AG: Foundation violated open records law: Thompson required to review emails requested by The Press
North Dakota’s attorney general ruled Thursday that the Dickinson State University Foundation has violated the state’s open records law.
Wayne Stenehjem issued an opinion stating the Foundation acts as an agent of DSU by performing governmental functions on the university’s behalf, making it a public entity under North Dakota Century Code.
“It is my opinion that the DSU Foundation did not provide a correct legal reason for denying the records request (of The Dickinson Press) and therefore violated the open records law,” he wrote in the opinion.
The Press requested emails from Foundation CEO Kevin Thompson in November regarding Blue Hawk Square, Hawks Point and Granville “Beaver” Brinkman.
Brinkman and a group of his companies have brought suit against the DSU Foundation and others for allegedly pushing him out of management of Hawks Point, a senior-living facility on DSU’s campus. That matter is still in litigation, though hearings are open to the public.
Thompson denied the request, previously stating the emails were not public record involving public business or funds.
Stenehjem wrote in the opinion all state universities are public entities subject to the law. Any foundations supporting those colleges are also public entities when they perform governmental functions on behalf of the universities.
The attorney general based his decision on opinions he wrote regarding the University of North Dakota Foundation and Alumni Association and North Dakota State University Research Foundation. Both acted as agents on behalf of their respected universities and were deemed to be subject to open records law.
Stenehjem also determined that any records related to governmental functions the Foundation performs are subject to the law, he wrote. The Foundation markets Blue Hawk Square as “our new state-of-the-art student housing facility,” Stenehjem wrote. The Hawks Point building is on DSU property, contains classrooms for student use and offers internship opportunities, meaning it contributes to public business, he added.
Thompson originally told The Press in emails the records requested related to pending legal dispute and were “attorney work products” exempt from open records law.
“I question whether every email that uses the words ‘Hawk Square,’ ‘Hawks Point’ or other keywords would fit into the above definition,” Stenehjem wrote.
Thompson also claimed the records related to “active investigatory work product,” meaning “the records were obtained, compiled or prepared by a public entity in an effort to monitor or enforce compliance with the law or an order.”
“The DSU Foundation is not an entity tasked with this duty,” Stenehjem wrote. “When asked which law or order the DSU Foundation claims makes the above records exempt, it claims it is attempting to enforce municipal codes related to construction of the Hawks Point and Blue Hawk Square buildings. DSU is not charged with the enforcement of building codes. Rather, if felt aggrieved, the DSU Foundation would need to bring a civil suit and then claim exemption under the above ‘attorney work product’ or other exemption.”
Thompson did not respond to multiple messages left Thursday by The Press.
The Foundation must conduct an analysis on whether the requested records fit into the exception to open records law for “attorney work product,” Stenehjem wrote. The review is subject to the Attorney General’s Office approval. Any such record not exempt by the law must be provided to The Press free of charge.
The Foundation is required to “take corrective measures” by May 1 or face mandatory costs, disbursements and attorney fees. It may also result in personal liability for the Foundation.