**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

**FILED JULY 29, 2004**

**MARTIN B. BREIGHNER III and KATHRYN BREIGHNER,**  **Plaintiffs-Appellants,**

**v No. 123529** 
**MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, INC.,**  **Defendant-Appellee.**

**BEFORE THE ENTIRE BENCH YOUNG, J.**  **At issue in this case is whether defendant Michigan High School Athletic Association, Inc. (**  **MHSAA ), a private,**  **nonprofit entity that organizes and supervises interscholastic athletic events for its voluntary members,**  **is a “public body” as that term is defined at MCL 15.232(d) of the Freedom of Information Act (**  **FOIA ), MCL**  **15.231** et seq **. Plaintiffs contend that the MHSAA**  **is a public body within the meaning of the**  **FOIA because (1) it**  **is “primarily funded by or through state or local authority,” MCL 15.232(d)(iv); (2) it is “created by state**  **or local authority,” MCL 15.232(d)(iv); and (3) it is an “agency” of a school district, MCL 15.232(d)(iii).**  **The trial court held that the MHSAA**  **was “primarily funded by or through state or local authority” and that it**  **was therefore subject to the FOIA**  **as a public body under § 232(d)(iv). The Court of Appeals reversed, concluding**  **that neither § 232(d)(iv) nor § 232(d)(iii) applied to the**

**MHSAA . Because we agree that the**  **MHSAA does not qualify as**  **a public body under § 232(d)(iii) or (iv), we affirm.**

**I. F**  **ACTS AND P**  **ROCEDURAL H**  **ISTORY A.**  **T HE**  **MHSAA The**  **MHSAA was originally founded in 1924 to exercise**  **control over the interscholastic athletic activities of all public schools in the state through agreement with the**  **State Superintendent of Public Instruction. The MHSAA**  **was housed within the Michigan Department of Education, and**  **its handbook, rules, and regulations were part of the Administrative Code of the state of Michigan.**  **In 1972, the MHSAA**  **became an incorporated, nonprofit membership organization. In that year, the Legislature**  **transferred control of interscholastic athletics from the State Board of Education to the individual school boards,** 

**2 but retained the status of the**  **MHSAA as the official**  **association of the state. See MCL 340.379 (repealed by 1976 PA 451, § 1851); MCL 380.1289 (before its amendment**  **by 1995 PA 289, § 1); MCL 380.1521 (repealed by 1995 PA 289, § 2).**  **1 In 1995, the Legislature adopted the Revised**  **School Code, MCL 380.1** et seq **., which repealed and amended several statutes. Through the Revised School Code, the** 

**MHSAA was removed as**  **the “official” organization overseeing interscholastic sports. Under MCL 380.11a(4), a school**  **district’s membership in any athletic organization remains entirely voluntary (school districts “**  may . . . **join organizations as part of performing the functions of the**  **school district” [emphasis supplied]).**

1 **MCL 380.1289(1) provided, until 1995, that “[a] board of a school district . . . may join an organization,**  **association, or league which has as its object the promotion and regulation of sport and athletic . . .**  **contests . . . .” Section 1289(2) further provided: An association established for the purpose**  **of organizing and conducting athletic events, contests, or tournaments among schools**  shall be the official association of the state **. The association is responsible for the adoption and**  **enforcement of regulations relative to eligibility of pupils in schools for**  **participation in interscholastic athletic events, contests, or tournaments. [Emphasis supplied.]** 

**3 The**  **MHSAA is governed by a representative council made**  **up of nineteen voting members, including fourteen members elected by member schools, four members appointed by the**  **council, and one representative of the state superintendent of education. The council has control of**  **interscholastic athletic policies, and a five-member executive committee makes rules necessary for the control**  **and government of interschool activities. The**  **MHSAA regulates interscholastic athletic**  **competition between member schools and sets standards for school membership and eligibility of students to**  **participate in interscholastic athletics. Apparently, the vast majority of high schools in Michigan are members of**  **the MHSAA**  **. Approximately seven hundred Michigan high schools are members of the**  **MHSAA and more than eighty**  **percent of those schools are public. Member schools pay no membership dues and no tournament entry fees. The only**  **funds collected from schools are (1) payments for the cost of publications provided to a school in excess of the**  **quantity already provided to members and (2) meeting expenses (for example, the cost of lunch).**  **The majority——approximately ninety percent——of the**

**MHSAA ’s revenues are gate receipts at post-season athletic** 

**4 tournaments for football and basketball. The gate receipt**  **revenues come directly from the sale of the MHSAA**  **’s tickets to members of the public who attend**  **MHSAA -sponsored events.**  **In some cases, the MHSAA**  **itself does not sell the tickets, but member schools remit to the**  **MHSAA gate receipts**  **collected from tickets sold by the schools for the MHSAA**  **** **sponsored events. Because no revenues are derived either during the**  **regular season or from most of the tournaments sponsored by the**  **MHSAA , the positive cash flow**  **from the football and basketball tournaments is used to fund these other**  **activities. Services provided by the MHSAA**  **to its members include the provision of medical insurance for student**  **** **athletes; dissemination of play rule books; organization of meetings for coaches and officials; provision of**  **several school and officials publications; provision of trophies and medals; training; direction and management of**  **tournaments; and the services of the MHSAA**  **staff.**

**B. P**  **LAINTIFFS ’**  **FOIA P**  **ROCEEDINGS Plaintiffs are the parents of a high school student**  **who was prohibited from participating in a ski meet sponsored by the**  **MHSAA because he had previously**  **participated in an unsanctioned event in violation of MHSAA** 

**5 rules. Plaintiffs filed a request under the**  **FOIA seeking**  **information related to that decision. The MHSAA**  **refused to comply with the request, asserting that it was not a**  **public body and was therefore not subject to the FOIA**  **. The trial court granted summary disposition to**  **plaintiffs, holding that the MHSAA**  **is “primarily funded by or through state or local authority” within the meaning of**  **§ 232(d)(iv) because the vast majority of its funding comes from gate receipts at the athletic events it**  **sponsors. The trial court held that the gate receipts that comprised the majority of the**  **MHSAA ’s revenue were**  **received “through” the schools because the MHSAA**  **essentially “’enjoys the schools’ moneymaking capacity as its own,’” quoting**  Brentwood Academy v Tennessee Secondary School Athletic Ass’n, **531 US 288; 121 S Ct 924; 148 L Ed 2d 807 (2001).**  **The Court of Appeals reversed, holding that the MHSAA**  **was not a public body under either § 232(d)(iv) or § 232(d)(iii). 255 Mich App 567, 581-582, 583; 662 NW2d 413**  **(2003). The majority first addressed plaintiffs’ argument**  **that the MHSAA**  **was “created by state or local authority”**  **under § 232(d)(iv). The majority held that, although it**

**6 was originally created under such authority, the modern**  **incarnation of the MHSAA**  **was a unique, private entity that had ceased being the official athletic association for the**  **state. This unique entity was not “created” by state or local authority.**  **The majority further rejected the trial court’s conclusion that the**  **MHSAA is primarily funded by or through**  **state or local authority. The panel noted that the state provides no financial resources to fund the**  **MHSAA ’s**  **activities, and that the MHSAA**  **actually paid fees for the use of host facilities. Member schools pay no fees or**  **dues to the MHSAA**  **. The MHSAA**  **is a private, nonprofit organization that hires and trains its own officials and**  **pays its own employees; furthermore, its revenues are derived from the sale of its own tickets for its own**  **events. The majority further noted that schools are not forced to join the**  **MHSAA and that member schools**  **voluntarily chose to engage the MHSAA**  **’s services. The individual schools have authority over their own**  **interscholastic events and have no independent authority over the**  **MHSAA .**  **Finally, the majority rejected plaintiffs’ argument that the**  **MHSAA is an “agent” of the state and therefore** 

**7 subject to the**  **FOIA under § 232(d)(iii). The majority**  **looked to Black’s Law Dictionary (7th ed), where “agency” was defined as “[a] fiduciary**  **relationship created by express or implied contract or by law, in which one party**  **(the** agent **) may act on behalf of another party (the** principal **) and bind that other party by words or actions.” The majority further noted that, pursuant to**  St Clair Intermediate School Dist v Intermediate Ed Ass’n **, 458 Mich 540, 558 n 18; 581 NW2d 707 (1998), “an agency**  **relationship arises only where the principal ‘has the**  **right to control the conduct of the agent with respect to matters entrusted to him.’” (citat**  **ions omitted). The majority held that the**  **MHSAA was governed by its board of**  **directors, not the individual schools who voluntarily became its members. No one school or district could**  **control the MHSAA**  **, because it was controlled by its own board. Therefore, the majority held, the**  **MHSAA was not an**  **“agent” of its member schools. Judge Jansen dissented, opining that the public**  **policy behind the FOIA**  **favored disclosure and that the MHSAA**  **was primarily funded by or through state or local authority because its gate receipts came to it only**  **through or by means of the schools’ authority to regulate**

**8 sporting events. Judge Jansen opined that the majority’s**  **holding was contrary to two cases,** State Defender Union Employees v Legal Aid & Defender Ass’n of Detroit, **230 Mich App 426, 432; 584 NW2d 359 (1998), and**  Kubick v Child & Family Services **, 171 Mich App 304; 429 NW2d 881 (1988), in which the Court of Appeals had held, respectively, that**  **(1) “funded” for purposes of the**  **FOIA definition of “public**  **body” meant the receipt of a governmental grant or subsidy and (2) funding that amounted to less than half the total**  **funding of a corporation did not amount to primary funding. Judge Jansen opined that the gate receipts**  **remitted to the MHSAA**  **were the functional equivalent of a grant or subsidy and that virtually the entire budget of**  **the MHSAA**  **came from gate receipts. Finally, Judge Jansen opined that the majority’s holding was contrary to the**  **Supreme Court’s holding in** Brentwood **that the Tennessee Secondary School Athletic Association (**  **TSSAA ), an**  **organization that is allegedly analogous to the MHSAA**  **, was a state actor for Fourteenth Amendment purposes.**  **We granted plaintiffs’ application for leave to appeal. 469 Mich 952 (2003).** 

**9 II.**  **S TANDARD OF**  **R EVIEW**  **This case**  **involves questions**  **of statutory**  **interpretation, which are reviewed de novo.** Roberts v

Mecosta **, 466 Mich 57, 62; 642 NW2d 663 (2002)**

. **We review the trial court’s grant of summary disposition de novo.**  Id **.**

**III. A**  **NALYSIS A.**  **I NTRODUCTION**  **The FOIA**  **generally requires disclosure, upon written request, of public records in the possession of a “public**  **body.” MCL 15.233(1). “Public body” is defined in MCL 15.232(d) as follows:**  **(i) A state officer, employee, agency,**  **department, division, bureau, board, commission, council, authority, or other body in the**  **executive branch of the state government, but does not include the governor or lieutenant**  **governor, the executive office of the governor or lieutenant governor, or employees thereof.**  **(ii) An agency, board, commission, or**  **council in the legislative branch of the state government.**  **(iii) A county, city, township, village,**  **intercounty, intercity, or regional governing body, council, school district, special**  **district, or municipal corporation, or a board, department, commission, council,**  or agency thereof **.**

**10 (iv)**  **Any other body which is** created by state or local authority **or which is** primarily funded by or through state or local authority **. (v)**  **The judiciary, including the office of the county clerk and employees thereof when**  **acting in the capacity of clerk to the circuit court, is not included**  **in the definition of public body. [Emphasis added.]** 

**B. T**  **HE MHSAA**  **IS N**  **OT P**  **RIMARILY F**  **UNDED B**  **Y OR T**  **HROUGH S**  **TATE OR L**  **OCAL A**  **UTHORITY We agree with and adopt the reasoning of the Court of**  **Appeals majority in holding that the MHSAA**  **is not a “public body” as that term is defined by MCL 15.232(d)(iv).**  **In granting summary disposition for plaintiffs, the trial court held that the**  **MHSAA was “primarily funded**  **through state or local authority” and thus qualified as a public body under § 232(d)(iv). The court, noting that it**  **was required to give effect to each word and provision of the statute, held that the use of the terms “by”**  and **“through” indicated that funds received both directly and indirectly would be considered in determining whether an**  **entity was a public body under § 232(d)(iv). The court concluded that, although the**  **MHSAA did not receive money**  **directly from the schools, it “’enjoy[ed] the schools’ moneymaking capacity as its own,’” quoting**  Brentwood,

supra **, and was therefore publicly funded.**

**11 Although we agree that the statutory terms “by” and**  **“through” must each be accorded their unique meanings, and that this terminology suggests that even**  indirect **public funding might satisfy the requirements of § 232(d)(iv), we**  **find persuasive the analysis of the Court of Appeals majority:**  **We read “by or through” to distinguish between the different meanings of the word**  **“authority,” that is, funding “by” a governmental authority (an**  entity **) and funding “through” governmental decision-making authority (the**  power **to regulate). Under our reasoning, the former refers to an entity that directly distributes its**  **financial resources to the disputed organization, while the latter refers to the disputed**  **organization indirectly receiving funds through some action or decision of the governmental body.**  **[255 Mich App 579-580 (emphasis in original).] The**  **MHSAA is funded neither “by” nor “through” a**  **governmental authority. As our Court of Appeals held in** State Defender Union Employees, **"funded," as used in § 232(d)(iv), means “the receipt of a governmental grant or**  **subsidy.” The MHSAA**  **is not the recipient of any governmental grant or subsidy. The**  **MHSAA ’s member schools**  **do not distribute their financial resources to the MHSAA**  **; nor do the schools indirectly fund the**  **MHSAA through**  **allocations of public monies . Rather, the**  **MHSAA ——an**  **independent, nonprofit corporation——is primarily funded by the sale of its own tickets to private individuals who** 

**12 have voluntarily paid a fee to observe an**  **MHSAA -sponsored**  **athletic event. Member schools pay no dues or fees to the**

**MHSAA , the**  **MHSAA pays fees for the use of host facilities,**  **and it receives no funds from host concessions; thus, the state provides absolutely no public resources to the** 

**[2] MHSAA**  **.**

2 **The dissent has extracted broad dictionary definitions of the words “by” and “through” to suggest**  **that the receipt of any monies “** by virtue of **” an entity’s** relationship **with a state or local governmental body is sufficient to render that entity “funded by or through**  **state or local authority.” The dissent’s analysis, aside from conflating the distinct meanings of the words “by”**  **and “through,” completely disregards the meaning of the statutory term “**  funded **.” As we have explained, the word “funded” does not connote the simple receipt of payment in**  **return for services or materials provided; it connotes receipt of an allocation of resources or a subsidization.**  **See** State Defender Union Employees **,** supra **at 432;** Random House Webster’s College Dictionary **(1997). Yet the dissent does not even require that an entity doing**  **business with the government collect fees for goods or services in order to qualify as a public body; the**  relationship **alone seems critical. Such an extreme position is neither warranted by the language of the**  **statute nor fathomable within the bounds of common sense. Taken to its logical conclusion, the dissent’s version of**  **the statute would place within the ambit of § 232(d)(iv) any contractor or other business that obtains a majority**  **of its income from sales made or services rendered to governmental bodies. See**  Brentwood, supra **at 311 (Thomas, J., dissenting) (“the [Tennessee Secondary School Athletic**  **Association’s] ‘fiscal relationship with the State is not different from that of many contractors performing**  **services for the government.’”). (citation deleted). Consider, for example, the non-profit College Board, which**  **administers the SAT**  **to hundreds of Michigan students in the** Footnotes continued on following page.

**13 Nor, contrary to the holding of the trial court and**  **the opinion of our dissenting colleague, does the MHSAA “enjoy[] the schools’ moneymaking capacity as its own.”**  **3**

**classrooms of part icipating public schools each year.**  **Public school students pay the examination fee directly to the College Board, but under the dissent’s rationale the**  **Board would be a “public body” subject to FOIA**  **disclosure requirements simply because it derives income “by virtue”**  **of the fact that the public schools have facilitated an opportunity for the Board to administer this test in the**  **schools.**

3 **Our holding today is limited to the specific question whether the**  **MHSAA is a “public body” within the**  **meaning of the FOIA**  **. We express no opinion concerning the relevance of**  Brentwood, supra **, insofar as it may apply to the due process implications of the actions of the MHSAA.**  **We have before us no constitutional question and decline to address whether the**  **MHSAA is a “state actor” for**  **purposes of 42 USC 1983 and the Fourteenth Amendment, as it would be inappropriate to import the concept of and**  **analysis relevant to state action into our statutory analysis. Rather, we are constrained to apply the plain**  **language of the FOIA**  **’s definitional provisions in determining whether the**  **MHSAA is subject to the**  **requirements of the FOIA**  **. While our dissenting colleague acknowledges this**  **fact, see** post **at 9, she nevertheless appears to contend that the definition of “state actor” under federal law is**  **“pertinent” in defining “public body” under the FOIA**  **. This is particularly true of Justice Weaver’s focus on**  **“entwinement” as a relevant inquiry for defining “public body.”**  **There is a rather straightforward answer to the dissent’s utilization of “state actor” analysis: it is**  **possible for MHSAA**  **to be a state actor under § 1983 and the Fourteenth Amendment without being a “public body” under**  **the FOIA**  if the Legislature has defined “public body” in a manner inconsistent with Fourteenth Amendment Footnotes continued on following page.

**14 The**  **MHSAA organizes postseason tournaments, rents the game**  **venues and sells tickets for those games. Without the**

**MHSAA 's leadership and organizational effort, no revenue**  **from tournament games would be generated for any entity, including**  **MHSAA member schools. In short,**  **MHSAA creates its**  **own "market" and revenue therefrom that would otherwise not exist without its effort. Finally, it is worth noting**  **that member schools have** voluntarily **relinquished to the**

**MHSAA any interest they may have**  **had in ticket sales for athletic tournaments sponsored by the**  **MHSAA , and the**  **MHSAA ,** 

jurisprudence in th e FOIA **. The dissent apparently cannot**  **accept the possibility that the Legislature has the discretion to define “public body” in any way it chooses;**  **yet she offers no support for the proposition that the Legislature was bound by or had in mind the definition of**  **“state actor” under federal law when it drafted the FOIA. And, of course, there**  is **no support for that proposition. The Legislature was free to define “public body” in the**  **FOIA as narrowly or broadly as it wished. We give meaning to the Legislature’s terms while the dissent is in search**  **of alternate meanings. The dissent not only conflates the meaning of “state**  **actor” under § 1983 and the Fourteenth Amendment with the definition of a “public body” under the**  **FOIA , but she goes**  **on to extract from** Brentwood **the concept that the Tennessee Secondary School Athletic Association (**  **TSSAA )**  **(and, by analogy, the MHSAA**  **) “enjoys the schools’ moneymaking capacity as its own.” As stated**  supra **in note 2, the**  **MHSAA is not “funded” by participating school**  **districts but provides services in the activities it conducts and for which it collects gate receipts.** 

**15 in turn, is fully responsible for the organization and**  **administration of the tournament. In this vein, we agree with the reasoning of the**  **Court of Appeals in** State Defender Union, supra **at 432 -**  **433, that an otherwise private organization is not “funded**  **by or through state or local authority” merely because public monies paid in exchange for goods**  **provided or services rendered comprise a certain percentage of the organization's revenue. Earned**  **fees are simply not a grant, subsidy, or funding in any reasonable, common-sense construction of**  **those synonymous words. Rather, it is clear that, in the**  **FOIA ,**  funded **means something other than an exchange of services or goods for money,**  **even if the source of money is a governmental entity [emphasis in original].**  **The MHSAA**  **, as noted, provides numerous services for its member schools, such as medical insurance for students,**  **publications, training, and many other benefits that schools would not otherwise be in a position to provide.**  **Here, even assuming that the private ticket-sale revenue at issue somehow passes “through” a governmental entity,**  **these funds are received by the MHSAA**  **in exchange for the multitude of services it performs for its members, most**  **significantly the administration of the tournaments for which the tickets are sold. The**  **MHSAA is therefore not**  **“funded” by or through a governmental entity within the meaning of § 232(d)(iv).** 

**16 C.**  **T HE**  **MHSAA IS**  **N OT**  **C REATED**  **B Y**  **S TATE OR**  **L OCAL**  **A UTHORITY**  **Plaintiffs contend that the MHSAA is a “creature” of the schools and that it is therefore “created by state or**  **local authority” within the meaning of § 232(d)(iv). In support of this rather tenuous argument, plaintiffs cite**  Kirby v MHSAA **, 459 Mich 23, 39 n 17; 585 NW2d 290 (1998),**  **in which this Court stated that the MHSAA**  **“is a creature of its members, with no independent authority over schools or**  **students. The schools can and should exercise appropriate oversight of the**  **MHSAA .” Plaintiffs additionally, and**  **inconsistently, argue that the MHSAA is a “de facto public body” because it has retained much of the same authority**  **that was originally bestowed upon it in 1924: the authority to exercise control over the interscholastic**  **athletic activities of all high schools of the state. Plaintiffs stress that high**  **schools have no practical choice but to join the**  **MHSAA if they want to participate in**  **interscholastic sports. We agree with the Court of Appeals majority that the** 

**MHSAA is no longer the same entity that was arguably**  **“created” by state authority in 1924. Rather, the modern incarnation of the**  **MHSAA is a wholly different organization**  **from the entity that was at one time legislatively**

**17 designated as the official organization for the regulation**  **of interscholastic sports in Michigan and that was housed within the Michigan Department of Education. The**  **MHSAA is**  **now a private corporation that is wholly self-regulated. Membership is, by statute, completely voluntary. See MCL**  **380.11a(4) (providing that “[a] . . . school district may join organizations as part of performing the functions of**  **the school district”). In short, the MHSAA**  **in its current form is not “created by state or local authority.”**  **We further note that our comment in** Kirby— **that the**

**MHSAA “is a creature of**  **its members, with no independent authority over schools or students”—merely lends further**  **credence to our conclusion that the MHSAA**  **is not a public body. Michigan schools are in no way obligated to join**  **the MHSAA**  **, and they remain free to join other athletic organizations in lieu of, or in addition to, the**  **MHSAA .**  **Member schools do not relinquish authority or decision**   ** making capacity to the** **MHSAA , nor does the**  **MHSAA have any**  **independent authority over its members. 4**  **There is simply**

4 **Justice Weaver’s assertion that the school districts “have delegated the authority to the**  **MHSAA to make policy**  **decisions,”** post **at 19, is flatly incorrect. As noted above, the school districts have**  voluntarily assumed **the athletic eligibility conditions set by the**  **MHSAA . Again,**  Footnotes continued on following page.

**18 no basis for concluding that this private corporation is**  **“created” by any governmental authority. 5** 

**D. T**  **HE MHSAA**  **IS N**  **OT AN A**  **GENCY OF THE S**  **CHOOLS Finally, plaintiffs contend that the**  **MHSAA acts as an**  **“agent” for its member schools and that it is therefore a public body as defined by § 232(d)(iii):**  **A county, city, township, village, intercounty, intercity, or regional governing**  **body, council,** school district **, special district, or municipal corporation, or a board,**  **department, commission, council,** or agency thereof **. [Emphasis added.] The Court of Appeals majority and the parties appear**  **to have assumed that § 232(d)(iii) includes “agents” of enumerated governmental entities in the definition of** 

**while “entwinement” may be a relevant constitutional**  **inquiry for defining who might be a state actor, it has no relevance to our obligation to give meaning to “public**  **body” as the Legislature has defined it.**

5 **The dissent’s analysis suffers for placing undue emphasis on the historical connection between what is now**  **a private, not-for-profit corporation and its previous incarnation as a state-controlled entity. See**  post **at 9 -**  **10. This historical connection to the state, however**  **interesting, is irrelevant to the question currently before the Court. At issue is not whether the 1924**  **incarnation of the MHSAA**  **is a “public body,” but whether today’s**  private **corporation composed of** voluntary **members is a “public body” under the**  **FOIA . When one engages in**  **this inquiry without conflating the present private corporation with its public ancestor, it is manifest that**  **the MHSAA**  **is not a “public body” under the FOIA**  **.**

**19 “public body.” We disagree and believe that there is a**  **fundamental difference between the terms “agent” and “agency” as the latter term is used in the statute.**  **As we have noted on many occasions, a statutory term cannot be viewed in isolation, but must be construed in**  **accordance with the surrounding text and the statutory scheme.**  **“Contextual understanding of statutes is generally grounded in the doctrine of**  noscitur a sociis **: ‘it is known from its associates,’ see Black's Law Dictionary (6th ed), p 1060. This**  **doctrine stands for the principle [of interpretation] that a word or phrase is given**  **meaning by its context or setting." . . . Although a phrase or a statement may mean one**  **thing when read in isolation, it may mean something substantially different when read in**  **context. . . . [** Sweatt v Dep't of Corrections **, 468 Mich 172, 179-180; 661 NW2d 201 (2003)**  **(citations omitted).] Although the noun “agency” may be used to describe a**  **business or legal relationship between parties, it is wholly evident from the context of § 232(d)(iii) that this**  **is not the sense in which that term is used. Section 232(d)(iii) designates several distinct governmental units**  **as public bodies, and proceeds to include in this definition any “agency” of such a governmental unit. In**  **this specific context, the word “agency” clearly refers to**

**a** unit or division of government **and not to the**

**20**relationship **between a principal and an agent. Had the Legislature intended any “agent” of the enumerated**  **governmental entities to qualify under § 232(d)(iii), it would have used that term rather than “**  agency **.” 6**  **Thus, we reject plaintiffs’ argument that the**  **MHSAA acts as an**  **“agent” of its member schools and that it thus qualifies as an “agency” under § 232(d)(iii).**  **7**

6 **The Department of Labor and Economic Growth, for example, is a governmental “agency,” but a real estate**  **office hired to sell governmental property is** not **a governmental “agency.” Indeed, it would defy logic (as**  **well as the plain language of § 232[d][iii]) to conclude that the Legislature intended that any person or entity**  **qualifying as an “agent” of one of the enumerated governmental bodies would be considered a “public body”**  **for purposes of the FOIA**  **.** 7 **Moreover, even if we were to conclude that the term “agency” as used in § 232(d)(iii) includes agents of the**  **enumerated governmental entities, the MHSAA**  **is an independent body that is in no way the “agent” of its**  **members. As noted by the Court of Appeals majority in this case, “[i]t is a fundamental principle of hornbook**  **agency law that an agency relationship arises only where the principal ‘has the right to control the conduct of the**  **agent with respect to matters entrusted to him.’”** St Clair Intermediate School Dist, supra **at 557-558 (citations omitted). The**  **MHSAA is governed by its own**  **internal board. The individual school members have no authority over the actions of the**  **MHSAA . Moreover, by**  **joining the MHSAA**  **, member schools are required to relinquish to the**  **MHSAA complete authority over the rules**  **and officiating of MHSAA**  **-sponsored athletics.**

**21 V.**  **C ONCLUSION**  **The MHSAA**  **, a private, nonprofit organization having a wholly voluntary membership of private and public schools,**  **is not a “public body” within the meaning of the FOIA**  **and is therefore not subject to the**  **FOIA ’s provisions.**  **Accordingly, we affirm the decision of the Court of Appeals.**  **Robert P. Young, Jr. Maura D. Corrigan**  **Michael F. Cavanagh Clifford W. Taylor**  **Stephen J. Markman**

**22 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**MARTIN B. BREIGNER III AND KATHRYN BREIGHNER,**  **Plaintiffs-Appellants,**

**No. 123529** 
**MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,**  **Defendant-Appellee.**

**WEAVER, J. (** dissenting **) Plaintiffs in this case seek information pursuant to**  **the Freedom of Information Act (FOIA), MCL 15.231** et seq. **, regarding how the Michigan High School Athletic**  **Association, Inc. (MHSAA), determines which alpine ski races and racers are sanctioned from or for participation.**  **The MHSAA disqualified plaintiffs’ son from competing with his public high school ski team during the 2002 season**  **because he skied in one race that the MHSAA did not sanction.**  **The question in this case is whether the MHSAA is a public body that must comply with the disclosure**  **requirements of the FOIA. Until the revision of the public school code by 1995 PA 289, there was no dispute that the** **MHSAA was subject to the FOIA. However, the majority holds that the 1995 revision of the school code insulated the**  **MHSAA from public scrutiny previously available under the FOIA. I disagree and would hold that the MSHAA is a public**  **body subject to the FOIA because it is both created by and primarily funded by or through public school districts.** 

**I The FOIA was enacted to continue the common-law right**  **Michigan citizens have traditionally possessed to access government documents. See**  Walen v Dep’t of Corrections **, 443 Mich 240, 253; 505 NW2d 519 (1993) (R**  **ILEY , J. concurring in**  **part);** Evening News Ass'n v Troy **, 417 Mich 481, 494-495; 339 NW2d 421 (1983) (discussing Michigan's established**  **history of requiring public agency disclosure). As** Nowack v Auditor General **, 243 Mich 200, 203-204; 219 NW 749 (1928) explained:**  **If there be any rule of the English common law that denies the public the right of access to**  **public records, it is repugnant to the spirit of our democratic institutions. Ours is a government**  **of the people. Every citizen rules. . . . Undoubtedly, it would be a great surprise to the**  **citizens and taxpayers of Michigan to learn that the law denied them access to their own books for**  **the purpose of seeing how their money was being expended and how their business was being**  **conducted. There is no such law and never was either in this country or in England. Mr. Justice**  **M ORSE**  **was right in saying: "I do not think that any common law ever**  **obtained in this free government that would deny**

**2 to the people thereof the right of free access**  **to, and public inspection of, public records."** Burton v. Tuite **, 78 Mich 363, 374 (7 LRA 73) [44 NW 282 (1889)].**  **There is no question as to the common-law right of the people at large to inspect public**  **documents and records. The right is based on the interest which citizens necessarily have in the**  **matter to which the records relate. This right to access provides the policy foundation**  **underlying the FOIA. “The FOIA was enacted to continue this tradition of openness.”**  Walen **,** supra **at 254 (Riley, J.).**  **The FOIA specifically provides that all persons . . . are entitled to full and**  **complete information regarding the affairs of government and the official acts of those who**  **represent them as public officials and public employees, consistent with this act. The people**  **shall be informed so that they may fully participate in the democratic process. [MCL**  **15.231(2).] The FOIA subjects “public bodies” to its public records**  **disclosure requirements. MCL 15.235. The FOIA provides several definitions of “public body,” any one of which**  **subjects an entity to the FOIA’s public record disclosure requirements. MCL 15.232(d)(iv) defines one sort of**  **public body as “[a]ny other body which is created by state or local authority or which is primarily funded by or**  **through state or local authority.” I would hold that the MHSAA is a public body because it is both “created by state** 

**3 or local authority” and “primarily funded by or through**  **state or local authority.” Statutory language is to be read according to its**  **ordinary and generally accepted meaning.** Tryc v Michigan

Veterans’ **Facility** , **451 Mich 135; 545 NW2d 642 (1995). If the language at issue is plain and unambiguous, we assume**  **the Legislature intended its plain meaning and enforce the statute as written.**  Lorencz v Ford Motor Co **, 439 Mich 370, 376; 483 NW2d 844 (1992). It is appropriate to refer to a**  **dictionary to discern a statute’s plain meaning.** State ex rel Wayne Co Prosecuting Attorney v Levenberg **, 406 Mich 455, 465-466; 280 NW2d 810 (1979).** 

**II Public school districts are expressly listed as public**  **bodies under the statute. MC L 15.232(d)(iii). Moreover,**  **the provision of interscholastic ath letics has long been**  **and now remains a proper function of public school districts, and the MHSAA’s relationship with the public**  **schools in the provision of interscholastic athletics is firmly established.** 

**A The MHSAA is ”Created By” School Districts**  **Under 1923 PA 237, the superintendent of public instruction was delegated the**  **authority to supervise and**

**4 control interscholastic athletic activities. The MHSAA was**  **first organized in 1924 for the purpose of coordinating and regulating interscholastic athletic activities.**  **1 Within the**  **first year of its creation, the MHSAA presented a “Suggested Set of Standards and Practices of Athletic**  **Administration.” Regarding these standards, the superintendent of public instruction wrote:**  **Any athletic program to be worth having at all must contribute something to the educational**  **value to its board. To do that it must be the result of the cooperative effort on the part of**  **the superintendent, principal, althletic director, and student body. Complete control of**  **the program must remain in the school itself. Any set of standards and practices must guide all**  **these various groups. [2]**  **Until 1972, the MHSAA was apparently “housed within the Michigan Department of Education, and its Executive**  **Director was known as the ‘State Director of Athletics.’”** Communities for Equity v Michigan High School Athletic Ass’n, **178 F Supp 2d 805, 810- 811 (WD Mich, 2001). The** 

**1 Since the founding of the MHSAA the state**  **superintendent of public instruction has been as an ex**   ** officio member of the Representative Council that governs** **the MHSAA. See, Lewis L. Forsythe,** Athletics in Michigan High Schools—The First Hundred Years **, (Prentice-Hall, Inc 1950), which documents the development of high school**  **athletics and the creation of organizations to coordinate interscholastic athletics since 1848.** 

**2** Id. **at 172.**

**5 MHSAA’s handbook, rules, and regulations were part of the**  **Michigan Administrative Code.** Id. **at 811. In 1972, the School Code was amended and the authority**  **over interscholastic athletics was moved from the State Board of Education to individual school districts.**  Id. **The Legislature expressly provided that school districts could join “an organization, associ**  **ation or league which has as its object the promotion of sport . . . and**  **regulation of athletic . . . contests . . . .” Former MCL**  **340.379. Although the statute did not expressly**  **designate the MHSAA as the official organization for interscholastic athletics, it did provide that “**  An association **established for the purpose of organizing and conducting athletic events, contests, or tournaments among**  **schools shall be the official association of the state.”** Id. **(emphasis added). It has been assumed that the Legislature was referencing the MHSAA. See**  Communities for Equity, supra **at 811. Also in 1972, the MHSAA reorganized as a private not**  **** **for-profit corporation. The MHSAA’s purpose remained essentially unchanged after 1972. As stated in the 1972**  **articles of incorporation, the MHSAA was intended to create, establish and provide for, supervise**  **and conduct interscholastic athletic programs throughout the state consistent with the** 

**6 educational values of the high school curriculums**  **[sic]. . . . [3]**  **As under the former law, membership in the MHSAA was voluntary. Nevertheless, once a school district joins the**  **MHSAA, it was and is bound by the MHSAA’s rules. 4**  **There is no express mention of athletics in the school code as revised in 1995. The law now simply authorizes**  **school districts to “join organizations** as part of performing the functions of the school district. **” MCL 380.11a(4) (emphasis added). However, the Revised School**  **Code further provides that the powers of school districts are not diminished “[u]nless expressly provided in the** 

**3 This description is from the MHSAA’s April 18, 1972,**  **articles of incorporation.**

**4 When a school district joins the MHSAA, it must**  **annually adopt the MHSAA membership resolution. That resolution provides that the school district:**  **Accepts the Constitution and By-Laws of [MHSAA] and adopts as its own the rules,**  **regulations and interpretations (as minimum standards), as published in the current**  HANDBOOK **and qualifications as published in the** BULLETIN **as the governing code under which the said school(s) shall conduct its program of**  **interscholastic activities and agrees to primary enforcement of said rules, regulations,**  **interpretations and qualifications. In addition, it is hereby agreed that schools which host or**  **participate in the association’s meets and tournaments shall follow and enforce all**  **tournament policies and procedures.**

**7 amendatory act . . . .” MCL 380.11a(9). Thus, it can be**  **concluded that the provision of athletics remains a proper function of school districts. It is also undisputed that**  **the MHSAA remains the primary statewide organization that coordinates the interscholastic athletics for public school**  **districts in Michigan. 5**  **Given this history, the majority’s suggestion that the MHSAA is “a wholly different organization from the entity**  **that was at one time legislatively designated as the official organization for the regulation of interscholastic**  **sports in Michigan and that was housed within the Michigan Department of Education,”**  ante **at 18, is inaccurate. As noted above, the MHSAA was not expressly named in the**  **statute as the “official” state interscholastic organization after 1972. Further,**  **the majority suggests that the “voluntary” nature of membership in the MHSAA is a**  **new reality under the 1995 Revised School Code. This is not true. Membership has always been and remains**  **voluntary. At any point since 1924, a school district could decide to not participate in interscholastic**  **athletics and to not join the MHSAA.**

**5 The MHSAA’s comprehensive control that it has**  **retained over interscholastic athletics is reviewed in** Communities for Equity, supra **at 810-814.**

**8 School districts allow the MHSAA to coordinate sports**  **events because the MHSAA is the dominant statewide organization of interscholastic athletics, and failure to**  **join and comply with the MHSAA rules would effectively prevent the schools from participating in interscholastic**  **athletics. Moreover, the MHSAA’s written materials demonstrate that the MHSAA is intertwined with the school**  **districts. Specifically included in the MHSAA’s eligibility guidelines are requirements that the student athlete passes**  **at least twenty credit hours and not have been enrolled in more than eight semesters in high school.**  **6 Thus, not only**  **is the MHSAA involved in the athletic activities of the students, it also establishes rules concerning the**  **scholastic performance of the student athletes. As noted in**  Communities for Equity, supra **at 811, the 1995 amendment of the Revised School Code, “resulted in no**  **substantive changes in the structure or operation of the MHSAA or in its relationships with its member schools.”**  **The MHSAA was created by school districts that came together in 1924 to organize interscholastic athletics, and**  **the organization of interscholastic athletics remains the**

**6 <http://www.mhsaa.com/administration/eligibility.pdf>**  **(accessed July 28, 2004).**

**9 MHSAA’s purpose. When school districts join the MHSAA**  **through annual resolutions passed by the school boards, they adopt the MHSAA’s constitution, by-laws, rules and**  **regulations “as their own.” 7**  **Therefore, under the FOIA the MHSAA should be treated as a “public body” because it is**  **“created by state or local authority.” The United States Supreme Court case of**  Brentwood Academy v **Tennessee** Secondary School Athletic Ass’n, **531 US 288; 121 S Ct 924; 148 L Ed 2d 807 (2001), supports the**  **conclusion that the MHSAA is a public body that was created by state or local authority. In**  Brentwood, **the United States Supreme Court held that the Tennessee Secondary**  **School Athletic Association (TSSAA) was a state actor subject to constitutional limitations. While it is**  **unnecessary to decide whether the MHSAA is a state actor to determine whether the MHSAA is subject to the FOIA, the**  Brentwood **Court’s discussion of the TSSAA is of interest and relevant to this case because of the TSSAA’s**  **similarities to the MHSAA. In** Brentwood **, the TSSAA, like the MHSAA, was a not-for-profit corporation that was formed** 

**7 As we have noted before,**  **the MHSAA is a “creature of its members”.**  Kirby v MHSAA **, 459 Mich 23, 39 n 17; 585 NW2d 290 (1998).** 

**10 to oversee the interscholastic sports programs among public**  **and private high schools in the state. The TSSAA imposed sanctions against plaintiff Brentwood Academy based on**  **recruiting violations. In finding that the TSSAA was a state actor, the United States Supreme Court noted that**  **“the nominally private character of the Association is overborne by the pervasive entwinement of public**  **institutions and public officials in its composition and**  **workings. . .”** Id. **at 298.** Brentwood **also noted the TSSAA’s membership consisted of predominantly public**  **schools, its revenue came from its membership dues and gate receipts from tournaments held at member schools, state**  **officials were given ex officio status on the legislative council, and TSSAA employees were eligible for the state**  **employees retirement system.** Id **. at 298-300. 8**  **It is**

**8 Interestingly, the United States District Court, in**  Communities for Equity, supra **subsequently held that, under the United States Supreme Court decision in**  Brentwood, **the facts presented in**  Communities for Equity **necessitated a finding that the MHSSA was a state actor.**  Id. **at 847. The United States District Court explained:**  **The purpose of the MHSAA—to create, establish and provide for, supervise and conduct**  **interscholastic athletic programs throughout the state—is virtually the same as its Tennessee**  **counterpart. The MHSAA has a membership of predominantly public schools and almost every**  **eligible public school belongs. Its revenue is derived from gate receipts from tournaments held**  Footnotes continued on following page. **11 notable that before the United States Supreme Court in**  Brentwood **reversed the Sixth Circuit’s conclusion that the**

**TSSAA was** not **a state actor, the MHSAA argued that it was “very similar in structure” to the TSSAA and “that the**  **nature and function of the MHSAA is virtually identical to that of the TSSAA.” See**  Communities for Equity **,** supra **at 846-847. To suggest that an entity like the MHSAA could be**  **a state actor, but not also a “public body” under the FOIA would undercut the stated purpose of the FOIA that “[a]ll**  **persons . . . are entitled to full and complete information regarding the affairs of government . . . .” MCL**  **15.231(2).**

**at member schools and broadcast fees, among other items, revenues to which schools would otherwise**  **be entitled. The membership of the MHSAA’s Representative Council includes a representative**  **of the superintendent of education and is comprised of mostly public school employees**  **acting as representatives for their schools. Some MHSAA employees continue to be eligible for**  **participation in the state employee retirement system. Moreover, the MHSAA exercises**  **adjudicative power over the schools with its ability to investigate and determine rules**  **violations and resultant sanctions. Just as the Supreme Court recognized that a**  **mechanism is required to implement interscholastic sports schedules and competition**  **rules governing Tennessee’s schools, that mechanism in the State of Michigan takes the form**  **of public school officials acting together under the auspices of the MHSAA. [**  Id **. at 847.]**

**12 B**  **The MHSAA is Primarily Funded by or through School Districts**  **The MHSAA is “primarily funded” as a result of its relationship with the public school districts. The**  **majority definition of “funded” as narrowly pertaining only to “the receipt of a governmental grant or subsidy,”**  ante **at 9, 12, defies common sense. The majority’s definition originates in a Court of Appeals decision**  **9 that first cites**  **a dictionary definition of “fund” (as a verb), and then skips to a synonym, “subsidize,” that the panel discovered**  **in a thesaurus. Apparently preferring “subsidize” to “fund,” even though the term “fund” was used by the**  **Legislature, 10**  **the panel then turned to a dictionary**  **definition of “subsidy” (a noun) and discovered that a “subsidy” is defined as “a direct financial aid furnished**  **by a government . . . [or] a ny grant or contribution of**  **money.” Thus, by mixing verbs and nouns and substituting words for those employed by the Legislature, the panel** 

**9 For its definition of “funded,” the majority relies**  **on an interpretation conceived in** State Defender Union Employees v Legal Aid and Defender Ass’n of Detroit **, 230 Mich App 426; 584 NW2d 359 (1998), a decision written by**  **the author of the majority opinion while serving on the Court of Appeals.** 

**10 Apparently the panel also preferred “subsidize” over**  **other common synonyms of “fund” such as “endow” or “finance.”**  Webster’s Collegiate Thesaurus **(1976).**

**13 creatively narrowed “is . . . funded” under the statute to**  **mean the “receipt of a government grant or subsidy.” While it is appropriate to refer to dictionary definitions to**  **understand the ordinary meaning of words, it is not appropriate to pick and choose among synonyms that may only**  **have “nearly the same” or “similar” 11**  **meaning and substitute those for the words specifically employed by the**  **Legislature. I would conclude, that a “fund” can be understood to**  **be “money available for use” so that when something “is funded” it is provided for “by a fund,” i.e. by “money**  **available for use . . .”** Webster’s New World Dictionary **(3d ed). Michigan public schools represent eighty percent of the MHSAA’s membership and approximately ninety to**  **ninety-five percent of the MHSAA’s funding is from gate receipts from postseason athletic tournaments for football**  **and basketball involving public school teams. Without the voluntary participation of the public school districts in**  **the MHSAA organized interscholastic athletic season and postseason tournaments, as well as**  **the school districts’ relinquishment of the gate receipts to MHSAA, it would** 

**11** Webster’s, supra **, defining “synonym” and “synonymous.”** 

**14 cease to exist because its primary source of money**  **available for its use would disappear. However, the question remains whether the MHSAA’s gate**  **receipt funding is derived “by or through” public school districts. There are many inapplicable definitions of the**  **terms “by” and “through.” But in the context of MCL 15.232(d)(iv), the most applicable d**  **efinition of “by” in** Webster’s **addresses the term as used to express permission or sanction. In that sense, “by” is defined as “with the**  **authority or sanction of [** by **your leave].” 12**  **The applicable definitions of “through” in**  Webster’s **are “by means of [**  through **her help]” and “as a result of; because of [done** through **error].” 13**  Id. **Thus, the plain meaning approach to “by” or “through” in the context of the statute at issue is whether the gate**  **receipts amount to funding that the MHSAA receives with the authority or sanction of the school districts or by means** 

**12 In Black’s Law Dictionary (6th ed), “by” is**  **similarly defined as “[t]hrough the means, act, agency or instrumentality of.”** 

**13 In Black’s,**  supra, **“through” is defined similarly as “[b]y means of, in consequence of, by reason of [and] [b]y**  **the intermediary of; in the name or as the agent of; by the agency of; because of.”** 

**15 I**  **of, as a result of, or because of the school districts. 14**  **would hold that because the MHSAA receives its primary funding as with the authority of (by) and as a result of**  **(through) the voluntary membership of public school districts in the MHSAA and the school districts’ voluntary**  **participation in the interscholastic athletic seasons and postseason tournaments organized by the MHSAA, the MHSAA is**  **primarily funded “by or through” the schools and is a public body under MCL 15.232(d)(iii) of the FOIA.**  **Rather than look at the plain meaning of the words at issue, the majority suggests that the terms “by” and**  **“through” must refer to different kinds of governmental authority. The majority adopts the analysis of the Court**  **of Appeals and concludes that “by” refers to an entity that directly distributes its financial resources to the**  **disputed organization. The majority then says “through” refers to the disputed organization indirectly receiving**  **funds through some action or decision of the governmental**

**14 The terms “by” and “t**  **hrough” are often combined in the phrase “by and through.” Garner, A Dictionary of**  **Modern Legal Usage (2d ed), described “by and through” as “typical LEGALESE” that “can be replaced with either**  by or through. **” MCL 8.3a (emphasis added) provides that “[a]ll words**  and phrases **shall be construed and understood according to the common and approved usage of the language**  **. . . .” Thus, the majority’s assertion that these words in this context must each be accorded “its unique meaning,”**  ante **at 11, is incorrect.**

**16 body.**  Ante **at 11-12. However, to understand the statute, it is not necessary to engraft concepts of direct and**  **indirect funding or to conclude that the Legislature intended to reference different kinds of governmental**  **authority when it only used the term authority once. The majority’s approach defies the plain language of the**  **statute and unduly constricts the definitions of “public body” and of “funded.”** 

**In** Brentwood **, the Unite States Supreme Court addressed the nature of gate receipts received by a similar state**  **school athletic organization for its organization and sponsorship of public school athletic tournaments and**  **stated: Unlike mere public buyers of contract**  **services, whose payments for services rendered do not convert the service providers into public**  **actors, . . . the schools here obtain membership in the service organization and give up sources**  **of their own income to their collective association. The Association . . . exercises**  **the authority of the predominantly public schools to charge admission to their games; the**  **Association does not receive this money from the schools, but enjoys the moneymaking capacity as**  **its own. [** Brentwood, supra **at 299.] Like the TSSAA, the MHSAA is more than a public contractor**  **exchanging payments for services. By collecting gate**

**17 receipts at tournaments, the MHSAA enjoys the schools’**  **moneymaking capacity as its own. 15**  **This underscores the conclusion that the MHSAA receives its primary funding “by or through” the schools’**  **authority. The majority argues that the MHSAA “creates its own ‘market,’” and stresses that without the MHSAA’s effort**  **“no revenue from tournament games would be generated for any entity, including MHSAA member schools.”**  Ante **at 12 -**  **13, 15. The majority thus concludes that the MHSAA is merely a service provider and that the gate receipts are**  **simply fees paid for services. However, as noted above, the MHSAA is not simply in a**  **situation where the organization provides a fee for a particular service. True, the MHSAA does organize**  **interscholastic seasons and postseason tournaments. It also provides medical insurance, publications, and training**  **to its members. However, schools do not join the MHSAA or allow it to sell tickets to events featuring student**  **athletes simply because the MHSAA provides medical insurance, publications, or training. As already**  **explained, school districts allow the MHSAA to coordinate**

**15 Justice Thomas’s dissenting perspective regarding**  **the relationship of the association to the schools in** Brentwood **did not prevail. The majority’s citation of it,** ante **at 13 n 2, is not persuasive.**

**18 events and relinquish related gate receipts to the MHSAA**  **because the MHSAA is the dominant statewide organization of interscholastic athletics, and failure to join and comply**  **with MHSAA rules would effectively prevent the schools from participating in interscholastic athletics.**  **It should be noted that the MHSAA is distinguishable from ordinary service providers to the schools. The school**  **districts have delegated the authority to the MHSAA to make policy decisions. These decisions are within the proper**  **function of school districts to regulate athletics, MCL 380.11a(4); MCL 380.11a(9), such as athletic eligibility**  **and training, participation in outside sports activities and required scholastic achievement for participating**  **athletes. This intertwinement between the MHSAA and the school districts makes the MHSAA subject to the FOIA where**  **an ordinary service provider would not be.**

**II Conclusion**  **It has been and remains the submission of public school districts to the rules and regulations of the MHSAA**  **that allows the MHSAA to exist. It can thus be concluded that the MHSAA was created by the school districts. MCL**  **15.232(d)(iv). It is similarly by and through the MHSAA’s relationship with the schools that it may sell tickets for** 

**19 tournaments featuring public school athletes. It follows**  **that the gate receipts the MHSAA receives for those events are received “by or through” the authority of the schools**  **as those words are used in MCL 15.232(d)(iv). The purpose of the FOIA is to allow citizens to fully participate in**  **the democratic process regarding the affairs of government and the official acts of those who represent them. MCL**  **15.231(2). The school districts have effectively delegated the responsibility for those official acts, as they pertain**  **to school athletics, to the MHSAA by repeatedly adopting its rules as their own.**  **Thus, both to follow the language of the FOIA and remain true to the purpose behind its enactment, I would**  **hold that the MHSAA is a public body that must comply with the disclosure requirements of the FOIA.**  **Elizabeth A. Weaver Marilyn Kelly** 

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