North Dakota State University foundation is a public entity, state attorney general rules

NORTH DAKOTA — A private foundation whose “sole purpose and function” is to support North Dakota State University is a public entity subject to public open record laws, the state attorney general ruled Monday.

In December, Rob Port, a conservative blogger for, requested a copy of all expenditures from the North Dakota State University Development Foundation from 2013. The foundation denied his request, saying most of the expenditures are nonpublic and that most of the staff are not public employees. is a collection of independent journalists who cover state and local governments across the country.

Attorney General Wayne Stenehjem concluded the foundation works as an “agent of the affiliated university” and performs “government functions on its behalf,” according to the opinion.

“This office recognizes that the solicitation and receipt of donations for a public university, along with promoting, aiding, and fundraising for the university, are governmental functions and when foundations undertake these activities on behalf of universities, they become ‘public entities,’ despite their status as private, nonprofit corporations,” Stenehjem said in the opinion.

In 2006, the attorney general’s office made the same conclusion for a different public records request involving the foundation. Stenehjem also made the same finding in April for a similar case involving Dickinson State University Foundation.

Following Stenehjem’s ruling Monday, foundation President and Chief Executive Doug Mayo said he will give Port the records.

“When the first request was made back in December, frankly there were a lot of questions about where the bright line was between us as a separate legal entity and the university,” Mayo said. “Now that it is more clear we’ll follow that ruling.”

The foundation has seven days to release the records. Port filed another open records request this week asking for all money spent on legal fees to deal with his request.

The foundation offered Port some expenditure records after he entered his complaint with the attorney general’s office, but he said they weren’t the full records he was looking for and he wouldn’t accept them.

“I told them until the opinion comes out, I’m not going to accept anything from you because you’re trying to get around the complaint,” Port said. “I don’t feel like you’re fulfilling the request when you wait five months.”

Port said he requested the expenditure records because university officials complained about being underfunded to the legislature, but the president “bragged” that he spent more than half of his time fundraising and earning money for the development foundation, Port said. He wanted to know where money from this fundraising was going, especially if it was going to “fringe benefits for administrators” or to help students.

The foundation did give Port some documents when he made his request, but only ones relating to the university president’s expenses.

In April, the attorney general’s office released an opinion responding to Port’s complaint and said the foundation is a public entity. However, he gave the foundation more time to “amend or otherwise supplement” its response.

Port says he hopes the attorney general’s decision “opens the book” for further investigative work.

“This is one of the largest institutions in the state,” Port said. “I want to see where the money is going.”

Contact Kass by email or at (703) 807-1904 ext. 126.