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 a series of other public universities who were recently dealt similar rulings.

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

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

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

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

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

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

In the written court opinion, Judge Steve Mershon said that the public’s right to know outweighs the personal privacy needs of corporate and private foundations.

“It’s got a lot of ramifications here in Kentucky, because I think it’s a big step toward stopping the use of foundations to hide the actions of public agencies,” Fleischaker said.

reports, Spring 2005