By Daniel Libit
A group of First Amendment and press advocacy organizations from around the country filed an amici brief Friday in support of my public records lawsuits against the University of New Mexico and its “ad hoc dummy corporations,” accusing the university of operating a nondisclosure “shell game” with the UNM Foundation and Lobo Club.
“This case involves an attempt by a public institution of higher learning to rescind a promise made by the State of New Mexico to its People,” wrote the amici’s attorneys, led by Tom Leatherbury, a Dallas-based appellate lawyer who serves as director of the First Amendment Clinic at SMU’s law school.
The amici included the National Freedom of Information Coalition; the Society of Professional Journalist; the Student Press Law Center; the University of Florida’s Brechner First Amendment Project; and the University of Minnesota’s Silha Center for the Study of Media Ethics and Law.
Their brief took aim at a contention raised by the UNM Foundation and UNM Lobo Club, in their appeal to the New Mexico Supreme Court, that subjecting Lobo donor records to the New Mexico Inspection of Public Records Act would potentially violate the free association rights of those donors.
“In effect, the University has attempted to fabricate an associational issue by dissociating from itself,” the brief stated. “The right to free association serves to protect private associations from ‘undue intrusion by the State,’ not the other way around.”
UNM’s fundraising entities had not previously raised a First Amendment defense for their practices of refusing IPRA requests; in my response brief filed earlier this month, I challenged that they were now legally entitled to make this argument before the state Supreme Court.
However, as the amici write, even if the Court decides to consider the associational rights of Lobo donors, it should consider the wider public interest, as well:
Suppose, for example, that the state’s Department of Transportation authorized the creation of the “Land of Enchantment Transit Foundation,” an entity designed, like the [UNM] Fundraising Proxies, to serve as an efficient fundraising vehicle for its governmental analogue. Under Appellants’ arguments, the identity of donors who contribute curiously large sums of money to this Transit Foundation would remain unknown to the public unless NMDOT, through its proxy, authorized the release of such information.
In addition to Leatherbury, the brief was authored by Jacob Mathew and Robert Wu, all lawyers with the firm, Vinson & Elkins.
The New Mexico Foundation for Open Government and Brechner Center filed a separate amici brief, warning that if the Court sides with UNM’s fundraising entities in this case, it would blow an exemption hole in IPRA so wide as to effectively destroy the open records public policy of New Mexico.
“It would announce to public entities and their records custodians, members of the public, and district courts interpreting IPRA that [a] specific statutory exemption of public records from IPRA is no longer required by New Mexico law,” NMFOG’s brief states. It was written by attorney Greg Williams of the Albuquerque firm, Peifer, Hanson, Mullins & Baker.
The briefing in the case will conclude next week when the UNM Foundation and Lobo Club are due to file their reply brief. The Court will then decide whether it will set hearings for oral arguments or just issue an opinion.
Daniel Libit is a reporter for Sportico. He previously founded NMFishbowl.com and The Intercollegiate. You can follow him on Twitter or email him at firstname.lastname@example.org.
Featured image courtesy of Ed Uthman/Flickr