Attorney General Finds Dickinson State University Violated Open Records Law

Another day, and another example of the North Dakota University System violating the public’s trust.

This time it’s the Dickinson State University Foundation which denied a request for emails from Katherine Lymn, a reporter for the Dickinson Press.

“Mr. Thompson denied the records request on November 22, 2013, on the grounds that the emails were not ‘public records’ involving ‘public business’ or related to any use of ‘public funds’ that were subject to the open records law,” reads the opinion, referring to DSU Foundation CEO Kevin Thompson.

The Attorney General ruled that the DSU Foundation is, in fact, a public entity that must comply with open records laws. Further, he ruled that Thompson did not cite the proper reason for denying Lymn’s request as required under ND state law. The foundation will have to re-evaluate their emails, justify to the AG any that would be precluded from open records because of attorney-client privilege, and then provide the rest of the records to Lymn free of charge.

This is an important decision, as the university system likes to keep their “private” foundations operating in the dark, outside of the scrutiny of the public.

I currently have pending at the AG’s office a complaint regarding the NDSU Development Foundation. I asked for data pertaining to their revenue and expenditure (not, specifically, information about donors which is private under the law) and was denied on the basis that the foundation is not a public entity.

That despite many news articles detailing all the time NDSU President Dean Bresciani spends fundraising on behalf of the foundation. How can a public official, working on the public dime, raise money for a foundation that exists for no other reason than to benefit a public institution, and the records not be, you know, public?

The North Dakota University System has a horrendous track record on transparency, and that’s yet another reason why North Dakotans need to vote in favor of the ballot measure in November to reform the way the university system is governed.

Because something has got to change.

On a related note, notice that Lymn filed her original request in November of 2013. It’s now April of 2014 and she’s just now getting an AG’s opinion. This is a real weakness in the state’s open records laws. State agencies can essentially deny any request for months while a complaint is reviewed by the AG’s office – which typically takes 90 – 180 days – with pretty much zero consequences if they’re found to be denying records incorrectly.

There needs to be consequences. And a quicker sort of recourse for those seeking records.

Update: Marie Moe, a spokeswoman for DSU, has emailed this morning asking that I correct this post to reflect that the foundation is a separate entity from DSU:

Good morning Mr. Port,

I am writing you this morning to ask that you please correct the headline and accompanying photo on your story posted this morning. The AG finding yesterday was that the DSU Foundation, which is a separate entity from Dickinson State University, violated open record laws. Dickinson State University did NOT violate open records law and was not part of this finding.

DSU foundation is a separate 503c non-profit and should not be confused with Dickinson State University.
From our previous interactions it is my belief that you value integrity in reporting. Therefore, I am asking you to update the photo and the headline so it is not misleading to your readers.

Thank you in advance,

Marie

I don’t think this is accurate. I think the universities like to perpetrate the fiction that these foundations are separate from the universities so that the universities themselves can operate outside of the scrutiny of the public, but that’s the opposite of what the AG’s opinion found.

The opinion finds that the foundation is really just a subsidiary of the university, performing functions delegated to it by the university.

Univesrity officials like to pretend otherwise, but as a practical matter the foundations are part of the universities.