Sangamon Sun

Whether the Illinois High School Association (IHSA) is a government entity could decide the outcome of a Freedom of Information Act (FOIA) lawsuit filed against it.

The Illinois Supreme Court is expected to take up the case on Tuesday. The court is likely to be the final stop in a case that dates to 2014, pitting the Better Government Association (BGA) against the organization that oversees the state's high school sports.

The BGA is arguing that the IHSA must comply with FOIA requests. The IHSA counters that it is not a government entity and therefore is not subject to open record laws. So far, two lowers courts have agreed with the IHSA.

The case began three years ago with a Chicago Sun-Times article saying IHSA salaries and benefit costs had risen as revenues and profits had dropped. The BGA requested IHSA records on the non-profit’s operations, including sponsorship contracts with Nike and Gatorade and information about public relations efforts. The association refused, prompting BGA to sue for the records in court.

"IHSA has the audacity to claim it’s not subject to FOIA even though it previously tried to claim the benefit of governmental protections," Andy Shaw, president and CEO of BGA, said at the time. "They can’t have it both ways.”

That BGA points out that the association had previously referred to itself as a “local public entity” and said it was “organized for the purpose of conducting public business” in court.

"IHSA is responsible for overseeing interscholastic high school competition – that’s about as governmental as it gets,” Shaw said. “And its top employees earn big salaries off the backs of public schools and public school students. We ought to be able to see if those salaries are deserved."

An appellate court ruled that since schools are not required to offer sports, the IHSA does not serve a governmental function.

The BGA maintains that it is pursuing the lawsuit to ensure that the public will still have access to information on public functions even as those functions increasingly fall to private organizations. While privatization can be considered a trend pursued in the interest of increasing efficiency and saving government revenue, the BGA argues that privatization must be carried out in a way that preserves the public’s right to transparency in the execution of those functions.

“The question before this court is not whether privatization is good or bad,” the BGA argued in its court filing. “Rather, the question is whether transparency under FOIA will be protected in the process. A lack of transparency when governmental functions are privatized not only reduces accountability but can have a fundamental impact (without any informed public input) on substantive policies.”