North Dakota state attorney urges release of candidate information from North Dakota State University

The North Dakota state attorney has called on the fundraising wing of North Dakota State University to release records that hold the names of candidates interested in the then-open president/CEO position.

In an opinion issued last week, the North Dakota Attorney General Wayne Stenehjem wrote that the North Dakota State University Foundation and Alumni Association violated public record laws when it refused to release records to a state newspaper.

The foundation declined the Student Press Law Center’s request for comment. Under state law, the foundation had seven days from Jan. 25, when the opinion was issued, to disclose the record or it could face additional legal consequences, like lawsuits from requestors.

Stenehjem argued the foundation — along with the private search firm the university hired to help with the search — is subject to open records laws because the two bodies were acting as, or on behalf, of a public entity: the university.

“The North Dakota Supreme Court has stated that public entities cannot circumvent open records law by delegating the public duty of searching and obtaining applications for public employment to a third party,” Stenehjem wrote.

Matthew Von Pinnon, editor of The Forum (also known as InForum), had requested the state attorney general’s office review the legality of the foundation’s denial of a reporter’s request for the names of the candidates interested in the open position.

In the search for a new president/CEO, the foundation hired Boston-based search firm Lois L. Lindauer Searches to advertise the position and help receive information from candidates, according to the opinion.

After 12 interested candidates submitted their qualifications to the search firm, the university search committee conducted a “blind review” where they reviewed a candidate’s information to see if they are qualified for the job without identifying them by name, according to the opinion.

The search committee concluded that eight of the 12 individuals who had submitted their information were qualified for the position. Four of the candidates ultimately submitted formal applications, according to the opinion.

Yet when a reporter from The Forum contacted the foundation requesting the names of the applicants the search committee had reviewed in the “blind review,” a university administrator said neither the university nor the search firm had access to the documents she was requesting.

When the reporter followed up with the request, an attorney with the foundation refused to provide the information, stating the names of the dozen people in the “blind review” were considered a “trade secret.”

Instead, the attorney provided the formal applications that the foundation received.

The foundation argued, according to the opinion, that the names of people looking to change positions in the higher education industry is valuable to the search firm.

“They point out that LLLS has spent years cultivating the contacts and it would not be able to sell its services if this entire database of contacts was generally known to the public,” Stenehjem wrote in the opinion.

Still, Stenehjem argued that while the whole database of individuals might be considered a trade secret, the search firm did not derive “independent economic value” from the 12 names.

“This information was bought and paid for by the [North Dakota State University Foundation] as part of LLLS duties under contract and, since there is a contract in place, the LLLS is not in competition with any other company to advertise and obtain applications for this CEO/president position,” Stenehjem wrote in the opinion.

Efforts to keep the names of presidential candidates secret during searches at universities are nothing new. The Student Press Law Center highlights secrecy in administrative searches through the Sack Secrecy project.

And university foundations, which handle large donations that create scholarships, raise money for programs and build memorial funds, among other things, have also been known to be secretive — whether the foundation is subject to public records laws varies from state to state and sometimes from case to case. An article in the spring 2015 edition of the Student Press Law Center’s Report magazine explored how campaigns, such as the student-led UnKoch My Campus movement, have fought for transparency from university foundations. The report also looked at how students filed record requests to their university’s foundation in order to expose donor influence.