Public university foundation cannot conceal donor records, courts rule

KENTUCKY — The University of Louisville foundations’records were opened by the state courts for good in December 2004, joining aseries of other public universities who were recently dealt similarrulings.

The Louisville Courier-Journal sued the University ofLouisville Foundation, the school’s fundraising arm, in May 2003 seekingthe names of its 45,000 donors. The foundation refused to release the names, sothe Courier-Journal sued, firmly believing the foundation was a publicentity.

A state circuit judge ruled in favor of the newspaper, and said theuniversity cannot keep secret the names of donors, except for the 62 whospecifically requested anonymity. In November 2003, the foundation appealed onthe grounds that university officials believed the foundation was a privateentity, and was therefore not subject to open-records laws.

A three-judgepanel of the Court of Appeals modified the original ruling in November 2003 andsaid that the state courts would require a case-by-case review of the“personal privacy” claims of donors, both individual andcorporate.

To determine the issue of whether or not the foundation is aprivate or public agency, the Courier-Journal filed a motion with theKentucky Supreme Court. The supreme court refused to hear the case, and sent thecase back to the lower court to determine the foundation’sposition.

The lower court ordered that the records and identities ofcorporate donors are subject to public disclosure. The ruling was issued inNovember, and would require the foundation to release the names of the 75corporate donors, who the foundation said wanted to remain anonymous

“Ithought it was great,” said Jon Fleischaker, attorney for theCourier-Journal. “You never expect to win; what you do is hope towin and think you should win. I thought it was the right ruling. I thought ifthe court considered it, it was really the right decision, and the only decisionthat should come out of it.”

In the written court opinion, Judge SteveMershon said that the public’s right to know outweighs the personalprivacy needs of corporate and private foundations.

“It’s got alot of ramifications here in Kentucky, because I think it’s a big steptoward stopping the use of foundations to hide the actions of publicagencies,” Fleischaker said.