Court rules against student group seeking donation records at George Mason University
UPDATE: The Charles Koch Foundation said it will make future agreements with universities public, in a July 24, 2018 statement.
"...the Foundation sees an opportunity to better connect partners with the principles that guide giving by implementing practices such as publishing future major university agreements," according to the statement.
The Wall Street Journal reported that these agreements will be posted on the foundation's website.
UPDATE: The Fairfax County Circuit Court ruled against Transparent GMU on July 5, 2018, saying the George Mason University Foundation is "not a public body" and does not have to release donation records from private donors, including donations from the Charles Koch Foundation.
In an opinion letter written by Judge John Tran on behalf of the Fairfax County Circuit Court, Tran said while George Mason University is a public body, the foundation does not meet the legal definition. Therefore, their records are not public.
"As a matter of law, the Foundation is not a public body under [The Virginia Freedom of Information Act] as it is presently situated," Tran wrote. "This decision does not absolve the University of the responsibility, as a public body, to maintain records of the use of funds and programs it decides to develop."
Frank LoMonte, director of the Brechner Center for Freedom of Information, said he thought the ruling might not stand if it is appealed, because of the strong connection between foundations and universities. LoMonte also said that outside of Virginia, university foundations are widely viewed as public bodies.
"Ultimately, I think this ruling is not going to have any impact outside of Virginia because the consensus is already solidly established just about everywhere else in America that foundations are public bodies subject to FOI laws," LoMonte said. "Virginia happens to have a narrow understanding of what it means to be a public body, that its courts have interpreted in an especially parsimonious way, but that's an outlier position."
According to a May 2018 story by The Associated Press, the Charles Koch Foundation gave nearly $49 million to more than 250 colleges across the U.S. in 2016. That’s a 47 percent increase over 2015.
UPDATE: The Fairfax Circuit Court in Virginia on Nov. 29 threw out several claims from students seeking access to George Mason University's donor records.
The order, authored by Judge John M. Tran, declares that the university is entitled to Sovereign Immunity—a protected status that makes it more difficult to sue a government agency.
However, it leaves open the key issue of whether or not the GMU Foundation is a public body, a significant factor in determining whether it is subject to open records laws.
Tran noted that Virginia, unlike most other states, does not automatically subject all public bodies to open records laws, but considers additional factors such as "the existence of public funding for the entity, the holding of public records, and the coordination between the subject entity and the public body that it serves."
The case is set to go to trial in late April 2018.
VIRGINIA—Students at George Mason University are suing the school and its foundation for records of donations from private donors, according to a release Thursday.
Transparent GMU is a group of students on campus who say they want a clearer window into how their university operates. They requested documents of private donations to the university’s foundation in 2014 after learning of donations made to Florida State University by the Charles Koch Charitable Foundation, a philanthropic organization funded by Charles Koch of Koch Industries.
After the requests were denied, the group started a campaign for more transparency over the next two years, culminating in this lawsuit.
“We’re really excited, really really hoping that we can get this agreement, especially in terms of making these things available to the public. That’s really our goal here, is to further the transparency of the university and advocate for public interest,” said Transparent GMU member Gus Thomson, a sophomore studying social justice.
The GMU Foundation refused to release the documents, saying that since they belong to a private nonprofit, they aren’t covered by the Virginia Freedom of Information Act.
Contributions from the conservative and politically prominent Koch Brothers have come up again and again in conversations of corporate influence on campuses. It’s even spawned a movement: UnKoch My Campus, which is circulating a petition to support Transparent GMU’s suit.
The lawsuit is taking a different approach from a similarly motivated case at the University of Kansas in 2014. There, KU students sought emails between the university and Art Hall, the sole employee of the Koch-funded Center For Applied Economics, located in the university’s business school.
Hall sued the school to prevent the release. The suit ended in a settlement where some, but not all, correspondences were released.
“We kind of follow this thought process of, ‘what did these people do that worked, what’s been successful, and, kind of, what’s going on here?’ We just want answers,” Thomson said of the influence past cases have had on the gameplan for their suit.
University foundations occupy an unclear space between public and private, as the SPLC has reported on before. Public schools handle donations through their private, nonprofit foundations, sometimes causing headaches for parties interested in viewing public records related to these private organizations.
Michael Sandler, a spokesman for GMU, declined to comment on the litigation. In an emailed statement, he said because the George Mason University Foundation is a 501(c)(3), the university considers private donation records exempt from Virginia open records laws.
“Donors have the right to request anonymity. And the university and foundation have a responsibility to respect the privacy of those donors. The state recognizes this. If not for the support of private gifts, many of our students would not have the opportunity of higher education. And many of our researchers wouldn’t be able to pursue their work without that support either,” Sandler said.
The students see it differently.
“The GMU Foundation is doing work for our public school, so it should be held to the same disclosure standards as the university itself. The only way we can make sure the university and its Foundation are acting in the interests of the public is by making all agreements with private donors transparent,” the student group, Transparent GMU, said in the release.
West Virginia-based nonprofit law firm Appalachian Mountain Advocates will assist the students with the case, and attorney Evan Johns will represent them.
“It’s disappointing to see the Foundation turn away students who are justifiably concerned about donor influence at their university – especially when Virginia’s open records law is so clear,” Johns said in Transparent GMU’s press release.
The SPLC will provide updates as this case progresses.
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