How the University of New Mexico Foundation manages hundreds of millions of dollars raised for the state’s largest university is “manifestly the public’s business,” and the organization’s activities should not be shielded from public records law, according to a recent court filing by transparency advocates.
The New Mexico Foundation for Open Government and the Florida-based Brechner Center for Freedom of Information have lent their support to independent journalist Daniel Libit’s lawsuit against the UNM Foundation, arguing in a friend-of-the-court brief that university foundations are “arms of the state performing a state function.”
The filing also notes that courts in several other states, including Illinois, Michigan, Ohio, California, have ruled that public university foundations and other corporations that coordinate university fundraising are subject to public records laws.
“The same outcome has been reached in cases throughout the country, as courts have recognized that the separation between public universities and their foundations is a matter of form only and not function,” the brief states.
Libit in 2017 sued the UNM Foundation after it denied him records related to WisePies’ now-former naming rights deal at the Pit. The foundation said it is a private entity that does not have to comply with the New Mexico Inspection of Public Records Act. In court filings, it has denied that it “plays a public role or is a public body which creates and maintains public records subject to IPRA” and says that disclosing some records could threaten donor privacy or violate donors’ First Amendment rights.
But Libit’s suit contends the foundation is a “creature of the university” and performs services for the university that the university would otherwise perform for itself. He is asking the court to rule that the foundation release the requested documents and declare the foundation is a public body subject to IPRA.
FOG and Brechner are asking the court to grant Libit’s motion for summary judgment and order disclosure of the requested records. Judge Nancy Franchini is scheduled to hear Libit’s motion and UNM’s own motion for summary judgment Thursday in state District Court in Albuquerque.
Attorney Greg Williams, past president of the FOG board, said the organization filed the brief in part because of recent financial mismanagement scandals within the UNM athletics department, a major recipient of donated dollars.
“It’s more important than ever for the public to have an accurate picture of the athletics department’s finances,” he said. “Considering that it appears that UNM athletics department is just now getting its own handle on its finances and its auditor has decided it needs some more oversight, we think the public should play a role in that oversight.”