State District Judge Nancy Franchini made the right call when she ruled last month that the University of New Mexico Foundation is subject to the state Inspection of Public Records Act because the foundation is effectively an arm of the university.
It’s a decision that could have statewide implications as most, if not all, of the state’s other universities have foundations of their own.
The lawsuit was filed by independent journalist Daniel Libit over the foundation’s failure to produce documents related to WisePies Pizza & Salad’s now-former naming rights agreement for the Pit. The foundation, UNM’s fundraising arm, argued in court it was a private, nonprofit entity and wasn’t subject to IPRA.
But in granting Libit’s motion for summary judgment, Franchini ruled that while the foundation is a private entity, it acts on behalf of a public entity in such a way that it is subject to IPRA.
The New Mexico Foundation for Open Government joined with the Florida-based Brechner Center for Freedom of Information and submitted a friend-of-the court brief, arguing the court should rule for Libit and pointing out 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 and California, have ruled that public university foundations and other corporations that coordinate university fundraising are subject to public records laws. While foundations commonly argue that they need confidentiality to avoid compromising donors’ privacy, the brief points out that there is no evidence public access has prevented other foundations from successful fundraising. The filing also raises the possibility of lawmakers carving out very specific exemptions for some donor privacy, if they choose to do so.
” … We believe that the Foundation has a solemn obligation to protect donor confidentiality and privacy,” foundation spokeswoman Jennifer Kemp told the Journal in a written statement. “We believe a balance can be found between transparency and donor confidentiality.”
She said the foundation has attempted to be transparent by providing certain information through its website and in response to direct inquiries.
Kemp says the foundation’s 25-member board is waiting for the judge’s written order before deciding whether to appeal the ruling.
For the sake of accountability, and the public that supports the foundation and the university, the foundation should forego the appeal. And UNM President Garnett Stokes, a key member of the foundation board, should support that action in favor of bringing more transparency to the university.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.