The records of university foundations and athletic booster clubs are not exempt from the state’s transparency law, the New Mexico Court of Appeals said in an opinion issued Thursday.
A three-judge panel issued the opinion in response to an appeal from the University of New Mexico Foundation and the Lobo Club in two district court lawsuits.
Court of Appeals Judge Megan Duffy, writing on behalf of the panel, said nothing in state law offers blanket exemptions to the state’s Inspection of Public Records Act, or IPRA, for university foundations and booster clubs.
The law gives the public the right to inspect records of state and local government entities on written request, with certain exceptions.
Greg Williams, a New Mexico Foundation for Opening Government board member, said the opinion clarifies that fundraising groups for state universities are subject to the state’s public records law.
“I think it is very significant when it comes to UNM and other state universities,” Williams said of the opinion. “It ensures that universities will not be able to hide fundraising information by setting up separate foundations.”
UNM officials did not immediately respond to a request for comment on Thursday.
The opinion found that 2nd Judicial District Judge Nancy Franchini ruled correctly when she found that the UNM Foundation and the Lobo Club needed to turn over records to independent journalist Daniel Libit. The Court of Appeals remanded one of the cases back to district court.
“We always felt that the law was very clear,” Libit said. “You cannot play hide the ball with public records by claiming they exist in entities that are, for all intents and purposes, holding public records and doing the public’s business.”
Libit’s attorney, Nicholas Hart, did not immediately respond to a request for comment.
Libit filed records requests in 2016 and 2017 seeking records related to the naming agreement between UNM and WisePies Pizza for the Pit. In 2018, UNM paid Libit $35,000 to settle that lawsuit.
Libit filed a second lawsuit against the Lobo Club seeking records related to former Athletics Director Paul Krebs, who resigned from UNM and was indicted in 2019 for embezzlement and other felonies for allegedly using UNM funds to pay for non-students to play golf in Scotland. Krebs is scheduled for trial in October in 2nd Judicial District Court on those charges.
Franchini ruled that the UNM Foundation raises money on behalf of UNM and that its records are subject to IPRA.
The foundation appealed the rulings in both cases, arguing that a section of the state’s Public Finances Act exempts all their records from public inspection, with the exception of an annual audit.
In its opinion, the Court of Appeals found that the law specifies that annual audits are public records, but “does not specifically exempt any records from disclosure.”
The law says only that the annual audit is a public record, but it doesn’t exempt other records, the opinion states.
“When the Legislature has intended to exempt records from public inspection … it has done so expressly…” the judges noted.