KENTUCKY — It’s a question both sides think they know the answer to and one both sides hope the state’s supreme court will take up soon: Are the names of individual donors to public university foundations public under the state open records law?
Jon Fleischaker, an attorney representing Louisville’s Courier-Journal newspaper, says yes. Michael Risley, an attorney for the University of Louisville Foundation, says no.
After a ruling in May in favor of the foundation, the newspaper has appealed to the state supreme court.
The two sides also disagree about the importance of gaining access to individual donors’ names.
”It becomes important because donors donate for a lot of different reasons,” Fleischaker said. ”And many donors, or at least some donors, especially big donors, are donating for their personal reasons or maybe even to influence how the university acts or behaves.”
But the foundation argues that the newspaper does not need private donors’ names to learn how their money is being spent.
”[T]he Newspaper argues that disclosure of donors’ identities should be ordered because of the potential for conditions being placed upon their donations,” states a court filing from the foundation. ”The flaw in the Newspaper’s argument is that the University of Louisville is a public entity, and the Foundation has now been declared to be a public agency.
”Thus, the Newspaper already has access to how the Foundation and the University spend their funds and has received information concerning every expenditure made by the Foundation since it was declared to be a public agency.”
The foundation also opposes public disclosure of donors’ names because it says donors may not continue to contribute to the university and its foundation if their names are revealed.
”Generally donors like to keep that information private,” Risley said. ”We believe that allowing those names to remain private helps facilitate receiving donations and support for the foundation.”
Risley said the foundation has heard from donors that making their names and donations public could jeopardize future donations.
But Fleischaker dismisses the claim that publicizing donors’ names will hurt the foundation.
”There’s no proof whatsoever that is will stop anybody from giving,” Fleischaker said. ”And the next question is if it does stop me from giving, is that good or bad? If I’m giving to influence something I don’t want anybody to know about, maybe it’s good that I don’t give.”
In fact, donors’ names are already published by the university, Fleischaker said.
”The university has lists of people who give. How can it be private information if they’re publishing their names?” he asked.
The University of Louisville Foundation and Courier-Journal have been locked in a court battle since 2001, when the Courier-Journal filed a lawsuit in hopes of forcing the foundation to release the names of donors to the McConnell Center for Political Leadership, which brings political speakers to the campus.
Both sides have seen victories in court, with the most recent ruling going in favor of the foundation.
In May, the state’s court of appeals ruled that private donors’ names did not have to be released, saying the disclosure of the names would be an undue invasion of privacy.
”While the newspaper’s motivation may be mere curiosity, we perceive a possibly significant intrusion on the donors’ privacy should these records be held subject to disclosure,” the court’s opinion read. ”As this court has noted before … if this information is open to one it is open to all, inviting unwanted attention and unwarranted intrusion.”
The Courier-Journal filed a motion for discretionary review with the state’s supreme court on June 9 in hopes of having the May 20 decision overturned. The foundation filed its reply brief July 11 and the parties are now waiting on the court to decide if it will hear the appeal.
The newspaper initially won its battle to gain access to donors’ names when, in September 2003, a circuit court judge ordered the foundation to release more than 45,000 donors’ names.
Despite the continuing fight over access to individual donors’ names, other aspects of the Courier-Journal‘s lawsuit have long been decided.
In July 2002, a district court ruled that the foundation was in fact a public entity and must comply with Kentucky’s open-records law. The foundation twice appealed this decision, with the court of appeals upholding the district court’s ruling and the supreme court refusing to hear the appeal.
In November 2004, a circuit court judge ruled that the foundation had to release information about corporate and charitable foundation donations, despite claims that the 75 groups had requested anonymity.
IOWA — For four years, Arlen Nichols and Mark Gannon fought for financial records from the Iowa State University Foundation, the fundraising arm of the university.
That battle all but came to an end in June, as a Story County District Court judge ruled in favor of the pair and in line with a February state supreme court decision that said the foundation performs a government function through a contract with ISU and therefore its records are public.
The district court also awarded Nichols and Gannon $25,000 in attorney fees, although the court will decide at a later date the final amount of fees the pair will receive, as more may be awarded if the foundation fights the release of individual records. The two men had asked for fees in excess of $65,000.
Dan Saftig, president of the foundation, said in a written statement that the court’s ruling did not surprise the foundation and it will comply with requests for records it sees as open records.
”As we have since the supreme court ruling, we will continue to comply with all requests for records we believe we are obligated to disclose,” Saftig said. ”We strive to remain accountable to the people of Iowa who have a vested interest in seeing this university prosper. As we go about the business of securing and managing private gift support for ISU, we will continue to carefully balance the public’s right to information with the privacy of donors.”
In November 2001 Nichols and Gannon requested financial records from the foundation dating to 1990, including ”correspondence, memoranda, meeting minutes, directors minutes, reports and the like explanatory of such transactions,” according to court records.
After at least two more mostly unsuccessful attempts — the foundation did provide three IRS Form 990s in June 2002 — to gain access to foundation records between November 2001 and May 2002, the pair filed its lawsuit in August 2002, according to court records.
The pair’s case was dismissed in September 2003 when the trial court judge found that the foundation was not a government body and therefore ”records pertaining to private funds donated directly to the Foundation are not a matter of public record until they are dispersed to Iowa State University.”
On appeal, the state’s supreme court ruled that the foundation was performing a government function and therefore its records were open. The court remanded the case back to Story County District Court to be reheard.
Cases:
- Univ. of Louisville Found., Inc. v. Cape Publ’ns Inc, Nos. 2003-CA-002040-MR and 2003-CA-002049-MR, 2005 WL 1186219 (Ky. App.May 20, 2005) (unpublished/noncitable).
- Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa 2005).