Without explanation or even a public discussion, the Montana Board of Regents has decided to grant a university foundation the ability to significantly delay the release of public information by a public university — or to keep it hidden indefinitely.
This is an inexcusable violation of the Montana Constitution, which explicitly protects the public’s right to review public documents, and to do so in a timely manner. But following state law — and ensuring access to public records — is clearly not a priority for Montana’s regents, who approved an agreement promising to keep important information secret without bothering to request an analysis from legal counsel first.
Adding insult to injury, regents have offered no substantive reasoning for their decision to flout state law. However, it’s not difficult to guess what might have given rise to the new language in the agreement.
A few months ago, the UM Foundation agreed to sell a multi-million-dollar property known as the Montana Island Lodge on Salmon Lake, but initially refused to disclose any terms of the sale, including the buyer’s name, even after serious concerns were raised. For one, the property was sold for about $1 million less than its lowest asking price by a Realtor who was on probation with the Montana Board of Realty Regulation. The island property sold for $1.6 million, well below the most recent listing price of about $2.5 million, and markedly lower than the $6.5 million it was listed for in 2014. The foundation declined to share appraisals.
The Lipson family, owners of the luxury Resort at Paws Up in Greenough, paid for the property in cash through an entity called the Montana Educational Benefit Company. The Lipson family’s attorney, Kirby Christian, is Commissioner of Higher Education Clayton Christian’s brother. Both have told the Missoulian they do not have any ownership interest in the property.
The Missoulian traced the new owners through the warranty deed on the property and then requested specific information about the sale from UM. In response, the foundation issued a news release that did not include an explanation for the decrease in the property’s price.
Foundation President and CEO Cindy Williams maintains that the nonprofit, which receives nearly 10 percent of its operating budget from the University of Montana, is exempt from public records laws. It was only at the urging of Commissioner Christian and UM President Seth Bodnar that Williams agreed to allow the release of some — but not all — requested information related to the sale.
Subsequently, over the course of two of their regular meetings this year, the regents OK’d an updated contract between the University of Montana and the UM Foundation. Williams told the Missoula Independent last month that the Office of the Commissioner of Higher Education inserted the new language, which was reportedly reviewed by legal counsel in both the Commissioner's Office and at UM, although no legal analysis was ever performed.
The new language of the agreement imposes alarming new restrictions under a section headed “Confidentiality and Access to Information by Other than Foundation Employees” that includes these directions: "If a public records request is made of any university official or employee for any information the foundation deems confidential, even where there is a signed confidentiality agreement with the foundation ... the university will give the foundation 20 business days' notice of the request so that the foundation can seek a protective order."
That is not how public records requests work. Any time anyone requests a public document from the University of Montana, the university is legally bound provide that document within a reasonable time frame. Allowing three weeks for foundation officials to first review any requests and put together a protective order makes a mockery of public disclosure laws.
Consider, for the sake of comparison, that when city councils consider changes to municipal ordinances, they commonly ask the city attorney for a legal analysis — not just a review. This is done to ensure the ordinance conforms to existing law and to avoid costly lawsuits down the road.
The Board of Regents, in contrast, is not worried about any potential legal problems. According to board chair Fran Albrecht, the new language merely affirmed “what was already being done so there was no concern of any additional legal issues.”
Never mind that “what was already being done” was also an attempt to deprive Montanans of their constitutionally guaranteed right to “examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions.”
It's worth pointing out that, in fiscal year 2017, the university provided the UM Foundation with more than $500,000 to bolster the foundation's operating budget. That's more than half a million dollars of public money.
As the major fundraising arm of the University of Montana, the UM Foundation does unarguably good work. In fiscal year 2017, giving through the foundation increased by 60 percent over the previous year to an astounding $70.6 million — a substantial portion of the $84.5 million in total support given to the university that year.
Unsurprisingly, donors are a major focus for the foundation, and protecting the privacy of any donors who don’t want to be thrust into the limelight is an understandable concern. However, if keeping donors’ names private were the intent of this new language, why does it cast such a large net? Allowing a foundation carte blanche to keep secret “any information (it) deems confidential” goes far beyond protecting donors’ privacy — into infringing on public records access.
Notably, attorney and open records expert Mike Meloy disagrees with the foundation on whether it is subject to state open records requirements, and with the Board of Regents on whether its new agreement is constitutional.
Meloy, who recently won an open records case against the Commissioner of Higher Education’s Office, explained in an email to the Missoulian that, “Regardless of what this agreement says, all university records are presumed to be open unless the university can establish that the records contain some material related to individual privacy and the demands of such privacy clearly exceed the merits of disclosure.”
It’s unfortunate that regents held no public discussion of this change before approving it. Instead of granting public university foundations the ability to deny the public’s right to know, they might have instead required these foundations to adhere to the same disclosure practices required of other public institutions in Montana.
A discussion about how best to balance donor privacy against the public’s right to know is still warranted. Because regents failed to have that discussion in public meetings when they had the opportunity, it will most likely happen in court.