{"id":2069,"date":"2007-08-07T08:04:00","date_gmt":"2007-08-07T14:04:00","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/2007\/08\/nmsu-rejects-request-for-vice-presidents-e-mails\/"},"modified":"2007-08-07T08:04:00","modified_gmt":"2007-08-07T14:04:00","slug":"nmsu-rejects-request-for-vice-presidents-e-mails","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2007\/08\/nmsu-rejects-request-for-vice-presidents-e-mails\/","title":{"rendered":"NMSU rejects request for vice president’s e-mails"},"content":{"rendered":"

\"\"<\/a>New Mexico State University<\/a> and its non-profit foundation<\/a> have rejected my request to release the e-mails of the university vice president who also runs the foundation, prompting me to send another request to the attorney general. <\/p>\n

<\/o:p><\/p>\n

I\u2019ve asked the Attorney General\u2019s Office<\/a> to consider whether the university violated the state Inspection of Public Records Act<\/a> in rejecting my request for inspection of all e-mails regarding the foundation sent from, received by or copied to Rebecca Dukes\u2019 NMSU e-mail address from Jan. 1 to July 31 of this year.<\/p>\n

<\/o:p><\/p>\n

That\u2019s on top of the original request<\/a> I sent the attorney general on July 26 asking the office to look into a number of possible violations of the public records and Open Meetings<\/a> acts, and an addendum<\/a> I sent July 30 on another potential violation. That office is looking into the situation.<\/p>\n

<\/o:p><\/p>\n

For background information on this topic, click here<\/a>. To read my new letter to the attorney general, click here<\/a>.<\/p>\n

<\/o:p><\/p>\n

Government e-mails are generally public in New Mexico<\/st1:place><\/st1:state>. That\u2019s one reason many public officials use personal e-mail accounts instead of official government addresses.<\/p>\n

<\/o:p><\/p>\n

So I requested, last week, the e-mails of Dukes, the university vice president for advancement and director of the foundation. She\u2019s paid by the university, not the foundation, and her e-mail address is assigned to a server set up for university administrators. The foundation doesn\u2019t pay NMSU for use of that e-mail server.<\/p>\n

<\/o:p><\/p>\n

University Attorney Bruce Kite responded on Friday. (Ironically, he officially responded by e-mail to a request I hand-delivered because the university doesn\u2019t consider e-mail requests to be valid.) He wrote that he was forwarding my request for the e-mails to the foundation, but pointed out, as he always does, that the foundation \u201cis a separate and private 501(c)(3) non-profit corporation,\u201d and told me the agreement between NMSU and the foundation requires NMSU to keep all foundation records confidential.<\/p>\n

<\/o:p><\/p>\n

He wrote that the e-mails weren\u2019t likely public but, if they were deemed by the foundation to be public, I\u2019d be charged not only the $1 per page allowed by the public records act, but also for \u201cNMSU\u2019s expenses in locating, reviewing and producing\u201d the e-mails, which he claimed is allowed by another statute.<\/p>\n

<\/o:p><\/p>\n

Then the kicker:<\/p>\n

<\/o:p><\/p>\n

\u201cUnderstand that NMSU takes its obligations under the Inspection of Public Records Act very seriously,\u201d Kite wrote. \u201cNMSU cannot ignore other important goals or public policies and it cannot ignore contractual obligations.\u201d<\/p>\n

<\/o:p><\/p>\n

Right. As if goals, policies or contracts trump state law.<\/p>\n

<\/o:p><\/p>\n

On Monday, I received the formal denial of my request from foundation attorney William Lutz, who also pointed out that the foundation is a private non-profit. He offered to ask his client whether it would be appropriate to \u201cvoluntarily\u201d release some records if I narrowed my request.<\/p>\n

<\/o:p><\/p>\n

I\u2019m not after a narrow request. I\u2019m after e-mails I contend should be public. It\u2019s not about the information that\u2019s in them. It\u2019s about the public having access to information to which it should have a right.<\/p>\n

<\/o:p><\/p>\n

Is the foundation an alter ego of NMSU?<\/span><\/p>\n

<\/o:p><\/p>\n

Over and over, the university and foundation assert at every turn that the two are separate. I\u2019m assuming that\u2019s because, according to several court rulings in other states, the two must be separate or the foundation can\u2019t keep its records secret.<\/p>\n

<\/o:p><\/p>\n

Saying the two are separate doesn\u2019t make it true. Who, including foundation board members, really believes the university president doesn\u2019t control the foundation? The foundation doesn\u2019t pay rent or for utilities and other services, including e-mail use. The university forwarded my e-mail request to the foundation, as if it\u2019s the custodian of the e-mails, when in fact they would be obtained from the university\u2019s Information and Communication Technologies Department, which manages the e-mail addresses.<\/p>\n

<\/o:p><\/p>\n

And Kite, while asserting that the foundation is separate and has its own attorney to respond to my request, also took the time to do legal research and find another statute under which the university could charge me additional money if the e-mails were deemed public by the foundation. If the foundation, not university, would have been providing the e-mails if they were deemed public, as Kite asserts, didn\u2019t he do legal work, then, to benefit the foundation?<\/p>\n

<\/o:p><\/p>\n

Perhaps the appropriate legal definition here is \u201calter ego,\u201d which Law.com<\/a> defines as \u201ca corporation, organization or other entity set up to provide a legal shield for the person actually controlling the operation. Proving that such an organization is a cover or alter ego for the real defendant breaks down that protection, but it can be difficult to prove complete control by an individual. In the case of corporations, proving one is an alter ego is one way of \u2018piercing the corporate veil.\u2019\u201d<\/p>\n

<\/o:p><\/p>\n

In my view, this latest request had nothing to do with the foundation. I requested the e-mails of a university vice president who\u2019s paid with public money and using an e-mail account paid for with public money. The university\u2019s response that the e-mails are somehow under control of the foundation and subject to its protections points to the lack of separation between the university and foundation.<\/p>\n

\n

Update, 9:35 a.m.<\/p>\n

<\/o:p><\/p>\n

The Las Cruces Sun-News published today an interesting article examining the national issue of whether educational foundations should have to release donor records. Check it out by clicking here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

New Mexico State University and its non-profit foundation have rejected my request to release the e-mails of the university vice president who also runs the foundation, prompting me to send another request to the attorney general. I\u2019ve asked the Attorney General\u2019s Office to consider whether the university violated the state Inspection of Public Records Act […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2069","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2069","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=2069"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/2069\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=2069"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=2069"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=2069"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}