may please a corking morning council the only high school association is a membership organization made up overwhelmingly of public high schools would you identify yourself for the record i apologize matt topic you are for the better government a membership organization made up of overwhelmingly public high schools i just say regulates and promotes school sponsored high school sports and other activities across illinois according i says own documents these activities offer quote enrichment to the educational experience take place in an educational setting and serve to quote enhance the accomplishment of desired educational goals it is undisputed that i say is a state actor for civil rights purposes and therefore acts under color of law the first district held that the public has no right to information about his city's work the promise underlying the first district reasoning was that the government is not required to offer the activities they're organizing regulated i should say in other words for the purposes of both sections of foyer that are at issue in this case the first district help in a function is only governmental if the government is legally required to perform the function that should be rejected it is true that a function the government is required to perform is a government function but those are not the only functions that are governmental the first test is contrary to the plain meaning of proper test and i think that's the proper test here is the so called rochefort factor that everyone agreed to that we have two different issues so that is correct as to the issue of the subsidiary body provision is we should be looking at is not that you never made you i think we've made clear from the beginning that while that's the appropriate test there are additional factors that could also be considered that are consistent with how other cases are approached so the kinds of things that we've looked at in we're looking at the statute defining specifically for and not toward immunity not state actors in terms of one hundred three actions but we're looking at our state statute and i think you just there are other states certainly have looked at their own statutes and come to the various different kinds of position but certainly we should look at ourselves so we're looking at this section that defines public bodies and it sets out a number of defined specific bodies state universities cities villages etc so my first question and then this this unusual language of any subsidiary bodies of any of the foregoing the first question is you have argued that of test should be the relationship of the school districts to i age i say that right correct and my next question about this statute is legislative  apply the counts of the subsidiary that might apply in corporate law and what i suspect you would find in most definitions into this situation what we do have though is the series of decisions made at least the appellate courts setting forth this what's been called the functional equivalency transfers syria has and the general simply no point has done anything to change that other than arguably sort of expanded under section seven two and so you basically have is acquiescence by the general limited to committees and subcommittees so we look at how committees and subcommittees relate to these other specifically named public bodies in order to determine what factors we should look at as to what subsidiary body  lead us to some kind of answer to what the legislation meant by this unusual i don't think it provides a lot of guidance is to is to the broader term subsidiary body as it's been interpreted by language doesn't get us to i plain language doesn't get it i think for some time and the legislature has not yet anyway rejected that so why should we just apply the tough that we use in the legislature things to agree so i think you can apply that test and you'll you'll get to the same conclusion that we're asking for here really all we're all we're asking is that the test not be closed and it if there be circumstances may arise which you may want to consider some additional factors that are consistent with the tightest not to throw out the test entirely so that's that's the way that we would can see how that would play but there's no dispute between anybody that those factors are the factors to be considered through the primary factors of the sitter overseas you should leave the door open to some additional considerations that i think are important here first and foremost in the fact interrupt you again but we just went through this talking about our statute and what our stat means in the machine case for example the court there rejected the idea of a good actor and some kind of determinative factor are insane when an entity is a public body not a public body the much better analogies to the tennessee case city press which which used a similar test to rockford dysfunctional equivalence i've witnessed in apply that and said yes they're public body and look to the state after finding against a tennessee high school says you should as being relevant really additional reason to come to that seek inclusion so i think if it is correct we have to look at each different statute in different states ever to apply that information whether tax dollars are involved is not quite that simple of a question it is true that as i just say currently since they are not collecting tax dollars directly they have the authority to charge membership dues to their school districts if they've done they've done it in the past if they do that again those are clearly tax dollars but what they do have is the ability to make money from things that are paid for with tax dollars so in student athletes you know compete in high school football and have a state championship i should say is earning money for their efforts it's the schools that are fielding those teams it's the schools that are paying for the uniforms it's the schools that are paying for coaches they're students in public school it public schools so we have the issue about use of facilities and there's been some fighting in the record in the earlier phases of this case about the extent to which i just c p s market value for those facilities or not we don't think there's a record that shows they do pay market value in fact they take like eighty percent of the profits after a guarantee so they are allowed to earn money from public facilities which are taxpayer funded but also from the efforts of school students that are all of which is taxpayer funded as well in the brentwood supreme court state actor case they found that that kind of support is is support is financial support by the government of the private entity that yes it's a state actor case and so you could say that the a function is not governmental you're probably not going to have transparency under subsidiary body were under section seventy so the the test that we're proposing is yes if it is the government's required to perform the function and then that is a government in addition if it's something that the government is in pylea authorized to conduct and that benefits the general public then it's also a governmental function so to take the special olympics example i don't know that there's anything in the statute that authorized anything under law that authorizes the government to conduct special olympics unlike here we have plenty of things throughout the school code which clearly contemplate the fact that schools are going to participate in it they'd only gets you though to the question of whether it's a governmental function in from there under the under this is syria body analysis you'd have to look at the additional rochefort factors and so in the special olympics example i don't think you would see any evidence that says the government is controlling the special olympics or that the board of the special olympics organization runs it is is overwhelmingly comprised of government officials and it's also not as far as i understand it's unlike i say it's not a membership organization it essentially is the sum of its parts which are overwhelmingly governmental entities here so i think that it's in this it's a little mixed up in the in the briefs is just because you find something that is a cover there's a governmental function might read on some things that don't seem like what we should apply transparency to doesn't necessarily lead to the conclusion that those entities are subject to flare directly or indirectly because you have to consider all the other factors and there are other examples like the n f l and like disney world i think all of those really when you when you indirectly turning to the test for governmental function because i think i'd like to focus my time there and then i'll try to deal with the other factors after that the test that we put forth is justified by a number of different authorities first the plain text of the stand she does not limit governmental function does not limit subsidiary bodies to only things that the government is legally required to perform instead it uses the term governmental function and if the general assembly wanted that to be very narrowly construed only things the government is legally required for him certainly could have done that but it did it left of a flexible term in the least left open the possibility that something more than just legally required now i'm not going to stand on that it's just sort of the context prior governmental proprietary distinction was was later limited and i'm going to trust each of those in carroll this court to find public business is quote belonging to the people at large not limited to restricted to any particular class of the community and yes in the turning needy cases you also have very much of in the forefront this issue of control and that that is a factor in the subsidiary body analysis but it is not easy i think we need to be careful about not importing control into just the question of what's a governmental function in the reason that manners is because if it is a governmental function but the government doesn't control it that's where section seventy two comes more into play which was added to the statute by the general assembly long after th says so even if the government doesn't control the actions of the entity if it is a governmental function if the government's offer rice to do it if it benefits the general public then it is a governmental function and then we would go to the different elements under section seven to that be on behalf of the government directly related that function so and that were control comes that you know there must be some statutory relations between the government and the private entity that is relates if the government has contracted with a private entity to perform a governmental function then the records related to that function are considered the records of the public body so in that instance you sensually are replacing the control element with the contract in so in an instance in which the government is contracted out a governmental function even if it doesn't control how they governmental functions perform that's where section seven to apply and if you don't interpret section seventy two that we do what you end up with is making it district and i think so the function is being performed is is one in the using school sports regulating school sports in the absence of that being done by i just say that the school districts would need to do that that's if you look at the brentwood case it talks about how regulating high school sports is it is an integral part of public schools and that when you when they had an association do that you susi ition was really just performing the responsibilities that the district would otherwise need to be performing so that the governmental function here is going to using regulating promoting high school sports throughout the state of illinois and with that said that that is something that benefits the general public it's it is very clear from our constitution that the value of education is not simply what's in the classroom the students are we intend to educate students to the best of their abilities i just say makes clear both in its own documents make clearly in the case that the general public benefits from what i say does for the same reason that the general public benefits from education so it's very clear that that the benefit of education is not just simply to the students who are being educated it's to society in general  i say does by its own documents it says it is enriching that experience to allow students to excel the best of their abilities and so therefore it benefits the general public and it's a function that government is the least imply hadley authorized  therefore it should be considered a governmental function and then from there we would go on and say under the subsidiary body cast there is we need to look at control i just see itself decided in the hood case that their own doing controlled by government what control is there between the school district and the control comes from the board so the board ultimately controls the day to day operations of i just say the board is overwhelmingly made up of school officials who are there in their principal of the school in order to serve and i had to see if you had a principle any more than you can't you can't be on their board so that's the connection back to any relationship to the school system those principles are there in good morning my name is david breslin i represent the illinois high school's o c a sion mr dale it's representing district two thirty and i have agreed to allocate our time fourteen six and i'm instructed him to throw once a paper at me of my time so if you i think it's important to stress what this case is not about it's not about the provide privatization of traditional government functions such as police powers the obligations to create a library economic development or even an entity for creating an entity to fund the rehabilitation of the governor's mansion nor is it about privatizing a government function to shield information from the public rather the case involves the very narrow question of whether a membership organization involved in organizing tournaments and providing in forcing rules of competition voted on by its members is a government entity for all purposes under  said another way does subsidiary body include an association that a government entity joins i submit that the answer is no and l such this case is quite limited to unique the state school districts and other explicitly government entities and any subsidiary bodies there oh there is a narrow test that our legislature has of has decided upon and it is a narrower test then they have decided upon in michigan where the test was whether it is an agency of the state which i would submit is the same thing in subsidiary body or whether it's funded and michigan is the court is aware they said that the michigan high schools was here and was not subject to their foyle laws as reflected in our brief my focus will be on the subsidiary body issue mr gale it will discuss i anticipate will discuss  seven point two however the documents here don't request you here do not relate to the i h s is transaction of public business for district to thirty or any other member but rather relate to its own business in the proceedings while liberal construction implies that only applies once the threshold test has been met b j advocates more of an open end ad hoc test asking the court effectively to revise your dish only what the legislature has declined to do the test they propose is vague results oriented and provides absolutely no guidance and is actually unnecessary to serve the purposes behind floyd as reflected in legislative history so let's talk first about what is the uva ursi it's created over one hundred years by a group of athletic directors not by any formal government resolution or even with the approval of the state legislature the schools that employed them but as a means of coordinating competition numerous courts in the state and elsewhere have recognized it as a private voluntary not for profit association of which both many private entities can and often do perform it provides an agreed upon framework for competition including rules of eligibility in competition approved by its members to assure the competition in those activities on a level as state tournaments because that infers that there is some state involvement which there isn't in those events doing so includes renting public and private high school college and other facilities raising money from commercial sponsors to put on those tournaments or can take notice that just last weekend in peoria the metro center was rented that's not a pub that's not a public high school facility that is a facility for which rent was paid just like anybody else  two things number one is the ticket sales soley at the events we sponsor at the state tournament events in other words during the regular season when school a play school be no money goes to the i should say it's only when the n h s say rents a facility you know and a sectional reason regional tournament charges admission and echoes all the way up to the state tournaments that the ticket sales in some not all actually not all events go to the i should say overwhelmingly the money comes from private sponsorships so state farm has been a longtime sponsor of the i just see country mutual interest some of these other companies that provide sponsorship see i should say that's where the overwhelming amount of funding comes from no money comes from the schools where's the money go it goes to put schools and it does not it does not enter again it's a not for profit there is you know by by law are not for profits do not have owners and so there's no dividend or anything like that i suppose the benefit is that because that  just say succeeds in securing the sponsorships we don't have to charge dues we don't have to charge admission fees first school wishing to enter the term i think it's important to understand conducted at these schools over which i should say has absolutely no jurisdiction i should say also governance also does not apply outside the context of the activities in which its members participate so while it's true that student athletes must perfect and participants and coaches must meet scholastic and other requirements as a condition of eligibility for participation the rules don't apply outside that room we don't tell schools who they can hire we don't tell them what they need to do for school discipline or academics or anything like that it's only in the context of if you want to participate in an i just say sponsored event these are the eligibility qualifications we don't reach into school like they and we're not that overarching as they allege as we discussed we don't are revenue from the member schools we get no revenue from regular season competition we're governed by an elected board of directors who in their capacity don't apply don't answer to the schools which employ them it's not as if a school says we are going to designate principal x to sit on the board they have to be principals to sit on the board but it's not because the school chose them to sit on the bore and as indicated in our briefs if there's a change of jobs they keep their seat as long as they otherwise remain eligible and that has h no because then you have it district has to have a representative so imagine like a senator leaving illinois and moving somewhere else you couldn't continue to be a senator in illinois but if you move within the annoy you can still be  recruiting all those kind of things these are the kind of things that have been agreed to by the members that they basically say this is the rules we want you to apply to us to govern our competition so ye definitely the board could all be employees of private schools in fact in chicago everybody can take notice it's overwhelmingly public schools yet the last two elections have gone to private school members or it could happen throughout the state interestingly there is a guaranteed c for a private school member on the board but it could happen that every board member could be public i'm sorry could be private day to day operations of responsibility even executive director and his staff year it's there's a couple of issues on that number one is the brain or cases it is a different different definition certainly the courts could do that the legislature could have said any organisation that is liable for civil rights we're going to consider to be a government entity but but it's a different definition if you think about it though in the civil rights contract cont the members have an agreement among themselves that these are the rules that are going to govern or competition and that agreement among the member schools is what excludes a person from  and may constitute a civil rights violation so it makes sense in that respect if you say well the member schools entered into this contract resulting in a civil rights violation that why civil rights label it would attach that is quite different from saying that that now opens the door such that i should say to subject to for you for all purposes and particularly if you look at the documents requested here we're not talking about civil rights violations we're talking about accounting and legal contracts and sponsorship agreements so that we can do our tournaments so i think that there is very much of a distinction as you recognized early in the in the discussion if apples and oranges if the legislature and they had ample opportunity to broaden the definition one and two they could in just in closing i think that it is important to notice that when the legislature does talk about it you say they don't regulate it directly and if you look at the various statutes what they say is no member school show join an association that does x y or z they don't say i just say can't do this or this or this so again the focus is on what the members will skim to obviously it's going to impact what the i to say does but theoretically the h s a could say you know what we're not going to do that if the members can't join and so be it there is no direct regulation on the ice for say by state government and i think it was that my time has expired i would ask that the court affirm the decision of the lower courts thank you caught in the middle because of documents over which it doesn't have control or authority and no duty to obtain because the b j wishes to use the school district as a conduit to gain access to i say documents the interest of the school district in this case is one shared by all public bodies of illinois and that is the scope of its and other public bodies obligation under section seven to four to serve as a as such a conduit my brief time i want to make three points the court first exposure to liability that this court would create for public bodies if it adopted the test under seventy two as advocated by the b j would be significant if section seventy requires the broad access to all the contractor's records will undoubtedly start making for a request of public adi's new using for you as a mechanism to gain sort of a competitive advantage as to other contractors and this is the case when public bodies have no no no authority or power to require enforcement of the of the request of the contractor so even if they made every effort to obtain the documents from the contractor they are left with no recourse but to hope the contractor complies this can lead to amount of litigation the public bodies have no power to thwart or to avoid and that's why if we propose the test in our brief one of the q critical elements as stated in the statute is that the records have to be public records first and foremost before even getting to the analysis of governmental function and on behalf of and so on the public records requirement actually has substantive impact here and it's logically tailored to the situation that we're dealing with a document that qualifies as a public record as this court well knows pertains to the transaction of public business and then is either prepared by or for use by receive by right in the possession of or under the control of the public party in other words the public body has some means to gain access to the documents to then turn them over to a for a request or so we urge this court to to read the in seventy two is narrowly tailored and also ignores the fact that public bodies have no means to enforce the allegation that they're proposing section seven two doesn't expand on what's covered by foil what it does is it expands where a public body has to go and search for the records so take the simple example of a school district that provide bussing duties at the records relating to it it's busing you know the performance of bussing duties would be subject to foil directly to the public body and if the public body then some contracted out that function to first student or durham or any number of the private contractors that perform bussing services the same kind of records related to that district students and the transportation of you know running that district bus routes would appropriately be subject to section seven two and a public body would have an obligation to request those and turn them over but again what the b j is proposing here and even acknowledges it in the example of the hood letter that we've both discussed in our briefs that that the obligation or something to we don't have to worry about whether it's a public body really we kind of sidestep that issue and and we're going to fashion a new rule for what's a governmental function so in the one case not the actual case but the underlying facts there was a letter disciplinary record letter from the i just say regarding a coach in romford and the b j would have district to thirty right in the south suburbs have an obligation to obtain the record that record from the private school in rockford and then turn it and is itself subject to foil the district to thirty should even be here the one case cited by the p g a against that twin cities versus rain are involved two public adi's both of whom had access to the records we don't think that's the case here we don't think district two thirty had an obligation to attempt to attend the records from the i say and therefore we asked this court to affirm the lower court thank you stopped having sports entirely they all stock were no water going to spend tax dollars on sports i should say would not be able to do what it does it couldn't make money from all those events that it talks about if there are teams to compete in the only reason that there's teams to because the public funds those teams overwhelmingly and so that's what really matters here when it comes to the question of financial support is if you just think of it this way if you take away the money that's spent by by school districts and sports why those statements should be should be considered and should have been considered so we are not arguing that bit i should say is judicially is stopped from arguing against those facts this is a two six nineteen case what we're saying is that those are party admissions those are factual admissions they made and they can come and they can explain why the facts are actually the opposite of what they told the appellate court in the in the in the one case when they were trying to determine they're allowed to do that but what they can't we can't do is just forget about the statements entirely and what the circuit court and the first district admissable those aren't really those certainly facts those are legal arguments there doesn't actually seem to be a lot of law on this question of where what's the line between a legal argument fact but i would point out that those are very factual things that the have argued and i would say the we should err on the side of considering those things to be party admissions because the party can always commit and explain it's not a it's not a sample it's just simply a matter of whether that piece of evidence can be can see but as to the question of the capacity in which the board member served i think there it's even more factual in nature then than some of the other things that point i will point you to page one thirty nine page one forty four in the appendix which are statements again from the hood case and page one thirty nine thousand members to quote not as individuals but by virtue of their positions principles they also said that they quote act that the act  quote representatives of public schools page one forty four stated the board members for our employees of local public entities acting in a representative capacity that is very very factual that is not even legal argument characterizing control or something cases earlier in these proceedings they were light in state after cases in hood they relied on the fact that they were state actor to say we should get toward immunity and they are there arguing extensively in their brief that the test you should use for public body is the toward immunity test so if he quits b and b equal see that he has to equal see if state actor is the same as immunity immunity is the same as public body then state actor must be the same as his public  acute need to to allow the public to oversee that entity under fire which is the point is the way preamble makes clear that's why we have this statute is so people can monitor their government and we ought to be able then to monitor them and deter and in order to avoid those violations potentially happening in first place i would point out to you on the state actor point that the reason they were a state actor found the state actor had to do with the nature of the membership that they were overwhelmingly comprised of of local school districts were public and that same there is known real difference between the roman of that the state actor contacts in the relevant of that in the public body context the fact that they are owned and controlled by locals school districts even if that's just used figuratively there's no dispute that they are a membership organization and it's important to note that in response to the white case where late didn't succeed in getting toward immunity because of their corporate form it was because they were they were not enough for profit corporation they were a voluntary association they couldn't just change their form and then you know they were there then they could really argue that well now we get tourney but they didn't do that and that's telling because  the nature of this entity is not really like a separate corporate entity it's made up of its members and when those numbers are overwhelmingly public then that leads to the conclusion or supports the conclusion that they're subjective where as public bodies it's difficult to even sort of separate the two things from each other i'm going to turn into the comments in the arguments from district to thirty so district to thirty countries it's off to sort of an innocent bystander in this case is i read the statute th the requester does not have a direct claim against the equivalent of i see here against the government contractor you have a claim against the public body section seven too plainly says that the public body has an obligation to produce those records so their complaint is really a complaint with the general assembly that this is difficult this is workable and i don't think that they are i think that they at the very least need to ask for those records which they never did here it isn't as if they said well we'd like to help you b g a but we just can't they won't give us the records they didn't they didn't ask for the records even in the first place so if there are complexities i think it can be overcome and those are things that really should be directed to the general somebody in any event this idea of competitive advantage and you could you know competitors could use used way then to get this information to points first to some of the information already could be fired from the government entity itself for example a contract but the bigger point more important point is that's an exemption issue there are a lot of exemptions to cover things even like proprietary information in trade secrets that's the way that you protect against that issue in the statute already makes that very clear in terms of the question of whether the records buyer for under the control of these were prepared for i to say members because what they do is for the benefit of their members and really what section seventy two is legally place is those records within the control of the public body a so when you read those things together it makes perfect sense of you know if we needed to need to show that in the first instance these are public records under the definition of public records when i own in a brief exactly why we're able to do that