Libit v. Univ. of N.M. Lobo Club

• Decision Date: 21 April 2022
• Docket Number: A-1-CA-38255
• Citation: 516 P.3d 217
• Parties: Daniel LIBIT, Plaintiff-Appellee, v. UNIVERSITY OF NEW MEXICO LOBO CLUB; Jalen Dominguez, in his capacity as Custodian of Records for the University of New Mexico Lobo Club; University of New Mexico Foundation, Inc.; Board of Regents of the University of New Mexico; Christine Landavazo, in her capacity as the Interim Custodian of Records for the University of New Mexico, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

516 P.3d 217

Daniel LIBIT, Plaintiff-Appellee,
v.
UNIVERSITY OF NEW MEXICO LOBO CLUB; Jalen Dominguez, in his capacity as Custodian of Records for the University of New Mexico Lobo Club; University of New Mexico Foundation, Inc.; Board of Regents of the University of New Mexico; Christine Landavazo, in her capacity as the Interim Custodian of Records for the University of New Mexico, Defendants-Appellants.

No. A-1-CA-38255

Court of Appeals of New Mexico.

Filing Date: April 21, 2022
Certiorari Granted, August 16, 2022, No. S-1-SC-39396

Harrison & Hart, LLC, Nicholas T. Hart, Albuquerque, NM, for Appellee

Law Office of Marshall J. Ray LLC, Marshall J. Ray, Albuquerque, NM, for Appellants University of New Mexico Lobo Club and Jalen Dominguez

Patrick D. Allen, General Counsel, Albuquerque, NM, Montgomery & Andrews, P.A., Randy S. Bartell, Matthew A. Zidovsky, Santa Fe, NM, YLAW, P.C., Michael S. Jahner, Albuquerque, NM, for Appellant University of New Mexico Foundation, Inc.

Long, Komer & Associates, P.A., Nancy R. Long, Jonas M. Nahoum, Santa Fe, NM, for Appellant Regents of the University of New Mexico and Christine Landavazo

Martin & Lutz, PC, William L. Lutz, David P. Lutz, Las Cruces, NM, for Amicus Curiae New Mexico State University Foundation, Inc.

Miller Stratvert P.A., Dylan O'Reilly, Luke A. Salganek, Santa Fe, NM, for Amicus Curiae New Mexico Highlands University Foundation, Inc.

Hector H. Balderas, Attorney General, John F. Kreienkamp, Assistant Attorney General, Santa Fe, NM, for Amicus Curiae New Mexico Attorney General

Peifer, Hanson, Mullins & Baker, P.A., Gregory P. Williams Albuquerque, NM, for Amici New Mexico Foundation for Open Government and Brechner Center for Freedom of Information

DUFFY, Judge.

516 P.3d 219

{1} This consolidated appeal arises from two lawsuits brought by Plaintiff Daniel Libit against Defendants the University of New Mexico Foundation, the University of New Mexico Lobo Club,¹ and the Board of Regents of the University of New Mexico under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2019). The Foundation and the Lobo Club are private, nonprofit corporations that raise funds exclusively for the University—a relationship governed by NMSA 1978, Section 6-5A-1 (2011) of the Public Finances Act. The common issue presented in these appeals is whether Section 6-5A-1(D) exempts records of the Foundation and the Lobo Club from public inspection. Section 6-5A-1(D) states: "Nothing in this section subjects an organization² to the provisions of the Open Meetings Act ... or makes its records, other than the annual audit required under this section, public records within the purview of Section 14-2-1 [of IPRA]." In both cases, the district court ruled that Section 6-5A-1(D) did not serve as a statutory exemption to IPRA. We agree and affirm both rulings.³

BACKGROUND

I. Libit I

{2} In late 2016 and early 2017, Plaintiff sent a number of IPRA requests to the Foundation and the University. Plaintiff sought records and communications related to a naming agreement between the University and WisePies Pizza, a restaurant chain that obtained naming rights to a major sporting facility operated by the University. The University denied Plaintiff's requests, stating that it did not possess the requested records. The University further stated that Plaintiff should contact the Foundation directly, since the Foundation was a separate entity that may have been in possession of the records. Plaintiff did so, and in response, the Foundation provided a copy of a gift agreement and a press release, but refused to release any electronic communications or financial records related to the WisePies naming agreement. The Foundation justified its refusal by stating that it was a nonprofit entity not subject to IPRA's disclosure requirements.

{3} Plaintiff filed a complaint in district court, alleging that the Foundation and the University had violated IPRA by failing to provide records responsive to his request. After completing discovery, Plaintiff and Defendants filed competing motions for summary judgment. Plaintiff argued that the

516 P.3d 220

Foundation was not a private entity exempt from IPRA's disclosure requirements because the Foundation functioned as an extension of the University under the nine-factor test announced in State ex rel. Toomey v. City of Truth or Consequences , 2012-NMCA-104, ¶ 13, 287 P.3d 364. Defendants argued Toomey was inapplicable because Section 6-5A-1(D) served as a statutory exemption to IPRA, thus making the records exempt from disclosure under any circumstance. The district court granted Plaintiff's motion, ruling that the Foundation was subject to IPRA under Toomey and that Section 6-5A-1(D) did not serve as a statutory exemption for the Foundation. The court ordered the Foundation to produce the records. The court simultaneously denied Plaintiff's motion against the University, ruling that disputed factual issues precluded summary judgment.

{4} The Foundation produced the records in accordance with the order, and Plaintiff and the University settled their remaining claims.⁴ The Foundation appeals the district court's ruling that Section 6-5A-1(D) does not serve as a statutory exemption to IPRA.⁵

II. Libit II

{5} In 2018, Plaintiff filed another series of IPRA requests seeking records, including donor lists, from the Lobo Club, the Foundation, and the University. The Lobo Club denied Plaintiff's requests, stating that the records were...