform a governmental function on behalf of District 230. This

appeal followed.

¶ 11 ANALYSIS

¶ 12 Plaintiff contends the circuit court erred in dismissing its complaint where IHSA is a

subsidiary public body as the term is used in FOIA and, therefore, is subject to compliance

with the Act. Plaintiff additionally contends that IHSA performs a governmental function on

behalf of its member schools, including District 230, and, therefore, District 230 was required

to produce the requested documents.

¶ 13 I. Section 2-619 Motion

¶ 14 We first address BGA’s challenge to the dismissal of its complaint in favor of IHSA.

¶ 15 A section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2014)) admits the sufficiency

of the plaintiff’s complaint, but asserts a defense outside the complaint that defeats it. Patrick

Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. Specifically, a section

2-619(a)(9) motion, like the one filed by IHSA, permits the involuntary dismissal of the

complaint where the claim is barred by an “other affirmative matter.” 735 ILCS 5/2-619(a)(9)

(West 2014). “When ruling on such motions, a court must accept as true all well-pleaded facts,

as well as any reasonable inferences that may arise from them [citation], but a court cannot

accept as true mere conclusions unsupported by specific facts [citation].” Patrick Engineering,

Inc., 2012 IL 113148, ¶ 31. We review the granting of a section 2-619 motion to dismiss

de novo. Id.

¶ 16 As an initial matter, BGA attacks the adequacy of IHSA’s section 2-619 motion, as well as

that of the Hickman affidavit, arguing that they do not qualify as an “affirmative matter”

capable of defeating BGA’s complaint. We disagree. An affirmative matter is:

“ ‘[A] type of defense that either negates an alleged cause of action completely or

refutes crucial conclusions of law or conclusion[s] of material fact unsupported by

allegations of specific fact contained [in] or inferred from the complaint *** [not]

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merely evidence upon which defendant expects to contest an ultimate fact stated in the

complaint.’ ” Smith v. Waukegan Park District, 231 Ill. 2d 111, 121 (2008) (quoting 4

Richard A. Michael, Illinois Practice § 41.7, at 332 (1989)).

¶ 17 Contrary to BGA’s assertion, IHSA’s motion sufficiently alleged it was not subject to

FOIA as demonstrated by application of the relevant test to be discussed herein and as

supported by the documents attached to its motion, which constituted “affirmative matters”

capable of defeating the complaint. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge,

156 Ill. 2d 112, 116 (1993) (“[b]y presenting adequate affidavits supporting the asserted

defense [citation], the defendant satisfies the initial burden of going forward on the motion”).

IHSA’s motion and accompanying documents were not merely its version of the facts intended

to negate the essential allegations of BGA’s cause of action. We, therefore, find that IHSA’s

motion properly was considered as a section 2-619(a)(9) motion to dismiss.

¶ 18 Turning to the substance of this appeal, the questions presented require this court to apply

the well-known rules of statutory construction. The primary rule of statutory construction is to

ascertain and give effect to the intent of the legislature by applying the plain and ordinary

meaning of the language of the statute. Hamilton v. Industrial Comm’n, 203 Ill. 2d 250, 255

(2003). When the statutory language is clear, courts must apply the statute as written. Id. at

256. However, if a statute is capable of being understood by reasonably well-informed persons

in two or more different ways, the statute is considered ambiguous. Solon v. Midwest Medical

Records Ass’n, 236 Ill. 2d 433, 440 (2010). The supreme court has advised:

“If the statute is ambiguous, the court may consider extrinsic aids of construction in

order to discern the legislative intent. [Citation.] We construe the statute to avoid

rendering any part of it meaningless or superfluous. [Citation.] We do not depart from

the plain statutory language by reading into it exceptions, limitations, or conditions that

conflict with the expressed intent. [Citation.]” Id. at 440-41.

¶ 19 The Illinois FOIA is based upon a policy of full, complete disclosure regarding the affairs

of government and the official acts and policies of public officials and public employees. 5

ILCS 140/1 (West 2014). FOIA provides, in relevant part:

“Restraints on access to information, to the extent permitted by this Act, are limited

exceptions to the principle that the people of this State have a right to full disclosure of

information relating to the decisions, policies, procedures, rules, standards, and other

aspects of government activity that affect the conduct of government and the lives of

any or all of the people. The provisions of this Act shall be construed in accordance

with this principle. This Act shall be construed to require disclosure of requested

information as expediently and efficiently as possible and adherence to the deadlines

established in this Act.” 5 ILCS 140/1 (West 2014).

¶ 20 Section 1.2 of FOIA states that “[a]ll records in the custody or possession of a public body

are presumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2014). Moreover,

section 3(a) provides that “[e]ach public body shall make available to any person for inspection

or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.” 5

ILCS 140/3(a) (West 2014). Section 2 of FOIA defines “public body” as:

“Definitions. As used in this Act:

(a) ‘Public body’ means all legislative, executive, administrative, or advisory

bodies of the State, state universities and colleges, counties, townships, cities, villages,

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incorporated towns, school districts and all other municipal corporations, boards,

bureaus, committees, or commissions of this State, any subsidiary bodies of any of the

foregoing including but not limited to committees and subcommittees thereof ***.” 5

ILCS 140/2 (West 2014).

This court has held that a subsidiary public body is itself a public body for purposes of

compliance with the Act. Board of Regents of the Regency University System v. Reynard, 292

Ill. App. 3d 968, 978 (1997).

¶ 21 The question in this case is whether the IHSA constitutes a subsidiary public body.

Subsidiary body is not defined in FOIA. In Rockford Newspapers, Inc., however, the Second

District articulated a three-part test for determining whether an entity is a “subsidiary body” as

the term is used in the Open Meetings Act (5 ILCS 120/1.02 (West 2014)). Because the

definition of “public body” is substantially identical in both statutes, our courts have found no

reason to distinguish between the statutes. See Reynard, 292 Ill. App. 3d at 976; Hopf v.

Topcorp, Inc., 256 Ill. App. 3d 887, 893 (1993). We similarly conclude, and the parties agree,

that the Rockford Newspapers test applies in this instance for determining whether an entity is

a subsidiary body as used in FOIA. The Rockford Newspapers test instructs courts to consider:

(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. 64 Ill. App. 3d at 96-97.

¶ 22 A. IHSA’s Legal Existence Independent of Government

¶ 23 Turning to the first factor in the Rockford Newspapers test, IHSA is a voluntary,

unincorporated association of member Illinois high schools, both public and private. It has an

independent legal existence separate from its member schools where IHSA has independent

standing to sue and be sued. See 735 ILCS 5/2-209.1 (West 2014) (“[a] voluntary

unincorporated association may sue and be sued in its own name, and may complain and

defend in all actions”); cf. Jackson v. Village of Rosemont, 180 Ill. App. 3d 932, 937-38 (1988)

(finding that a stadium owned and operated by a municipality was not separate from the

municipality). IHSA is an established 501(c)(3) charitable organization recognized by the

Internal Revenue Service as a separate legal entity that files its own tax returns and has its own

federal employer identification number. Additionally, IHSA maintains its own employees for

whom it withholds payroll taxes and issues W-2 tax forms annually. IHSA also owns the

building in which its offices are housed. These factors demonstrate that IHSA has a separate

legal existence, independent from its member schools or any other public body, which BGA

conceded at oral argument in this case. See, e.g., Rockford Newspapers, 64 Ill. App. 3d at 96.

¶ 24 B. Nature of the Functions Performed by IHSA

¶ 25 Moving to the second factor in the Rockford Newspapers test, there is no question that

IHSA is an organization that serves the public body by coordinating sporting events for

member high schools and that it enhances the students’ educational experience. The question is

whether those functions are necessarily governmental.

¶ 26 Courts repeatedly have found that there is no property or liberty interest in interscholastic

athletic participation. Jordan v. O’Fallon Township High School District No. 203 Board of

Education, 302 Ill. App. 3d 1070, 1076 (1999) (citing Clements v. Board of Education of

Decatur Public School District No. 61, 133 Ill. App. 3d 531, 533 (1985)). “Students can need,

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want, and expect to participate in interscholastic athletics, but students are not entitled to

participate in them. Football is neither an integral part of a quality education nor a requirement

under any rule or regulation governing education in this state.” (Emphasis in original.) Id.

Unlike education, participation in athletics is voluntary. Moreover, no matter the potential

exclusion from elite competitions governed by IHSA, participation by member schools in the

IHSA also is voluntary. IHSA’s bylaws do provide a comprehensive framework for both the

schools’ and the students’ participation in IHSA-sanctioned competitions (e.g., eligibility,

participation limitations, qualifications of coaches); however, as stated, any school can decide

to forego participation in the IHSA to avoid its rules.

¶ 27 Moreover, each member school runs and supervises its own team for those sports falling

within the parameters of the IHSA. Indeed, not all interscholastic athletics are governed by

IHSA nor are intramural or club sports and activities. IHSA’s reach is limited to those

interscholastic sports expressly provided for in its bylaws. Similar to IHSA, but at the

collegiate level, the Supreme Court has recognized, within the context of the fourteenth

amendment, that the National Collegiate Athletic Association (NCAA) does not enjoy

“governmental powers” despite its various rules governing its member schools and the

authority it has to sanction its members. National Collegiate Athletic Ass’n v. Tarkanian, 488

U.S. 179, 196-97 (1988). The mere fact that a private company may be connected with a

governmental function does not create a public body where none existed before. Rockford

Newspapers, 64 Ill. App. 3d at 97 (finding the private, not-for-profit organization funded

primarily by government agencies and required to comply with numerous government

regulations was not subsidiary body pursuant to the Open Meetings Act).

¶ 28 Based on the foregoing, we conclude that, although a public body could perform the same

functions of IHSA in developing, supervising, and promoting interscholastic competitions

among its member schools, the private, independent, not-for-profit IHSA does not perform

public, governmental functions in this case. Cf. Reynard, 292 Ill. App. 3d at 977-79 (finding

that the university senate, which was a creation of the school board, was a public body pursuant

to the Open Meetings Act and FOIA as it was in charge of determining academic policy for the

university and that the senate’s council was a subsidiary public body pursuant to the Open

Meetings Act and FOIA as a standing committee that advised the senate on academic policies

and all policies governing the university’s intercollegiate athletic program).

¶ 29 C. Degree of Government Control Exerted Over IHSA

¶ 30 Applying the third factor in Rockford Newspapers, Hickman’s affidavit established that

IHSA is not owned or controlled by its member schools. As a not-for-profit association, IHSA

does not have owners. See, e.g., 805 ILCS 105/106.05 (West 2014) (“A [not-for-profit]

corporation shall not have or issue shares. No dividend shall be paid and no part of the money,

property or other assets of a corporation shall be distributed to its members, directors or

officers ***.”). Rather, the IHSA is controlled by its board members. The board is composed

of individual principals from the member schools. Of the 10 board seats, 7 represent the 7

divisions of the IHSA and 3, which are elected at-large by the member schools, represent

private schools, underrepresented genders, and racial minorities. The at-large member

representing private schools need not be the only private school principal elected to the board.

In fact, once an individual principal is elected to the board, he or she remains in that position

even if he or she changes schools, so long as he or she continues to meet the requirements for

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the board seat. See Rockford Newspapers, 64 Ill. App. 3d at 96 (organization was run by a

board of directors selected pursuant to its own bylaws, not elected or appointed by any

government official).

¶ 31 In addition, the Hickman affidavit provided that the day-to-day functioning of IHSA is

provided by the executive director and an administrative staff. The executive director and

administrative staff are employees of IHSA, not employees of the member schools or any

public entity. The executive director and administrative staff are paid by IHSA, are not subject

to regulations of public employees, and are not eligible for state retirement or insurance

benefits. Cf. Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288,

300 (2001) (where the defendant association was considered to be so entwined with the public

school officials acting as board members as to be a state actor for purposes of the fourteenth

amendment because the public school officials performed all functions but the “purely

ministerial acts by which the Association exists and functions in practical terms” and the

defendant association’s ministerial employees were eligible for membership in the state

retirement system like state employees). The Second District articulated in Rockford

Newspapers that “the independence of both [a] board of directors and [the] employees from

direct government control are extremely significant factors.” 64 Ill. App. 3d at 96 (the board

having had full authority to employ or discharge any employee and employees were not

subject to state regulatory practices concerning public employees nor were they eligible for

state retirement or insurance benefits). We conclude that these factors demonstrate IHSA is not

controlled by a government entity to such a degree that it constitutes a subsidiary public body.

¶ 32 We find further support for our conclusion where IHSA does not receive governmental

funding. According to Hickman’s affidavit, although the constitution permits IHSA to charge

membership dues, IHSA does not, in fact, charge any of its member schools dues and does not

charge schools entry fees for its events. Cf. Brentwood Academy, 531 U.S. at 299 (wherein the

United States Supreme Court found it relevant that the defendant’s revenue was composed of

membership dues paid by the schools and “gate receipts at tournaments among the member

schools”). Instead, IHSA contracts with host schools for use of their facilities and compensates

the schools by providing minimum guaranteed fees and splitting any profits in excess of those

guarantees. These agreements are extended to both public and private schools. In fact, in the

2013 to 2014 season, IHSA held events at private schools 289 times. Lack of government

funding notwithstanding, this court has found that the providing of government funds does not

necessarily cause an entity to be characterized as a subsidiary body. See, e.g., Rockford

Newspapers, 64 Ill. App. 3d at 96 (“[t]he amount or percentage of governmental funding of a

private entity should have no bearing on whether that entity is characterized as a subsidiary”);

Hopf, 256 Ill. App. 3d at 896-97 (a 50% funding of the corporation by the municipality, in and

of itself, did not render the corporation a subsidiary body).

¶ 33 In addition, we are not persuaded by plaintiff’s argument that the number of statutes aimed

at regulating the IHSA demonstrates it is a subsidiary body. “The mere fact that a business is

subject to state regulation does not by itself convert its action into that of the State ***.”

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974). In Rockford Newspapers, the

Second District concluded that the private, not-for-profit organization was not a subsidiary

body under the Open Meetings Act and cautioned that:

“Governmental bodies normally contract with private companies to perform services

for the public welfare, and these contracts often involve a delegation of some statutory

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duties to the private party. For governments to insist upon a voice in the general manner

in which these services are carried out is not only normal but may be part of their

responsibilities to their constituents. Such general supervision does not transform the

supervised company into a subsidiary of the government.” 64 Ill. App. 3d at 97.

¶ 34 We recognize BGA’s argument that IHSA is bound by its admissions in the previously

decided Hood case, such that the local governmental entities “own” the association; local

governmental control over the organization is pervasive; the business of the association is

public business; the IHSA is an agency of the collective schools of Illinois; and employees of

the local entities control IHSA’s governing body demonstrating that IHSA is enmeshed with

and under the control of local government. These statements were made by IHSA in its brief on

appeal in the Hood case. We acknowledge that “[a]n admission by a party is substantive

evidence admissible as an exception to the rule excluding hearsay. Ordinary evidentiary

admissions may be contradicted or explained.” In re Estate of Rennick, 181 Ill. 2d 395, 406

(1998) (citing Michael H. Graham, Cleary and Graham’s Handbook of Illinois Evidence

§ 802.11, at 616 (5th ed. 1990)). However, we find the challenged statements were not

evidentiary admissions providing factual evidence that IHSA is controlled by its member

schools. Instead, the challenged statements were legal arguments asserted by IHSA in an effort

to establish immunity under the Tort Immunity Act. Whether an entity is controlled or has

sufficient public ties to be considered a “local public entity” under the Tort Immunity Act are

legal questions. Ultimately, in Hood, the circuit court determined that IHSA was not a “local

public entity” pursuant to the plain language of the Tort Immunity Act where it was not a

not-for-profit corporation, but rather a voluntary association. Hood, 359 Ill. App. 3d at

1069-70. The Hood court also found it relevant that IHSA was not “truly local” in terms of

protection under the Local Governmental and Governmental Employees Tort Immunity Act.

Additionally, and even more telling with regard to the facts of this case, the Hood court noted

that private schools make up a “significant portion” of the organization “and may play a key

role in its decision making.” Id. at 1070.

¶ 35 We further note that the statements produced in the Hickman affidavit were deemed

admitted by the circuit court because BGA did not file a counter-affidavit. See Piser v. State

Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 352 (2010) (“[t]he failure to

challenge or contradict supporting affidavits filed with a section 2-619 motion results in an

admission of the facts stated therein. [Citation.] Nor may a plaintiff simply rely on the

allegations in his own complaint to refute a section 2-619 affidavit.”). In response, BGA argues

it raised sufficient questions of material fact to survive IHSA’s motion, relying on IHSA’s

statements in Hood, which we have determined were not evidentiary admissions, but legal

arguments. We, therefore, agree with the circuit court that the statements in the Hickman

affidavit were admitted. See id. at 352-53.

¶ 36 We recognize that the few cases that have considered whether an entity was a subsidiary

public body, namely, Rockford Newspapers, Hopf, and Reynard, made their determinations

presumably after a period of discovery whereas no discovery was conducted in this case. See

Rockford Newspapers, 64 Ill. App. 3d at 95 (resolved on summary judgment, silent as to

discovery); Hopf, 256 Ill. App. 3d at 892-93 (resolved on summary judgment following

discovery); Reynard, 292 Ill. App. 3d at 971-73 (resolved following a trial on the merits). In

this case, however, as stated, the Hickman affidavit statements were unchallenged by BGA

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and, therefore, were deemed admitted. See Piser, 405 Ill. App. 3d at 352-53. Accordingly,

BGA did not raise questions of material fact requiring a period of discovery.

¶ 37 In sum, we find, based on the application of the Rockford Newspapers factors, that IHSA is

not a subsidiary public body as the term is used in FOIA. We, therefore, conclude that IHSA’s

section 2-619 motion was granted properly.

¶ 38 II. Section 2-615 Motion

¶ 39 We next address BGA’s challenge to the dismissal of its complaint in favor of District 230.

¶ 40 A section 2-615 motion to dismiss, like that filed by District 230, tests the legal sufficiency

of a complaint. 735 ILCS 5/2-615 (West 2014). “When ruling on such motions, a court must

accept as true all well-pleaded facts, as well as any reasonable inferences that may arise from

them [citation], but a court cannot accept as true mere conclusions unsupported by specific

facts [citation].” Patrick Engineering, Inc., 2012 IL 113148, ¶ 31. We review the granting of a

section 2-615 motion to dismiss de novo. Id.

¶ 41 BGA contends its complaint adequately demonstrated that IHSA performs a governmental

function on behalf of District 230 and that the requested records directly relate to that function,

thus triggering section 7(2) of FOIA.

¶ 42 Again, we must employ the well-known principles of statutory construction to resolve

BGA’s contention. As stated, the primary rule of statutory construction is to ascertain and give

effect to the intent of the legislature by applying the plain and ordinary meaning of the

language of the statute. Hamilton, 203 Ill. 2d at 255.

¶ 43 As previously discussed, FOIA requires that a “public body” disclose “public records”

upon request, unless the records are exempt. 5 ILCS 140/3(a) (West 2014). FOIA defines

“public records” as:

“all records *** pertaining to the transaction of public business, regardless of physical

form or characteristics, having been prepared by or for, or having been or being used

by, received by, in the possession of, or under the control of any public body.” 5 ILCS

140/2(c) (West 2014).

¶ 44 In 2010, section 7(2) was added to address “public records” that a public body does not

physically possess. More specifically, section 7(2) of FOIA provides:

“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) (West 2014).

¶ 45 BGA sought to obtain the requested IHSA records from District 230 vis-à-vis section 7(2).

Reading the plain language of section 7(2), as we must, the threshold requirement is that the

requested documents qualify as a “public record.” The initial question, therefore, is whether

the requested records pertained “to the transaction of public business” and were “prepared by

or for, or having been or being used by, received by, in the possession of, or under the control

of any public body.” 5 ILCS 140/2(c) (West 2014). We recognize that, in reading section 2(c)

in conjunction with section 7(2), the requested documents need not be “in the possession of, or

under the control of [the] public body,” in this case District 230, so long as the other elements

of section 7(2) are satisfied. See 5 ILCS 140/2(c), 7(2) (West 2014).

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¶ 46 In its complaint, BGA simply provided a conclusory statement that the requested records

were “non-exempt public records.” Mere conclusions unsupported by specific facts will not be

considered by this court as true. Patrick Engineering, Inc., 2012 IL 113148, ¶ 31. Instead, we

must look to the requested documents themselves. In its FOIA request, BGA requested IHSA’s

contracts for accounting, legal, sponsorship, and public relations/crisis communications

services and all licensed vendor applications for the 2012 to 2013 and 2013 to 2014 fiscal

years. Based on our prior analysis of whether IHSA is a subsidiary public body under FOIA,

we similarly conclude that the requested records did not pertain to IHSA’s “transaction of

public business” as IHSA does not engage in public or governmental business. Again, IHSA is

a private, independent, not-for-profit that does not perform public, governmental functions.

We, therefore, find that BGA did not satisfy the threshold requirement of section 7(2) of FOIA

in establishing the requested records were “public records.” As a result, we conclude that

District 230 was not obligated to obtain and provide the requested documents to BGA.

¶ 47 BGA argues that such a reading would render section 7(2) superfluous in violation of the

rules of statutory interpretation. We disagree. As demonstrated, sections 2(c) and 7(2) can be

read so as not to render either section superfluous. See Solon, 236 Ill. 2d at 440-41. Moreover,

section 1.2 of FOIA provides that “[a]ll records in the custody or possession of a public body

are presumed to be open to inspection or copying.” 5 ILCS 140/1.2 (West 2014). In addition,

section 3(a) provides that “[e]ach public body shall make available to any person for inspection

or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act.” 5

ILCS 140/3(a) (West 2014). Reading these sections as a whole in conjunction with the

definition of “public record” pursuant to section 2(c) demonstrates that each public body must

make the public records within its possession or control available for inspection or copying.

Contrary to BGA’s argument, section 7(2) then extends a public body’s obligation to provide

access to public records in the possession of a third party which qualify under the terms of the

statute. See 5 ILCS 140/7(2) (West 2014). Simply stated, the statutes can be applied cohesively

as written.

¶ 48 In sum, where we have found that the requested records did not meet the definition of

“public record” under FOIA, we need not further analyze the elements of section 7(2). We

conclude that BGA’s claim against District 230 was dismissed properly.

¶ 49 CONCLUSION

¶ 50 Based on the foregoing, we affirm the judgment of the circuit court in dismissing BGA’s

complaint.

¶ 51 Affirmed.

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