VSC upholds Mason’s practice of not releasing donor names, says this is by design

BY JACK HARVEY, ASSISTANT OPINION EDITOR

The Virginia Supreme Court affirmed a prior Virginia Circuit Court’s ruling stating that the George Mason University Foundation, a private non-profit corporation that handles donations to Mason, is exempt from the Virginia Freedom of Information Act (VFOIA) on Thursday, Dec. 12.

Transparent GMU v. George Mason University et. al was heard Sept. 11, 2019 by the Virginia Supreme Court with all justices present. Justice Cleo Powell wrote the opinion, which was unanimous.

It concerned whether the GMU Foundation was subject to VFOIA, which is traditionally reserved for public bodies. Transparent GMU argued that the Foundation was operating as an “entity” or “agent” of Mason, and as such should be considered a public body.

The Court cited § 23.1-1010 of the Code of Virginia, which allows public institutions of higher education to “[c]reate or continue the existence of one or more nonprofit entities for the purpose of soliciting, accepting, managing, and administering grants and gifts and bequests, including endowment gifts and bequests and gifts and bequests in trust.” 

The Court also cited § 23.1-101 of the Code of Virginia, which states that public institutions of higher education “shall be encouraged in their attempts to increase their endowment funds and unrestricted gifts from private sources and reduce the hesitation of prospective donors to make contributions and unrestricted gifts.”

Based on the language of the code, the Court found that the creation of a private foundation is in line with “conduct [which] is ‘expressly authorized by the General Assembly.’”

The case also raised the issue of Janet Bingham’s simultaneous role as a high-ranking member of Mason’s administration and the CEO of the Foundation, and whether her possession of Foundation records, as an employee of the school, required her to provide those records to Transparent GMU.

The Court stated that “it is the position over which the corporation has control, not the person,” and as such Bingham had no obligation to reveal private records. 

The Court argued in its conclusion that the Foundation is not a public body subject to VFOIA by design of the legislature. It noted that it is not its role to change policy, as “[p]olicy determinations of this nature are peculiarly within the province of the General Assembly, not the judiciary.”

Evan Johns of Appalachian Mountain Advocates, the lawyer representing Transparent GMU, stated that the ruling was “disappointing and leaves no avenue for appeal,” according to the Daily Press.

The Foundation released a statement that the ruling would “reduce the hesitation of donors to make gifts, while simultaneously offsetting the need for greater public taxpayer support and higher tuition rates,” according to Virginia Mercury.