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The University of New Mexico Foundation says it will appeal a judge’s decision that it must comply with the state’s transparency law, saying it has a “legal, fiduciary and moral” obligation to protect donor information.
State District Judge Nancy Franchini recently ordered the foundation to release documents to independent journalist Daniel Libit, who had sued the foundation for alleged violations of the New Mexico Inspection of Public Records Act. The foundation has argued that IPRA does not apply because it is a private entity, but Franchini’s order noted that it met all nine court-established criteria used to determine when a private body acts on behalf of a public agency and its records are subject to IPRA.
“The Foundation acts on behalf of the University in its fundraising efforts,” Franchini’s written ruling states. “The University’s and the Foundation’s fundraising efforts are inherently public in nature.”
The foundation told the Journal this week that it would appeal, citing what it regards as its donor privacy imperative. Journal publisher W.P. Lang is on its 29-member board of trustees.
While the foundation does not prevent donors from publicly promoting their gifts, it said some prefer no attention.
“After careful reviewing (sic) the district court’s order, and giving careful consideration to our legal, fiduciary, and moral obligations to the many loyal philanthropic contributors and supporters of the University, the Foundation has decided to appeal the district court’s decision,” spokeswoman Jennifer Kemp said in a written statement. “This appeal is not about the Foundation, but rather every donors’ right to privacy – and each individual donor’s choice to exercise that right.”
Libit said he remains committed to the lawsuit and believes Franchini’s decision will stand on appeal.
“UNMF’s continued anti-transparency stance is, unfortunately, all too predictable. Its statement of justification, however, makes one thing perfectly transparent: how credulous and stupid it thinks the public is,” Libit said in a written statement. “The Foundation’s appeal is primarily about protecting the Foundation, not about the First Amendment. And if you are inclined to believe otherwise, I have a golf trip to Scotland I’d like to sell you.”
His lawsuit centered on the foundation’s refusal to release documents regarding WisePies’ now-defunct naming rights agreement for the Pit. Libit sued for release of records related to the deal – including correspondence and proof of WisePies’ payment – and asked the court to order the foundation to comply with IPRA.
The foundation also has repeatedly denied Journal IPRA requests for information about other athletic facility naming rights agreements. It cited donor privacy when declining to provide records relating to the baseball and football field sponsorships. The latest denial came just this week.
Franchini granted Libit summary judgment against the foundation in May in a ruling some believed could resonate throughout the state.
Attorney Greg Williams, who sits on the New Mexico Foundation for Open Government executive committee, called the foundation’s move to appeal disappointing but not surprising because it has “spent a long time fighting for its right to keep these records secret.”
Williams questioned where the foundation’s responsibility lies. The foundation – which gets operating funding from the university – reported raising $69.3 million on the university’s behalf through the first three quarters of fiscal year 2018.
“They mention their duties to their donors, but their primary duty is to the university and to taxpayers that support it,” he said. “And the public has a right to know what is in the foundation’s records.”
In withholding information about donors, the foundation claims it is heeding the First Amendment and the “Donor Bill of Rights,” a document conceived by several professional fundraising associations that says in part that donors should have assurance that information about their contributions is handled “with confidentiality to the extent provided by law.”
It said it attempts to balance transparency with donor privacy.
“The Foundation has always welcomed inquiries and provided information about the foundation’s work, with the exception of donor information. By (pursuing) appeal of the recent District Court decision, we are seeking to protect the information and privacy of individuals who wish to keep their giving confidential,” the foundation said in a written statement.
The foundation has used an outside attorney, Randy Bartell of Montgomery & Andrews, to spearhead its defense in the Libit lawsuit. The foundation would not reveal how much the firm has billed thus far.
“We are not releasing the costs for this event, but all costs and fees incurred were paid through our coverage and did not impact our budget,” Kemp said in an email.
Libit said the foundation is a significant enterprise that warrants transparency.
“Non-profit is not a synonym for purely altruistic. The Foundation is a $200 million operation with numerous employees, some of whom are quite well paid. Precisely how are they compensated? How else is the money that flows through the Foundation spent on UNM and UNMF employees, administrators and other so-deemed friends of the university?” he said. “I wonder if it’s the answers to these questions – and not some high-minded moral imperative – that better explains the Foundation’s resistance to transparency.”