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University's fund-raising foundation ruled a public agency

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University’s fund-raising foundation ruled a public agency

  • Panel says the determination of which corporate and private foundation donors are covered under the personal privacy exemption to the Open Records Act must be made on a “case-by-case basis.”

Nov. 25, 2003 — In-court wrangling between The (Louisville) Courier-Journal and the University of Louisville Foundation continued last week, as a three-judge panel of the Kentucky Court of Appeals held that the university’s main fund-raising arm is subject to the state Open Records Act.

However, the appellate panel upheld only one part of an earlier circuit court’s ruling in favor of disclosure. Although the unanimous three-judge panel ruled Nov. 21 that the university’s foundation is a public agency, it held that determinations of whether donations from a corporate or private foundation are exempt from disclosure must be made on a “case-by-case basis.”

“Some gifts may be conditional, and disclosure may revoke the gifts,” Judge Wilfrid Schroder wrote for the panel. “Unless more is known about the individual gifts, we cannot agree with a blanket exclusion of corporations and private foundations from the personal privacy exception to the Open Records Act.”

The circuit court in Louisville ruled in July 2002 that the personal privacy exemption to the Open Records Act does not apply to corporate or private foundation donations, and the U of L Foundation is a public agency. Under the order of the appeals panel, the circuit court must now determine which donations should be exempt, based on conditions placed on each gift.

In a different case ruled on in September 2003, Judge Stephen Mershon of the Jefferson County Circuit Court held that the foundation must disclose the names of approximately 45,000 donors, but it can withhold the names of 62 donors who were promised confidentiality at the time of their donation.

Both the foundation and the Courier-Journal have appealed different aspects of that ruling. The foundation appealed the order to release the identities of 45,000 donors, while the newspaper appealed the foundation’s right to withhold the identities of 62 donors.

The Courier-Journal has sought the identities of donors and the amounts given to the university’s McConnell Center for Political Leadership, which was created by Sen. Mitch McConnell (R-Ky.) and the foundation in 1998. The foundation had assets of more than $479 million in 2002, according to the university’s development office.

(University of Louisville Foundation, Inc. v. Cape Publications, Inc.; Media Counsel: Jon Fleischaker, Dinsmore & Shohl, Louisville) JL

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