The UM Foundation, the University of Montana’s increasingly powerful fundraising arm, only shows the public what it wants the public to see.

For instance: Was the man who scored a sweet deal in December on the Foundation-owned Montana Island Lodge also a donor? The foundation wouldn’t say.

Or recall in 2016, when a former athletic director accused UM of scrubbing a donor’s name from Washington-Grizzly stadium as a condition of the Washington family’s $7 million Champions Center gift. UM declined to comment, and the foundation wouldn’t share the donor agreement.

That’s because the foundation, unlike the university it exists to support, has long claimed exemption from Montana open records laws, to the frustration of open-government hawks and reporters who seek to shed light on the inner workings of public institutions.

New contract language between UM and the UM Foundation, approved without discussion March 8 by the state’s Board of Regents, may make it even harder for the public to learn what the foundation is up to.

The approved operating agreement contains a new, two-page section on the confidentiality of foundation records that Mike Meloy, an attorney who frequently represents Montana newspapers in open-records lawsuits, calls “patently unconstitutional.” Of particular concern, he says, is a clause that gives the foundation sway over the release of information that it didn’t even possess.

According to the contract, any time a member of the public asks for information from UM that the foundation “deems confidential,” the university must give the foundation 20 business days’ notice before fulfilling the request for the expressed purpose of allowing the foundation to seek a protective order to prevent the records’ release. Otherwise, according to the agreement, UM could be exposed to legal liability to the foundation.

Meloy argues that documents possessed by the university are subject to public records law. The contractually mandated delay, he says, “infringes on the right to examine documents.”

California courts have ruled that university officials can’t withhold records just because an associated foundation wants them to.

Meloy was unaware of the revision before the Indy contacted him. The operating agreement was hashed out between foundation and state and university officials behind closed doors, and no changes to the preceding 2015 agreement were mentioned in the regents’ public agenda or during their meetings.

Foundation President Cindy Williams says the language was added by the Office of the Commissioner of Higher Education. OCHE spokesperson Blair Fjeseth says only that the state wanted to modernize foundation agreements across the system “with language that fits the needs of today.” The Montana State University agreement approved in November 2017 also contains the identical new clause. The regents’ agenda described that updated agreement as “substantially the same” as the previous one.

In 11 states, foundations have been legislatively or legally defined as extensions of the public universities they support, and thus subject to public records laws, while in nine others they’re considered separate and not subject to such laws, according to a 2015 analysis published in the Quinnipiac Law Review. In the rest, the situation is uncertain. Without public disclosure requirements, the study says, university foundations have shielded sensitive information from public view. For instance, foundations across the country have secretly paid university presidents hundreds of thousands of dollars in consulting fees, and quietly accepted donations from companies that later received lucrative construction contracts.

If anything similar is taking place on Montana campuses, don’t expect to hear about it.

Staff Reporter

Staff reporter Derek Brouwer joined the Indy in 2015 after year-long stints covering education at the Billings Gazette and the Helena Independent Record. He graduated from Montana State University. Follow him on Twitter: @derekwbrouwer.

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