As the fallout continues from mismanagement of the fundraising operation at the University of Arkansas in Fayetteville, serious questions have arisen about the university’s adherence to the state Freedom of Information Act.
The former associate vice chancellor responsible for media relations told legislators in mid-September that documents relevant to Freedom of Information Act requests were destroyed and that a “culture of secrecy” existed within the campus administration.
Count me among those who are not surprised.
Chancellor David Gearhart, who headed the fundraising division for 10 years, held a similar position at Penn State University before moving to Fayetteville. As the nation learned during the child-abuse scandal that led to the conviction of former assistant football coach Jerry Sandusky, secrecy is pervasive on the Penn State campus and has been for years.
One reason is that Penn State is almost completely exempt from the Pennsylvania Right-to-Know Law, the state’s equivalent to Arkansas Freedom of Information Act. During Gearhart’s time at Penn State, the law did not cover the university at all.
Although Gearhart may prefer that environment, the University of Arkansas is subject to the Freedom of Information Act. Unfortunately, the act does not apply to an entity that has been a major player in the recent fundraising scandal: the University of Arkansas Foundation, a private, nonprofit corporation that holds funds raised by university employees and controlled by university administrators.
That situation should change.
In language unaltered since the Freedom of Information Act was enacted in 1967, the records of government agencies and “any other agency wholly or partially supported by public funds” are open to public inspection unless expressly exempted from disclosure.
Constrained by the quoted language, the Arkansas Supreme Court has ruled that a private entity is subject to the Freedom of Information Act only if it receives money from the government, as opposed to an indirect form of support, such as the use of public property without charge. Other decisions make clear that a private organization’s activities must also be intertwined with those of government.
The UA Foundation clearly meets the second requirement but probably does not satisfy the first. Because the foundation’s purpose is to provide private financial support to the University of Arkansas, it most likely does not directly receive public funding.
Consequently, an amendment to the Freedom of Information Act is necessary to extend the act to the UA Foundation, as well as the Razorback Foundation and foundations at other state universities.
The Nevada public-records act is a helpful model. It provides in part that “records of a governmental entity, the contents of which are not otherwise declared by law to be confidential, must be open … to inspection by any person.”
The term “governmental entity” expressly includes “a university foundation,” which is defined in another statute to mean a nonprofit corporation or charitable organization that is created under state law, exempt from federal taxation, and “organized and operated primarily for the purpose of fundraising in support of a university, state college or a community college.”
The latter statute also addresses donor privacy, an issue of major concern to university administrators. It provides that a university foundation “is not required to disclose the name of any contributor or potential contributor to the university foundation, the amount of his or her contribution or any information which may reveal or lead to the discovery of his or her identity.” All other foundation records, however, are subject to inspection under the public-records act.
The Nevada legislature took action 20 years ago after the University of Nevada-Las Vegas Foundation came under fire for questionable use of discretionary funds. In light of the Fayetteville fundraising follies, I believe the Arkansas Legislature should amend the Freedom of Information Act in the same fashion.
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John J. Watkins is emeritus professor of law at the University of Arkansas at Fayetteville, and co-author of a book on the Arkansas Freedom of Information Act.
Editorial, Pages 17 on 10/02/2013