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AG backs plaintiff in UNM records case

Copyright © 2020 Albuquerque Journal

Daniel Libit

The New Mexico Attorney General’s Office in a recent court filing took issue with the University of New Mexico and its fundraising entities’ reason for withholding records from the public, calling it “erroneous and inconsistent with the law.”

The AG’s Office, as well as the New Mexico Foundation for Open Government, recently filed briefs in a lawsuit brought by an independent journalist trying to obtain records related to naming-rights deals and fundraising for UNM athletics.

The briefs were filed in a case before the state Court of Appeals combining two lawsuits that Daniel Libit, a journalist, has against UNM, the UNM Foundation and the UNM Lobo Club.

Attorneys for UNM and the UNM Foundation and Lobo Club, have argued, in part, that because the records Libit requested are being kept by the foundation and the club – private, nonprofit entities – the records are not subject to state open-records laws.

“From a policy perspective, appellants’ interpretation would permit and encourage public bodies to avoid transparency and accountability by utilizing the services of nonprofit organizations,” the AG’s Office said.

The appellants in the case are the UNM Foundation, the Lobo Club, the UNM Board of Regents and a university records custodian.

Officials for UNM and the foundation declined to comment on the recent court filings, saying it’s their practice not to comment on pending litigation.

FOG, in its brief, said the records being sought are especially important to the public because UNM athletics has been “beset with problems related to financial irregularities.”

FOG cited a state audit of UNM athletics finances that found years of financial missteps and perks given to employees and donors.

Libit, who operated the website, filed a lawsuit against UNM and the UNM Foundation in March 2017 in an effort to obtain records from the foundation. He argued that the two entities operate in such a close and intertwined effort that the foundation is subject to the Inspection of Records Act.

State District Judge Nancy Franchini ruled in 2019 that case that the foundation met all nine court-established criteria used to determine when a private body acts on behalf of a public agency and the requested records are subject to IPRA.

“The Foundation acts on behalf of the University in its fundraising efforts,” Franchini’s ruling says. “The University’s and the Foundation’s fundraising efforts are inherently public in nature.”

The foundation appealed the ruling, saying that it needed to protect donor privacy.

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