Illinois appellate court rules College of DuPage Foundation is subject to open records requests

An Illinois judge has ruled in favor of The Chicago Tribune, which sued the College of DuPage and the College of DuPage Foundation for access to records under the Freedom of Information Act.

Appellate courts in Pennsylvania and Iowa have ruled that nonprofit university foundations are subject to open records laws, and this decision was the first instance of a higher court in Illinois ruling that a college’s fundraising foundation was subject to open records requests.

The Tribune filed open records requests as part of an investigation into college administrators’ expenditures and contracts, and was refused access to a subpoena issued as part of a federal investigation.

The foundation argued that it was separate from the college and not bound by the statutory open government duties of public institutions.

The DuPage Circuit Court of Illinois rejected the foundation’s appeal of a lower court’s ruling which found that the foundation was subject to such requests under Section 7(2) of the state FOIA.

Subsection 2 of the FOI act says that records of agencies contracted to perform a governmental function for the public institution can be subject to open records requests when the records pertain to that function.

The Tribune argued that because the foundation solicited, accepted and managed the college’s private donations, it had been contracted to perform a governmental function for the college.

The college argued that the foundation was not fulfilling a governmental function and was not subject to Section 7(2).

“Defendants’ interpretation of section 7(2) has no basis in FOIA and, if accepted, would impermissibly narrow it,” Judge Robert Spence wrote in the May 9 opinion. “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 powers.”

The court found that the college’s argument that classifying the foundation as an agency that fulfills a governmental function would subject organizations like parent teacher associations, booster clubs and volunteer organizations to undue scrutiny was without merit.

Spence wrote that such organizations would be exempt because they, “…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.”

While each state’s courts consider a number of factors in deciding whether foundations qualify as entities of public institutions; sharing directors, employees, property, resources and state funding are general signs that the relationship is deep enough to qualify for the responsibilities of a public institution.

Speaking to those conditions, the appellate court’s decision points out that a memorandum of understanding was drawn up between the college and the foundation, outlining their relationship, and that the foundation’s executive director is also the college’s vice president for development.

The whole issue began in February of 2015, when the Illinois Senate Higher Education Committee requested “senior Leaders’ employment contracts, buyouts and severance agreements,” of the last 10 years in addition to all perks they received as part of their employment at Illinois public universities and community colleges, according to The Tribune.

This Senate committee investigation began after the College of DuPage trustees approved a controversial severance package for former president Robert Breuder, amounting to $762,867.77.

In light of the investigation, the Tribune filed three FOIA requests:

  • April 1, 2015: It requested the DuPage County grand jury subpoena from the college.
  • April 14, 2015: It requested, “documents regarding College administrators’ expenses that were reimbursed by the Foundation through the Foundation’s leadership cultivation account,” from the college and the foundation.
  • April16, 2015: It requested, “all state and federal subpoenas received by the Foundation since April 1, 2015,” from the college and the foundation.

The college released the DuPage county subpoena requested by the Tribune, but not the federal subpoena, which it said it did not have in its possession or control. The college moved to dismiss the case because it could not be compelled to produce something it did not have in its possession.

The Tribune continued to report on issues surrounding college administrators’ expenses after the controversy with the president’s severance package, and found that over the course of three years, college administrators including former president Breuder racked up almost $200,000 in expenses at the upscale campus restaurant Waterleaf.

They also reported that members of the foundation board had business dealings with the college and may have benefitted from non-competitive contracts with the school. The Tribune found that between 2010 and 2015, the college incurred $200 million worth of expenses from businesses that had a member on the foundation board.

The foundation is the fundraising arm for the college, and while board members do not receive a salary, other employees are paid by the school, and receive other state employee benefits. The school receives more than $150 million a year from county property taxes and state funds, and serves 28,000 students.

In his decision, Judge Spence cites another recent ruling involving access to a nonprofit affiliate of educational institutions, Better Government Association v. Illinois High School Association. In that case, the Better Government Association requested records of “contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012 to 2013 and 2013 to 2014 fiscal years,” from the Illinois High School Association, which handles high school athletics, according to the court report.

When the IHSA said that it was not subject to these requests because it was a nonprofit, the BGA requested the documents from one of the association’s members, school district 230, which said it was not in possession of the documents.

The plaintiff, BGA, contends that IHSA fulfills a governmental function for the school districts and its records are therefore subject to public scrutiny.

The two lower court decisions both sided with the IHSA and the school district, but the case is awaiting a ruling from the state Supreme Court on appeal. In the DuPage ruling, however, Judge Spence questioned the district court’s findings in BGA.

“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),” Spence wrote. Later, he concludes, “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.”

High school principals and other school employees make up the IHSA board of directors, but it does not require dues from member schools. It is funded by the events it hosts and business sponsorships.

IHSA also has an administrative staff and executive director that are not government employees.

SPLC staff writer Marjorie Kirk can be reached by email or (202) 974-6317

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