AG says NMSU Foundation can keep donor info secret

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The Attorney General’s Office says the New Mexico State University Foundation can legally keep information about donors secret and NMSU did not violate the Inspection of Public Records Act in denying my request for such information.

In a letter released Tuesday, Assistant Attorney General Elizabeth Glenn, director of the AG’s civil division, wrote that a state statute specifically allows educational foundations to keep information about donors secret. In response to other questions about NMSU’s handling of government transparency laws, Glenn wrote that the NMSU Board of Regents did violate the Open Meetings Act on July 17 but has not violated the Inspection of Public Records Act in handling several other requests related to university and foundation records.

The opinion is not a formal, legal ruling, but it comes from the office responsible for prosecuting Open Meetings Act violations and assisting the public in questions on government transparency laws, so it is significant.

The question of whether the foundation can legally keep information about donors secret has been an issue since the university started using money from secret donors in May for deferred compensation and a housing allowance for President Michael Martin. In addition, money from secret donors was used to help compensate former men’s basketball coach Reggie Theus.

Glenn wrote that the foundation is subject to state statute 6-5A-1, which applies to non-profits whose aim is to support public agencies. Because the definition of “agency” includes “any public post-secondary educational institution,” and because the statute states that such non-profits’ records are not public, Glenn concludes that the Legislature “intended to preserve the confidentiality of donor information maintained by organizations subject to” the statute.

On other questions:

An Open Meetings Act violation

Glenn wrote that the regents violated the Open Meetings Act on July 17. The board scheduled a meeting for that day but did not make its agenda available to the public 24 hours before the meeting at its communications office, as its own resolution requires. Because of that, regents decided to discuss public policy issues but not take formal action at the meeting, and later voted on the issues at a special meeting held on July 23.

The regents should have cancelled the July 17 meeting altogether, Glenn wrote.

“The agenda requirements of (the Open Meetings Act) are a prerequisite to any meeting of the board where a quorum is present, including meetings where the board merely discusses public business and does not take action,” she wrote.

However, Glenn wrote that the board’s apparent attempt to follow the act after realizing the agenda wasn’t posted in the time required constitutes “sufficient corrective measures,” so no further action is necessary by the attorney general.

Agreement was public

Though it initially denied me and the Las Cruces Sun-News access to a new agreement between the university and foundation after it was approved by the regents on July 23, the university avoided an Inspection of Public Records Act violation because it later provided the agreement, within the 15-day requirement in the act, Glenn wrote.

The university asserted that the document, though approved by the regents, was not public because it was not yet signed by all parties. Glenn wrote that the university’s argument was bogus and “the agreement was a public record,” but the university avoided a violation with its decision to back off its original claim and provide the record.

Dukes’ foundation-related e-mails aren’t public

Glenn wrote that the university did not violate the Inspection of Public Records Act by denying my request for e-mails regarding the NMSU Foundation sent from, received by or copied to the e-mail address of Vice President Rebecca Dukes from Jan. 1 to July 31. Dukes is also the foundation’s director.

Public records, under the act, include e-mail messages that are “held by” any public body, and the requested e-mails are held by NMSU, even if they’re used by the non-profit foundation. However, the act also states that, to be a public record, the e-mails must “relate to public business.” Because the e-mails relate to the foundation, which the Attorney General’s Office concluded is not public, the e-mails are not public and the university did not violate the act in denying my access to them, Glenn wrote.

However, Glenn noted in the letter that the issue has not been tested in New Mexico courts.

“Particularly here, where there is a close relationship between the foundation and NMSU, it is possible that a New Mexico court would reach a different conclusion than we have regarding the public availability of Ms. Dukes’ e-mail messages,” Glenn wrote. “For this reason, among others, NMSU officers and employees should be cautious about using state university-owned information technology resources for personal matters they wish to remain private.”

Denying e-mail requests wasn’t a violation

Glenn wrote that the regents did not violate the Inspection of Public Records Act by refusing to accept e-mail requests for records as valid “written” requests, but said the university should treat them as written requests. It’s not a violation because the act doesn’t define “written.”

Although the Attorney General’s Office concluded that there were no Inspection of Public Records Act violations, Glenn wrote that the “complaints raise interesting issues regarding the relationship between NMSU and the NMSU Foundation.”

“In particular, had the requested donor information not been protected from disclosure under (the statute cited above) or the subject matter of the requested e-mail messages not related solely to the foundation, the allegations in the complaints would have presented a much closer question,” she wrote.

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