Tribune wins decision in FOIA case against College of DuPage, foundation – Chicago Tribune
In a groundbreaking decision, an Illinois appellate court Tuesday ruled the College of DuPage Foundation is subject to the state’s open records law and ordered that it turn over a federal subpoena the Tribune requested under the Freedom of Information Act.
The unanimous decision â which upholds an earlier ruling by DuPage Circuit Judge Robert Gibson â marks the first time an Illinois higher court has ruled in favor of releasing records in the possession of a public college’s fundraising organization. The decision could have broader implications for public bodies that outsource responsibilities to non-government agencies.
“The Tribune is very pleased with the decision, which is a victory for transparency regarding the affairs of government,” said Karen Flax, the Chicago Tribune’s vice president of legal. “The Appellate Court’s decision confirms that public bodies â like the College of DuPage â cannot shield public records by attempting to contract out governmental functions to a third party.”
As part of a yearlong investigation into college spending and contracts, the Tribune sued COD and the foundation in April 2015 to obtain various documents that reporters were refused after they filed open records requests. The college later provided most of the records, but the foundation refused to turn over a subpoena it received as part of a sweeping federal investigation into the Glen Ellyn-based school.
The federal inquiry came after the Tribune raised questions about top administrators’ expenses, contracts awarded to members of the foundation board and other spending issues at the state’s largest community college.
In March 2016, Gibson ruled that the foundation is subject to open records requests because it conducts government business and that the subpoena is a public document.
The 2nd District Appellate Court upheld that position, rejecting the foundation’s position that it is a charitable organization with no public role. The justices, however, pointed out that the foundation controlled the college’s entire fundraising operation and was staffed by employees who were paid by the college and received state health and retirement benefits.
“The Foundation is plainly performing a governmental function on behalf of the College,” Justice Robert Spence wrote in a 27-page ruling.
The appellate court held the college equally responsible for improperly withholding the subpoena from the Tribune, saying the college should have done more to retrieve it from the foundation. According to the ruling, a college employee â who also had foundation responsibilities â accepted the subpoena from federal agents in April 2015. She then had a conversation with her boss, who served as both the foundation’s executive director and a college vice president.
After that conversation, a third college employee drove the subpoena to a private attorney’s office in Wheaton, where it has remained.
The court ruled that giving the document to a third party did not absolve the college of its obligation to retrieve the subpoena once the Tribune requested it under FOIA on April 16, 2015.
“We reject the College’s contention that it is powerless to obtain the subpoena, as doing so would have required minimal effort due to the extreme degree to which the College is entwined with the Foundation,” the decision states.
A college attorney declined comment late Tuesday, while foundation attorneys could not be reached for comment. The decision can be appealed to the state Supreme Court.
The foundation had argued the document’s release could have a chilling impact on future fundraising because corporate and private donors who wish to remain anonymous may fear public disclosure. The appellate court rejected that concern, saying the Freedom of Information Act includes exemptions and the Tribune had requested a document that was clearly a public record under the law.
“The subpoena ‘directly relates’ to the Foundation’s governmental function,” the ruling states.
In keeping with the state’s open records laws, the court ordered the college and foundation to pay for the Tribune’s legal fees associated with the appeal. A DuPage County judge will decide how much the Tribune should receive for fees related to the trial court phase.