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University foundation must release corporate donor information

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    News Media Update         KENTUCKY         Freedom of Information    

University foundation must release corporate donor information

  • A privacy exemption to the state’s open records law does not protect the University of Louisville Foundation’s donor information, a Kentucky court ruled last week.

Dec. 2, 2004 — A Kentucky trial court judge ruled Nov. 24 that a personal privacy exemption to the state’s open records law does not categorically protect information about corporate and private foundation donors to the University of Louisville Foundation. The foundation must release such donors’ identities and gift amounts under the ruling, the latest judicial opinion surrounding the dispute.

The controversy began in 2001 when Keith Runyon, Opinion Editor for The ( Louisville) Courier-Journal , requested donor information under the state’s open records law. The foundation, a non-profit fiduciary that handles University of Louisville funds, refused to release the requested records, claiming that a statutory privacy exemption protected the corporate and private foundation donors’ information from disclosure. The Courier-Journal sued.

Jefferson County Circuit Judge Steve Mershon ruled that donors’ information does not receive categorical protection by the privacy exemption to the open records law. Instead, the question of whether such records are protected by the privacy exemption was situational and turned on the consideration of case-specific facts, the court said.

The court hypothesized that the privacy exemption might have applied if the donors had, at the time of their gift, made it contingent on confidentiality. Mershon noted, however, that the foundation did not produce any such evidence and he was therefore unwilling to grant anonymity to the corporate and private foundation donors. Faced with such an undeveloped factual record, Mershon concluded that “any right of privacy . . . is outweighed by the public’s interest in knowing how the University of Louisville is funded and influenced.”

Two years ago, at an earlier stage of the same litigation, Mershon rejected the foundation’s preliminary argument that because it was incorporated as a non-profit, it was not a public agency and therefore not subject to open records law. The Kentucky Court of Appeals affirmed that decision in November 2003, finding that the foundation was controlled by, and acted one and the same as, the University of Louisville. The conflation of the foundation’s operations with the University of Louisville, the court said, made it a public agency for the purposes of open records law.

The case has been litigated piecemeal over many years because Mershon has ruled on the case’s various issues in separate opinions. The foundation then appealed those rulings without waiting for the remaining issues to be decided, said Jon Fleischaker, a lawyer for The Courier-Journal .

Another pending angle of this litigation is whether private individual donors and their gift amounts are protected by the privacy exemption. Judge Merson ruled in September 2003 that this information, too, must be disclosed, a decision that the foundation has since appealed to the Court of Appeals.

(Cape Publications, Inc d/b/a The Courier Journal v. The University of Louisville Foundation, Media Counsel: Jon Fleischaker, Dinsmore & Shohl LLP) RL

© 2004 The Reporters Committee for Freedom of the Press

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