FOG amicus brief supports Libit lawsuit against UNM

The New Mexico Foundation for Open Government (FOG) and The Brechner Center for Freedom of Information, joined together on Nov. 6, 2020, to file an amicus brief asking the New Mexico Court of Appeals to uphold a lower court ruling that records held by the UNM Lobo Club and the UNM Foundation are subject to the Inspection of Public Records Act (IPRA).

The brief was filed in support of a lawsuit brought by Daniel Libit, an independent journalist, whose requests to inspect records held by the UNM Lobo Club and the UNM Foundation were denied. Libit filed a lawsuit against UNM and its foundation arguing that the two entities operate in such a close and intertwined effort that they are subject to IPRA.

Former FOG President and Albuquerque Attorney Gregory Williams, in the FOG amicus filing, argues that the two UNM entities are acting on behalf of the University and the requested records fall under the IPRA.

“This is not a situation in which an independent private entity provides certain services to a public entity; to the contrary, both the Foundation and the Lobo Club are creations of UNM and exist only to carry out one of UNM’s core needs: fundraising,” he wrote.

He added that there is no evidence that the two entitites have an exemption.

UNM has appealed District Judge Nancy Franchini’s 2019 ruling that agreed with Libit stating his request for records met all of the nine court-established criteria used to determine when a private body acts on behalf of a public agency and the requested records are subject to IPRA.

The judge stated, “The foundation acts on behalf of the university in its fundraising efforts and the university’s and the foundation’s fundraising efforts are inherently public in nature.”

UNM appealed the judge’s ruling saying it needs to protect donor privacy.

For 40 years The Brechner Center for Freedom of Information’s legal staff has served as a source of research and expertise about the law of access to information. The Brechner Center regularly publishes scholarly research about the public’s rights under open-government laws, responds to media inquiries about the workings of public-records statutes, and conducts educational programming to inform citizens about their access rights.

Read the entire brief here.