University claims Foundation has contract; Foundation claims it’s not subject to records laws
Journalist Daniel Libit and the Wisconsin Transparency Project have filed a lawsuit in Dane County Circuit Court alleging that the University of Wisconsin-Madison and the UW Foundation are illegally denying Libit’s request for copies of an athletic department consulting agreement. The lawsuit seeks to force the defendants to turn over the contract, as well as an award of reasonable attorney fees, costs, and damages.
In 2022, the University of Wisconsin-Madison signed a contract with Altius Sports Partners to provide “name, image, and likeness” services to the Badgers athletic department. That contract is a public record that should be made readily available, but the University has taken extraordinary steps to try and hide it from the public. They claim they possess no copies of the contract because the UW Foundation has it. The UW Foundation, in turn, claims that it is a private organization not subject to the state’s Open Records Law.
“Madison can’t pass the ball like this,” explained Tom Kamenick, President and Founder of the Wisconsin Transparency Project. “The law specifically prohibits these kind of games where government agencies try to hide records from the public by storing them with third parties.”
State statutes require government agencies to “make available for inspection and copying . . . any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority.” So even if the University has no copies of the Altius contract in its possession, it is obligated to obtain a copy from either Altius or the UW Foundation to release to the public.
Libit has previously sued the University of New Mexico, the University of Colorado, and the United States Military Academy over those schools’ refusal to produce athletic department-related records. In each case, Libit either prevailed in court or received a favorable settlement.
“Public university foundations must not be used as instruments to obscure the public’s business,” said Libit, a UW alum who now writes for Sportico. “If UW-Madison is keen to play this game with an athletic department NIL consultant, imagine how much other public business is being concealed in this manner.”
This latest lawsuit also alleges that the UW Foundation, although legally distinct from the university, is itself a “quasi-governmental corporation” also subject to the Open Records Law. The UW Foundation manages UW-Madison’s $4.5 billion endowment, is located on campus, appears on campus maps, and is permitted to use UW-Madison’s logo and other trademarks. It describes itself as “the official fundraising and gift-receiving organization for the University of Wisconsin-Madison.” Its sole purpose is providing funding for the government services the university provides.