By Daniel Libit

The New Mexico Foundation for Open Government and the Brechner Center for Freedom of Information have jointly submitted an Amici Curiae brief in support of our public records lawsuit against the University of New Mexico Foundation.

You can read their brief here.

Amicus (“friend of the court”) briefs are rare enough and, when they are filed, it tends to be during the appeals process. But in this instance, both First Amendment advocacy organizations felt it vital to weigh in on our motion for summary judgment at the trial court level. Our lawsuit, which contends that the UNM Foundation should be subject to the state’s Inspection of Public Records Act, is set for trial on May 21.

The lawsuit was originally filed last spring, and our motion for summary judgment was filed last month.

“This case is important for public accountability in New Mexico, but it’s also important because it illustrates the larger problem with government agencies trying to evade their disclosure obligations by offloading essential government functions onto private corporations they create and control,” said Frank LaMonte, director of the Brechner Center, which is based at the University of Florida. Previously, LaMonte spent almost a decade leading the Student Press Law Center in Washington, D.C.

“We’re hoping the New Mexico courts will follow the steady and growing consensus of states from Pennsylvania to Illinois to Kentucky in recognizing that university foundations really are extensions of their universities and are subject to all the same duties to disclose,” LaMonte added.

The brief makes a number of well-considered points about how public university foundations, like UNM’s, endeavor to have their cake and eat it too:

“While foundations commonly argue that they need confidentiality to avoid compromising donors’ privacy, that argument is readily disproven in two respects. First, universities and their foundations are only too happy to publicize the names of donors – even chiseling their names into the edifices of buildings – when disclosure serves their objectives. They cannot be heard to argue that disclosure is appropriate only where the information flatters the university and not where the information might be disadvantageous. Open-government laws do not allow agencies to release only those documents that they regard as strategically helpful, for obvious reasons.”

Beyond that, the brief calls into question the veracity of the oft-stated defense that openness actually hurts fundraising for university foundations:

Certainly, there is no evidence that the foundations in California, Pennsylvania or any other state subject to open-government laws have ceased being able to effectively fundraise because their records are accessible. Foundations across California, for instance, are reporting record donations, so it manifestly does not handicap these institutions to make their operations transparent.

(Featured image by Sara MacNeil)