Chicago Tribune v. College of DuPage

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Appellate Court Date: 2017.07.24

16:21:24 -05'00'

Chicago Tribune v. College of Du Page, 2017 IL App (2d) 160274

Appellate Court THE CHICAGO TRIBUNE, Plaintiff-Appellee and Cross-Appellant,

Caption v. THE COLLEGE OF DU PAGE and THE COLLEGE OF

DU PAGE FOUNDATION, Defendants-Appellants and Cross-

Appellees.

District & No. Second District

Docket No. 2-16-0274

Filed May 9, 2017

Decision Under Appeal from the Circuit Court of Du Page County, No. 15-MR-580;

Review the Hon. Robert G. Gibson, Judge, presiding.

Judgment Affirmed; cross-appeal dismissed; cause remanded.

Counsel on Michael P. Adams and Timothy D. Elliot, of Rathje & Woodward,

Appeal LLC, of Wheaton, for appellant College of Du Page.

James L. Ryan and Matthew T. Caruso, of Roberts & Caruso, of

Wheaton for appellant College of Du Page Foundation.

Karen H. Flax, of Tribune Publishing Company, and Alexandra K.

Block and Daniel M. Feeney, of Miller Shakman & Beem, LLP, both

of Chicago, for appellee.

Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.

Justices McLaren and Hutchinson concurred in the judgment and

opinion.

OPINION

¶1 Plaintiff, the Chicago Tribune (Tribune), brought suit against defendants, the College of

Du Page (College) and the College of Du Page Foundation (Foundation), pursuant to the

Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. West 2014)), seeking disclosure

of a federal grand jury subpoena that was served on the Foundation on or about April 13,

2015. The Tribune and defendants filed cross-motions for summary judgment. On March 17,

2016, the circuit court granted the Tribune’s motion as to both defendants and denied

defendants’ motions, holding that the subpoena was subject to disclosure under section 7(2)

of FOIA. 5 ILCS 140/7(2) (West 2014). In so ruling, the circuit court found that the College

had contracted with the Foundation to perform a governmental function on its behalf and that

the subpoena directly related to that governmental function. The Tribune thereafter filed a

petition for attorney fees under section 11(i) of FOIA. 5 ILCS 140/11(i) (West 2014). The

circuit court later allowed the Tribune to voluntarily withdraw the fee petition without

prejudice on July 18, 2016, so that it could refile it at the conclusion of this appeal.

¶2 Defendants appeal the circuit court’s March 17, 2016, order granting the Tribune’s

motion for summary judgment and the July 18, 2016, order allowing the Tribune to withdraw

its fee petition without prejudice. Although summary judgment was entered in the Tribune’s

favor, it has filed a cross-appeal, contending that the circuit court erred in ruling that the

Foundation is not a subsidiary public body under FOIA. For the following reasons, we affirm

the circuit court’s judgment, dismiss the Tribune’s cross-appeal, and remand for further

proceedings.

¶3 I. BACKGROUND

¶4 A. College of Du Page

¶5 The College is a community college in Glen Ellyn, Illinois. It was organized under the

Public Community College Act (Act) (110 ILCS 805/1-1 et seq. (West 2014)) and is a

“public body” as that term is defined in section 2(a) of FOIA. 5 ILCS 140/2(a) (West 2014).

In its 2015 fiscal year, the College’s enrollment exceeded 28,000 students and it was the

second largest provider of undergraduate education in the state. That year, the College’s

annual budget exceeded $300 million. Its principal sources of revenue were student tuition

and property taxes levied in Community College District 502, which encompasses most of

Du Page County and portions of Cook and Will Counties.

¶6 The College is governed by an eight-member board of trustees (College Board), which is

composed of one nonvoting student and seven individuals elected by the voters of District

502. The College Board is responsible for overseeing the mission, leadership, and operations

of the College and has the powers that are authorized to it by section 3-7 of the Act (110

ILCS 805/3-7 (West 2014)). The College president and all other administrators report to the

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College Board.

¶7 B. College of Du Page Foundation

¶8 The Foundation was incorporated in Illinois as a not-for-profit corporation in 1967—the

same year that the College first opened its doors to the public. As expressed in its bylaws, the

Foundation exists to support the educational mission of the College by raising money to fund

the College’s academic programs, capital programs, and student scholarships. It does not

support any other institutions or individuals. The Foundation assists the College in soliciting

private financial donations, and it manages, invests, and administers all private gifts and

resources, including endowments and real property. The Foundation is exempt from federal

income taxation under section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)

(2006)).

¶9 As provided in its bylaws, the Foundation is managed by a board of directors (Foundation

Board), which is tasked with determining how to hold, manage, and administer all private

donations, subject to the terms and conditions prescribed by the donor. In its sole discretion,

the Foundation Board may accept or reject any contribution or gift. The Foundation Board

and its officers owe fiduciary duties to the Foundation, including the duty of loyalty. The

Foundation can indemnify its directors, officers, employees, or agents against expenses,

judgments, and fines, and it can purchase and maintain insurance on behalf of those

individuals.

¶ 10 The Foundation Board is organized into three groups. “Group 1” consists of between 32

and 37 members whom other members of the Foundation Board select to serve specified

terms. “Group 2” consists of the College’s president, the Foundation’s executive director,

and one member of the College Board, as ex officio members. “Group 3” consists of

honorary members, emeritus directors, recognized community leaders, and the like. Only

Group 1 is entitled to vote, and any action by a majority of Group 1 directors constituting a

quorum is an official act of the Foundation Board. The bylaws require the Foundation Board

to have a minimum of four regular meetings per year, in addition to an annual meeting held

each June. All such meetings are held at the College.

¶ 11 The bylaws provide that the Foundation’s daily business is overseen by the executive

director of the Foundation, who “shall be employed by the College.” In practice, the

executive director is the College’s vice president for development. The position, formally

titled “Executive Director of the College of Du Page Foundation/Vice President for

Development,” has a single job description that outlines responsibilities to both the

Foundation and the College. The executive director is “responsible for the leadership,

oversight, development, implementation[,] and evaluation of institutional fundraising,” and

“serves as a key leadership team member and an active participant in making strategic

decisions affecting the College of Du Page and its Foundation.” At all times pertinent to this

appeal, this position was held by Catherine Brod. The executive director is supported by the

“Assistant Vice President for Development/Associate Executive Director of the Foundation,”

which is another dual-role position at the College and the Foundation. At all times pertinent

to this appeal, this position was filled by Karen Kuhn.

¶ 12 The day-to-day business of the Foundation is carried out by its approximately 11-member

staff, which consists entirely of paid civil-servant employees of the College. They each have

one telephone extension and one College-provided email address for use on both College and

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Foundation business. These employees work interchangeably on College and Foundation

business throughout their workday and do not maintain separate timesheets to account for

their work. Rather, they annually estimate the percentages of time spent working on College

business and Foundation business. For example, in each of the 3½ years that Brod served as

executive director, she reported that she spent 50% of her time working on Foundation

business and 50% of her time working on College business. For the percentage of time that a

College employee estimates he or she worked on Foundation business, the same percentage

of his or her salary is deemed an “in-kind” donation from the College to the Foundation. In

its 2015 fiscal year, the Foundation received $785,000 in “in-kind” staff support from the

College. These staff members receive the same health benefits that are available to all

full-time College employees and participate in the State Universities Retirement System

(SURS).

¶ 13 In its 2014 fiscal year, the Foundation earned or raised $11.2 million, including

approximately $5 million in private fundraising, and awarded roughly $1.5 million to the

College, its students, and its faculty. At the conclusion of its 2014 fiscal year, the Foundation

had approximately $14.5 million in assets. The Foundation’s bylaws provide that, in the

event of its dissolution, all Foundation assets, less any liabilities, are to be distributed to the

College.

¶ 14 C. Memorandum of Understanding

¶ 15 On June 22, 2009, the College and the Foundation entered into a “Memorandum of

Understanding” (MOU), detailing their respective contractual obligations Pursuant to the

MOU, the Foundation agreed, inter alia, (1) to act as “the primary depository of private

donations on behalf of the College”; (2) “[t]o hold, manage and distribute such assets in [the

Foundation’s] possession for the dedicated purpose of supporting the mission of the

College”; (3) “[t]o maintain and manage an endowment” for the College; (4) “[t]o identify,

cultivate, evaluate and solicit” active and prospective donors; (5) “[t]o plan, direct and

implement all phases of private sector fundraising efforts”; and (6) “[t]o pay or reimburse the

College president for expenses related to fundraising activities or otherwise advancing the

College/Foundation.”

¶ 16 In return, the College agreed, inter alia, to provide the Foundation with College personnel

to staff the Foundation, as well as to provide fully furnished and equipped office space on the

College’s campus, rent-free. The College also agreed to have the College president assume a

“prominent role in the Foundation’s fundraising activities.” Under the MOU, after

consultation with the Foundation Board, the College president is entitled to recommend an

individual to serve as the executive director. The College also agreed to consider the

executive director’s recommendations regarding the Foundation’s staffing needs and to allow

the Foundation to use the College’s name, logo, and marketing brand.

¶ 17 In the event that the Foundation ceases to exist, the MOU provides that the Foundation

will transfer all of its assets and property to the College or to any foundation affiliated with

the College that is organized and operated exclusively for charitable and educational

purposes. The MOU’s initial term was five years, but it explicitly provides that it remains in

effect from year to year unless either party terminates it—either without cause upon 90 days’

prior written notice or with cause after a party’s default and failure to timely cure it.

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¶ 18 D. The Tribune’s FOIA Requests and Subsequent Litigation

¶ 19 The instant matter stems from a series of FOIA requests sent by the Tribune in April

2015. In its first FOIA request, on April 1, 2015, the Tribune sought from the College “[a]ny

copies of grand jury subpoenas for the College of Du Page Foundation which are in

possession, physically or in electronic form, of the college, any of its administrators, senior

managers, president, board members, paid consultants, lobbyists or representatives”

(Du Page grand jury subpoena). One week later, the College’s FOIA officer replied that it did

not have any documents responsive to the request. On April 14, 2015, the Tribune sent FOIA

requests to both the College and the Foundation, seeking various documents regarding

College administrators’ expenses that were reimbursed by the Foundation through the

Foundation’s leadership-cultivation account. The College replied that it did not have any

documents responsive to the request, and the Foundation replied that it was not subject to

FOIA.

¶ 20 Believing that the Foundation was recently served with a federal grand jury subpoena, the

Tribune issued its final FOIA requests to the College and the Foundation on April 16, 2015,

seeking copies of all state and federal subpoenas received by the Foundation since April 1,

2015 (federal grand jury subpoena). The Foundation replied by asserting that it was not

subject to FOIA, because it was a nongovernmental not-for-profit corporation. The following

day, the College responded by stating that it did not have any documents responsive to the

request.

¶ 21 On April 29, 2015, the Tribune filed a complaint against the College and the Foundation,

seeking declaratory and injunctive relief under FOIA. During the circuit court proceedings,

the College produced the Du Page grand jury subpoena and all nonexempt

leadership-cultivation documents, but it did not produce the federal grand jury subpoena.

Instead, it produced affidavits from two individuals, Joseph Moore and Brod, stating that

neither the College nor the Foundation’s staff possessed the subpoena. The College thereafter

moved to dismiss the complaint, arguing that the Tribune’s claims against it were moot, as

the federal grand jury subpoena was not in the College’s custody or control, and therefore the

College could not be compelled to produce it. The circuit court denied the College’s motion,

stating that it had to accept as true the Tribune’s well-pleaded factual allegation that College

employees had at one point possessed the subpoena.

¶ 22 After further proceedings, the parties filed cross-motions for summary judgment with

respect to the federal grand jury subpoena, which was the only requested document that

remained undisclosed. In its motion, the Tribune raised three legal theories in support of its

position that the subpoena was subject to disclosure under FOIA. It argued that (1) the

Foundation was a subsidiary public body within the meaning of section 2(a) of FOIA (5

ILCS 140/2(a) (West 2014)), (2) the Foundation had contracted with the College to perform a

governmental function within the meaning of section 7(2) of FOIA and the subpoena related

directly to that function (5 ILCS 140/7(2) (West 2014)), and (3) the subpoena was a public

record of the College, due to the College’s alleged handling of it, and the subpoena remained

within the College’s direct control.

¶ 23 On March 17, 2016, the circuit court granted the Tribune’s motion for summary

judgment against both defendants and denied defendants’ motions for summary judgment. In

announcing its ruling, the circuit court touched on each of the Tribune’s three arguments.

First, applying the three-factor test as set forth in Rockford Newspapers, Inc. v. Northern

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Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978), the circuit

court ruled that the Foundation was not a subsidiary public body, noting the Foundation’s

formal legal nature and the College’s lack of direct control over the Foundation Board.

¶ 24 The circuit court agreed with the Tribune’s second argument, however, and ruled that the

federal grand jury subpoena was a public record in the Foundation’s possession, obtained

while the Foundation was under contract to perform a governmental function on behalf of the

College, that related directly to that governmental function under section 7(2) of FOIA.

Having found in the Tribune’s favor under section 7(2), the circuit court declined to address

whether the subpoena was a public record of the College due to the College’s alleged

handling of it.

¶ 25 The Tribune thereafter filed a petition for attorney fees under section 11(i) of FOIA. 5

ILCS 140/11(i) (West 2014). On July 18, 2016, the circuit court allowed the Tribune to

voluntarily withdraw its fee petition without prejudice in order to defer the issue of attorney

fees until after the appeal.

¶ 26 Though the Tribune won summary judgment in the circuit court, it contends that the court

erred in holding that the Foundation was not a subsidiary public body within the meaning of

section 2(a) of FOIA. Thus, all parties appeal the circuit court’s March 17, 2016, summary

judgment order. Defendants also appeal the July 18, 2016, order allowing the Tribune to

withdraw its fee petition without prejudice. Again, the sole requested record that remains

undisclosed is the federal grand jury subpoena.

¶ 27 II. ANALYSIS

¶ 28 As an initial matter, we note that the Tribune’s cross-appeal is improper. Our supreme

court has explained that “[a] party cannot complain of error which does not prejudicially

affect it, and one who has obtained by judgment all that has been asked for in the trial court

cannot appeal from the judgment.” Material Service Corp. v. Department of Revenue, 98 Ill.

2d 382, 386 (1983). “It is fundamental that the forum of courts of appeal should not be

afforded to successful parties who may not agree with the reasons, conclusion or findings

below.” Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 414 Ill. 275, 282-83

(1953). In the circuit court proceedings, the Tribune prevailed on its motion for summary

judgment and was awarded all of the relief sought therein. Where the circuit court grants

summary judgment in favor of a party, that party cannot file a cross-appeal to seek relief

from the summary judgment order. Dowe v. Birmingham Steel Corp., 2011 IL App (1st)

091997, ¶ 25. Accordingly, we must dismiss the Tribune’s cross-appeal, and we need not

determine whether the circuit court erred in holding that the Foundation is not a subsidiary

under section 2(a) of FOIA. Nevertheless, in our disposition of defendants’ appeal, we

consider the arguments the Tribune raises in its cross-appeal because “an appellee may argue

in support of the judgment on any basis which appears in the record.” Hayes v. Board of Fire

& Police Commissioners, 230 Ill. App. 3d 707, 710 (1992). We now turn to the merits.

¶ 29 We review a grant of summary judgment under the de novo standard of review. Dumke v.

City of Chicago, 2013 IL App (1st) 121668, ¶ 11. Summary judgment motions are governed

by section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2014)).

Summary judgment should be granted only where “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.” 735

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ILCS 5/2-1005(c) (West 2014). Where parties file cross-motions for summary judgment,

they agree that only a question of law is involved, and they invite the court to decide the case

based upon the record. Pielet v. Pielet, 2012 IL 112064, ¶ 28. Even where cross-motions are

filed, however, the court is not obligated to grant summary judgment. Falcon Funding, LLC

v. City of Elgin, 399 Ill. App. 3d 142, 147 (2010). We also review de novo the issue of a

circuit court’s subject matter jurisdiction over a given set of proceedings. In re Estate of

Ahern, 359 Ill. App. 3d 805, 809 (2005).

¶ 30 Under FOIA, Illinois has established a public policy that all persons are entitled to full

and complete information regarding the affairs of government and the official acts and

policies of those who represent them. 5 ILCS 140/1 (West 2014). “It is a fundamental

obligation of government to operate openly and provide public records as expediently and

efficiently as possible in compliance with this Act.” Id. FOIA also provides that “[r]estraints

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.” Id.

¶ 31 Section 1.2 of FOIA makes clear that “[a]ll records in the custody or possession of a

public body are presumed to be open to inspection or copying. Any public body that asserts

that a record is exempt from disclosure has the burden of proving by clear and convincing

evidence that it is exempt.” 5 ILCS 140/1.2 (West 2014). Section 3(a) establishes 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).

¶ 32 We begin our review by considering section 7(2) of FOIA, under which the circuit court

granted the Tribune relief. It provides as follows:

“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).

¶ 33 Defendants maintain that the circuit court erred when it held that the federal grand jury

subpoena was a public record of the College by way of section 7(2). Specifically, they argue

that the subpoena does not qualify as a public record and that the Foundation does not

perform a governmental function. The College also maintains that the Tribune’s claims

against it became moot in July 2015, when it turned over all of the documents that were

responsive to the Tribune’s FOIA requests that were within the College’s possession. We

address each of these issues in turn.

¶ 34 At the outset, the College argues that it is impossible to grant relief under section 7(2)

without first determining whether the requested documents independently satisfy the

definition of “public records.” In support, the College points to the language of section 7(2),

which begins with the phrase “[a] public record that is not in the possession of a public

body.” (Emphasis added.) Id. The College also highlights the “undisputed facts” that the

subpoena was not prepared by or for the College, nor did the College use, receive, possess, or

control it. In the College’s view, section 7(2) merely provides that “public records” do not

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cease being “public records” simply because a public body has given them to a contractor

that is performing a governmental function.

¶ 35 Admittedly, the College’s argument finds some support in a recent First District opinion.

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

allowed, No. 121124 (Ill. Sept. 28, 2016), the Better Government Association (BGA) issued

FOIA requests to Consolidated High School District 230 (District 230) and the Illinois High

School Association (IHSA), which is a private not-for-profit corporation that sponsors high

school athletic competitions within Illinois. Id. ¶ 3. IHSA responded by stating that it was not

subject to FOIA because it was a nonprofit charitable organization, and District 230

responded by stating that it did not possess any records that were responsive to the request.

Id. BGA then filed a complaint seeking, among other relief, a declaration that IHSA

performed a governmental function on behalf of its member schools. Id. ¶ 4. The circuit court

granted District 230’s motion to dismiss and held that section 7(2) did not apply because

IHSA did not perform a governmental function. Id. ¶ 10.

¶ 36 On appeal, the First District affirmed, holding that the requested records were not “public

records,” which it stated was the “threshold requirement” for triggering 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.’ ” Id. ¶ 45. As such, the court looked to the

definition of “public records” under FOIA and stated that “[t]he 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.’ ” Id. (quoting 5 ILCS 140/2(c) (West 2014)).

Reasoning that IHSA did not engage in public or governmental business, the court held that

the requested records did not pertain to the transaction of public business, thus failing to

satisfy the “threshold requirement” that the records were public records under FOIA. 1 Id.

¶ 46. In the First District’s view, section 7(2) merely “extends a public body’s obligation to

provide access to public records in the possession of a third party.” Id. ¶ 47. Finding that the

records were not public records, the court did not further analyze the elements of section

7(2). Id. ¶ 48.

¶ 37 Respectfully, we believe that the First District misconstrued the statute when it stated that

the requested records must independently satisfy the definition of “public records” under

section 2(c) in order to trigger section 7(2). Simply put, such a reading of section 7(2) would

contravene the basic rules of statutory interpretation and render section 7(2) superfluous. In

construing a statute, our primary objective is to ascertain and give effect to the legislature’s

intent. MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009). A

court may consider the reason and necessity for the statute and the evils it was intended to

remedy, and it must not construe the statute in a manner that would lead to consequences that

are absurd, inconvenient, or unjust. McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 513-14

(1998). The statute should be read as a whole and interpreted “so that no term is rendered

superfluous or meaningless.” In re Marriage of Kates, 198 Ill. 2d 156, 163 (2001).

¶ 38 In section 2(c), FOIA defines the term “public records” as:

1

Parenthetically, we observe that the First District would have reached the same holding had it

begun its analysis under section 7(2) by considering whether IHSA performed a governmental function

on behalf of District 230, then answering that question in the negative.

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“[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps,

photographs, microfilms, cards, tapes, recordings, electronic data processing records,

electronic communications, recorded information and all other documentary materials

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).

¶ 39 Under a plain reading of section 2(c), records that qualify as “public records” remain

“public records” if they are transferred to a nonpublic body. Importantly, section 2(c) does

not require that a public body have present possession or control of the records in order for

them to be “public records” subject to FOIA. So long as the other elements of section 2(c) are

met, the definition is satisfied where a public body formerly possessed or controlled the

records, as evidenced by the inclusion of the phrase “having been *** in the possession of, or

under the control of any public body.” (Emphasis added.) Id.

¶ 40 Likewise, section 3(a) establishes that public bodies are obligated to provide the general

public with access to all public records, as long as the records are not exempt. “Each 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 [FOIA].” 5 ILCS 140/3(a) (West 2014). This

obligation is similarly not limited to those public records that the public body has present

possession or control of, for it applies to “all public records.” (Emphasis added.) Id. Reading

sections 2(c) and 3(a) in conjunction makes clear that a public body’s obligation to provide

access to public records is not limited to those public records that it has present possession or

control of—as that obligation continues even if such records are transferred to a nonpublic

body. Therefore, the First District’s interpretation that section 7(2) merely extends a public

body’s obligation to provide access to public records in the possession of a third party would

render section 7(2) superfluous—public bodies already have such an obligation under section

3(a).

¶ 41 If accepted, the First District’s interpretation would also lead to absurd results in many

instances. Under its reasoning, records that are in the possession of an entity that has

contracted with a public body to perform a governmental function, and that directly relate to

that governmental function, will not be subject to FOIA unless they were first “prepared by,”

“prepared for,” “used by,” “received by,” “possessed by,” or “controlled by” the public body.

By virtue of having entered into a contract delegating the performance of a governmental

function to a third party, however, the public body rarely will have actually prepared, used,

received, possessed, or controlled those records that “directly relate” to the governmental

function. To impose these additional requirements, as the First District suggests, would have

the unintended effect of shielding third-party records from disclosure in precisely those

instances where section 7(2) was plainly meant to apply. Indeed, the First District seemed to

recognize that its interpretation might be problematic, as it explicitly “recognize[d] 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,’ *** so long as the other

elements of section 7(2) are satisfied.” Better Government Ass’n, 2016 IL App (1st) 151356,

¶ 45. While we agree with the First District on this point, we submit that the records also

need not satisfy the remaining elements of section 2(c) in order for section 7(2) to apply.

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¶ 42 The language and purpose of section 7(2) make clear that a record that is possessed by a

party under contract with a public body to perform a governmental function, and that directly

relates to that governmental function, “shall be considered a public record of the public

body,” so long as it is not exempt. 5 ILCS 140/7(2) (West 2014). In essence, where each of

the elements of section 7(2) is satisfied, certain third-party records are recast as public

records of the public body for purposes of FOIA. This view avoids rendering section 7(2)

superfluous, avoids absurd results, and is consistent with FOIA’s stated purpose of providing

“full and complete information regarding the affairs of government.” 5 ILCS 140/1 (West

2014). Accordingly, we reject the College’s argument that the circuit court erred in declining

to address whether the federal grand jury subpoena was a public record of the College,

independent of its relationship with the Foundation.

¶ 43 We next address whether the Foundation performs a governmental function on behalf of

the College within the meaning of section 7(2). At the outset, we note that FOIA does not

define the term “governmental function.” Quoting Black’s Law Dictionary, the Tribune

maintains that a governmental function is a “government agency’s conduct that is expressly

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

out for the benefit of the general public.” Black’s Law Dictionary 812 (10th ed. 2014). The

Tribune then points to the Act, which authorizes community college districts to “accept gifts,

grants or legacies from any source when made for community college purposes.” 110 ILCS

805/3-39.1 (West 2014). Thus, the Tribune argues that the College has contracted out to the

Foundation its statutory authority under the Act to solicit, accept, and manage all of the

College’s private donations such that the Foundation performs a governmental function.

¶ 44 Relying on comments the First District made in Better Government Ass’n, defendants

interpret the term “governmental function” markedly narrower. The Foundation argues that a

governmental function is any act that can be performed only by exercising governmental

power. In its briefs, the Foundation notes that powers that belong only to the State include the

power to tax, eminent domain, and the police power. At oral argument, however, the

Foundation agreed that if the College performed those same acts that the Foundation

performed, the College would be performing a governmental function. The College seems to

advocate for a number of different definitions. First, it argues that governmental functions are

tasks that the government must perform to deliver the benefits in which citizens have a

protectable property or liberty interest. It also argues that a governmental function is any

activity needed to provide citizens with the benefits that the government is specifically fit to

provide. Looking beyond the variations of what defendants contend is a governmental

function, they both interpret Better Government Ass’n as rejecting the idea that it is any act

that a public body merely could perform. They largely base this view on comments the court

made in a concluding paragraph, wherein it stated that “although a public body could

perform the same functions of IHSA ***, [it] does not perform public, governmental

functions in this case.” (Emphasis in original.) Better Government Ass’n, 2016 IL App (1st)

151356, ¶ 28. In essence, defendants maintain that the inverse of this statement must also be

true—that a “governmental function” is any act that a private entity could not do.

¶ 45 Defendants’ interpretation of section 7(2) has no basis in FOIA and, if accepted, would

impermissibly narrow it. As the Tribune correctly points out, accepting defendants’ view

would allow public bodies to shield records from public scrutiny simply by delegating to

third parties those responsibilities that do not involve the exercise of exclusive governmental

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powers. Importantly, not even the College’s own operations would qualify as a governmental

function under the rule advocated by defendants. The State is not mandated to provide higher

education to residents, nor is higher education provided exclusively by public bodies.

Moreover, much governmental activity occurs without exercising governmental powers.

Nevertheless, FOIA applies to all “public bodies” as that term is defined in section 2(c),

regardless of whether they perform exclusive state functions. We thus reject defendants’

overly narrow view of what “a governmental function” is under FOIA.

¶ 46 Defendants’ arguments notwithstanding, we also note that Better Government Ass’n does

not actually define the term “governmental function,” nor does it provide a roadmap for

analyzing section 7(2). This is underscored by the court’s statement that it “need not further

analyze the elements of section 7(2).” Id. ¶ 48. Though the First District concluded that IHSA

did not perform a governmental function, it did so by analyzing factors pertinent to the

relationship between the public body and the private entity in that particular case. For

instance, the First District noted that courts do not recognize a property or liberty interest in

playing interscholastic sports, that participation in athletics and IHSA was voluntary, that

individual member schools operated their own teams, and that some interscholastic athletic

events were held independent of IHSA. Id. ¶¶ 26-27. While these factors were relevant in

evaluating whether IHSA performed a governmental function, they are of limited guidance

here due to the nature of the relationship that the Foundation enjoys with the College, as

compared to that of IHSA and District 230.

¶ 47 The Tribune invites us to define “governmental function” as any “conduct that is

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

is carried out for the benefit of the general public.” We believe that even the Tribune’s

proffered definition is too narrow, as it suffers from the same infirmities as those for which

defendants advocate. Certainly not all governmental activity is done for the benefit of the

general public. In the instant matter, for example, one could reasonably argue that the

Foundation’s support of the College benefits only its students and faculty rather than the

public generally. To accept the Tribune’s proposed definition would provide a means by

which public bodies could conceal their records by contracting with third parties to perform

those tasks that benefit less than the general public, in contravention of the State’s public

policy favoring disclosure. “[T]he 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 the

people.” 5 ILCS 140/1 (West 2014).

¶ 48 Thus, we are hesitant to adopt a sweeping pronouncement of black letter law in this case,

because it might prove to be insufficiently flexible to account for the myriad of governmental

entities to which FOIA applies, to say nothing of the individualized governmental functions

they each perform. Rather, we believe that such analysis must be subject to a fact-specific

inquiry with an eye toward the particular public body’s role and responsibilities and keeping

in mind the specific act that it has contracted a third party to perform on its behalf. In this

respect, we note that courts in other states have explored this issue under similar statutory

frameworks. See SWB Yankees LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012) (holding

that an activity performed by an independent contractor must involve “the delegation of some

non-ancillary undertaking of government,” rather than the entry of a routine service

agreement, in order to be a governmental function); Gannon v. Board of Regents, 692 N.W.2d

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31, 40 (Iowa 2005) (holding that to qualify as a function of a government body, the activity

at issue need only advance the statutory objects of the institution).

¶ 49 Here, we agree with the Tribune that the Foundation is performing a governmental

function on behalf of the College by way of the MOU. Defendants take great pains to

describe the Foundation’s activities as merely engaging in private fundraising to benefit a

charitable cause. While we agree that the Foundation supports the College and is active in

raising money for its benefit, it is apparent to us that the Foundation’s activities on behalf of

the College encompass far more than just charitable fundraising.

¶ 50 Prior to the MOU, individual College departments engaged in their own fundraising. Not

long after the MOU, separate fundraising efforts by the College’s individual departments

ceased, and all private fundraising efforts were centralized in the Foundation. Under the

MOU, the Foundation serves “as the primary depository of private donations on behalf of the

College.” Thus, the Foundation holds and allocates all private donations—even those that it

did not solicit—and maintains records of all donations and pledges thereof. When an

individual contacts the College seeking to make a donation, the College directs the individual

to make the donation to the Foundation; the College will not accept it. All private donations

are therefore routed through the Foundation, regardless of origin. The Foundation and the

College also closely coordinate fundraising priorities, donor targets, and other affairs that

usually would be handled by a public college’s development office. The Foundation’s

strategic private-fundraising efforts are then integrated and coordinated with the College’s

goals and objectives. The College has no private-fundraising operation of its own, nor does it

maintain a separate endowment—ostensibly because the Foundation handles all of these

tasks exclusively, pursuant to contract. If the Foundation did not undertake these

responsibilities, the College would necessarily do so itself, as it had done prior to the MOU.

For all of these reasons, the Foundation is plainly performing a governmental function on

behalf of the College.

¶ 51 Though not determinative in this case, we also note that this result is consistent with the

holdings of courts in other states that have examined whether a foundation, carrying out

fundraising specifically on behalf of a public university, performs a governmental function

under similar open-records laws. See East Stroudsburg University Foundation v. Office of

Open Records, 995 A.2d 496, 505 (Pa. Commw. Ct. 2010); Gannon v. Board of Regents, 692

N.W.2d 31-32 (Iowa 2005).

¶ 52 Defendants warn that applying section 7(2) to the Foundation would impermissibly

expand the reach of FOIA to parent-teacher associations, booster clubs, and other volunteer

organizations that fundraise to support schools. This argument is without merit, as the

Foundation differs from such organizations. Those organizations are often run by volunteers,

are not under contract to manage a school’s entire endowment, and are not staffed by public

employees who receive state health and retirement benefits. We likewise reject the College’s

argument that the application of section 7(2) to the Foundation puts the privacy rights of

charities and philanthropists at risk. As the circuit court correctly noted in its ruling, FOIA

contains numerous exemptions that, if applicable, would safeguard those interests. For

example, section 7(1)(b) specifically exempts “[p]rivate information, unless disclosure is

required by another provision of [FOIA], a State or federal law[,] or a court order.” 5 ILCS

140/7(1)(b) (West 2014). Similarly, section 7(1)(c) exempts “[p]ersonal information

contained within public records, the disclosure of which would constitute a clearly

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unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by

the individual subjects of the information.” 5 ILCS 140/7(1)(c) (West 2014).

¶ 53 Further, in order for relief to be granted under section 7(2), a record must “directly relate”

to the governmental function performed on behalf of a public body. 5 ILCS 140/7(2) (West

2014). This requirement makes clear the legislature’s intention that the general public may

not access all of a third party’s records merely because it has contracted with a public body to

perform a governmental function. FOIA is not concerned with private affairs. City of

Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 31. “[T]he fact that [a] private

company’s acts may be connected with a governmental function [does not] create a public

body where none existed before.” Rockford Newspapers, Inc., 64 Ill. App. 3d at 97.

¶ 54 In granting summary judgment in favor of the Tribune, the circuit court specifically

found that the federal grand jury subpoena “directly relates to the [Foundation’s]

governmental function pursuant to 5 ILCS 140/7(2).” In contesting this finding, the

Foundation advances only a circular argument—that the subpoena does not “directly relate”

to a governmental function because the Foundation’s function is nongovernmental. The

College does not address whether the subpoena “directly relates” to a governmental function,

choosing instead to challenge the circuit court’s finding that the Foundation performs a

governmental function in the first place.

¶ 55 In the proceedings below, as well as on appeal, neither defendant argued that the federal

grand jury subpoena concerned anything other than activities or documents directly relating

to the Foundation’s private-development duties that it performs on behalf of the College.

Similarly, neither defendant has argued on appeal that any FOIA exemption applies, 2 nor did

either defendant ask the circuit court to conduct an in camera review of the document, as

contemplated under section 11(f) (5 ILCS 140/11(f) (West 2014)). As defendants have failed

to argue that the federal grand jury subpoena does not “directly relate” to the Foundation’s

private-development activities that it performs on behalf of the College, they have forfeited

this argument. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). In the absence of arguments that

might have been raised but were not, we affirm the circuit court’s finding that the subpoena

“directly relates” to the Foundation’s governmental function.

¶ 56 Next, the College argues that the summary judgment order should be reversed because

the Tribune’s claims against the College became moot when it produced all of the responsive

records that it had in its possession—including the Du Page grand jury subpoena and all

nonexempt leadership-cultivation documents. According to the College, it is powerless to

produce the federal grand jury subpoena because it does not possess it, nor can it compel the

Foundation to produce it. Thus, it argues, the favorable resolution of the Tribune’s claims

against the College would have no practical effect on the controversy.

¶ 57 The College fundamentally misunderstands section 7(2). Where all the elements are

satisfied, section 7(2) plainly provides that the record at issue “shall be considered a public

record of the public body, for purposes of [FOIA].” 5 ILCS 140/7(2) (West 2014). Therefore,

even though the public body might not physically possess records sought in a FOIA request,

2

Although no party raises the issue here, we note that there is no wholesale prohibition on

disclosing federal grand jury subpoenas under FOIA. See Better Government Ass’n v. Blagojevich, 386

Ill. App. 3d 808, 817 (2008) (holding that Governor was required to disclose federal grand jury

subpoenas under FOIA).

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under section 7(2) it must attempt to obtain them if they directly relate to a governmental

function that the public body has delegated to a third party pursuant to a contract. We

recognize that a public body might face difficulty in obtaining such records from a

third-party contractor that performs a governmental function on its behalf. For example, the

public body and the third-party contractor might in good faith disagree on which documents

“directly relate” to the governmental function. We need not address such a circumstance

here, however, as the College took no effort to obtain the requested record from the

Foundation. Rather, the College’s effort to produce it was limited to a search of its own

records. Where section 7(2) applies, the public body is a necessary party to any suit for

injunctive or declaratory relief under FOIA, and a requester’s claims against it do not become

moot simply because a third party rather than the public body, has “public records” under

section 7(2).

¶ 58 Here, we reject the College’s contention that it is powerless to obtain the subpoena, as

doing so would have required minimal effort due to the extreme degree to which the College

is entwined with the Foundation, as outlined above. We note that this is not a circumstance

where the requested record does not exist or was lost or destroyed. See Workmann v. Illinois

State Board of Education, 229 Ill. App. 3d 459, 464 (1992) (holding that FOIA requester was

not entitled to attorney fees where public body failed to turn over public records that it had

lost); see also Safecard Services, Inc. v. Securities & Exchange Comm’n, 926 F.2d 1197, 1201

(D.C. Cir. 1991) (holding that, under federal FOIA, the Securities and Exchange Commission

was not required to recreate documents that were mistakenly discarded by its contracted

cleaning service).

¶ 59 In her discovery deposition, Kuhn testified that she was served with the subpoena while

she was in the College’s resource development office on April 13, 2015. She went into her

office, read it, and called her supervisor, Brod. After Brod provided her with instructions,

Kuhn gave the subpoena to an administrative assistant, who also worked for both the College

and the Foundation. The assistant then drove the subpoena to the office of the Foundation’s

outside counsel, where it has remained since before the inception of this litigation. Under

these circumstances, it is clear to us that the College does not possess the federal grand jury

subpoena of its own accord, and it cannot now claim that it is powerless to disclose it.

¶ 60 Finally, defendants contend that the circuit court erred in allowing the Tribune to

voluntarily withdraw its fee petition without prejudice. Eight days after the circuit court

granted its motion for summary judgment, the Tribune filed a petition for attorney fees under

section 11(i) of FOIA. 5 ILCS 140/11(i) (West 2014). Subsequently, defendants filed notices

of appeal, objections to the Tribune’s fee petition, and a series of additional motions. In this

court, defendants each filed a motion to stay appellate briefing pending the resolution of the

fee petition in the circuit court. On July 18, 2016, the circuit court allowed the Tribune to

voluntarily withdraw its fee petition without prejudice, in order to defer the issue of attorney

fees until after the appeal. The order indicated that the circuit court reserved jurisdiction to

consider a renewed fee petition following the resolution of the appeal and that the ruling was

made without prejudice to defendants contesting the circuit court’s jurisdiction to consider a

renewed fee petition. In this court, defendants were then granted leave to amend their notices

of appeal to include the order of July 18, 2016.

¶ 61 According to defendants, the Tribune’s decision to voluntarily withdraw its fee petition

means that the circuit court will lack jurisdiction to consider any fee petition that the Tribune

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might file in the future because the petition would necessarily be filed outside of the 30-day

window for filing postjudgment motions. The Foundation urges us to “find that the trial court

lacks subject matter jurisdiction to consider a second fee petition that the Tribune may file at

a later date.” The College similarly argues that, “[b]ecause the Circuit Court cannot have

indefinite jurisdiction over the Tribune’s fee petition, it erred when it entered the July 18

order.”

¶ 62 The Tribune maintains that the circuit court will have jurisdiction to consider a

subsequent fee petition by operation of Illinois Supreme Court Rule 369(b) (eff. July 1,

1982), which provides that, when a mandate is filed with the circuit court after an affirmance,

“enforcement of the judgment may be had and other proceedings may be conducted as if no

appeal had been taken.” The Foundation does not respond to this argument. The College

takes the position that Rule 369(b) does not apply because it concerns mechanisms only by

which the circuit court regains jurisdiction over a case when jurisdiction has been lost

because of an appeal. Here, the College argues that the circuit court lost jurisdiction over the

Tribune’s fee petition not because the case was appealed, but because the Tribune voluntarily

withdrew the petition beyond the time for filing.

¶ 63 We reject defendants’ arguments and hold that the circuit court will have jurisdiction to

consider a subsequent fee petition that is timely filed. Rule 369(b) provides that, “[w]hen the

reviewing court dismisses the appeal or affirms the judgment and the mandate is filed with

the circuit court, enforcement of the judgment may be had and other proceedings may be

conducted as if no appeal had been taken.” Id. The mandate of a court of review is the

transmittal of the judgment of that court to the circuit court, and it revests the circuit court

with jurisdiction. PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 304 (1981). After

the mandate is issued, “the trial court is revested with jurisdiction where the appellate court

affirms a judgment or dismisses the appeal.” Glens of Hanover Condominium Ass’n v.

Carbide, 2014 IL App (2d) 130432, ¶ 4.

¶ 64 Here, it is of no consequence that defendants’ original notices of appeal became effective

only because the Tribune voluntarily withdrew its fee petition. The salient points are that the

case was properly appealed and that we are affirming the judgment of the circuit court.

Because we affirm, the circuit court will be revested with jurisdiction to consider other

proceedings upon the issuance of our mandate, including a timely filed fee petition. See

Coldwell Banker Havens, Inc. v. Renfro, 288 Ill. App. 3d 442, 447 (1997) (holding that a

petition for attorney fees is an “other proceeding” under Rule 369(b)). Thus, the Tribune is

free to pursue a timely filed fee petition in the circuit court if it chooses. However, we

express no opinion as to whether the Tribune’s election to withdraw its original fee petition

results in the forfeiture of those fees prayed for therein. To the extent that we would have

otherwise been inclined to address this issue as one likely to arise, defendants did not

sufficiently develop it. They are free to do so in the circuit court, however, upon the issuance

of our mandate.

¶ 65 III. CONCLUSION

¶ 66 For the above-stated reasons, we affirm the judgment of the circuit court of Du Page

County, dismiss the Tribune’s cross-appeal, and remand the cause for further proceedings

consistent with this opinion.

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¶ 67 Affirmed; cross-appeal dismissed; cause remanded.

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