The Supreme Court of Kentucky has ruled that the University of Louisville must disclose the names of 47,000 donors to the University of Louisville Foundation because the foundation is a public agency and the public’s interest in how the institution’s fund-raising arm operates outweighs concerns for donors’ privacy.
The ruling, issued last Thursday, caps a seven-year legal battle between the foundation and The Courier-Journal, a Louisville newspaper that sued to obtain the names in 2001 under the state’s open-records law. The foundation had denied the newspaper’s request for information on donors to the McConnell Center for Political Leadership. Kentucky’s senior U.S. senator, Mitch McConnell, a Republican, helped found the center.
In earlier rulings, a trial court and the Kentucky Court of Appeals had both found the foundation to be a public agency, but disagreed on whether individual donors were protected by a personal-privacy exemption.
In 2003, the trial-court judge ruled that the foundation could not keep the names secret (The Chronicle, October 3, 2003), but the Court of Appeals later ruled that donors’ interests in personal privacy took precedence over the public’s interest in disclosure.
The State Supreme Court’s ruling last week (Case No. 2005-SC-000454-DG, available on the court’s Web site) reversed the appellate court’s decision regarding donors who had not requested anonymity, but affirmed its reasoning that the identities of 62 donors who had specifically requested anonymity before the suit was filed should remain confidential.
The identities and donation amounts of 46 corporations and foundations that gave to the McConnell center had already been made public as a result of earlier court actions (The Chronicle, January 7, 2005).
No More Anonymous Donations
The 62 individuals who had specifically requested their donations remain anonymous could remain secret, the State Supreme Court ruled last week, because those donors believed at the time that they were giving to a private entity. However, in the future, donors to the foundation are “on notice” that they will be subject to disclosure regardless of any requests for anonymity, the ruling said.
“It is a major victory for the press and public in terms of seeing how a university runs and who calls the shots,” Jon L. Fleischaker, a lawyer for the newspaper, said in an interview. Mr. Fleischaker said the ruling should apply to other public-university foundations in Kentucky.
Bennie Ivory, executive editor of The Courier-Journal, said the newspaper was willing to fight the case for so long because it believed the public had a right to know who was donating to the university and why.
The newspaper had argued, and last week’s court ruling agreed, that some anonymous donors might wish to conceal the true purpose of their donations and might seek to influence university decisions or policies or receive favors. The decision pointed to court records showing that several anonymous donors had indicated that their gifts were being made with the understanding that they would receive tickets to athletics events.
Fear of Scaring Off Donors
A. Keith Inman, the university’s vice president for advancement, said the institution would abide by the ruling and work with donors to help them understand the changes.
He said he disagreed with the ruling because he believes donors have a right to privacy, especially regarding their finances. Mr. Inman also said he worried the ruling could result in some potential donors who wish to remain anonymous directing their gifts to other foundations where confidentiality is guaranteed.
“I really think it creates an unlevel playing field for public universities in Kentucky,” Mr. Inman said.
The ruling on releasing most of the donors’ names was unanimous, but two justices filed partial dissents on the ruling about anonymous donors.
One of them, Justice Will T. Scott, wrote that denying anonymity for all future donations and “thumbing our noses at potential wealthy donors” who don’t want to be identified and harassed by other charities could hurt Kentucky’s children if the philanthropists decide to give their money elsewhere.
University foundations in other states, like the Iowa State University Foundation, have faced challenges to donor privacy (The Chronicle, July 29, 2005), and some states, including Iowa and Georgia, have responded by passing laws ensuring donor confidentiality, according to the Council for Advancement and Support of Education.
