Two memorandums of understanding between the WKU Foundation, College Heights Foundation and WKU could violate Kentucky law by keeping the names of donors confidential, according to Kentucky Open Records laws.

In October, the Herald requested a list of lifetime donors and the 2016 fiscal year annual donors and the amounts donated. Five lifetime donors were listed as “confidential” or “donor confidential,” and 30 annual donors were listed as “confidential” or “donor confidential.”

In September, the WKU Board of Regents Executive Committee approved two memorandums of understanding between the WKU Foundation, the College Heights Foundation and WKU.

Each MOU was created to “provide a framework … to examine how the Foundation can most effectively advance the mission of the institution,” and to “provide transparency and accountability regarding the use of both state and private resources,” according to the MOUs.

Within the memorandums for each foundation, there is a section on confidentiality of donor records.

“The Institution [WKU] shall establish and enforce policies that support the Foundation’s ability to respect the privacy and confidentiality of donor records, subject to public inquiries related to revenue, expenditure policies, investment performance, and other information that is normally available to the public in the conduct of institutional affairs,” section III, part j reads.

President Gary Ransdell said these MOUs were presented to the Board of Regents to better inform the Board of Regents about the roles and actions of both foundations.

Both MOUs were approved unanimously, with Regent John Ridley abstaining from the vote. At the meeting, Marc Archambault president of the WKU Foundation, said the confidentiality clause was included as an “effort to try to preserve the privacy of donors where legal.”

At the October Board of Regents meeting, the MOUs were to be approved by the Board of Regents. Archambault said the regents brought up a request for a minor change to each MOU, and they had not been approved with the newest change. Archambault said the Foundations agreed to comply with the request for the change, and the MOUs would go back to the Board of Regents for its next meeting.

In 2008, the Louisville Courier-Journal requested donation information from the University of Louisville Foundation. The Foundation claimed it was not a public institution and was therefore not required to release donor information. However, the Kentucky Supreme Court ruled the University of Louisville Foundation was not a private institution and releasing the requested information would not be an “unwarranted invasion of privacy,” and the Courier-Journal had a right to access those records.

Both the WKU Foundation and College Heights Foundation, like the University of Louisville Foundation, are independent non-profit fundraising arms of the university.

Archambault said the names of donors withheld in the Herald’s information request were done so because they donated before the legislation was passed or because the donor was “wanting to do something nice for someone at the university, but they know they’ll be embarrassed if word gets out that they’re going to give this fund.”

Donations to the WKU and College Heights Foundations are categorized by level based on amounts donated. Confidential annual donations were within the range of $0.01 to $25,000. Confidential lifetime donations were within the range of $25,000 to $5,000,000.

Archambault said there were several reasons a donor may want to remain confidential.

“Primarily people are going to want to be private if they can be, because they’re very humble,” Archambault said. “Not always, but that’s the overwhelming reason we see.”

Archambault added donors may be “shy” or “humble,” and not want to be put into the public.

“Most of the time, they’re just humble people and they just want to help, and they’re nervous as being perceived as caring a lot about the credit,” Archambault said.

However, Archambault said “true anonymity is pretty much impossible at this point,” and the foundations try to set expectations with donors who request anonymity.

“We have to make sure that donors understand that,” Archambault said. “If we receive a legitimate request for the information, we’re going to have to disclose that.”

Jon Fleischaker, chair of the First Amendment and Media Practice Group and partner at Dinsmore and Shohl law firm in Louisville, said since the foundations are public agencies, “there’s no such thing as a confidential contribution.” Fleischaker was also a lawyer for Cape Publications in the Cape Publications v. University of Louisville case.

Fleischaker said donations to the two foundations serve as contracts between the donor and the foundation.

“All of these contributions are basically contracts,” Fleischaker said. “These are deals made with the university.”

Fleischaker said the ruling in Cape Publications v. University of Louisville clearly states that donations to public agencies are not private or confidential.

“The Supreme Court of Kentucky has spoken on whether you can maintain confidentiality of a contribution,” Fleischaker said. “There is a very strong statement that says it is not confidential.”

According to the Cape Publications v. University of Louisville ruling, disclosure “of names of donors to fundraising arm of state university would not constitute a clearly unwarranted invasion of personal privacy.”

“The public’s legitimate interest in the University’s operations then logically extends to the operations of the Foundation,” Kentucky Supreme Court Justice Bill Cunningham said in the ruling.

The ruling also states donor’s “gifts are being made to a public institution and, therefore, are subject to disclosure regardless of any requests for anonymity.”

Despite the fact the foundations listed confidential donors, Archambault said the foundations would reveal those names if an information request was made.

“We’re always going to comply with requests that are made,” Archambault said. “Our main hope is that if we are approached, we’ll be given the opportunity to explain why the university might benefit from confidentiality, and why the risks of not making it transparent are minimal.”

Another request for donor names and amounts donated was sent to the university Wednesday.

Reporter Monica Kast can be reached at 270-745-6011 or [email protected]. Follow her on Twitter at @monicakastwku.