Way back in January I requested information pertaining to the revenues and expenditures of the North Dakota University System Foundation. The NDUS denied my request, saying that the foundation is a private entity.
I filed an open records complaint with Attorney General Wayne Stenehjem, and today he issued an opinion finding that because the foundation is essentially administered by the North Dakota University system they are, in fact, subject to open records requests.
From the opinion, full document below:
Based upon the information provided to this office, the Foundation is completely dependent on the NDUS for its operation and administration. The Foundation does not have its own staff, the Foundation trustees are all appointed and approved by the SBHE, and a quorum of the SBHE members sit as trustees on the Foundation.22 In replying to requests such as that from Mr. Port and this office, the Foundation utilized the NDUS’s legal counsel and staff members. The trustees of the Foundation meet intermittently, but do not approve or otherwise appear to have any authority over NDUS’s use of the funds the Foundation supposedly manages.23 The Foundation’s secretary is also the NDUS Vice Chancellor for Administrative Affairs and handles the yearly filings and issues checks on the Foundation’s behalf using the NDUS’s office, supplies, and computers.24 Other than using Foundation funds for the annual filing fee to the Secretary of State’s office, no funds appear to be used to reimburse the NDUS for the use of its staff or supplies.
Therefore, due to the symbiotic nature of the relationship between the NDUS and the Foundation as described above, it is my opinion that NDUS expends public funds for the Foundation’s administration. Because of the use of public funds to administer the Foundation and because of the NDUS’s unrestricted use of and access to the Foundation’s funds, it is further my opinion that the Foundation records, specifically the revenue and expense records at issue here, relate to the public business of the NDUS.25 The Foundation initially violated N.D.C.C. § 44-04-18 by refusing to provide a copy of the Foundation’s revenues and expense records to Mr. Port.
The consequences for the university system, sixth months later, is that they just have to give me the records. Which makes me think that we need to start putting some more teeth in the state’s open records laws.
Update: Here’s the AP report on the opinion, not mentioning who filed the complaint naturally.