Better Government Association v. Illinois High School Ass'n

2017 IL 121124

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 121124)

BETTER GOVERNMENT ASSOCIATION, Appellant, v. ILLINOIS HIGH SCHOOL

ASSOCIATION et al., Appellees.

Opinion filed 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.

OPINION

¶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

-2-

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

-3-

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

-4-

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.

-5-

¶ 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, ¶ 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 matter of law.” Kedzie & 103rd Currency Exchange, Inc. v.

Hodge, 156 Ill. 2d 112, 116 (1993). Our review of a section 2-619 dismissal is

de novo. Moon v. Rhode, 2016 IL 119572, ¶ 15.

-6-

¶ 22 The BGA’s appeal requires us to construe various provisions in the FOIA.

When presented with an issue of statutory construction, our primary objective is to

ascertain and give effect to the intent of the legislature. Murphy-Hylton v.

Lieberman Management Services, Inc., 2016 IL 120394, ¶ 25. The most reliable

indicator of legislative intent is the statutory language, given its plain and ordinary

meaning. Id. A reasonable construction must be given to each word, clause, and

sentence of a statute, and no term should be rendered superfluous. In re M.M., 2016

IL 119932, ¶ 16. Additionally, we may consider “the reason for the law, the

problems sought to be remedied, the purposes to be achieved, and the consequences

of construing the statute one way or another.” Id.

¶ 23 We first consider the issue of whether the IHSA is a public body as defined by

the FOIA. The principal mandate of the FOIA is found in section 3(a), which

provides that “[e]ach public body shall make available to any person for inspection

or copying all public records.” 5 ILCS 140/3(a) (West 2014). As defined in the

FOIA, the term “[p]ublic body” means:

“all legislative, executive, administrative, or advisory bodies of the State, state

universities and colleges, counties, townships, cities, villages, 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(a) (West 2014).

The IHSA does not fall within one of the specifically enumerated bodies of the

State or local government. Therefore, if it is subject to the FOIA, it must fall within

the category of “any subsidiary bodies of any of the foregoing” governmental units.

Id. Since the term “subsidiary bod[y]” is not further defined by the statute, we first

look to its generally understood meaning. See Bayer v. Panduit Corp., 2016 IL

119553, ¶ 25. A “subsidiary” is an entity “belonging to or controlled by another.”

Webster’s Third New International Dictionary 2279 (1993). Black’s Law

Dictionary defines “subsidiary” as “subordinate; under another’s control.” Black’s

Law Dictionary 1656 (10th ed. 2014). Additionally, the statute expressly provides

examples of subsidiary bodies, namely “committees and subcommittees.” These

would both fall within that commonly understood meaning in the sense that they

-7-

are subordinate to and controlled by one of the “foregoing” enumerated public

bodies.

¶ 24 Thus, as our appellate court has noted, the definition and the specific examples

provided indicate that “inclusion within that definition depends primarily upon

organizational structure.” Board of Regents of the Regency University System v.

Reynard, 292 Ill. App. 3d 968, 977 (1997). Additionally, the statutory phrase

“including but not limited to” means that when the statute was originally enacted in

1984, the General Assembly recognized that there could be other organizational

arrangements that are not specifically listed. Thus, the statute requires that each

arrangement must be examined on a case-by-case basis.

¶ 25 Although this court has not yet considered whether a private entity could be

considered a “subsidiary bod[y]” under the FOIA, the appellate court has

considered that issue as applied to both the Open Meetings Act (5 ILCS 120/1.02

(West 2014)) and the FOIA (5 ILCS 140/2 (West 2014)). Hopf v. Topcorp, Inc.,

256 Ill. App. 3d 887 (1993) (FOIA and Open Meetings Act); Rockford

Newspapers, Inc., 64 Ill. App. 3d 94 (1978) (Open Meetings Act). The definition of

public body is substantially identical in both of those statutes. We find no reason to

distinguish between the determination of a public body for purposes of the Open

Meetings Act and the FOIA. See Board of Education of City of Chicago v.

A, C & S, Inc., 131 Ill. 2d 428, 468-69 (1989); Reynard, 292 Ill. App. 3d at 975-76;

Hopf v. Topcorp, Inc., 170 Ill. App. 3d 85, 91 (1988); Hopf v. Topcorp, Inc., 256 Ill.

App. 3d 887, 893 (1993). 1

¶ 26 In Rockford Newspapers and Hopf, the courts considered the following factors

in determining whether a private entity could be a “subsidiary bod[y]”: (1) the

extent to which the entity has a legal existence independent of government

1

Notably, prior to 2010, the language of both the Open Meetings Act and the FOIA

included in the definition of public body “any subsidiary bodies of any of the foregoing

including but not limited to committees and subcommittees which are supported in whole

or in part by tax revenue, or which expend tax revenue.” 5 ILCS 120/1.02 (West 2008); 5

ILCS 140/2(a) (West 2008). Effective January 1, 2010, the italicized language was

removed from the FOIA by Public Act 96-542 (eff. Jan. 1, 2010). The parties do not raise

this distinction, and we find that it does not alter our analysis in this case.

-8-

resolution, (2) the degree of government control exerted over the entity, (3) the

extent to which the entity is publicly funded, and (4) the nature of the functions

performed by the entity. Rockford Newspapers, 64 Ill. App. 3d at 96-97; Hopf, 170

Ill. App. 3d at 91-92. We agree with the appellate court that these factors are

relevant and instructive in determining whether a private entity is a subsidiary body

under the FOIA. We emphasize that no single factor is determinative or conclusive,

but as the definition indicates, the key distinguishing factors are government

creation and control.

¶ 27 The BGA does not dispute that these factors are relevant but urges us to

consider two additional factors in our determination: (1) the extent to which a

private entity has been found to perform state action under federal civil rights laws

and (2) whether a private entity is entitled to governmental tort immunity.

¶ 28 With respect to the first factor, section 1983 of Title 42 of the United States

Code authorizes private parties to enforce their rights under the federal constitution

against defendants who act under color of state law. 42 U.S.C. § 1983 (2012).

Generally, for the conduct of private parties to be considered state action, there

must be a sufficiently close nexus between the state and the private conduct so that

the action may be “fairly attributable to the state.” Brentwood Academy v.

Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 295 (2001).

¶ 29 The Supreme Court has articulated a number of tests to determine whether

challenged conduct may be attributable to the state so as to render a private actor

liable under section 1983. The Court has recognized that what is fairly attributable

to a state is a “normative judgment” not subject to rigid criteria and is based on a

“host of facts that can bear on the fairness of such an attribution.” Id. at 295-96.

“From the range of circumstances that could point toward the State behind an

individual face, no one fact can function as a necessary condition across the board

for finding state action; nor is any set of circumstances absolutely sufficient, for

there may be some countervailing reason against attributing activity to the

government.” Id.

¶ 30 Notably, in the federal context, entities found to be state actors for one purpose

are not necessarily public bodies under the federal Freedom of Information Act.

See, e.g., Irwin Memorial Blood Bank of the San Francisco Medical Society v.

American National Red Cross, 640 F.2d 1051, 1052 (9th Cir. 1981) (“Because

-9-

Congress has expressly defined those agencies to which the [federal FOIA] applies,

the relevance of characterizations of an entity in different contexts is substantially

diminished.”); see also Dong v. Smithsonian Institution, 125 F.3d 877, 878, 882-83

(D.C. Cir. 1997) (even though the Smithsonian Institution was an agency for

purposes of some federal statutes, it did not meet the definition of agency under the

Federal Privacy Act, which derived its definition from the federal FOIA).

¶ 31 Thus, although there may be some overlapping considerations between a

“subsidiary bod[y]” and a “state actor,” we see no benefit to grafting another test on

to our analysis here. The fact that in some instances a private entity’s conduct may

subject it to the constitutional limits placed on state action based on the federal

courts’ “state actor” analysis is not necessarily helpful in determining the scope of

the statutory definition of “public body” as defined by our General Assembly. The

only issue before this court is whether the IHSA is a subsidiary to one of the

enumerated public bodies of this State as defined by the FOIA. Therefore, we reject

the BGA’s request that we expand our construction of the definition of a subsidiary

body to include an entity found to be a state actor under federal civil rights laws.

¶ 32 We next address the BGA’s contention that an entity that qualifies as a “local

public entity” under the Tort Immunity Act should also be considered a public body

under the FOIA. The purpose of the Tort Immunity Act is to protect local public

entities and public employees from liability arising from the operation of

government. Harris v. Thompson, 2012 IL 112525, ¶ 17. A local public entity is

defined under the statute to include a “not-for-profit corporation organized for the

purpose of conducting public business.” 745 ILCS 10/1-206 (West 2014). In

O’Toole v. Chicago Zoological Society, 2015 IL 118254, we emphasized that the

key inquiry in cases like this is whether the private entity seeking tort immunity

remains subject to “operational control by a unit of local government.” Id. ¶ 23.

¶ 33 To the extent that evidence of operational control is a key inquiry under both

the Tort Immunity Act and the FOIA, we find that the fact that an entity is a “local

public entity” subject to the Tort Immunity Act may be relevant as it relates to the

degree of government control. Here, the IHSA is not a “local public entity” as

defined by the Tort Immunity Act (Hood v. Illinois High School Ass’n, 359 Ill.

App. 3d 1065 (2005)), but that fact is not conclusive of whether it is a public body

subject to the FOIA.

- 10 -

¶ 34 Accordingly, consistent with our construction of section 2 of the FOIA,

whether a private entity could be deemed a subsidiary body under the FOIA

requires a case-by-case consideration of the four factors set forth above. No single

factor is dispositive, but the key inquiry involves an examination of the entity’s

creation and the extent of governmental control.

¶ 35 Having considered the general legal principles that apply to this determination,

we now address the relevant factors as they relate specifically to the IHSA.

Preliminarily, we note that the BGA’s allegations in its complaint do not

specifically identify the enumerated public body to which the IHSA is allegedly a

subsidiary. Throughout these proceedings, the BGA has made various assertions

including that the IHSA is a subsidiary of the collective member public schools,

which is not in and of itself a public body or, alternatively, a subsidiary of the

school districts to which its member public schools belong. As discussed below, the

IHSA’s governing documents do not reflect any such organizational structure, and

the IHSA does not otherwise satisfy the definition of a subsidiary body.

¶ 36 1. Independent Legal Identity

¶ 37 With respect to the first factor, independent legal identity, it is undisputed that

the IHSA was not created by a school district or any other public body or by any

other statute or government resolution. It has had a separate legal existence,

independent from any public body, for more than the past 100 years. As a voluntary

unincorporated association, it has independent standing to sue and be sued. 735

ILCS 5/2-209.1 (West 2014). Its authority is derived from its board of directors,

which is created pursuant to its own constitution. No statute defines the limits of its

authority.

¶ 38 Under its governing documents, the IHSA board is not formally created by any

public body. Notably, unlike other high school athletic associations in other states,

the IHSA has never been “housed” within a public body, and its rules and

regulations have never been part of the School Code. 105 ILCS 5/1-1 et seq. (West

2014). Nor has the IHSA ever been designated as the official athletic association of

the State. Cf. Breighner v. Michigan High School Athletic Ass’n, 683 N.W.2d 639,

650-52 (Mich. 2004) (Weaver, J., dissenting, joined by Kelly, J.); City Press

Communications, LLC v. Tennessee Secondary School Athletic Ass’n, 447 S.W.3d

- 11 -

230, 238 (Tenn. Ct. App. 2014). Thus, the first factor weighs against finding the

IHSA is a public body under the FOIA.

¶ 39 2. Degree of Government Control

¶ 40 With respect to the second factor, the degree of government control, the BGA

asserts that the IHSA is subject to government control because public schools

comprise a majority of its membership. Despite the fact that its members are

primarily public schools, no public body has control over how the governing board

is established or comprised. There is nothing in the governing documents to suggest

that the board is controlled by school districts. Membership by individual schools is

not compulsory. Not all public high schools in Illinois are members of the IHSA.

They are free to join other athletic organizations in lieu of, or in addition to, the

IHSA.

¶ 41 Although public schools account for the majority of the membership, this is not

a requirement of the IHSA’s constitution. There is no requirement that principals

from the same school district vote in alignment with respect to proposed changes to

the constitution and bylaws. Each board member acts on behalf of all of the schools

in his division, including private schools. The board is not accountable to any

particular school district or particular public school. Nothing in the IHSA’s

governing documents show that the actions of the board must receive approval

from any public body.

¶ 42 Furthermore, an individual principal is elected to the board and can change

schools during his tenure, even from public to private, as long as the principal

continues to meet the divisional requirements of that particular board seat as

created by the IHSA. Board members do not receive compensation to be a member

of the board.

¶ 43 In addition, the executive director and assistants and other administrative staff

are employed by the IHSA to manage the day-to-day operations of the

organization. The executive director has the “authority and responsibility to

investigate and decide all matters concerning eligibility, protests, by-laws or rules,”

which may be then appealed to the board. The executive director and staff are not

government employees, are not paid from government funds, and are not subject to

- 12 -

state regulations regarding public employees. They are not eligible for state or local

governmental retirement programs or insurance benefits.

¶ 44 The BGA has identified certain statutory duties imposed on the IHSA regarding

concussion protocols, insurance coverage, a legislative liaison, and consultations it

must have with the Illinois State Board of Education in the Board of Education’s

development of rules regarding equal access programming. 2 These statutes do not

suggest any kind of pervasive day-to-day control over the functioning of the IHSA

with respect to its bylaws and rules, the enforcement of those rules, or its promotion

and sponsorship of its tournaments. Merely because the legislature imposes certain

duties on an entity for the public good does not mean that the entity is substantially

controlled by government. See Rockford, 64 Ill. App. 3d at 95 (finding that an

entity was not a public body despite being “required to comply with numerous

government regulations”).

¶ 45 We further reject the BGA’s assertion that its allegations raised a genuine issue

of material fact. The BGA alleged in its complaint that the IHSA “argued in [the

Hood case] that it enjoys governmental legal immunities based on factual

representations that are dispositive to the question here.” The BGA asserts that the

IHSA’s arguments in the prior litigation amount to evidentiary admissions that

contradict the Hickman affidavit, thereby creating an issue of fact.

¶ 46 In Hood v. Illinois High School Ass’n, 359 Ill. App. 3d 1065 (2005), the IHSA

made several arguments in an effort to establish the operational control necessary

to support its tort immunity. In support, the IHSA asserted that local governmental

entities “own” the association, that local governmental control is pervasive, that the

business of the association is public business, that the IHSA is an agency of the

collective schools of Illinois, and that the employees of the local entities control the

IHSA’s governing body. The court in the Hood case ultimately found that the IHSA

was not a “local public entity” under the Tort Immunity Act. Id. at 1069-70.

¶ 47 Though the IHSA made those arguments in the context of a tort immunity case,

its arguments are not evidence that would create an issue of fact. Here, the

governing documents speak for themselves, and the Hickman affidavit does not

2

See 105 ILCS 5/10-20.54, 22-15(c), 22-24, 27-1, 34-18 (West 2014).

- 13 -

conflict with any well-pleaded fact. Furthermore, even if we were to construe these

statements as admissions, “[a] party is not bound by admissions regarding

conclusions of law because the courts determine the legal effect of the facts

adduced.” JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 475

(2010). Thus, we find the second factor weighs against finding the IHSA is a public

body under the FOIA.

¶ 48 3. Public Funding

¶ 49 With respect to the third factor, public funding, the IHSA does not receive any

direct governmental funding. Although it has the capacity to, it does not charge any

dues to its member schools and does not charge schools any entry fees to participate

in its events. The BGA argues that although the IHSA receives no direct

governmental funding, it earns revenue indirectly from the efforts of public school

students at events held at public facilities.

¶ 50 The IHSA revenue is generated primarily from the post-season interscholastic

events that it organizes and the sponsorships it obtains for those events. The IHSA

earns money from the sale of tickets to the general public, who have voluntarily

paid a fee to attend the event. The IHSA enters into contracts with host schools and

pays a fee for use of the schools’ facilities.

¶ 51 The BGA additionally asserts that the IHSA is government funded because it

receives profits that otherwise could have been made by the member public

schools. This argument was rejected in Breighner, 683 N.W.2d 639. There, the

Michigan Supreme Court was asked to consider whether the Michigan High School

Athletic Association was a public body under its public records statute. The

definition of public body included an entity which is primarily funded by or

through state or local authority. Id. at 644. The court rejected such a broad,

far-reaching sense of whether an entity is funded by government in this context. It

found that to hold otherwise would place any contractor that obtains a majority of

its income from sales or services rendered to government bodies within the

statute’s purview merely because it receives money “by virtue of” its relationship

with a governmental body. (Emphasis omitted.) Id. at 645 n.2.

- 14 -

¶ 52 As an example, it cited the not-for-profit College Board, which administers the

SAT to public school students in the classrooms of participating public schools

each year. Its revenue is derived from public school students who pay an

examination fee directly to the College Board. Merely because it derives income

from the fact that “the public schools have facilitated an opportunity for the Board

to administer this test in the schools” does not make it a public body subject to

disclosure requirements. Id.

¶ 53 We find this reasoning to be sound. Similarly, the IHSA is not funded by

participating member schools but, rather, generates its revenue from its

organizational efforts. Additionally, the IHSA provides a function that no member

public school could provide on its own and, for the last 100 years, no other public

body in the State has sought to provide. The fact that the public schools could

provide this service at their own expense does not transform the revenue generated

by the IHSA into public funding. Thus, we find that the third factor weighs against

a finding that the IHSA is a public body under the FOIA.

¶ 54 4. Nature of the Functions Performed

¶ 55 In view of our findings that the IHSA is not created, controlled, or funded by

government, we need not decide whether it performs a governmental function.

Even if the nature of the functions performed by the IHSA were governmental, this

factor alone cannot transform a private entity into a public body for purposes of the

FOIA. To hold otherwise would mean that any private entity that merely provides

education services to public schools would risk being transformed into a public

body. The General Assembly could not have intended such a result. Accordingly,

for all of the foregoing reasons, based on the pleadings and supporting documents,

we find that the IHSA is not a public body as that term is defined in the FOIA.

Therefore, the circuit court properly granted the IHSA’s motion to dismiss.

¶ 56 District 230’s Motion to Dismiss

¶ 57 Next, we consider the BGA’s claim against District 230, which was dismissed

pursuant to section 2-615 of the Code. A section 2-615 motion to dismiss tests the

legal sufficiency of the complaint. Hadley v. Doe, 2015 IL 118000, ¶ 29. When

- 15 -

ruling on the motion, we must accept as true all well-pleaded facts and any

reasonable inferences that may arise from them, but a court cannot accept as true

mere conclusions unsupported by specific facts. Patrick Engineering, Inc., 2012 IL

113148, ¶ 31. Our review of the granting of a section 2-615 motion to dismiss is

de novo. Id.

¶ 58 The BGA contends that it sufficiently stated a cause of action against District

230 to impose upon it an obligation to disclose the requested records of the IHSA.

The basis for the BGA’s claim is that the IHSA performs a governmental function

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

function, thereby triggering the required disclosure under section 7(2) of the FOIA.

¶ 59 Again, we are called upon to construe the FOIA to resolve the BGA’s

contentions. As stated, under the general framework of the FOIA, public bodies

have to disclose their “public records” upon request, unless they can establish the

records are exempt. 5 ILCS 140/3(a) (West 2014). There is no question that District

230 is a public body subject to the FOIA’s disclosure requirements. 5 ILCS

140/2(a) (West 2014) (“ ‘Public body’ means all *** school districts ***.”). The

term “[p]ublic records” is defined in pertinent part as:

“[A]ll records *** pertaining to the transaction of public business, *** 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).

Other than its conclusory allegation that the requested records were nonexempt

public records of District 230, the BGA did not specifically allege that the

requested records fall within the definition of public record as defined in section

2(c). Presumably, the BGA recognized that the requested records were not prepared

by or for, not used by, received by, in the possession of, or under the control of the

District.

¶ 60 Rather, the BGA alleged that the requested records were public records of

District 230 as provided under section 7(2) of the FOIA. Section 7(2) provides as

follows:

- 16 -

“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).

¶ 61 Section 7(2) was added to the FOIA in 2010 by Public Act 96-542 (eff. Jan. 1,

2010) to extend the definition of what is considered a public record of a public

body, where the records are not in the public body’s possession. If a public body

contracts with a party to perform a governmental function on behalf of the public

body, records that are in that party’s possession that directly relate to that

governmental function and are not otherwise exempt are public records of the

public body.

¶ 62 The BGA asserts that in adding section 7(2), it was the General Assembly’s

intent to respond to the growing concern related to the privatization of government

responsibilities and its impact on the right of public information access and

transparency. As the BGA points out, when governmental functions are privatized,

there is a risk of decreased accountability and transparency. We agree that such an

interpretation is consistent with the purpose of the FOIA, which is expressly based

on a policy of full, complete disclosure regarding the affairs of government to

promote accountability in government and an informed citizenry. 5 ILCS 140/1

(West 2014); Bowie v. Evanston Community Consolidated School District No. 65,

128 Ill. 2d 373, 378-79 (1989). To that end, we agree that section 7(2) ensures that

governmental entities must not be permitted to avoid their disclosure obligations by

contractually delegating their responsibility to a private entity.

¶ 63 Thus, the question before us is whether the IHSA has contracted with District

230 to perform a governmental function on its behalf and, if so, whether the

requested records are directly related to that governmental function. At the outset,

we note that the BGA never specifically alleged in its complaint that the IHSA

contracted with District 230 or explained the nature of such a contract. With respect

to performing a governmental function on the District’s behalf, “governmental

function” is defined as “a government agency’s conduct that is expressly or

impliedly mandated or authorized by constitution, statute, or other law and that is

- 17 -

carried out for the benefit of the general public.” Black’s Law Dictionary 812 (10th

ed. 2014).

¶ 64 The comprehensive responsibilities of District 230 are generally set forth in the

School Code. 105 ILCS 5/1-1 et seq. (West 2014). The responsibility to govern and

coordinate interscholastic athletic competitions for public and private school

students is not one of its functions. Indeed, there is no constitutional, statutory, or

other law that mandates or authorizes District 230 to perform those functions. The

School Code authorizes school boards to form or join associations. 105 ILCS

5/23-2 (West 2014). That authorization does not mean that District 230 is

authorized to perform the functions of the IHSA. Thus, the IHSA is not acting on

behalf of District 230 to perform the District’s responsibilities. Alternatively,

District 230 has not delegated any of its governmental functions to the IHSA.

¶ 65 Notably, the IHSA is distinct from other state high school athletic associations

where the State has ceded its government authority to the association to perform

these functions. For example, as noted in City Press Communications, 447 S.W.3d

230, the historical relationship between the Tennessee State Board of Education

and the association made it clear that “the Board of Education viewed athletic

activities in public schools to be one of its functions” and that the board officially

designated the association as the organization to regulate interscholastic sports in

Tennessee. Id. at 238. At one time, the Tennessee State Board of Education also

approved the rules and regulations and reserved the right to review the

appropriateness of future changes. Id.; see also Breighner, 683 N.W.2d at 647

(interscholastic athletic association was historically legislatively designated as the

official organization for the regulation of interscholastic sports and housed within

the Michigan Department of Education). In contrast, the IHSA has been

responsible for those functions for the past 100 years. Accordingly, where the

IHSA has not contracted to perform a governmental function on behalf of District

230, the requested records are not public records of the District under section 7(2)

of the FOIA. Therefore, the circuit court properly granted District 230’s motion to

dismiss.

- 18 -

¶ 66 CONCLUSION

¶ 67 For the foregoing reasons, we hold that the IHSA is not a public body as defined

by the FOIA and that the requested records are not the public records of District

230. Accordingly, we affirm the judgment of the appellate court, which affirmed

the circuit court’s dismissal of the BGA’s complaint.

¶ 68 Affirmed.

- 19 -