North Dakota foundation ‘public entity,’ attorney general says

NORTH DAKOTA — Public concern for awheat germ plasm has made public the records of a research foundation associatedwith a university.

An opinion handed down by the attorney general ofNorth Dakota earlier this month said the research foundation violated thestate’s open records laws when it initially denied an open records requestfor information about the university’s handling of a wheat seed variety.The foundation later delayed producing the requested records.

Theopinion determined that the foundation — the North Dakota StateUniversity Research Foundation — was a public entity that must adhere toopen records laws. The foundation is as an “agent” of theuniversity, the opinion said, “performing a governmental function onbehalf of the university,” and is therefore subject to open recordslaws.

But Dale Zetocha, executive director of the researchfoundation, maintains that the foundation is not directly tied to theuniversity.

“We still believe we’re a separateentity,” Zetocha said.

Zetocha said he read the opinion, andthat in the wake of its release, he had concerns about the foundation’sability to do business with some companies and agencies in the future. Thesecompanies may be wary of associating themselves with a public entity that mustrelease its records upon request, Zetocha explained.

“It can be more difficult,”he said. “We’ll have to do more diligence and be real careful tomake sure we don’t compromise these agencies about what isconfidential.”

Theopen records request was made to the research foundation in May 2005 by DeanHulse, chairman for the Dakota Resource Council, a nonprofit activistorganization concerned with air, water and land issues in North Dakota.Hulsewrote a letter to the foundation, asking for copies of “all contracts,contract proposals, research requests, research proposals, and relatedcorrespondence” between the foundation and Monsanto Co., a St. Louis-basedcompany that produces agricultural chemicals and genetically modified seeds.

Zetocharesponded five days later with a letter that said the foundation “is not apublic entity within the meaning of the North Dakota Open Records Act,”and that the foundation was under no obligation to respond to Hulse’srequest.

Hulse thenasked the office of North Dakota Attorney General Wayne Stenehjem to investigatewhether the research foundation had violated the state’s open records lawwith its refusal to provide records. While the attorney general’s officegathered information about the situation, the foundation did provide requestedrecords to Hulse and the Dakota Resource Council, and between August andNovember sent them more than 800 pages of documents.

Theattorney general’s opinion also said that the foundation was “reluctant toprovide information that would help to determine whether or not it was a ‘publicentity.’”

The threat ofopen records

The foundation’s aversion to a“public entity” title was warranted, said Duane Berglund, aprofessor at North Dakota State who works in the Department of Plant Servicesand is familiar with the case.

Berglund echoed Zetocha’sconcern that the university’s relationship with agribusiness will bedamaged by the threat of open records requests. When business dealings andrecords are open to the public, those agricultural corporations will stay awaycompletely, he said.

“It throws up another barricade,”Berglund said. This barricade can be especially detrimental for a publicuniversity that relies on donations and financial support from the businesscommunity. When secrets cannot be kept and confidentiality cannot be promised,then the tie between a research university and commercial enterprise may besevered.

“It ruins the partnership,” Berglundsaid.

Following the papertrail

Close ties to business and closed meetings add up tosuspicion for Todd Leake.

Leake, a member of the Dakota ResourceCouncil, is a North Dakota farmer who grows wheat and soybeans from seedvarieties produced by North Dakota State University.

From hisposition on the Food and Safety Taskforce, a branch of the Dakota Resource Council, Leake helped Hulse in his openrecords request to the university research foundation.

Researchuniversities in the United States have been breeding lines of seeds for morethan 100 years, Leake said, and the development and dissemination of those seedvarieties have traditionally occurred in the public sphere.

Membersof the resource council were worried that, in its dealings with Monsanto, Inc.,the university had pursued a material transfer agreement that leant wheat germplasm to the corporation for its own research,development and commercialization. Thecouncil wanted to know if and how this process happened.

“Wewanted to get documents … to give us apaper trail of where the public germ plasm has gone and an understanding of thecontractual documents that Monsanto made with the university,” Leake said.

The open recordsrequest and the request to the attorney general’s office were done toavert a “trend toward privatization and secrecy,” he said.Historically, seed varieties grown in public universities have been given tofarmers, he pointed out, and those farmers and the public should be able to knowwhat is happening withthem.

“We hopethat this will keep everything transparent and that public property in the formof seed varieties will bebenefiting the public and the program and NDSU,” Leake said. “Wewant to see those revenues flow back to the research foundation and not someprivate channel that it shouldn’t. To that end, it will be to the benefitof North Dakota farmers and to the university. We want them to be true to itsmission.”


Casesinvolving university foundations in Iowa and Kentucky have resulted in differentoutcomes.

InFebruary, the Iowa Supreme Court decided that the Iowa State UniversityFoundation performs a government function through a contract with theuniversity, and therefore its records are public. The high court sent the caseback to a state trial court, which ordered the foundation to make available itsrecords for inspection and copying.

Last May, a stateappeals court in Kentucky sided with the University of Louisville Foundation inruling that it could keep its records private. But Louisville’s CourierJournal newspaper, which isseeking records from the foundation, has appealed the decision to the statesupreme court. The newspaper’s attorney, Jon Fleischaker, said a brief wasfiled today with the state’s highest court, and he expects oral argumentsto be heard before the court in late summer or earlyfall.

byAllison Retka, SPLC staff writer