1

1
2
3
4
5
6
7

IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT
DU PAGE COUNTY, ILLINOIS
THE CHICAGO TRIBUNE,
Plaintiff,
-vsCOLLEGE OF DU PAGE and
COLLEGE OF DU PAGE FOUNDATION,
Defendants.

)
)
)
)
) No. 15 MR 580
)
)
)
)
)

8
9
10
11

REPORT OF PROCEEDINGS had at the

12

hearing of the above-entitled cause, before the

13

Honorable ROBERT G. GIBSON, Judge of said court,

14

recorded on the DuPage County Computer Based Digital

15

Recording System, DuPage County, Illinois, and

16

transcribed by CHERYL ANN BARONE, Certified Shorthand

17

Official Court Reporter, commencing on the 17th day of

18

March, 2016.

19
20
21
22
23
24

Cheryl Ann Barone, CSR #084-001503

 2

1
2
3
4
5
6
7
8
9
10
11

PRESENT:
MILLER SHAKMAN & BEEM, LLP, by
MS. ALEXANDRA K. BLOCK,
appeared on behalf of The Chicago Tribune,
Plaintiff;
RATHJE & WOODWARD LLC, by
MR. TIMOTHY D. ELLIOTT,
appeared on behalf of College DuPage of,
Defendant;
ROBERTS & CARUSO, by
MR. MATTHEW T. CARUSO,
appeared on behalf of College of DuPage
Foundation, Defendant.

12
13
14
15
16
17
18
19
20
21
22
23
24

Cheryl Ann Barone, CSR #084-001503

 3

1
2

THE CLERK:

College of DuPage.

3

THE COURT:

4

MR. ELLIOTT:

5
6

Good morning, Mr. Elliott.
Good morning.

Tim Elliott, on behalf of the College of
DuPage.

7

THE COURT:

8

MR. CARUSO:

9
10

Line 40, the Chicago Tribune versus

Good morning, Mr. Caruso.
Good morning, Your Honor.

Matthew Caruso, C-a-r-u-s-o, on behalf of the
College of DuPage Foundation.

11

THE COURT:

Good morning, Ms. Block.

12

MS. BLOCK:

And good morning, Your Honor.

13
14

Alexandra Block, on behalf of the Chicago
Tribune.

15

THE COURT:

Okay.

16

MR. ADAMS:

Good morning, Your Honor.

17
18
19

Michael Adams, also on behalf of the College
of DuPage.
THE COURT:

Good morning, Mr. Adams.

20

It comes on for decision.

21

The cause came on for oral argument

22
23
24

February 16, 2016.
The Court heard oral argument on
cross-motions for summary judgment; and then subsequent

Cheryl Ann Barone, CSR #084-001503

 4

1

to that, Ms. Block had sent a letter, on February 18,

2

2016, and Mr. Caruso sent a letter dated February 22,

3

2016.

4

I'm disregarding both of the letters.

The

5

motions have been extensively and skillfully briefed

6

and argued, and I will rely on the briefs and the

7

arguments of the parties.

8

First, the first question is whether the

9

College of DuPage Foundation is a public body, quote,

10

unquote, or a subsidiary, quote, unquote, of a public

11

body.

12

The College of DuPage Foundation is not a

13

public body, in the first instance.

Its organizers

14

incorporated 12/7/67, as a private, not-for-profit

15

corporation in Illinois, and it gave 501(c)(3) tax

16

exempt status.

17

It was not created pursuant to the Public

18

Community College Act or any statute authorizing the

19

creation of a public school, community college,

20

college, or university.

21

The Tribune argues that the College of DuPage

22

Foundation is a subsidiary of College of DuPage,

23

pursuant to the Freedom of Information Act, and that

24

under the Act, a subsidiary is considered a public body

Cheryl Ann Barone, CSR #084-001503

 5

1

under the Act.

2

All parties cite Hopf versus Topcorp, Inc., a

3

First District case.

4

case, the Rockford Newspapers case, involves the Open

5

Meetings Act, while the Hopf court case involves both

6

the Open Meetings Act and the Freedom of Information

7

Act.

8
9
10

The other important Illinois

The Appellate Court in Hopf notes that the
two acts contain a, quote, substantially identical
definition of a, quote, public body, unquote.

11

The Rockford court noted that none of the

12

cases cited by the plaintiff or the defendant relate

13

directly to the question of whether a private

14

corporation can be a subsidiary of a public entity.

15

The court held against Rockford Newspapers

16

stating, quote, We find defendant's arguments to be

17

convincing.

18

nature and the independence of its board of directors

19

and its employees from direct government control are

20

extremely significant factors.

21

NICADD's -- an acronym -- formal legal

The College of DuPage Foundation's formal

22

legal nature and the independence of its board of

23

directors favor it not being a subsidiary of College of

24

DuPage.

Cheryl Ann Barone, CSR #084-001503

 6

1

The other factor, the independence of its

2

employees from direct governmental control, cuts in

3

favor of the Tribune.

4

The College of DuPage Foundation has no

5

employees of its own, and its staff consists of College

6

of DuPage employees, who split time working on College

7

of DuPage matters and College of DuPage Foundation

8

matters.

9

Although the Rockford court also discussed

10

the governmental sources of the not-for-profit's

11

funding and the College of DuPage does provide funding

12

to the Foundation by way of facilities, equipment, and

13

employees, the Rockford court stated, quote, The amount

14

of or percentage of governmental funding of a private

15

entity should have no bearing on whether that entity is

16

characterized as a subsidiary for purposes of the Open

17

Meetings Act.

18

The Rockford court went on to discuss the

19

degree of governmental control and the nature of the

20

functions performed by the not-for-profit, finding them

21

potentially relevant factors but very weak in that

22

particular case.

23
24

The control factor is weak in this case, as
well.

The College of DuPage Foundation is formally a

Cheryl Ann Barone, CSR #084-001503

 7

1

private, not-for-profit corporation, with an

2

independent board of directors, whose voting members

3

consist of prominent private citizens, who are not

4

officers, directors, or employees of College of DuPage.

5

Those board members and officers have

6

fiduciary duties and can be legally accountable to the

7

organization, other directors, and officers, the

8

State's Attorney General's Office, the IRS, and

9

government -- other governmental agencies.

10

The College of DuPage does not own the

11

College of DuPage Foundation.

12

DuPage, the Foundation does not have the power to tax.

13

Unlike the College of

The Tribune has cited no cases in this

14

jurisdiction where a court has held that a private,

15

not-for-profit foundation is a subsidiary of a public

16

school, public community college, or a public college

17

or university.

18

This Court notes that both the Rockford court

19

and the Hopf court ruled against the plaintiff on the

20

subsidiary issue.

21

as argued by plaintiff, should be enacted by the

22

legislature, not decreed by this Court.

23
24

Any such construction of subsidiary,

Second, answering that question in the
negative leads to the second question, which is whether

Cheryl Ann Barone, CSR #084-001503

 8

1

the Foundation has a public record, quote, pertaining

2

to the transaction of public business regardless of

3

physical form or characteristics.

4

A public record that is not in the possession

5

of a public body, but is in the possession of a party

6

with whom the agency has contracted to perform a

7

governmental function, shall be considered a public

8

record of the public body.

9

In as much as the grand jury subpoena to the

10

College of DuPage has been produced, it can't be

11

seriously argued that a grand jury subpoena is not

12

public record to be produced, even when it is in the

13

possession of a party with whom the agency is

14

contracted to perform a governmental function on behalf

15

of the public body and that directly relates to the

16

governmental function.

17

So the important question is whether the

18

College of DuPage Foundation has contracted to perform

19

a governmental function on behalf of COD.

20
21
22

No Illinois caselaw has been cited on either
side.
The Tribune argues that authority from other

23

states, such as Ohio, Iowa, and Louisiana, support the

24

notion that financially supporting public educational

Cheryl Ann Barone, CSR #084-001503

 9

1
2

institutions is a governmental function.
The Tribune also persuasively argues that the

3

Foundation's function, as expressed in its bylaws, is

4

to support the educational mission of the college, to

5

assist the college in providing broader educational

6

opportunities for students, alumni, citizens, and

7

employers; to encourage third parties to bestow on the

8

college gifts, grants, or bequests of money or property

9

for the promotion of the college mission, values, and

10
11

educational opportunities.
It is undisputed that the Foundation is not

12

merely soliciting donations from individual citizens

13

and private corporations for the college educational

14

programs, but the Foundation also holds all private

15

donations to the College, even those the Foundation did

16

not solicit.

17

The College of DuPage has no separate

18

endowment, so all donations are routed through the

19

Foundation.

20

The Foundation does this through a Memorandum

21

of Understanding between the Board of Trustees,

22

originally executed June 22, 2009.

23
24

The College and the Foundation have no real
legal authority, by way of caselaw, to argue to the

Cheryl Ann Barone, CSR #084-001503

 10

1

contrary; and as skilled lawyers do, attempt to

2

distinguish the factual circumstances and the wording

3

of the applicable statutes in the out-of-state cases.

4

The West Virginia case cited in the

5

Foundation's favor was a holding that the Foundation

6

was not a public body, under West Virginia law; but

7

today, this Court is similarly holding that the County

8

of DuPage Foundation -- College of DuPage Foundation,

9

excuse me, is not a public body, under Illinois law, in

10

rejecting the Tribune's first line of attack.

11

West Virginia apparently does not have a

12

Freedom of Information Act provision, akin to Illinois'

13

provision, relative to contracting with a public body,

14

as nothing was delineated in the decision suggesting

15

otherwise.

16

The Court finds that while the Foundation is

17

not a public body, that the federal grand jury subpoena

18

is a public record of the Foundation, obtained under

19

contract with a public body, to perform a governmental

20

function on behalf of the public body, and it directly

21

relates to the governmental function pursuant to 5 ILCS

22

140/7(2).

23
24

Given the foregoing decision, there is no
need to address the Tribune's third assertion that the

Cheryl Ann Barone, CSR #084-001503

 11

1

federal grand jury subpoena is a public record of the

2

College of DuPage in the first instance, independent of

3

the Foundation, due to the College's alleged handling

4

of the subpoena.

5

Parenthetically, the danger that the

6

Foundation and other similarly situated entities in

7

other states have cited is the allegedly harmful affect

8

that disclosure of private donors would have on college

9

fundraising and the privacy issues relating to

10
11

individual donors who wish to remain anonymous.
This Court notes that Section 7 of the

12

Illinois Freedom of Information Act contains expansive

13

exemptions to disclosure, which may well protect any

14

such donor records.

15

Consequently, summary judgment shall enter in

16

favor of the Chicago Tribune and against the

17

defendants, College of DuPage Foundation and the

18

College of DuPage.

19
20
21
22
23
24

So that leaves the issue of attorney's fees.
MS. BLOCK:

Yes, Your Honor.

Could we have until next Friday, the 25th, to
present the petition for attorney's fees?
THE COURT:

Yes, and then we will give time for

response and even reply, if you want to reserve reply

Cheryl Ann Barone, CSR #084-001503

 12

1

time.

2

How much time --

3

I know you haven't seen the petition, so you

4

are somewhat at a loss as to exactly how much time

5

you'll need; but what would you suggest as timeframe?

6

MR. CARUSO:

Well, I'd ask for 28 days because I

7

have a client that meets -- it's like once a month, the

8

executive committee.

9

THE COURT:

10

MR. CARUSO:

That's fine.
And may I ask that the file remain

11

sealed, so I can consult with my client whether they

12

want to appeal, until such time --

13
14
15
16
17

THE COURT:

I think it's reasonable, under the

circumstances.
MS. BLOCK:

Your Honor, the sealing order that you

entered in -Well, first, let me preface it by saying, I

18

would object to that.

19

THE COURT:

Yes.

20

MS. BLOCK:

The sealing order that Your Honor

21

entered in July 2015, specifically stated that upon

22

judgment in the Tribune's favor, it would dissolve; and

23

I note that under Section 2-1203 of the Illinois Code

24

of Civil Procedure, staying enforcement of a ruling on

Cheryl Ann Barone, CSR #084-001503

 13

1

the request for declaratory judgment or injunction,

2

requires a separate motion with --

3

THE COURT:

But they can't be --

4

MS. BLOCK:

-- good cause stated.

5

THE COURT:

-- expected to have had that here,

6

when this decision is just being announced this

7

morning.

8
9

So I think it's reasonable to -- during the
appeal period or post -- post-trial or post-hearing

10

period for motions, I think it is reasonable to see if

11

the defendants are going to file any motions, file

12

appeal, file a motion to stay pending appeal, or

13

anything of that nature because once the -- once the

14

bell's rung, it can't be unrung here, relative to the

15

production of the document and the unsealing of the

16

file.

17

MS. BLOCK:

Well, I might suggest that those are

18

two separate issues.

19

THE COURT:

Uh-huh.

20

MS. BLOCK:

I understand why the Foundation would

21

want to postpone an order that they turn over the

22

documents; but at this point, the judgment -- you know,

23

summary judgment has -- has been entered in the

24

Tribune's favor.

Cheryl Ann Barone, CSR #084-001503

 14

1

There is no reason why the Tribune should be

2

prohibited from publishing information about that

3

result.

4
5

THE COURT:
published.

6
7
8
9

Well, the result, that can be

We're talking about -- I mean, this order
today is not going to be sealed.
MR. CARUSO:

Your Honor, her -- there's a problem

with her premise.

10

There was another court order that said,

11

shall remain sealed until further order of court,

12

because we had a problem with, what does "sealed" mean,

13

and then we had the deposition with medical information

14

filed in the court record.

15
16
17
18
19
20
21

I believe, we clarified that subsequent to
the order counsel mentioned so -THE COURT:

If the question is:

Is today's order

sealed?
No, today's order is not sealed.
MS. BLOCK:

As long as we're clarifying that

today's order and the result of the cross-motion --

22

THE COURT:

Correct.

23

MS. BLOCK:

-- on the cross-motion for summary

24

judgment is not sealed.

Cheryl Ann Barone, CSR #084-001503

 15

1

THE COURT:

2

event; correct?

3

MS. BLOCK:

4

MR. CARUSO:

5

MS. BLOCK:

6
7

You weren't asking for that, in any

I didn't think -Well -We've had differing interpretations of

what needs to be sealed, so I just wanted to clarify.
MR. CARUSO:

My understanding was the entire court

8

file was sealed, and I was asking that that continue

9

until we decide whether --

10

THE COURT:

Well, because of the nature of what's

11

in the court file, any prior orders relative to

12

sealing, during this 30-day period, will remain in

13

effect, but it won't -- it won't --

14

Certainly, the Court's not going to announce

15

a decision in open court and then say the order is

16

private.

That --

17

MR. CARUSO:

18

THE COURT:

19

I understand.
That doesn't make any sense.

So the order here today is not considered

20

sealed.

21

to the public to review.

22
23
24

It will be a matter of court record and open

MR. ELLIOTT:

Your Honor, may I chime in a moment,

on behalf of the College of DuPage?
THE COURT:

Yes.

Cheryl Ann Barone, CSR #084-001503

 16

1
2

MR. ELLIOTT:

As you know, we turned over the

records in our possession quite some time ago.

3

THE COURT:

4

MR. ELLIOTT:

Right.
And one of our arguments has been

5

that the only relief they are seeking and can obtain is

6

as against the Foundation.

7

The Tribune's arguments against the College

8

of DuPage was that we had physically had the document,

9

then handed it off, and you didn't reach that issue

10

today; and their other argument was that -- that, I

11

guess, I'd characterize almost as a veil-piercing

12

theory between the Foundation and the College of

13

DuPage; and I think, you rejected that argument today.

14

Is it appropriate for the summary judgment to

15

be entered against us because I don't think you are

16

entering relief against us, against the College of

17

DuPage?

18

I do understand that you are saying that you

19

believe there is a contract and that the College of

20

DuPage Foundation has an obligation to produce it,

21

under that contract.

22
23
24

That's not necessarily ruling against the
College of DuPage.
THE COURT:

Ms. Block, do you want to respond to

Cheryl Ann Barone, CSR #084-001503

 17

1
2
3

that?
MS. BLOCK:

I -- I disagree to that -- disagree

with that.

4

The contract theory is that there was a

5

public document, that's a public document of the

6

College of DuPage, that the Foundation now has,

7

pursuant to a contract with the College of DuPage.

8

It's a joint liability theory.

9

I believe you correctly stated that judgment

10
11

would enter against both defendants on that theory.
THE COURT:

Initially, in looking at this,

12

analyzed what you're stating, Mr. Elliott, and

13

certainly, if there's post-trial motions or appeals,

14

this may well be a part of that; but I agree with

15

Ms. Block that even though your recitation of what the

16

order is going to be today and what the ruling was and

17

the decision announced from the bench is correct, when

18

it's under that theory of the contractual relationship

19

with a public body, the order would be against both

20

entities.

21

Now, as a practical matter in the first

22

instance, the Foundation is in the -- is in

23

possession -- or their attorneys in possession of the

24

document and -- but if, for whatever reason, there was

Cheryl Ann Barone, CSR #084-001503

 18

1

a failure to turn over, the public body, the College of

2

DuPage, who's entered into a contract with this other

3

entity, the College of DuPage Foundation, would have an

4

obligation.

5

My reading of the statute and the purpose of

6

the statute would be the public body would also have

7

the obligation to produce that -- that document, as

8

well; and if it wasn't physically in their possession,

9

they would have to ask the party that they contracted

10

with to produce it and/or turn it over to the public

11

body, for production.

12

So that -- that's what the order's going to

13

be.

It will be summary judgment as to both parties;

14

but your point is noted that as to the three potential

15

arguments, the first is ruled in favor of the -- of the

16

defendants, but ultimately that doesn't carry the day

17

because the second's ruled in favor of the -- of the

18

Tribune, and then the third becomes moot because of the

19

decision as to the second.

20

So --

21

MS. BLOCK:

Your Honor, may I just clarify that

22

there -- there will be a date, whether it's 28 days --

23

Mr. Caruso wants to consult with his client -- for the

24

Foundation to determine whether to turn over the

Cheryl Ann Barone, CSR #084-001503

 19

1

document or take an appeal?

2
3

I mean, we need some date by which they
will --

4

THE COURT:

Right.

5

MS. BLOCK:

-- you know, decide this and release

6

the document, if they're not going to appeal.

7
8
9

THE COURT:

Well, let's -- 30 days would take us

to -Well, it would take us to a weekend, but

10

essentially to April 18th, when we get through the

11

weekend; so I would suggest that we set a date either

12

later that week or the following week.

13

Now, I'm going to be moving to 2009; but

14

given the nature of this, I'm going to need to have

15

this heard by -- rather than have a new -- a new

16

judge -- Judge Rohm is going to be in this courtroom,

17

but rather than have him start from scratch, it doesn't

18

make any sense on a fee petition and any post --

19

post-judgment motions or stays pending appeal, that he

20

try to -- try to ascertain all of that.

21
22
23
24

So -- so I will hear the -- hear anything -any follow up to today's decision.
MS. BLOCK:

Your Honor, I will be available

Tuesday, April 19th, to set this over, if that works?

Cheryl Ann Barone, CSR #084-001503

 20

1
2

MR. ELLIOTT:

Wisconsin, those two weeks.

3

THE COURT:

4

MR. ELLIOTT:

5

though.

Okay.

THE COURT:

7

MR. ELLIOTT:

9

All right.
-- because this is principally the

Foundation's issue, so -THE COURT:

Okay.

10

MR. ELLIOTT:

11

MR. CARUSO:

12

THE COURT:

13

I don't see any reason to delay it,

Mr. Adams, from our office, can attend --

6

8

I've got a two-week jury trial in

I don't see a reason to delay it.
I believe that's okay.
All right.

April 19th, then at -- at

9 o'clock, and it will be heard in 2009.

14

MS. BLOCK:

Thank you.

15

THE COURT:

All right.

16

MR. CARUSO:

17

MR. ELLIOTT:

You're welcome.

Thank you, Your Honor.
Thank you, Your Honor.

18

(Whereupon the hearing in the

19

above-entitled matter was continued to

20

April 19, 2016.)

21
22
23
24

Cheryl Ann Barone, CSR #084-001503

 21

1

IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT

2

DU PAGE COUNTY, ILLINOIS

3
4
5

I, CHERYL ANN BARONE, hereby certify that I

6

am a Certified Shorthand Official Court Reporter

7

assigned to transcribe the computer based digital

8

recording of proceedings had of the above-entitled

9

cause, Administrative Order No. 99-12, and Local Rule

10

1.01(d).

I further certify that the foregoing,

11

consisting of Pages 1 to 21, inclusive, is a true and

12

accurate transcript completed to the best of my

13

ability, based upon the quality of the audio recording.

14
15
16
17
18
19
20
21
22

Official Court Reporter
Eighteenth Judicial Circuit of Illinois
DuPage County

23
24

Cheryl Ann Barone, CSR #084-001503