The Attorney General’s Office has already begun considering whether the New Mexico State University Foundation can legally keep its donor list secret.
That’s what Attorney General Gary King said today during an interview with me. King was in
“I’ve already assigned lawyers to start looking at these questions,” King said.
On first glance, he said, federal regulations allow foundations and other non-profits to keep the names and addresses of their donors secret. But there is a question, he said, about whether such foundations would also be categorized as public bodies under state law.
Courts in a number of states have said in recent years that such foundations are, for purposes of government transparency laws, public agencies under those state’s definitions. You can read more about that by clicking here.
A number of lawmakers will soon be filing a formal request that King’s office consider the question of whether the NMSU Foundation can keep its donor list secret, but King said his office has begun work because it’s been made aware of the issues and concerns.
I asked him to consider the issue in a letter sent a week ago by questioning whether the university, in denying my request for information about donors whose gifts were going to the compensation of the president and former men’s basketball coach, had violated the state Inspection of Public Records Act.
I also asked the attorney general to consider:
• Whether the regents violated the state Open Meetings Act by meeting on July 17 even though the meeting was not properly noticed. The university postponed formal action until a July 23 meeting but still discussed the formation of public policy that day.
• Whether the university violated the public records act by considering e-mail requests for records to be invalid and by refusing to release a new agreement between the foundation and university. Essentially, I requested by e-mail a copy of the new agreement between the university and foundation and was told e-mail is not a valid form of requesting such documents and, even if it were, the agreement wasn’t going to be released, even though it had regents’ approval, because it was not yet signed.
• Whether the university violated the public records act in May, when I requested a copy of the operating agreement between the university and foundation, by providing me with one from 1991 but not updates to the agreement approved in 1993 and 2005.
“Some of the good lawyers in my civil division are going to look at those issues,” King said.
General statements on transparency laws
Without speaking about the specific instances involving NMSU, King did opine on what he believes are some of the requirements of the two government transparency laws.
He said that, in general, the definition of a public record “is not dependent on a document being voted on by a public body.”
He said his understanding is that a document generally becomes public “when it’s generated.”
Applying that to the case of the new foundation agreement – which is something I’m doing, not something King did – it would have been public long before it was approved or signed by the regents.
King also said he believes the Open Meetings Act “applies to discussion as well as votes.” The example has often been used, he said, that in a county with three commissioners, if two run into each other at the grocery store and discuss public business there, they can be in violation of the act.
King cautioned that his office would have to consider the specific facts in each case.
But – again, my analysis, not King’s – the regents met to discuss policy on July 17 in a meeting that, by their own admission, didn’t meet requirements. That’s because, though the meeting was properly noticed to the media and on the Web site, a copy of the agenda was not posted at the university’s communications office, as the regents require in their Open Meetings Act resolution.
Wouldn’t the example of the two county commissioners apply in this instance?
As for the issue of e-mail records requests, King said
“My personal belief is that an e-mail ought to be treated as a written request,” King said, adding that, once his attorneys complete their analysis, “if we have no other way to clarify this, then I will seek legislation.”
The overall goal of such investigations is to be instructive, not punitive, King said. He said it will be “good to make these issues clear.”
Still, he said he won’t be afraid to try to enforce the Open Meetings Act with criminal charges when necessary. He wasn’t suggesting that it might be necessary in this instance. His comment was in response to a question I asked.
Violations of the Open Meetings Act are punishable by a fine of up to $500 per violation. The public records act contains no criminal penalties for violations.
King said he thinks it’s probably a good idea to add a criminal penalty for violating the public records act, but said such a proposal would require serious consideration because it’s a different situation than that of the Open Meetings Act.
Open meetings violations are the responsibility of elected public officials. In the case of the public records act, it’s not uncommon for the custodian of records to be an employee who isn’t paid a lot.
There’s not yet a timetable for the release of the attorney general’s opinion on the NMSU Foundation records or a response to my questions surrounding the Open Meetings and Inspection of Public Records acts.