Two years after the Supreme Court again upheld the right of donors to give privately, donor privacy remains at risk, as this right continues to be disregarded by attorneys general in states such as New York. As we have written about here before, the New York attorney general’s office has violated First Amendment protections for American givers by posting the 990 Schedule Bs of an unknown number of charitable organizations — exposing their major donors.
The AG’s website posted an announcement back in March that read, in part:
Due to clerical error, a small number of charitable organizations’ Schedule B to IRS Form 990 or IRS Form 990PF were inadvertently posted publicly on the Office of the Attorney General’s registry of charities for a limited period of time.
The notice has again popped up as new on the AG’s website, although that appears to be due to other office website updates. Regardless of when the notice was posted or reposted, the bigger problem is that, to this day, we don’t know which forms were involved, how many, when this occurred or whether this notice is related to leaks by the AG’s office that occurred last year.
Although New York’s AG stopped collecting Schedule Bs in 2021 following the Supreme Court’s ruling in Americans for Prosperity Foundation v Bonta, it was revealed last summer that documents collected prior to 2021 had not been destroyed when private donor information bearing the AG’s stamp was published in a Politico article.
In an effort to protect donor privacy, the Empire Center, in conjunction with New Yorker’s Family Research Foundation recently filed a lawsuit against the attorney general’s office. In their press statement, the group asked the Court to order the attorney general “to destroy all Schedule Bs in her possession containing donor names and to stop her from collecting redacted Schedule Bs from charitable organizations in the future.”
The preservation of donor privacy is deeply rooted in our nation’s longstanding tradition of philanthropic freedom, safeguarded by constitutional protections. The ability to give privately plays a pivotal role in supporting our dynamic and diverse charitable culture that ultimately benefits every American.
Notably, in the Americans for Prosperity Foundation v Bonta ruling, the U.S. Supreme Court reaffirmed this fundamental right to anonymous giving. The Court’s ruling emphasized that states could not impose blanket disclosure mandates on donors supporting nonprofit organizations, thereby upholding the essential principle of donor anonymity.
Two years after the AFPF v Bonta decision, it has become evident that additional measures are necessary, both at the state and federal levels, to safeguard the right to privacy of all American donors and ensure the continued prosperity, vibrancy and freedom of the charitable sector. Sadly, the recent leak of confidential donor information in New York acts as a stark reminder that states continue to violate this constitutional right.
Citing the ongoing assault on donor privacy, Philanthropy Roundtable Interim President and CEO Christie Herrera recently noted in a National Review article that “The threat to free speech is obvious. When someone is outed in the public square, including their addresses and employers, their opponents have a golden opportunity for intimidation.” Further, Herrera appeals to federal policymakers to protect donor privacy, writing, “Congress should pass legislation codifying the Bonta decision and protecting donors’ private information from unwarranted disclosures.” As the exposure of confidential data in New York illustrates, a federal statute protecting such information is long overdue.