The University of New Mexico Foundation is the “fundraising arm of the university,” but it isn’t subject to the same transparency laws as the university, meaning it’s not legally required to provide documents, emails or other information to the public.
A lawsuit filed this week by freelance journalist Daniel Libit, who was raised in Albuquerque but works in Chicago, seeks to change that.
He has the support of the New Mexico Foundation for Open Government, and his suit is in line with other lawsuits and actions across the nation that have already or are hoping to turn university foundations into agencies subject to the same open records laws as their parent schools.
The foundation says it attempts to be as open as possible but must still protect its donors. It “provides an enormous amount of information about its operations to the public through its website and upon request – including its audited financials, the performance of the endowment and specific funds, the Memorandum of Agreement with UNM, and its tax returns. We strive to be as transparent as possible while protecting the personal financial information (of) individual donors,” spokeswoman Jennifer Kemp said in an email.
Libit sued after the foundation refused to give him documents and records related to the naming rights agreement for WisePies Arena, aka the Pit. WisePies agreed to a 10-year, $5 million deal for the naming rights.
Because the foundation is a nonprofit, it is not required to follow the New Mexico’s Inspection of Public Records Act the way the university and all other government agencies are.
“The significance of our spearheading lawsuit in New Mexico, then, extends far beyond the specific matter of WisePies Arena, or even UNM Athletics. At stake is the precedent for greater insight into the ways the state’s largest institution of higher education conducts much of its business,” Libit wrote on his website, NM Fishbowl.
With the help of local attorney Nicholas Hart, he filed his suit Tuesday seeking not only the documents but also a change in how the open records law is applied to the foundation.
“The primary component of relief I’m seeking is for the court to ratify the foundation is a public entity. If tomorrow UNM hands over the emails I seek, the suit does not end,” he said.
The foundation used to operate out of a university department with university staff. But in 2008, UNM’s regents turned the foundation into a fully independent nonprofit, which currently manages about $415 million in donations and investments. UNM continues to support it financially, and in 2016 paid about $5.4 million to support the foundation’s $40 million operating budget. It has a 27-member board of directors, which includes Journal publisher W.P. Lang.
“Typically, independent entities, like the UNM Foundation, are demonstrably more cost effective in soliciting and managing funds than internal university departments,” Kemp said, noting in 2016 the Foundation brought in $87 million for the school.
But Libit, along with the Foundation for Open Government, argue that such entities aren’t actually independent because they are substantially controlled by and connected to the university.
“Everything the UNM Foundation does is for the benefit of UNM, which is a public entity. There is no way to separate the Foundation’s activities from UNM’s, and so our public records laws shouldn’t treat them differently. UNM should not be allowed to shield any part of its operations from the public by setting up a separate entity,” FOG president Greg Williams said in an email statement.
Similar lawsuits and actions in Kentucky, California and Illinois have succeed in getting records and changes in how foundations are subject to open records laws.