Former University of Oklahoma general counsel sues OU Foundation for records 

The University of Oklahoma Foundation Inc. should be considered a public body for the purposes of the Open Records Act in part because it performs “a government function in managing and holding University funds,” a lawsuit filed by a former OU general counsel argues.

Fred Gipson filed the lawsuit in Cleveland County District Court last week on behalf of his wife, Lynda Gipson.

The initial filing doesn’t address a 1972 state attorney general opinion stating the Foundation “is not a state department, agency, or institution, but is rather a private corporation formed for charitable, benevolent, religious, educational and scientific purposes.” (Okla. Att’y Gen. Op. No. 72-195 (Jan. 15, 1973)

The lawsuit is seeking OU Foundation records related to the proposed University North Park arena and entertainment district. Two weeks ago, Foundation officials rejected a records request filed by Fred Gipson on behalf of some 70 people.

The lawsuit argues that the Foundation is not separate from the university:

 

The Foundation’s stated goal, and only function, is to advance the educational purposes of the University. To this end it solicits, receives and spends money and other assets on behalf of the University. The public has a legitimate interest in the University’s operations which logically extends to the operations of the Foundation. Since the monies and assets held by the Foundation are in fact public monies and assets, the spending of those monies is of concern to the general public as well as the donors of the University. (Petition, at 2)

 

The Gipsons’ evidence includes:

  • “A letter mailed by the Foundation seeking funds for the benefit of the University with the use” of the state’s privilege of sending mail without paying postage. Such use is illegal if the foundation is a private entity. (Petition, at 2)
  • The couple’s $50 check payable to the OU College of Fine Arts that was deposited in the Foundation’s bank account. “If the University made a gift to the Foundation as a private entity then that gift would violate the Oklahoma Constitution.” (Petition, at 3)
  • A letter from a university employee seeking a donation for the university but asking that the check be made payable to the Foundation. (Petition, at 3)

Fred Gipson is a Democratic candidate for Oklahoma’s 4th Congressional District. He faces three other contenders in the June 26 primary.

After being appointed OU’s chief legal counsel in 1988, Gipson sometimes found himself on the opposite side in records disputes. For example:

  • In 1992, Gipson refused to disclose how much OU had paid to an ex-football coach as part of a financial settlement. Gipson called it a personnel matter involving litigation, according The Oklahoman story that reported the amount as $156,00.
  • In 1993, Gipson refused to release his memo on prayer at OU football games, citing attorney-client privilege, according to The Oklahoman story. The Cleveland County district attorney refused to prosecute the refusal as an Open Records Act violation.
  • In 1993, Gipson refused to release documents from an internal audit by the university, saying they were internal personnel and attorney investigative documents, according to The Oklahoman. A state audit team reviewing the findings from the university’s Office of Internal Auditing found questionable practices by OU administrators. The university later made 400 pages public, but a judge in 1994 said two memos from Gipson to OU regents could be kept confidential.

For his pending case against the Foundation, Gipson told The Norman Transcript that he’s not after a list of its donors, only records related to the proposal.

“They say they’re separate from the university, but there wouldn’t be any money in that foundation account if it wasn’t for the University of Oklahoma,” Gibson told the newspaper. “The public has a right to know, and we don’t know what’s in those documents, nor can the general public make a decision about whether it’s in the best interest of the city of Norman or the best interest of anyone until we see the documents.”

 

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
Mass Communication Law in Oklahoma

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, its board of directors or the commentator’s employer. Differing interpretations of open government law and policy are welcome.

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