The IRS and some states require nonprofits to disclose certain documents to the public upon request. Additionally, the IRS and some states even make these documents available to the public. Donors want to be able to ensure that the nonprofits they donate to are spending their contributions wisely. Maintaining transparency – which nonprofits accomplish in part by required public disclosures – gives the public confidence that a nonprofit’s practices are ethical, efficient, and effective.
What Disclosure Laws Apply to Nonprofits?
The United States Tax Code requires nonprofits to make the following documents available for public inspection and copying upon request:
- The exemption application (i.e., Form 1023, 1024-A, or 1024) including all attachments submitted with the application, all documents the IRS required it to submit in support of the application, and correspondence related to the application.
- The IRS determination letter.
- Complete Form 990 series returns as filed with the IRS for the most recent three tax years, except that public charities need not disclose the names and addresses of contributors listed on Schedule B.
- Form 990-T, except supporting documents that do not relate to unrelated business income tax.
- Plus, any documents required to be disclosed by state laws.
Reasonable Time, Place, and Manner Restrictions on Public Disclosure Requests. Note that a nonprofit is not required to make these documents available to the public at any requested time. A nonprofit may place reasonable restrictions on the time, place, and manner of in-person inspection and copying. If a request is made in person, it must generally be honored on the day of the request. If it is a written request, the nonprofit generally has two weeks to respond.
If a nonprofit does not have a permanent office, it must make its documents available for inspection at a reasonable location of its choice or it can mail or email, within two weeks of receiving the request, a copy of the requested documents to the requester in lieu of allowing inspection in person.
What Additional Disclosure Laws Apply to California Nonprofits?
States have their own rules on disclosure and transparency. For example, California requires charitable nonprofits to make copies of their certified audits, if they are required to prepare them, available for inspection by members of the general public no later than nine months after the close of their fiscal year.
Also, note that California nonprofits are required to make several filings each year. Members of the public are able to search for some of these filings on various government websites, including California’s Registry of Charities and Fundraisers, the IRS, and the California Secretary of State.
When is a Nonprofit Required to Provide Copies of Documents?
Nonprofits are not required to comply with requests for copies if the documents requested are widely available to the public. For example, nonprofits do not have to provide copies of requested documents if they can direct the requester to a third-party website (e.g., by GuideStar, the Urban League, ProPublica, and/or the IRS) that:
- Clearly informs the requester that the requested document is available and provides instructions for downloading it;
- Posts the document in a format that exactly reproduces the image of the original document, except for any information permitted by law to be withheld from disclosure; and
- Allows any individual with access to the Internet to download, view and print the document without special computer hardware or software (other than software that is readily available to the public without charge) and without payment of a fee.
Images must be an exact reproduction. It is important to note that some third-party websites, such as GuideStar, may slightly modify documents prior to posting. If the document posted does not exactly reproduce the image of the original document, the posting will not satisfy these requirements. Before directing a requester to a third-party website, nonprofits should verify that all of the above criteria are met.
Can Nonprofits be Reimbursed for Copy Charges?
Nonprofits may charge a reasonable fee for copying, which may be no more than the per-page rate the IRS charges for providing copies. The IRS currently charges $.20 per page. Note that although the IRS charges no fee for the first one hundred pages, a nonprofit may charge the standard fee for all pages copied and produced. A nonprofit may also charge the actual postage costs it incurs to provide the copies.
What Happens if a Nonprofit does not Provide the Documents in a Timely Manner?
Any person who fails to provide an annual return may be fined $20 for each day of noncompliance, up to a maximum of $10,000 for each return. For exemption applications, the penalty is $20 for each day the failure continues, with no maximum penalty. If the failure to comply was deemed willful, an additional penalty of $5,000 per return or application will be assessed. In addition, the IRS has revoked nonprofits’ exemptions for failing to disclose documents as required by law.
What Information Should Be Withheld from the Public?
Sometimes members of the public ask nonprofits for other information and documents related to the nonprofit’s operations not described above, such as copies of their bylaws, lists of donors, lists of members, etc. In general, the law does not require nonprofits to disclose these items to the general public.
Additionally, IRS guidance provides that certain items must be withheld from public inspection, including sensitive or confidential information and other documents filed with or received from the IRS that are unrelated to an organization’s Form 1023, 1024-A, or 1024.
In addition, nonprofits may wish to withhold other information from the public such as board meeting minutes and internal governance policies. The amount of transparency each nonprofit maintains will be unique to its mission and cater to its supporters (and potential supporters). As such, it is important to discuss your nonprofit’s transparency policy with legal counsel to ensure it is properly tailored to fit your nonprofit’s needs.
Conclusion
As mentioned above, transparency should be a cornerstone of any nonprofit’s values and practices. The Law Firm for Non-Profits is here to guide you in formulating a transparency policy to meet both legal requirements and your organization’s unique needs.