In response to a case brought by journalist Daniel Libit, the foundation argues it is not subject to the state’s Inspection of Public Records Act and that releasing documents Libit requested “would violate the free speech and free association rights” of donors, as well as their First Amendment rights “to remain anonymous.”
Libit, who runs the website nmfishbowl.com, in March filed a complaint in state District Court in Albuquerque. His suit contends the foundation “is a creature of the University and is substantially controlled by the University. Libit’s complaint asks the court to declare the foundation a public body subject to the state’s public records law and also order it to release documents related to WisePies’ naming rights deal for UNM’s basketball arena.
The UNM Foundation “exists solely to serve UNM by raising and managing private investments,” according to its media guide. It operated within the university for nearly 30 years but became a standalone organization in 2008.
Its court filing denies it “plays a public role or is a public body which creates and maintains public records subject to IPRA.”
A foundation spokeswoman said she could not comment on pending litigation. She referred questions to attorney Randy Bartell of Montgomery & Andrews, who is representing the foundation in the case.
Bartell reiterated the stance that the foundation is not a public body and spoke to the foundation’s First Amendment defense.
“Under certain circumstances, yes, there absolutely is” a First Amendment right to remain anonymous, he said, citing the Supreme Court’s decision in the Citizens United election spending case.
“This isn’t political, but some of the discussion around the First Amendment in that case, and other related cases, does have applications (here),” he said. “This case does have an interesting feature to it, where you’ve got the right of the public to know what’s going on with public money, but the right of people who want to give money to remain anonymous. Where is that line going to get drawn?”
Libit called the foundation’s First Amendment defense “specious,” and his attorney says it should not serve as the basis for keeping foundation records private.
“That’s a discussion for the foundation to have with its donors – what legal processes are there for donors who wish to remain anonymous to remain anonymous,” said Nicholas Hart of the Albuquerque firm Freedman Boyd Hollander Goldberg Urias & Ward. “I don’t believe that the foundation self-declaring itself as a private entity not subject to IPRA is the legal way to achieve that goal.”
While UNM last week announced it intended to terminate its WisePies deal to make way for another donor, the lawsuit will proceed.
“WisePies is the subject matter, not the underlying basis of the lawsuit, which is about their refusal to turn over public records,” Libit said in an email.