NDSU Development Foundation Spent Thousands In Failed Fight Against Open Records Request


Last week I won a pretty significant victory over the NDSU Development Foundation which had refused to turn over public records related to their expenditures.

This matters, because there has been significant growth in the number of supposedly “private” organizations set up to serve government interests. Development foundations at universities are one example. Another are economic development entities established to serve political subdivisions like cities or counties. The argument from these entities is that they’re “separate” and “private” from the government entities they serve, and so largely exempt from accountability laws such as open records requirements.

In the opinion the AG issued on my complaint, he found otherwise. ““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.

That’s a big deal, and no doubt why the NDSU Development Foundation fought my request so hard. In fact, the first thing I did upon receiving Stenehjem’s opinion was put in a request to the foundation for documents related to any legal fees they spent on fighting my open records request.

Turns out they spent kind of a lot. Specifically $7,552, billed by Christopher McShane of the Ohnstad Twitchell in West Fargo.

You can read the billings below.

Here are a couple of my favorite line items.

First, McShane billed the foundation for…reading the blog:


I’m assuming the post he reviewed was this one. Anyway, for some reason the idea of a lawyer getting paid to read the blog just gives me a warm, fuzzy feeling inside.

Second, McSchane alleges that I was “unwilling” to cooperate with him on fulfilling my request:


I should point out that what I was “unwilling” to do is cancel my open records request. Mr. McShane tried multiple times to get me to stipulate to the idea that some of the records I requested were not public record, something I was not willing to do with a complaint pending.

Once it became clear that the AG’s office was likely to rule in my favor, McShane went to work on me, no doubt hoping to find a way to get the complaint tossed or reduced in scope. I told him multiple times that I would be willing to work with him on records once the AG had completed the complaint.

I also told him he was not an honest broker in these proceedings, which I don’t think he was.

As Stenehjem wrote in his 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.”

Here are the full billings.

NDSU Development Foundation Legal Fees