CBA Record July-August 2017

18 / 60

18 JULY/AUGUST 2017
CBA SEMINAR EXAMINES CURRENT DEVELOPMENT
The State of FOIA in Illinois in 2017
By William A. Zolla, CBA Record Associate Editor
The Illinois Freedom of Informa-
tion Act provides that public bodies
shall make public records available
to any person for copying and inspection.
But what constitutes a “public body” or
a “public record” under the statute? For
example, are public employees’ private
e-mails and text messages subject to disclo-
sure under FOIA? Is a private entity per-
forming work on behalf of a governmental
agency considered a public body? How
should government agencies prepare for
and respond to FOIA requests? These and
other questions were addressed in “FOIA
2.0: Critical Updates Examined,” a seminar
recently hosted by the CBA.
Rob Olmstead, Executive Director of
the Illinois Torture Inquiry and Relief
Commission, moderated the program,
which featured attorney Barbara Adams,
Senior Counsel at Holland & Knight,
who frequently represents state and local
government agencies in disputes over
responding to FOIA requests; Sarah Pratt,
who has worked since 2013 as a Public
Access Counselor in office of the Illinois
Attorney General; and attorney Matthew
Topic, a partner at Loevy & Loevy and
Outside General Counsel for the Better
Government Association, who regularly
represents FOIA requesters.
After discussing the evolution of the
Illinois FOIA statute, and several recent,
highly publicized FOIA cases involving
ChicagoMayor Rahm Emanuel and mem-
bers of the Chicago Police Department, the
panelists focused on the extent to which
private e-mail and text messages created by
public employees are public records under
FOIA. The panel agreed that as a general
rule, private communications between
individual public employees are discover-
able if the communications pertain to the
performance of public business. That is,
the test is not whether the record at issue is
in the government’s possession or control,
but whether the record was created for or
used by a public body. Therefore, when
public officials or employees create a record
while engaged in activity that falls within
the scope of their public duties, the record
is considered a public record created by or
for a public body.
The panelists also discussed two impor-
tant FOIA cases recently decided by the
Illinois courts, both of which concerned
the issue of when a private entity will be
deemed to be subject to FOIA’s disclosure
requirements. In the first, Chicago Tribune
v. College of DuPage, 2017 IL App(2d)
160274, the Illinois Appellate Court held
that a non-profit foundation that solic-
ited private donations for the College of
DuPage performed a governmental func-
tion on the college’s behalf and, therefore,
was subject to FOIA. The court empha-
sized that a public body’s obligation under
FOIA to provide access to public records is
not limited to those records in its present
possession or control, but also extends to
records in the possession of a nonpublic
body that has contracted to perform a
governmental function on behalf of the
public body.
In the second case, Better Government
Association v. Illinois High School Associa-
tion, 2017 IL 121124, the Illinois Supreme
Court ruled that the IHSA, a private, not-
for-profit unincorporated association that
governs and coordinates interscholastic
sports competitions for over 800 public
and private high schools throughout Illi-
nois, is not a public body subject to FOIA
because it is an independent legal entity
that is neither controlled nor funded by any
government body. The Court further held
that certain records maintained by IHSA
could not be considered the public records
of a local school district, whose public and
private high schools are members of the
IHSA, because IHSA does not perform
any governmental function on behalf of
the school district. #FBF #CBAHistory
The Chicago Bar Association
Myra Colby Bradwell was one of our nation’s leading advocates
for women’s rights and played an important role in breaking
through the barriers that restricted women from practicing law.
As founder and owner of the Chicago Legal News she wrote
many editorials about equality for women, and
about the need for an association of lawyers in Chicago.
Her December 1873 editorial was instrumental in
The Chicago Bar Association’s formation in March 1874.
Resources for New Lawyers
Just getting starting in the practice of law in
Chicago? The CBA offers many resources and
programs to help new lawyers. Go to www.
, YLS, New Lawyer Resources to
see our comprehensive list and links including
MCLE requirements, new admittee to do list,
career services, mentoring programs, seminars
for new lawyers, practice pointer videos, solo
start up boot camp and more.