FYI-A New Piece of Texas Legislation Could Subject Foundations to Open Records
When it comes to education foundations that support public school systems, the question is often asked “Is the foundation subject to open records laws?” This is a great question and can vary from state to state. In Texas, legislation has been filed by Rep. Giovanni Capriglione and Sen. Kirk Watson to further define who and what is subject to public information. These bills do not specifically name education foundations or entities similar since we are a very unique charitable organization that is not only supporting, but in many cases receiving support, either directly or indirectly, from a governmental entity.
The legislators that filed these bills want additional transparency and clarification of disclosable records so that the public at large has knowledge and a right to receive information about how tax dollars are being raised. In this case, HB 2189 and SB 943 and SB 944 specifically refer to contractors and in many cases a threshold of $1M in support or contracts awarded. The bills have been through many revisions and Foundation Innovation and many others have been invited to participate in the discussion.
Our position, and I believe this would be for all states, is to comply with open records requests that pertain to the education foundation minus any protected information, such as donor lists and amounts received by individual donors. The school system should handle this request since they are familiar with the process and timelines required by law to comply. In fact, we recommend that the Memorandum of Understanding between the education foundation and the school system include a clause to that effect. Sample language in the MOU could include: “The Ultimate Education Foundation understands that, as a result of the Ultimate School Division investment in the foundation, the documents of the foundation are subject to the Texas Public Information Act (or the title in your state), absent any specific exemption for nondisclosure. The foundation agrees to fully comply with the Texas Public Information Act. The foundation and school division agrees that the Ultimate School Division shall handle all Public Information Act requests and agrees to cooperate fully with in fulfilling its obligations under the law.” This language of course, should be reviewed by the foundation board of directors, school board, superintendent, and legal counsel, as applicable for both parties, before enacted.