SPRINGFIELD — In a case that could redefine the reach of state open records law, the Better Government Association told the Illinois Supreme Court Tuesday that the agency governing high school sports in Illinois should be held to the same transparency standards as a public body.

“If public schools stopped having sports… if they were no longer going to spend tax dollars on sports, IHSA would not be able to do what it does,” said BGA lawyer Matthew Topic, referring to the Illinois High School Association. “It couldn’t make money from all those events it talks about if there aren’t teams to compete. And the only reason there’s teams to compete is because the public funds those teams overwhelmingly.”

The BGA lawsuit against the IHSA, initially filed in July 2014, argues that the Bloomington-based organization effectively serves as a subsidiary of government by administering sports competition for more than 800 schools across the state.

The legal action came as a response to a refusal by the IHSA to release records on, among other things, sponsorship contracts with Nike, Gatorade and Country Financial, information about public relations firms it had hired, and vendor applications.

The government watchdog group, which regards transparency in public business as one of its central tenets, became involved following a Chicago Sun-Times report that said the IHSA’s salary and benefit costs had increased 21 percent as the organization’s revenue declined.

At the time, salary and benefits for the seven highest-paid employees of the IHSA ranged from $116,000 to $372,000, the Sun-Times reported.

The state’s highest court was the final stop for BGA, which had lost in lower court decisions.

On Tuesday, IHSA attorney David Bressler reiterated the association’s argument that it does not constitute a public body subject to the Illinois Freedom of Information Act.

“The IHSA does not educate, per se, but we hope that what we do – providing a framework for interscholastic athletics and activities – enhances the educational experience,” Bressler said. “The IHSA does what no school could do but which many private entities can and often do perform. It provides an agreed-upon framework for competition, including rules of eligibility in competition approved by its members to ensure that competition in those activities is on a level playing field.” 

The high court often takes weeks or months after hearing oral arguments to render decisions in cases before it. To prevail, the BGA needs to convince the seven-member panel that the IHSA qualifies as a “subsidiary” of a government body and that, in regulating sports for the state’s high schools, it is performing a “governmental function.”

About 85 percent of the IHSA’s 811 member schools are public high schools.

Bressler said that in seeking to have the court define the IHSA as a government subsidiary, the BGA was “asking the court effectively to revise judicially what the legislature has declined to do” when it revised Illinois FOIA rules in 2009. 

It’s a tricky issue because the IHSA does not hold a contract with a government agency, nor does it receive government funds. It is governed by what it describes as a “voluntary cooperative framework” that includes its member schools – which are not charged dues – and a board of 10 directors who are principals of member schools.

“Just like countless other organizations, the IHSA is a private actor performing a non-governmental function,” the IHSA said in its filing to the court that preceded oral arguments.  “Its ability to do so for the benefit of its member schools should not be put at risk.” 

Justice Mary Jane Theis of Chicago on Tuesday questioned the BGA’s contention that the FOIA definition of a government “subsidiary” applies to the IHSA.

“You have argued that (the IHSA) is a public body because it is a subsidiary… To which body… are they a subsidiary?” Theis asked Topic early in his argument. 

Matt Topic arguing before the Illinois Supreme Court on March 21, 2017. |  Supreme Court oral argument video

Topic answered that the IHSA is a subsidiary of the school districts that make up its membership.

“Then what function of the school (district) has been delegated to the IHSA?” Theis asked.

“The function that’s being performed is organizing school sports, regulating school sports. In the absence of that being done by IHSA, the school districts would need to do that,” Topic responded. 

Justice Anne Burke, also of Chicago, asked why the BGA had an interest in the IHSA’s endorsement contracts “when there’s no taxpayer dollars involved.” Topic said that the relationship between tax money and the IHSA is complicated.

“Whether tax dollars are involved is not quite that simple of a question,” Topic answered. “It is true that as IHSA currently says they are not collecting tax dollars directly… But what they do have is the ability to make money from things that are paid for with tax dollars. When students compete in football and have a state championship, IHSA is earning money from their efforts. It’s the schools that are fielding those teams, the schools that are paying for the uniforms” and facilities where the teams play. 

As the governing body of all high school sports in Illinois – regularly making headlines with controversial rulings on athlete eligibility and sanctions for rules violations – the IHSA is among the highest profile entities of its kind in Illinois. The possibility of the organization being required to open its books for public scrutiny has greatly boosted public interest in this case.

But the court’s ruling ultimately will have implications far beyond just the IHSA. The case is the first major test of Illinois’ FOIA rules regarding “subsidiary bodies” with which a government entity “has contracted to perform a governmental function.”

The BGA argues that with government now regularly farming out more and more duties to private agencies, the courts should act to include them in FOIA rules.  

“(O)ur state has recently created several facially private entities to perform functions like managing statewide economic development,” the BGA argued in a brief to the court. “The question before this court is not whether privatization is good or bad. Rather, the question is whether transparency under FOIA will be protected in the process.”

The BGA also has a similar suit working its way through state courts involving the Metropolitan Pier and Exposition Authority, more commonly known as McPier, and Navy Pier Inc., the private entity that holds a contract with McPier to run Chicago’s Navy Pier. Those organizations filed an amicus brief on behalf of the IHSA.

McPier says the “subsidiary” definition should apply in cases in which government has transferred traditional government duties – like policing – to a private agency. “But the analysis is different when the functions in question have never been performed by a governmental entity (as is the case with the IHSA) or where the functions themselves are commercial or proprietary, rather than governmental,” McPier and Navy Pier write in their brief.

If the Illinois Supreme Court upholds the lower court rulings in the IHSA’s favor, BGA President and CEO Andy Shaw said the organization will take its effort to the General Assembly and seek to have the relevant FOIA language refined.

“This is an important test of the effectiveness of transparency laws in Illinois, and if the Supreme Court rules against us we’ll consider asking the state legislature to revisit the state’s FOIA statute with an eye toward closing this loophole,” Shaw said.

Matt Dietrich is editor of Reboot Illinois, a website focused on Illinois state government. He can be reached at matthew.dietrich@rebootillinois.com. This article appears by arrangement with Reboot Illinois.

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