NDSU foundation spent thousands fighting open records request

By Rob Port | Watchdog.org North Dakota Bureau

FARGO, N.D. — A nonprofit foundation affiliated with North Dakota State University spent thousands on lawyers to fight a losing battle against an open records complaint filed by Watchdog, according to recently released documents.

“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 wrote in a July opinion, ruling on an open records complaint filed by Watchdog.

That lack of cooperation had a cost.

The NDSU Development Foundation hired attorney Christopher McShane of the Ohnstad Twitchell law firm in West Fargo. Between February and July, the law firm billed the foundation for $7,552, according to records released by the foundation.

Among the activities billed to the foundation was McShane’s work reviewing previous attorney general opinions and preparing President Douglas Mayo to brief the foundations board of directors about the open records fight.

An expert on state open records law said Stenehjem’s opinion has significant long-term implications.

“I think this is significant because (foundations) play an increasingly key role in the business of the state’s colleges and universities, and with cities and counties,” North Dakota Newspaper Association lawyer Jack McDonald said, noting the opinion is “the latest in a series of four or five opinions where the attorney general has held that these university and economic development foundations are public entities.”

In December 2013, Watchdog requested information from the foundation related to the foundation’s expenditures after a Fargo Forum newspaper article indicated NDSU President Dean Bresciani spends as much as 66 percent of his time raising funds for the foundation. The foundation refused the request, claiming it’s a private entity separate from the university, but Stenehjem on July 28 ruled the foundation is public.

“The NDSU Development Foundation is a public entity subject to open records laws because it performs governmental functions on behalf of NDSU,” Stenehjem wrote in the opinion.