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Attorney general says NDSU foundation must release its expense records

FARGO — State Attorney General Wayne Stenehjem agreed with blogger Rob Port on Monday that the North Dakota State University Development Foundation must release expense records Port requested under the state’s open records law.

In ordering the foundation to turn over the records, Stenehjem wrote that the foundation violated the open records law when it denied Port’s request “on incorrect legal grounds and when it delayed its response by months, even after acknowledging that it had responsive records.”

Port, who edits the blog, asked the foundation for “a copy of all expenditures” for 2013 and received no response. After he asked a second time, the foundation denied his request by stating that “most of our expenditures are non-public,” according to the opinion.

At issue was whether the foundation — a private entity with strong ties to a public university — should fall within the scope of open records laws that govern public institutions.

Stenehjem argued that the foundation was subject to open records laws because its “sole purpose and function, as outlined in its By-Laws and numerous agreements with NDSU, is to support and assist NDSU.”

“The NDSU Development Foundation is a public entity subject to open records laws because it performs governmental functions on behalf of NDSU,” he wrote.

The opinion was in line with a previous stance taken by Stenehjem on April 24 when he wrote that the Dickinson State University Foundation had to turn over records because it was effectively a public entity.

When foundations engage in “promoting, aiding and fundraising” for a public university, he wrote, “they become ‘public entities,’ despite their status as private, nonprofit corporations.”

The NDSU Development Foundation is ordered to describe what expenditure records it has within seven days and then provide them to Port.


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