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Judge: UNM Foundation records subject to public records laws

Copyright © 2018 Albuquerque Journal

A year after WisePies’ signage was removed from the Pit, a judge has ruled that the University of New Mexico Foundation must release closely guarded records related to its short-lived naming rights agreement, including proof of the company’s payments.

In a decision that transparency advocates say could have statewide implications, independent journalist Daniel Libit on Thursday scored a significant courtroom victory when state District Judge Nancy Franchini ruled that the UNM Foundation’s records are subject to the state’s public records laws.

Libit had sued the foundation over its failure to produce documents related to WisePies Pizza & Salad’s now-former naming rights agreement for the Pit, including a copy of the check and any banking documentation reflecting the company’s final $600,000 payment. The foundation, which serves as the fundraising arm of the University of New Mexico, told Libit that as a private, nonprofit entity, it did not have to comply with the New Mexico Inspection of Public Records Act.

But Franchini ruled otherwise in granting Libit’s motion for summary judgment against the foundation, stating that there was enough evidence that the foundation, although a private entity, acts on behalf of a public entity and thus was subject to IPRA.

Libit’s attorney hailed Thursday’s decision a “big victory.”

“It’s the first case … dealing with this issue with university foundations in New Mexico, and we’re happy that the court came to the same conclusion that the majority of the other states in the country have come to,” attorney Nicholas Hart said.

The foundation has not determined whether it will appeal.

“We obviously respect the court and respect her decision,” UNM Foundation general counsel Pat Allen said after the hearing. “We don’t agree with it and we’re going to take a look at our options. We don’t know what we’re going to do at this point.”

Libit, who runs the watchdog website NMfishbowl.com, said he was surprised to get this decision without having to go to trial, but that “speaks encouragingly to our position.” He said he sees the ruling as positive for the university and the foundation.

“By just the aura of transparency, people will be forced to handle the money that comes into the foundation, and that goes between the foundation and the university with the expectation that the public may see what they’re doing behind closed doors now, and that can only benefit how the university’s money is handled and the way in which people operate,” he said.

While the judge’s decision is specific to Libit’s three IPRA requests, attorney Greg Williams, an executive committee member of the New Mexico Foundation for Open Government, called it a “very good ruling for the state.” He said it signals to other New Mexico university foundations that their records could be public, too.

“This is potentially a very significant ruling because it demonstrates that New Mexico is one of the states where universities cannot use a foundation to hide records that would otherwise be public,” Willaims said.

FOG, in partnership with the Florida-based Brechner Center for Freedom of Information, had submitted a friend-of-the-court brief in support of Libit’s lawsuit. The brief was co-authored by Williams.

Libit’s attorneys had argued that the foundation was a “creature of the university” and that UNM created it, funds it, exercises oversight over it and even provides on-campus office space for some foundation employees. They said in filings it met the state’s “totality of the circumstances” test, citing the New Mexico Court of Appeals’ 2012 ruling in the Toomey case that established that some private entities can be subject to IPRA when acting on a public agency’s behalf.

The foundation, meanwhile, argued that the state law governing financial transactions between certain private nonprofit entities and public agencies only requires those entities make their annual audits public record, which the foundation already does.

In making her ruling, Franchini said Toomey “recognizes that it is possible for a public body to involve a private entity in conducting governmental business and subjects the otherwise private entity’s records relating to that governmental activity to IPRA requirements.

“The nine factors adopted in Toomey to determine when a private entity quote ‘acts on behalf of a public agency’ all appear to be met in this case, thus the foundation acts on behalf of the university in its fundraising efforts and its corresponding records are thus subject to IPRA.”

The judge, however, denied Libit summary judgment in his claims against UNM itself, which he had alleged violated IPRA by not producing documents under the same requests. Franchini said that case could still proceed to trial, though Libit said he and Hart had not determined whether to proceed with those claims.

Citing the pending litigation, a UNM spokesman said Thursday that President Garnett Stokes would not comment on the case or answer specific Journal questions about whether she thought the UNM Foundation should appeal the decision.

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