On May 9, 2017, the Illinois Appellate Court held that the College of DuPage Foundation (Foundation), a fundraising organization for the public College of DuPage (College), is subject to the state’s open records law. In doing so, the Court rejected the Foundation’s argument that it was a charitable organization with no public role, and instead found that the Foundation was performing a government function for the College.
In April 2015, the College and the Foundation received a series of Freedom of Information Act (FOIA) requests from the Chicago Tribune (Tribune) seeking, among other documents, any federal grand jury subpoena received by the Foundation. The College responded that it did not have any responsive documents, and the Foundation stated that it was not subject to FOIA. The College had, in fact, received a federal grand jury subpoena (Subpoena) directed to the Foundation, which was provided to the Foundation and then delivered to the Foundation’s outside counsel. After it was denied access to the Subpoena, the Tribune brought suit against both the Foundation and the College.
The Court’s decision that the Subpoena was a public record centered around the relationship between the Foundation and the College. The Foundation managed the College’s entire fundraising operation, the Foundation and the College shared employees, and these employees received state health and retirement benefits. While employees distinguished between the time spent on Foundation business and College business, any time allocated to the Foundation was deemed an “in-kind” donation from the College to the Foundation.
The Court distinguished the facts of this case from a FOIA request issued to a parent-teacher association, booster club, or other volunteer organization that fundraises to support a school. Those organizations would be staffed by volunteers, not state employees, and would not manage the school’s entire endowment.
This decision is the first time that an Illinois state appeals court has ruled in favor of releasing records possessed by a quasi-public organization that raises funds on behalf of a public institution. It could have broader implications for public agencies and their contractors who perform government functions.