FOIA: The Blurry Line Between a Public College Foundation and a Public Body

The Second District Appellate Court ruled that the Foundation for the College of DuPage was so sufficiently intertwined with the College that records in the Foundation’s possession were subject to disclosure under the Freedom of Information Act (FOIA).

The underlying facts are that the Chicago Tribune submitted a FOIA request to the College and the Foundation, seeking documents and a specific grand jury subpoena. The College initially claimed it had no responsive documents before producing all documents except the subpoena (which it claimed it did not possess), while the Foundation claimed that it was exempt from FOIA because it was not a public body and any documents in its possession were not public records.

The Appellate Court affirmed the trial court’s ruling that while the Foundation was not, in itself, a public body, it was performing public functions. Some of the relevant aspects of the relationship between the Foundation and College included: the Foundation handled all fundraising efforts, along with collections and disbursements of private donations for the College, the College offered its employees to assist the Foundation in performing its functions, Foundation employees were provided benefits as though they were College employees, and College employees were involved in positions of influence on the Foundation. Much of the relationship between the Foundation and College was memorialized in a Memorandum of Understanding executed by the boards of each entity.

Having found that the Foundation was fulfilling public functions, documents in its possession that pertained to those public functions were thereby subject to FOIA.

An important legal aspect of the case was that the Second District largely eviscerated a First District interpretation of a key FOIA provision. The College argued, based on the prior case, that in order for it to provide documents responsive to a FOIA request, the “public records” sought must, generally, pertain “to the transaction of public business” and/or have been created, used, or controlled by the College. The subtle implication being that only a narrow set of documents that are in the possession of a third party would be subject to FOIA. Specifically, the College asserted that because it did not retain the subpoena sought by the FOIA request and because the subpoena did not meet the narrow definition of a public record pertaining to a third party, neither the College nor the Foundation were obligated to produce the subpoena.

The Court dismissed this argument stating that it would create an absurdity that public documents could effectively be hidden from the public by simply outsourcing the creation and storage of documents to a third party, such as the Foundation. While the decision is seemingly logical, the College made a good, albeit unsuccessful, argument based on prior case law interpreting the same provisions.

There are two main takeaways from the case:

• Whether or not a foundation (or contractor or other third party) is actually a subsidiary of a public body does not change its responsibility to respond to FOIA documents, as would the public body itself, so long as the documents pertain to the foundation performing public functions
• Several park districts, park departments, and community colleges have foundation boards, and both the public entity and the foundation should be aware of the functions and relationship of each entity, because there may be implications for FOIA as well as other areas of law.