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Private Foundations Exempt From FOIA in Virginia, Court Says

December 13, 2019

The foundation for the public George Mason University is not covered by the state’s public records laws, the Supreme Court of Virginia ruled Thursday.

If Virginia’s General Assembly wanted nonprofit foundations that exist to support public colleges and universities to be covered under the state’s Freedom of Information Act, it would have named them as public bodies under the law, the court’s opinion said. But it has not done so.

“Policy determinations of this nature are peculiarly within the province of the General Assembly, not the judiciary,” said the opinion, written by Justice Cleo E. Powell.

The decision comes after a group of George Mason University students called Transparent GMU sued for access to grant and gift agreements between the university’s foundation and private donors. The group focused on George Mason’s relationship with the Charles Koch Foundation, a major donor to colleges and universities that critics contend has used its money to bend George Mason in a conservative direction in some disciplines. The university maintained that donors have the right to request anonymity and that gifts routed through a foundation were exempt from public records laws in Virginia.

Thursday’s ruling leaves no course for an appeal, a lawyer for Transparent GMU said, according to the Associated Press. George Mason’s interim president said the decision helps private foundations support public institutions.

The opinion upholds a lower court ruling in Virginia. Courts in states across the country have issued differing rulings on the question of whether private foundations are subject to public records laws, the AP reported.

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Rick Seltzer

Rick Seltzer, Projects Editor, oversaw special projects and coordinated daily production for Inside Higher Ed from 2019 through May 2021. He joined the publication in 2016, covering finance and management. Previously, he worked as a reporter for The Baltimore Business Journal, The Bloomington Herald-Times, the Central New York Business Journal and The Harrisburg Patriot-News. He has covered numerous business, municipal, government and general assignment beats. Rick graduated from Syracuse University in 2008.

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