by Thomas Lifson
According to an expert on Canadian charitable organization law, however, the Clinton Foundation claim that public disclosures are barred by federal law rests on shaky ground.
Not only did the Clinton Foundation conceal the names of 1100 big foreign donors to an affiliate, it has lied about doing so. First, the concealment, via Rosalind S. Helderman and Tom Hamburger of the Washington Post:
Now, for the Clintion Foundation lie. Helderman and Hamburger:
A charity affiliated with the Clinton Foundation failed to reveal the identities of its 1,100 donors, creating a broad exception to the foundation’s promise to disclose funding sources as part of an ethics agreement with the Obama administration.Giustra is the billionaire who greased the skids for approval of the sale of American uranium mines to the Russians.
The number of undisclosed contributors to the charity, the Canada-based Clinton Giustra Enterprise Partnership, signals a larger zone of secrecy around foundation donors than was previously known.
Details of the organization’s fundraising were disclosed this week by a spokeswoman for the Canadian group’s founder, mining magnate Frank Giustra.
Now, for the Clintion Foundation lie. Helderman and Hamburger:
a foundation official this week defended the arrangement with the Giustra group, noting in a blog post that Canadian law prevents charities in that country from disclosing their donors without the donors’ permission.Mollie Hemingway of The Federalist exposes the lie:
The Canadian partnership has in recent days begun to reach out to its 28 largest donors, each of whom gave donations equivalent to at least $250,000 in U.S. dollars, to seek permission to release their names, said a person familiar with the foundation, who was not authorized to speak publicly about the matter.
The Clinton foundation claims that it couldn’t be totally transparent about who was doing business with this Giustra Partnership because of Canadian law barring them from listing individual donors. And in this CNN story, a Giustra spokesman claims that they didn’t brief the Clinton Foundation on donations to the Clinton Giustra Enterprise Partnership:
Giuistra’s spokesperson would not detail the group’s donors, but said that no one from the Clinton Foundation was briefed on donations to The Clinton Giustra Enterprise Partnership (Canada) because that would have broken Canadian law.
But @morgenr found a few instances of the Clintons publishing this information on Canadian web sites (snip)
According to an expert on Canadian charitable organization law, however, the Clinton Foundation claim that public disclosures are barred by federal law rests on shaky ground. Adam Aptowitzer, an attorney with Drache Aptowitzer LLP, told The Federalist that Canadian federal law does not have a blanket prohibition on public disclosure of the names of charity donors.In an update, Hemingway debunks the respone of the Clinton Foundation:
“Federal law prohibits disclosure related to commercial activity: things like selling, renting, or bartering of a list. Fundraising is not a covered activity under PIPEDA, the federal privacy law,” Aptowitzer said. Federal privacy laws in Canada prohibit the disclosure of personal information in the course of commercial activity.
“I don’t see how the public disclosure of a donor’s name constitutes commercial activity,” Aptowitzer concluded. “There’s no transaction; there’s no consideration.”
As Aptowitzer notes, Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) discusses disclosure of personal information but it covers only commercial activities. The Office of the Privacy Commissioner of Canada specifically declares that charities are exempted:
It should be noted that PIPEDA does not apply to organizations that are not engaged in commercial activity. As such, it does not generally apply to not-for-profit and charity groups, associations or political parties, for example—unless the organization is conducting a commercial activity (fundraising is not considered a commercial activity).
The Federalist also reached out to the Canada Revenue Agency, the Canadian equivalent of the U.S. Internal Revenue Service and the primary federal overseer of charitable organizations in Canada, and asked if the agency was aware of any blanket statutory ban on donor disclosure.
“The Canada Revenue Agency (CRA) is responsible for administering only those provisions of the Income Tax Act that relate to the registration and monitoring of charities and other qualified donees,” Magali Deussing, a public affairs representative for the CRA, told The Federalist. “Although the Income Tax Act regulates whether the CRA can disclose taxpayer information (including donor information), it does not regulate whether a registered charity or other qualified donee can disclose donor information.”
Either way, if the Clinton Giustra Enterprise Partnership’s Canadian bundler somehow felt that they needed to ask for permission, they could easily do that. Just looking at other large Canadian foundations shows us that other foundations don’t hide their donors using claims it’s illegal to disclose donor information in Canada.
All the big donors to United Way in Toronto, for instance, are named on the charity’s web site, including roughly how much they gave. If donors “requested” anonymity, United Way gave it but no one who gave at the Platinum Club ($5M+), Gold Club ($2.5M-$5M) or Million Dollar Round Table ($1M-2.5M) levels did so. All the folks who made endowment and bequest gifts — with a few exceptions — were listed on the United Way Toronto’s website. None who gave at the $500K+ level requested anonymity. Or the $200K-$500K level. And so on and so forth. Why should United Way Toronto have such a higher standard for transparency than the Clinton Giustra Enterprise Partnership? This is particularly true considering the nature of
the mining dealscharitable work being done by the Clinton groups.
[UPDATE: After this article was initially published, the Clinton Foundation sent The Federalist two links (here and here) allegedly supporting its contention that federal law in Canada prohibits public disclosure of the names of charitable organization donors. Unfortunately for the Clinton Foundation, neither link supports the organization’s rationale for deliberately withholding donor information from the public. In fact, one of the links actually includes information that directly contradicts the Clinton Foundation’s assertion.
According to a guide for non-profit compliance that is prominently linked on the page provided by the Clinton Foundation, fundraising activities of non-profits are specifically exempt from the privacy protections in Canada’s federal privacy law. Why? Because, as the article below states, public disclosure of non-profit donors does not constitute “commercial activity” and is therefore not at all prohibited:
Most non-profits are not subject to the Act because they do not engage in commercial activities. This is typically the case with most charities, minor hockey associations, clubs, community groups and advocacy organizations. Collecting membership fees, organizing club activities, compiling a list of members’ names and addresses, and mailing out newsletters are not considered commercial activities. Similarly, fundraising is not a commercial activity.
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