On Nov. 30, The Daily requested that the University Foundation provide an accounting of all donations during the past five years ­— including a listing of the donors, amounts and uses of said funds and all benefits provided to university officers and employees. Within less than 24 hours, that request was flatly denied.

In his response, Foundation Vice President and General Counsel Gary Beadles wrote, “The University of Oklahoma Foundation Inc. is a separate legal entity from the University of Oklahoma. It is not a state agency, does not employ public officials, does not conduct public business, expend, or administer public funds or property. Instead, the Foundation is a private entity and accordingly is not subject to the Oklahoma Open Records Act.”

Unfortunately, his response is not unusual. University foundations in most states traditionally claim exemption from state open records acts.

However, this trend has been changing. Legislators in Colorado, Minnesota and Nevada changed their laws to require disclosure. Courts in Florida, Iowa, Kentucky, Michigan, Ohio, Pennsylvania and South Carolina have ruled that their states’ open records acts apply to university foundations. State attorney generals in Georgia and Texas also have written advisory opinions to that effect.

In Oklahoma, bodies subject to the Open Records Act need not be governmental entities. The law is written very broadly and specifically includes “trusteeships” and “trusts” — terms that the Foundation uses repeatedly on its website. The legal test in the statutes is not whether something is a public or private entity. It is simply whether it is “supported in whole or in part by public funds or entrusted with the expenditure of public funds or administering or operating public property.”

OU is a public institution and the foundation’s primary purpose is to collect private donations on the university’s behalf and administer those funds for the benefit of the institution — which is its exclusive beneficiary. Although the university does not retain legal title to the contributions, it still has equitable title.

It retains part of the bundle of rights, and it can even force the foundation to render an accounting.

Thus, the rule in the majority of jurisdictions is that it still has a property interest — which means, by definition, the foundation is charged with administering public property.

The foundation also is closely affiliated with the institution. University presidents have practically dictated its organization and structure during the years. Its literature prominently emphasizes its connection to the institution — even going so far as to use the institution’s official seals, emblems and crests. Its building is even located on campus and owned by the university.

In his response, Beadles invoked a statute that allows entities to keep information about donors and prospective donors confidential. However, that statute does not allow the institution to keep information about the uses of those funds confidential. All benefits provided to university officers and employees should be public record.

Speaking directly to the issue of disclosure by university foundations in 2002, State Attorney General Drew Edmondson wrote, “the authority of a public body to keep donors’ identities confidential is tempered by the rules of the Ethics Commission.” State officials and employees are still required to be impartial and to “exercise their powers and prerogatives without prejudice or favoritism.”

Furthermore, since institutions are only given discretion to keep this information confidential, they must still disclose it if other law specifically requires it.

Under state ethics laws, anyone who does business with a governmental entity is required to report any gift to a state officer or employee which costs more than $50. The foundation has several contractual relationships with the institution.

However, although it provided more than $20 million in salary supplements last year, the foundation did not report any of the benefits provided to university officers and employees.

Regardless of how much money has been raised from private individuals, OU is a public institution of higher education. It was established by the People of the State of Oklahoma, and it remains subject to public oversight.

Thus, the public has a right to know about all funds that are being expended on its behalf and, even more importantly, people have a right to know about all gifts their state officers and employees are receiving from private individuals.

The foundation, the OU Board of Regents and the administration all need to recognize and acknowledge this fact.

— Nicholas Harrison, law and business graduate