Open and shut
Open-records advocates are celebrating court rulings and legislation mandating transparency in university foundations -- but warn that the current climate is not an invitation to quit fighting for openness
With frequent tuition hikes and steep taxes comes a desire from those concerned with the use of tax dollars to know how money is allocated at public universities across the country. Releasing documents that often detail or help decipher corruption, scandal and other questionable practices by university foundations--the fundraising arms of universities--is the only way to make foundations transparent, experts said. Otherwise, universities and their foundations would operate with very little public oversight.
Although winning this battle can prove difficult, rulings in two major cases and the passage of two pieces of legislation introduced in the past year all resulted in more openness at public universities. The four situations, involving the Iowa State University Foundation, the University of Louisville Foundation, the University of Colorado Foundation and the University of Kansas, present a trend toward making university foundations less secretive regarding the allocation of their money. However, despite recent freedom of information victories, there have been several setbacks as well, demonstrating that fighting for open records is a never-ending battle.
Foundations, which receive public money and contributions from private donors to help fund academic and athletic programs, differ across the country. Scott Reinardy, a Missouri School of Journalism doctoral student, and his professor, Charles Davis, examined the open-records status of public university foundations. Some foundations support themselves financially, as they pay for office space on campus, do not employ state workers and make decisions independent from the university, according to Reinardy and Davis’ article, which will be published in the Journal of Law and Education.
Most foundations, however, provide the university with money that can be used to supplement the incomes of university presidents and athletic coaches. “The foundations oftentimes relieve the university of additional or unforeseen expenses,” according to the article. This typically makes the foundations more susceptible to public scrutiny, because taxpayers want to know 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 Iowa State University, the foundation was performing a government function, and was therefore a public entity, subject to the Iowa Freedom of Information Act. The act requires public disclosure of government documents (see Iowa State University Foundation is public, Iowa's highest state court rules).
A November 2004 decision in Kentucky was similar to the Iowa Supreme Court decision, when the circuit court ordered that records and identities of corporate donors to the University of Louisville must be subject to public disclosure. The court said that the public’s right to know outweighs the personal privacy needs of corporate and private organizations who donated to the school (see Public university foundation cannot conceal donor records, courts rule).
The University of Colorado Foundation was also under fire this year when it refused to release documents to the Boulder Daily Camera and, allegedly, to a grand jury investigating a highly publicized football scandal. In April 2005, Gov. Bill Owens signed a bill into law that will open public university foundation records. While the measure would grant access to more foundation records, fees would be levied to persons requesting records in some cases (see Colorado passes law to battle secrecy, scandal in public university foundation ).
The other piece of legislation, a Kansas bill referred to as the Lew Perkins Provision, evolved out of a case in 2004, when the University of Kansas refused to release salary and compensation information about Athletic Director Lew Perkins. During the same time as the court case, the state legislature introduced a bill that would make public the total compensation packages of state officials. The trial court judge ordered 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 evident nationwide, said Charles Davis, especially in Iowa, where 75-year-old Arlen Nichols fought for four years in an attempt to open Iowa State Foundation’s records to the public.
“The Iowa State ruling is probably the most resounding victory in that direction,” said Davis, associate professor and director of the Freedom of Information Center at the Missouri School of Journalism. “That’s a really strong decision and it’s the way that the pendulum has been swinging for quite some time.”
Although no one can be sure that this case will set any sort of standard for other states, Kathleen Richardson, executive secretary for the Iowa Freedom of Information Council, said that in the ruling for the Iowa case, rulings from other states were used as persuasive precedent, noting that the trend began to reverse toward openness before the Iowa case arose.
“As more of these cases crop up around the country, other states will be looking to Iowa and looking to the decision that the court made here, which, in its language, was a ringing endorsement for the importance of openness in government, and that might have an impact,” Richardson said.
Jon Fleischaker, the attorney for the Louisville Courier-Journal, said the country’s political climate may seem to be heading toward more openness after the results of these four situations. However, he said there are not enough cases to constitute a trend, especially because so many people adamantly fight against providing access to public records every day.
“I do think what’s happened is that people--the public--has become much more aware of the use of foundations by educational institutions to hide what they’re doing, and I think that has caused a reaction and move toward more openness,” Fleischaker said.
The Lew Perkins Provision is a major victory for the press and public, said Doug Anstaett, executive director of the Kansas Press Association. If Lew Perkins or any other public official receives supplemental income, the public needs to know about it so it can determine whether those payments are appropriate and whether they allow someone to exert influence over the policy decisions made by that official, Anstaett said.
“I think if someone affirmatively legislates openness I think that would have a tremendous effect,” Davis said. “Typically, when someone introduces a piece of legislation like that, it doesn’t take long before other people start picking it up. Those ideas move pretty quickly, so that’s very exciting.”
WHY THE PENDULUM IS SWINGING
University foundations generally justify keeping records closed by saying they are committed to maintaining the privacy of donors. Foundations are not public entities, many foundation officials insist, and are entirely separate from the universities themselves. But experts suspect that keeping records secret makes foundation workers’ jobs easier for a few reasons.
“Incident after incident on campus after campus demonstrate that university foundations can fail miserably in monitoring themselves,” Reinardy and Davis wrote. “Hefty donations to private non-profit foundations provide a university with multi-million dollar academic and athletic facilities without the required approval of the taxpayers. The foundations provide financial bonuses to top administrators who oftentimes serve on the foundations. Meanwhile, many foundations continue to use university-paid employees and accept state and local monies to operate.”
Foundations want to keep donor records secret, because they fear if donor information is released, those donors will no longer want to contribute money to the university, making the foundation employees’ jobs much more difficult. The dissertation refutes the foundations’ claim that public exposure of donors would diminish their financial resources, saying that this is “unproven at best, and at worst an assumption used to justify needless secrecy.”
“It’s a very competitive environment for non-profit organizations that are trying to raise money, and I think they’re concerned that proprietary information--their fundraising practices, their list of potential donors and their list of current donors--will get out,” Richardson said.
Some requests for anonymity are a genuine concern from the donor, Anstaett said, but instances often occur in which the donors want their money to help “buy them influence over an organization, educational institution or charitable organization.” If donors remain anonymous, then it becomes more difficult to link the foundation’s practices with the donor’s politics.
A confluence of several other factors has helped cause the trend toward openness, Davis said. For many years the foundations were able to win the argument that they were not performing a public function. But as they have become increasingly involved in padding coaches’ salaries and helping pay presidents and other administrators, the foundations have a more difficult argument to make.
“Another thing is that these foundations have taken an increasingly visible and important role in the lives of universities,” Davis said. “There are bigger and bigger and bigger dollar figures involved certainly, and they are quite often swept up in controversy [over how donated money is spent], fraud and corruption. Therefore, I think the way in which the courts are looking at these things is probably in the overall context of the fact that these things are far from perfect, and probably deserve some scrutiny.”
Courts, legislatures and the public have come to trust foundations less, favoring openness and the disclosure of records that may be incriminating.
“I think what’s happened is as you get people who think they’re in charge, and who think it’s their decision, and they are trying to do their thing in a way to avoid public accountability,” Fleischaker said. “I know that’s what was happening at the University of Louisville. They didn’t want people to know how they spent their money. Nor did they want people to see how they raised their money.”
OPENNESS AFTER SEPTEMBER 11
Some experts think the attacks of Sept. 11, 2001, brought about increased security in all government agencies, 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 university foundations.
“I think freedom of information problems are growing, particularly because of the aftereffects of Sept. 11 and the secrecy that has spawned across America,” Anstaett said. “Public officials often line up behind efforts to open up government, only to work behind the scenes to keep certain information from seeing the light of day. As long as the public believes the media is to be feared more than our government, we’re going to continue to have a huge challenge.”
In the 1990s, many media groups held statewide audits by forming teams--mostly comprising reporters acting as 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 openness rose because of concern over national security, information security and information theft, Richardson said.
“When I first starting getting involved in [freedom of information law], I was told it was like trench warfare--forward and then back,” said Richardson, who joined the Iowa Freedom of Information Council eight years ago. “I think that it’s a struggle. Plus, on the state level, it’s been difficult because the economy hasn’t been good, so freedom of information issues haven’t been a priority in the legislatures.”
In some respects, the terrorists have won by making Americans fearful, suspicious and less willing to fight for openness of public information, Anstaett said. “All of this secrecy is contrary to the bedrock ideals of our nation.”
Other experts believe Sept. 11, a commonly cited reason for secrecy, was simply a convenient excuse for legislatures and courts to keep public documents closed.
“I think most of the secrecy that’s been ushered in at the state level in the wake of Sept. 11 was a long time in coming,” Davis said. “Sept. 11 sort of short-circuits debate. You know, if you throw that up, then it becomes about motherhood and apple pie. It’s not about secrecy, which is what it’s all about. If it has something directly to do with homeland security, sure, but there’s not much of this stuff that does.
“So much of this stuff, if you peel away all the arguments, is wow, we would be so much more efficient if we didn’t have to share it with you pesky reporters and citizens.”
Fleischaker agreed that secrecy in government always existed. While homeland security issues did drive tendencies toward closed government, that did not make government officials less willing to open foundations, he said.
“We live in a pretty conservative society at this point and there are a lot of people out there who would just as soon say it’s none of our business,” Fleischaker said.
WHEN OPENNESS FAILS
Despite the trend toward more freedom of information in Iowa, Colorado, Kansas and Kentucky, some states have taken a step in the opposite direction. In Georgia, a state once known for its openness, a bill passed in April that allows university foundations to keep donor records private.
“It’s a mess down there [in Georgia],” Davis said. “It seems like there’s an [open-records law] exemption a day popping up. The real tragedy is that Georgia’s been really good over the years with access. It has a pretty decent open-records law, and they’re just going after every last bit of it.”
“A newly elected Republican legislature seems bent on corporate interests. I hate to make it sound so political, but it’s really political.”
This is not, however, simply a partisan issue, Davis continued, as many Republicans and Democrats have made transparency in government a high priority.
The Georgia bill will infringe on the public’s right to know about state institutions, said Sam Jones, president of the Georgia Press Association and publisher of the Newton Times-Herald.
“This is money that’s going to a public institution, and I think the public has a right to know who is making those contributions,” Jones said. “Some people make contributions, then do business with the university, and the public certainly has a right to know that.”
There have been more efforts in this session to close government records and government proceedings than at any time Jones can remember in his 30 years working for Georgia newspapers.
“We had several pieces of [anti-open records] legislation that were proposed, and unfortunately 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 result of an inexperienced legislature.
“I’m hoping that we’ve got some newcomers here who are getting their feet wet, and that there’s a learning curve, and that in the future there will be fewer and fewer attempts to close government proceedings and records. I very much believe in government being done in the sunshine. We saw several pieces of legislation this session that was counteractive to that belief.”
On another front, Iowa State University, the University of Northern Iowa and the University of Iowa have refused to release information about employee salaries and tenure, despite the Iowa Supreme Court ruling that foundations’ records are subject to public disclosure. The salaries of the employees at all three universities are funded with taxpayers’ money.
With the trend of openness being punctuated with legislation for more secrecy, a lack of obedience by universities and increased national security, the future of government openness is questionable. But rulings and legislation passed this year have experts optimistic.
“I think it’s going to get better,” Davis said. “Because for 20 years, we’ve sort of assumed that we’d have access to a lot of records. And assumptions are very dangerous, because they make you comfortable. And we got sort of comfortable and lazy. Now, certainly the 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 level of secrecy, and so I think the pendulum is going to start swinging more.”
But simply because some courts and legislatures have made access to records a top priority, private citizens and journalists still fight to gain access to open records--and often hit major roadblocks.
“It’s a roller coaster,” Richardson said. “You have some progress and some victories, and then there will be a wave of increased secrecy.”
America still sees an alarming trend by public officials to overstep their authority through heavy-handed oversight and outright censorship of student publications, Anstaett said. Therefore, journalists and free press advocates should look to the future with very cautious optimism.
“You have to fight these things every day,” Fleischaker said. “In 10 years, some things will be better, and some things won’t be. But there’s one constant, and the constant is that you have to deal with it every day and fight for it every day.”
Colorado, Iowa, Iowa State University, Kansas, Kentucky, open records, reports, Spring 2005, University of Colorado, University of Kansas, University of Louisville