DATELINE: November 23, 2008, Chicago
President Clinton’s decision to turn over the names of 200,000 William J. Clinton Foundation donors to the incoming Obama administration is nothing less than a breach of faith and a major ethical lapse on the part of President Clinton. It also, in our minds, constitutes an actionable breach of his loyalty to the foundation. The donor list belongs to the Clinton Foundation, not President Clinton. When an organization promises anonymity in its Web site privacy policy or oral conversations with prospective donors, it should honor that commitment. Even though President Clinton hasn’t disclosed the names to the press, the promise was for anonymity, not selected anonymity.
President Clinton is powerful enough that he can...
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walk over the rights of donors with impunity, but other organizations should be far more careful, as a recent decision from the Kentucky Supreme Court suggests. Cape Publications, DBA Courier-Journal v. University of Louisville Foundation, 260 S.W.3d 818; 2008 Ky. Lexis 176 (Aug. 21, 2008) (Aug. 21, 2008). The University of Kentucky is a state institution rather than a nonprofit corporation, but the University of Louisville Foundation is a private fundraising organization that supports the University of Kentucky. The Courier-Journal brought an action under the Kentucky Open Records Law demanding to see a partial list of the foundation’s donors. The foundation denied the request, claiming that as a private entity, it was not subject to Kentucky’s open records law. The Kentucky Court of Appeals held that the foundation was a public entity, a holding that the Kentucky Supreme Court left intact. The question then was whether the donor information fell in an exception to mandatory disclosure for personal information.
In addressing the issue, the Kentucky Supreme Court undertook a two-part analysis. The court concluded, based on past precedent, that a person’s name and address were personal information. The court reasoned that matters of personal finance, including the amount given to charity and the charities given to are even more personal information. The information requested by the Courier-Journal was therefore of a personal nature, which is required by the statute before information can be withheld.
The court then applied a balancing test to determine whether the personal information had to be disclosed in light of the public’s right to know. It concluded in the case of the donors who did not explicitly request anonymity that disclosure was permissible. That might be taken to support President Clinton’s position, but when the court turned to those who specifically requested anonymity, it recognized the nature of that request. The court denied the Courier-Journal’s request that the names be disclosed. The court reasoned that at the time the donations were made, the foundation’s status as an institution subject to the Kentucky Open Records Law was unclear. The Court of Appeals had not yet determined that the foundation was a public entity for purposes of the Open Records Act. The foundation, however, had been held to be a private entity for purposes of Kentucky’s Open Meetings Law, meaning that its meetings were closed to the public.
In reaching its decision, the court wrote:
When weighed against the public's interest in the source of Foundation funds -- and ultimately, University funds -- we conclude that the anonymous donors' interests in privacy are superior in this instance. Moreover, we note that there is no evidence in the record that would heighten the public's interest in disclosure of the anonymous donors' identities or otherwise affect this conclusion…. Simply put, the arguments propounded by the Courier-Journal do not create a compelling enough public interest in the circumstances of the anonymous gifts to warrant disclosure of these donors' identities. Thus, we affirm the Court of Appeals as to the 62 donors seeking anonymity.
The court went on to add that now that it is clear that the foundation is subject to the Kentucky Open Records Law, future donations to the foundation will be subject to disclosure even if anonymity is requested. According to the Kentucky Supreme Court, the 62 donors no longer have an expectation of privacy.
The powerful message in this decision is clear. A strict construction of the law would have required the disclosure of the 62 names once the determination under the Kentucky Open Records Law was made, but the Supreme Court bent the rule because it saw what to it appeared to be a fundamental expectation to privacy in the case of donations to a charity. Unless donors were affirmatively and clearly put on notice that the Kentucky Open Records Law defeated that expectation, thier expectations had to be respected.
Other charities should take note. If you promise donors anonymity, you had better honor the promise. That means not selling donor names to others. It means not revealing donor names to the media.
An ancillary lesson from this case. Just because an entity is a public entity for purposes of an open records law, doesn’t mean that it is a public entity for purposes of an open meetings law. A separate determination is required under each type of law.
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