AG rules for Watchdog in open records complaint

By Rob Port | Watchdog.org North Dakota Bureau

FARGO, N.D. — Attorney General Wayne Stenehjem has ruled in favor of Watchdog in an open records complaint filed against the North Dakota State University Development Foundation, prompting the organization to open its expenditure records to public scrutiny.

“It was not until May 22, 2014, five months after Mr. Port’s initial request, and only after numerous interventions from this office, that the NDSU Development Foundation produced any sort of expenditure records to the requester,” Stenejem wrote in the opinion. “The NDSU Development Foundation spent more time trying to avoid the open records request than determining how to fulfill the request and, instead of working with its requestor, continually denied the request on incorrect legal grounds.”

Stenehjem’s opinion orders the foundation to turn over any responsive records within seven days.

In December 2013, Watchdog filed an open records request for a year’s worth of the foundation’s expenditures after a Fargo Forum article reported NDSU President Dean Bresciani spends as much as 66 percent of his time fundraising for the organization, including escorting high-profile donors to box seats at concerts and sporting events.

Foundation President Douglas Mayo denied the request, stating in an email that ““most of our expenditures are non-public fund expenditures; we have our own staff (non-public employees) and our Trustee’s [sic] make independent decisions on how to expend our resources.”

But Stenehjem found in his opinion that organizations founded to carry out public duties are public entities for the purpose of open records laws. “This office recognizes that the solicitation and receipt of donations for a public university, along with promoting, aiding, and fundraising for the university, are governmental functions and when foundations undertake these activities on behalf of universities, they become’public entities,’ despite their status as private, nonprofit corporations,” he wrote.

Jack McDonald, an attorney for the North Dakota Newspaper Association, sees the opinion as a significant one that could force more of these type of organizations in the state to open their books.

“I think it is a very significant opinion for a number of reasons,” McDonald said in an email. “First, it’s the latest in a series of 4 or 5 opinions where the Attorney General has held that these university and economic development foundations are public entities. I think this is significant because they play an increasingly key role in the business of the state’s colleges and universities, and with cities and counties. Secondly, it puts a big chink in the wall colleges and universities have built up to hide information by claiming it is made confidential by FERPA.”

FERPA is the Federal Educational Rights and Privacy Act.

“I have maintained for years that FERPA only protects scholastic records such as grades, GPAs, etc,” McDonald said. “However, the colleges have used it to hide anything remotely involving a student, such as arrests on campus, activities in student dorms, email coming out of student dorms, football player misdeeds, etc.”