Open and shut

With frequent tuition hikes and steep taxes comes a desire from thoseconcerned with the use of tax dollars to know how money is allocated at publicuniversities across the country. Releasing documents that often detail or helpdecipher corruption, scandal and other questionable practices by universityfoundations–the fundraising arms of universities–is the only way tomake foundations transparent, experts said. Otherwise, universities and theirfoundations would operate with very little public oversight.

Although winningthis battle can prove difficult, rulings in two major cases and the passage oftwo pieces of legislation introduced in the past year all resulted in moreopenness at public universities. The four situations, involving the Iowa StateUniversity Foundation, the University of Louisville Foundation, the Universityof Colorado Foundation and the University of Kansas, present a trend towardmaking university foundations less secretive regarding the allocation of theirmoney. However, despite recent freedom of information victories, there have beenseveral setbacks as well, demonstrating that fighting for open records is anever-ending battle.

Foundations, which receive public money andcontributions from private donors to help fund academic and athletic programs,differ across the country. Scott Reinardy, a Missouri School of Journalismdoctoral student, and his professor, Charles Davis, examined the open-recordsstatus of public university foundations. Some foundations support themselvesfinancially, as they pay for office space on campus, do not employ state workersand make decisions independent from the university, according to Reinardy andDavis’ article, which will be published in the Journal of Law andEducation.

Most foundations, however, provide the university with moneythat can be used to supplement the incomes of university presidents and athleticcoaches. “The foundations oftentimes relieve the university of additionalor unforeseen expenses,” according to the article. This typically makesthe foundations more susceptible to public scrutiny, because taxpayers want toknow if their money was used for a useful purpose.

In the Iowa State case,the state supreme court ruled in February that due to its contract with IowaState University, the foundation was performing a government function, and wastherefore a public entity, subject to the Iowa Freedom of Information Act. Theact requires public disclosure of government documents (see Iowa State University Foundation is public, Iowa’s highest state court rules).

ANovember 2004 decision in Kentucky was similar to the Iowa Supreme Courtdecision, when the circuit court ordered that records and identities ofcorporate donors to the University of Louisville must be subject to publicdisclosure. The court said that the public’s right to know outweighs thepersonal privacy needs of corporate and private organizations who donated to theschool (see Public university foundation cannot conceal donor records, courts rule).

The University of Colorado Foundation was alsounder fire this year when it refused to release documents to the BoulderDaily Camera and, allegedly, to a grand jury investigating a highlypublicized football scandal. In April 2005, Gov. Bill Owens signed a bill intolaw that will open public university foundation records. While the measure wouldgrant access to more foundation records, fees would be levied to personsrequesting records in some cases (see Colorado passes law to battle secrecy, scandal in public university foundation ).

The other piece oflegislation, a Kansas bill referred to as the Lew Perkins Provision, evolved outof a case in 2004, when the University of Kansas refused to release salary andcompensation information about Athletic Director Lew Perkins. During the sametime as the court case, the state legislature introduced a bill that would makepublic the total compensation packages of state officials. The trial court judgeordered the University of Kansas to release Perkins’ salary information,and in April, the provision was signed into law by Gov. Kathleen Sebeliu.

The trend that these four situations follow is absolutely evidentnationwide, said Charles Davis, especially in Iowa, where 75-year-old ArlenNichols fought for four years in an attempt to open Iowa StateFoundation’s records to the public.

“The Iowa State ruling isprobably the most resounding victory in that direction,” said Davis,associate professor and director of the Freedom of Information Center at theMissouri School of Journalism. “That’s a really strong decision andit’s the way that the pendulum has been swinging for quite sometime.”

Although no one can be sure that this case will set any sort ofstandard for other states, Kathleen Richardson, executive secretary for the IowaFreedom of Information Council, said that in the ruling for the Iowa case,rulings from other states were used as persuasive precedent, noting that thetrend began to reverse toward openness before the Iowa case arose.

“Asmore of these cases crop up around the country, other states will be looking toIowa and looking to the decision that the court made here, which, in itslanguage, was a ringing endorsement for the importance of openness ingovernment, and that might have an impact,” Richardson said.

JonFleischaker, the attorney for the Louisville Courier-Journal, said thecountry’s political climate may seem to be heading toward more opennessafter the results of these four situations. However, he said there are notenough cases to constitute a trend, especially because so many people adamantlyfight against providing access to public records every day.

“I do thinkwhat’s happened is that people–the public–has become much moreaware of the use of foundations by educational institutions to hide whatthey’re doing, and I think that has caused a reaction and move toward moreopenness,” Fleischaker said.

The Lew Perkins Provision is a majorvictory for the press and public, said Doug Anstaett, executive director of theKansas Press Association. If Lew Perkins or any other public official receivessupplemental income, the public needs to know about it so it can determinewhether those payments are appropriate and whether they allow someone to exertinfluence over the policy decisions made by that official, Anstaett said.

Davis agreed.

“I think if someone affirmatively legislates opennessI think that would have a tremendous effect,” Davis said.“Typically, when someone introduces a piece of legislation like that, itdoesn’t take long before other people start picking it up. Those ideasmove pretty quickly, so that’s very exciting.”


University foundations generally justify keepingrecords closed by saying they are committed to maintaining the privacy ofdonors. Foundations are not public entities, many foundation officials insist,and are entirely separate from the universities themselves. But experts suspectthat keeping records secret makes foundation workers’ jobs easier for afew reasons.

“Incident after incident on campus after campusdemonstrate that university foundations can fail miserably in monitoringthemselves,” Reinardy and Davis wrote. “Hefty donations to privatenon-profit foundations provide a university with multi-million dollar academicand athletic facilities without the required approval of the taxpayers. Thefoundations provide financial bonuses to top administrators who oftentimes serveon the foundations. Meanwhile, many foundations continue to use university-paidemployees and accept state and local monies tooperate.”

Foundations want to keep donor records secret, becausethey fear if donor information is released, those donors will no longer want tocontribute money to the university, making the foundation employees’ jobsmuch more difficult. The dissertation refutes the foundations’ claim thatpublic exposure of donors would diminish their financial resources, saying thatthis is “unproven at best, and at worst an assumption used to justifyneedless secrecy.”

“It’s a very competitive environmentfor non-profit organizations that are trying to raise money, and I thinkthey’re concerned that proprietary information–their fundraisingpractices, their list of potential donors and their list of currentdonors–will get out,” Richardson said.

Some requests foranonymity are a genuine concern from the donor, Anstaett said, but instancesoften occur in which the donors want their money to help “buy theminfluence over an organization, educational institution or charitableorganization.” If donors remain anonymous, then it becomes more difficultto link the foundation’s practices with the donor’s politics.

Aconfluence of several other factors has helped cause the trend toward openness,Davis said. For many years the foundations were able to win the argument thatthey were not performing a public function. But as they have become increasinglyinvolved in padding coaches’ salaries and helping pay presidents and otheradministrators, the foundations have a more difficult argument tomake.

“Another thing is that these foundations have taken anincreasingly visible and important role in the lives of universities,”Davis said. “There are bigger and bigger and bigger dollar figuresinvolved certainly, and they are quite often swept up in controversy [over howdonated money is spent], fraud and corruption. Therefore, I think the way inwhich the courts are looking at these things is probably in the overall contextof the fact that these things are far from perfect, and probably deserve somescrutiny.”

Courts, legislatures and the public have come to trustfoundations less, favoring openness and the disclosure of records that may beincriminating.

“I think what’s happened is as you get people whothink they’re in charge, and who think it’s their decision, and theyare trying to do their thing in a way to avoid public accountability,”Fleischaker said. “I know that’s what was happening at theUniversity of Louisville. They didn’t want people to know how they spenttheir money. Nor did they want people to see how they raised theirmoney.”


Some experts think theattacks of Sept. 11, 2001, brought about increased security in all governmentagencies, making it much more difficult to gain access to records everywhere.Experts said many government agencies, such as public universities, used Sept.11 as an excuse to keep records sealed–including records of universityfoundations.

“I think freedom of information problems are growing,particularly because of the aftereffects of Sept. 11 and the secrecy that hasspawned across America,” Anstaett said. “Public officials often lineup behind efforts to open up government, only to work behind the scenes to keepcertain information from seeing the light of day. As long as the public believesthe media is to be feared more than our government, we’re going tocontinue to have a huge challenge.”

In the 1990s, many media groupsheld statewide audits by forming teams–mostly comprising reporters actingas average citizens–to request access to records from public agencies,such as schools. When reporters did not obtain access to many documents,legislatures began to take action. But after Sept. 11, paranoia over opennessrose because of concern over national security, information security andinformation theft, Richardson said.

“When I first starting gettinginvolved in [freedom of information law], I was told it was like trenchwarfare–forward and then back,” said Richardson, who joined the IowaFreedom of Information Council eight years ago. “I think that it’s astruggle. Plus, on the state level, it’s been difficult because theeconomy hasn’t been good, so freedom of information issues haven’tbeen a priority in the legislatures.”

In some respects, the terroristshave won by making Americans fearful, suspicious and less willing to fight foropenness of public information, Anstaett said. “All of this secrecy iscontrary to the bedrock ideals of our nation.”

Other experts believeSept. 11, a commonly cited reason for secrecy, was simply a convenient excusefor legislatures and courts to keep public documents closed.

“I thinkmost of the secrecy that’s been ushered in at the state level in the wakeof Sept. 11 was a long time in coming,” Davis said. “Sept. 11 sortof short-circuits debate. You know, if you throw that up, then it becomes aboutmotherhood and apple pie. It’s not about secrecy, which is what it’sall about. If it has something directly to do with homeland security, sure, butthere’s not much of this stuff that does.

“So much of thisstuff, if you peel away all the arguments, is wow, we would be so much moreefficient if we didn’t have to share it with you pesky reporters andcitizens.”

Fleischaker agreed that secrecy in government alwaysexisted. While homeland security issues did drive tendencies toward closedgovernment, that did not make government officials less willing to openfoundations, he said.

“We live in a pretty conservative society at thispoint and there are a lot of people out there who would just as soon sayit’s none of our business,” Fleischaker said.


Despite the trend toward more freedom of information in Iowa,Colorado, Kansas and Kentucky, some states have taken a step in the oppositedirection. In Georgia, a state once known for its openness, a bill passed inApril that allows university foundations to keep donor recordsprivate.

It’s a mess down there [in Georgia],”Davis said. “It seems like there’s an [open-records law] exemption aday popping up. The real tragedy is that Georgia’s been really good overthe years with access. It has a pretty decent open-records law, andthey’re just going after every last bit of it.”

“A newlyelected Republican legislature seems bent on corporate interests. I hate to makeit sound so political, but it’s really political.”

This is not,however, simply a partisan issue, Davis continued, as many Republicans andDemocrats have made transparency in government a high priority.

The Georgiabill will infringe on the public’s right to know about state institutions,said Sam Jones, president of the Georgia Press Association and publisher of theNewton Times-Herald.

“This is money that’s going to apublic institution, and I think the public has a right to know who is makingthose contributions,” Jones said. “Some people make contributions,then do business with the university, and the public certainly has a right toknow that.”

There have been more efforts in this session to closegovernment records and government proceedings than at any time Jones canremember in his 30 years working for Georgia newspapers.

“We hadseveral pieces of [anti-open records] legislation that were proposed, andunfortunately this foundation one was one that was approved,” he said.“We had some others that I thought were even more ill-conceived.

Jones thinks the uncharacteristic legislation in Georgia is the resultof an inexperienced legislature.

“I’m hoping that we’ve gotsome newcomers here who are getting their feet wet, and that there’s alearning curve, and that in the future there will be fewer and fewer attempts toclose government proceedings and records. I very much believe in governmentbeing done in the sunshine. We saw several pieces of legislation this sessionthat was counteractive to that belief.”

On another front, Iowa StateUniversity, the University of Northern Iowa and the University of Iowa haverefused to release information about employee salaries and tenure, despite theIowa Supreme Court ruling that foundations’ records are subject to publicdisclosure. The salaries of the employees at all three universities are fundedwith taxpayers’ money.


With the trend of opennessbeing punctuated with legislation for more secrecy, a lack of obedience byuniversities and increased national security, the future of government opennessis questionable. But rulings and legislation passed this year have expertsoptimistic.

“I think it’s going to get better,” Davis said.“Because for 20 years, we’ve sort of assumed that we’d haveaccess to a lot of records. And assumptions are very dangerous, because theymake you comfortable. And we got sort of comfortable and lazy. Now, certainlythe journalistic interest in America and a lot of the activists in America and,I think, more and more citizens in America, are getting very wary of the levelof secrecy, and so I think the pendulum is going to start swingingmore.”

But simply because some courts and legislatures have made accessto records a top priority, private citizens and journalists still fight to gainaccess to open records–and often hit majorroadblocks.

“It’s a roller coaster,” Richardson said.“You have some progress and some victories, and then there will be a waveof increased secrecy.”

America still sees an alarming trend by publicofficials to overstep their authority through heavy-handed oversight andoutright censorship of student publications, Anstaett said. Therefore,journalists and free press advocates should look to the future with verycautious optimism.

“You have to fight these things every day,”Fleischaker said. “In 10 years, some things will be better, and somethings won’t be. But there’s one constant, and the constant is thatyou have to deal with it every day and fight for it every day.”